IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

RODNEY ALLEN MAGUIRE, SR., 

Case No. 2:14-cv-00940-JO 

Petitioner, 

OPINION AND ORDER 

v. 

BRIDGETTE AMSBERRY, 

Respondent. 

Kristina Hellman 

Assistant Federal Public Defender 

101 S.W. Main Street, Suite 1700 

Portland, Oregon 97204 

Attorney for Petitioner 

Ellen F. Rosenblum, Attorney General 

Nick M. Kallstrom, Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, Oregon 97310 

Attorneys for Respondent 

1 - OPINION AND ORDER 
JONES, District Judge. 

Petitioner brings this 

U.S.C. § 2254 challenging 

habeas corpus 

the legality 

case pursuant to 28 

of his state-court 

convictions for Rape, Sexual Penetration, and Burglary. Because 

petitioner failed to timely file this action, his Petition for 

Writ of Habeas Corpus (#2) is dismissed. 

BACKGROUND 

On April 10, 2003, petitioner broke into a woman's 

apartment and sexually assaulted her. On December 30, 2003, 

authorities had still not developed any suspects and therefore 

deactivated the case. Petitioner's Exhibits, p. 1. They did, 

however, possess the assailant's DNA from the crime and routinely 

checked the DNA database for a match. Id. 

Two years after the commission of the crime, petitioner's 

DNA came up as a match following his arrest for the felony charge 

of Attempting to Elude. Id at 2. As a result, the Marion County 

Grand Jury charged petitioner with Rape in the First Degree, 

Unlawful Sexual Penetration in the First Degree, and Burglary in 

the First Degree. Respondent's Exhibit 102. 

A jury convicted petitioner of all three charges, and the 

trial court imposed consecutive 130 and 144-month sentences for 

the Rape and Unlawful Sexual Penetration convictions. 

Respondent's Exhibit 104, p. 18. The court also imposed a 40-

month sentence on the Burglary conviction, but ran that sentence 

concurrently to the other convictions. Id. 

Petitioner took a direct appeal, but the Oregon Court of 

Appeals affirmed the trial court's decision without opinion. 

2 - OPINION AND ORDER 
State v. Maguire, 222 Or. App. 213, 193 P.3d 629 (2008). 

Petitioner did not petition the Oregon Supreme Court for review. 

Petitioner next filed for post-conviction relief ("PCR") in 

Umatilla County where the PCR trial court denied relief. 

Respondent's Exhibit 120. The Oregon Court of Appeals affirmed 

that decision without opinion. Maguire v. Coursey, 239 Or. App. 

187, 245 P. 3d 710 (2010). Petitioner did not seek review in the 

Oregon Supreme Court, and the appellate judgment issued on 

February 7, 2011. Respondent's Exhibit 123. 

More than three years later, petitioner filed his federal 

Petition for Writ of Habeas Corpus on May 16, 2014.1 Respondent 

asks the court to dismiss the Petition because it is untimely. 

Petitioner does not dispute that his Petition is untimely, but 

asks the court to either equitably toll the statute of 

limitations due to circumstances outside his control, or excuse 

the statute of limitations failure because he is actually 

innocent. 

DISCUSSION 

I. Equitable Tolling 

Habeas corpus petitioners must generally file their federal 

challenges to their state convictions within one year of the time 

those convictions become final by the conclusion of their direct 

review. 28 U.S.C. 2244(d) (1) (A) Equitable tolling is available 

to toll the one-year statute of limitations available to 28 

l This represents the date petitioner signed his Petition. Under the "prison 

mailbox rule," a prisoner's documents are deemed filed at the moment the 

prisoner delivers them to prison authorities for forwarding to the clerk of 

the court. Saffold v. Ne,1land, 224 F.3d 1087, 1091 (9th Cir. 2000). 

3 - OPINION AND ORDER 
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 4 94, 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, he experienced a communication 

failure with his PCR appellate counsel that contributed to his 

delay in filing this case. He asks the court to conduct an 

evidentiary hearing so he can testify to the facts pertaining to 

that communication failure. Petitioner's request for an 

evidentiary hearing is denied where he fails to specifically 

allege what facts he might be able to establish at an evidentiary 

hearing that could support a favorable decision on the equitable 

tolling. See Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 

2002) (petitioner must show what evidence of material import 

would be adduced at a requested evidentiary hearing) . In the 

absence of any such factual assertions, and where petitioner 

alleges only that a communication failure "contributed" to the 

untimely filing of this case, he fails to make a plausible 

showing that this "extraordinary exclusion" should apply to him. 

Ill 

4 - OPINION AND ORDER 
II. Actual Innocence 

A petitioner who fails to comply with the one-year statute 

of limitations may also overcome the default if he is able to 

show that he is actually innocent of his underlying criminal 

conduct. McQuiggin v. Perkins, U.S. 133 S.Ct. 1924, 

1928 (2013). In order to make a gateway showing of actual 

innocence, a petitioner must present "new reliable evidence--

whether it be exculpatory scientific evidence, trustworthy 

eyewitness accounts, or critical physical evidence--that was not 

presented at trial" which establishes that "it is more likely 

than not that no reasonable juror would have found petitioner 

guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 

324, 327 (1995). 

According to petitioner, he is actually innocent of the 

underlying sexual assault because he was not 

when the attack took place. He claims he 

in Marion County 

was out of town 

assisting his father with the construction of a shed, and that 

the DNA test implicating him must have been the result of 

tampering or mistakes in the process. He does not support this 

claim of innocence with another DNA test or an affidavit from his 

father. Instead, he has provided three undated photographs which 

depict three men working on a construction project at an 

undisclosed location. 

To the extent these photographs constitute new evidence 

under Schlup, they have no probative value. Similarly, 

petitioner's blanket assertions, without any supporting evidence, 

that the State either tampered with or mishandled his DNA test 

5 - OPINION AND ORDER 
does not serve to invalidate the earlier test, nor does it 

establish his factual innocence. Where petitioner is a DNA match 

with the perpetrator of the crime, and where the "frequency of 

occurrence of an unrelated individual from a random population 

exhibiting this profile is less than 1 in 10 billion in 

Caucasians, African Americans, and Hispanics[,]" petitioner fails 

to establish his actual innocence under Schlup's standards. 

Petitioner's Exhibits, p. 14. Accordingly, petitioner is unable 

to excuse his untimely filing. 

CONCLUSION 

For the reasons identified above, 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. 

DATED this JLJ~ day of 

6 - OPINION AND ORDER