United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
F. BECKERMAN United States Magistrate Judge
brings this habeas corpus proceeding pursuant to 28 U.S.C.
§ 2254, challenging his Lane County convictions for two
counts of Sexual Abuse in the First Degree and two counts of
Attempted Sodomy in the First Degree involving his
seven-year-old son who is autistic. For the reasons set forth
below, the district judge should deny Petitioner's
Amended Petition (ECF No. 34) and decline to issue a
Certificate of Appealability.
14, 2006, the Oregon Department of Human Services made a sex
abuse referral to the Albany Police Department concerning
Petitioner's alleged sexual abuse of his
son"BW." Resp't Exs. (ECF No. 17), Ex. 114 at
3. On June 27, 2006, Albany Police Detective Ryon McHuron
interviewed B W and concluded that it was "impossible to
ascertain what type of touching [B W] was actually talking
about. . . and he did not describe a clear sexual type of
contact." Id. at 6. Several months later,
McHuron interviewed Petitioner and he denied sexually abusing
BW. Id. at 7.
subsequently submitted to a polygraph examination. Resp'
t Ex. 115. The examiner concluded that Petitioner was not
truthful when he denied fondling BW for sexual gratification.
Id. at 4. According to the examiner, Petitioner
subsequently admitted to sexually abusing BW. Id. at
5. Petitioner thereafter confessed to Detective McHuron that
he had sexually abused BW. Resp't Ex. 116. On February
20, 2007, a grand jury indicted Petitioner on two counts of
Sexual Abuse in the First Degree and two counts of Sodomy in
the First Degree. Resp't Ex. 103. Following a bench
trial, the court found Petitioner guilty of two counts of
Sexual Abuse in the First Degree and two counts of Attempted
Sodomy in the First Degree and sentenced him to 150 months
imprisonment. Resp't Ex.101.
filed a direct appeal limited to the state law issue of
whether Petitioner's confession was sufficiently
corroborated. Resp't Ex. 104. The Oregon Court of Appeals
affirmed Petitioner's conviction without opinion, and the
Oregon Supreme Court denied review. State v. Parmer,
232 Or.App. 440 (2009), rev. denied, 348 Or. 281
(2010). The appellate judgment issued on June 11, 2010.
Resp't Ex. 108.
January 21, 2011, Petitioner signed a state Petition for
Post-Conviction Relief. Resp't Ex. 109. Petitioner
subsequently filed an amended petition alleging that he
received ineffective assistance of trial and appellate
counsel. Resp't Ex. 110. The trial court denied
post-conviction relief. Resp't Ex. 122. The Oregon Court
of Appeals affirmed the denial of post-conviction relief
without opinion, and the Oregon Supreme Court denied review.
Parmer v. Premo, 267 Or.App. 423 (2014), rev.
denied, 357 Or. 299 (2015). The appellate judgment
issued on June 15, 2015. Resp't Ex. 127.
one year later, on or about June 10, 2016, Petitioner mailed
his § 2254 Habeas Corpus Petition to this Court alleging
that there was insufficient evidence of his guilt, and that
the trial court erred in allowing Officer McHuron to testify.
Pet'r's Habeas Pet. (ECF No. I). On October 24,
2017, Petitioner filed an amended petition alleging that the
trial court "violated his Fifth Amendment rights
(through the use of an unreliable, coerced confession) and
Sixth Amendment rights (through the use of out of court
statements [Petitioner] could not effectively confront and
ignoring his invocation of the right to counsel)."
Pet'r's Br. in Supp. (ECF No. 31) at 2;
Pet'r's Am. Pet. at 2.
contends that this Court should deny habeas corpus relief
because Petitioner's original and amended petitions were
not filed within the one-year time period allowed by 28
U.S.C. § 2244, and Petitioner procedurally defaulted his
available state remedies by not raising his grounds for
relief in state court. Resp't Resp. to Am. Pet. (ECF No.
35) at 1-2; see 28 U.S.C. § 2254(b) (1)(A)
(requiring state prisoner to exhaust available state remedies
prior to seeking federal habeas relief).
does not contest that his petitions were filed beyond the
one-year limitation period or that he procedurally defaulted
his available state remedies. Instead, Petitioner argues that
this Court should excuse the running of the limitation period
and his procedural default based on his colorable showing of
actual innocence. Pet'r's Br. in Supp. at 2, 15-17.
Additionally, Petitioner moves the Court to order an
evidentiary hearing because "further factual development
and briefing should be provided." Id. at 17-18.
to 28 U.S.C. § 2244(d)(1)(A), a habeas petitioner must
file his petition within one year of "the date on which
the [state] judgment became final by the conclusion of direct
review or the expiration of time for seeking such
review." The limitation period is statutorily tolled
during the time a properly filed application for state
post-conviction is pending. 28 U.S.C. § 2254(d)(2).
instant proceeding, it is uncontested that 495 days accrued
between the date Petitioner's direct appeal became final
and the date on which he mailed his original habeas petition
to this Court, excluding the time during which his state
post-conviction proceeding was pending. See
Pet'r's Br. in Supp. at 2; Resp't Resp. (ECF No.
15) at 3-4; Resp't Resp. to Am. Pet. at 4, n. 1.
Accordingly, his original and amended petitions are untimely
absent a showing sufficient to overcome the expiration of the
one-year limitation period.
contends that he is entitled to an equitable exception to
§ 2244(d)(1) based on his colorable showing of actual
innocence. Pet'r's Br. in Supp. at 2, 15-18. In
support of this contention, Petitioner provides a recitation
of the evidence presented during a suppression hearing
(concerning the admissibility of his confession) and at
trial. Id. at 3-13. Rather than pointing to
new evidence to support a colorable showing of
actual innocence, Petitioner simply argues that the evidence
against him was insufficient because it "consisted only