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Byers v. Amsberry

United States District Court, D. Oregon

May 17, 2018

ROBERT JEROME BYERS, Petitioner,
v.
BRIDGETT AMSBERRY, Superintendent, Respondent.

          NELL BROWN Attorney for Petitioner

          ELLEN F. ROSENBLUM, NICK M. KALLSTROM Attorneys for Respondent

          FINDINGS AND RECOMMENDATION

          JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE.

         Petitioner, an inmate at the Two Rivers Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition for Writ of Habeas Corpus (ECF No. 1) should be DENIED.

         BACKGROUND

         On December 1, 2017, a Lane County grand jury indicted Petitioner on eleven counts: one charge of Burglary in the First Degree, three charges of Rape in the First Degree, five charges of Sodomy in the First Degree, one charge of Unlawful Sexual Penetration in the First Degree, and one charge of Assault in the First Degree. The indictment alleged that Petitioner broke into the victim's home and repeatedly sexually assaulted her.

         Petitioner waived his right to a jury trial and consented to a stipulated facts trial to the court. The trial judge found Petitioner guilty on all charges and imposed consecutive sentences totaling 1, 070 months of imprisonment. Petitioner filed a direct appeal, but his conviction and sentence were affirmed without opinion by the Oregon Court of Appeals, and the Oregon Supreme Court denied review. State v. Byers, 200 Or. App. 291, 114 P.3d 1157, rev. denied, 339 Or.475, 124 P.3d 1248 (2005). The appellate judgment issued on January 25, 2006. Petitioner did not file a petition for writ of certiorari with the United States Supreme Court.

         Petitioner then sought state post-conviction relief ("PCR"). He signed his PCR petition on February 7, 2007. Following an evidentiary hearing, the PCR trial judge denied relief. Petitioner appealed, and the Oregon Court of Appeals affirmed the PCR trial court's decision in a written opinion. Byers v. Premo, 255 Or.App. 208, 296 P.3d 659 (2013). The Oregon Supreme Court denied review. Byers v. Premo, 353 Or. 787, 304 P.3d 466 (2013). The appellate judgment issued on August 8, 2013.

         On April 23, 2017, Petitioner signed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, which was filed in this Court on May 9, 2017. Respondent contends the Petition is untimely under 28 U.S.C. § 2244. Petitioner concedes he did not timely file his Petition, but argues that his failure to do so should be excused because he is actually innocent.

         DISCUSSION

         The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides a one-year statute of limitations for filing a habeas corpus petition in federal court. See 28 U.S.C. § 2244(d)(1); Pace v. DeGuglielmo, 544 U.S. 408, 410 (2005). In rare and extraordinary circumstances, a showing of actual innocence can serve as a gateway through which a petitioner may pass to overcome the AEDPA's one-year statute of limitations. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc).

         To establish actual innocence, a petitioner must meet the threshold requirement set forth in Schlup v. Delo, 513 U.S. 298 (1995). This requires a petitioner to "support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Schlup, 513 U.S. at 324. The evidence need not be newly discovered, but it must be "newly presented," meaning that it was not before the trial court. Griffin v. Johnson, 350 F.3d 956, 961 -63 (9th Cir. 2003).

         A petitioner must also "persuade[] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." McQuiggin, 569 U.S. at 386 (citing Schlup, 513 U.S. at 329); see also House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing that the Schlup standard is demanding and seldom met). Moreover, "actual innocence," for the purposes of Schlup, "means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).

         A petitioner's new evidence must be "so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Schlup, 513 U.S. at 316. The habeas court must consider all evidence, both old and new, incriminating and exculpatory, admissible at trial or not. Based upon this complete record, "the court makes a probabilistic determination about ...


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