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Palmer v. Santos

United States District Court, D. Oregon
Oct 27, 2004
Civil No. 03-449-JE (D. Or. Oct. 27, 2004)

Opinion

Civil No. 03-449-JE.

October 27, 2004

Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, Attorney for Petitioner.

Hardy Myers, Attorney General, Lester R. Huntsinger, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.


FINDINGS AND RECOMMENDATION


Petitioner brings this federal habeas corpus action pursuant to 28 U.S.C. § 2254. In this proceeding, he seeks to challenge the constitutionality of his underlying convictions for Rape in the First Degree. Because this action is untimely, the Petition for Writ of Habeas Corpus (#2) should be denied, and this proceeding should be dismissed with prejudice.

BACKGROUND

A jury found petitioner guilty of two counts of Rape in the First Degree. On October 21, 1994, he was sentenced to 119 months in prison. Respondent's Exhibit 101. He directly appealed his convictions, but the Oregon Court of Appeals affirmed the trial court without opinion. State v. Palmer, 138 Or. App. 189, 906 P.2d 870 (1995). Petitioner did not file a petition for review with the Oregon Supreme Court.

Petitioner next filed a petition for post-conviction relief, which was denied. Respondent's Exhibits 108 109. The Oregon Court of Appeals affirmed the lower court without opinion, and the Oregon Supreme Court denied review. Palmer v. Baldwin, 181 Or. App. 467, 46 P.3d 229 (2002), rev. denied 335 Or. 195, 64 P.3d 576 (2003).

On April 7, 2004, petitioner filed his federal Petition for Writ of Habeas Corpus. Petitioner concedes that his Petition was not timely filed within the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act, but asks the court to excuse this procedural defect because he is entitled to equitable tolling, and because he is actually innocent of his underlying crimes.

DISCUSSION

Equitable tolling is appropriate when "`extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'" Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003)). Where a petitioner wishes to prove his actual innocence in order to overcome a procedural defect in his petition, he must first produce new evidence of innocence which was not presented at trial, and prove that in light of the new evidence, no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup v. Delo, 513 U.S. 298, 327 (1995); Bousley v. United States, 523 U.S. 614, 623 (1998); Griffin v. Johnson, 350 F.3d 950, 963 (9th Cir. 2003).Downs v. Hoyt, 232 F.3d 1031, 1040 (9th Cir. 2000), cert. denied, 121 S.Ct. 1665 (2001).

Petitioner has not presented any evidence in his briefing to support his assertion that equitable tolling applies to his case, nor has he alluded to any new evidence he may have which would prove that he is actually innocent of the Rapes for which he was convicted. Instead, he asks the court to conduct an evidentiary hearing so he may "testify regarding the facts of the case," and "present additional evidence in support of his claim of innocence." Reply (#31), p. 4.

Habeas petitioners are not entitled to evidentiary hearings in federal court to further develop their claims' merits unless they diligently attempted to develop those claims in state court, but were unable to do so. Williams v. Taylor, 529 U.S. 420, 433-438. (2000). If a petitioner has failed to diligently failed to develop his claims, an evidentiary hearing is permitted only if his claim relies on: 1) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 2) a factual predicate that could not have been previously discovered through the exercise of due diligence. 28 U.S.C. § 2254(e)(2)(A)(i) and (ii). In addition, the facts underlying the claim must be sufficient to establish by clear and convincing evidence, that no reasonable factfinder would have found the petitioner guilty of the underlying offense. 28 U.S.C. § 2254(e)(2)(B).

In the case at bar, petitioner does not request an evidentiary hearing for the purpose of supporting the merits of a specific constitutional claim; he seeks such a hearing to establish the application of equitable tolling to this case and to demonstrate that he is actually innocent. Assuming § 2254(e)(2) applies in these circumstances, petitioner has not demonstrated that he is entitled to such a hearing. He fails to describe the nature of the evidence he seeks to develop and while he asserts that he will personally testify at an evidentiary hearing, he claims to have already testified on his own behalf during his criminal trial. Reply (#31), p. 2. Consequently, his testimony was previously made a part of the record and rejected by the factfinder.

Even if petitioner is seeking to develop new evidence in an evidentiary hearing before this court, he had ample opportunity to develop favorable evidence not only during his criminal trial, but also during his post-conviction trial. He fails to indicate what evidence, if any, he was unable to develop during his state court proceedings. Accordingly, he provides the court with no reason to conclude that the evidence he wishes to develop in an evidentiary hearing either was not, or could not have been, developed during those proceedings.

Given petitioner's apparent lack of diligence in state court, he must meet the stringent requirements of 28 U.S.C. § 2254(e)(2) in order to qualify for an evidentiary hearing. However, petitioner has not provided the court with any argument pertaining to these requirements, and has therefore not shown that he is entitled to an evidentiary hearing.

For these reasons, petitioner's request for an evidentiary hearing should be denied. As petitioner fails to offer any reason why he is entitled to equitable tolling, and does not allude to any new evidence demonstrating that he is actually innocent of his underlying crimes, the court finds no reason to excuse his untimely filing.

RECOMMENDATION

For the reasons identified above, the Petition for Writ of Habeas Corpus (docket #2) 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

Palmer v. Santos

United States District Court, D. Oregon
Oct 27, 2004
Civil No. 03-449-JE (D. Or. Oct. 27, 2004)
Case details for

Palmer v. Santos

Case Details

Full title:SHAUN PALMER, Petitioner, v. A.J. SANTOS, Respondent

Court:United States District Court, D. Oregon

Date published: Oct 27, 2004

Citations

Civil No. 03-449-JE (D. Or. Oct. 27, 2004)