Dunn v. Blewett

Filing 69

ORDER: For the foregoing reasons, the Court ADOPTS Judge You's Findings and Recommendation, ECF 64 , in full. Petitioner's Petition for Writ of Habeas Corpus, ECF 2 , is DENIED, and this case is DISMISSED with prejudice. The Court declines to issue a certificate of appealability. IT IS SO ORDERED. Signed on 3/26/2024 by Judge Adrienne Nelson. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JASON DUNN,
v.

Case No.: 2:20-cv-01516-YY

Petitioner,
ORDER

TYLER BLEWETT,
Respondent.

Adrienne Nelson, District Judge
United States Magistrate Judge Youlee Yim You issued a Findings and Recommendation
in this case on September 22, 2023, ECF [64], in which she recommended that petitioner's Petition for Writ
of Habeas Corpus, ECF [2], be denied.

Petitioner timely filed objections to the Findings and

Recommendation. The matter is now before the Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal
Rule of Civil Procedure 72(b).
A district court judge may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If any party files objections to a
magistrate judge's proposed findings and recommendations, "the court shall make a de novo determination
of those portions of the report." Id. No standard of review is prescribed for the portions of the report for
which no objections are filed, and no review is required in the absence of objections. Thomas v. Arn, 474
U.S. 140, 152-154 (1985). A district court judge is not, however, precluded from sua sponte review of
other portions of the report, under a de novo standard or otherwise. Id. at 154. The Advisory Committee
notes to Federal Rule of Civil Procedure 72(b) recommend that, when no objection is filed, the
recommendations be reviewed for "clear error on the face of the record." Fed. R. Civ. P. 72(b) advisory
committee's note to 1983 amendment.
Petitioner first objects, "[f]or the reasons set out in his previous filings," to Judge You's
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conclusion that petitioner's mental illness does not constitute an extraordinary circumstance sufficient to
equitably toll the statute of limitations for filing a habeas petition, excusing his untimely filing. Pet.'s
Objections to F&R ("Pet.'s Objs."), ECF [67], at 2.
To demonstrate that a mental impairment constitutes an extraordinary circumstance that
prevented timely filing, a petitioner must first show that his mental impairment was so severe that he was
either "unable rationally or factually to personally understand the need to timely file" or that his "mental
state rendered him unable personally to prepare a habeas petition and effectuate its filing." Yow Ming Yeh
v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014) (citing Bills v. Clark, 628 F.3d 1092, 1099–100 (9th Cir.
2010)). Then, a petitioner must show that he demonstrated diligence in pursuing his claims to the extent
that he could understand them, but that under the totality of the circumstances, his mental impairment made
it impossible to meet the filing deadline. Id.
Upon review, the Court agrees with Judge You's finding that petitioner offered no evidence
and did not attempt to explain how his mental illness prevented him from filing his petition until three years
after the post-conviction relief ("PCR") court issued judgment. Findings & Recommendation ("F&R"),
ECF [64], at 6. The evidence that petitioner did submit, relating to petitioner's PCR proceedings, does not,
for the reasons that Judge You describes, establish that petitioner was unable to understand the need to seek
PCR. Id. at 5-6. Further, plaintiff does not offer evidence that he exercised diligence, to the extent that he
could, during the three years between the entry of judgment in the PCR proceedings and the filing of his
habeas petition. Petitioner has not demonstrated that his mental health constituted an extraordinary
circumstance that prevented timely filing and equitably tolled the statute of limitations.
Petitioner next objects to Judge You's conclusion that he did not establish actual innocence,
excusing his untimely filing. While petitioner concedes that his claims are procedurally defaulted, he also
objects to the finding that he has not established actual innocence to excuse his procedural default. Pet.'s
Objs. 2.
In the Ninth Circuit, "a petitioner is not barred by the AEDPA statute of limitations from
filing an otherwise untimely habeas petition if the petitioner makes a credible showing of 'actual innocence'
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under Schlup v. Delo." Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011) (quoting Schlup v. Delo, 513
U.S. 298 (1995)). 1 To establish actual innocence under Schlup, a petitioner must show that dismissal of the
habeas petition would be a "miscarriage of justice" by demonstrating that "'a constitutional violation has
probably resulted in the conviction of one who is actually innocent.'" Schlup, 513 U.S. at 326-27 (quoting
Murray v. Carrier, 477 U.S. 478, 496 (1986)). To make a credible claim of actual innocence, the 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." Id. at 324. The petitioner must
show "that it is more likely than not that no reasonable juror would have convicted him in the light of the
new evidence." Id. at 327.
As Judge You properly found, all of the proffered evidence – an Oregon Department of
State Police Forensic Laboratory Analytical Report describing DNA test results, a psychosocial
examination of petitioner, and a psychologist's review of an interview with the victim – were available at
the time of petitioner's plea agreement, and thus are not "new" for purposes of establishing actual innocence.
F&R 7-8. The PCR court found that petitioner was "not credible when he assert[ed] that his trial attorney
failed to explain adequately the DNA evidence or the CARES interview report to him prior to his entry of
his pleas." Exs. to Answer, ECF [14], Ex. 133. Because petitioner did not introduce any new evidence, he
has failed to make a credible claim of actual innocence.
Even if considered, the evidence presented by petitioner would not establish actual
innocence under Schlup. Petitioner asserts that the DNA evidence was weak because it was not conclusive
– the sperm cell samples did not contain a testable profile, and thus were not attributed to any person, and
while the epithelial cell samples contained petitioner's DNA, they also contained DNA of other family
members residing with the victim. Brief in Support of Pet., ECF [58], at 13-14. Although there were other

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The Ninth Circuit has made no finding as to whether the Schlup actual innocence gateway is available to petitioners
who were not convicted following a jury trial, but instead pleaded guilty or no contest. Smith v. Baldwin, 510 F.3d
1127, 1140 n.9 (9th Cir. 2007). Because the Ninth Circuit has not foreclosed the availability of the gateway, and
because the state does not raise the issue in its response, the Court applies the Schlup test despite petitioner's no contest
plea.

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contributors to the DNA evidence found on the victim's underwear, it is not more likely than not that no
reasonable juror would have convicted petitioner in light of DNA evidence showing that petitioner's
epithelial cells and unidentified sperm cells were found on the victim's underwear. Similarly, in light of
the totality of the evidence, the psychosocial report, in which petitioner denies the allegations against him
and suggests that another family member was culpable, and the expert psychologist report, which noted
that the interview conducted with the victim did not follow best practices and used invitational questioning,
would not make it more likely than not that no reasonable juror would convict petitioner. Petitioner did not
introduce any evidence showing that a constitutional violation probably occurred that led to his conviction
in spite of actual innocence. The Court, therefore, adopts Judge You's finding that petitioner has not met
the requirements of the actual innocence exception to excuse the untimely filing of his habeas petition.
For the same reasons just described, the Court adopts Judge You's findings that actual
innocence does not excuse petitioner's procedural default of his claims.
Finally, petitioner objects to Judge You's recommendation that the Court decline to issue a
Certificate of Appealability ("COA"). Pet.'s Objs. 3. A COA should be issued when "jurists of reason"
would find the Court's decision "debatable." Martinez v. Shinn, 33 F.4th 1254, 1261 (9th Cir. 2022), cert.
denied, 143 S. Ct. 584 (2023). See also Slack v. McDaniel, 529 U.S. 473, 478 (2000) ("when the district
court denies a habeas petition on procedural grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue . . . if the prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists
of reason would find it debatable whether the district court was correct in its procedural ruling."). The
petitioner must show that "'the issues are debatable among jurists of reason; that a court could resolve the
issues in a different manner; or that the questions are adequate to deserve encouragement to proceed
further.'" Martinez, 33 F.4th at 1261 (quoting Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000)).
Jurists of reason would not find debatable the Court's rulings that petitioner did not
overcome his untimely filing by demonstrating equitable tolling or the procedural default of his claims.
Accordingly, the Court declines to issue a Certificate of Appealability.
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For the foregoing reasons, the Court ADOPTS Judge You's Findings and
Recommendation, ECF [64], in full. Petitioner's Petition for Writ of Habeas Corpus, ECF [2], is DENIED,
and this case is DISMISSED with prejudice. The Court declines to issue a certificate of appealability.

IT IS SO ORDERED.
DATED this 26th day of March, 2024.
______________________
Adrienne Nelson
United States District Judge

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