Jeremy Childs v. B. Amsberry

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 10, 2024
• Docket: 22-35860
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JEREMY EUGENE CHILDS, No. 22-35860

Petitioner-Appellant, D.C. No. 2:17-cv-00360-SI

v. MEMORANDUM* B. AMSBERRY, Superintendent of TRCI,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted April 1, 2024** Portland, Oregon

Before: OWENS and FRIEDLAND, Circuit Judges, and ORRICK,*** District Judge.

Jeremy Childs appeals from the district court’s dismissal of his 28 U.S.C.

§ 2254 habeas petition as untimely. As the parties are familiar with the facts, we

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable William Horsley Orrick, United States District Judge for the Northern District of California, sitting by designation. do not recount them here. We affirm.

We review the denial of a habeas petition de novo and the underlying factual

findings and credibility determinations for clear error. Larsen v. Soto, 742 F.3d

1083, 1091-92 (9th Cir. 2013). We review the denial of an evidentiary hearing

under 28 U.S.C. § 2254 for abuse of discretion. Smith v. Baldwin, 510 F.3d 1127,

1137 (9th Cir. 2007) (en banc).

1. We do not have jurisdiction over Childs’s statutory and equitable tolling

arguments. “[A] certificate of appealability is a prerequisite to our assertion of

jurisdiction . . . .” James v. Giles, 221 F.3d 1074, 1076 (9th Cir. 2000). A court

can issue one “only if the applicant has made a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). “The certificate of

appealability . . . indicate[s] which specific issue or issues satisfy [the above]

showing . . . .” Id. § 2253(c)(3). Here, the district court issued a certificate of

appealability “as to whether [Childs] can excuse the untimely filing” of his

petition. The court only used the word “excuse” when analyzing Childs’s actual

innocence claim and it is not apparent from the court’s analysis that it believed

Childs made the requisite showing for a certificate of appealability for his statutory

or equitable tolling arguments. Although we have discretion to expand the

certificate of appealability, see Reno v. Davis, 46 F.4th 821, 835 (9th Cir. 2022),

we decline to do so. Accordingly, we only have jurisdiction to review Childs’s

2 actual innocence claim.

2. Childs did not make the requisite showing for actual innocence required

to overcome his untimely habeas petition. A court may consider a procedurally

defaulted claim on the merits “in an extraordinary case, where a constitutional

violation has probably resulted in the conviction of one who is actually

innocent . . . .” Schlup v. Delo, 513 U.S. 298, 321 (1995) (quoting Murray v.

Carrier, 477 U.S. 478, 496 (1986)). “[T]he petitioner must show that it is more

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

the new evidence.” Id. at 327. “Based on [the] total record, the court must make

‘a probabilistic determination about what reasonable, properly instructed jurors

would do.’” House v. Bell, 547 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S. at

329). “As a general matter, ‘[r]ecantation testimony is properly viewed with great

suspicion.’” Jones v. Taylor, 763 F.3d 1242, 1248 (9th Cir. 2014) (quoting

Dobbert v. Wainwright, 468 U.S. 1231, 1233 (1984) (Brennan, J., dissenting from

denial of certiorari)). Where actual innocence is dependent on a recantation, the

standard is whether “every juror would credit [the] recantation testimony over [the]

trial testimony . . . .” Id. at 1250.

Childs did not establish that every juror would find CW’s recantation more

credible than her trial testimony. The district court noted the suspicious timing of

the recantation: five years after Childs’s conviction and “during the very short time

3 [CW] lived in TK’s home.” CW had stated that “TK pressured her” to make the

recantation and that her family was pressuring her to get Childs out of prison. The

court also noted that “[CW’s] statements to DDA Bureta that she could not

remember [Childs] touching her [are] not tantamount to a denial that the touching

[ever] occurred.” These factual findings and credibility determinations are not

clearly erroneous. See United States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010).

Childs contends that CW was truthful in her recantation, despite its timing and

circumstances, because it was corroborated by evidence that CW’s stepfather GG

sexually abused her. This is unconvincing, because evidence that GG abused her

does not make it less likely that CW was truthful in her trial testimony that Childs

abused her.

Moreover, it is not more likely than not that a reasonable juror would have

found Childs innocent based on the total record. The judge at Childs’s bench trial

found CW’s trial testimony about Childs’s abuse “very believable” and

“corroborated in several respects.” DDA Bureta, who interviewed CW after CW’s

recantation, stated that it was unclear “whether [CW was] now recanting because

of family pressure, or because it did not happen.” CW had referenced a time when

Childs was “hurting” her and stated that “he should get in trouble but not that much

trouble.” Childs argues that CW was not credible in her original accusation and

trial testimony because Childs’s wife, employer, and employer’s wife testified that

4 CW was “a happy, outgoing child who sought out [Childs’s] company” and that

those descriptions “did not line up with CW’s claims of ongoing sexual abuse.”

However, it is undisputed that Childs took a photograph of CW’s genitalia without

her consent and showed her the cropped and enlarged photo; a reasonable juror

could find that if that incident did not change CW’s behavior around Childs, her

behavior around him may not have been indicative of his actions toward her.

Childs’s remaining arguments about CW’s credibility are logically

inconsistent and thus unconvincing. Childs contends CW is credible in her

recantation, even though it was made several years after Childs’s conviction, but

that she is not credible in her original allegations of abuse because they were made

“several months after [the abuse] allegedly had happened.” He also contends that

CW is credible in her recantation because GG was “not around” anymore, but that

she is not credible in her withdrawal of her recantation—even though GG was still

“not around”—because she “may have been too frightened of [GG] to maintain her

account.”

3. The district court did not abuse its discretion in denying an evidentiary

hearing. “[T]he court shall not hold an evidentiary hearing on [a] claim unless . . .

the facts underlying the claim would be sufficient to establish by clear and

convincing evidence that but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying offense.” 28 U.S.C.

5 § 2254(e)(2). Based on the foregoing, Childs did not meet this standard.

AFFIRMED.