Vosgien v. Kilmer, No. 12-35397 (9th Cir. 2014)
Annotate this CasePetitioner pled guilty in Oregon state court to three counts of compelling prostitution, three counts of rape, three counts of sodomy, and one count of sexual abuse. On appeal, petitioner challenged the district court's determination that he failed to demonstrate actual innocence of the compelling prostitution counts under Schlup v. Delo. The court concluded that petitioner was actually innocent of compelling prostitution where he induced his daughter to have sex with him, not a third party, in exchange for money and cigarettes. The court held that his untimeliness as to these counts was excused. However, petitioner failed to demonstrate actual innocence under Schlup with respect to the other counts on which he was convicted and his petition was therefore untimely as to those counts. Accordingly, the court reversed in part, affirmed in part, and remanded.
Court Description: Habeas Corpus. The panel reversed in part and affirmed in part the district court’s dismissal of an untimely 28 U.S.C. § 2254 habeas corpus petition claiming actual innocence as to some of the counts of conviction, and remanded for further proceedings as to those counts. Petitioner pled guilty to compelling prostitution, rape, sodomy, and sexual abuse of his daughter and another minor. He filed an untimely § 2254 petition, claiming actual innocence to excuse its untimeliness and citing Oregon case law clarifying that the crime of compelling prostitution requires that sexual favors be procured not for the defendant but for a third party. It was undisputed that petitioner sought sexual favors only for himself. The panel reversed the district court’s dismissal as to the compelling prostitution counts because actual innocence excused the untimeliness of the § 2254 petition. The panel instructed that, on remand, the district court should review the merits of the constitutional claims as to only those prostitution counts. The panel affirmed the district court’s dismissal as to the remaining counts of conviction because petitioner did not claim actual innocence as to them.
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