United States District Court, D. Oregon
BROWN Attorney for Petitioner
F. ROSENBLUM, NICK M. KALLSTROM Attorneys for Respondent
FINDINGS AND RECOMMENDATION
V. ACOSTA UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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
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).
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).
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).
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 ...