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Sharp v. Hill

United States District Court, D. Oregon
Jun 30, 2004
Civil No. 03-99-JE (D. Or. Jun. 30, 2004)

Opinion

Civil No. 03-99-JE.

June 30, 2004

Barbara L. Creel, Assistant Federal Public Defender Portland, Oregon, Attorney for Petitioner.

Hardy Myers, Attorney General Douglas Y.S. Park, Assistant Attorney General Department of Justice Salem, Oregon, Attorneys for Respondent.


FINDINGS AND RECOMMENDATION


Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254. He alleges that his underlying state court convictions for Sexual Abuse in the First Degree and Rape in the First Degree are unconstitutional. For the reasons set forth below, the Second Amended Petition for Writ of Habeas Corpus (#13) should be denied, and this proceeding should be dismissed.

BACKGROUND

Petitioner was charged with one count of Rape in the First Degree and seven counts of Sexual Abuse in the First Degree for crimes committed against five children under the age of twelve. Respondent's Exhibit 103. A jury convicted him on all counts and the court imposed consecutive sentences totaling forty-three years and nine months. Respondent's Exhibit 101.

Petitioner directly appealed his convictions for Sexual Abuse in the First Degree claiming they were barred by the statute of limitations. The Oregon Court of Appeals disagreed and affirmed his convictions in a written opinion. State v. Sharp, 151 Or. App. 122, 949 P.2d 1230 (1998). The Oregon Supreme Court denied review. 326 Or. 390, 952 P.2d 63 (1998).

Petitioner then filed a petition for post-conviction relief ("PCR") on May 3, 1999, but the PCR trial court denied relief. Respondent's Exhibits 110, 123-125. The Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Supreme Court again denied review. Sharp v. Hill, 182 Or. App. 292, 49 P.3d 851, rev. denied, 334 Or. 631, 54 P.3d 1041 (2002).

On January 23, 2003, petitioner filed his federal Petition for Writ of Habeas Corpus which he amended twice. In his Second Amended Petition, he raises three grounds for relief:

1. Petitioner was denied the adequate assistance of counsel under the Fifth and Sixth Amendments when counsel: (a) failed to fully and properly investigate petitioner's alibi; and (b) failed to call supervisors or Department of Corrections staff to corroborate his claim that he was incarcerated at the time the crimes in question were committed;
2. Petitioner's Fourteenth Amendment right to a speedy trial and Eighth Amendment right to be free from cruel and unusual punishment were violated when the State held him for a period of four months without charging him with a crime; and
3. Application of the six-year statute of limitations to petitioner's crimes violated the Ex Post Facto and Due Process Clauses of the U.S. Constitution as well as the Eighth Amendment prohibition against cruel and unusual punishment.

Respondent contends petitioner's claims are all procedurally defaulted, and that even if they had been fairly presented to Oregon's state courts, the state court decisions denying him relief were neither contrary to, nor unreasonable applications of, United States Supreme Court precedent. Petitioner admits that his federal constitutional claims were never presented to the Oregon Supreme Court and are now procedurally defaulted. He argues, however, that he is actually innocent of his underlying crimes, and that it would constitute a fundamental miscarriage of justice to dismiss his case on procedural grounds. The State has not responded to this argument.

DISCUSSION

In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court addressed the process by which state prisoners may prove "actual innocence" so as to excuse a procedural default. The Court explained that in order to be credible, a claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial." Id. at 324; Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000), cert. denied, 121 S.Ct. 1665 (2001). Ultimately, petitioner must prove that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327; Bousley v. United States, 523 U.S. 614, 623 (1998); Downs, 232 F.3d at 1040. In making this determination, this court "must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial." Schlup, 513 U.S. at 332.

Here, petitioner argues he is actually innocent of the crimes for which he was convicted because: (1) his right to a speedy trial was violated; and (2) the trial court subjected him to a six-year statute of limitations on the Sexual Abuse charges where the statute in question actually called for a three-year limitation period which would have prohibited his prosecution. Petitioner fails to offer any new evidence supporting these claims. Instead, he simply claims that the record in this case dictates a different result than that actually reached by the state courts. "[A]ctual innocence must be based on reliable evidence not presented at trial." Shumway v. Payne, 223 F.3d 982 (9th Cir. 2000) (quoting Calderon v. Thompson, 523 U.S. 538, 559 (1998));see also Griffin v. Johnson, 350 F.3d 950, 963 (9th Cir. 2003) (requiring new evidence not presented at trial). In the absence of any new evidence, petitioner cannot utilize the fundamental miscarriage of justice exception to procedural default.

Even if petitioner offered new evidence to support his arguments underlying his claim of actual innocence, his arguments do not support the proposition that he is not culpable for his crimes. Rather, he seeks to challenge the validity of his convictions based solely on procedural matters. It can hardly be said that one who commits a crime can demonstrate his "innocence" by showing that he was not given a trial in a timely fashion, or that the statute of limitations should have prohibited his prosecution. My reading of the case law suggests that the fundamental miscarriage of justice exception to procedural default is reserved for the rare individual who is incarcerated despite the fact that he is truly innocent of the crime of conviction.

Although petitioner is unable to excuse his default, I have nevertheless examined his claims and find them to be without merit. I note that with respect to his Ex Post Facto claim, this court could not rule in his favor given the Oregon Court of Appeals' finding that, as a matter of state law, the six-year statute of limitations was properly applied to his case. See Bains v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000) ("a federal court is bound by the state court's interpretations of state law.") (citing Wainwright v. Goode, 464 U.S. 78, 84 (1983)).

RECOMMENDATION

For the reasons identified above, the Second Amended Petition for Writ of Habeas Corpus (#13) should be DENIED, and Judgment should be entered DISMISSING this case with prejudice.

SCHEDULING ORDER

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issue, and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.


Summaries of

Sharp v. Hill

United States District Court, D. Oregon
Jun 30, 2004
Civil No. 03-99-JE (D. Or. Jun. 30, 2004)
Case details for

Sharp v. Hill

Case Details

Full title:ARNOLD SHARP, Petitioner, v. JEAN HILL, Respondent

Court:United States District Court, D. Oregon

Date published: Jun 30, 2004

Citations

Civil No. 03-99-JE (D. Or. Jun. 30, 2004)