Kelly Vosgien v. Gary Kilmer

Filing

FILED OPINION (BARRY G. SILVERMAN, WILLIAM A. FLETCHER and CONSUELO M. CALLAHAN) Each side shall bear its own costs. REVERSED in part, AFFIRMED in part, and REMANDED. Judge: WAF Authoring, FILED AND ENTERED JUDGMENT. [8977362]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KELLY J. VOSGIEN,
Petitioner-Appellant,
v.

No. 12-35397
D.C. No.
3:11-cv-00134-ST

ROB PERSSON,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted
October 8, 2013—Portland, Oregon
Filed February 13, 2014
Before: Barry G. Silverman, William A. Fletcher,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge W. Fletcher

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VOSGIEN V. PERSSON
SUMMARY*

Habeas Corpus
The panel reversed in part and affirmed in part the district
court’s dismissal of an untimely 28 U.S.C. § 2254 habeas
corpus petition claiming actual innocence as to some of the
counts of conviction, and remanded for further proceedings
as to those counts.
Petitioner pled guilty to compelling prostitution, rape,
sodomy, and sexual abuse of his daughter and another minor.
He filed an untimely § 2254 petition, claiming actual
innocence to excuse its untimeliness and citing Oregon case
law clarifying that the crime of compelling prostitution
requires that sexual favors be procured not for the defendant
but for a third party. It was undisputed that petitioner sought
sexual favors only for himself.
The panel reversed the district court’s dismissal as to the
compelling prostitution counts because actual innocence
excused the untimeliness of the § 2254 petition. The panel
instructed that, on remand, the district court should review the
merits of the constitutional claims as to only those
prostitution counts.
The panel affirmed the district court’s dismissal as to the
remaining counts of conviction because petitioner did not
claim actual innocence as to them.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Anthony Bornstein (argued), Federal Public Defender’s
Office, Portland, Oregon, for Petitioner-Appellant.
Kathleen Cegla (argued), Office of the Oregon Attorney
General, Salem, Oregon, for Respondent-Appellee.

OPINION
W. FLETCHER, Circuit Judge:
In 2006, petitioner Kelly Vosgien pled guilty in Oregon
state court to three counts of “compelling prostitution,” three
counts of rape, three counts of sodomy, and one count of
sexual abuse. Vosgien filed an untimely habeas petition in
federal district court challenging his convictions. Seeking to
excuse the untimeliness of his petition, Vosgien claimed that
he was “actually innocent” of the compelling prostitution
counts under the standard articulated in Schlup v. Delo,
513 U.S. 298 (1995). The district court held that he did not
meet the Schlup actual innocence standard and dismissed his
petition.
Vosgien appeals the district court’s determination that he
failed to demonstrate actual innocence under Schlup. We
agree that he is actually innocent of compelling prostitution,
and hold that his untimeliness as to these counts is excused.
We therefore reverse the district court’s dismissal of
Vosgien’s petition and remand for further proceedings with
respect to the three compelling prostitution counts. However,
Vosgien has not demonstrated actual innocence under Schlup

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with respect to the other counts on which he was convicted.
His petition is therefore untimely as to those counts.
I. Background
In 2006, Oregon charged petitioner Kelly Vosgien in a
ten-count information for sexual offenses stemming from his
abuse of his daughter and another minor. He pled guilty to all
counts, including three counts of “compelling prostitution,”
three counts of rape, three counts of sodomy, and one count
of sexual abuse. The court sentenced Vosgien to more than
fifty-five years in prison, with the sentence for the compelling
prostitution counts running concurrently with the sentence for
one of the rape counts.
Vosgien did not file a direct appeal. Two years after his
convictions became final, Vosgien collaterally attacked them
in Oregon state court, primarily raising claims of ineffective
assistance of counsel. The state court rejected Vosgien’s
claims on the merits and denied relief. The Oregon Court of
Appeals affirmed, and the Oregon Supreme Court denied
review.
Vosgien then filed a petition for a writ of habeas corpus
in federal district court under 28 U.S.C. § 2254, alleging
largely the same constitutional claims he had raised in state
court. Because Vosgien’s federal petition was governed by
the one-year statute of limitations in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), which
began to run when his state conviction became final on direct
review, see 28 U.S.C. § 2244(d)(1)(A), it was untimely.
Vosgien sought to excuse the untimeliness of his federal
petition by demonstrating “actual innocence” of compelling

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prostitution under the standard articulated in Schlup. Under
Schlup, if a petitioner who has procedurally defaulted his
constitutional claims “raise[s] sufficient doubt about [his]
guilt to undermine confidence in the result of the trial without
the assurance that the trial was untainted by constitutional
error,” he overcomes the procedural bar created by the
default, and the district court may consider his constitutional
claims on the merits. 513 U.S. at 317. Vosgien’s claim of
innocence was based on Oregon case law clarifying that the
crime of compelling prostitution requires that sexual favors
be procured not for the defendant, but for a third party. It is
undisputed that Vosgien sought sexual favors only for
himself.
The magistrate judge rejected Vosgien’s actual innocence
claim and recommended dismissal of his petition. She found
Vosgien’s claim of innocence unavailing because he did not
claim to be actually innocent of the “more serious” counts of
rape and sodomy. The magistrate judge relied on Bousley v.
United States, 523 U.S. 614 (1998), in which the Supreme
Court wrote: “In cases where the Government has forgone
more serious charges in the course of plea bargaining,
petitioner’s showing of actual innocence must also extend to
those charges.” Id. at 624. Given Bousley, the magistrate
judge explained, “[i]t logically follows that a petitioner who
actually pleaded guilty to nine crimes with respect to a single
victim, but who can make a showing of actual innocence as
to only the three least serious crimes of conviction, is not
entitled to pass through Schlup’s gateway of actual
innocence.” The district court adopted the magistrate judge’s
findings and recommendations and dismissed Vosgien’s
petition with prejudice. Vosgien timely appealed.

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II. Standard of Review

We review de novo a district court’s dismissal of a
petition for a writ of habeas corpus. Lambert v. Blodgett,
393 F.3d 943, 964 (9th Cir. 2004).
III. Discussion
Vosgien argues that his demonstration of actual
innocence, under Schlup, of the compelling prostitution
counts allows him to challenge the constitutionality of all
convictions resulting from his 2006 guilty plea. We conclude
that Schlup applies to the compelling prostitution counts, and
that the district court should review the merits of his
constitutional claims as to those counts. We conclude,
however, that Schlup does not apply to the additional counts,
as to which Vosgien does not claim actual innocence.
A. Actual Innocence Under Schlup
A federal habeas petitioner can overcome a procedural
default, including a failure to comply with the statute of
limitations, by demonstrating actual innocence of the crime
underlying his conviction. Schlup, 513 U.S. at 313–15;
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). A claim
of actual innocence under Schlup is “not itself a constitutional
claim, but instead a gateway through which a habeas
petitioner must pass to have his otherwise barred
constitutional claim considered on the merits.” 513 U.S. at
315 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
A petitioner carries his burden under Schlup if he “presents
evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also

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satisfied that the trial was free of nonharmless constitutional
error.” Id. at 316.
One way a petitioner can demonstrate actual innocence is
to show in light of subsequent case law that he cannot, as a
legal matter, have committed the alleged crime. In Bousley,
petitioner Bousley had “ple[d] guilty to ‘using’ a firearm in
violation of 18 U.S.C. § 924(c)(1).” 523 U.S. at 616. He
later challenged his conviction on habeas for lack of a factual
basis for his plea. Id. at 617. The district court rejected his
claim and dismissed the petition. Id. Five years after his
plea, while his appeal from the district court’s denial of
habeas relief was pending, the Supreme Court “held in Bailey
v. United States, 516 U.S. 137, 144 (1995), that § 924(c)(1)’s
‘use’ prong requires the Government to show ‘active
employment of the firearm.’” Bousley, 523 U.S. at 616–17.
In light of Bailey, Bousley argued that his “plea was
involuntary because he was misinformed about the elements
of a § 924(c)(1) offense.” Id. at 617–18. The court of
appeals nonetheless affirmed the denial of habeas. Id. at 618.
The Supreme Court reversed. Id. at 624. Although the Court
held that Bousley had procedurally defaulted his
constitutional claim, it concluded in light of Bailey that the
district court should have “permit[ted Bousley] to attempt to
make a showing of actual innocence” to overcome that
default. Id. at 621, 623. To succeed on remand, Bousley
“need[ed] demonstrate no more than that he did not ‘use’ a
firearm as that term is defined in Bailey.” Id. at 624.
B. Vosgien’s Actual Innocence of
Compelling Prostitution
As in Bousley, subsequent case law demonstrates
Vosgien’s actual innocence of the three counts of compelling

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prostitution. In State v. Vargas-Torres, 242 P.3d 619, 623
(Or. Ct. App. 2010), the Oregon Court of Appeals interpreted
the State’s compelling prostitution statute, Or. Rev. Stat.
§ 167.017, as applying only to defendants who induce
someone to “engage in prostitution with others.” The charges
against Vosgien, however, were that he bribed his daughter in
order to procure sexual favors for himself. Respondent
concedes that Vosgien cannot, as a legal matter, have
committed the crime of compelling prostitution based on the
facts under which he was convicted.
Respondent makes two arguments against granting relief.
First, respondent argues that Vosgien is not actually innocent
because bribing his daughter for sex “constitute[d] some
crime under Oregon law.” This argument is foreclosed by
Bousley, in which the fact that Bousley’s underlying conduct
may have been otherwise illegal was not relevant. The Court
explained:
In this case, the Government maintains that
petitioner must demonstrate that he is actually
innocent of both “using” and “carrying” a
firearm in violation of § 924(c)(1). But
petitioner’s indictment charged him only with
“using” firearms . . . . And there is no record
evidence that the Government elected not to
charge petitioner with “carrying” a firearm in
exchange for his plea of guilty. Accordingly,
petitioner need demonstrate no more than that
he did not “use” a firearm as that term is
defined in Bailey.
523 U.S. at 624 (emphasis added) (citation omitted). Thus,
Vosgien need not demonstrate that he was actually innocent

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of any criminal wrongdoing. He need only demonstrate that
he was actually innocent of compelling prostitution, the
counts under which he was convicted.
Second, respondent argues that Vosgien must demonstrate
actual innocence of the other counts on which he was
convicted in order to overcome his procedural default with
respect to the compelling prostitution counts. The Court
wrote in Bousley, “In cases where the Government has
forgone more serious charges in the course of plea
bargaining, petitioner’s showing of actual innocence must
also extend to those charges.” 523 U.S. at 624. Respondent
relies on this statement to argue that Vosgien must
demonstrate actual innocence of all of the “more serious
charges” to which he actually pled guilty before he can pass
through the Schlup actual innocence gateway.
Respondent misreads Bousley. Under Bousley, it is not
relevant to Vosgien’s actual innocence of the compelling
prostitution counts that he also pled guilty to other more
serious charges. Rather, the relevant inquiry is whether the
State dismissed “more serious charges” in exchange for
securing Vosgien’s guilty plea for the compelling prostitution
counts. If the State dismissed such charges, Vosgien must
also demonstrate actual innocence for those charges.
Otherwise, a petitioner could escape criminal liability
because of a prosecutor’s leniency in agreeing to conviction
on less serious, but now invalid, counts in obtaining the plea.
The Court’s concern in Bousley about “more serious
charges” in the guilty plea context was limited to the
circumstance in which more serious charges were dropped
during the bargaining process and then omitted from the
guilty plea. This concern is not present if no charges were

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dropped from the charging document during plea bargaining.
Respondent has conceded that the State did not dismiss any
charges during the course of plea bargaining in Vosgien’s
case. Thus, Bousley’s “more serious charges” language is
inapplicable, and Vosgien need not demonstrate his
innocence as to other “more serious” but uncharged offenses.
Vosgien has thus successfully demonstrated, in light of
subsequent Oregon case law, actual innocence under Schlup
as to the compelling prostitution convictions. The evidence
underlying the three counts at issue is undisputed: Vosgien
induced his daughter to have sex with him in exchange for
money and cigarettes. Under Oregon law, as clarified by
Oregon courts after Vosgien pled guilty, Vosgien is actually
innocent of compelling prostitution. His untimely filing of
his federal habeas petition is therefore excused for these
counts. On remand, the district court should therefore
address on the merits Vosgien’s constitutional claims as to his
convictions on these counts. Respondent remains free to raise
any defenses to these claims that are not addressed in this
opinion.
C. Effect on Convictions of the Other Counts
Vosgien argues that his demonstration of actual innocence
of the compelling prostitution counts opens the Schlup
gateway for all of the counts to which he pled guilty. We
disagree. Although this is a question of first impression, we
have no difficulty concluding, both as a matter of law and of
common sense, that a demonstration of actual innocence
under Schlup cannot excuse a petitioner’s procedural default
for more than the counts as to which he has shown actual
innocence.

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A key principle underpinning Schlup is that a petitioner
should be able to “obtain review of [defaulted] constitutional
claims only if he falls within the ‘narrow class of cases . . .
implicating a fundamental miscarriage of justice.’” 513 U.S.
at 314–15 (second alteration in original) (quoting McCleskey
v. Zant, 499 U.S. 467, 494 (1991)). Where, as here, a habeas
petitioner does not claim actual innocence as to certain
convictions, it can hardly be said that there has been a
“fundamental miscarriage of justice” if he remains unable to
challenge them due to his own procedural default. Thus,
Vosgien’s demonstration of actual innocence of compelling
prostitution, based on a subsequent clarification of Oregon
law, does not open the Schlup gateway and allow him to
challenge his convictions for rape, sodomy, and sexual abuse.
Conclusion
We hold that Vosgien has demonstrated actual innocence
under Schlup on the three counts of compelling prostitution.
We therefore reverse the district court’s dismissal of his
habeas petition as to those counts. We remand to the district
court to consider Vosgien’s constitutional claims with respect
to those counts only. We otherwise affirm. Each side shall
bear its own costs.
REVERSED in part, AFFIRMED in part, and
REMANDED.