NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREDRICK EARL BAIN, 

Petitioner-Appellant, 

 v. 

SID THOMPSON, Oregon State Board of 

Parole and Post-Prison Supervision; 

DEBBIE HUST, Lieutenant, Malheur 

County Sheriff Parole and Probation 

Division; BRIAN WOLFE, Malheur County 

Sheriff, 

Respondents-Appellees.

No. 18-35683 

D.C. No. 3:16-cv-00458-MA 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Malcolm F. Marsh, District Judge, Presiding

Argued and Submitted June 3, 2019

Portland, Oregon

Before: MURGUIA and HURWITZ, Circuit Judges, and ZIPPS,** District Judge.

Petitioner was convicted of sexually abusing his daughter. More than seven 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jennifer G. Zipps, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

AUG 19 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

years after the trial, Petitioner’s daughter recanted her testimony. Petitioner filed 

an untimely habeas petition arguing that his trial counsel was ineffective and that 

he could show actual innocence. The district court found that Petitioner failed to 

satisfy the gateway standard set forth in Schlup v. Delo, 513 U.S. 298 (1995), and 

denied his petition as untimely. We review de novo the district court’s denial of 

the petition, Leavitt v. Arave, 383 F.3d 809, 815 (9th Cir. 2004), and we affirm. 

Petitioner’s untimeliness is excused if he is able to present new evidence of 

innocence that is “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[.]” Schlup, 513 U.S. at 316; see also McQuiggin v. Perkins, 

569 U.S. 383, 386 (2013).

Petitioner’s new evidence consists of: (1) Petitioner’s daughter’s recantation,

(2) expert testimony regarding children’s memories, and (3) Petitioner’s passing 

results from three different polygraph tests. We consider this new evidence along 

with the evidence that was presented at trial. See House v. Bell, 547 U.S. 518, 539 

(2006).

We conclude that the recantation is substantially weakened by the 

surrounding context, including: the delay between the initial allegations and the 

recantation, the general nature of the recantation itself, the daughter’s contact with 

Petitioner and his family after the trial while Petitioner was in custody, and 
3 

Petitioner’s family’s direct statements and conversations with the daughter 

regarding her past allegations. The jury heard much of the information presented 

by the new expert witnesses. Finally, we also conclude that Petitioner’s polygraph 

results are insufficient alone to satisfy Petitioner’s burden under Schlup. United 

States v. Scheffer, 523 U.S. 303, 309 (1998) (stating that “there is simply no 

consensus that polygraph evidence is reliable”). Looking holistically at all the 

evidence, we cannot find that “it is more likely than not that no reasonable juror 

would have convicted [Petitioner] in the light of the new evidence.” Schlup, 513 

U.S. at 327. 

The district court denied Petitioner an evidentiary hearing. We review this 

denial for abuse of discretion. Smith v. Baldwin, 510 F.3d 1127, 1137 (9th Cir. 

2007) (en banc). The district court considered all the evidence presented by 

Petitioner, including Petitioner’s daughter’s recantation, the new expert witness 

testimony, Petitioner’s polygraph results, and the surrounding context of the 

daughter’s initial allegations and her recantation.1 The district court did not abuse 

1 We respectfully disagree with our dissenting colleague who relies on Jones v. 

Taylor, 763 F.3d 1242 (9th Cir. 2014), as an instruction to district courts to hold an 

evidentiary hearing whenever a Schlup gateway determination is based on 

credibility findings. Jones simply states that, when considering freestanding 

claims of actual innocence, district courts should holistically review “‘all the 

evidence’ and its likely effect on reasonable jurors applying the reasonable-doubt 

standard.’” Id. at 1246 (citation omitted). Jones does not require district courts to 

hold an evidentiary hearing in the context presented here; instead, Jones teaches

that, when faced with a recantation, the reviewing court will consider the 
4 

its discretion by denying Petitioner an evidentiary hearing. 

AFFIRMED. 

 

recantation “in the context in which [the witness] recanted when assessing the 

likely impact it would have on jurors.” Id. at 1248. This is what the district court 

did here, and we cannot find that it abused its discretion in doing so without also 

holding a hearing. See Estate of Diaz v. City of Anaheim, 840 F.3d 592, 601 (9th 

Cir. 2016) (stating that under the abuse of discretion standard, “we reverse only 

when we are ‘convinced firmly that the reviewed decision lies beyond the pale of 

reasonable justification under the circumstances.’” (citation omitted)); see also

United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (holding that the 

district court abuses its discretion only if 1) it made an error of law, and 2) its 

factual finding was “illogical, implausible, or without support in inferences that 

may be drawn from the record.”).
Bain v. Thompson, No. 18-35683 

HURWITZ, Circuit Judge, dissenting:

In determining that Bain could not pass through the actual innocence 

“gateway” of Schlup v. Delo, 513 U.S. 298, 316 (1995), the district court improperly 

made credibility findings without the benefit of an evidentiary hearing. I would 

remand for that hearing, and therefore respectfully dissent. 

Bain was convicted of sexual abuse almost entirely on the basis of statements 

made by his daughter, JB; the statements were introduced at trial through the 

testimony of Bain’s ex-wife and a police officer. But JB, who was 7 years old when 

the incident allegedly occurred, is now 18, and has now firmly stated under oath that 

the abuse “never happened.” Bain has also taken and passed three lie detector tests, 

each time denying the abuse. And, he has proffered expert opinions questioning the 

reliability of the police interview of JB. If all this evidence is credited, it would meet 

the demanding Schlup standard. 

The district court, however, made its own credibility determinations about this 

evidence without an evidentiary hearing. It speculated, for example, that a 

hypothetical finder of fact could conclude “that JB’s current recollection is the 

product of family influence.” But, JB denied that her family influenced her. The 

district judge, although professing not to do so, thus effectively found her testimony 

about lack of influence not credible. This case is thus not at all like Stewart v. Cate,

FILED

AUG 19 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
which the district court cited in denying an evidentiary hearing, because in that case

the “district court concluded that even if it fully credited Stewart’s new 

evidence . . . , Stewart would not be entitled to the relief requested.” 757 F.3d 929,

942 (9th Cir. 2014). 

The district court similarly erred in summarily dismissing the polygraph tests 

as “unreliab[le]” without hearing from the examiners or conducting a Daubert 

hearing. See United States v. Cordoba, 104 F.3d 225, 227–28 (9th Cir. 1997)

(finding that polygraph tests are not per se inadmissible); Tennison v. Henry, 246 

F.3d 676, 676 (9th Cir. 2000) (mem.) (considering polygraph evidence in support of 

actual innocence claim). And, in rejecting the proffered expert opinion, the court 

concluded that a juror might not be persuaded by it because it was in the form of a 

declaration, and therefore not subject to cross-examination or a chance to make a 

credibility determination. But that is precisely the point; if the question of whether 

the Schlup gateway is satisfied turns on credibility determinations, those 

determinations should not be made without an evidentiary hearing. That is the 

teaching of Jones v. Taylor, 763 F.3d 1242, 1248–49 (9th Cir. 2014). 

As in Jones, the district court might well, after hearing from the witnesses, 

find them less than credible. But it should not have done so without an evidentiary 

hearing. I therefore respectfully dissent.