IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

TRAVIS MICHAEL EASTER, 

Petitioner, 

v. 

JERI TAYLOR, 

Respondent. 

Tonia L. Moro 

Attorney at Law P.C. 

19 South Orange Street 

Medford, Oregon 97501 

Attorney for Petitioner 

Case No. 2:14-cv-00999-HZ 

OPINION AND ORDER 

Ellen F. Rosenblum, Attorney General 

Kristen E. Boyd, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - OPINION AND ORDER 

Case 2:14-cv-00999-HZ Document 55 Filed 09/20/16 Page 1 of 13
HERNANDEZ, District Judge. 

Petitioner brings this habeas corpus case pursuant to 28 

U.S.C. § 2254 challenging the legality of his state court Sexual 

Abuse conviction from 2006 and resulting life sentence. For the 

reasons that follow, the Petition for Writ of Habeas Corpus (#2) 

is dismissed as untimely. 

BACKGROUND 

In August 1989, petitioner entered a guilty plea to Rape in 

the Second Degree in Jackson County. In exchange for his guilty 

plea, the court allowed him to enter into a deferred sentencing 

agreement whereby it required him to adhere to certain 

probationary conditions for a period of two years. If he failed 

to satisfy the probationary conditions, he would be summoned to 

appear in court for imposition of a sentence on the Rape II 

charge. However, if he satisfied the probationary conditions for 

the two-year duration, the prosecutor would so inform the court 

"and the court shall dismiss with prejudice the criminal charge 

herein." Petitioner's Exhibit 3, p. 2. Petitioner complied with 

the terms of his probation and avoided a prison sentence. 

In the summer of 2004, petitioner was indicted on four 

counts of Sexual Abuse in the First Degree pertaining to 

incidents involving two girls under the age of 14. 1 The case 

proceeded to trial in 2005 where a jury returned guilty verdicts 

as to all four charges, and the trial court sentenced petitioner 

to 150 months in prison. 

I These convictions were previously at issue in this District in Easter v. 

Franke, Case No. 2:11-cv-00906-JE. 

2 - OPINION AND ORDER 

Case 2:14-cv-00999-HZ Document 55 Filed 09/20/16 Page 2 of 13
In 2006, while incarcerated based upon the 2005 convictions, 

the Jackson County Grand Jury indicted petitioner on six counts 

of Sexual Abuse in the First Degree, and one count each of Sodomy 

in the First Degree, Unlawful Sexual Penetration in the Second 

Degree, and Rape in the First Degree. Respondent's Exhibit 102. 

Petitioner elected to enter a guilty plea to one count of Sex 

Abuse I, and signed a plea agreement wherein he acknowledged 

that, although the statutory maximum for his crime was 10 years, 

the presumptive sentence in his case was life in prison. 

Respondent's Exhibit 103. Petitioner was subject to the true 

life sentence because the presumptive sentence for a felony sex 

crime in Oregon was elevated to life without parole where the 

offender "has been sentenced for sex crimes that are felonies at 

least two times prior to the current sentence." ORS 137. 719. 

Petitioner did not take a direct appeal. 

Three years later, the Oregon Court of Appeals decided 

Gordon v. Hall, 232 Or. App. 174 (2009). In Gordon, the 

appellate court concluded that a trial attorney rendered 

ineffective assistance when he did not challenge the use of a 

suspended sentence as a qualifying predicate for purposes of 

imposing a true life sentence pursuant to ORS 137.719. 

On November 18, 2010, petitioner filed for post-conviction 

relief ( "PCR") in Umatilla County. His PCR Pe ti ti on raised 

several claims of ineffective assistance of counsel, none of 

which were predicated upon his assertion in this case that his 

198 9 probationary term was not a sentence for purposes of ORS 

137. 719. Respondent's Exhibit 106. The State moved for summary 

3 - OPINION AND ORDER 

Case 2:14-cv-00999-HZ Document 55 Filed 09/20/16 Page 3 of 13
judgment because the PCR Pe ti ti on was untimely, and petitioner 

had waived his right to seek collateral relief when he entered 

his guilty plea. Respondent's Exhibit 110. The PCR court 

granted the State's Motion for Summary Judgment and dismissed the 

case as meritless. Respondent's Exhibits 115-116. The Oregon 

Court of Appeals dismissed the subsequent appeal sua sponte as 

meri tless, and the Oregon Supreme Court denied review. 

Respondent's Exhibits 118, 122. The appellate judgment became 

effective May 29, 2012. Respondent's Exhibit 123. 

Petitioner filed this federal habeas corpus case on June 20, 

2014 raising a variety of challenges to his 2006 Sexual Abuse 

conviction and resulting life sentence. The State contends 

petitioner allowed 2, 2 61 untolled days to elapse between the 

finality of his conviction and the filing of this habeas corpus 

case, placing it well outside of the one-year statute of 

limitations contemplated by the Anti-terrorism and Effective 

Death Penalty Act ("AEDPA"). Petitioner does not dispute that 

calculation, but argues that the court should excuse his untimely 

filing because: (1) he is "actually innocent" of his sentence; 

(2) statutory and equitable tolling are appropriate where 

petitioner's trial and PCR attorneys failed to understand that he 

did not qualify for a true life sentence under ORS 137.719; and 

(3) the state PCR process was ineffective to protect his rights. 

DISCUSSION 

I. Actual Innocence 

Habeas corpus petitioners must generally file federal 

challenges to their state convictions within one year of the time 

4 - OPINION AND ORDER 

Case 2:14-cv-00999-HZ Document 55 Filed 09/20/16 Page 4 of 13
those convictions become final by the conclusion of their direct 

review. 28 U.S.C. 2244(d) (1) (A). A petitioner who fails to 

comply with this deadline may overcome such a default if he is 

able to show that he is actually innocent of his underlying 

criminal conduct. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 

(2013). In McQuiggin, the Supreme Court underscored that such an 

exception "applies to a severely confined category: cases in 

which new evidence shows 'it is more likely that not that no 

reasonable juror would have convicted [the petitioner].'" Id at 

1933 (citing Schlup v. Delo, 513 U.S. 298, 327 (1995). "Without 

any new evidence of innocence, even the existence of a 

meritorious constitutional violation is not sufficient to 

establish a miscarriage of justice that would allow a habeas 

court to reach the merits of a barred claim.'' 

at 316. 

Schlup, 513 U.S. 

Petitioner in the case at bar does not allege that he is 

innocent of the underlying criminal conduct of which he was 

convicted. Instead, he claims to be "innocent" of his true life 

sentence because his 1989 Rape II conviction resulted in a 

probationary term that is not considered a "sentence" under 

Oregon law and therefore did not constitute a qualifying 

predicate sentence for purposes of ORS 137.719. 

Neither the Supreme Court nor the Ninth Circuit has extended 

the concept of actual innocence to a non-capital sentencing 

issue, and the Ninth Circuit has recognized that a showing of 

actual innocence 

petitioner is 

requires a petitioner to demonstrate "that the 

innocent of the charge for which he is 

5 - OPINION AND ORDER 

Case 2:14-cv-00999-HZ Document 55 Filed 09/20/16 Page 5 of 13
incarcerated. " Gandarela v. Johnson, 286 F.3d. 1080, 1085 

(9th Cir. 2001) (citing Schlup, 513 U.S. at 321). In the context 

of an Oregon inmate who alleged that his consecutive sentences 

were plainly unlawful under the applicable Oregon statute, the 

Ninth Circuit concluded that the inmate could not avail himself 

of the actual innocence exception to procedural default where he 

failed to establish his factual innocence as to his crime of 

conviction. Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 

2001). 

Where the actual innocence exception to procedural default 

is firmly rooted in the fundamental question of an inmate's 

factual innocence as to the crime(s) of conviction, this court 

declines to extend the actual innocence exception to non-capital 

sentencing error. See Bousley v. United States, 523 U.S. 538, 

559 (1998) (actual innocence means factual innocence, not legal 

insufficiency); see also Sawyer v. Whitley, 505 U.S. 333, 340 

( 1992) (A "prototypical example" of actual innocence "is the case 

where the State has convicted the wrong person of the crime."); 

Johnson v. Knowles, 541 F. 3d 933, 937-38 (9th Cir. 2008) ("the 

miscarriage of justice 

extraordinary cases where 

and establishes that the 

exception is 

the petitioner 

limited 

asserts his 

to those 

innocence 

court cannot have confidence in the 

contrary finding of guilt.") (italics in original, bold added) . 

Consistent with this theme, the Supreme Court in McQuiggin 

extended the actual innocence exception only to those untimely 

petitioners who can demonstrate that in light of new evidence, it 

is more likely than not that no reasonable juror would have 

6 - OPINION AND ORDER 

Case 2:14-cv-00999-HZ Document 55 Filed 09/20/16 Page 6 of 13
convicted them. 133 S.Ct. at 1928. Jurors do not convict 

defendants of sentences. Accordingly, petitioner cannot overcome 

his untimely filing by way of his allegation of sentencing error. 

II. Statutory Tolling 

Petitioner next argues that he is entitled to statutory 

tolling pursuant to 28 U.S.C. § 2244(d)(l) because his trial 

attorney did not understand that her client had agreed to a 

sentence that was not supported by his criminal history, and 

petitioner's PCR attorneys also failed to detect the error even 

in the wake of Gordon. He concludes that he could not reasonably 

be expected to discover the issue until his appointed attorney in 

this habeas case discovered it "sometime in the Fall 2015," Memo 

in Support (#38)' p. 23, and reasons that, pursuant to 

§ 2244 (d) (1), AEDPA' s one-year limitation period was statutorily 

tolled until that time. 

Pursuant to 28 U.S.C. § 2244(d) (1), the one-year period in 

which to file for habeas corpus relief runs from the latest of: 

(A) the date on which the judgment became 

final by the conclusion of direct review or 

the expiration of the time for seeking such 

review; 

(B) the date on which the impediment to 

filing an application created by State action 

in violation of the Cons ti tut ion or laws of 

the United States is removed, if the 

applicant was prevented from filing by such 

State action; 

which the constitutional 

initially recognized by 

if the right has been 

the Supreme Court and 

(C) the date on 

right asserted was 

the Supreme Court, 

newly recognized by 

7 - OPINION AND ORDER 

Case 2:14-cv-00999-HZ Document 55 Filed 09/20/16 Page 7 of 13
made retroactively applicable to cases on 

collateral review; or 

(D) the date on which the factual predicate 

of the claim or claims presented could have 

been discovered through the exercise of due 

diligence. 

28 u.s.c. 2244(d) (1). 

Petitioner filed this habeas corpus action pro se on June 

20, 2014 alleging that he was the victim of ineffective 

assistance of counsel in a variety of particulars beyond the 

sentencing issue upon which he now focuses. Consequently, he 

cannot assert that he was effectively precluded from filing this 

case until his habeas attorney discovered his sentencing issue in 

the Fall of 2015. 

In addition, contrary to his argument here, it is evident 

from the record that petitioner discovered his sentencing claim 

without attorney assistance. Where petitioner claims his trial 

and PCR attorneys failed to advise him of the sentencing issue, 

he nevertheless specifically included it in his 2014 pro se 

Petition for Writ of Habeas Corpus which he filed before this 

court appointed an attorney to represent him: 

counsel (both trial and appellate) failed to 

otherwise object to or effectively object to, 

or assign error to the imposition of the life 

sentence pursuant to Or. Rev. Stat. 

§ 137.719. Petitioner['s] 1989 second degree 

rape conviction was deemed a predicate under 

Or. Rev. Stat. § 137.719. It was not a 

predicate because petitioner receive[d] a 

probation sentence. See Gordon v. Hall 232 

Or. App. 174 (2009) and State v. Carmickle, 

307 Or 1, 762 P2d 290 (1988). 

Petition (#2), p. 3. 

8 - OPINION AND ORDER 

Case 2:14-cv-00999-HZ Document 55 Filed 09/20/16 Page 8 of 13
Moreover, at the time petitioner entered his guilty plea, he 

knew the facts that would support his claim of sentencing error 

and, by extension, ineffective assistance of counsel. Even if 

he may not have understood the legal significance of those facts 

at that time, his awareness of the factual predicate of the claim 

was sufficient for the AEDPA's statute of limitations to commence 

running. See Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 

2001). For all of these reasons, petitioner's statutory tolling 

argument lacks merit. 

II. Equitable Tolling 

Petitioner also argues that errors by the prosecutor and his 

trial and PCR attorneys justify equitable tolling of the statute 

of limitations. Equitable tolling is available to toll the oneyear statute of limitations available to 28 U.S.C. § 2254 habeas 

corpus cases. Holland v. Florida, 560 U.S. 631, 645 (2010). A 

litigant seeking to invoke equitable tolling must establish: 

(1) that he has been pursuing his rights diligently; and (2) that 

some extraordinary circumstance prevented him from timely filing 

his petition. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). A 

petitioner who fails to file a timely petition due to his own 

lack of diligence is not entitled to equitable tolling. Tillema 

v. Long, 253 F.3d 494, 504 (9th Cir. 2001). Petitioner bears the 

burden of showing that this "extraordinary exclusion" should 

apply to him. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 

2002). 

According to petitioner, the prosecutor in his case impeded 

his ability to challenge his sentence when he: ( 1) erroneously 

9 - OPINION AND ORDER 

Case 2:14-cv-00999-HZ Document 55 Filed 09/20/16 Page 9 of 13
asserted that the 1989 rape conviction resulted in a qualifying 

predicate offense under ORS 137. 719; (2) either erroneously or 

vindictively brought additional charges in 2006 that arose from 

the same course of conduct as the 2005 convictions; (3) stated 

that two of the 2005 convictions sentenced together were separate 

predicates to a true life sentence; and (4) demanded that 

petitioner waive his direct and collateral review remedies in 

exchange for nothing. The State's filing of criminal charges and 

negotiation of a plea bargain did not constitute an extraordinary 

circumstance that rendered it impossible for petitioner to timely 

file this case. 

Petitioner's principal claim for equitable tolling appears 

to be that his trial and PCR attorneys failed to understand that 

his sentence was unlawful. He further asserts that trial 

counsel: ( 1) told petitioner he could not file a PCR petition; 

(2) abandoned petitioner when counsel advised him to enter into a 

plea agreement whereby he waived all collateral challenges, 

including any such claims against her; and (3) not only failed to 

understand that her client was not eligible for a true life 

sentence, but did not understand the law regarding 

proportionality, double jeopardy, and collateral remedy waivers. 

Generally, claims for equitable tolling based upon attorney 

error do not arise to the level of an extraordinary circumstance 

sufficient to warrant equitable tolling. See, e.g., Frye v. 

Hickman, 273 F. 3d 1144, 1146 (9th Cir. 2001) (attorney negligence 

in general does not justify equitable tolling); Holland, 560 U.S. 

at 651-52 ("garden variety" negligence does not warrant equitable 

10 - OPINION AND ORDER 

Case 2:14-cv-00999-HZ Document 55 Filed 09/20/16 Page 10 of 13
tolling) . "Justice Ali to explained his understanding of the 

logic behind this framework, reasoning that, 'the principal 

rationale is that the error of an attorney is 

constructively attributable to the client and thus is not a 

circumstance beyond the litigant's control.'" Gibbs v. Legend, 

767 F.3d 879, p. 885 (9th Cir. 2014) (quoting Holland, 560 U.S. 

657 (Alita, J., concurring)). Equitable tolling based upon 

attorney performance is only appropriate where: (1) an attorney's 

performance goes beyond error and amounts to "egregious 

professional misconduct;" or (2) the attorney abandons her client 

altogether. Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015); 

Maples v. Thomas, 132 S.Ct. 912, 923-24 (2012). 

The fact that petitioner's trial and PCR attorneys were not 

aware that his 198 9 probationary term might not qualify as a 

predicate sentence for purposes of ORS 137. 719 is, at most, a 

legal error imputed to petitioner. While petitioner contends 

that his trial attorney advised him he could not file a PCR 

action, not only did counsel dispute this during the underlying 

PCR action, 2 but such advice would not, and did not, actually 

prevent petitioner from filing for collateral relief. 

Although petitioner casts trial counsel's advice regarding 

his guilty plea as "abandonment" sufficient to warrant equitable 

tolling, nothing in the record shows any attorney abandoned 

petitioner in the sense contemplated by Maples. See Maples, 132 

S. Ct. at 918-20 (two out-of-state attorneys left their law firm 

without transferring petitioner's case to another attorney or 

2 Respondent's Exhibit 111, p. 1. 

11 - OPINION AND ORDER 

Case 2:14-cv-00999-HZ Document 55 Filed 09/20/16 Page 11 of 13
notifying their client or the state court of their withdrawal 

such that petitioner never received notice that his appeal was 

due). Moreover, where petitioner now points to the Oregon Court 

of Appeals' decision in Gordon as the point in time where it 

became clear that his 2006 sentence was invalid, 3 the fact that 

it took petitioner another five years to raise the issue pro se 

in a habeas corpus challenge shows that he failed to act 

diligently, especially where his Petition presents a variety of 

claims independent of the Gordon issue. Equitable tolling is 

therefore not appropriate. 

III. Ineffective Corrective Process 

Finally, petitioner also asserts that the state corrective 

process was ineffective to protect his rights. Where the PCR 

court dismissed the action, at least in part, because it was 

untimely, this does not render the process ineffective. Even if 

it did, petitioner not only failed to come straight to federal 

court in the face of an allegedly ineffective state corrective 

process, but also allowed two additional years to pass after the 

Oregon Supreme Court denied review in his PCR action and the 

Appellate Judgment became final. Thus even if the court were to 

toll the limitation period until his Appellate Judgment issued on 

May 29, 2012, this case would still be untimely. For all of 

these reasons, petitioner is unable to excuse his untimely 

filing. 

Ill 

3 As noted e·arlier, petitioner's Petition grounds his challenge in Oregon 

law dating back to 1983. 

12 - OPINION AND ORDER 

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CONCLUSION 

For the reasons identified above , the Petition for Writ of 

Habeas Corpus (#2) is dismissed, with prejudice, as untimely. 

The court does, however, issue a Certificate of Appealability on 

the basis that petiti oner has 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 8-0 day of September, 2016. 

13 - OPINION AND ORDER 

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