Robertson v. Cain

Filing 20

OPINION AND ORDER: For the reasons identified above, the Petition for Writ of Habeas Corpus (# 1 ) 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). Signed on 3/13/2019 by Judge Michael W. Mosman. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHN ALLEN ROBERTSON,
Case No. 3:18-cv-00886-MO
Petitioner,
OPINION AND ORDER

v.
BRAD CAIN,
Respondent.
C. Renee Manes
Assistant Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Frederick M. Boss, Deputy Attorney General
Nick M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent

1 - OPINION AND ORDER

MOSMAN, District Judge.
Petitioner brings
U.S.C.

2254

§

convictions

this

challenging

for

Burglary

habeas
the

and

corpus

case pursuant

legality

Assault.

of

For

his
the

follow, the Petition for Writ of Habeas Corpus

to

28

state-court
reasons

that

is dismissed

(#1)

because it is untimely.
BACKGROUND

In 2003,

a

Coos County jury convicted Petitioner of one

count of Burglary in the First Degree and one count of Assault in
the second degree. As a result, the trial court sentenced him to
214 months in prison. Respondent's Exhibit 101.
Petitioner took a direct appeal where the Oregon Court of
Appeals initially vacated his sentence,

but the Oregon Supreme

Court vacated that decision and remanded the case to the Oregon
Court

of

Appeals.

Respondent's

Court

of

Appeals

then

sentence,

Exhibits

affirmed

109,

Petitioner's

111.

The

Oregon

convictions

and the Oregon Supreme Court denied review.

and

State v.

Robertson, 226 Or. App. 140, rev. denied, 346 Or. 364 (2009).

Petitioner next filed for post-conviction relief

("PCR")

in

Malheur County where the PCR court denied relief on his claims.
The

Oregon

Court

written opinion,
review.

of Appeals

affirmed that

decision without

a

and the Oregon Supreme Court once again denied

Roberts v.

Nooth,

282 Or. App.

631

(2016),

rev.

denied,

361 Or. 311 (2017).
Petitioner
Corpus

with

concedes

field his

the

that

federal

assistance

his

Petition

2 - OPINION AND ORDER

of

Petition for Writ

counsel

fails

to

on

May

comply

21,

with

of Habeas
2018.
the

He

Anti-

terrorism and Effective Death Penalty Act's one-year statute of
limitations,

but asserts that his actual innocence excuses the

default.
CONCLUSION

A habeas corpus petitioner must generally file his federal
challenge to his state convictions within one year of the time
those convictions become final at the conclusion of his direct
review.

28

U.S.C.

2244 (d) (1) (A).

§

A petitioner who

fails

to

comply with this deadline may overcome such a default if he is
able

to

show

that

he

is

actually

innocent

of

his

underlying

criminal conduct. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).
In

order

to

petitioner

make

must

a

gateway

present

"new

showing

of

reliable

actual

innocence,

evidence-whether

it

a
be

exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence-that was not presented at trial"
which

establishes

reasonable

juror

that
would

"it
have

is· more
found

likely

than

petitioner

not

no

beyond

guilty

that

a

reasonable doubt." Schlup v. Delo, 513 U.S. 298, 324, 327 (1995).
Petitioner does not identify any new evidence of his actual
innocent.
hearing

Instead,
so

that

he asks the Court to conduct an evidentiary
he

can

personally

testify

to

his

innocence,

including unidentified information that would purportedly call
the complaining witness' veracity into question. Where Petitioner
"fail[s]

to show what .

. an evidentiary hearing might reveal

of material import on his assertion of actual innocence[,]" he is
not

entitled to

an

evidentiary hearing

3 - OPINION AND ORDER

and is

unable

to pass

through

the

Schlup

gateway

to

excuse

Gandarela v. Johnson, 286 F.3d 1080, 1087

his

untimely

filing.

(9th Cir. 2002).

CONCLUSION

For the reasons identified above,
Habeas Corpus

( #1)

is dismissed.

the Petition for Writ of

The Court declines to issue a

Certificate of Appealability on the basis that petitioner has not
made

a

substantial

showing

right pursuant to 28 U.S.C.

4

of
§

the

denial

of

a

constitutional

2253 (c) (2).

IT IS SO ORDERED.
DATED this

day of March, 2019.

Judge

4 - OPINION AND ORDER