IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JAMES DONALD JACKSON, JR.,

Case No. 2:13-cv-00798-ST

Petitioner,

v.

MARK NOOTH,

FINDINGS AND RECOMMENDATION

Respondent.

James Donald Jackson, Jr.,

6341425

Eastern Oregon Correctional Institution

2500 Westgate

Pendleton, OR 97801-9699

Attorney for Petitioner

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 - FINDINGS AND RECOMMENDATION

Case 2:13-cv-00798-ST Document 65 Filed 04/22/14 Page 1 of 9
STEWART, Magistrate Judge.

Petitioner brings this habeas corpus case pursuant to 28U.S.C.

§ 2254 challenging the legality of his 1995 state court convictions

of Sexual Abuse, Rape, and Coercion. Because petitioner failed to

file his Petition for Writ of Habeas Corpus within the applicable

statute of limitations, the Petition should be dismissed.

BACKGROUND

Petitioner was convicted in 1995 of Rape in the First Degree,

Sexual Abuse in the First Degree, Sexual Abuse in the Second

Degree, and Coercion. The trial court found him to be a Dangerous

Offender under Oregon law and sentenced him to 698 months in

prison. Respondent’s Exhibit 101. 

Petitioner filed a direct appeal, and the Oregon Court of

appeals affirmed the trial court’s decision without opinion. State

v. Jackson, 141 Or. App. 597, 918 P.2d 459 (1996). Petitioner

declined to file a petition for review with the Oregon Supreme

Court, and his direct appeal became final on October 4, 1996. 

Respondent’s Exhibit 104.

Approximately two years later, on October 2, 1998, petitioner

filed for post-conviction relief (“PCR”) in Malheur County, but the 

PCR trial court denied relief on all of his claims. Respondent’s

Exhibit 110. The Oregon Court of Appeals affirmed that decision

without opinion, and the Oregon Supreme Court denied review. 

Jackson v. Lampert, 182 Or. App. 384, 52 P.3d 448, rev. denied, 334

 2 - FINDINGS AND RECOMMENDATION

Case 2:13-cv-00798-ST Document 65 Filed 04/22/14 Page 2 of 9
Or. 631, 54 P.3d 1041 (2002). The PCR appellate judgment issued on

October 3, 2002.

Petitioner claims that in 2007, he first became aware of an

Oregon statute, ORS 138.690, which allows individuals convicted of

certain categories of crimes to move for DNA testing of evidence

relevant to their crimes. On January 15, 2008, he filed a motion

in the Multnomah County Circuit Court seeking DNA testing of semen

recovered from his victim. Respondent’s Exhibit 117, p. 7. The

court denied the motion on the basis that the DNA evidence from

petitioner’s case “had been destroyed pursuant to police policy in

2000.” Respondent’s Exhibit 107. It also recognized that

petitioner had admitted during his trial that the semen belonged to

him: “[Criminalist] Randy Wampler in fact found my semen. I don’t

dispute that fact, he found my semen on a dress.” Petitioner’s

Exhibit 217, pp. 54-55; Petitioner’s Exhibit 207, ER 3.12. 

Petitioner appealed this decision, and the Oregon Court of

Appeals granted the State’s Motion to Dismiss, finding no

justiciable controversy because the DNA evidence was no longer

available for testing. Id. The Oregon Supreme Court denied

review, and the appellate judgment issued on October 23, 2012. 

Respondent’s Exhibit 108. 

Petitioner signed and mailed his Petition for Writ of Habeas

Corpus to this court on April 30, 2013 alleging that: (1) he was

denied due process during his 2007 DNA proceedings when his case

 3 - FINDINGS AND RECOMMENDATION

Case 2:13-cv-00798-ST Document 65 Filed 04/22/14 Page 3 of 9
was subjected to dubious delays, and the trial judge indicated he

did not understand how Oregon’s DNA statute worked; (2) he was

denied his right to counsel when he was not allowed to substitute

attorneys during his 2007 DNA proceedings; and (3) his 1995

criminal convictions were obtained through fraud and misconduct on

the part of the police and the prosecuting attorneys. Respondent

asks the court to dismiss the Petition because petitioner did not

file it within the time allowed, and because petitioner’s claims

were denied in a state court decision based upon an independent and

adequate state ground.

FINDINGS

The Antiterrorism and Effective Death Penalty Act ("AEDPA")

was enacted on April 24, 1996. AEDPA provides that a one-year

statute of limitations applies to federal habeas corpus actions

filed by state prisoners. The one-year period 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 Constitution

or laws of the United States is removed, if the applicant

was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right

has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review;

or

 4 - FINDINGS AND RECOMMENDATION

Case 2:13-cv-00798-ST Document 65 Filed 04/22/14 Page 4 of 9
(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). 

While petitioner raises claims pertaining to his 2007 DNA

hearing, this habeas corpus challenge is directed to petitioner’s

detention pursuant to his 1995 convictions and resulting Judgment.

Petition (docket #3), p. 1. Accordingly, pursuant to 28 U.S.C.

2244(d)(1)(A), petitioner had one year from the date the 1995

convictions became final (October 4, 1996) in which to file this

case.

AEDPA’s statute of limitations ran unabated between October 4,

1996, and the filing of petitioner’s PCR Petition on October 2,

1998. Due to the passage of almost two years, petitioner had

already breached AEDPA’s one-year statute of limitations before he

even filed for state collateral review. In fact, according to the

court’s calculation, and assuming that both the state PCR action

and the DNA motion were “properly filed” under 28 U.S.C.

§ 2244(d)(2) so as to toll AEDPA’s statute of limitations during

the pendency of those proceedings and subsequent appeals,

petitioner allowed a total of 2,820 untolled days to elapse before

filing the current action.

Petitioner does not dispute that his case is untimely, but he

alleges that this default should be excused because he is actually

innocent. A gateway showing of actual innocence pursuant to Schlup

 5 - FINDINGS AND RECOMMENDATION

Case 2:13-cv-00798-ST Document 65 Filed 04/22/14 Page 5 of 9
v. Delo, 513 U.S. 298 (1995), can excuse a petitioner’s failure to

timely file his habeas corpus petition. McQuiggin v. Perkins, ---

U.S. ----, 133 S.Ct. 1924, 1928 (2013); Lee v. Lampert, 653 F.3d

929, 932 n. 5(9 Cir. 2011) (en banc). In order to demonstrate th

actual innocence under Schlup, petitioner must present the court

with new evidence of his innocence so strong that “the 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.

Petitioner does not present any new evidence that he is

actually innocent of his criminal conduct. Instead, he challenges

the validity of the evidence admitted during his criminal trial and

contends that the procedures of Oregon’s DNA statute were neglected

for the purpose of concealing prosecutorial and police misconduct

during his underlying criminal trial.

Because petitioner’s evidentiary arguments could have been

presented to the criminal trial court, they do not constitute new

evidence. In addition, a review of the documents petitioner has

submitted reveals that, aside from petitioner’s bare allegations to

the contrary, there is no indication that the DNA evidence was

destroyed in order to mask any prosecutorial and police misconduct. 

During petitioner’s DNA hearing, it appeared that the DNA evidence

had been destroyed pursuant to standard police procedure and, as

petitioner’s appointed attorney in that proceeding noted, any

 6 - FINDINGS AND RECOMMENDATION

Case 2:13-cv-00798-ST Document 65 Filed 04/22/14 Page 6 of 9
issues pertaining to the preservation of the DNA were not relevant

to that proceeding. Petitioner’s Exhibit 207, ER 3.4. The judge

agreed. Id at ER 3.17-3.19. While it is unfortunate that

petitioner could not avail himself of DNA testing, the State’s

destruction of that evidence does not, without evidence of

intentional malfeasance, render petitioner actually innocent of his

crimes under Schlup. This is especially true where, as noted

above, petitioner admitted during his criminal trial that the DNA

evidence recovered from the victim belonged to him.

Petitioner also claims that his untimely filing should be

excused because he was misled by his direct appellate attorney who

informed him that his appeal constituted his “second to last stage

of his state exhaustion remedies” and that a letter from his

attorney “clearly misguides the next stage of the appeals process

was post-conviction relief[.]” Memorandum in Support (docket #61),

p. 11. The court has reviewed the letters in Petitioner’s Exhibits

203 and 203A and finds that petitioner’s direct appellate attorney

properly advised him regarding Oregon’s appellate procedures and

the statute of limitations applicable to state PCR actions. 

Specifically, counsel: (1) informed petitioner of the Oregon Court

of Appeals direct review decision affirming his convictions; 

(2) advised him that he would have to file any petition for review

pro se in light of the Balfour brief filed with the Oregon Court of

Appeals, and described the procedural requirements applicable to

 7 - FINDINGS AND RECOMMENDATION

Case 2:13-cv-00798-ST Document 65 Filed 04/22/14 Page 7 of 9
such a petition; and (3)notified him of the issuance of the 

October 4, 1996 appellate judgment terminating his direct appeal,

while also informing him of the two-year statute of limitations

applicable to state PCR actions. 

While counsel did not advise petitioner of AEDPA’s one-year

statute of limitations applicable to federal habeas corpus cases,

he was under no duty to do so. Consequently, counsel’s omission of

any information regarding AEDPA’s limitation period does not

constitute an extraordinary circumstance sufficient to warrant

equitable tolling. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th

Cir. 2003) (equitable tolling warranted only where extraordinary

circumstances made it impossible for petitioner to timely file

habeas action); cf. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th

Cir. 2003), cert. denied, 540 U.S. 924 (2003) (AEDPA’s one-year

statute of limitations, even though in tension with Oregon’s twoyear PCR statute of limitations, nevertheless allows Oregon

prisoners an adequate opportunity to file for federal habeas

relief). 

Because the Petition for Writ of Habeas Corpus is untimely,

and because petitioner is unable to excuse that default, the

Petition should be dismissed. 

///

///

///

 8 - FINDINGS AND RECOMMENDATION

Case 2:13-cv-00798-ST Document 65 Filed 04/22/14 Page 8 of 9
RECOMMENDATION

The Petition for Writ of Habeas Corpus (docket #3) should be

dismissed on the basis that it is untimely, and the court should

enter a judgment dismissing this case with prejudice. The court

should also decline 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). 

SCHEDULING ORDER

The Findings and Recommendation will be referred to a district

judge. Objections, if any, are due May 9, 2014. If no objections

are filed, then the Findings and Recommendation will go under

advisement on that date. 

If objections are filed, then a response is due within 14 days

after being served with a copy of the objections. When the response

is due or filed, whichever date is earlier, the Findings and

Recommendation will go under advisement.

DATED this 22nd day of April, 2014.

S/ Janice M. Stewart 

Janice M. Stewart

United States Magistrate Judge

 9 - FINDINGS AND RECOMMENDATION

Case 2:13-cv-00798-ST Document 65 Filed 04/22/14 Page 9 of 9