IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

FREDRICK EARL BAIN, 

Petitioner, 

V. 

BRIAN E. WOLFE, Malheur County Sheriff, 

et al., 

Respondents. 

MARSH, Judge. 

Case No. 3:16-cv-00458-MA 

OPINION AND ORDER 

Petitioner brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, challenging 

the constitutionality of his 2009 conviction for Sexual Abuse in the First Degree. It is lindisputed that 

Petitioner's Habeas Petition was filed beyond the one-year limitation period of§ 2244(d)(l). 

Petitioner argues that the untimeliness should be excused on the basis of a colorable showing of 

actual innocence. For the reasons set forth below, this Court denies Petitioner's Habeas Petition as 

untimely. 

Ill 

Ill 

1 - OPINION AND ORDER 
BACKGROUND 

On December 1, 2008, a grand jury returned an indictment charging Petitioner with sexually 

abusing his seven-year-old daughter JB on or between November 18, 2007 and October 18, 2008. 

Resp't Exs. (ECF No. 21), Ex. 102. Petitioner pled not guilty to the charge and proceeded to trial. 

See Pet'r's Exs. (ECF No. 35), Ex. 3 at 1. 

At trial, the prosecution presented the testimony of JB; JB's mother, Laura Bain (hereinafter 

"Bain"); Lana Davis, a Department of Human Services Child Protective Services worker; Ontario 

Police Detective Ramon Rodriguez; and rebuttal witness Kimberly Sundquist, an investigator 

employed by Petitioner's attorney. The witnesses testified about Petitioner and Bain's marital 

problems and custody disputes, and JB' s disclosure of the sexual abuse. 

Petitioner testified in his own defense and offered the testimony of his mother, Carolyn 

Miller (hereinafter Miller), and his (former) fiancee, Trudi Johnson (now Trudi Fortin). The defense 

theory was that Bain coached JB to falsely accuse Petitioner of sexual abuse in order to gain custody 

of JB and her sister BB. In opening statements, defense counsel stressed Bain's bias: 

Who's more biased than the mom who's been wanting custody of these girls 

all along? Who has tried several times to get custody of these girls and has lost. What 

[a] better way to get your children than make an allegation against somebody that's 

going to charge them criminally? 

This is a very, very difficult situation. 7-year-old children are very 

impressionable; both in custody situations and in situations where the parents are 

fighting. Things can be easily suggested to children and they believe it's true. And 

based on the evidence that you're going to hear today, and the situation that was 

occurring between the parties, and how you're suppose 'to interview people to 

determine bias, I think the evidence is going to show you that Fredrick Bain is not 

guilty of these charges. 

2 - OPINION AND ORDER 
Tr. at 45-47. 

I. Evidence Concerning Petitioner and Bain's Marital Problems and Custody Disputes 

Laura Bain testified that she met Petitioner in 1999, and they married on September 14, 2001. 

Id at 85-86. She and Petitioner began having "relationship problems" in 2000, before JB was born. 

Id. at 89. Petitioner enlisted in the Army in 2003 and was deployed overseas several years later. Tr. 

86-87; Resp't Ex. 164 at 2. Bain testified that when Petitioner returned home in 2007, she wanted 

to make their marriage work. Tr. at 89-90, 105. 

However, Petitioner served Bain with divorce papers in August, 2007. Id. at 90. Bain testified 

that she did not appear at the dissolution hearing because Petitioner lulled her into believing they 

were going to reconcile. Id. at 90-91, 122. Petitioner proceeded with the divorce, a default judgment 

was entered, and the court awarded him primary custody of their two daughters. Id at 90-92, 101, 

105, 107-08, 122; Resp't Ex. 136. Bain testified that she tried without success to get the default 

judgment set aside. Tr. at 107-11, 120-21. The default decree provided that she would have visitation 

with her daughters every other weekend. Id. at 92, 107, 112. According to Bain, Petitioner interfered 

with her visitation on several occasions and the police became involved at least once. Id. at -92-93, 

113, 116-21. However, she denied calling the police to get her children from Petitioner, and could 

not explain defense counsel's production of police reports indicating that she twice requested police 

to conduct a civil standby during exchanges of the children. Id at 113-18; see Resp't Exs. 130, 131. 

Bain testified that she filed two applications for a restraining order for the sole purpose of protecting 

herself and her children- not as a means to obtain custody. Tr. at 101-02,. 106. According to Bain, 

the disputes over visitation started to "smooth out" in June of2008. Id. at 93, 121-22. Bain admitted 

on cross examination that while Petitioner was deployed, his mother took care of the children on 

3 - OPINION AND ORDER 
weekdays and there were a "few times" when she did not see them for a couple of weeks. Id at 103-

05, 111-13. 

Petitioner testified that when he returned from Afghanistan, JB and BB were living with his 

mother, and he had no intention of reconciling with Bain. Id. at 205-06, 213-14. Petitioner testified 

that Bain always wanted custody of their daughters and he did not know why she did not contest the 

divorce. Id. at 213-14. According to Petitioner, he and Bain constantly fought about custody: 

A . . . . I'd say 98% of the exchanges there was a confrontation. There were 

several times there had to be a civil standby just io keep it civil. Um, she 

wanted them all the time and you know, it wasn't going to work out that way. 

Q Um, were there also several restraining orders filed? 

A Yes, there was. 

Q And in those did Laura seek custody of the girls? 

A Um, to my - if I remember correctly every single one that she did. 

Q Now in those civil standbys, who called the officers to ask for help? 

A I did quite a few times because I got so dang tired of the fighting. I wanted 

the girls not to be around it. . . . 

Q So some of the time you called the officers? 

A Yes, and sometimes she did. 

Id at 207-08. 

II. Evidence Concernine JB's Disclosure of Sexual Abuse 

Bain testified that during a weekend visit in October 2008, JB told her that she and Petitioner 

had a secret that she was not allowed to share. Id. at 93-94. Bain testified that she immediately called 

4 - OPINION AND ORDER 
the police before talking further with JB. Id. at 94-95. Baill'explained why she called the police so 

quickly: 

I didn't want something to come out that was serious or even non-serious and 

have it, you know, it's hard to explain. Things for the last couple of years have been 

really hard with me and my kids. And so I just wanted to make sure everything was 

on the record, whether it was serious or non-serious. That's why I contacted the 

police. 

Id. at 94. 

A Boise police officer responded to Bain's telephone call. Id. at 94-95; see Resp't Ex. 149. 

Bain testified that JB refused to talk to the officer, and he requested that Bain talk to JB about "what 

was going on." Tr. at 95, 115, 123. Bain agreed, but insisted on recording the conversation. Id. at 95-

96. The prosecution played the tape recording ofBain's interview to the jury (Resp't Ex. 150), some 

of which was unintelligible, and Bain thereafter elaborated on JB' s disclosure as follows: 

A [S]he told me that her dad would have S-E-X with her, she put her fingers on 

her (INAUDIBLE) on this and moved 'em up and down. 

Q Okay. So when she says that she already showed you what she meant by S-EXis that what she's referring to, putting her fingers and moving them up and 

down? 

A Yes. 

Q Okay. Now on the tape you asked her if daddy put his pee pee in her mouth 

and she says, Uh uh, does that mean no? 

A Yes. it meant no. 

Q Okay. But then next you asked if his pee pee touched her pee pee. And what 

did she say to that? 

A She said - she said uh uh or something to those - along those lines. 

5 - OPINION AND ORDER 
Q Okay. So at that point, based upon what she's saying, she's sort of doing_ 

something with her hand, what did you interpret that to mean? 

A Honestly, I didn't know how to interpret it. 

Q Okay. 

A I felt that it was her only gesture to try and show me what had happened to 

her. 

Q Okay. Um, and you knew that she had said that her dad told her not to tell 

anybody the secret? 

A Yeah. 

Q Okay. Did you think you had enough at that point to be concerned as a 

mother? 

A Yes. 

Id at 97-99. 

JB was eight years old at the time of trial. Id. at 49. JB testified that when she was in the first 

or second grade, her dad touched her vagina and her bottom on more than one occasion at night in 

his bedroom. Id at 55, 58-60. JB testified that when this happened, her dad was not wearing clothes, 

she usually was wearing a nightgown, and her dad would remove her underwear. Id at 57-58. JB 

testified that the touching happened at night when she went into his bedroom after having a 

nightmare. Id at 55, 57, 69. JB testified that her dad told her that it was a secret and made her 

promise not to tell anyone. Id at 60. When asked whether the abuse really happened or if someone 

told her to say it, JB testified that it really happened. Id at 68-69. JB testified that the only time she 

talked to her mother about the ''secret" was the day she disclosed the abuse, and that her mother 

taught her the word "vagina" after she made the disclosure. Id at 62-65. 

6 - OPINION AND ORDER 
Lana Davis testified about her subsequent interview of JB at the ST AR Center. Id at 162-66, 

Resp't Ex. 152. During the videotaped interview, JB stated that her mother brought her to the STAR 

Center because something was going wrong at her dad's house that he's not supposed to do to 

children, and that he was doing the "S-word" to her. Resp't Ex. 152. JB stated that when she would 

sleep with her dad, he would jump on top of her and move up and down. Id She stated that "where 

he pees" touched "where she pees," and identified those body parts as penis and vagina. Id. JB stated 

that when the abuse occurred, her dad would be naked and she would have her clothes on except for 

her panties, which he removed. Id In response to Davis' questions, JB stated that her dad abused her 

more than once, he always did it the same way, and that he would stop when she said "no more." Id. 

JB stated that her dad told her to keep it a secret, but now she would "keep that secret" with Davis, 

her sister, and her mom. Id. When asked if her dad ever touched her sister, JB responded that he 

would never do it to her because "she is just little." Id. At the conclusion of the interview, JB stated 

that she was glad she told her secret to her mom and that she felt better now. Id. 

After the prosecution played the yideotape of JB's interview, Davis testified about her 

recollection of the interview. Davis testified that JB disclosed that Petitioner touched her vagina with 

his penis, but initially referenced her vagina as "where she pees" and Petitioner's penis as "where 

he pees." Tr. at 167, 176. Davis testified that JB explained "what happened to her was that he did 

the 'S' word, which is S-E-X (and] [w]hen ... asked ... to clarify what S-E-X meant, PB] stated 

it's when you get drunk and make out." Id. at 168, 171, 178. Davis acknowledged that she did not 

know that there were custody issues or allegations of coaching when she interviewed JB, and 

therefore she did not ask questions related to those issues that may have proven useful. Id. at 168-69, 

172, 175-76. Davis testified that,while it is possible for five- to- seven-year olds to "maintain a lie," 

7 - OPINION AND ORDER 
studies indicate that children ages three to seven are difficult to coach and that their false reports are 

less detailed than those of children who were actually abused. Id. at 173-74, 179-80. 

Ontario Police Detective Ramon Rodriguez observed Davis' interview of JB. Id. at 132, 164; 

Resp't Ex. 151. Rodriguez testified that JB disclosed that Petitioner jumped on top of her and moved 

up and down. Tr. at 132. Rodriguez testified that JB disclosed that Petitioner's "pee pee" touched 

her "pee pee," and that she later described the respective body parts as penis and vagina. Id. at 132,.. 

33, 136. Rodriguez testified that five-to-seven-year-old children can "maintain a lie," and that 

children are more likely to make false allegations of abuse when they are involved in a custody 

dispute. Id. at 142, 145. Rodriguez conceded that no questions were asked of JB pertaining to 

custody issues or coaching, but also testified that he did not believe the custody issue was "fresh" 

or that either issue was of "a whole lot of concern." Id. at 143-45, 151. Rodriguez testified that it is 

not unusual for a parent to be the first person to interview a child about sexual abuse. Id. at 150. 

In his defense, Petitioner testified that he never touched JB inappropriately. Id. at 207-08. He 

testified that he had some harmless secrets with JB, but he never told her to keep a secret about 

improper touching. Id. at 208. Petitioner explained that JB had nightmares once or twice a month 

and she would come into his bed~oom. Id. JB' s sister always woke up and came with her. Id. at 210, 

216. On a couple of occasions, he permitted JB to sleep with him. Id. at 209-10, 216. Both Petitioner 

and his mother testified that they never used the anatomically correct names of body parts when 

discussing improper touching with JB. Id. at 187-88, 217. 

Trudi Johnson testified that she had b~en in a relationship with Petitioner since September, 

2007, and they became engaged in February, 2008. Id. at 196-97. Johnson testified that "just prior" 

to JB's disclosure, JB began having secretive telephone conversations with her mother. Id. at 198. 

8 - OPINION AND ORDER 
She "always heard [JB] say, I promise, mommy, I won't say anything, I promise, I promise." Id. at 

198. Neither she nor Petitioner asked JB about the telephone calls. Id at 202, 215-16. Johnson 

testified that during the time she stayed at Petitioner's house, JB came into Petitioner's bedroom only 

twice and on both occasions BB came with her. Id at 199. 

Petitioner's mother testified that she regularly took care of JB and BB, and that between June 

of 2007 to October2008, she saw no difference in their behavior. Id. at 186-87, 189-90. According 

to Miller, the weekend before JB's disclosure of the sexual abuse, she asked JB whether anyone had 

ever touched her or made her uncomfortable and JB said "no." Id. at 190, 193. Defense Investigator 

Kimberly Sundquist confirmed that Miller mentioned the conversation she had with JB about 

improper touching, but conceded she did not include it in her investigation report. Id. at 221. 

During closing arguments, Petitioner's counsel stressed the importance of the custody dispute 

between Petitioner and Bain when evaluating the credibility of JB's testimony, and the fact that 

neither Davis nor Rodriguez posed questions to JB concerning custody when interviewing her. See 

id at 252-53 , 255, 259-62. Counsel argued that "[t]here was a lot of anger" between Bain and 

Pe_titioner, and again posed the question to the jury "[h ]ow much easier to get rid of [Petitioner] than 

to coach a child and charge somebody with a crime?" Id at 261-62. Additionally, defense counsel 

argued that the manner in which Bain interviewed JB, and JB' s use of the anatomically correct terms 

for vagina and penis·, were evidence that Bain had coached JB. Id at 254-55, 257, 260, 263. Finally, 

defense counsel focused on the failings of Bain as a mother: 

This is a mother who left her children, and all of a sudden when Mr. Bain 

comes back she wants them back. And she wants everything from him. But she can 

(INAUDIBLE) and left these kids with their grandmother for six to seven months; 

who took care of them on a daily basis. Who fed them. Who got them up in the 

9 - OPINION AND ORDER 
morning and took them to school. Who clothed them. And [Bain] called them on the 

phone. That's it. 

Id. at 255-56; see also id. at 262-63. 

At the conclusion of the three-day trial, the jury returned a 10-2 guilty verdict. Resp't Ex. 

185. The trial judge sentenced Petitioner to 75 months imprisonment and a ten-year term of postprison supervision. Resp't Ex. 101 at 3. Additionally, Petitioner was required to register as a sex 

offender. Id. Petitioner filed an appeal which he subsequently dismissed. Resp't Ex. 103. 

On November 12, 2010, Petitioner filed a state post-conviction relief (PCR) proceeding 

alleging that he received ineffective assistance of counsel. Resp 't Exs. 104, 108. The state trial court 

denied post-conviction relief, the Oregon Court of Appeals affirmed without opinion, and the Oregon 

Supreme Court dismissed Petitioner's petition for review as untimely. Resp't Exs. 194, 200, 206; 

Bain v. Coursey, 267 Or. App. 637 (2014), rev. denied, 358 Or. 249 (2015). The Court of Appeals 

issued its appellate judgment on March 23, 2015. Resp't Ex. 200. 

In June, 2015, JB and BB began living full-time with Carolyn and Kenneth Miller, their 

paternal grandparents. Pet'r's Ex. 13at1. In August, 2015, Petitioner was released from custody and 

began serving his ten-year term of post-prison supervision. Pet' r's Mem. in Supp. (ECF No. 34) at 

19; Pet'r's Ex. 8 at 1. From December, 2015 through March, 2016, Petitioner was allowed 

supervised visitation of his daughters. Pet' r's Ex. 9 at 1. 

On March 9, 2016, the Millers were awarded permanent legal guardianship of JB and BB. 

Pet'r's. Ex. 12 at 1, 4; Ex. 13 at 1-2. On March 17, 2016, Petitioner filed the instant proceeding 

setting forth two grounds for relief. Pet'r' s Habeas Pet. (ECF No. 1 ). First, Petitioner alleges that trial 

counselrendered ineffective assistance of counsel in multiple particulars. Second, Petitioner raises 

10 - OPINION AND ORDER 
a free-standing claim of actual innocence. Id. at 6-18. Respondent Michael Wu (hereinafter 

Respondent) moves the Court to deny the Petition because it is untimely and the claims lack merit. 

Resp't Resp. to Pet. (ECF No. 46) at 1-2. Petitioner seeks to overcome the untimeliness of his 

Petition with a colorable showing of actual innocence. Pet'r's Mem. in Supp. at 21, 35. 

DISCUSSION 

I. STANDARDS 

A colorable claim of actual innocence serves as a gateway though which a petitioner may 

pass to overcome the untimeliness of his habeas petition. McQuiggin v. Perkins, 569 U.S. 383, 386 

(2013); Stewart v. Cate, 757 F.3d 929, 937 (9th Cir. 2014). "[T]enable actual-innocence gateway 

pleas are rare." McQuiggin, 569 U.S. at 386. In order to make a colorable claim of actual innocence, 

a petitioner must present new, reliable evidence to prove that '"it is more likely than not that no 

reasonable juror would have convicted the petitioner."' Id. at 395 (quoting Schlup v. Delo, 513 U.S. 

298, 329 (1995)); Stewart, 757 F.3d at 938. '"To be credible, such a claim requires [the] petitioner 

to support his allegations of constitutional error with new reliable evidence-whether it be 

exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical evidence-that 

was not presented at trial."' Cookv. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (quoting Schlup, 

513 U.S. at 3 24 ). 1 This Court considers all the evidence, old and new, incriminating and exculpatory, 

admissible at trial or not, in order to make a probabilistic determination about what reasonable, 

1 The Ninth Circuit has noted that the question of whether "new evidence" must be newly 

discovered or simply newly presented is "one that [the] court will need to address." Pratt v. 

Filson, 705 F. App'x 523, 525 (9th Cir. 2017). However, the Court declined to do so because the 

petitioner failed to demonstrate a colorable claim of actual innocence under both tests. Id. This 

Court similarly assumes, without deciding, that Petitioner's evidence need only be newly 

presented. 

11 - OPINION AND ORDER 
properly instructed jurors would do. Schlup, 513 U.S. at 329-30; Shorb v. Nooth, 727 F. App'x 442, 

443 (9th Cir. 2018); Stewart, 757 F.3d at 940; Cain v. Oregon, 546 F. App'x 641, 643 (9th Cir. 

2013). 

In considering the totality of the evidence in this context, the Ninth Circuit has identified 

several principles relevant to this proceeding. First, the Ninth Circuit has held that polygraph 

evidence is not sufficiently reliable to support a claim of actual innocence on its own. Shorb, 2018 

WL 3061996, * 1; Hatch v. Lampert, 215 F. App 'x 614, * 1 (9th Cir. 2006). Second, the court has 

opined that "[d]eclarations are not a strong form of evidence because "the affiants' statements are 

obtained without the benefit of cross-examination and an opportunity to make credibility 

determinations." Garcia v. Evans, 670 F. App'x 622, 623 (9th Cir. 2016); Cotton v. Schriro, 360 F. 

App'x 779, 780 (9th Cir. 2009) (stating that because post-trial affidavits are not subject to crossexamination, they should be treated with a fair degree of skepticism). 

Third, the court has held that"[ a] s a general matter, recantation testimony is properly viewed 

with great suspicion." Jones v. Taylor, 763 F.3d 1242, 1248 (9th Cir. 2014) (internal quotations 

omitted). Recantations by family members "reduces their weight and reliability." Jones, 763 F.3d 

at 1249. When a victim's recantation is offered many years after trial, a reasonable juror may believe 

that the victim's memory of the abuse has faded and credit testimony closer in time to the abuse. Id. 

at 1250. For this reason, a witness's recantation does not render his or her earlier testimony false. Id. 

at 1248; Allen v. Woodford, 395 F.3d 979, 994 (9th Cir. 2005). ""Rather, a witness' recantation is 

12 - OPINION AND ORDER 
considered in addition to his trial testimony and in the context in which he recanted when assessing 

the likely impact it would have on jurors." Jones, 763 F.3d at 1248.2 

Finally, with respect to impeachment evidence, the Ninth Circuit has opined that a petitioner 

may satisfy Schlup with evidence "that significantly undermines or impeaches the credibility of 

witnesses presented at trial, if all the evidence, including new evidence, makes it 'more likely than 

not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt."' 

Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir. 2002) (quoting Schlup, 513 U.S. at 327); 

Sistrunk v. Armenakis, 292 F.3d 669, 676 (9th Cir. 2002). However, speculative and collateral 

impeachment by itself falls far short of showing actual innocence. Gandarela, 286 F .3d at 1086. 

II. NEW EVIDENCE 

Petitioner's new evidence has "two primary prongs:" ( 1) JB' s recantation; and (2) evidence 

that "calls into question the reliability of JB 's original accusation and impeaches the testimony of 

the State's witnesses." Pet'r's Mem. in Supp. at35. With regard to the second prong, Petitioner relies 

on ( 1) two psychologists' expert analyses of JB' s accusation and the manner in which the pretrial 

interviews were conducted; (2) evidence of Bain' s bias against Petitioner and her threats to obtain 

custody of the children; (3) evidence regarding what prompted Miller to have a discussion with JB 

about improper touching one week before JB' s disclosure; ( 4) the results of Petitioner's three 

polygraph tests; and (5) the fact that the jury returned a non-unanimous verdict. Id at 35, 41-47. 

2 Petitioner argues that this Court should compare the circumstances of JB' s initial 

. disclosure to the reliability of her recantation to determine which of the two should be "given 

more weight." See Pet'r's Mem. in Supp. at 40, Pet'r's Reply (ECF No. 48) at 2-3. This Court 

agrees to the extent that the circumstances surrounding both JB' s initial disclosure and her 

recantation are part of the totality of the evidence that this Court considers when determining 

whether Petitioner has made a colorable showing of actual innocence. 

13 - OPINION AND ORDER 
A. JB's Recantation 

On November 4, 2016, approximately seven and a half years after Petitioner's trial, 

Petitioner's counsel interviewed JB. Pet'r's Ex. 11.3 At the time of the interview, JB was 15 years 

' old and living with her paternal grandparents. During the videotaped interview, JB expresses her 

belief that her dad is innocent and that the abuse never occurred. JB states that "it didn't happen . 

. . I know it didn't happen." 

JB explains that she started believing in her dad's innocence when she still lived with her 

mom, and before she began living with her grandparents ''long term." JB states that she can't say 

exactly when she started believing her dad was innocent or why, but explains that she started 

learning about the results of his polygraph tests and she started reading the case file and transcripts. 

Additionally, she began realizing that when her grandparents asked her aboutthe case, her story 

always changed. That's when she started believing that "something' s wrong." 

When asked why she would falsely accuse her father, she responded that she thinks "it's 

mostly because of [her] mom." JB explains that when you are seven or eight years old, you listen to 

what your mom says. Her mom always told her that her dad was the bad guy and she was the good 

one. So, she believed what her mom said. When she got older, she realized that what her mom said 

wasn't true. "How that came into play," she doesn't really know. However, after considering how 

her mom acted toward her and how she told her story differently each time, she "kinda started 

believing that it wasn't true." JB volunteered that her grandparents did not pressure her into thinking 

3 In Petitioner's Exhibit 20, JB swears to the truth of her statements in the video. 

14- OPINION AND ORDER 
her dad is innocent. JB states that she is coming forward because her "dad is innocent ... and that's 

where [she] stands." 

Petitioner submits the affidavit of his mother, Carolyn Miller, to explain the "evolution" of 

JB' s belief that he is innocent: 

After [JB and her sister] moved in with us,' [JB] asked me whether we had 

gotten her father's name cleared. [JB] read the trial transcript and other materials 

related to the case-some of which she looked through when she stayed at my home 

prior to her permanent residence there- and she told me, "my dad didn't do this." 

This was not the first time [JB] brought up her father's case; she had been 

asking to clear her father's name for two or three years before she and [her sister] 

moved in with us in June of 2015. · 

Since the trial, I asked [JB] on a few occasions to tell me what happened. I 

wanted to know for sure, because if my son did this, I would have killed him. 

Pet'r's Ex. 13 at 2 (emphasis added). 

Kenneth Miller agrees that Carolyn Miller never pressured JB "to do anything" and that, for 

the last year or two, JB has wanted to "clear" her father's name. Pet'r's Ex. 12 at 2. He concedes that 

Miller and JB "discuss[ ed] the timing of the case" and that Miller "relay[ ed] information to [JB] any 

time [Petitioner's] lawyers contact her." Pet'r's Ex. 12 at 2. 

Petitioner's step-sister, Theresa Osborne, similarly attests that she never heard Miller 

pressure [JB] to say that Petitioner did not abuse her, and that Miller always told JB to tell the truth. 

Pet'r's Ex. 18 at 2. Osborne attests that she believes Petitioner is innocent and JB is aware of her 

opinion. Id at 2. Osborne explains that she believes Petitioner is innocent because JB' s behavior is 

so different from her experience as a victim of sexual abuse: 

I don't believe [Petitioner] did anything to [JB] because I was molested as a 

child, and it affects your interactions with other people, particularly men. I did not 

want to be alone with the person who molested me. I did everything in my power to 

15 - OPINION AND ORDER 
never be alone with him, and I prevented others from being alone with him as well. 

I remember so clearly what happened. She is close with my son, who is 19-years-old, 

and with my husband. 

I recall [JB] every now and then asking Carolyn, after [Petitioner's] 

conviction, if she would see her dad. Carolyn would tell her he is in prison, and she 

could not see him because of what happened in court. I recall JB responding, "What 

they say happened never happened. I don't know why he's there." 

Id at 2-3 (emphasis added). 

In contrast, Lorrina Heisey, Bain' s former partner, attests that she noticed Miller's influence 

over JB while she was still living with her mother. Pet'r's Ex. 16 at 2. Heisey states that after JB 

disclosed the abuse, JB and BB moved in with Bain, and on a number of occasions JB stayed with 

her grandmother. According to Heisey, after these visits, JB stated that her grandmother told her she 

did not believe Petitioner abused her. Heisey continues: 

Id. 

When I was still in contact with the girls, about two or three years ago, I know [JB] 

was very confused about everything because Carolyn would tell [JB] she was never 

abused. [JB] and [her sister] also stated that Carolyn would let them speak to 

[Petitioner] on the phone while ... he was in prison and he would also tell her that 

he did not hurt her. 

B. Reliability of JB's Orieinal Accusation & Impeachment Evidence 

1. Expert Testimony 

Petitioner offers the affidavit of Daniel Reisberg, Ph.D., and the declaration of Dr. Robert 

Stanulis to "identify at least five issues that undermine the reliability of JB's initial complaint." 

Pet'r' s Mem. in Supp. at 42. Petitioner identifies the issues as (1) the importance of distinguishing 

a child's lie from a "false memory;" (2) the improper interviewing techniques used at JB's pretrial 

16- OPINION AND ORDER 
interviews; (3) Davis and Rodriguez's failure to discuss custody issues during the ST AR interview; 

(4) the many biases that infected JB's accusation; and (5) the fact that the STAR interview was 

presented to the jury as an indication of the reliability of JB' s initial disclosure. Id. at 41-45. 

Dr. Reisberg opines that "[a]n untrained parent ... 'is likely to ask questions that can 

influence or guide [a] child's report [of abuse]." Pet'r's Ex. 10 at 2, see also Resp't Ex. 163 at 4. 

Reisberg explains that "the parent can easily 'leak' information.about [his or her] concerns, and in 

that fashion shape a child's report even when the parent hopes to remain entirely neutral." Pet'r's 

Ex. 10 at 2. According to Reis berg, research on "stereotype induction" indicates that if an adult 

"offers some sort of broad evaluative comment (such as, 'He's clumsy' or 'He's sometimes 

naughty'), the "comment can lead a child to invent some sort of report that will be consistent with 

this evaluation." Id. (emphasis in original); see also Resp't Ex. 163 at 14~15. 4 "Once that episode 

is reported ... the child is likely to continue offering the same report." Pet'r's Ex. 10 at 2; see also 

Resp't Ex. 163 at 16. Reisberg explains that although false reports can emerge even in the absence 

of a biased parent, it is more likely if the parent questions the child with ill intent and through the 

use of suggestive questions. Pet'r' s Ex. 10 at 2. In this regard, Reisberg states: 

Ms. Bain came into this questioning with her daughter already hostile toward Mr. 

Bain; we know this because of the history of antagonism in their marriage and after 

their divorce .... Ms. Bain was (and perhaps still is) entirely untrained about child 

interviewing, and she made comments in her testimony to suggest she was ignorant 

about (and perhaps indifferent to) the difference between proper and improper 

questioning of a child. These points, too, amplify the concerns about how this initial 

"interview" with JB unfolded. 

4 In addition to relying on Bain's influence on JB's recollection of the abuse, Petitioner 

relies on the responding officer's report indicating that he asked JB if she would "tell her mom 

her bad secret." Resp't Ex. 149 at 3. 

17 - OPINION AND ORDER 
Id. at 3; see also Resp't Ex. 163 at 9-10. 

Dr. -Stanulis offers a similar opinion on false memories and discusses the importance of 

following the Oregon Interview Guidelines when conducting an interview: 

Memory can be created or contaminated through interview tactics, repeated 

questioning by biased interviewers and many other factors. Oregon Interview 

Guidelines exist in recognition of the fact that false memories of abuse can be created 

and that false memories are not lies per se . . . . In this case, having the mother 

conduct the initial interview could well have produced a false memory that would not 

be a lie, but an inaccurate memory that then would be undetectable. It is in effect 

tampering with the main evidence (the child's memory) in this case. It is important 

to note that while an interview that follows the guidelines will gr·eatly reduce the 

likelihood of contamination of memory during that interview, prior taint will not be 

detected as there is no way to do that. The trial transcript clearly indicates that some 

aspects of the Guidelines were not followed (e.g. the interviewer was unaware that 

there was a custody issue.). 

[O]nce memory is contaminated it cannot be detected as contaminated and 

there is no way to uncontaminate it. Hence, [the] failure to investigate correctly at the 

beginning or failure to follow guidelines is far more than a mere oversight as it can 

result in the primary evidence being created or tainted in a way that is both not 

detectable and unfixable. 

Pet'r's Ex. 17 at 2, 5. Additionally, Dr. Stanulis opines that, despite the prosecutor's assertion that 

the consistency in JB 's description of the abuse indicates she is being truthful, it is equally true that 

"if [an] alleged victim has internalized a false memory that would be consistent over time." Id. at 6. 

2. Evidence ofBain's Bias and Threats 

Petitioner contends that Bain's trial testimony is impeached by new evidence of her bias and 

the threats she made to Petitioner. Pet'r's Mem. in Supp. at 45. Specifically, Petitioner asserts that 

there is evidence proving that (1) Bain was hostile toward Petitioner and had no reservation about 

hurting him, including sending him pornographic photographs and telling him she wished he had 

18 - OPINION AND ORDER 
died in the military; (2) Bain and Petitioner were at "extreme odds" over custody of their children 

as demonstrated by their volatile exchanges of their children; (3) Bain "learned that she needed 

extreme allegations to use court process to gain custody of the children;" and ( 4) Bain made threats 

against Petitioner regarding the custody of their children. Id. at 45-46. 

Petitioner's step-father, Kenneth Miller, recalls two incidents that occurred prior to trial 

during which Bain was disruptive at their home. Pet'r's Ex. 12 at 2. He describes one iilcident when 

Bain called them "every name in the book and got in [their] faces." Id. Petitioner, JB, and her sister 

were present at the home and "[e]ventually the police came and escorted [Bain] off the property." 

Id. Miller confirms her husband's recollection of the incident, adding that Bain "took a swing" at 

Kenneth Miller, tried to punch Petitioner, and screamed obscenities at Sheriff Deputy Curtis 

Wheeler, one of the responding officers. Resp't Ex. 165 at 5. Deputy Wheeler's incident report 

confirms that Bain was confrontational and that he subsequently arrested her for driving with a 

suspended license. See Resp't Ex. 128. 

Trudi Fortin also recounts an altercation during which Bain was verbally and physically 

abusive toward Petitioner. Fortin attests that Bain yelled she wished Petitioner "had been killed in 

Iraq, and that she would kill him before he took [JB and BB] from her forever." Pet'r's Ex. 14 at 2. 

Petitioner attests to the same details of the incident, noting that Bain had the smell of alcohol on her 

breath. Resp't Ex. 164 at 8; see also Resp't Ex. 142 (police incident report). 

Fortin attests that on another occasion, Bain told Petitioner "that she would do everything in 

her power ... to get her girls away from him" and that "he did not deserve them because she was a 

better parent." Pet'r's Ex. 14 at 2. Brandi White, Bain's sister-in-law, attests that Bain "told her 

several times that she would do whatever it takes to get custody of [ JB and her sister]." Resp 't Ex. 

19 - OPINION AND ORDER 
167 at 1, 3. On March 11, 2008, Bain sent Petitioner an email reading "I told u that u wont get my 

kids bk as long as im breathing and have a pulse go create more and leave my 2 the fuck alone." 

Resp't Ex. 164 at 8, 13.5 

Petitioner attests that he believes Bain coached JB to accuse him of sexual abuse because of 

their marital and custody disputes. Id. at 2. Petitioner attests that while he was overseas, Bain told 

him she had become a "bi-sexual swinger," and she began sending pictures of her having sex with 

other women. Id. Petitioner attests that he later found on the family computer "emails, instant 

messages, chat records and [between fifty and 100 sexually explicit] photographs that clearly depict[] 

the relationship [Bain] had with others." Id. at 4, see Pet'r's Ex. 1; Resp't Exs. 113-27, 140, 168 at 

1-2. Petitioner states that while he was deployed, Bain spent his salary "on her swinger friends," and 

never gave his parents money while their daughters were living with them. Resp't Ex. 164 at 4. 

Petitioner attests that Bain obtained two restraining orders by lying that he was physically abusive 

toward her. Id at 6-8; see Resp't Exs. 129, 137, 138. Petitioner attests that he took his daughters to 

counseling after he discovered they were sleeping in the same bed with Bain and other women. Id. 

at 9. 

Petitioner attests that in October, 2008, he received a letter and telephone calls from Bain 

seeking forgiveness of her child support obligation. Id. at 10; see also Resp't Ex. 148. That month, 

Bain reported JB's disclosure of sexual abuse. Resp't Ex. 164 at 10. Petitioner opines that Bain 

coached JB to accuse him of sexual assault in order to end her child support obligation and to get 

5 Petitioner sets forth all of the alleged threats made by Bain at pages 89-90 of his 

Supporting Memorandum. ' 

20 - OPINION AND ORDER 
custody of their daughters - not because she especially wanted the girls, but because she hated him 

so much she just didn't want him to have them. Id. at 2, 10. 

3. Miller's Discussion with JB About Improper Touching 

As outlined above, Miller testified that, approximately one week before JB disclosed the 

sexual abuse, she asked JB whether anyone evertouched her "no zones" or made her uncomfortable 

and JB responded "no." Tr. at 190-91. Petitioner presents new evidence concerning Bain's sexual 

activity that caused Miller to be concerned about JB's safety. Resp't Ex. 165 at 5. 

According to Miller, in June 2006, Bain expressed "how she admired gays, lesbians ... bisexuals" and "swingers." Id. at 2. Miller attests that she was informed by her step-daughter, 

Cheyenne Miller, that during a camping trip, Bain was "openly kissing women," and that "adults 

were engaged in sexual activity that could be heard by JB and [her sister]." Id.; see also Resp't Ex. 

166 at 2 (Aff. of Cheyenne Miller). Additionally, Miller attests that she saw an instant message on 

Bain' s computer from'" Jim and Jen'" that said, 'Awesome threesome last night'" and that Bain had 

"Eye of Horus" as her screen name. Resp't Ex. 165 at 2-3. According to Miller, JB told her that 

when she visited her mother she had to sleep in the same bed with Bain and her female lover. Id. at 

5; see also Resp't Ex. 167 at 1 (Aff. of Brandi White). Miller asked JB about "good touches and bad 

touches" because she "wanted JB to be able to tell [her] if she was being sexually mistreated by 

anybody, including either Laura Bain or any of her swinging friends." Resp't Ex. 165 at 5. Miller 

attests: 

On October 13, 2008 JB and [her sister] both crawled up on my lap and asked "If 

daddy goes away again, will we get to live with you? The significance of this did not 

occur to me until after Petitioner's trial. On the day I returned JB to Laura Bain, I 

talked to JB and asked her whether she had been touched sexually by anyone. She 

replied emphatically, "No Grandma." 

21 - OPINION AND ORDER 
Id. at 6; see also Resp't Ex. 155. 

Heisey attests that she was in a relationship with Bain from approximately 2007 to 2009, and 

admits JB sometimes slept with them,"but there was never any inappropriate behavior." Pet'r's Ex. 

16 at 1; see also Resp 't Exs. 164 at 9, 166 at 2, 167 at 1. Heisey also attests that she was present the 

day JB disclosed the sexual abuse: 

One day, [ JB and her sister] were with [Laura Bain] and me for a visit. [ JB] 

spoke to herself quite often, and that day she was behind the couch talking to herself 

about secrets. Hearing the word, "secrets," sent shivers down my spine. This 

reminded me of my own story. I was sexually abused as a child. Laura was aware of 

my past. I encouraged Laura to ask [JB] about her secrets. [JB] said she couldn't tell. 

Laura asked why she couldn't tell her secret. [JB] said daddy would get upset. Laura 

asked her where the secret happened. [JB] said in his bed. I told Laura she needed to 

call the police. 

Pet'r's Ex. 16 at 2; see Resp't Ex. 149 at 4 (police incident report). 6 

4. Polygraph Results 

Petitioner took three polygraph tests. See Resp't Ex. 160; Pet'r's Exs. 8 and 9. On February 

18, 2010 (after Petitioner's trial but before the state PCR proceeding), E.S. Taber administered a 

specific issue polygraph examination to Petitioner. Resp't Ex. 160 at 1; see also Pet'r's Ex. 8 at 2. 

Taber concluded that Petitioner's denial that he touched JB' s vagina with his penis or touched JB' s 

vagina with any part of his body for sexual reasons was truthful. Pet'r's Ex. 8 at 1-2. On or about 

November 12, 2015 (after the conclusion of the state PCR proceeding), Dennis DeBord administered 

6 Reis berg opines that Heisey' s presence when JB disclosed the abuse and urging Bain to 

pose particular questions to JB ''increases the already considerable worry that the initial 

questioning of JB was biased and improper, and hence the initial reports by JB unreliable." 

Pet'r's Ex. 10 at 3-4. 

22 - OPINION AND ORDER 
a mixed issue polygraph examination to Petitioner. Pet'r's Ex. 8.7 DeBord concluded that Petitioner 

had "no significant reaction" to the following questions: ( 1) Have you ever had any type of sexual 

contact with your children" and "[d]id you ever touch [JB's] bare vagina for sexual pleasure." Id. 

at 4. On or about March 24, 2016, DeBord conducted a second mixed issue polygraph examination 

to confirm Petitioner's compliance with the conditions ofhis probation. Pet'r's Ex. 9. The questions 

pertained to conduct since November, 2015, and showed "no significant reaction." Id at 2-4. 

III. ANALYSIS 

This Court accepts that JB' s recantation is truthful to the best of her present recollection and 

that she does not feel pressured by her family to recant her trial testimony. However, there is 

evidence in the record from which a reasonable juror could conclude that JB' s current recollection 

is the product of family influence, her review of the trial court record, her knowledge of Petitioner's 

polygraph results, and her estrangement from her mother. In light of these influences, a reasonable 

juror could choose to credit her trial testimony that was closer in time to the abuse and consistent 

with her pretrial interviews. This Court does not place particular importance on the absence of 

physical evidence of abuse, referenced several times in Petitioner's briefing, given the fact that JB 

did not accuse Petitioner of conduct that would result in physical injury. 

7 According to DeBold, a screening or "mixed issue" polygraph addresses several issues 

of concern and the examiner's opinion is expressed as "significant reaction," "no significant 

reaction" and "no opinion." Pet'r's Ex. 8 at 6. A "no significant reaction" to all questions on a 

screening examination indicates that the individual "needs no further testing in this area." Id. A 

"specific issue" examination, in contrast, deals with a single behavior and therefore "shows a 

high rate ofreliability in determining Truth or Deception." Id. at 5. Accordingly, the examiner 

can form an opinion as to whether the individual is truthful or not truthful. Id 

23 - OPINION AND ORDER 
There is conflicting evidence concerning the extent and timing of the influence exerted by 

JB's family. However, JB has known from a young age that her grandmother and aunt believe in 

Petitioner's innocence. The importance of her aunt's opinion is bolstered by the fact that she is a 

victim of sexual abuse and her memories of the abuse are "clear." Pet'r' s Ex. 18 at 2. JB volunteered 

in her recantation that she started believing in her dad's innocence before she moved in with her 

grandparents "long term." However, there is evidence that Miller often talked to JB about 

Petitioner's innocence when JB was still living with her mother. Pet'r's Ex. 16 at 2. Moreover, 

Miller concedes that JB began looking at trial material at Miller's house before she was living there 

permanently. Pet'r's Ex. 13 at 2. JB also learned of Petitioner's polygraph test results during her 

visits with Miller. Pet'r's Mem. in Supp. at 37. 

In her recantation, JB was unable to define exactly how her mother's influence "came into 

play," other than to say that her mom always told her that her dad was the "bad guy," and as she grew 

up she realized that wasn't true. Given this lack of certainty, and JB's description ofhow she came 

to believe in her father's innocence, a reasonable juror could conclude that JB' s memory of the 

sexual abuse has faded over time, not that it has "evolved." See Pet'r's Mem. in Supp. at 36, 54; 

Pet'r's Reply (ECF No. 48) at 3, 10 (describing JB's current recollection as an "evolution"). 

Petitioner's new evidence concerning Bain's sexuality, the number of her sexual partners, 

exposing JB to sexual activity, and sending Petitioner threatening emails and pornographic pictures, 

is collateral impeachment evidence that is not the type of compelling evidence needed to support a 

colorable showing of actual innocence. Although JB did not disclose the abuse when questioned by 

her grandmother a week prior to JB's disclosure to her mother, a reasonable juror could conclude 

that a child would be more comfortable disclosing to her mother rather than a grandparent (and 

24 - OPINION AND ORDER 
mother of the abuser). Indeed, when asked in the STAR interview who she could tell if she was 

improperly touched by anyone else, JB responded her mother. 

Petitioner's new impeachment evidence of Bain's threats and physical confrontations with 

Petitioner and his family, while relevant to prove Bain' s instability and her desperation to obtain 

custody of JB and her sister, it does not discredit JB's disclosure of her "secret," as witnessed by 

Heisey, or the details of the abuse disclosed by JB in her ST AR interview and at trial. Similarly, new 

evidence of the police involvement in custody exchanges has collateral impeachment value, but is 

not strong evidence that Bain coached JB to falsely accuse Petitioner of sexual abuse. Heisey' s 

attestation that she was present when JB said that she and her dad had a secret, and that she 

encouraged Bain to call the police, supports Bain' s testimony concerning the events surrounding 

JB' s initial disclosure. 

Petitioner's newly presented expert testimony would be helpful to a reasonable juror to 

understand the creation of false memories and the impact that interviewing techniques can have on 

the outcome of an interview. Further, as noted by Petitioner, it provides an alternative basis for why 

a seven-year-old would falsely accuse her father of sexual abuse. However, the opinion testimony 

is not compelling evidence of Petitioner's factual innocenc-e. The persuasive nature of the expert 

testimony concerning false memories and confirmation bias, as it pertains to Bain' s initial interview 

of JB, is tempered by Officer Rodriguez's testimony that it is not uncommon for a parent to be the 

first interviewer of a child. 

Petitioner's claim of actual innocence is bolstered by the specific issue polygraph test results 

and to a lesser degree the mixed issue test results. Nevertheless, given the unreliability of polygraph 

25 - OPINION AND ORDER 
tests as a whole, the results do not tip the scale to such a degree that Petitioner has satisfied the 

extraordinarily high bar of a colorable showing of actual innocence. 

Finally, Petitioner argues that this Court should take into account that two of the twelve 

jurors who presided over his trial were not convinced ofhis guilt beyond a reasonable doubt. Pet'r's 

Mem. in Supp. at 4 7. Petitioner explains that the lack of unanimity "strongly suggests that even a 

slight change in the available evidence would have tipped the scales to acquittal." Pet'r's Reply at 

13. The Court finds this legal argument unconvincing. A colorable showing of actual imiocence is 

not satisfied merely by showing that, in light of the newly presented evidence, a juror might not be 

convinced of Petitioner's guilt beyond a reasonable doubt. Schlup, 513 U.S. at 329. Rather, he must 

demonstrate that his is the rare case in which it is more likely than not that no juror acting reasonably 

would have voted to find him guilty beyond a reasonable doubt. See Foster v. Oregon, 587 F. App'x 

356, 359 (9th Cir. 2014) (holding that if the petitioner "only renders it possible that a reasonable 

juror would not have convicted; it does not so undermine the State's case that is it more likely than 

not that no reasonable juror would have convicted"). In any event, Petitioner's reliance on the lack 

of unanimity is not new evidence- it is an argUm.ent. See Powell v. Walker, 685 F. App'x 594, 595 

(9th Cir. 2017) (highlighting the difference between new evidence and an argument). 

In sum, although the Court has addressed Petitioner's new evidence separately above, this 

Court has considered all of the evidence, old and new, admissible or not, in its totality and concludes 

that Petitioner has failed to demonstrate that it is more likely than not that no reasonable juror would 

·have found him guilty. In so holding, this Court does not question the sincerity of JB's recantation 

or the intentions of family members who continue to support her. However, the totality of the 

evidence only renders it possible that a reasonable juror would not have convicted Petitioner. The 

26 - OPINION AND ORDER 
showing therefore does not rise to the level of a colorable showing of actual innocence so as to 

excuse the untimeliness of his Habeas Petition. 

IV. REQUEST FOR EVIDENTIARY HEARING 

Petitioner seeks an evidentiary hearing "to provide further evidence in support ofhis claims,~' 

and to permit JB to testify "if the Court believes it would be helpful to question her directly and so 

that the State may subject her to cross-examination." Pet'r's Mem. in Supp. at 136; Pet'r's Reply at 

5. As noted above, this Court does not question the sincerity of JB's recantation. Accordingly, an 

evidentiary hearing to take further testimony is not warranted. See Griffin v. Johnson, 350 F.3d 956, 

966 (9th Cir. 2003) (holding that an evidentiary hearing is not warranted when the petitioner has not 

established that the hearing would produce evidence that is more reliable or probative than what is 

already before the court); Stewart, 757 F.3d at 942 (holding that trial court need not hold an 

evidentiary hearing if the petitioner fails to make a colorable claim of actual innocence even when 

the new evidence is fully credited). 

CONCLUSION 

Based on the foregoing, this Court DENIES Petitioner's Petition for Writ of Habeas Corpus 

(ECF No. 1) as untimely and DISMISSES this proceeding, with prejudice. 

Ill 

Ill 

Ill 

Ill 

Ill 

27 - OPINION AND ORDER 
This Court GRANTS a Certificate of Appealability on the issue of whether Petitioner has 

made a colorable claim of actual innocence to excuse the untimeliness of his Petition. 

IT IS SO ORDERED. 

DATED this -2._!lday of July, 2018. 

jr44;4- §2~ Malcolm F. Marsh 

United States District Judge 

28 - OPINION AND ORDER