Fisher v. Premo
OPINION AND ORDER: The Court DENIES the Petition for Writ of Habeas Corpus (ECF No. 2 ) and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 u.s.c. § 2253(c) (2). Signed on 2/22/2017 by Judge Anna J. Brown. (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KENNETH V. FISHER,
Civil No. 6:15-cv-00463-BR
OPINION AND ORDER
JEFF PREMO, Supt.,
Oregon State Penitentiary,
KRISTINA S. HELLMAN
Assistant Federal Public Defender
1000 SW Main Street
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
JAMES A. AARON
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -
Petitioner, an inmate at the Oregon State Penitentiary, brings
this habeas corpus action pursuant to 28 U.S.C.
reasons that follow,
the Petition for Writ of Habeas Corpus
No. 2) is DENIED.
On October 19, 2007, a Clackamas County grand jury indicted
Petitioner on two counts of Attempted Murder, two counts of Assault
in the Second Degree, three counts of Unlawful Use of a Weapon, two
counts of Strangulation,
two counts of Menacing,
two counts of
Assault in the Fourth Degree, and one count of Harassment.
Exh. 102, pp. 1-4.
The charges stemmed from Petitioner's attack on
his wife and two men who came to her aid; for part of the attack
Petitioner was armed with and used a sword.
Exh. 105, pp.
Petitioner entered into a plea agreement whereby he agreed to
plead guilty to two counts each of Attempted Murder and Assault in
Resp. Exh. 103.
Resp. Exh. 104, p. 3.
Petitioner agreed to "open sentencing.''
At the change of plea hearing on March 5,
Resp. Exh. 104, pp. 2-5.
A pre-sentence investigation
was ordered and the matter was set over for sentencing.
2 - OPINION AND ORDER -
Petitioner's attorney subsequently moved to withdraw, and the
court appointed a new attorney.
his guilty pleas.
Petitioner then moved to withdraw
On June 20, 2008, the trial court held a hearing
results offered by Petitioner, the written plea agreement, the tape
Petitioner, and found Petitioner not credible.
Resp. Exh. 105, pp.
As such, the court denied Petitioner's motion.
105, p. 31.
The trial court then sentenced Petitioner to mandatory minimum
sentences of 90 months for each count of Attempted Murder and 70
months for each count of Assault in the Second Degree.
The court ordered that the sentence for one of the counts of
Assault in the Second Degree be concurrent with the others, but
otherwise imposed consecutive sentences, resulting in a 250 month
term of imprisonment.
Resp. Exh. 101.
The court entered judgment
conviction or sentence.
On April 22,
Petitioner signed a petition for state
( 11 PCR") .
evidentiary hearing, the PCR trial court denied relief.
Petitioner appealed the denial of PCR relief, but the Oregon
Court of Appeals affirmed without opinion and the Oregon Supreme
3 - OPINION AND ORDER -
Court denied review.
264 Or. App.
46, 332 P.3d
371, rev. denied, 356 Or. 510, 339 P.3d 927 (2014).
On March 17, 2015,
Petitioner mailed a Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 to this Court.
Petitioner alleges four claims of ineffective assistance of
counsel and one claim of actual innocence.
Respondent argues the
Petition must be dismissed as untimely under 28 U.S.C.
Petitioner concedes the Petition is untimely, but contends he has
established equitable tolling such that this Court may consider the
Petitioner argues he had made specific factual allegations which,
if proved to be true,
would establish his actual innocence,
requests an evidentiary hearing.
The Anti-terrorism and Effective Death Penalty Act ("AEDPA")
provides for a one year statute of limitations to file a petition
for writ of habeas corpus.
year period begins
2244 (d) (1).
judgment becomes final at the conclusion of direct review "or the
2244 (d) (1) (A).
The limitations period is tolled during the pendency of a
properly filed state post-conviction proceeding or other collateral
review. 28 U.S.C.
22.44 (d) (2); Lee v. Lampert, 610 F.3d 1125, 1127
4 - OPINION AND ORDER -
time elapsed after the conviction is
final and before state PCR petition is filed, as well as time after
the state PCR proceeding concludes and before the federal petition
both count against the one-year limitation period.
U.S.C. § 2244 (d) (2); Nino v. Galaza,
183 F.3d 1003, 1006-07
The one-year limitations period may be equitably tolled upon
a showing that:
(1) petitioner pursued his rights diligently, and
(2) some extraordinary circumstance stood in his way and prevented
Holland v. Florida,
560 U.S. 631, 632
v. Biter, No. 12-55307, 2016 WL 6803045, at *5 (9th Cir. Nov. 17,
784 F.3d 640,
extraordinary circumstance raised must be both the but-for cause
and the proximate cause of the untimeliness.
reserving equitable tolling for rare cases.
F.3d 1075, 1077
Allen v. Lewis, 255
Yeh v. Martel,
(9th Cir. 2014); Spitsyn v. Moore,
345 F.3d 796,
A petitioner "bears the burden of showing
that this extraordinary exclusion should apply to him."
Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).
Also, to avoid a miscarriage of justice, the limitation period
established in 28 U.S.C.
2244(d) (1) does not preclude "a court
from entertaining an untimely first federal habeas petition raising
a convincing claim of actual innocence."
5 - OPINION AND ORDER -
McQuiggin v. Perkins, 133
S. Ct. 1924, 1935 (2013).
To invoke this exception to the statute
a 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 1935 (quoting Schlup v. Delo,
referred to as the
"Schlup gateway," applies "only when a petition presents 'evidence
of innocence so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the
trial was free of nonharmless constitutional error."'
(quoting Schlup, 513 U.S. at 316).
The exception is to be applied
only in the ''extraordinary" or ''extremely rare'' case.
Bell, 547 U.S. 518, 538
Id. at 1936
(2006); Schlup, 513 U.S. at 320-21.
In his Petition,
Petitioner states that he "seeks equitable
tolling based on his mental illness and the fact that his trial
attorney withheld the record from him for an extensive period of
Petitioner provides no further
factual allegations or evidence detailing the nature or severity of
his mental condition,
and does not address this argument in his
Brief in Support.
The Ninth Circuit has set forth the standard for obtaining
equitable tolling based on a mental impairment, as follows:
6 - OPINION AND ORDER -
(1) First, a petitioner must show his mental impairment
was an 'extraordinary circumstance' beyond his control by
demonstrating that the impairment was so severe that
(a) petitioner was unable rationally or factually
to personally understand the need to timely file,
(b) petitioner's mental state rendered him unable
personally to prepare a habeas petition and
effectuate its filing.
(2) Second, the petitioner must show diligence in
pursuing the claims to the extent he could understand
them, but that the mental impairment made it impossible
to meet the filing deadline under the totality of the
circumstances, including reasonably available access to
749 F.3d 837,
second prong does not require literal impossibility,
proof that the mental impairment was "so debilitating that it is
the but-for cause of the delay'' in light of the totality of the
751 F.3d at 1078; Forbess,
(holding that where a
F. 3d 919,
749 F.3d at 841;
habeas petitioner can
incompetence in fact caused him to fail to meet the AEDPA filing
deadline, his delay was caused by an extraordinary circumstance .
Petitioner fails to identify the nature or severity of his
7 - OPINION AND ORDER -
rendered him unable to understand the need to
timely or that he was unable personally to prepare and file a
In fact, the record shows that Petitioner's trial
attorney had a psychologist evaluate Petitioner who concluded that
Pe ti ti oner was
aid and assist
significant depression at times that make it difficult for him to
cooperate with his attorney.
Resp. Exh. 105, pp. 2, 4, 21-22.
cooperate with counsel and participate in his own defense.
Exh. 105, p. 22.
In the absence of any evidence to contradict this
opinion or of subsequent mental evaluations, Petitioner has not set
forth sufficient facts or evidence to warrant equitable tolling
based on a mental impairment.
Petitioner similarly fails to show that his attorney's failure
to turn over his
records prevented him from timely filing his
Equitable tolling may be warranted in instances of
unprofessional attorney behavior.
661 F.3d 1001,
In cases where a petitioner claims his
attorney was the case of the untimeliness, courts must examine if
sufficiently egregious misdeed
8 - OPINION AND ORDER -
345 F.3d at 801)
(emphasis in original).
Petitioner does not identify any facts
supporting a conclusion that his attorney engaged in a sufficiently
egregious misdeed which prevented Petitioner from timely filing his
extraordinary circumstances to warrant equitable tolling of the
In his Brief in Support, Petitioner argues this Court should
consider his constitutional claims notwithstanding his untimely
Petitioner identifies three pieces of evidence
to support his claim:
(1) the results of a polygraph examination;
(2) his statements at the sentencing hearing; and (3) his testimony
in the post-conviction proceeding.
The polygraph results indicated Pe ti ti oner answered truthfully
when he answered "no'' to questions whether he swung the sword at
and whether he deliberately hit anyone with the
These results were presented to the trial court at the hearing on
Petitioner's motion to withdraw his guilty plea.
that the truthful answers were inconsistent with his guilty pleas
to Attempted Murder.
that he was
Also at the hearing,
on medications at
time of the
change of plea
hearing, that he did not want to plead guilty but counsel told him
to do it, and that counsel told him he could withdraw his plea at
9 - OPINION AND ORDER -
At the PCR trial,
Petitioner testified that while he
accepted responsibility for the ''majority of what happened'' he is
innocent of the attempted murder charges because he did not intend
to kill anyone.
Resp. Exh. 113, p. 8.
petitioner ''to support his allegations of constitutional error with
trustworthy eyewitness accounts,
evidence-that was not presented at trial."
or critical physical
U.S. 298, 324 (1995); McQuiggin, 133 S. Ct. at 1929.
"must show that it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence."
1935 (quoting Schlup, 513 U.S. at 327); Stewart v. Cate, 757 F.3d
929, 938 (9th Cir. 2014).
Here, none of the evidence submitted by
Petitioner in support of his claim is new and reliable.
Petitioner had the polygraph evidence before the change of
plea, and as noted, he submitted it to the trial court in support
of his motion to withdraw the plea, but the trial judge denied the
polygraph evidence lacks credibility.
See Brown v. Darcy, 783 F.2d
1389, 1391 (9th Cir. 1986); United States v. Cordoba, 104 F.3d 225,
polygraph evidence is not the
type of "new reliable evidence" envisioned by the Schlup court.
See Cortes v. Mills,
2011 WL 6965804 *5
10 - OPINION AND ORDER -
July 18, 2011)
standing on its own, prove that petitioner is actually innocent'')
(additional citation omitted) .
Likewise, Petitioner's self-serving
declaration that he did not intend to kill anyone is not the kind
of evidence that meets the Schlup standard.
Jackson v. Beard, Case
No. 12-CV-2479-BEN(BGS), 2014 WL 2657536, at *7 (S.D. Cal. June 12,
2014); see also Baran v. Hill, Case No. 1:07-cv-01411-CL, 2010 WL
466153, at *7 (D. Or. Feb. 9, 2010 (finding that petitioner's selfserving
evidence sufficient to provide actual innocence) .
Petitioner has failed to demonstrate that "it is more likely than
not that no reasonable juror would have convicted him in light of
Pe ti ti oner
III. Evidentiary Hearing
Petitioner seeks an evidentiary hearing to demonstrate there
are grounds for equitable tolling.
Because Pe ti ti oner has not
presented any evidence beyond a bare allegation as to his mental
Petitioner is not entitled to an evidentiary hearing.
F. 3d at 1100
11 - OPINION AND ORDER -
(holding that to evaluate whether
tolling is warranted, the district court must "find the petitioner
impairment during the filing period that would entitled him to an
evidentiary hearing"); Anderson v. Nooth, Case No. 2:14-cv-01916SB, 2016 WL 6496454, at *4 (D. Or. Aug. 12, 2016)
who merely mentions
Likewise, because Petitioner has failed to
show what an evidentiary hearing might reveal of material import to
his claim of actual innocence,
such a hearing is not warranted.
Petitioner's request for an evidentiary hearing is
For these reasons, the Court DENIES the Petition for Writ of
Habeas Corpus (ECF No. 2) and DISMISSES this action.
The Court DENIES a certificate of appealability as Petitioner
IT IS SO ORDERED.
of February, 2017.
United States District Judge
12 - OPINION AND ORDER -
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