Argued and Submitted May 12, 2014, Portland, Oregon
Appeal from the United States District Court for the District of Oregon. D.C. No. 3:10 cv-1474 JO. Robert E. Jones, Senior District Judge, Presiding.
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 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.
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.
Before: Arthur L. Alarcón, A. Wallace Tashima, and Sandra S. Ikuta, Circuit Judges.
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 relief. We have jurisdiction under 28 U.S.C. § § 1291 and 2253 and, for the reasons discussed below, we reverse.
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. 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.
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 ...