Childs v. Amsberry

Filing 117

OPINION AND ORDER: The Petition for Writ of Habeas Corpus 2 is dismissed as untimely, and Petitioners request for an evidentiary hearing is denied. The Court does, however, grant a certificate of appealability as to whether Petitioner can excuse the untimely filing of his Petition for Writ of Habeas Corpus. (See 25-page opinion for more information.) Signed on 10/20/2022 by Judge Michael H. Simon. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JEREMY EUGENE CHILDS,
Petitioner,

Case No. 2:17-00360-SI
OPINION AND ORDER

v.
MS. B. AMSBERRY,
Respondent.

Susan F. Wilk
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 this habeas corpus case pursuant to 28
U.S.C. § 2254 challenging the legality of his Marion County
convictions

dated

December

16,

2008.

For

the

reasons

that

follow, the Petition for Writ of Habeas Corpus (#2) is dismissed
on the basis that it is untimely.
BACKGROUND
On November 28, 2007, the Marion County Grand Jury indicted
Petitioner on two counts of Unlawful Sexual Penetration in the
First

Degree,

one

count

of

Using

a

Child

in

a

Display

of

Sexually Explicit Conduct, and one count of Sexual Abuse in the
First Degree. Respondent’s Exhibit 102. The charges arose from
crimes

Petitioner

was

alleged

to

have

committed

against

his

niece, VG, who was 10 years old at the time.
At a subsequent bench trial, the evidence showed that VG
lived

with

brother.

her

However,

Petitioner’s
children.

adoptive

In

she

father
would

(“GG”),
often

home,

which

he

shared

the

summer

of

2007,

mother,

spend
with
VG

and

time

his

spent

wife
the

younger
over

at

and

two

night

at

Petitioner’s home once or twice per week where she slept on the
family couch in the living room. During one of these overnight
stays, she awoke to find her pajama bottoms pulled down and
Petitioner

photographing

her

bare

genitals

with

his

digital

camera. According to VG’s testimony, Petitioner showed her a
picture of her genitalia the next day. Trial Transcript, pp. 4748. The picture showed an “extreme close-up of a 10-year-old
girl’s naked vagina with [Petitioner’s] two fingers pulling her
2 – OPINION AND ORDER

panties away from it and taking a very close-up photo[.]” Id at
323.
VG testified that several days after the incident involving
the camera, Petitioner woke her up, “put his hands down my pants
and put his finger up in my vagina.” Id at 50. She stated that
Petitioner did so at night while his wife was sleeping in the
primary bedroom. VG told him she needed to use the bathroom
because she did not like what Petitioner was doing to her and,
when she returned from the bathroom after two or three minutes,
Petitioner “just stuck his finger up there again and kept it
there.” Id at 52.
VG testified that on another occasion, Petitioner was in
his bedroom talking on the telephone with his wife who was not
at home at the time. He “pushed [VG] onto him[,]” put his hand
down her pants and underwear, and touched her genitals on the
outside.

Id

at

55-56.

When

she

tried

to

get

up

and

leave,

Petitioner pushed her back down. Id at 74. She estimated that
there were “[m]aybe five or six” different days that Petitioner
inserted his finger into her vagina, but also asserted that he
did this every time she came over. Id at 56, 67, 69-70. VG
testified that she did not disclose the abuse “[b]ecause he
threatened that he would kill my dad.” Id at 57. Petitioner also
gave VG money so that she would not tell anyone what he had
done. Id at 58. VG testified that she continued to visit the
house because she loved her cousins and wanted to see them. Id
at 65.

3 – OPINION AND ORDER

VG’s mother noticed that VG no longer seemed happy and
asked if anyone had done anything to her. VG indicated in the
affirmative but initially refused to disclose the perpetrator’s
identify.

VG

ultimately

told

her

mother

that

Petitioner

had

sexually abused her, but she made the disclosure reluctantly
because she “didn’t want to go through this.” Id. Her family
became

“kind

of

divided

over

this”

and

VG

did

not

like

it

“because we used to be a big family and we would do a lot of
things together at Christmas, Thanksgiving and everything.” Id
at 62.
At trial, Petitioner admitted that one morning he woke up
early to go fishing, and “just went in and I uncovered her and
took the picture.” Id at 302. He then magnified and cropped the
image on his camera, creating another photograph. Id at 304-05.
His wife discovered these photographs inadvertently, prompting
Petitioner to delete them. He claimed that when he realized he
had inadvertently uploaded them to his computer, he deleted them
from that device as well. Forensic experts were able to retrieve
the photographs despite their deletion.
Petitioner stated that he felt ashamed of himself, but also
portrayed VG as a “very flirtatious” girl who preferred to spend
time with adults. Id at 303. He acknowledged that his criminal
record included convictions for physically abusing his wife and
child. He had previously admitted “abusing [his] 10-month-old
child by spanking him and choking him for 20-30 seconds,” but
claimed during VG’s trial that he had falsely confessed because
the resulting guilty plea allowed him to regain his freedom in
4 – OPINION AND ORDER

time for the Christmas holiday. Id at 306. He denied sexually
abusing VG in any way. Id at 304-06.
At the conclusion of the trial, the judge found Petitioner
guilty

of

Using

a

Child

in

a

Display

of

Sexually

Explicit

Conduct and reserved ruling on the remaining three counts until
sentencing. At sentencing, the judge found Petitioner guilty of
all charges:
I have taken a look carefully at the
evidence. I spent quite some time going over
this and reviewing what I had and looking at
my notes.
* * *
But really what it boils down to for me,
having said that, is I really look at this
in a case from what I know from the
Defendant and I know from [VG], and then all
these other circumstances that go around it;
for instance, photographs, which are very
damaging for your case.
I have to look at [VG’s] testimony to see
how believable that is. She is very bright,
articulate, and I think I can put a lot of
weight on her testimony. I realize that she
has problems, and people have talked about
those, but I found her testimony to be very
believable,
particularly
since
it
was
corroborated in several respects.
Based on that, and based on all the
circumstances of the case, the factual
evidence available, I am going to find you
guilty of the offense. I think you’re
guilty, so that will be my decision in this
case.
Id

at

353.

The

trial

judge

found

sentenced

concurrent sentences totaling 300 months in prison.

5 – OPINION AND ORDER

Petitioner

to

Petitioner

directly

appealed

his

convictions,

and

the

Oregon Court of Appeals affirmed the trial court’s Judgment in a
written opinion. State v. Childs, 243 Or. App. 129, 259 P.3d 77
(2011).

The

Oregon

Supreme

Court

denied

review,

and

the

Appellate Judgment issued on October 14, 2011. 350 Or. 573, 258
P.3d 1240 (2011); Respondent’s Exhibit 109.
On

March

30,

2012,

Petitioner

filed

for

post-conviction

relief (“PCR”) in Umatilla County. On March 18, 2013, the PCR
court denied relief on his claims. The Oregon Court of Appeals
affirmed

the

PCR

court’s

decision

without

issuing

a

written

opinion, and the Oregon Supreme Court denied review. Childs v.
Taylor, 270 Or. App. 599, 251 P.3d 89, rev. denied, 357 Or. 550,
357 P.3d 503 (2013). The PCR Appellate Judgment issued on August
12, 2015. Respondent’s Exhibit 139.
During the pendency of Petitioner’s PCR appeal, on October
28, 2013, VG traveled to the Springfield Police Department with
her

Aunt,

TK.

In

an

interview

with

Officer

L.

Turner,

VG

recanted her accusations as to Petitioner (with the exception of
the undisputed nude photograph) and indicated that her adoptive
father (GG) had been sexually abusing her since the time she was
between four and six years of age:
[VG] advised [GG] would touch her vagina
with his fingers a “Couple times a month.”
She also said [GG] made her give him a “Hand
job” one or two total times. And he put a
hair brush inside her vagina “3 or 4” total
times. [VG] said this occurred in Salem,
Oregon and also in Washington State.

6 – OPINION AND ORDER

I asked [VG] if they ever had sexual
intercourse. [VG] said [GG] raped her in
late July, 2013. . . .
* * *
[GG] also advised she lied about Jeremy
Eugene Childs . . . molesting her. [VG]
advised Childs took a photo of her while she
was on the couch. She said she woke up and
her panties were down to her ankles. When
police questioned her, she advised Childs
took a photo of her with her panties down
and she also said he molested her. [VG] said
her adopted father, [GG], was there during
her interview and she was extremely scared
of him. She lied and said Childs molested
her when it was actually [GG]. I advised she
lied about Childs, why should we believe her
now. [VG] said because [GG] is not around
and reiterated how scared she is of him and
how he threatened to hurt her if she said
anything. [VG] added that [GG] has 3 guns in
the house. She was unsure what type of guns.
* * *
[VG] mentioned an accident she had back in
2004 or 2005 where she went to the doctor
because her vagina was bleeding. [VG] said
she told the doctor it was from a rocking
horse. [VG] now states it was from [GG’s]
fingers.
Respondent’s Exhibit 140, pp. 13-14.
Approximately two months later, on December 10, 2013, VG
met with Deputy District Attorney Jodie Bureta, the prosecuting
attorney

who

According

to

had

prosecuted

Bureta’s

Petitioner

subsequent

report,

in
VG

Marion
“talked

County.
about

getting a lot of pressure from her family to get [J]eremy out of
prison.” Id at 12. VG advised Bureta:

7 – OPINION AND ORDER

[J]eremy [C]hilds did do something to her
but that she was “forced to exaggerate”
about
other
things.
[W]hen
asked
specifically what she said she does not
remember him ever touching her just taking a
picture, said she remembers her stepdad
touching her but not [J]eremy. [S]he said
her stepdad would tell her what to say about
[J]eremy when they were alone.
Id.

Despite

touching

her

inability

involving

to

Petitioner,

recall
VG

specific

referenced

the

instances
time

of

period

when “[J]eremy was hurting her” and told Bureta that “he should
get in trouble but not that much trouble.” Id.
VG’s recantation prompted Petitioner to file a second PCR
case in Umatilla County. Typically, a person convicted of a
crime

in

Oregon

may

not

pursue

successive

PCR

actions.

ORS

138.550(3). However, Oregon provides statutory escape clauses
which allow a PCR petitioner to overcome an untimely and/or
successive PCR filing if he can demonstrate that the grounds for
relief he asserts in the otherwise barred proceeding “could not
reasonably

have

been

raised

in

the

original

or

amended

petition.” ORS 138.510(3) (untimely PCR actions); ORS 138.550(3)
(successive PCR actions). Petitioner’s contention was that VG’s
recantation prompted him to raise new claims that he could not
reasonably have raised in his original PCR case.
Petitioner’s

appointed

attorney

in

his

second

PCR

case

hired investigator Kenneth Herbst to assist with the collection
of evidence. Herbst was able to meet with VG and her mother at
the mother’s residence where VG stated that her recantation was

8 – OPINION AND ORDER

not true. She claimed that she recanted due to pressure from TK,
with whom she was living at the time:
5.
I then reviewed the recantation reports
(Exhibit A) with [VG] and questioned her
about them. [VG] told me that since she was
five years old, her stepfather, [GG], had
physically, mentally and sexually abused her
and as a result she had suffered extreme
trauma. [VG] explained to me that she
suffered from “flashbacks.”
6.
I asked [VG] whether her recantation
was truthful. [VG] told me that it was not
and explained that the accusations against
[GG] were true but now, contrary to her
recantation (Exhibit A), she claimed that
petitioner had in fact touched her although
she would not provide me with any specific
details about that alleged abuse. When I
pressed
[VG]
for
that
information
on
multiple occasions, she told me that she
could not recall what petitioner had or had
not done to her because she was traumatized
and was blocking it out of her memory.
7.
I asked [VG] why she had made the
recantation
regarding
petitioner
and
I
specifically went over the documents in
Exhibit A where [VG] had recanted recently
to Marion County Deputy District Attorney,
Jodi Bure[]ta and officer Turner of the
Springfield Police Department, case number
13 10742 on October 28, 2013. I read both of
these documents to her and she agreed that
she had told them everything stated in the
reports. [VG] added, however, that her aunt
[TK] brought her to Springfield Police
Department and had coached her on what to
say while she was staying with [TK] for a
period of two weeks immediately preceding
the interviews during which her recantations
were made. [VG] then told me that although
[GG] was the primary abuser and the only
person who had raped her, petitioner had
touched her inappropriately and taken a
9 – OPINION AND ORDER

picture of her vagina. [VG] reiterated to me
that she has many doctors and therapists who
have diagnosed her with PDSD, anxiety,
depression and other personality disorders.
Respondent’s Exhibit 143, pp. 7-8.
Faced with VG’s withdrawal of her recantation as well as
her

explanation

that

TK

had

pressured

her

to

fabricate

the

recantation, Herbst interviewed TK. TK “briefly explained to me
the family background which included her sisters and herself
being abused mentally, sexually, and physically by a number of
different

individuals

in

their

extended

family.”

Id

at

9.

According to TK, VG had “insisted” that TK take her to the
police

so

she

could

formally

recant

her

accusations

against

Petitioner. Id. TK disputed that she had pressured VG to recant
her accusations:
10. I then told [TK] about my interview
with [VG] and her claim that [TK] had
pressured her to recant and had coached her
on how to make the recantation. [TK] told me
that [VG’s] claim was absolutely untrue and
again reiterated her personal belief that
petitioner had sexually assaulted [VG],
noting that she would never have attempted
to pressure [VG] to fabricate a recantation
for that very reason.
11. [TK] told me that [VG] had lived with
[TK] and her husband for about one week
before the recantation and [VG] had then
left their residence claiming that [TK’s
family was] too strict.
Id.
The State moved for summary judgment in the second PCR
action because the Petition was untimely, improperly successive,
and filed despite Petitioner’s ongoing litigation of his first
10 – OPINION AND ORDER

PCR action. Respondent’s Exhibit 142, p. 3. Petitioner conceded
that his Petition was untimely and successive, but asked the PCR
court

to

allow

him

to

proceed

because

he

could

not

have

reasonably raised claims in his first PCR action that were based
upon

a

recantation

that

had

not

yet

happened.

Respondent’s

Exhibit 143. The PCR court granted summary judgment in favor of
the State “for the reasons set forth by the state in the motion
and related memoranda.” Respondent’s Exhibit 145.
Petitioner appealed the dismissal, and the State filed a
Motion to Determine Jurisdiction in which it argued that the
Oregon Court of Appeals lacked jurisdiction to hear the appeal.
Petitioner’s Exhibit 001. Specifically, the State pointed out
that

“in

addition

petitioner’s

to

being

untimely

actual-innocence

claim

and

‘is

successive

not

.

cognizable

.

.

under

Oregon’s Post-Conviction Hearing Act[.]’” Id at 1. The Oregon
Court of Appeals apparently agreed, affirming the PCR court’s
decision in a per curiam opinion in which it cited Dillard v.
Premo, 276 Or. App. 65 (2016). Childs v. Myrick, 277 Or. App.
782,

380

P.3d

1192

(2016).

In

Dillard,

the

Oregon

Court

of

Appeals concluded that ORS 138.525(3) “is unambiguous: petitions
that

fail

to

state

a

claim

are

meritless,

and

a

judgment

dismissing a petition as meritless is not appealable.” Id at 67
(internal quotation omitted). In this regard, the Oregon Court
of

Appeals

dismissed

Petitioner’s

appeal

for

lack

of

jurisdiction. The Oregon Supreme Court denied review, 360 Or.
422, 383 P.3d 856 (2016), and the Appellate Judgment from this

11 – OPINION AND ORDER

second

PCR

action

issued

on

November

15,

2016.

Respondent’s

Exhibit 152.
Petitioner filed his federal Petition for Writ of Habeas
Corpus on March 3, 2017. Respondent asks the Court to dismiss
the Petition because Petitioner failed to timely file it.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act ("AEDPA")
provides

that

a

one-year

statute

of

limitations

applies

to

federal habeas corpus litigants and begins to run once a direct
appeal

becomes

final

in

state

court.

28

U.S.C.

2244(d)(1).

Pursuant to 28 U.S.C. § 2244(d)(2), the pendency of a PCR action
tolls the AEDPA’s statute of limitations so long as the PCR
action is properly filed. Respondent asserts that, following the
conclusion of Petitioner’s direct appeal, the one-year statute
of limitations was stayed only during the pendency of his first
PCR action because his second PCR action was not properly filed.
She therefore concludes that Petitioner permitted 647 untolled
days to accrue before filing his Petition for Writ of Habeas
Corpus, placing him well outside of the one-year statute of
limitations.
Petitioner

argues

that:

(1)

Respondent

is

judicially

estopped from making a timeliness argument; (2) he is eligible
for statutory tolling because his second PCR action was properly
filed

under

28

U.S.C.

§ 2244(d)(2);

(3)

he

is

entitled

to

equitable tolling due to the errors of his PCR attorneys; (4) to
the extent his Petition for Writ of Habeas Corpus is untimely,
he can excuse this procedural deficiency because he is actually
12 – OPINION AND ORDER

innocent of sexually abusing VG; and (5) if the Court determines
that he has not established his actual innocence, it should hold
an

evidentiary

hearing

to

allow

him

to

develop

additional

evidence. The Court takes these issues in turn.
I.

Judicial Estoppel
Petitioner asserts that during his appeal in his second PCR

case,

the

State

specifically

argued

that

the

PCR

court’s

Judgment was unappealable because his claim of actual innocence
was not cognizable in a PCR action such that he failed to state
a claim upon which relief could be granted. He points out that
the

Oregon

Court

of

Appeals

adopted

this

argument

when

it

dismissed the appeal for lack of jurisdiction. He reasons that
Respondent, after claiming in the Oregon Court of Appeals that
the PCR action was meritless, cannot now argue that procedural
deficiencies with the PCR Petition render the current federal
habeas corpus case untimely.
"Judicial estoppel, sometimes also known as the doctrine of
preclusion

of

inconsistent

positions,

precludes

a

party

from

gaining an advantage by taking one position, and then seeking a
second advantage by taking an incompatible position." Rissetto
v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600 (9th Cir.
1996).

"Judicial

estoppel

is

an

equitable

doctrine

that

is

intended to protect the integrity of the judicial process by
preventing a litigant from "playing fast and loose with the
courts.'"

Wagner

v.

Professional

Engineers

in

California

Government, 354 F.3d 1036, 1044 (9th Cir. 2004) (citing Russell
v.

Rolfs,

893

F.2d

1033,

13 – OPINION AND ORDER

1037

(9th

Cir.

1990).

"[J]udicial

estoppel applies to a party's stated position, regardless of
whether it is an expression of intention, a statement of fact,
or a legal assertion. Helfand v. Gerson, 105 F.3d 530, 535 (9th
Cir. 1997).
The State never conceded or abandoned its position that
Petitioner’s

second

PCR

action

was

untimely

and

improperly

successive. To the contrary, it specifically advised the Oregon
Court of Appeals that “the post-conviction court adopted the
superintendent’s

arguments

that

petitioner’s

actual-innocence

was untimely, successive, and not cognizable under applicable
law.” Petitioner’s Exhibit 001, p. 1. It proceeded to focus on
Petitioner’s failure to state a cognizable claim because, unlike
the timeliness and successive petition arguments, his failure to
state a claim raised a bar to appellate jurisdiction. See Young
v. Hill, 347 Or. 165, 170-71, 218 P.3d 125 (2009). This was a
reasonable argument to make, and the State in no way is taking
an

inconsistent

position

here

by

continuing

to

assert

that

Petitioner failed to properly file his second PCR action under
Oregon’s procedural rules.
II.

Statutory Tolling
Petitioner also asserts that he is entitled to statutory

tolling pursuant to § 2244(d)(2) for the time during which his
second PCR action was pending. As recounted above, the State
moved for summary judgment in the second PCR action, in part, on
the basis that the PCR Petition was untimely and improperly
successive. Petitioner conceded these points in his response to
the State’s summary judgment motion: “There is no dispute that
14 – OPINION AND ORDER

petitioner

filed

his

post-conviction

petition

outside

of

the

two-year statutory limitations period and that he has previously
prosecuted

a

petition

for

affirmatively

alleges

post-conviction

these

facts

relief.

Petitioner

his

pleadings.”

in

Respondent’s Exhibit 143, p. 2. He asked the PCR court to excuse
these procedural deficiencies because the claims he raised in
the

successive

PCR

action

were

based

upon

newly

discovered

evidence of his innocence, thereby bringing him within Oregon’s
statutory escape clauses. Id at 4.
When

the

articulated

by

PCR

granted

the

State,

summary
it

judgment

necessarily

for

the

declined

reasons

to

adopt

Petitioner’s argument that his second PCR action was viable due
to

newly

admitted

discovered

evidence.

In

this

procedural

failures

were

not

respect,

Petitioner’s

excused,

and

they

necessarily resulted in a PCR action that was not “properly
filed” sufficient to toll the AEDPA’s statute of limitations.1
See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When
a postconviction petition is untimely under state law, that is
the end of the matter for purposes of § 2244(d)(2).”). (internal
quotation omitted).
III. Equitable Tolling
Petitioner contends that he is also entitled to equitable
tolling of the AEDPA’s statute of limitations where his PCR
1 Even if Petitioner had “properly filed” his second PCR Petition, the
resulting Judgment was unappealable as a matter of state law. Consequently,
the AEDPA’s statute of limitations would not have been tolled during the PCR
appeals such that the Petition for Writ of Habeas Corpus would still be
untimely. See Ramirez v. Yates, 571 F.3d 993 (9th Cir. 2009); Almanza-Garcia
v. Amsberry, 838 Fed. App’x 301 (9th Cir. 2021).

15 – OPINION AND ORDER

attorneys gave him erroneous advice. He asserts that when new
evidence of his innocence came to light in the form of VG’s
recantation, his attorney in his first PCR case counseled him to
file a successive PCR action. Respondent’s Exhibit 140, p. 15.
He claims that there is no indication in the record that his
appointed attorneys from either of his PCR actions advised him
of the AEDPA’s statute of limitations, and maintains that this
omission

was

sufficiently

egregious

to

justify

equitable

tolling.
Equitable tolling is potentially available to toll the oneyear

statute

habeas

of

corpus

(2010).

A

limitations

cases.

litigant

applicable

Holland

seeking

to

v.

to

Florida,

invoke

28
560

U.S.C.
U.S.

equitable

§

631,

tolling

2254
645
must

establish: (1) that he has been pursuing his rights diligently;
and (2) that some extraordinary circumstance prevented him from
timely filing his petition.

Pace v. DiGuglielmo, 544 U.S. 408,

418 (2005). In order for Petitioner to qualify for equitable
tolling, it is not enough to demonstrate garden-variety attorney
error

such

Instead,

he

as

miscalculation

must

show

of

“egregious

a

statute

attorney

of

limitations.

misconduct”

that

amounts to an extraordinary circumstance. Luna v. Kernan, 784
F.3d 640, 647-49 (2015); see also Lawrence v. Florida, 549 U.S.
327, 336-37 (2007). Petitioner bears the burden of showing that
this "extraordinary exclusion" should apply to him. Miranda v.
Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
Petitioner’s PCR attorneys were not tasked with advising
him regarding the AEDPA’s statute of limitations, or to assist
16 – OPINION AND ORDER

him in filing a timely federal habeas corpus case. The task
before them was to help Petitioner secure relief in Oregon’s PCR
courts. To that end, the attorneys apparently believed that,
based upon VG’s statements to Officer Turner and DDA Bureta, a
potential avenue existed for Petitioner to excuse the procedural
deficiencies associated with his second PCR action PCR action.
Indeed,

Petitioner’s

specifically
statutory

attorney

asserted

escape

that

in

his

second

Petitioner

provisions

to

PCR

satisfied

action

overcome

his

Oregon’s

untimely

and

successive filing because he “could not reasonably have raised
the

claims

which

are

now

before

the

Court

because

[VG’s]

recantation and subsequent statements occurred after judgment
was entered against him in his first post-conviction action.”
Respondent’s Exhibit 143, p. 4.
Petitioner claims that his PCR attorneys nevertheless had
an obligation to ensure his federal habeas corpus case would be
timely. He directs this Court’s attention to the Ninth Circuit’s
unpublished opinion in Benjamin v. Kelly, 2022 WL 1285040 (9th
Cir., Apr. 29, 2022). In that case, the Court of Appeals found
circumstances

justifying

equitable

tolling

where

the

petitioner:
frequently wrote his [PCR] lawyer to inquire
about the status of his case and, on
numerous occasions, sought his lawyer’s
advice as to whether the time for filing his
federal habeas petition was running. Time
and time again, Benjamin’s lawyer assured
him, albeit erroneously, that the statute of
limitations was tolled during the state
post-conviction relief appeal.

17 – OPINION AND ORDER

habeas

* * *
Here, Benjamin has shown that his lawyer’s
actions
qualify
as
an
extraordinary
circumstance. Throughout his representation,
Benjamin’s lawyer continually misled him
about
when
the
[AEDPA’s]
statute
of
limitations was running on what was likely
[Benjamin’s] single opportunity for federal
habeas review, thus seriously prejudicing
him.
Id at 1-2 (internal quotations omitted).
Unlike the situation in Benjamin, there is no indication
that

Petitioner’s

PCR

attorneys

repeatedly

misled

him

with

regard to the AEDPA’s statute of limitations thereby causing his
untimely filing of this action. Instead, he reasons that because
Oregon’s state courts ultimately concluded that VG’s recantation
failed to satisfy Oregon’s statutory escape clauses so as to
render his second PCR action untimely,2 the assistance of his PCR
attorneys in pursuing that course of action must necessarily be
an

extraordinary

filing

this

circumstance

case.

that

Petitioner’s

prevented

PCR

him

attorneys’

from

timely

unsuccessful

pursuit of state post-conviction remedies on his behalf in the
wake

of

newly

discovered

evidence

does

not

amount

to

an

extraordinary circumstance justifying equitable tolling of the
AEDPA’s statute of limitations.
IV. Actual Innocence
Petitioner

next

asks

the

Court

to

excuse

his

untimely

filing because, while he is guilty of photographing VG, he is
2

It bears repeating that at the time Petitioner filed his second PCR case, VG
had not yet disavowed her recantation.

18 – OPINION AND ORDER

actually

innocent

of

his

three

convictions

stemming

from

physically abusing her. He can excuse his failure to timely file
this case if he can make a gateway showing of actual innocence.
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). In order to make
such a showing, Petitioner must present “new reliable evidence–
whether

it

be

exculpatory

scientific

evidence,

trustworthy

eyewitness accounts, or critical physical evidence–that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324, 327
(1995). The Court must then consider “all the evidence, old and
new, incriminating and exculpatory, admissible at trial or not”
to resolve the question whether “it is more likely than not that
no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.” Id; Lee v. Lampert, 653 F.3d 929, 938 (9th
Cir. 2011) (en banc) (internal quotations omitted). The “actual
innocence

exception

extraordinary

case.”

remains

only

Schlup,

513

a
U.S.

safety
at

valve

333

for

the

(O’Connor,

J.,

concurring) (internal quotation omitted).
Where

Petitioner’s

claim

of

innocence

is

dependent

upon

VG’s recantation, the Court must determine whether “every juror
would

credit

her

recantation

testimony

over

her

trial

testimony.” Jones v. Taylor, 763 F.3d 1242, 1250 (9th Cir. 2014).
“Recanting testimony has long been disfavored as a basis for a
claim

of

innocence”

and

is

to

be

viewed

“with

extreme

suspicion.” Carriger v. Stewart, 132 F.3d 463, 483 (9th Cir.
1997) (Kozinski, J., dissenting); see also Haouari v. United
States, 510 F.3d 350, 353 (2nd Cir. 2007) (“It is axiomatic that
witness

recantations

must

19 – OPINION AND ORDER

be

looked

upon

with

the

utmost

suspicion”) (internal citation omitted). As the Ninth Circuit
stated in Jones:
As
a
general
matter,
“[r]ecantation
testimony is properly viewed with great
suspicion.” Dobbert v. Wainwright, 468 U.S.
1231, 1233, 105 S.Ct. 34, 82 L.Ed.2d 925
(1984) (Brennan, J., dissenting from denial
of certiorari); see also Allen v. Woodford,
395
F.3d
979,
994
(9th
Cir.
2005).
“Recanting testimony is easy to find but
difficult to confirm or refute: witnesses
forget, witnesses disappear, witnesses with
personal motives change their stories many
times, before and after trial.” Carriger,
132 F.3d at 483 (Kozinski, J., dissenting).
“It
upsets
society's
interest
in
the
finality of convictions, is very often
unreliable
and
given
for
suspect
motives....” Dobbert, 468 U.S. at 1233–34,
105 S.Ct. 34. For these reasons, a witness'
“later recantation of his trial testimony
does
not
render
his
earlier
testimony
false.” Allen, 395 F.3d at 994; see also
Christian v. Frank, 595 F.3d 1076, 1084 n.
11 (9th Cir. 2010). Rather, a witness'
recantation is considered in addition to his
trial testimony and in the context in which
he recanted when assessing the likely impact
it would have on jurors. See Christian, 595
F.3d at 1084 n. 11 (considering the timing
of the witness' recantation and the contents
of his earlier testimony in assessing the
weight
of
the
recantation);
Graves
v.
Cockrell, 351 F.3d 143, 153 (5th Cir. 2003)
(noting that a recanting witness had given
numerous
contradictory
statements
in
assessing the weight to give to his new
testimony).
Id at 1248.
In this case, VG’s recantation was not timely; she waited
approximately five years after Petitioner’s conviction to come
forward with an admission that she had lied. She also did so
20 – OPINION AND ORDER

during the very short time she lived in TK’s home, a time frame
that spanned only one or two weeks. TK claimed that VG “insisted
that

she

be

taken

to

law

enforcement

recantation

about

her

accusations

Respondent’s

Exhibit

143,

p.

9.

to

make

against

However,

a

a

formal

petitioner.”

reasonable

juror

could find it improbable that VG would suddenly insist on such a
course

of

her

convictions

own

and

volition

that

the

five

more

years

likely

after

Petitioner’s

explanation

was

VG’s

representation that TK pressured her to recant during the brief
time VG was living in TK’s home. This is especially true where,
two

months

after

she

delivered

her

recantation

to

Officer

Turner, VG told Bureta that she was “getting a lot of pressure
from

her

family

to

get

Jeremy

out

of

prison,”

and

still

maintained that there was a time that “Jeremy was hurting her,”
not that he had only photographed her on one occasion while she
slept. Respondent’s Exhibit 140, p. 12 (bold added). Unlike her
statements to Officer Turner, VG’s statements to DDA Bureta that
she could not remember Petitioner touching her is not tantamount
to a denial that the touching never occurred.
Not only could a rational juror conclude that VG falsely
recanted

her

accusations

due

to

family

pressure,

but

Petitioner’s own trial testimony cast doubt on his credibility
and, thus, his gateway claim of actual innocence. As mentioned
in the Background of this Opinion, he attempted to explain away
his conviction for physically abusing his 10-month old son by
claiming he lied to the judge when he entered his plea so as to
be home in time for Christmas. Petitioner either lied to the
21 – OPINION AND ORDER

judge when he entered his plea, or he lied while testifying
under oath in Marion County in 2008.
Petitioner also testified that when police confronted him
with

VG’s

allegations,

photographed

her

he

denied

inappropriately.

ever

having

However,

touched

after

or

forensic

specialists retrieved the deleted images from his computer, he
was forced to admit at trial that his statement regarding the
photographs to law enforcement were not true. Trial Transcript,
p. 307.
During his direct examination, Petitioner testified that he
felt

shame

prosecutor
disgusted

for

photographing

during
with

VG,

cross-examination

himself

for

and

initially

that

photographing

he
VG.

was
When

told

the

instantly
she

asked

whether he was disgusted with himself before or after he made a
copy of the photo, magnified it, and cropped it in order to make
the image more vivid, Petitioner claimed that he had manipulated
the photograph before feeling disgusted with himself. Id at 315.
Even assuming Petitioner felt genuine disgust after editing the
photo, this does not explain why he refrained from deleting the
photographs

from

his

camera

until

his

wife

inadvertently

discovered them, or why he told his wife that he did not know
why the photographs were on his camera when he obviously took
them. Id.
Moreover, despite admitting that he had photographed VG’s
bare vagina and edited the photograph, Petitioner inexplicably
testified that he did not do so for any sexual purpose. Although
the

prosecutor

asked

him

22 – OPINION AND ORDER

what

reason

he

had

to

take

the

photograph, and why he would only photograph her vagina and no
other part of her if it wasn’t for a sexual purpose, Petitioner
was unable to formulate an answer. Id at 312-13. The fact that
Petitioner took the photograph in the first place, coupled with
his

dubious

testimony,

significantly

detracted

from

his

credibility.
Petitioner’s wife also made statements to law enforcement
that

were

damaging

to

his

case.

She

told

an

investigating

officer that “she was not ‘surprised’ by the allegations” VG had
made. Respondent’s Exhibit 118, p. 10. She “was suspicious that
something might have been ‘going on’ between Jeremy and [VG],
stating to Lt. Stai that [VG] was always sitting on his lap,
following him into the bathroom, etc.” Id. She also told the
police officer “that she told Jeremy that she didn’t want [VG]
coming over all the time, but Jeremy insisted that the visits
continue,

and

they

did.”

Id.

At

trial,

Petitioner’s

wife

confirmed that she made these statements to the authorities.
Trial Transcript, pp. 93-95.
Petitioner

contends

the

evidence

shows

that

her

father

abused her, and that VG told Officer Turner that her father
pressured

her

to

fabricate

charges

of

sexual

abuse

against

Petitioner. However, it seems unlikely that at the time GG was
allegedly

persuading

VG

to

falsify

charges

of

sexual

abuse

against Petitioner, Petitioner happened to photograph her bare
vagina while she was sleeping. In addition, any sexual abuse VG
may have suffered from GG does not rule out sexual abuse by

23 – OPINION AND ORDER

Petitioner

also.3

reasonable

juror

Based

upon

could

the

conclude

totality
that:

of

the

record,

(1) Petitioner’s

a

trial

testimony was not truthful; (2) the photograph showed that he
had a sexual interest in VG; (3) the fact that he photographed
VG’s vagina made it likely that he also touched her as she
alleged; and (4) VG’s belated recantation had been coerced by TK
during

the

time

VG

was

living

in

TK’s

home

such

that

the

recantation did not cast doubt on her trial testimony. For all
of these reasons, Petitioner cannot establish that no reasonable
juror would have convicted him in light of his newly presented
evidence.
V. Evidentiary Hearing
Petitioner asks the Court to hold an evidentiary hearing if
it finds he has not met his burden of establishing his actual
innocence under Schlup. Petitioner’s claim of actual innocence
is

not

hearing.

sufficiently

(where

See
the

meritorious

to

warrant

an

evidentiary

Schriro v. Landrigan, 550 U.S. 465, 474 (2007)
record

in

the

case

precludes

habeas

relief,

a

district court is not required to hold an evidentiary hearing).
///
///
///
///
///
///
3

When Herbst interviewed TK, she told him that mental, physical, and sexual
abuse was rampant in her extended family. Respondent’s Exhibit 143, p. 9.

24 – OPINION AND ORDER

CONCLUSION
The Petition for Writ of Habeas Corpus (#2) is dismissed as
untimely, and Petitioner’s request for an evidentiary hearing is
denied.

The

Court

does,

however,

grant

a

certificate

of

appealability as to whether Petitioner can excuse the untimely
filing of his Petition for Writ of Habeas Corpus.
IT IS SO ORDERED.
October 20, 2022

DATE

25 – OPINION AND ORDER

Michael H. Simon
United States District Judge