IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KENNETH V. FISHER, 

Petitioner, 

v. 

JEFF PREMO, Supt., 

Oregon State Penitentiary, 

Respondent. 

KRISTINA S. HELLMAN 

Assistant Federal Public Defender 

1000 SW Main Street 

Suite 1700 

Portland, OR 97204 

Attorney for Petitioner 

ELLEN F. ROSENBLUM 

Attorney General 

JAMES A. AARON 

Assistant Attorney General 

Department of Justice 

1162 Court Street NE 

Salem, OR 97301 

Attorneys for Respondent 

1 - OPINION AND ORDER -

Civil No. 6:15-cv-00463-BR 

OPINION AND ORDER 

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 1 of 12
BROWN, Judge. 

Petitioner, an inmate at the Oregon State Penitentiary, brings 

this habeas corpus action pursuant to 28 U.S.C. § 2254. For the 

reasons that follow, the Petition for Writ of Habeas Corpus (ECF 

No. 2) is DENIED. 

BACKGROUND 

On October 19, 2007, a Clackamas County grand jury indicted 

Petitioner on two counts of Attempted Murder, two counts of Assault 

in the Second Degree, three counts of Unlawful Use of a Weapon, two 

counts of Strangulation, two counts of Menacing, two counts of 

Assault in the Fourth Degree, and one count of Harassment. Resp. 

Exh. 102, pp. 1-4. The charges stemmed from Petitioner's attack on 

his wife and two men who came to her aid; for part of the attack 

Petitioner was armed with and used a sword. Resp. Exh. 105, pp. 

33-34. 

Petitioner entered into a plea agreement whereby he agreed to 

plead guilty to two counts each of Attempted Murder and Assault in 

the Second Degree in exchange for dismissal of the remaining 

counts. Resp. Exh. 103. Petitioner agreed to "open sentencing.'' 

Resp. Exh. 104, p. 3. At the change of plea hearing on March 5, 

2008, the trial judge engaged in an extensive colloquy with 

Petitioner. Resp. Exh. 104, pp. 2-5. A pre-sentence investigation 

was ordered and the matter was set over for sentencing. Id. 

2 - OPINION AND ORDER -

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 2 of 12
Petitioner's attorney subsequently moved to withdraw, and the 

court appointed a new attorney. Petitioner then moved to withdraw 

his guilty pleas. On June 20, 2008, the trial court held a hearing 

on Petitioner's motion. The trial judge considered polygraph 

results offered by Petitioner, the written plea agreement, the tape 

recording of the change of plea hearing, and testimony from 

Petitioner, and found Petitioner not credible. Resp. Exh. 105, pp. 

20-31. As such, the court denied Petitioner's motion. Resp. Exh. 

105, p. 31. 

The trial court then sentenced Petitioner to mandatory minimum 

sentences of 90 months for each count of Attempted Murder and 70 

months for each count of Assault in the Second Degree. Resp. Exh. 

101. The court ordered that the sentence for one of the counts of 

Assault in the Second Degree be concurrent with the others, but 

otherwise imposed consecutive sentences, resulting in a 250 month 

term of imprisonment. Resp. Exh. 101. The court entered judgment 

on June 27, 2008. Petitioner did not directly appeal his 

conviction or sentence. 

On April 22, 2010, Petitioner signed a petition for state 

post-conviction relief ( 11 PCR") . Resp. Exh. 106. Following an 

evidentiary hearing, the PCR trial court denied relief. Resp. Exh. 

107. Petitioner appealed the denial of PCR relief, but the Oregon 

Court of Appeals affirmed without opinion and the Oregon Supreme 

3 - OPINION AND ORDER -

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 3 of 12
Court denied review. Fisher v. Premo, 264 Or. App. 46, 332 P.3d 

371, rev. denied, 356 Or. 510, 339 P.3d 927 (2014). 

On March 17, 2015, Petitioner mailed a Petition for Writ of 

Habeas Corpus Pursuant to 28 U.S.C. § 2254 to this Court. (ECF No. 

2). Petitioner alleges four claims of ineffective assistance of 

counsel and one claim of actual innocence. Respondent argues the 

Petition must be dismissed as untimely under 28 U.S.C. § 2244. 

Petitioner concedes the Petition is untimely, but contends he has 

established equitable tolling such that this Court may consider the 

merits of his constitutional claims. In the alternative, 

Petitioner argues he had made specific factual allegations which, 

if proved to be true, would establish his actual innocence, and 

requests an evidentiary hearing. 

LEGAL STANDARDS 

The Anti-terrorism and Effective Death Penalty Act ("AEDPA") 

provides for a one year statute of limitations to file a petition 

for writ of habeas corpus. 28 u.s.c. § 2244 (d) (1). Under the 

statute, the one year period begins to run from the date the 

judgment becomes final at the conclusion of direct review "or the 

expiration of the time for seeking such review." Id. § 

2244 (d) (1) (A). 

The limitations period is tolled during the pendency of a 

properly filed state post-conviction proceeding or other collateral 

review. 28 U.S.C. § 22.44 (d) (2); Lee v. Lampert, 610 F.3d 1125, 1127 

4 - OPINION AND ORDER -

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 4 of 12
(9th Cir. 2010). However, time elapsed after the conviction is 

final and before state PCR petition is filed, as well as time after 

the state PCR proceeding concludes and before the federal petition 

is filed, both count against the one-year limitation period. 28 

U.S.C. § 2244 (d) (2); Nino v. Galaza, 183 F.3d 1003, 1006-07 (9th 

Cir. 1999). 

The one-year limitations period may be equitably tolled upon 

a showing that: (1) petitioner pursued his rights diligently, and 

(2) some extraordinary circumstance stood in his way and prevented 

timely filing. Holland v. Florida, 560 U.S. 631, 632 (2010); Fue 

v. Biter, No. 12-55307, 2016 WL 6803045, at *5 (9th Cir. Nov. 17, 

2016); Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015). The 

extraordinary circumstance raised must be both the but-for cause 

and the proximate cause of the untimeliness. Allen v. Lewis, 255 

F.3d 798, 800 (9th Cir. 2001). The inquiry sets a high bar, 

reserving equitable tolling for rare cases. Yeh v. Martel, 751 

F.3d 1075, 1077 (9th Cir. 2014); Spitsyn v. Moore, 345 F.3d 796, 

799 (9th Cir. 2003). A 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). 

Also, to avoid a miscarriage of justice, the limitation period 

established in 28 U.S.C. § 2244(d) (1) does not preclude "a court 

from entertaining an untimely first federal habeas petition raising 

a convincing claim of actual innocence." McQuiggin v. Perkins, 133 

5 - OPINION AND ORDER -

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 5 of 12
S. Ct. 1924, 1935 (2013). To invoke this exception to the statute 

of limitations, a petitioner "'must show that it is more likely 

than not that no reasonable juror would have convicted him in the 

light of the new evidence.'" Id. at 1935 (quoting Schlup v. Delo, 

513 U.S. 298, 327 (1995)). This exception, referred to as the 

"Schlup gateway," applies "only when a petition presents 'evidence 

of innocence 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."' Id. at 1936 

(quoting Schlup, 513 U.S. at 316). The exception is to be applied 

only in the ''extraordinary" or ''extremely rare'' case. House v. 

Bell, 547 U.S. 518, 538 (2006); Schlup, 513 U.S. at 320-21. 

DISCUSSION 

I. Equitable Tolling 

In his Petition, Petitioner states that he "seeks equitable 

tolling based on his mental illness and the fact that his trial 

attorney withheld the record from him for an extensive period of 

time, thereby delaying Petitioner's ability to seek state 

remedies." (ECF No. 2, p. 11.) Petitioner provides no further 

factual allegations or evidence detailing the nature or severity of 

his mental condition, and does not address this argument in his 

Brief in Support. 

The Ninth Circuit has set forth the standard for obtaining 

equitable tolling based on a mental impairment, as follows: 

6 - OPINION AND ORDER -

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 6 of 12
(1) First, a petitioner must show his mental impairment 

was an 'extraordinary circumstance' beyond his control by 

demonstrating that the impairment was so severe that 

either 

(a) petitioner was unable rationally or factually 

to personally understand the need to timely file, 

or 

(b) petitioner's mental 

personally to prepare 

effectuate its filing. 

state rendered him unable 

a habeas petition and 

(2) Second, the petitioner must show diligence in 

pursuing the claims to the extent he could understand 

them, but that the mental impairment made it impossible 

to meet the filing deadline under the totality of the 

circumstances, including reasonably available access to 

assistance. 

Yeh, 751 F.3d at 1078 (quoting Bills, 628 F.3d at 1099-100); 

Forbess v. Franke, 749 F.3d 837, 840-41 (9th Cir. 2014). The 

second prong does not require literal impossibility, but rather 

proof that the mental impairment was "so debilitating that it is 

the but-for cause of the delay'' in light of the totality of the 

circumstances. Yeh, 751 F.3d at 1078; Forbess, 749 F.3d at 841; 

see also Laws v. Lamarque, 351 F. 3d 919, 923 (9th Cir. 2003) 

(holding that where a habeas petitioner can show that "mental 

incompetence in fact caused him to fail to meet the AEDPA filing 

deadline, his delay was caused by an extraordinary circumstance . 

and the deadline should be equitably tolled." (internal 

quotations omitted)). 

Petitioner fails to identify the nature or severity of his 

impairment and has made no showing that the alleged "mental 

7 - OPINION AND ORDER -

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 7 of 12
condition" rendered him unable to understand the need to file 

timely or that he was unable personally to prepare and file a 

habeas petition. In fact, the record shows that Petitioner's trial 

attorney had a psychologist evaluate Petitioner who concluded that 

Pe ti ti oner was able to aid and assist in his defense despite 

significant depression at times that make it difficult for him to 

cooperate with his attorney. Resp. Exh. 105, pp. 2, 4, 21-22. The 

psychologist further concluded that Petitioner was within the 

competent range of functioning, adequately understood the 

proceedings against him, and had the capacity to adequately 

cooperate with counsel and participate in his own defense. Resp. 

Exh. 105, p. 22. In the absence of any evidence to contradict this 

opinion or of subsequent mental evaluations, Petitioner has not set 

forth sufficient facts or evidence to warrant equitable tolling 

based on a mental impairment. 

Petitioner similarly fails to show that his attorney's failure 

to turn over his records prevented him from timely filing his 

petition. Equitable tolling may be warranted in instances of 

unprofessional attorney behavior. Doe v. Busby, 661 F.3d 1001, 

1011 (9th Cir. 2011). In cases where a petitioner claims his 

attorney was the case of the untimeliness, courts must examine if 

the alleged failure is "a sufficiently egregious misdeed like 

malfeasance or failing to fulfill a basic duty of client 

representation." Id. at 1012 (citing Spitsyn, 345 F.3d at 801) 

8 - OPINION AND ORDER -

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 8 of 12
(emphasis in original). Petitioner does not identify any facts 

supporting a conclusion that his attorney engaged in a sufficiently 

egregious misdeed which prevented Petitioner from timely filing his 

habeas petition. Accordingly, Petitioner has not established 

extraordinary circumstances to warrant equitable tolling of the 

limitation period. 

II. Actual Innocence 

In his Brief in Support, Petitioner argues this Court should 

consider his constitutional claims notwithstanding his untimely 

filing because he is actually innocent of the convictions of 

Attempted Murder. Petitioner identifies three pieces of evidence 

to support his claim: (1) the results of a polygraph examination; 

(2) his statements at the sentencing hearing; and (3) his testimony 

in the post-conviction proceeding. 

The polygraph results indicated Pe ti ti oner answered truthfully 

when he answered "no'' to questions whether he swung the sword at 

anyone and whether he deliberately hit anyone with the sword. 

These results were presented to the trial court at the hearing on 

Petitioner's motion to withdraw his guilty plea. Counsel argued 

that the truthful answers were inconsistent with his guilty pleas 

to Attempted Murder. Also at the hearing, Petitioner testified 

that he was on medications at the time of the change of plea 

hearing, that he did not want to plead guilty but counsel told him 

to do it, and that counsel told him he could withdraw his plea at 

9 - OPINION AND ORDER -

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 9 of 12
anytime. At the PCR trial, Petitioner testified that while he 

accepted responsibility for the ''majority of what happened'' he is 

innocent of the attempted murder charges because he did not intend 

to kill anyone. Resp. Exh. 113, p. 8. 

To be credible, a claim of actual innocence requires a 

petitioner ''to support his allegations of constitutional error with 

new reliable evidence-whether it be exculpatory scientific 

evidence, trustworthy eyewitness accounts, or critical physical 

evidence-that was not presented at trial." Schlup v. Delo, 513 

U.S. 298, 324 (1995); McQuiggin, 133 S. Ct. at 1929. Moreover, he 

"must show that it is more likely than not that no reasonable juror 

would have convicted him in the light of the new evidence." Id. at 

1935 (quoting Schlup, 513 U.S. at 327); Stewart v. Cate, 757 F.3d 

929, 938 (9th Cir. 2014). Here, none of the evidence submitted by 

Petitioner in support of his claim is new and reliable. 

Petitioner had the polygraph evidence before the change of 

plea, and as noted, he submitted it to the trial court in support 

of his motion to withdraw the plea, but the trial judge denied the 

motion after considering the polygraph evidence. Moreover, 

polygraph evidence lacks credibility. See Brown v. Darcy, 783 F.2d 

1389, 1391 (9th Cir. 1986); United States v. Cordoba, 104 F.3d 225, 

227-28 (9th Cir. 1997). As such, polygraph evidence is not the 

type of "new reliable evidence" envisioned by the Schlup court. 

See Cortes v. Mills, 2011 WL 6965804 *5 (D. Or., July 18, 2011) 

10 - OPINION AND ORDER -

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 10 of 12
("[a]ssuming a polygraph has some probative value, it cannot, 

standing on its own, prove that petitioner is actually innocent'') 

(citing Hatch v. Lambert, 215 Fed. Appx. 614 (9th Cir. 2006)) 

(additional citation omitted) . Likewise, Petitioner's self-serving 

declaration that he did not intend to kill anyone is not the kind 

of evidence that meets the Schlup standard. Jackson v. Beard, Case 

No. 12-CV-2479-BEN(BGS), 2014 WL 2657536, at *7 (S.D. Cal. June 12, 

2014); see also Baran v. Hill, Case No. 1:07-cv-01411-CL, 2010 WL 

466153, at *7 (D. Or. Feb. 9, 2010 (finding that petitioner's selfserving and unsupported statements were not new and reliable 

evidence sufficient to provide actual innocence) . 

Viewing the polygraph evidence with the other evidence, 

Petitioner has failed to demonstrate that "it is more likely than 

not that no reasonable juror would have convicted him in light of 

the new evidence. " Schlup, 513 U.S. at 327. Accordingly, 

Pe ti ti oner has not established a "fundamental miscarriage of 

justice" to exempt his claims from the § 2244 statute of 

limitations. 

III. Evidentiary Hearing 

Petitioner seeks an evidentiary hearing to demonstrate there 

are grounds for equitable tolling. Because Pe ti ti oner has not 

presented any evidence beyond a bare allegation as to his mental 

condition, Petitioner is not entitled to an evidentiary hearing. 

See Bills, 628 F. 3d at 1100 (holding that to evaluate whether 

11 - OPINION AND ORDER -

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 11 of 12
tolling is warranted, the district court must "find the petitioner 

has made a non-frivolous showing that he had a severe mental 

impairment during the filing period that would entitled him to an 

evidentiary hearing"); Anderson v. Nooth, Case No. 2:14-cv-01916-

SB, 2016 WL 6496454, at *4 (D. Or. Aug. 12, 2016) ("[a] petitioner 

who merely mentions a mental condition is not entitled to an 

evidentiary hearing"). Likewise, because Petitioner has failed to 

show what an evidentiary hearing might reveal of material import to 

his claim of actual innocence, such a hearing is not warranted. 

Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 2002). 

Accordingly, Petitioner's request for an evidentiary hearing is 

denied. 

CONCLUSION 

For these reasons, the Court DENIES the Petition for Writ of 

Habeas Corpus (ECF No. 2) and DISMISSES this action. 

The Court DENIES a certificate of appealability as Petitioner 

has not made a substantial showing of the denial of a 

constitutional right. See 28 u.s.c. § 2253(c) (2). 

IT IS SO ORDERED. 

DATED this ;;,')(II.}-day of February, 2017. 

United States District Judge 

12 - OPINION AND ORDER -

Case 6:15-cv-00463-BR Document 34 Filed 02/22/17 Page 12 of 12