742 F.3d 1131
9th Cir.2014Background
- In 2006 Kelly Vosgien pled guilty in Oregon to ten counts: three compelling prostitution counts, three rape counts, three sodomy counts, and one sexual abuse count; he was sentenced to over 55 years.
- He did not appeal; after state collateral review rejected his ineffective-assistance claims, he filed a federal §2254 habeas petition that was untimely under AEDPA.
- Vosgien sought to excuse the AEDPA timeout by invoking Schlup’s actual-innocence gateway for the three compelling prostitution counts, relying on later Oregon case law interpreting the statute.
- Oregon courts subsequently held that Oregon’s compelling-prostitution statute requires inducing prostitution with others (i.e., procuring sexual favors for a third party), whereas Vosgien’s conduct was procuring sex for himself.
- The district court dismissed the petition, adopting a magistrate judge’s view that Vosgien’s showing of innocence as to only the lesser counts was insufficient under Bousley; Vosgien appealed.
- The Ninth Circuit held Vosgien is actually innocent of the three compelling-prostitution counts (so AEDPA’s timeliness is excused as to those counts) but did not extend Schlup relief to the rape, sodomy, and sexual-abuse counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Schlup actual-innocence gateway applies to the compelling-prostitution counts and excuses AEDPA untimeliness | Vosgien: later Oregon law shows he legally could not have committed compelling prostitution (he procured sex for himself), so he’s actually innocent of those counts | State: Vosgien’s conduct was still criminal under other statutes; and because he pled guilty to more serious counts, he must show innocence of those too under Bousley | Court: Schlup gateway applies to the compelling-prostitution counts; Vosgien is actually innocent of those counts and AEDPA untimeliness is excused for them |
| Whether Vosgien must show innocence of other, more serious counts to obtain Schlup review of the compelling-prostitution counts | Vosgien: only need to show innocence of the specific counts that are invalid under subsequent law | State: Bousley requires showing innocence of more serious charges forgone in plea bargaining | Court: Bousley’s “more serious charges” concern applies only where the prosecutor dropped more serious charges in bargaining; here no charges were dismissed, so Vosgien need only show innocence of the counts at issue |
| Whether a showing of actual innocence as to some counts opens Schlup for all counts arising from the same plea | Vosgien: innocence of some counts should allow review of all constitutional claims from the plea | State: permitting that would let petitioners escape liability for other convictions | Court: Schlup relief is limited to counts for which actual innocence is shown; it does not open review for counts where petitioner does not claim innocence |
| Scope of remand and further proceedings | Vosgien: district court should review constitutional claims on the merits for the compelling-prostitution counts | State: may raise defenses | Court: reversed as to compelling-prostitution counts and remanded for merits consideration; dismissal affirmed as to other counts |
Key Cases Cited
- Schlup v. Delo, 513 U.S. 298 (1995) (establishes actual-innocence gateway to overcome procedural defaults)
- Bousley v. United States, 523 U.S. 614 (1998) (post-plea legal developments can support an actual-innocence showing; concerns about dropped, more serious charges in plea bargains)
- McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) (actual innocence can excuse AEDPA’s statute of limitations)
- Bailey v. United States, 516 U.S. 137 (1995) (interpretation of statutory element formed the basis for Bousley’s actual-innocence analysis)
- State v. Vargas-Torres, 242 P.3d 619 (Or. Ct. App. 2010) (interpreting Oregon’s compelling-prostitution statute to require procuring prostitution with others)