United States District Court, D. Oregon
OPINION AND ORDER
MALCOLM F. MARSH, UNITED STATES DISTRICT JUDGE
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.
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.
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
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
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.
Evidence Concerning Petitioner and Bain's Marital
Problems and Custody Disputes
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.
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
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
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
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.
Evidence Concerning JB's Disclosure of Sexual
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.
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?
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.
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 ...