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Vosgien v. Persson

United States Court of Appeals, Ninth Circuit

February 13, 2014

KELLY J. VOSGIEN, Petitioner-Appellant,
v.
ROB PERSSON, Respondent-Appellee

Argued and Submitted October 8, 2013 Portland, Oregon

Page 1132

Appeal from the United States District Court for the District of Oregon. D.C. No. 3:11-cv-00134-ST. Michael H. Simon, District Judge, Presiding.

Anthony Bornstein (argued), Federal Public Defender's Office, Portland, Oregon, for Petitioner-Appellant.

Kathleen Cegla (argued), Office of the Oregon Attorney General, Salem, Oregon, for Respondent-Appellee.

Before: Barry G. Silverman, William A. Fletcher, and Consuelo M. Callahan, Circuit Judges.

OPINION

Page 1133

W. FLETCHER, Circuit Judge.

In 2006, petitioner Kelly Vosgien pled guilty in Oregon state court to three counts of " compelling prostitution," three counts of rape, three counts of sodomy, and one count of sexual abuse. Vosgien filed an untimely habeas petition in federal district court challenging his convictions. Seeking to excuse the untimeliness of his petition, Vosgien claimed that he was " actually innocent" of the compelling prostitution counts under the standard articulated in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The district court held that he did not meet the Schlup actual innocence standard and dismissed his petition.

Vosgien appeals the district court's determination that he failed to demonstrate actual innocence under Schlup. We agree that he is actually innocent of compelling prostitution, and hold that his untimeliness as to these counts is excused. We therefore reverse the district court's dismissal of Vosgien's petition and remand for further proceedings with respect to the three compelling prostitution counts. However, Vosgien has not demonstrated actual innocence under Schlup with respect to the other counts on which he was convicted. His petition is therefore untimely as to those counts.

I. Background

In 2006, Oregon charged petitioner Kelly Vosgien in a ten-count information for sexual offenses stemming from his abuse of his daughter and another minor. He pled guilty to all counts, including three counts of " compelling prostitution," three counts of rape, three counts of sodomy, and one count of sexual abuse. The court sentenced Vosgien to more than fifty-five years in prison, with the sentence for the compelling prostitution counts running concurrently with the sentence for one of the rape counts.

Vosgien did not file a direct appeal. Two years after his convictions became final, Vosgien collaterally attacked them in Oregon state court, primarily raising claims of ineffective assistance of counsel. The state court rejected Vosgien's claims on the merits and denied relief. The Oregon Court of Appeals affirmed, and the Oregon Supreme Court denied review.

Vosgien then filed a petition for a writ of habeas corpus in federal district court under 28 U.S.C. ยง 2254, alleging largely the same constitutional claims he had raised in state court. Because Vosgien's federal petition was governed by the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), which began to run when his state ...


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