Gable v. Williams

Filing 169

JUDGMENT: Gable's Amended Petition for Writ of Habeas Corpus (ECF No. 61 ) is GRANTED IN PART and DENIED IN PART. The Amended Petition is GRANTED on the bases that the trial court erred in excluding evidence of third-party guilt and that trial counsel provided ineffective assistance in failing to assert Gable's federal due process rights in the face of the trial court's error. The Amended Petition is DENIED on the remaining claims for relief, including Gable's claim t hat trial counsel was ineffective in failing to advise Gable of his ex post facto rights and in failing to raise an ex post facto objection to the sentencing options at the penalty phase, as well as Gable's free-standing claim o f actual innocence. Gable shall be released from custody unless the State of Oregon elects to retry him within 90 days of the date of this order. A certificate of appealability is GRANTED as to all grounds for relief discussed herein on the basis that Gable has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Signed on 4/18/2019 by Magistrate Judge John V. Acosta. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
FRANKE. GABLE.
Case No. 3:07-cv-00413-AC
Petitioner,
JUDGMENT

v.
MAX WILLIAMS,
Respondent.
ACOSTA, Magistrate Judge.
Based on the Record,
For these reasons, Gable's Amended Petition for Writ of Habeas Corpus (ECF No. 61) is
GRANTED IN PART and DENIED IN PART. The Amended Petition is GRANTED on the bases
that the trial court erred in excluding evidence of third-party guilt and that trial counsel provided
ineffective assistance in failing to assert Gable's federal due process rights in the face of the trial
court's error. The Amended Petition is DENIED on the remaining claims for relief, including
1 - JUDGMENT -

Gable's claim that trial counsel was ineffective in failing to advise Gable of his ex post facto rights
and in failing to raise an ex post facto objection to the sentencing options at the penalty phase, as
well as Gable's free-standing claim of actual innocence.
Gable shall be released from custody unless the State of Oregon elects to retry him within
90 days of the date of this order. A certificate of appealability is GRANTED as to all grounds for
relief discussed herein on the basis that Gable has made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. § 2253(c)(2).
DATED this /8~ of April, 2019.

v: Acosta
'-

Un'ted States Magistrate Judge

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