                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 19 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

FREDRICK EARL BAIN,                             No.    18-35683

                Petitioner-Appellant,           D.C. No. 3:16-cv-00458-MA

 v.
                                                MEMORANDUM*
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.

                   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.
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


                                            2
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

                                          3
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.”).




                                          4
                                                                                FILED
                                                                                 AUG 19 2019
Bain v. Thompson, No. 18-35683                                               MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

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,
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.
