Courts Reluctant to Find Actual Innocence

The maze of Federal post-conviction habeas corpus can be a procedural nightmare as illustrated in a February 13, 2014 decision by the Ninth Circuit Court of Appeals in Vosgien v. United States.

In 2006, Kelly Vosgien entered a guilty plea in an Oregon state court to three counts of “compelling prostitution,” three counts of rape, three counts of sodomy and one count of sexual abuse. These offenses involved his daughter and another minor. The state court sentenced Vosgien to more than fifty-five years in prison with the sentence for compelling prostitution to run concurrently with the sentence for the rape counts. He did not file a direct appeal.

After Vosgien’s conviction, Oregon courts clarified the purpose of the “compelling prostitution” statute; namely, that the sexual favors be procured from a third party, not the defendant. Vosgien had been charged, and pled guilty to, procuring sexual favors from the victim-daughter only for himself.

In 2008, Vosgien filed a post-conviction petition in the Oregon state courts. His primary claim for relief was ineffective assistance of counsel. The state trial court denied the petition as being meritless. The state’s Court of Appeals and Supreme Court refused to review the trial court’s decision.

Vosgien then turned to the local Federal district court for habeas corpus relief. His petition was filed pursuant to 28 U.S.C. § 2254. He raised the same constitutional claims he had presented in state court. He immediately encountered a difficult procedural hurdle. His claims were timed barred under § 2244(d)(1)(A)—the provisions of the 1996 Anti-Terrorism and Effective Death Penalty Act which require that a state prisoner file any Federal habeas corpus petition within one year after his/her conviction becomes final on direct appeal.

Vosgien sought to excuse this procedural bar by demonstrating his “actual innocence” on the compelling prostitution charges. He relied upon the 1995 U.S. Supreme Court decision in Schlup v. Delo which held that a state prisoner who has procedurally defaulted a constitutional claim that raises “sufficient doubt about [his] guilt [sufficient] to undermine confidence in the result of the trial without the assurance that the trial was untainted by constitutional error,” can surmount the procedural bar created by the default (such as the untimeliness bar in § 2244) and a Federal district court is permitted to hear the constitutional claim. Schlup established what is known as the “gateway” for actual innocence claims.

But a U.S. Magistrate Judge was not impressed with Vosgien’s claim of actual innocence based on the Oregon courts’ clarification of the compelling prostitution statute. She denied Vosgien passage through the gateway, citing the 1998 U.S. Supreme Court decision in Bousley v. United States. In that decision, the Court held: “In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” In other words, according to the magistrate’s reading of Bousley, when a defendant has been charged with multiple offenses, he must establish his actual innocence on all the charges before he can pass through the Schlup gateway on one claim of actual innocence.

The magistrate explained: “It logically follows that a petitioner who actually pleaded guilty to nine crimes with respect to a single victim, but who can make a showing of actual innocence as to only the three least serious crimes of conviction, is not entitled to pass through Schlup’s gateway of actual innocence.”

The district court agreed, dismissing Vosgien’s Federal habeas corpus petition with prejudice for being untimely under § 2244(d) (1) (A).

Fortunately, the Ninth Circuit was not of the same mind. It reversed the district court’s dismissal order, finding that the court should hear the merits of Vosgien’s actual innocence claims on the compelling prostitution charges but not on the other charges (rape, sodomy, sexual abuse). The appeals court began its analysis with the observation the Supreme Court made last year in McQuiggin v. Perkins which reaffirmed the Shulup principle that a federal habeas petitioner can overcome a procedural default with a claim of actual innocence, including a failure to comply with a statute of limitations. The court added that a claim of actual innocence under Schlup is “not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”

The Ninth Circuit found that Oregon’s subsequent clarification of the compelling prostitution statute effectively demonstrated Vosgien’s “actual innocence” on the three counts of that offense to which he pled guilty.

On December 18, 2013, the Texas Court of Criminal Appeals had an opportunity to examine a Schlup-type case in Ex parte Villegas. In that case Daniel Villegas was convicted of capital murder and sentenced to life imprisonment. He filed a habeas corpus petition pursuant to Texas Code of Criminal Procedure, Art. 11.07, raising claims that he was denied effective assistance of counsel and that he is actually innocent. The trial court conducted a series of hearings and made findings of fact and conclusions of law which were forwarded to the TexCrimApp. Besides finding that Villegas’s counsel had been ineffective, the trial court made an “actual innocence” finding under Schlup. While the TexCrimApp agreed Villegas was entitled to relief on the ineffective assistance of counsel claim, the court disagreed with the trial court’s finding that Villegas had shown he is actually innocent. The court explained:

“ … In a Schlup actual-innocence claim, evidence demonstrating innocence is a prerequisite the applicant must satisfy to have an otherwise barred constitutional claim considered on the merits. In this case, the trial court found that [the] Sixth Amendment ineffective assistance of counsel violations, combined with the cumulative evidence of innocence, showed that Applicant was actually innocent. Because Applicant’s ineffective assistance of counsel claims are not procedurally barred as subsequent, a Schlup innocence claim dependent on them is improper. We further find that Applicant has not shown that new facts ‘unquestionably establish’ his innocence. However, we agree Applicant has demonstrated that counsel was ineffective for not presenting evidence of possible alternative perpetrators and for not discovering and presenting evidence that would have allowed the jury to give effect to the voluntary confession jury instruction submitted in this case.” So,

despite the trial court’s finding of actual innocence, the Court decided, for procedural reasons, to only set Villegas’ judgment aside due to ineffective assistance of counsel and send him back to the trial court to face the charges again.

The decisions by the U.S. magistrate and the district court in the Vosgien case and the Court of Criminal Appeals decision in the Villegas case illustrate both the reluctance of many courts to open the Schlup gateway and the difficulty a state prisoner faces to secure passage through that gateway.