Purvine v. Nooth, No. 2:2013cv02165 - Document 27 (D. Or. 2014)
Court Description: OPINION AND ORDER. The Petition for Writ of Habeas Corpus 2 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). IT IS SO ORDERED. Signed on 11/18/2014 by Judge Michael H. Simon. (gw)
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Purvine v. Nooth Doc. 27 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MATTHEW WILLIAM PURVINE, SR., Case No. 2:13-cv-02165-SI Petitioner, v. MARK NOOTH, OPINION AND ORDER Respondent. C. Renee Manes, Assistant Federal Public Defender 101 S.W. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com SIMON , District Judge . Petitioner brings U.S . C . § 2254 this challenging habeas the convictions for Rape and Sodomy . corpus case legality of pursuant his to 28 state - court For the reasons that follow , the Petition for Writ of Habeas Corpus (#2) is dismissed . BACKGROUND On December 24 , 2003, the Washington County Grand Jury indicted petitioner on four counts of Rape in the First Degree and eight counts of Sodomy in the First Degree . 103 . Respondent ' s Exhibit Following a bench trial , petitioner was convicted of three counts of Rape in the First Degree and eight counts of Sodomy in the First Degree resulting in consecutive sentences total i ng 504 months in prison . Respondent ' s Exhibit 101 . Petitioner took a direct appeal, but the Oregon Court of Appeals affirmed the trial court ' s decision without opinion , and the Oregon Supreme Court denied review . App . 712 , (2007) . 13, 2007. 160 P . 3d 639 , rev . denied , State v . Purvine , 212 Or . 343 Or. 160 , 164 P . 3d 1161 Petitioner ' s direct Appellate Judgment issued on September Respondent ' s Exhibit 108 . On July 16 , 2009, petitioner filed for post-convict i on relief ("PCR") in Malheur County where the PCR trial court denied relief on all of his claims . Respondent ' s Exhibit 127 . of Appeals affirmed the lower court ' s decision , Supreme Court denied review. 2 - OPINION AND ORDER The Oregon Court and the Oregon Purvine v . Nooth , 252 Or. App . 580 , 291 P . 3d 214 (2013). (2012) , rev . denied , 353 Or . 203 , 296 P . 3d 1275 The PCR Appellate Judgment issued on March 11 , 2013 . On November 11 , 20 1 3 , petitioner fi l ed this 28 U. S . C . § 2254 habeas corpus case raising 12 grounds for relief . Respondent asks the court to dismiss the Petition for Writ of Habeas Corpus on the basis that petitioner concedes that his failed Petition is to timely untimely , file it. but asks Petitioner the court to excuse his default on the basis that he is actually innocent . DISCUSSION Prisoners who wish to challenge their state - court convictions in federal court must generally do so no more than one year after those convictions become final when the period for seeking direct review ends . 28 U. S . C. 2244 (d) (1) (A) . A petitioner who fails to comply with this deadline may overcome his procedural default if he is able to show that he is actually innocent of his underlying criminal conduct. 1924 , actual 1928 McQuiggin v. Perkins , --- U. S . ----, 133 S . Ct . (2013) . innocence , evidence--whether I n order to make such a gateway showing of a it petitioner be must ex·culpatory present " new scientific reliable evidence , trustworthy eyewitness accounts , or critical physical evidence- that was not presented at trial" which establishes that " it i s more likely than not that no reasonab l e juror petitioner guilty beyond a reasonable doubt ." u . s. 298 , 324 , 327 (1995). 3 - OPINION AND ORDER would have found Schlup v . Delo , 513 In this case, petitioner claims to be actually innocent of his underlying criminal conduct so as to avoid his procedural default, but he fails to identify any new evidence of his innocence that was not presented at trial. Instead , he asks the court to conduct an evidentiary hearing so he can "personally address the Court on the reasons he did not file within the statutory time period . " Support (#22 ) , p. 10 . Memo in He asserts that if the court grants his request for an evidentiary hearing , he will "testify regard i ng the facts that demonstrate his actual innocence of the various sexual offenses, including information veracity of the victim . " Petitioner ' s Schlup standard , evidentiary that calls into question Id. bare claim of innocence does not and what hearing assertion of actual the he " has might failed reveal innocence ." 1080 , 1087 (9th Cir . 2002) . to show of material Gandarela v. satisfy the import Johnson, an on his 286 F . 3d Accordingly, petitioner ' s request for an evidentiary hearing is denied . As petitioner is unable to overcome his procedural default through a gateway showing of actual innocence , the Petition for Writ of Habeas Corpus is dismissed on the basis that it is untimely . CONCLUSION For the reasons identified above , Habeas Corpus (#2) is dismissed . the Petition for Writ of The court dec l ines to issue a Certificate of Appealability on the basis that petitioner has not 4 - OPINION AND ORDER • 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 /?= 5 - OPINION AND ORDER H. Simon United States District Judge
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