Scott Jones v. Jeri Taylor , 763 F.3d 1242 ( 2014 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    SCOTT DOUGLAS JONES,                      No. 13-36202
    Petitioner-Appellee,
    D.C. No.
    v.                      3:10 cv-1474 JO
    JERI TAYLOR, Superintendent, Two
    Rivers Correctional Institution,            OPINION
    Respondent-Appellant.
    Appeal from the United States District Court
    for the District of Oregon
    Robert E. Jones, Senior District Judge, Presiding
    Argued and Submitted
    May 12, 2014—Portland, Oregon
    Filed August 19, 2014
    Before: Arthur L. Alarcón, A. Wallace Tashima,
    and Sandra S. Ikuta, Circuit Judges.
    Opinion by Judge Tashima
    2                        JONES V. TAYLOR
    SUMMARY*
    Habeas Corpus
    The panel reversed the district court’s judgment granting
    a habeas corpus petition based on a freestanding claim of
    actual innocence in a case in which Scott Jones was convicted
    of unlawful sexual penetration for the sexual abuse of his
    sister, S.J.
    Jones’ conviction was based primarily on S.J.’s testimony
    that Jones inserted his finger inside her vagina on multiple
    occasions, as well as testimony by S.J.’s and Jones’ father,
    Ken Jones, and sister, Jennifer Pond, that Jones admitted to
    penetrating S.J.
    Jones brought his freestanding claim of factual innocence
    based on the recantations of all three witnesses.
    The panel chose to review de novo the district court’s
    conclusion that Jones is actually innocent, based on the
    panel’s holistic assessment of the evidence adduced at the
    hearings before the district court and at trial and the likely
    effect all this evidence would have on reasonable jurors in
    order to clarify how district courts should evaluate actual
    innocence claims.
    The panel did not resolve whether a freestanding actual
    innocence claim is cognizable in a federal habeas corpus
    proceeding in the non-capital context because, even assuming
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    JONES V. TAYLOR                         3
    that such a claim is cognizable, the panel concluded that
    Jones has not made a sufficient showing to merit relief.
    The panel explained that as a general matter, recantation
    testimony is properly viewed with great suspicion. The panel
    did not rely on the district court’s findings that S.J. and Ken
    Jones were credible because the panel was uncertain about
    the basis for some of the district court’s conclusions and
    unpersuaded that every reasonable juror would credit the
    recantations as the district court did. The panel explained that
    even if it accepts that the three witnesses testified truthfully
    based on their memory at the time of the evidentiary hearing,
    their recantations are insufficient to demonstrate that Jones is
    factually innocent, where neither Ken Jones nor Jennifer
    Pond witnessed the abuse, and where the panel could not say
    that every juror would credit S.J.’s recantation testimony over
    her trial testimony and the descriptions of the abuse she gave
    in her 2000 and 2002 interviews. The panel explained that
    evidence that merely undercuts trial testimony or casts doubt
    on the petitioner’s guilt, but does not affirmatively prove
    innocence, is insufficient to merit relief on a freestanding
    claim of actual innocence. The panel concluded that Jones
    has not made the extraordinarily high and truly persuasive
    showing required for habeas relief on a freestanding claim of
    actual innocence.
    4                    JONES V. TAYLOR
    COUNSEL
    Ellen F. Rosenblum, Attorney General of Oregon, Anna M.
    Joyce, Solicitor General, Paul L. Smith (argued), Attorney-in-
    Charge, Criminal and Collateral Remedies Appeals, Oregon
    Department of Justice, Salem, Oregon, for Respondent-
    Appellant.
    Ellen C. Pitcher (argued), Assistant Federal Public Defender,
    Portland, Oregon, for Petitioner-Appellee.
    OPINION
    TASHIMA, Circuit Judge:
    In 2003, Petitioner Scott Jones was convicted of unlawful
    sexual penetration for the sexual abuse of his sister, S.J.
    Jones’ conviction was based primarily on S.J.’s testimony
    that Jones inserted his finger inside her vagina on multiple
    occasions, as well as testimony by S.J.’s and Jones’ father,
    Ken Jones, and sister, Jennifer Pond, that Jones admitted to
    penetrating S.J.
    All three witnesses now recant their testimonies. Based
    on these recantations, Jones brought a federal habeas petition
    seeking relief based on a freestanding claim of actual
    innocence. The district court assumed that a freestanding
    actual innocence claim existed in this context and granted
    JONES V. TAYLOR                             5
    relief. We have jurisdiction under 28 U.S.C. §§ 1291 and
    2253 and, for the reasons discussed below, we reverse.1
    I.
    A.
    Jones was convicted of three counts of unlawful sexual
    penetration in the first degree pursuant to Oregon Revised
    Statute § 163.411 for the sexual abuse of his sister, S.J.2 He
    was sentenced to three concurrent 100-month terms of
    imprisonment, plus a consecutive 75-month term for a related
    offense. His conviction and sentence were affirmed on direct
    appeal.
    1
    Because Jones did not raise his actual innocence claim in state court,
    it was not “adjudicated on the merits in State Court proceedings,” and,
    therefore, the limitations imposed on our habeas review by 28 U.S.C.
    § 2254(d) do not apply. While a habeas petitioner in federal court must
    ordinarily exhaust his claims in state court, see 28 U.S.C. § 2254(b)(1), we
    review Jones’ unexhausted actual innocence claim pursuant to 28 U.S.C.
    § 2254(b)(2) (“An application for a writ of habeas corpus may be denied
    on the merits, notwithstanding the failure of the applicant to exhaust the
    remedies available in the courts of the State.”).
    2
    The statute provides:
    [A] person commits the crime of unlawful sexual
    penetration in the first degree if the person penetrates
    the vagina, anus or penis of another with any object
    other than the penis or mouth of the actor and . . . [t]he
    victim is under 12 years of age . . . .
    OR. REV. STAT. § 163.411(1) (2014).
    6                        JONES V. TAYLOR
    At Jones’ 2003 trial, S.J. testified that Jones went inside
    her vagina with his finger on multiple occasions in late 1998
    or early 1999, when she was approximately nine years old
    and Jones was approximately seventeen. She testified that
    Jones “wiggled” his finger and moved it “back and forth”
    inside her vagina, and that it hurt when he did this. Her
    testimony at trial was consistent with her description of the
    abuse in two videotaped interviews that were played for the
    jury, one with a mental health counselor in 2000 and another
    with a police detective in 2002. In these interviews, as in her
    trial testimony, S.J. stated that Jones touched inside her
    vagina with his finger, though her memory seemed to have
    faded somewhat by the 2002 interview, and she was less sure
    in that interview of what had happened than she had been in
    the 2000 interview.
    S.J. and Jones’ father, Ken Jones, and their sister, Jennifer
    Pond, also testified at trial. Ken Jones testified that Jones
    admitted that he penetrated S.J., recounting that Jones said: “I
    admit, I penetrated her.” Jennifer Pond similarly testified that
    Jones admitted to penetrating S.J., stating that he said “I
    admit the full thing,” in the context of a conversation about
    allegations that he abused S.J. Jennifer Pond also testified at
    trial that in late 1998 or early 1999, S.J. came to her
    complaining of vaginal pain and that she noticed that S.J.’s
    vaginal area looked “a little red.” The late 1998 or early 1999
    time period coincided with the time period in which the
    sexual abuse occurred.3
    3
    The 1998 or 1999 time period is based on S.J.’s testimony that the
    sexual abuse occurred while the family was living in a house in Toledo,
    into which the family moved in late 1998.
    JONES V. TAYLOR                         7
    All three witnesses have since recanted. S.J. came
    forward in 2012 saying that her description of the abuse at
    trial and in the 2000 and 2002 interviews was inaccurate. S.J.
    explains that her previous testimony that Jones put his finger
    inside her vagina was inaccurate and that he did not, in fact,
    put his finger inside her vagina. She says she was mistaken
    in her trial testimony and in the 2000 and 2002 interviews
    because she did not at the time understand that her genitals
    had an inside area capable of penetration. She explains that
    she was raised in a very conservative household, where she
    never received sex education, and therefore did not
    understand her sexual anatomy. She maintains that now that
    she better understands her sexual anatomy, she knows that
    Jones did not penetrate her vagina with his finger.
    Ken Jones and Jennifer Pond also recanted their testimony
    at around the same time S.J. came forward. Ken Jones now
    claims that Jones did not say he penetrated her, but rather that
    he said “I admit the whole thing.” Ken Jones explains that he
    previously assumed Jones was referring to sexual penetration
    of S.J., but upon further reflection, now realizes that Jones
    was actually referring to a burglary when he said “I admit the
    whole thing.” Jennifer Pond now similarly claims that the
    admission was made in the context of a conversation about a
    burglary, not sexual abuse. She also now claims that it was
    sometime between 1993 and 1997 when S.J. complained to
    her of vaginal pain and she observed redness in S.J.’s vaginal
    area, rather than 1998 or 1999. She explains the change in
    the timeline only by saying, “I guess that’s how I
    remembered it at the time.”
    Based on this new evidence, Jones claims that he is
    factually innocent of the crime of sexual penetration and
    seeks release on that ground. Jones does not contend that he
    8                        JONES V. TAYLOR
    did not sexually abuse S.J. S.J. testified at the evidentiary
    hearing that Jones touched her genitals, and Jones admitted to
    doing so in a separate hearing before the district court. Jones’
    only contention is that he is innocent of the crime of unlawful
    sexual penetration because, although he touched S.J.’s
    genitals with his hand, he did not penetrate her vagina when
    he touched her genitals.
    B.
    On December 2, 2010, Jones filed a pro se petition for a
    writ of habeas corpus under 28 U.S.C. § 2254 in federal
    district court. On July 5, 2012, Jones, through counsel, filed
    an amended petition. On August 9, 2013, Jones filed a
    motion for release pending resolution of the habeas
    proceedings, and on August 28, 2013, the district court held
    a hearing on that motion.4 Jones and Ken Jones testified at
    the August 28, 2013, hearing. During his testimony in that
    proceeding, Jones, who did not testify at trial, stated that he
    never penetrated S.J.’s vagina. It was also at the August 28,
    2013, hearing that Ken Jones recanted his trial testimony,
    explaining that his statement that Jones admitted to sexually
    penetrating S.J. was incorrect. The district court continued
    the hearing, and heard additional testimony on October 23
    and 24, 2013. During those hearings, S.J. and Jennifer Pond
    testified. S.J. testified to the facts described above, stating
    that Jones had never penetrated her, and Jennifer Pond
    recanted her trial testimony, as described above.
    4
    This hearing on the motion for release pending resolution of the habeas
    proceeding turned into an unscheduled and non-noticed three-day
    evidentiary hearing on the merits of the actual innocence claim.
    JONES V. TAYLOR                          9
    On December 19, 2013, the district court issued an
    opinion and order granting Jones’ habeas petition. Jones v.
    Franke, 
    2013 WL 6780605
    (D.Or. 2013). It denied relief on
    four of Jones’ claims, which are not relevant to this appeal,
    but granted relief on the freestanding actual innocence claim.
    
    Id. at *8–*10.
    The district court found S.J.’s recantation
    credible in full, 
    id. at *10,
    and credited the portion of Ken
    Jones’ recantation in which he stated that Jones had never
    admitted to penetrating S.J., 
    id. at *9.
    The district court
    further concluded that Jennifer Pond’s recantation was
    irrelevant to Jones’ actual innocence claim. 
    Id. at *9–*10.
    Based on the recantations by S.J. and Ken Jones, the district
    court found that, assuming a freestanding actual innocence
    claim was cognizable, Jones had made a sufficient showing
    of actual innocence on the unlawful sexual penetration charge
    to merit habeas relief. It therefore ordered the State to release
    Jones from custody and discharge him from all adverse
    consequences related to the unlawful penetration convictions.
    
    Id. at *10–*11.
    The State timely appealed.
    II.
    In general, we review de novo the district court’s decision
    to grant or deny a habeas petition, while factual findings and
    credibility determinations underlying the decision are
    reviewed for clear error. Lambert v. Blodgett, 
    393 F.3d 943
    ,
    964 (9th Cir. 2004). However, as we recently recognized in
    Stewart v. Cate, No. 10-55985, 
    2014 WL 1707033
    , at *7 (9th
    Cir. May 1, 2014) (as amended), the standard of review
    applicable to claims of actual innocence “is not entirely
    settled in this circuit.”
    Jones contends that the district court’s conclusion that he
    is actually innocent of the crime of unlawful sexual
    10                         JONES V. TAYLOR
    penetration is a factual finding that we should review for clear
    error. Jones, however, overstates the effect of the district
    court’s decision: While we review for clear error the district
    court’s credibility findings as to the witnesses who testified
    at the evidentiary hearing, the district court’s conclusion that
    Jones is actually innocent of the crime of unlawful sexual
    penetration is a question we review either de novo or for
    abuse of discretion. See 
    id. (contrasting the
    abuse of
    discretion review applied in Schlup v. Delo, 
    513 U.S. 298
    ,
    333–34 (1995) (O’Connor, J., concurring), and Paradis v.
    Arave, 
    130 F.3d 385
    , 396–99 (9th Cir. 1997), with the de
    novo review applied in cases like House v. Bell, 
    547 U.S. 518
    ,
    539–40 (2006), and Larsen v. Soto, 
    742 F.3d 1083
    , 1092 n.6
    (9th Cir. 2013). As the Supreme Court has explained, an
    actual innocence finding “requires a holistic judgment about
    ‘all the evidence’ and its likely effect on reasonable jurors
    applying the reasonable-doubt standard.” 
    House, 547 U.S. at 539
    (quoting Schlup v. Delo, 
    513 U.S. 298
    , 328 (1995)).
    “[T]he inquiry does not turn on discrete findings regarding
    disputed points of fact, and ‘[i]t is not the district court’s
    independent judgment as to whether reasonable doubt exists
    that the standard addresses.’” 
    Id. at 539–40
    (quoting 
    Schlup, 513 U.S. at 329
    (emendations in original)).
    As in Stewart, “[w]e need not determine which standard
    is correct in this case . . . because under either standard
    [Jones] has failed to establish” a freestanding claim of actual
    innocence.5 
    2014 WL 1707033
    , at *7. We therefore choose
    5
    In its opinion holding that Jones established his actual innocence of
    sexual penetration, the district court abused its discretion by applying the
    wrong legal standard. See Koon v. United States, 
    518 U.S. 81
    , 100 (1996)
    (“A district court by definition abuses its discretion when it makes an error
    of law.”). While the Supreme Court has indicated that a court must make
    JONES V. TAYLOR                              11
    to review de novo the district court’s conclusion that Jones is
    actually innocent, based on our holistic assessment of the
    evidence adduced at the hearings before the district court and
    at trial and the likely effect all this evidence would have on
    reasonable jurors in order to clarify how district courts should
    evaluate actual innocence claims.
    III.
    A.
    We have not resolved whether a freestanding actual
    innocence claim is cognizable in a federal habeas corpus
    proceeding in the non-capital context, although we have
    assumed that such a claim is viable. See Osborne v. Dist.
    Attorney’s Office for the Third Judicial Dist., 
    521 F.3d 1118
    ,
    1130 (9th Cir. 2008), rev’d on other grounds, 
    557 U.S. 52
    (2009); see also McQuiggin v. Perkins, 
    133 S. Ct. 1924
    , 1931
    (2013) (noting that it is, as yet, unresolved whether a
    freestanding actual innocence claim is cognizable in a federal
    habeas proceeding); Herrera v. Collins, 
    506 U.S. 390
    , 417
    (1993) (acknowledging the possibility that a freestanding
    actual innocence claim would exist in the capital context).
    We need not resolve this difficult question today, however,
    because, even assuming that such a free standing claim of
    actual innocence in a non-capital case is cognizable, we
    “a holistic judgment about ‘all the evidence’ and its likely effect on
    reasonable jurors applying the reasonable-doubt standard,” 
    House, 547 U.S. at 539
    (quoting 
    Schlup, 513 U.S. at 328
    ), here, the district court
    evaluated only the new evidence, the witnesses’ recantations, without
    engaging in a holistic assessment of all the evidence or explaining the
    likely effect of the new evidence on reasonable jurors. See Jones, 
    2013 WL 67800605
    , at *9–*10.
    12                    JONES V. TAYLOR
    conclude that Jones has not made a sufficient showing to
    merit relief.
    The standard for establishing a freestanding claim of
    actual innocence is “‘extraordinarily high’ and . . . the
    showing [for a successful claim] would have to be ‘truly
    persuasive.’” Carriger v. Stewart, 
    132 F.3d 463
    , 476 (9th
    Cir. 1997) (quoting 
    Herrera, 506 U.S. at 417
    ). We have held
    that, at a minimum, the petitioner must “go beyond
    demonstrating doubt about his guilt, and must affirmatively
    prove that he is probably innocent.” 
    Id. (citing Herrera,
    506 U.S. at 442–44 (Blackmun, J., dissenting)). While we
    have not articulated the precise showing required, we have
    discussed the standard for a freestanding actual innocence
    claim by reference to the Schlup “gateway” showing, which
    permits a petitioner to proceed on a procedurally barred claim
    by showing actual innocence. See, e.g., 
    House, 547 U.S. at 554
    –55; 
    Carriger, 132 F.3d at 477
    . In order to pass through
    the Schlup actual innocence gateway, a petitioner must
    demonstrate that “in light of new evidence, ‘it is more likely
    than not that no reasonable juror would have found [the]
    petitioner guilty beyond a reasonable doubt.’” 
    House, 547 U.S. at 537
    (quoting 
    Schlup, 513 U.S. at 327
    ). This new
    evidence must be reliable, and the reviewing court “may
    consider how the timing of the submission and the likely
    credibility of the affiants bear on the probable reliability of
    that evidence.” 
    Schlup, 513 U.S. at 332
    . The federal habeas
    court “must consider all the evidence, old and new,
    incriminating and exculpatory, without regard to whether it
    would necessarily be admitted under rules of admissibility
    that would govern at trial.” 
    House, 547 U.S. at 538
    (internal
    quotation marks and citation omitted). “Based on this total
    record, the court must make ‘a probabilistic determination
    JONES V. TAYLOR                       13
    about what reasonable, properly instructed jurors would do.’”
    Id. (quoting 
    Schlup, 513 U.S. at 329
    ).
    The Supreme Court most recently applied this framework
    in House. See 
    id. at 554–55.
    There, new DNA evidence
    showed that semen found on the victim was not the
    petitioner’s, negating the prosecution’s theory of motive and
    undermining the petitioner’s link to the crime scene. 
    Id. at 540–41.
    Additionally, new scientific evidence proved that
    blood found on the petitioner’s clothes could not have come
    from the victim while she was alive. 
    Id. at 542–46.
    The
    evidence in that case also included new testimony from
    multiple, disinterested witnesses who testified to facts
    implicating a different suspect and whose testimony was
    supported by independent evidence. 
    Id. at 548–53.
    The
    Court found this evidence insufficient to meet the high
    standard required to merit relief on a freestanding actual
    innocence claim because it was not a case of “conclusive
    exoneration,” and several pieces of evidence remained
    uncontested that pointed to the petitioner’s guilt. For
    example, there was blood on the petitioner’s pants and
    testimony that could reasonably be interpreted as connecting
    him to the crime scene. 
    Id. at 553–55.
    In Jackson v. Calderon, 
    211 F.3d 1148
    (9th Cir. 2000),
    we similarly applied this framework and rejected a
    freestanding actual innocence claim despite new scientific
    evidence. There, the petitioner presented new expert medical
    testimony that, to a 95 percent medical certainty, the
    petitioner could not have had the requisite premeditation and
    specific intent to kill because he was intoxicated with PCP at
    the time of the murder. 
    Id. at 1165.
    We concluded that
    although that evidence “certainly cast doubt” on the
    petitioner’s guilt, it was insufficient to warrant relief on a
    14                   JONES V. TAYLOR
    freestanding habeas petition because another doctor testified
    that a person with petitioner’s level of intoxication would
    “not necessarily be unable to process thought, premeditate,
    deliberate and intend to kill.” 
    Id. Finally, in
    Carriger, we rejected a freestanding actual
    innocence claim based on our conclusion that the petitioner
    had “presented no evidence, for example, demonstrating he
    was elsewhere at the time of the murder, nor [was] there any
    new and reliable physical evidence, such as DNA, that would
    preclude any possibility of [his] 
    guilt.” 132 F.3d at 477
    .
    There, we rejected the petitioner’s claim even though another
    suspect reliably confessed to the murder, described details of
    the crime that only a participant would have known, and
    boasted that the petitioner had been set up, and all the other
    evidence pointed as directly to the new suspect as to the
    petitioner. 
    Id. at 478–79.
    B.
    With these cases as guideposts, we cannot say that Jones
    has demonstrated that he is probably innocent. Jones asserts
    his innocence based on recantation testimony alone. His
    petition is therefore lacking the type of proof Carriger
    implied might be sufficient; indeed, the proof is even less
    reliable than the evidence rejected in House, Jackson, and
    Carriger, because it is all in the form of recantation
    testimony, uncorroborated by any other evidence. As a
    general matter, “[r]ecantation testimony is properly viewed
    with great suspicion.” Dobbert v. Wainwright, 
    468 U.S. 1231
    , 1233 (1984) (Brennan, J., dissenting from denial of
    certiorari); see also Allen v. Woodford, 
    395 F.3d 979
    , 994
    (9th Cir. 2004). “Recanting testimony is easy to find but
    difficult to confirm or refute: witnesses forget, witnesses
    JONES V. TAYLOR                         15
    disappear, witnesses with personal motives change their
    stories many times, before and after trial.” 
    Carriger, 143 F.3d at 483
    (Kozinski, J., dissenting). “It upsets society’s
    interest in the finality of convictions, is very often unreliable
    and given for suspect motives . . . .” 
    Dobbert, 468 U.S. at 1233
    –34. For these reasons, a witness’ “later recantation of
    his trial testimony does not render his earlier testimony
    false.” 
    Allen, 395 F.3d at 994
    ; see also Christian v. Frank,
    
    595 F.3d 1076
    , 1084 n.11 (9th Cir. 2010). Rather, a witness’
    recantation is 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. See 
    Christian, 595 F.3d at 1084
    n.11 (considering the timing of the witness’ recantation
    and the contents of his earlier testimony in assessing the
    weight of the recantation); Graves v. Cockrell, 
    351 F.3d 143
    ,
    153 (5th Cir. 2003) (noting that a recanting witness had given
    numerous contradictory statements in assessing the weight to
    give to his new testimony).
    Although the district court found S.J. credible and Ken
    Jones credible in part, we do not rely on these determinations
    because we are uncertain about the basis for some of the
    district court’s conclusions and unpersuaded that every
    reasonable juror would credit the recantations as the district
    court did. See 
    House, 547 U.S. at 539
    –40 (noting that it
    would consider the likely effect of testimony on reasonable
    jurors and was not bound by the district court’s assessment of
    the witnesses, especially given that its explanation for its
    credibility finding was unclear).
    The district court stated that it credited Ken Jones’
    testimony, but also noted that it was apparent from the record
    that his motivation for recanting was his naive belief that
    Jones could not have digitally penetrated S.J.’s vagina
    16                    JONES V. TAYLOR
    because a subsequent physical examination demonstrated that
    S.J.’s hymen was intact. Jones, 
    2013 WL 6780605
    , at *9.
    From the record before us, it appears that the district court did
    not resolve this conflict in crediting Ken Jones’ testimony.
    Similarly, the district court credited S.J.’s testimony, but
    also noted that it could not “assess to what degree, if any
    [S.J.’s] present recantation has been influenced by her
    family—K. Jones and Pond in particular.” 
    Id. at *10.
    The
    district court’s failure to resolve whether S.J. was influenced
    to recant by her family is particularly troubling in light of its
    description of Ken Jones as “imposing and controlling” and
    someone who “dominated” “a highly dysfunctional home.”
    
    Id. In other
    words, we cannot assess why the district court
    found S.J.’s testimony credible despite the possibility, which
    it recognized, that her father pressured her into recanting.
    Although the district court noted that her testimony about her
    conservative upbringing and limited knowledge was
    corroborated by the record, this conclusion does not preclude
    the possibility that S.J. was influenced to testify by her family
    and does not prove the truth of her assertion that Jones did not
    penetrate her. We therefore conclude that the district court’s
    bases for crediting S.J.’s and Ken Jones’ testimony are
    unclear, “a consideration that weakens our reliance on its
    determinations.” See 
    House, 547 U.S. at 539
    –40.
    Several features of the recantations here persuade us that
    they are insufficient to prove Jones’ innocence. The
    recantations are all from Jones’ family members, which
    reduces their weight and reliability. See 
    House, 547 U.S. at 552
    (noting that testimony by friends or relations of the
    accused might have less probative value than testimony from
    disinterested witnesses); McCray v. Vasbinder, 
    499 F.3d 568
    ,
    573 (6th Cir. 2007) (noting that family members might have
    JONES V. TAYLOR                          17
    a personal stake in a defendant’s exoneration). Moreover, all
    three witnesses came forward with changed stories at roughly
    the same time, years after trial, and only one of them
    provided a reason for the delay. The other two changed their
    stories long after trial with no more explanation than that
    their memories and understandings of the events had
    changed. The timing of the recantations casts some doubt on
    their veracity, especially as to Ken Jones and Jennifer Pond,
    who provide no explanation for their delay in coming
    forward. See 
    Christian, 595 F.3d at 1084
    n.11 (noting that a
    witness’ recantation was “especially unreliable given that it
    was made more than a decade after his original [testimony]”);
    
    McCray, 499 F.3d at 573
    (discounting evidence from
    witnesses who did not provide a good explanation for why
    they delayed in coming forward).
    But even if we accept that the three witnesses testified
    truthfully based on their memory at the time of the
    evidentiary hearing, i.e., if we accept, as the district court did,
    that they did not change their story for ulterior motives, their
    recantations are insufficient to demonstrate that Jones is
    actually innocent under the standard applied in House,
    Jackson, and Carriger. Neither Ken Jones’ nor Jennifer
    Pond’s recantation constitutes compelling evidence of Jones’
    innocence, even assuming the jury were to believe their
    recantations over their trial testimony. Because neither
    witnessed the abuse, their testimony is of little weight in the
    actual innocence analysis. Cf. 
    Schlup, 513 U.S. at 324
    (identifying “trustworthy eyewitness accounts” as evidence
    that might be sufficient to show actual innocence); 
    Carriger, 132 F.3d at 483
    (same); see also Cox v. Burger, 
    398 F.3d 1025
    , 1031 (8th Cir. 2005) (discounting testimony from a
    witness who was not present at the scene of the crime in
    assessing an actual innocence claim). A reasonable juror
    18                    JONES V. TAYLOR
    could either convict or acquit based on S.J.’s testimony,
    regardless of whether Jones admitted to his father and sister
    that he penetrated S.J. or whether S.J. complained to Jennifer
    Pond of vaginal area soreness around the time of the abuse.
    That leaves S.J.’s recantation as the most compelling
    evidence of Jones’ innocence. See Gandarela v. Johnson,
    
    286 F.3d 1080
    , 1086 (9th Cir. 2001) (suggesting that victim
    recantation or eye witness testimony may be given more
    weight in assessing an actual innocence claim than other
    types of evidence). But see Doe v. Menefee, 
    391 F.3d 147
    ,
    173 (2d Cir. 2004) (rejecting a Schlup claim despite the
    victim’s recantation). We do not, however, find that even her
    recantation is sufficient to establish Jones’ probable
    innocence because we cannot say that every juror would
    credit her recantation testimony over her trial testimony and
    the descriptions of the abuse she gave in her 2000 and 2002
    interviews, even if they believed that she testified truthfully
    to the best of her present recollection at the evidentiary
    hearing.
    There are several impediments to fully crediting S.J.’s
    recantation testimony over her trial testimony. Like much
    recantation testimony, S.J.’s recantation occurred years after
    the events she describes. Jones abused S.J. in late 1998 or
    early 1999, when S.J. was nine years old; this was
    approximately thirteen years before she came forward with
    her recantation. A reasonable juror could very well believe
    that S.J.’s memory of the abuse faded or changed in the more
    than thirteen years since the incident occurred and, for that
    reason, credit the testimony that was closer in time to the
    abuse. See 
    Herrera, 506 U.S. at 403
    –04 (noting that the
    passage of time diminishes the reliability of criminal
    convictions, in part due to the erosion of memory that occurs
    JONES V. TAYLOR                        19
    over time); McCleskey v. Zant, 
    499 U.S. 467
    , 491 (1991)
    (recognizing that witnesses’ memories erode over time); see
    also 
    Christian, 595 F.3d at 1084
    n.11.
    There is also some specific indication in the record before
    us that S.J.’s memory of the abuse might have faded or
    changed in the thirteen years that have passed since the abuse
    occurred. S.J.’s memory of the abuse appeared to have
    already faded somewhat by 2002. In her 2002 interview, S.J.
    recounted many details of the abuse, but also stated
    repeatedly that she did not remember exactly what had
    happened. A reasonable juror could infer that if S.J. forgot
    many details of the abuse three years after it occurred, her
    memory of the abuse had further faded in the additional ten
    years since that time. A reasonable juror could thus conclude
    that S.J.’s earlier testimony was more reliable and, therefore,
    credit her earlier description that Jones penetrated her vagina
    with his finger over her present assertion that he did not.
    Further, many of the issues raised in S.J.’s recantation
    were presented to the jury at trial. S.J. explains in her
    recantation that she did not understand her anatomy at the
    time of trial or the preceding interviews, so she was incorrect
    when she said that Jones penetrated her vagina. Jones further
    contends in his petition that the terms S.J. used at trial – the
    term “vagina,” in particular – were provided to her and that
    she did not understand what they meant, in part due to her
    conservative upbringing. These facts are of little relevance in
    establishing Jones’ innocence on a habeas petition, however,
    because the jury was presented with these issues at trial and
    convicted Jones anyway. The jury was aware when it
    rendered its decision that S.J. had limited knowledge of her
    sexual anatomy and that she learned the terms she used to
    describe the abuse during interviews about the abuse. That
    20                        JONES V. TAYLOR
    the jury nevertheless voted to convict Jones of unlawful
    sexual penetration suggests that it did not rely on S.J.’s
    knowledge of her sexual anatomy in concluding that Jones
    penetrated S.J. with his finger. See Wood v. Hall, 
    130 F.3d 373
    , 379 (9th Cir. 1997) (“That the jury nevertheless voted to
    convict [despite its knowledge that the victim had an intact
    hymen] suggests that they did not believe an intact hymen
    disproved [the defendant’s] guilt.”). This circumstance
    therefore undermines the inference that no reasonable juror
    would have convicted Jones in light of the purportedly new
    evidence about S.J.’s limited anatomical knowledge at the
    time of trial. See 
    id. (discounting the
    relevance of facts of
    which the jury was aware in establishing actual innocence).
    Finally, a reasonable juror would not be required to rely
    exclusively on S.J.’s assessment of whether Jones penetrated
    her vagina in determining his guilt. A reasonable juror could
    conclude that Jones penetrated S.J. based on S.J.’s description
    of Jones’ actions and her sensations of them, regardless of
    whether she describes the abuse as penetration. In her
    interviews and trial testimony, S.J. said that it hurt when
    Jones touched her genitals and that Jones “wiggled” his finger
    and moved it “back and forth.” A reasonable juror could
    conclude that this description is consistent with penetration,
    even if S.J. did not know at the time what it meant to be
    penetrated.6
    The most that can be said of the new testimony is that it
    undercuts the evidence presented at trial. Evidence that
    6
    The statute, Or. Rev. Stat. § 16.411(1), does not define “penetration,”
    but in the related crime of rape, “sexual intercourse, is defined as having
    “its ordinary meaning and occurs upon any penetration, however slight.”
    Or. Rev. Stat. § 163.305(7).
    JONES V. TAYLOR                         21
    merely undercuts trial testimony or casts doubt on the
    petitioner’s guilt, but does not affirmatively prove innocence,
    is insufficient to merit relief on a freestanding claim of actual
    innocence. See 
    House 547 U.S. at 555
    (rejecting freestanding
    actual innocence claim even though the petitioner had “cast
    considerable doubt on his guilt”); 
    Jackson, 211 F.3d at 1165
    (rejecting a freestanding actual innocence claim even though
    the petitioner’s new evidence “certainly cast doubt on his
    conviction”); 
    Carriger, 132 F.3d at 477
    (rejecting a
    freestanding claim when the postconviction evidence
    “serve[d] only to undercut the evidence presented at trial, not
    affirmatively to prove [the petitioner’s] innocence”).
    There is no “new and reliable physical evidence, such as
    DNA, that would preclude any possibility of [Jones’s] guilt.”
    
    Carriger, 132 F.3d at 477
    . Nor is there scientific or
    testimonial evidence even as persuasive as the evidence in
    House and Jackson, which was found to be insufficient. The
    recantations here are not from disinterested eyewitnesses,
    and, although victim recantation might in some instances be
    evidence of innocence, see 
    Gandarela, 286 F.3d at 1086
    , for
    the reasons discussed above, the recantation here is not
    sufficiently reliable that we can conclude that every juror
    would credit it. Further, as in House, there is other
    testimonial evidence supporting the verdict, which further
    persuades us that habeas relief is not warranted in this
    instance. See 
    House, 547 U.S. at 553
    –54. We, therefore,
    cannot say that “in light of the new evidence, no juror, acting
    reasonably, would have voted to find [Jones] guilty beyond
    a reasonable doubt.” 
    Schlup, 513 U.S. at 329
    . Accordingly,
    we hold that Jones has not made the “‘extraordinarily high’”
    and “‘truly persuasive’” showing required for habeas relief on
    a freestanding claim of actual innocence. See 
    Carriger, 132 F.3d at 476
    (quoting 
    Herrera, 506 U.S. at 417
    ).
    22                  JONES V. TAYLOR
    IV.
    For the foregoing reasons, the judgment of the district
    court is REVERSED.
    

Document Info

Docket Number: 13-36202

Citation Numbers: 763 F.3d 1242

Filed Date: 8/19/2014

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (19)

John Doe v. Frederick Menefee, Warden, Warden of the ... , 391 F.3d 147 ( 2004 )

Anthony Graves v. Janie Cockrell, Director, Texas ... , 351 F.3d 143 ( 2003 )

Donald M. PARADIS, Petitioner-Appellant, v. A.J. ARAVE, ... , 130 F.3d 385 ( 1997 )

Hector Clyde WOOD, Petitioner-Appellant, v. Frank HALL, ... , 130 F.3d 373 ( 1997 )

Clyde Phillip Cox v. Ken Burger, Warden , 398 F.3d 1025 ( 2005 )

McCray v. Vasbinder , 499 F.3d 568 ( 2007 )

Dobbert v. Wainwright, Secretary, Florida Department of ... , 468 U.S. 1231 ( 1984 )

Herrera v. Collins , 113 S. Ct. 853 ( 1993 )

Osborne v. District Attorney's Office for the Third ... , 521 F.3d 1118 ( 2008 )

Donald Eugene Lambert v. James Blodgett, Donald Eugene ... , 393 F.3d 943 ( 2004 )

97-cal-daily-op-serv-9421-97-daily-journal-dar-15151-paris-hoyt , 132 F.3d 463 ( 1997 )

Michael Jackson v. Arthur Calderon, Warden , 211 F.3d 1148 ( 2000 )

Christian v. Frank , 595 F.3d 1076 ( 2010 )

House v. Bell , 126 S. Ct. 2064 ( 2006 )

McCleskey v. Zant , 111 S. Ct. 1454 ( 1991 )

Schlup v. Delo , 115 S. Ct. 851 ( 1995 )

Koon v. United States , 116 S. Ct. 2035 ( 1996 )

District Attorney's Office for the Third Judicial District ... , 129 S. Ct. 2308 ( 2009 )

McQuiggin v. Perkins , 133 S. Ct. 1924 ( 2013 )

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