Fredrick Earl Bain v. SID THOMPSON, Oregon State Board of Parole

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FREDRICK EARL BAIN,
Petitioner-Appellant,
v.
SID THOMPSON, Oregon State Board of
Parole and Post-Prison Supervision;
DEBBIE HUST, Lieutenant, Malheur
County Sheriff Parole and Probation
Division; BRIAN WOLFE, Malheur County
Sheriff,
Respondents-Appellees.
No. 18-35683
D.C. No. 3:16-cv-00458-MA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Argued and Submitted June 3, 2019
Portland, Oregon
Before: MURGUIA and HURWITZ, Circuit Judges, and ZIPPS,** District Judge.
Petitioner was convicted of sexually abusing his daughter. More than seven
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
FILED
AUG 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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years after the trial, Petitioner’s daughter recanted her testimony. Petitioner filed
an untimely habeas petition arguing that his trial counsel was ineffective and that
he could show actual innocence. The district court found that Petitioner failed to
satisfy the gateway standard set forth in Schlup v. Delo, 513 U.S. 298 (1995), and
denied his petition as untimely. We review de novo the district court’s denial of
the petition, Leavitt v. Arave, 383 F.3d 809, 815 (9th Cir. 2004), and we affirm.
Petitioner’s untimeliness is excused if he is able to present new evidence of
innocence that is “so strong that a court cannot have confidence in the outcome of
the trial unless the court is also satisfied that the trial was free of nonharmless
constitutional error[.]” Schlup, 513 U.S. at 316; see also McQuiggin v. Perkins,
569 U.S. 383, 386 (2013).
Petitioner’s new evidence consists of: (1) Petitioner’s daughter’s recantation,
(2) expert testimony regarding children’s memories, and (3) Petitioner’s passing
results from three different polygraph tests. We consider this new evidence along
with the evidence that was presented at trial. See House v. Bell, 547 U.S. 518, 539
(2006).
We conclude that the recantation is substantially weakened by the
surrounding context, including: the delay between the initial allegations and the
recantation, the general nature of the recantation itself, the daughter’s contact with
Petitioner and his family after the trial while Petitioner was in custody, and

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Petitioner’s family’s direct statements and conversations with the daughter
regarding her past allegations. The jury heard much of the information presented
by the new expert witnesses. Finally, we also conclude that Petitioner’s polygraph
results are insufficient alone to satisfy Petitioner’s burden under Schlup. United
States v. Scheffer, 523 U.S. 303, 309 (1998) (stating that “there is simply no
consensus that polygraph evidence is reliable”). Looking holistically at all the
evidence, we cannot find that “it is more likely than not that no reasonable juror
would have convicted [Petitioner] in the light of the new evidence.” Schlup, 513
U.S. at 327.
The district court denied Petitioner an evidentiary hearing. We review this
denial for abuse of discretion. Smith v. Baldwin, 510 F.3d 1127, 1137 (9th Cir.
2007) (en banc). The district court considered all the evidence presented by
Petitioner, including Petitioner’s daughter’s recantation, the new expert witness
testimony, Petitioner’s polygraph results, and the surrounding context of the
daughter’s initial allegations and her recantation.1 The district court did not abuse
1 We respectfully disagree with our dissenting colleague who relies on Jones v.
Taylor, 763 F.3d 1242 (9th Cir. 2014), as an instruction to district courts to hold an
evidentiary hearing whenever a Schlup gateway determination is based on
credibility findings. Jones simply states that, when considering freestanding
claims of actual innocence, district courts should holistically review “‘all the
evidence’ and its likely effect on reasonable jurors applying the reasonable-doubt
standard.’” Id. at 1246 (citation omitted). Jones does not require district courts to
hold an evidentiary hearing in the context presented here; instead, Jones teaches
that, when faced with a recantation, the reviewing court will consider the

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its discretion by denying Petitioner an evidentiary hearing.
AFFIRMED.
recantation “in the context in which [the witness] recanted when assessing the
likely impact it would have on jurors.” Id. at 1248. This is what the district court
did here, and we cannot find that it abused its discretion in doing so without also
holding a hearing. See Estate of Diaz v. City of Anaheim, 840 F.3d 592, 601 (9th
Cir. 2016) (stating that under the abuse of discretion standard, “we reverse only
when we are ‘convinced firmly that the reviewed decision lies beyond the pale of
reasonable justification under the circumstances.’” (citation omitted)); see also
United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (holding that the
district court abuses its discretion only if 1) it made an error of law, and 2) its
factual finding was “illogical, implausible, or without support in inferences that
may be drawn from the record.”).

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Bain v. Thompson, No. 18-35683
HURWITZ, Circuit Judge, dissenting:
In determining that Bain could not pass through the actual innocence
“gateway” of Schlup v. Delo, 513 U.S. 298, 316 (1995), the district court improperly
made credibility findings without the benefit of an evidentiary hearing. I would
remand for that hearing, and therefore respectfully dissent.
Bain was convicted of sexual abuse almost entirely on the basis of statements
made by his daughter, JB; the statements were introduced at trial through the
testimony of Bain’s ex-wife and a police officer. But JB, who was 7 years old when
the incident allegedly occurred, is now 18, and has now firmly stated under oath that
the abuse “never happened.” Bain has also taken and passed three lie detector tests,
each time denying the abuse. And, he has proffered expert opinions questioning the
reliability of the police interview of JB. If all this evidence is credited, it would meet
the demanding Schlup standard.
The district court, however, made its own credibility determinations about this
evidence without an evidentiary hearing. It speculated, for example, that a
hypothetical finder of fact could conclude “that JB’s current recollection is the
product of family influence.” But, JB denied that her family influenced her. The
district judge, although professing not to do so, thus effectively found her testimony
about lack of influence not credible. This case is thus not at all like Stewart v. Cate,
FILED
AUG 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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which the district court cited in denying an evidentiary hearing, because in that case
the “district court concluded that even if it fully credited Stewart’s new
evidence . . . , Stewart would not be entitled to the relief requested.” 757 F.3d 929,
942 (9th Cir. 2014).
The district court similarly erred in summarily dismissing the polygraph tests
as “unreliab[le]” without hearing from the examiners or conducting a Daubert
hearing. See United States v. Cordoba, 104 F.3d 225, 227–28 (9th Cir. 1997)
(finding that polygraph tests are not per se inadmissible); Tennison v. Henry, 246
F.3d 676, 676 (9th Cir. 2000) (mem.) (considering polygraph evidence in support of
actual innocence claim). And, in rejecting the proffered expert opinion, the court
concluded that a juror might not be persuaded by it because it was in the form of a
declaration, and therefore not subject to cross-examination or a chance to make a
credibility determination. But that is precisely the point; if the question of whether
the Schlup gateway is satisfied turns on credibility determinations, those
determinations should not be made without an evidentiary hearing. That is the
teaching of Jones v. Taylor, 763 F.3d 1242, 1248–49 (9th Cir. 2014).
As in Jones, the district court might well, after hearing from the witnesses,
find them less than credible. But it should not have done so without an evidentiary
hearing. I therefore respectfully dissent.

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