Adams v. State of Oregon

Filing 70

Order. Petitioner's Amended Petition 58 is denied. Certificate of Appealability is denied as petitioner has not made a substantial showing of the denial of a constitutional right. See formal order. Signed on 5/8/2014 by Chief Judge Ann L. Aiken. (rh)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
RANDALL GENE ADAMS
Petitioner,

2:11-cv-01308-AA

v.

ORDER

STATE OF OREGON,
Respondents.
AIKEN, District Judge.
Petitioner is in the supervisory

custody of the State of

Oregon pursuant to a conviction of Sexual Abuse in the First
Degree.

After a bench trial convicting petitioner,

he was

sentenced to 75 months imprisonment and a 45 month term of
post-prison supervision,

and required to register as a sex

offender. Resp. Exhibit 101.
Petitioner appealed his conviction, but the Oregon Court
of Appeals affirmed without opinion and the Oregon Supreme
Court denied review. Resp. Exhibits 106 - 110.
Petitioner filed a petition for post-conviction relief,

1 - ORDER

Resp.

Exhibit

111,

and the Malheur County Circuit Court

denied relief. Resp. Exhibit 140. The Oregon Court of Appeals
affirmed in a written opinion and the Oregon Supreme Court
denied review. Resp. Exhibit 141 - 146.
Petitioner filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C.
Subsequently the

Federal

represent petitioner.

§

2254 alleging various claims.

Public Defender was

appointed to

Petitioner's attorney filed an Amended

Petition (#58) alleging:
Petitioner's incarceration is illegal and
contrary to the Constitution of the United States
for the following reasons:
1.
Trial counsel rendered ineffective assistance
of counsel in violation of Sixth Amendment (sic).
Counsel failed to investigate the case and failed
to call important witnesses and introduce important
defense evidence. This included evidence about his
ex-wife's emotional and psychological instability,
evidenc~ that she made numerous allegations of
sexual
abuse
against
other
indi victuals,
and
evidence that she threatened to accuse petitioner
of sexual abuse, among other crimes.
2.
Adams was denied his Fourteenth Amendment
right to due process and his Eighth Amendment right
to be free of cruel and unusual punishment when the
state convicted and sentenced him for sexual abuse
notwithstanding his innocence.
Amended Petition for Writ of Habeas Corpus (#58) p. 2-3.
In

Petitioner's

petitioner

requests

Brief
in

the

in

support

alternative,

of

his

"an

petition

evidentiary

hearing on [petitioner's] claim of actual innocence.n
in Support (#53) p 32.
2 - ORDER

Brief

Respondent contends:
Petitioner claims should be denied because: 1)
Petitioner's amended petition is untimely and
Ground Two does not relate back to the original
petition; 2) The state court decision denying
relief on Ground One is correct and entitled to
deference; 3) Petitioner cannot establish that he
is actually innocent; and 4) petitioner is not
entitled to expand the record or an evidentiary
hearing.
Reply to Amended Petition (#69) p. 2.
Ground One:

Petitioner's Amended Petition for Post-Conviction

Relief raised 18 claims of ineffective assistance of counsel.
Resp. Ex. 111. Among these was a claim that his wife Cheryl
had been sexually abused as a child and had accused other
family

members

of

molesting

rejected all 18 claims.

children.

The

trial

court

Exhibit 140.

Petitioner appealed the PCR trial court denial of his
petition alleging only one of his original 18 claims: that his
trial counsel was

ineffective for failing to discover and

present witnesses who would have testified (1) about Cheryl's
emotional and psychological instability stemming from past
sexual abuse;

(2) that Cheryl had an unhealthy attachment to

her children;

(3) that Cheryl had made allegations of sexual

abuse

against

other

individuals;

and

(4)

that

Cheryl

threatened to accuse petitioner of sexual abuse in order to
keep custody of her daughters. Resp. Ex. 141, p. 5; Exhibit
143, p. 3.

3 - ORDER

The Oregon Court of Appeals denied petitioner's appeal,
holding

that

defense

counsel

was

not

ineffective

and

petitioner had not demonstrated prejudice because the evidence
petitioner claimed that his counsel should have introduced
would have distracted form petitioner's theory of the case at
trial, was not admissible or was unknown to petitioner and his
counsel until after trial.

Resp. Ex. 143.

Under the Antiterrorism and Effective Death Penalty Act
of 1966 (AEDPA), habeas corpus relief may "not be granted with
respect to any claim that was adjudicated on the merits in
state court proceedings," unless the adjudication:
1. resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
2. resulted in a decision that was based on an
unreasonable determination of the facts in light of
evidence presented at the State court proceeding.
28

u.s.c.
The

§

2254(d).

Supreme

Court

has

explained that

in passing

the

AEDPA, Congress intended to change the habeas corpus field by
curbing delays, preventing "re-trials" on federal habeas, and
giving effect to state convictions to the extent permissible
under the law.
In

addressing

U.S.C.

§

Williams v. Taylor, 529 U.S. 362, 404 (2000).
the

deference

2244(d) (1),

requirements

set

forth

in

28

the Court specifically found that the

"contrary to'' and "unreasonable application" clauses of the
4 - ORDER

AEDPA have independent meanings. Id.
In Lockyer v. Andrade,

538 U.S.

63

(2003)

the Supreme

Court held that "a state court decision is 'contrary to our
clearly established precedent if the state court applies a
rule that contradicts the governing law set forth

in our

cases' or 'if the state court confronts a set of facts that
are materially indistinguishable from a decision of this Court
and

nevertheless

precedent."'

arrives

at

a

result

Andrade, 538 U.S. at 73.

different

from

our

(citations omitted).

The Court further held that:
Under the 'unreasonable application clause,' a
federal habeas court may grant the writ if the
state court identifies the correct governing legal
principle
from
this
Court's
decisions
but
unreasonably applies that principle to the facts of
the
prisoner's
case.
The
'unreasonable
application'
clause requires the state court
decision to be more than incorrect or erroneous.
The state court's application of the clearly
established law must be objectively unreasonable.
Andrade, Id.
The Andrade Court further clarified that under 28 U.S.C.
§

2254(d)

a

state

court's

objectively unreasonable

decision

is

not

necessarily

even if it is clear error.

It is not enough that a federal habeas court, in
its independent review of the legal question' is
left with a 'firm conviction' that the state court
was erroneous.
We have held precisely the
opposite:
Under § 2254(d)(l)'s 'unreasonable
application' clause, then, a federal habeas court
may not issue the writ simply because that court
concludes in its independent judgment that the
relevant
state-court decision applied clearly
5 - ORDER

established federal law erroneously or incorrectly.
Rather
that
application
must
be
objectively
unreasonable.

Even
deference,

incorrect
unless

state-court

they

are

decisions

contrary

to

must
or

be

given

objectively

unreasonable applications of a Supreme Court holding.

This is

true even if the state courts do not fully articulate their
reasoning.

Delgado v. Lewis, 223 F.3d 976. 982

(9~

Cir. 2000)

("Federal habeas is not de novo when the state court does not
supply reasoning for its decision, but an independent review
of the record is required to determine whether the state court
clearly erred in its application of the controlling federal
law.") .
Finally,

under

28

U.S.C.

§

2254(d) (2),

"factual

determinations by a state court are presumed to be correct
absent clear and convincing evidence to the contrary." Miller
-El v. Cockrell,

537 U.S.

322,

340

(2003).

The AEDPA thus

sets out a "highly deferential standard for evaluating state
court rulings," which requires that state court decisions be
given the benefit of the doubt.
U.S.

19

(2003)

U.S. 320, 333 n
" [I] t

is

Woodford v. Visciotti,

537

(per curiam), quoting Lindh v. Murphey,

521

7 (1997).
past

question

that

the

rule

set

forth

in

Strickland, qualifies as 'clearly established Federal law, as

6 - ORDER

determined

by

the

Supreme

Court

Williams v Taylor, supra at 391.

of

the

United

States. '"

Under Williams, a petitioner

may therefore be granted habeas corpus relief on a claim of
ineffective assistance of counsel only if the decision of the
state court was contrary to, or an unreasonable application of
Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a claim that counsel's assistance was
so ineffective as to require reversal of a conviction has two
First, the petitioner must show that counsel's

components.

performance was deficient; second, the petitioner must show
that the deficient performance prejudiced the defense.

Id. at

687.
The

first

prong

of

the

Strickland test

required the

petitioner to demonstrate that "counsel's representation fell
below an objective standard of reasonableness.
supra at 688.
petitioner

to

Strickland,

The second component of the test requires the
demonstrate

that

"there

is

a

reasonable

probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."
694.

Id., at

A "reasonable probability" is one that is sufficient to

undermine confidence in the outcome."
In

Bell

v.

Cone,

535

U.S.

Id.

685

(2002),

the

Court

reiterated that when considering ineffective assistance of
counsel claims:

7 - ORDER

[J]udicial scrutiny of a counsel's performance must
be highly deferential and that every effort [must]
be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time.
Thus, even when a court is presented with an
ineffective-assistance claim not subject to §
2254(d) (1) deference, a defendant must overcome the
presumption that, under the circumstances, the
challenged action might be considered sound trial
strategy.
Bell,

535

U.S.

at

695

(citations

and

quotations

marks

omitted) .
When considering ineffective assistance of counsel claims
under 28

U.S.C.

§ 2254(d),

"it is the habeas

applicant's

burden to show that the state court applied Strickland to the
facts

of his

case in an objectively unreasonable manner."

Woodford v. Visciotti, 537 U.S. 19, 25 (2002)

(per curiam).

The general nature of the Strickland test combined with
the deference prescribed by§ 2254(d) combines to require the
federal court not to evaluate the state court's determination
itself,

but

whether

unreasonable.
(2009)
As

the

Knowles v.

state

court's

Mirzayance,

determination

129 S.Ct.

1411,

was
1420

(citing Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
noted

above,

petitioner's

post-conviction

appeal

raised claims similar to those alleged in this proceeding. The
Oregon Court of Appeals concluded that the evidence petitioner
claimed his attorney should have developed and introduced
would have distracted from petitioner's theory at trial, would
8 - ORDER

not have been admissible, or was unknown to petitioner and his
counsel

until

after

trial.

That

finding

is

entitled

to

deference by this court and is supported by the record.
As

a

preliminary matter,

petitioner's

argument

that

counsel "conducted no independent investigation," Brief in
Support

(#53)

p.

16,

is

contradicted by the

record which

establishes that counsel conducted an investigation, including
hiring an investigator.

See Resp.

Exhibit 136 at 17;

and

Resp. Exhibit 131 at 1.
The Court of Appeals found that it was reasonable for
counsel

not

to

have

introduced

evidence

of

Ms.

Grove's

personal history of sexual abuse and her attachment to her
daughters because it "distracted from petitioner's defense
theory .
accuse

. that his ex-wife had induced their daughters to
(petitioner)

of

sexual

abuse

because

of

his

own

physical and emotional abuse of his ex-wife." Resp. Exhibit
143. P. 4.

The Court of Appeal's

found that counsel's "tactical

decision to simplify the case" and to avoid appearing to be
"grasping at straws" by highlighting Ms. Grove's sexual abuse,
which had occurred 25 years earlier,

Id., was reasonable.

I

agree.
Such

evidence

would

have

distracted

from

the

main

argument regarding Ms. Grove's motivation to fabricate sexual

9 - ORDER

abuse.

Moreover,

such strategic decisions are "virtually

unchallengeable." Strickland, 466 U.S. at 893.
In

addition,

petitioner

attorney's

tactical decision.

found

victim's

the

out

of

was

not

prejudiced

The trial
court

by

his

judge ultimately

statements

to

be

more

credible. There is nothing in the record to suggest that this
finding

would have

been

affected by

the

evidence

of Ms.

Grove's past sexual abuse and "unhealthy attachment" to her
children.
The Court of Appeals found that trial counsel was not
deficient for not introducing evidence of Ms. Grove's prior
accusations of sexual abuse by other individuals because the
evidence would have been inadmissible.

Resp. Exhibit 143, pp.

6-7.

of

A state

court's

application

reviewable by a federal court.

state

law

is

not

Mendez v. Small, 298 F.3d 1158

(9th Cir. 2002) see also, Peltier v. Wright, 15 F.3d 860, 862
(9th Cir. 1994).
However,
with

Oregon

the PCR appellate court's finding is consistent
law.

Under

the

Oregon

Evidence

Code

( "OEC")

404(3), evidence of other bad acts is not admissible to prove
the character of a person in order to show that the person
acted in conformity therewith.

Under OEC 608(2), specific

instances of the conduct of a witness,

for the purpose of

attacking or supporting the credibility of a witness may not

10 - ORDER

be proved by extrinsic evidence or inquired into on crossexamination of the witness. See, State v. Driver, 192 Or. App.
395, 401-02 (2004).
Petitioner's counsel could not have been ineffective and
petitioner was not prejudice by the failure to discover or
present evidence that would not have been admissible at trial.
The Court of Appeals found that trial counsel was not
deficient for not introducing evidence of Ms. Grove's threat
to accuse petitioner of sexual abuse because that evidence was
not known to defense counsel or petitioner until after the
conviction. Resp. Exhibit 143, p. 7.
Trial

counsel

has

a

duty to

investigate

and

uncover

evidence, but this duty does not require counsel to seek out
every possible witness.

See, Hendricks v. Calderon,

1032, 1040 (9th Cir. 1995).

70 F.3d

Trial counsel is not deficient for

failing to seek evidence when, after reasonable investigation,
no one - including petitioner - has put counsel on notice of
the existence of that evidence. Id.
In his deposition and affidavit, petitioner explains what
he told his attorney about his ex-wife. Conspicuously absent
from that account is any evidence that she had threatened to
accuse him of any crimes in order to maintain custody of the
children.

The

fact

that

petitioner's

sister

in

law

subsequently came forth with an affidavit stating that in 1998

11 - ORDER

or 1999 Ms. Grove had said that if she and petitioner ever
separated she would "tell the cops [petitioner] molested [her
children] and send his ass to jail," Resp. Exhibit 118, does
not

establish

that

counsel

discover the evidence.

was

deficient

Counsel did not

in

failing

to

know or have any

reason to know of that evidence.
The

exhibits

submitted

in

support

of

petitioner's

argument that counsel should have presented evidence of Ms.
Grove's "psychological history" [Petitioner's sealed exhibits
A - V]

are discussed below in connection with petitioner's

"actual innocence" claim.

Petitioner acknowledges that this

evidence post-dates petitioner's criminal trial but argues
that

any

mental

illness

"surely

existed

before

then."

However, petitioner has not presented any evidence Ms. Grove's
mental

illness

or

mental

instability

that

pre-dates

petitioner's trial.
"[C]ounsel has a duty to make reasonable investigations
or

to

make

a

reasonable

decision

that

makes

particular

investigations unnecessary . . . "Strickland, 466 U.S. at 91.
Reasonableness is viewed as of the time of the conduct and
against the backdrop of the facts of the case. See, Rompilla
v.

Beard,

545

U.S.

374,

381

(2005).

Petitioner has

not

submitted any evidence to establish that his trial counsel's
investigation was deficient or

12 - ORDER

what evidence counsel could

have

found

by

further

investigation

of

Ms.

Grove's

"psychological history."
Based on all of the foregoing,

I find that petitioner's

counsel was not constitutionally deficient for

failing to

discover or present the evidence discussed above.

Even if one

might disagree with counsel's tactical decisions regarding
some

of

these

matters,

I

find

prejudiced by counsel's decisions.

that

petitioner

was

not

As noted in the PCR court

appellate opinion ( J. Edmonds concurring opinion), "a criminal
defense

attorney's

failure

to

call

witnesses

or

adduce

evidence does not always have a tendency to affect the outcome
of a prosecution.

[I] n this case the outcome of the

criminal proceeding depended on whether the criminal court
believed the petitioner or the victim."

Exhibit 143, p. 8

I find that none of the evidence petitioner relies on in
support of his claims in this proceeding,

if presented at

petitioner's trial would not have had created a reasonable
probability
Therefore,

of

changing

petitioner was

the

outcome

of

that

proceeding.

not prejudiced by his counsel's

decisions or "unprofessional errors,"

if any.

Ground Two: Under the AEDPA, the statute of limitations for
filing a petition for writ of habeas corpus is one year from
the date of the final judgement being challenged. @8 U.S.C.
2244 (d) (1).

13 - ORDER

§

The limitations period is tolled during state

post-conviction proceedings. Id., 2244(d) (2).
In this case, petitioner had one year from July 3, 2007,
excluding any time during which a state post-conviction case
was

pending

to

file

his

federal

habeas

corpus

petition.

Petitioner's original petition was filed on October 26, 2011,
300 "countable days" having elapsed since July 3, 2007.

The

original pro se petition (#2) was timely.
However,

petitioner's Amended

filed until October 17, 2013.

Petition

(#58)

was

not

Therefore, approximately two

years elapsed between the filing of the pro se petition and
the filing of the amended petition.

Accordingly, petitioner's

amended petition is untimely based solely on the amount of
time elapsed between the filing of the pro se petition and the
filing of his amended petition.
Even if the limitations period was calculated from the
date

counsel

amended

was

petition

elapsed.

appointed,

November

6,

2012,

until

was

(October

9,

2013),

337

filed

the
days

Those 337 days must be added to the 300 days that

accrued between the judgment and the filing of the original
petition in this proceeding.

The result is that petitioner's

amended petition was filed 637 days after the date on which he
judgment

became

final,

thereby

exceeding

the

365

days

available to him.
Petitioner "free-standing actual innocence" claim (Ground

14 - ORDER

Two) was not alleged in petitioner's original prose petition.
Under Fed.

R.

Civ.

P.

15(c) (2),

a new claim in an amended

petition that is filed after the expiration of the one year
limitations period is timely only if the new claim relates
back to the filing of a claim in a timely filed pleading.
relate

back,

the

new

claim must

arise

out

of

the

To

"same

conduct, transaction or occurrence" as a claim alleged in the
prior (timely) pleading.
Petitioner's

Mayle v. Felix, 545 U.S. 644 (2005).

original

petition

alleged

claims

of

ineffective assistance of counsel based on trial and appellate
counsel's alleged failure to adequately investigate and try
the case.

The claim alleged in Ground Two does not allege any

claim of trial or appellate counsel error, but rather asserts
a due process and Eighth Amendment claim based on "actual
innocence."
The claim alleged in Ground Two does not relate back to
petitioner's pro

se petition because it alleges different

errors by different actors. See Wieland v. Thompson, 2012 WL
5036820 at *3-4 (D. Or. 2012)

(finding the petitioner's claims

of ineffective assistance of trial counsel did not share a
common core of facts, and thus did not relate back to a claim
of actual innocence), citing Hebner v. McGrath, 543 F.3d 1133,
1139 ( gth Cir. 2008) .
The evidence relied upon by petitioner in support of his

15 - ORDER

actual innocence claim is as follows:
1.)

The criminal case was

"an especially weak prosecution

case."
2.

In

her

trial

testimony,

the

victim herself

did

not

remember the incident.
3.

Witnesses contradicted each other on key points.

4.

There

is

"no

DNA

or

scientific

evidence

that

could

exonerate the innocent."
5.

There are no "previously unavailable witnesses."

6.

The

allegation

of

abuse

"was

tainted

by

a

mentally

unstable parent."
7.

The memories of the victim and witness "cannot be deemed

reliable based on the manner in which they were developed and
transformed over time."
8.

Evidence developed subsequent to petitioner's conviction

"casts grave doubt

on

perceive

and

reality"

[the victim's mother's]
"establishes

her

capacity to

total

lack

of

veracity."
Brief in Support of Petition (#53) p. 29 - 31.
Some

of

this

alleged

evidence

forms

the

factual

predicates for petitioner's ineffective assistance of trial
counsel claim.

However, even if the claim in Ground Two can

be construed as arising from the same core of operative facts
as the ineffective assistance of trial counsel claim in the

16 - ORDER

original pro se petition such that Ground Two relates back to
the original timely filed petition, Ground Two nevertheless

u.s.c.

fails to state a claim cognizable under 28 U.S.C.

§

2254.
In Herrera v. Collins, 506 U.S.
Court assumed,

without deciding,

390

(1993)

the Supreme

that the execution of an

innocent person would violate the Constitution. See Carriger
v. Stewart,

132 F.3d (9th Cir. 1997).

However, the Supreme

Court has not resolved whether a prisoner may be entitled to
habeas

relief

based

on

a

"freestanding

claim

innocence." See, McOuiggan v. Perkins, _U.S.

of

actual

133 S.Ct. 1924

(2013). Rather, the Supreme Court has said that "[c]laims of
actual innocence based on newly discovered evidence have never
been held to state a ground for federal habeas relief absent
an

independent

constitutional

violation

occurring

in

the

underlying state criminal proceeding." Herrera v. Collins, 506

u.s.

390, 400 (1993).
In Herrera, the Court did not specify what showing would

be required for a habeas petitioner to make out a successful
freestanding claim of actual innocence.

The Court stated only

that the threshold would be "extraordinarily high," and that
the showing would have to be "truly persuasive." Herrera, 506
at 417.
In Schlup v. Delo, 513 U.S. 298 (1995), the Court noted

17 -ORDER

that a habeas petitioner "comes before the habeas court with
a strong -

and in the vast majority of cases conclusive -

presumption of guilt." Schlup, 513 U.S. at 326 n. 42. Thus, to
successfully demonstrate a fundamental miscarriage of justice,
habeas petitioners must show that the constitutional error
complained of probably resulted in the conviction of someone
who is "actually innocent." Id. at 327.
The standard of whether a petitioner has shown that is
more likely than not that no reasonable juror would have found
him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 329
(citing Murray v. Carrier, 477 U.S. 478 (1986)). In addition,
this

standard is not satisfied by a

showing of reasonable

doubt in light of the evidence not presented at trial; rather,
a petitioner must show that it is more likely than not that,
in light of all the evidence, no reasonable juror would have

Schlup,

found him guilty.

513 at 328; Calderon v. Thompson,

523 U.S. 538, 565 (1998) (showing of actual innocence must be
made

in

light

of

"the

totality

of

the

evidence

of

[the

petitioner's] guilt"). Furthermore, the evidence of innocence
must be "new" and "reliable" evidence not presented at trial.

Schlup 513 U.S. at 324; Calderon, 523 U.S. at 559.

"Given the

rarity

case,

of

such

evidence,

in

virtually

every

the

allegation of actual innocence has been summarily rejected."

Calderon, 523 U.S. at 559.
18 - ORDER

The only new evidence submitted by petitioner in support
of

his

actual

innocence

claim

are

police

reports

from

interactions with petitioner's former wife, Cheryl Adams (nee
Grove)

and a

2013

polygraph

report

for

petitioner . 1

The

police reports reflect police interactions with Ms. Grove in
the decade following petitioner's trial.
certainly cast
reality and

doubt

on Ms.

Grove's

Although the reports
capacity to perceive

suggest a lack of veracity, they do not reflect

matters that were occurring at the time of the incident giving
rise to petitioner's prosecution or at the time of his trial.
Moreover, petitioner allegedly told his trial counsel about
Ms. Grove's alleged mental and emotional

instability stemming

from her own past sexual abuse. See, Respondent's Exhibit 136
at 20.

Therefore although the reports may be new evidence of

Ms. Grove's mental state,

the mental state reflected in the

reports was arguably known to petitioner and his counsel at
the time of trial, and is not "new evidence."
Lastly,
instability

although
and

the

perchance

evidence
for

crimes is arguably exculpatory,

of

falsely
it

Ms.

Grove's

accusing

is not

mental

others

of

such that when

considered in light of the totality of the evidence would
render it more likely than not that no reasonable juror would

1

The polygraph report is not even referenced in petitioner's
actual innocence argument.
19 - ORDER

have found petitioner guilty beyond a reasonable doubt.
Evidentiary hearing: 28 U.S.C.

§

2254 provides:

If the applicant has failed to develop the
factual
basis
of
a
claim
in
State
court
proceedings,
the
court
shall
not
hold
an
evidentiary hearing on the claim unless the
applicant shows that -(A)
the claim relies on -(i)
a new constitutional law, made
retroactive to cases on collateral review by the
Supreme Court that was previously unavailable; or
( ii)
a factual dispute that could not
have
been
previously
discovered
through
the
exercise of due diligence; and
(B)
the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional errors, no
reasonable fact
finder would have
found the
applicant guilty of the underlying offense.
In this case, the issue of Ms. Grove's personal history
of sexual abuse was known to petitioner and his attorney at
the time of petitioner's trial. A degree of "emotional and
psychological instability" can be reasonably inferred from
such a

history.

Thus,

the

facts

petitioner now

seeks

to

establish in an evidentiary hearing could have been previously
discovered through the exercise of due diligence.
In addition, as discussed above, although evidence of Ms.
Grove's alleged mental instability is probative,

it is not

such that it would establish by clear and convincing evidence
that no reasonable finder of fact would have found petitioner
guilty of the underlying offense.
Therefore,
20 - ORDER

petitioner's

alternative

request

for

an

evidentiary hearing is denied.
Based

on

all

of

the

Petition (#58) is denied.

foregoing,

petitioner's

Amended

The Clerk of the Court is directed

to enter a judgment dismissing this proceeding with prejudice.

Certificate o£ Appea2abi2ity
Shou~dpetitioner appea~,

a certi£icate o£

is denied as petitioner has not made a
the

denia~

o£

a

cons ti tutiona~

appea~abi~ity

substantia~

right.

See

28

showing o£
U. S. C.

2253 (c) (2) .

DATED this
Ann Aiken
United State District Judge

21 - ORDER

§