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Bain v. Wolfe

United States District Court, D. Oregon

July 27, 2018

FREDRICK EARL BAIN, Petitioner,
v.
BRIAN E. WOLFE, Malheur County Sheriff, et al., Respondents.

          OPINION AND ORDER

          MALCOLM F. MARSH, UNITED STATES DISTRICT JUDGE

         Petitioner brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his 2009 conviction for Sexual Abuse in the First Degree. It is undisputed that Petitioner's Habeas Petition was filed beyond the one-year limitation period of § 2244(d)(1). Petitioner argues that the untimeliness should be excused on the basis of a colorable showing of actual innocence. For the reasons set forth below, this Court denies Petitioner's Habeas Petition as untimely.

         BACKGROUND

         On December 1, 2008, a grand jury returned an indictment charging Petitioner with sexually abusing his seven-year-old daughter JB on or between November 18, 2007 and October 18, 2008. Resp't Exs. (ECF No. 21), Ex. 102. Petitioner pled not guilty to the charge and proceeded to trial. See Pet'r's Exs. (ECF No. 35), Ex. 3 at 1.

         At trial, the prosecution presented the testimony of JB; JB's mother, Laura Bain (hereinafter "Bain"); Lana Davis, a Department of Human Services Child Protective Services worker; Ontario Police Detective Ramon Rodriguez; and rebuttal witness Kimberly Sundquist, an investigator employed by Petitioner's attorney. The witnesses testified about Petitioner and Bain's marital problems and custody disputes, and JB's disclosure of the sexual abuse.

         Petitioner testified in his own defense and offered the testimony of his mother, Carolyn Miller (hereinafter Miller), and his (former) fiancee, Trudi Johnson (now Trudi Fortin). The defense theory was that Bain coached JB to falsely accuse Petitioner of sexual abuse in order to gain custody of JB and her sister BB. In opening statements, defense counsel stressed Bain's bias:

Who' s more biased than the mom who' s been wanting custody of these girls all along? Who has tried several times to get custody of these girls and has lost. What [a] better way to get your children than make an allegation against somebody that's going to charge them criminally?
This is a very, very difficult situation. 7-year-old children are very impressionable; both in custody situations and in situations where the parents are fighting. Things can be easily suggested to children and they believe it's true. And based on the evidence that you're going to hear today, and the situation that was occurring between the parties, and how you're suppose to interview people to determine bias, I think the evidence is going to show you that Fredrick Bain is not guilty of these charges.

Tr. at 45-47.

         I. Evidence Concerning Petitioner and Bain's Marital Problems and Custody Disputes

         Laura Bain testified that she met Petitioner in 1999, and they married on September 14, 2001. Id. at 85-86. She and Petitioner began having "relationship problems" in 2000, before JB was born. Id. at 89. Petitioner enlisted in the Army in 2003 and was deployed overseas several years later. Tr. 86-87; Resp't Ex. 164 at 2. Bain testified that when Petitioner returned home in 2007, she wanted to make their marriage work. Tr. at 89-90, 105.

         However, Petitioner served Bain with divorce papers in August, 2007. Id. at 90. Bain testified that she did not appear at the dissolution hearing because Petitioner lulled her into believing they were going to reconcile. Id. at 90-91, 122. Petitioner proceeded with the divorce, a default judgment was entered, and the court awarded him primary custody of their two daughters. Id. at 90-92, 101, 105, 107-08, 122; Resp't Ex. 136. Bain testified that she tried without success to get the default judgment set aside. Tr. at 107-11, 120-21. The default decree provided that she would have visitation with her daughters every other weekend. Id. at 92, 107, 112. According to Bain, Petitioner interfered with her visitation on several occasions and the police became involved at least once. Id. at -92-93, 113, 116-21. However, she denied calling the police to get her children from Petitioner, and could not explain defense counsel' s production of police reports indicating that she twice requested police to conduct a civil standby during exchanges of the children. Id. at 113-18; see Resp't Exs. 130, 131. Bain testified that she filed two applications for a restraining order for the sole purpose of protecting herself and her children — not as a means to obtain custody. Tr. at 101 -02, 106. According to Bain, the disputes over visitation started to "smooth out" in June of 2008. Id. at 93, 121-22. Bain admitted on cross examination that while Petitioner was deployed, his mother took care of the children on weekdays and there were a "few times" when she did not see them for a couple of weeks. Id. at 103-05, 111-13.

         Petitioner testified that when he returned from Afghanistan, JB and BB were living with his mother, and he had no intention of reconciling with Bain. Id. at 205-06, 213-14. Petitioner testified that Bain always wanted custody of their daughters and he did not know why she did not contest the divorce. Id. at 213-14. According to Petitioner, he and Bain constantly fought about custody:

A .... I'd say 98% of the exchanges there was a confrontation. There were several times there had to be a civil standby just to keep it civil. Um, she wanted them all the time and you know, it wasn't going to work out that way.
Q Um, were there also several restraining orders filed?
A Yes, there was.
Q And in those did Laura seek custody of the girls?
A Um, to my — if I remember correctly every single one that she did.
Q Now in those civil standbys, who called the officers to ask for help?
A I did quite a few times because I got so dang tired of the fighting. I wanted the girls not to be around it. . . .
Q So some of the time you called the officers?
A Yes, and sometimes she did.

Id. at 207-08.

         II. Evidence Concerning JB's Disclosure of Sexual Abuse

         Bain testified that during a weekend visit in October 2008, JB told her that she and Petitioner had a secret that she was not allowed to share. Id. at 93-94. Bain testified that she immediately called the police before talking further with JB, Id. at 94-95. Bain explained why she called the police so quickly:

I didn't want something to come out that was serious or even non-serious and have it, you know, it's hard to explain. Things for the last couple of years have been really hard with me and my kids. And so I just wanted to make sure everything was on the record, whether it was serious or non-serious. That's why I contacted the police.

Id. at 94.

         A Boise police officer responded to Bain's telephone call. Id. at 94-95; see Resp't Ex. 149. Bain testified that JB refused to talk to the officer, and he requested that Bain talk to JB about "what was going on." Tr. at 95, 115, 123. Bain agreed, but insisted on recording the conversation. Id. at 95- 96. The prosecution played the tape recording of Bain's interview to the jury (Resp't Ex. 150), some of which was unintelligible, and Bain thereafter elaborated on JB's disclosure as follows:

A [S]he told me that her dad would have S-E-X with her, she put her fingers on her (INAUDIBLE) on this and moved 'em up and down.
Q Okay. So when she says that she already showed you what she meant by S-E- X is that what she's referring to, putting her fingers and moving them up and down?
A Yes.
Q Okay. Now on the tape you asked her if daddy put his pee pee in her mouth and she says, Uh uh, does that mean no?
A Yes. it meant no.
Q Okay. But then next you asked if his pee pee touched her pee pee. And what did she say to that?
A She said — she said uh uh or something to those — along those lines.
Q Okay. So at that point, based upon what she's saying, she's sort of doing something with her hand, what did you interpret that to mean?
A Honestly, I didn't know how to interpret it.
Q Okay.
A I felt that it was her only gesture to try and show me what had happened to her.
Q Okay. Um, and you knew that she had said that her dad told her not to tell ...

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