Vosgien v. Persson

A finding of actual innocence will excuse the untimeliness of a 28 U.S.C. § 2254 habeas corpus petition.

Petitioner Kelly Vosgien filed an untimely habeas petition challenging his 2006 convictions for compelling prostitution, rape, sodomy, and sexual abuse. Vosgien pled guilty in state court and did not file a direct appeal. Two years later, after his convictions became final, Vosgien attacked the convictions, alleging ineffectiveness of counsel. The district court dismissed the case on the merits; “the Oregon Court of Appeals affirmed, and the Oregon Supreme Court denied review.” Vosgien then filed an untimely petition for writ of habeas corpus. Vosgien sought to excuse his untimeliness on the grounds that he was actually innocent of the counts of compelling prostitution. The district court held that he did not meet the actual innocence standards under Schlup v. Delo. The Ninth Circuit held that Schlup applies to the counts to which Vosgien claimed actual innocence; that Vosgien need not show innocence of any crime, just innocence of the crime for which he was convicted; and that Vosgien demonstrated actual innocence as to the counts of compelling prostitution but not to the other convictions. REVERSED in part, AFFIRMED in part, and REMANDED.