Parmer v. Premo

Filing 44

ORDER - The Court ADOPTS Judge Beckerman's Findings and Recommendation (ECF 39 ), as supplemented herein. Petitioner's Amended Habeas Corpus Petition (ECF 34 ) is DENIED on the basis that it is untimely and Petitioner procedurally defaulted his available state remedies. The Court also 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 6/20/2018 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JAMES MICHAEL PARMER,
Plaintiff,

Case No. 6:16-cv-1090-SB
ORDER

v.
JEFF PREMO, Superintendent,
Respondent.
Michael H. Simon, District Judge.
United States Magistrate Judge Stacie Beckerman issued Findings and Recommendation
in this case on April 19, 2018. ECF 39. Judge Beckerman recommended that petitioner’s petition
challenging his convictions under 28 U.S.C. § 2254 be denied as untimely because Petitioner has
not made the showing of actual innocence necessary to qualify for an equitable exception to the
one-year statute of limitations.
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate’s findings and recommendations, “the court
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
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For those portions of a magistrate judge’s findings and recommendations to which neither
party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474
U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate’s report to which no objections are filed.”); United
States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court
must review de novo magistrate’s findings and recommendations if objection is made, “but not
otherwise”). Although in the absence of objections no review is required, the Act “does not
preclude further review by the district judge[] sua sponte . . . under a de novo or any other
standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ.
P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate
judge’s recommendations for “clear error on the face of the record.”
Petitioner timely filed an objection (ECF 41), to which Respondent responded. ECF 42.
Petitioner objects to the portion of Judge Beckerman’s recommendation finding that Petitioner
had not made a “gateway” showing of actual innocence because he offered no new reliable
evidence that was not presented at trial. Judge Beckerman correctly found that that Petitioner
provided only a recitation of the evidence presented during a suppression hearing concerning the
admissibility of his confession and certain evidence presented at trial in his original and amended
petition. In his objection to the F&R, Petitioner now argues that the “new” reliable evidence of
his innocence is the “developing science” that, since Petitioner’s 2007 trial, has exposed the
coercive techniques used by police officers to extract confessions and the pervasive problem of
false confessions. Plaintiff cites several journal articles on the topic of false confessions, many of
which note the prevalence of false confessions in DNA exoneration cases, but none of which
speak to the likelihood that any given confession is false.

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It is doubtful whether academic studies exploring the unreliability of confessions qualify
as “new reliable evidence” for the purposes of Schlup v. Delo’s gateway innocence showing. 513
U.S. 298, 324 (1995). Under Schlup, petitioners must make a gateway showing of actual
innocence by presenting “new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.”
Id. Though Schlup’s illustrative list of “new reliable evidence” may not be exhaustive, academic
studies of the sort presented by Petitioner are qualitatively different from the categories of
evidence contemplated by Schlup. The journal articles do not, and cannot, speak to Petitioner’s
actual innocence, but merely raise questions as to the reliability of confessions in the abstract.
The articles that Petitioner cites, moreover, do not indicate how likely it is that any given
confession is false, but merely suggest that false confessions are more prevalent than previously
assumed. See, e.g., Richard A. Leo, False Confessions: Causes, Consequences, and Implications
37 J. Am. Acad. Psychiatry & L. 332, 333 (2009) (arguing that most lay people hold the
incorrect belief “that an innocent person will not falsely confess to police unless he is physically
tortured or mentally ill.”). Even if these studies qualify as “scientific evidence,” they are not
“exculpatory” because they do not relate to the specific facts of Petitioner’s case or even provide
information that would allow a factfinder to evaluate the reliability of Petitioner’s confession.
In Souliotes v. Hedgpeth, for example, the “new evidence” was “exculpatory scientific
evidence that the [chemicals] found on Petitioner’s shoes and at the fire scene are distinguishable
and provide no evidence that Petitioner was physically present at the fire scene.” 2012
WL 1458087, at *17 (E.D. Cal. Apr. 26, 2012), report and recommendation adopted, 2012
WL 2684972 (E.D. Cal. July 6, 2012). In that case, the “new evidence” was a scientific analysis
of physical evidence from the petitioner and the scene of the crime that directly supported the

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petitioner’s innocence, not general academic studies indicating the potential unreliability of
certain evidence. Moreover, the state stipulated that such evidence was new “exculpatory
scientific evidence” under Schlup. The court in Souliotes also considered certain scientific
advancements in arson investigation, and concluded that the fire investigators’ trial conclusions
could no longer be considered correct, but it did so in the process of reviewing “all the evidence
implicating Petitioner’s guilt, not just the new evidence.” Id. The “new evidence” was limited to
the evidence of the chemicals. Souliotes therefore does not, as Petitioner contends, support
Petitioner’s argument that general academic studies constitute “new reliable evidence” under
Schlup. The other case that Petitioner cites in support of his contention that such studies can
qualify as new reliable evidence, Young v. Conway, 698 F.3d 69, 78-85 (2d Cir. 2012), is
concerned with the admissibility of certain unreliable testimony, not Schlup or showings of
actual innocence and is therefore inapposite to this case.
Even assuming such studies qualify as “new reliable evidence” under Schlup, Petitioner
has nevertheless failed to meet his burden. The new evidence must be so significant that when all
of the evidence is viewed together, it becomes more likely than not that no other reasonable juror
would have found the petitioner guilty beyond a reasonable doubt. McQuiggin v. Perkins, 569
U.S. 383, 386 (2013). Importantly, the question is not whether the new evidence would have
resulted in Petitioner’s confession being suppressed for unreliability, but whether any reasonable
juror would have convicted, having been presented with “new evidence” of the unreliability of
confessions, in addition to all other evidence presented at trial. House v. Bell, 547 U.S. 518, 537
(2006).
At trial, a detective testified that Petitioner confessed in an interview to having sexually
abused the victims. ECF 17-1 at 32-33. Anatomical drawings that one victim had marked to

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show where Petitioner had touched him, and which generally corroborated Petitioner’s
confession as recounted by the detective, were also introduced in evidence. ECF 17-2 at 9-12.
The state also submitted as evidence letters that Petitioner wrote to the victims, which the
detective encouraged Petitioner to write following Petitioner’s confession. Id. at 32-35. Petitioner
wrote to one victim, “I have come to understand that what I did was wrong. I should never have
touched you in any way,” Id. at 32, and to the other “I did something with you that was wrong,
and should never have done,” Id. at 33. Petitioner also testified at his trial, denying that he
sexually abused the victims and denying that he admitted to the detective that he abused them.
ECF 17-1 at 39. Rather, Plaintiff said, he merely capitulated to the detective’s accusations
because he was physically intimidated by the detective. Id. at 39. Petitioner further testified that
he wrote the letters only because he was terrified of the detective and did not want reprisals. Id.
The judge at Petitioner’s bench trial thus already had evidence that Petitioner’s
confession was unreliable, but nevertheless found the evidence of Petitioner’s guilt convincing.
The studies regarding the reliability of confessions are at most cumulative to Petitioner’s
testimony that he was intimidated into confessing. Petitioner was nevertheless found guilty
beyond a reasonable doubt, and there is no reason to believe that further information on the
prevalence of false confessions would have altered this outcome. The anatomical drawings,
detective’s testimony, and letters written by Petitioner are sufficient for a reasonable juror to find
that Petitioner was guilty beyond a reasonable doubt, even in light of recent studies on the
prevalence of false confessions. The Schlup actual innocence gateway is reserved for “truly
extraordinary” cases, 513 U.S. at 327, and the evidence that Petitioner presents does not meet
that very high bar. Because Petitioner presents only journal articles as new evidence of

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Petitioner’s innocence, an evidentiary hearing on Petitioner’s gateway showing of actual
innocence is not warranted.
The Court ADOPTS Judge Beckerman’s Findings and Recommendation (ECF 39), as
supplemented herein. Petitioner’s Amended Habeas Corpus Petition (ECF 34) is DENIED on the
basis that it is untimely and Petitioner procedurally defaulted his available state remedies. The
Court also 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).
IT IS SO ORDERED.
DATED this 20th day of June, 2018.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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