Fisher v. Premo

Filing 34

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
Petitioner,
OPINION AND ORDER

v.
JEFF PREMO, Supt.,
Oregon State Penitentiary,
Respondent.
KRISTINA S. HELLMAN
Assistant Federal Public Defender
1000 SW Main Street
Suite 1700
Portland, OR 97204
Attorney for Petitioner
ELLEN F. ROSENBLUM
Attorney General
JAMES A. AARON
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -

BROWN, Judge.
Petitioner, an inmate at the Oregon State Penitentiary, brings
this habeas corpus action pursuant to 28 U.S.C.
reasons that follow,

§

2254.

For the

the Petition for Writ of Habeas Corpus

(ECF

No. 2) is DENIED.
BACKGROUND

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.

Resp.

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.

Resp.

Exh. 105, pp.

33-34.
Petitioner entered into a plea agreement whereby he agreed to
plead guilty to two counts each of Attempted Murder and Assault in
the

Second

counts.

Degree

in

Resp. Exh. 103.

Resp. Exh. 104, p. 3.
2008,

exchange

the

Petitioner.

trial

judge

for

dismissal

of

the

remaining

Petitioner agreed to "open sentencing.''

At the change of plea hearing on March 5,
engaged

in

Resp. Exh. 104, pp. 2-5.

an

extensive

colloquy

A pre-sentence investigation

was ordered and the matter was set over for sentencing.

2 - OPINION AND ORDER -

with

Id.

Petitioner's attorney subsequently moved to withdraw, and the
court appointed a new attorney.
his guilty pleas.
on

Petitioner then moved to withdraw

On June 20, 2008, the trial court held a hearing

Petitioner's motion.

The

trial

judge

considered polygraph

results offered by Petitioner, the written plea agreement, the tape
recording

of

the

change

of

plea

hearing,

and

Petitioner, and found Petitioner not credible.
20-31.

testimony

from

Resp. Exh. 105, pp.

As such, the court denied Petitioner's motion.

Resp. Exh.

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.
101.

Resp. Exh.

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

on

Petitioner

not

June

27,

2008.

did

directly

appeal

his

conviction or sentence.
On April 22,

2010,

post-conviction relief

Petitioner signed a petition for state
( 11 PCR") .

Resp.

Exh.

106.

Following an

evidentiary hearing, the PCR trial court denied relief.
107.

Resp. Exh.

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.

Fisher v.

264 Or. App.

Premo,

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.
2).

(ECF No.

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.

§

2244.

Petitioner concedes the Petition is untimely, but contends he has
established equitable tolling such that this Court may consider the
merits

of

his

constitutional

claims.

In

the

alternative,

Petitioner argues he had made specific factual allegations which,
if proved to be true,

would establish his actual innocence,

and

requests an evidentiary hearing.
LEGAL STANDARDS

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.
statute,

the

one

28

u.s.c.

year period begins

§

to

2244 (d) (1).
run

Under the

from the

date

the

judgment becomes final at the conclusion of direct review "or the
expiration

of

the

time

for

seeking

such

review."

Id.

§

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 -

(9th Cir.

2010).

However,

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
is filed,

both count against the one-year limitation period.

U.S.C. § 2244 (d) (2); Nino v. Galaza,

183 F.3d 1003, 1006-07

28
(9th

Cir. 1999).
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
timely filing.

Holland v. Florida,

560 U.S. 631, 632

(2010); Fue

v. Biter, No. 12-55307, 2016 WL 6803045, at *5 (9th Cir. Nov. 17,
2016);

Luna v.

Kernan,

784 F.3d 640,

646

(9th Cir.

2015).

The

extraordinary circumstance raised must be both the but-for cause
and the proximate cause of the untimeliness.
F.3d 798,

800

(9th Cir.

2001).

The

inquiry sets

reserving equitable tolling for rare cases.
F.3d 1075, 1077
799

(9th Cir.

Allen v. Lewis, 255
high bar,

Yeh v. Martel,

(9th Cir. 2014); Spitsyn v. Moore,

2003).

a

751

345 F.3d 796,

A 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).
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).
of limitations,

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,

513 U.S.

This exception,

298,

327

(1995)).

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

House v.

(2006); Schlup, 513 U.S. at 320-21.
DISCUSSION

I.

Equitable Tolling

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
time,

thereby

remedies."

delaying

(ECF No.

2, p.

Petitioner's
11.)

ability

to

seek

state

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
either
(a) petitioner was unable rationally or factually
to personally understand the need to timely file,
or
(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
assistance.
Yeh,

751

Forbess

F.3d at
v.

1078

(quoting Bills,

749 F.3d 837,

Franke,

628

840-41

F.3d at

(9th Cir.

1099-100);

2014).

second prong does not require literal impossibility,

The

but rather

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
circumstances.
see

also

Laws

Yeh,
v.

751 F.3d at 1078; Forbess,

Lamarque,

(holding that where a

351

F. 3d 919,

749 F.3d at 841;

923

habeas petitioner can

(9th Cir.

show that

2003)

"mental

incompetence in fact caused him to fail to meet the AEDPA filing
deadline, his delay was caused by an extraordinary circumstance .
and

the

deadline

should

be

equitably

tolled."

(internal

quotations omitted)).
Petitioner fails to identify the nature or severity of his
impairment

and

has

made

no

7 - OPINION AND ORDER -

showing

that

the

alleged

"mental

condition"

rendered him unable to understand the need to

file

timely or that he was unable personally to prepare and file a
habeas petition.

In fact, the record shows that Petitioner's trial

attorney had a psychologist evaluate Petitioner who concluded that
Pe ti ti oner was

able

to

aid and assist

in his

defense

despite

significant depression at times that make it difficult for him to
cooperate with his attorney.
psychologist
competent

further

range

proceedings

concluded

of

against

Resp. Exh. 105, pp. 2, 4, 21-22.
that

Petitioner

functioning,
him,

and

had

was

adequately
the

within

understood

capacity

to

the
the

adequately

cooperate with counsel and participate in his own defense.
Exh. 105, p. 22.

The

Resp.

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
petition.

records prevented him from timely filing his

Equitable tolling may be warranted in instances of

unprofessional attorney behavior.
1011

(9th Cir.

2011).

Doe v.

Busby,

661 F.3d 1001,

In cases where a petitioner claims his

attorney was the case of the untimeliness, courts must examine if
the

alleged

malfeasance

failure
or

representation."

is

failing
Id.

"a

sufficiently egregious misdeed

to

at 1012

8 - OPINION AND ORDER -

fulfill

a

basic

(citing Spitsyn,

duty

of

like

client

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
habeas

Accordingly,

petition.

Petitioner

has

not

established

extraordinary circumstances to warrant equitable tolling of the
limitation period.
II.

Actual Innocence

In his Brief in Support, Petitioner argues this Court should
consider his constitutional claims notwithstanding his untimely
filing

because

he

Attempted Murder.

is

actually

innocent

of

the

convictions

of

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
anyone

and whether he deliberately hit anyone with the

sword.

These results were presented to the trial court at the hearing on
Petitioner's motion to withdraw his guilty plea.

Counsel argued

that the truthful answers were inconsistent with his guilty pleas
to Attempted Murder.
that he was

Also at the hearing,

on medications at

the

Petitioner testified

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,

anytime.

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.
To

be

Resp. Exh. 113, p. 8.

credible,

a

claim

of

actual

innocence

requires

a

petitioner ''to support his allegations of constitutional error with
new

reliable

evidence,

evidence-whether

it

be

exculpatory

trustworthy eyewitness accounts,

evidence-that was not presented at trial."

scientific

or critical physical
Schlup v.

U.S. 298, 324 (1995); McQuiggin, 133 S. Ct. at 1929.

Delo,

513

Moreover, he

"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, 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
motion

after

considering

the

polygraph

polygraph evidence lacks credibility.

evidence.

Moreover,

See Brown v. Darcy, 783 F.2d

1389, 1391 (9th Cir. 1986); United States v. Cordoba, 104 F.3d 225,
227-28

(9th Cir.

1997).

As such,

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 -

(D. Or.,

July 18, 2011)

("[a]ssuming

a

polygraph

has

some probative

value,

it

cannot,

standing on its own, prove that petitioner is actually innocent'')
(citing Hatch

v.

215

Lambert,

(additional citation omitted) .

Fed.

Appx.

614

(9th Cir.

2006))

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

and

unsupported

statements

were

not

new

and

reliable

evidence sufficient to provide actual innocence) .
Viewing

the

polygraph

evidence

with

the

other

evidence,

Petitioner has failed to demonstrate that "it is more likely than
not that no reasonable juror would have convicted him in light of
the

new

evidence. "

Pe ti ti oner
justice"

has
to

not

exempt

Schlup,

513

established
his

claims

U.S.

a

at

327.

"fundamental

from

the

§

Accordingly,
miscarriage

2244

statute

of
of

limitations.
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
condition,
See Bills,

Petitioner is not entitled to an evidentiary hearing.
628

F. 3d at 1100

11 - OPINION AND ORDER -

(holding that to evaluate whether

tolling is warranted, the district court must "find the petitioner
has made

a

non-frivolous

showing that

he

had a

severe mental

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

a

evidentiary hearing").

mental

condition

is

("[a] petitioner

not

entitled to

an

Likewise, because Petitioner has failed to

show what an evidentiary hearing might reveal of material import to
his claim of actual innocence,
Gandarela

v.

Accordingly,

Johnson,

286

such a hearing is not warranted.

F.3d

1080,

1087

(9th

Cir.

2002).

Petitioner's request for an evidentiary hearing is

denied.
CONCLUSION

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
has

not

made

a

substantial

constitutional right.

See 28

showing

u.s.c.

§

of

the

denial

2253(c) (2).

IT IS SO ORDERED.
DATED this

;;,')(II.}- day

of February, 2017.

United States District Judge

12 - OPINION AND ORDER -

of

a