Purvine v. Nooth
Filing
27
OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 is dismissed. The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253 (c) (2). IT IS SO ORDERED. Signed on 11/18/2014 by Judge Michael H. Simon. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MATTHEW WILLIAM PURVINE, SR.,
Case No. 2:13-cv-02165-SI
Petitioner,
v.
MARK NOOTH,
OPINION AND ORDER
Respondent.
C. Renee Manes, Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Samuel A. Kubernick, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
SIMON , District Judge .
Petitioner brings
U.S . C .
§
2254
this
challenging
habeas
the
convictions for Rape and Sodomy .
corpus
case
legality
of
pursuant
his
to
28
state - court
For the reasons that follow , the
Petition for Writ of Habeas Corpus (#2) is dismissed .
BACKGROUND
On
December
24 ,
2003,
the
Washington
County
Grand
Jury
indicted petitioner on four counts of Rape in the First Degree and
eight counts of Sodomy in the First Degree .
103 .
Respondent ' s Exhibit
Following a bench trial , petitioner was convicted of three
counts of Rape in the First Degree and eight counts of Sodomy in
the First Degree resulting in consecutive sentences total i ng 504
months in prison .
Respondent ' s Exhibit 101 .
Petitioner took a
direct
appeal,
but
the Oregon Court of
Appeals affirmed the trial court ' s decision without opinion , and
the Oregon Supreme Court denied review .
App . 712 ,
(2007) .
13, 2007.
160 P . 3d 639 ,
rev . denied ,
State v . Purvine , 212 Or .
343 Or.
160 ,
164 P . 3d 1161
Petitioner ' s direct Appellate Judgment issued on September
Respondent ' s Exhibit 108 .
On July 16 , 2009, petitioner filed for post-convict i on relief
("PCR") in Malheur County where the PCR trial court denied relief
on all of his claims .
Respondent ' s Exhibit 127 .
of Appeals affirmed the lower court ' s decision ,
Supreme Court denied review.
2 - OPINION AND ORDER
The Oregon Court
and the Oregon
Purvine v . Nooth , 252 Or. App . 580 ,
291
P . 3d 214
(2013).
(2012) ,
rev .
denied ,
353 Or .
203 ,
296
P . 3d 1275
The PCR Appellate Judgment issued on March 11 , 2013 .
On November 11 , 20 1 3 , petitioner fi l ed this 28 U. S . C . § 2254
habeas corpus case raising 12 grounds for relief .
Respondent asks
the court to dismiss the Petition for Writ of Habeas Corpus on the
basis
that
petitioner
concedes that
his
failed
Petition
is
to
timely
untimely ,
file
it.
but asks
Petitioner
the
court to
excuse his default on the basis that he is actually innocent .
DISCUSSION
Prisoners who wish to challenge their state - court convictions
in federal court must generally do so no more than one year after
those convictions become final when the period for seeking direct
review ends .
28 U. S . C. 2244 (d) (1) (A) .
A petitioner who fails to
comply with this deadline may overcome his procedural default if he
is able to show that he is actually innocent of his underlying
criminal conduct.
1924 ,
actual
1928
McQuiggin v. Perkins , --- U. S . ----, 133 S . Ct .
(2013) .
innocence ,
evidence--whether
I n order to make such a gateway showing of
a
it
petitioner
be
must
ex·culpatory
present
" new
scientific
reliable
evidence ,
trustworthy eyewitness accounts , or critical physical evidence- that was not presented at trial" which establishes that " it i s more
likely
than
not
that
no
reasonab l e
juror
petitioner guilty beyond a reasonable doubt ."
u . s. 298 , 324 , 327 (1995).
3 - OPINION AND ORDER
would
have
found
Schlup v . Delo , 513
In this case, petitioner claims to be actually innocent of his
underlying criminal conduct so as to avoid his procedural default,
but he fails to identify any new evidence of his innocence that was
not presented at trial.
Instead , he asks the court to conduct an
evidentiary hearing so he can "personally address the Court on the
reasons he did not file within the statutory time period . "
Support
(#22 ) ,
p.
10 .
Memo in
He asserts that if the court grants his
request for an evidentiary hearing , he will "testify regard i ng the
facts that demonstrate his actual innocence of the various sexual
offenses,
including
information
veracity of the victim . "
Petitioner ' s
Schlup
standard ,
evidentiary
that
calls
into
question
Id.
bare claim of innocence does
not
and
what
hearing
assertion of actual
the
he
" has
might
failed
reveal
innocence ."
1080 , 1087 (9th Cir . 2002) .
of
to
show
material
Gandarela
v.
satisfy the
import
Johnson,
an
on
his
286 F . 3d
Accordingly, petitioner ' s request for
an evidentiary hearing is denied .
As petitioner is unable to
overcome his procedural default through a gateway showing of actual
innocence , the Petition for Writ of Habeas Corpus is dismissed on
the basis that it is untimely .
CONCLUSION
For the reasons identified above ,
Habeas Corpus
(#2)
is dismissed .
the Petition for Writ of
The court dec l ines to issue a
Certificate of Appealability on the basis that petitioner has not
4 - OPINION AND ORDER
•
made a substantial showing of the denial of a constitutional right
pursuant to 28 U.S.C.
§
2253 (c) (2) .
IT IS SO ORDERED.
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H. Simon
United States District Judge
5 - OPINION AND ORDER
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