NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 10 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEREMY EUGENE CHILDS, No. 22-35860
Petitioner-Appellant, D.C. No. 2:17-cv-00360-SI
v.
MEMORANDUM*
B. AMSBERRY, Superintendent of TRCI,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted April 1, 2024**
Portland, Oregon
Before: OWENS and FRIEDLAND, Circuit Judges, and ORRICK,*** District
Judge.
Jeremy Childs appeals from the district court’s dismissal of his 28 U.S.C.
§ 2254 habeas petition as untimely. As the parties are familiar with the facts, we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William Horsley Orrick, United States District Judge
for the Northern District of California, sitting by designation.
do not recount them here. We affirm.
We review the denial of a habeas petition de novo and the underlying factual
findings and credibility determinations for clear error. Larsen v. Soto, 742 F.3d
1083, 1091-92 (9th Cir. 2013). We review the denial of an evidentiary hearing
under 28 U.S.C. § 2254 for abuse of discretion. Smith v. Baldwin, 510 F.3d 1127,
1137 (9th Cir. 2007) (en banc).
1. We do not have jurisdiction over Childs’s statutory and equitable tolling
arguments. “[A] certificate of appealability is a prerequisite to our assertion of
jurisdiction . . . .” James v. Giles, 221 F.3d 1074, 1076 (9th Cir. 2000). A court
can issue one “only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). “The certificate of
appealability . . . indicate[s] which specific issue or issues satisfy [the above]
showing . . . .” Id. § 2253(c)(3). Here, the district court issued a certificate of
appealability “as to whether [Childs] can excuse the untimely filing” of his
petition. The court only used the word “excuse” when analyzing Childs’s actual
innocence claim and it is not apparent from the court’s analysis that it believed
Childs made the requisite showing for a certificate of appealability for his statutory
or equitable tolling arguments. Although we have discretion to expand the
certificate of appealability, see Reno v. Davis, 46 F.4th 821, 835 (9th Cir. 2022),
we decline to do so. Accordingly, we only have jurisdiction to review Childs’s
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actual innocence claim.
2. Childs did not make the requisite showing for actual innocence required
to overcome his untimely habeas petition. A court may consider a procedurally
defaulted claim on the merits “in an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who is actually
innocent . . . .” Schlup v. Delo, 513 U.S. 298, 321 (1995) (quoting Murray v.
Carrier, 477 U.S. 478, 496 (1986)). “[T]he petitioner must show that it is more
likely than not that no reasonable juror would have convicted him in the light of
the new evidence.” Id. at 327. “Based on [the] total record, the court must make
‘a probabilistic determination about what reasonable, properly instructed jurors
would do.’” House v. Bell, 547 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S. at
329). “As a general matter, ‘[r]ecantation testimony is properly viewed with great
suspicion.’” Jones v. Taylor, 763 F.3d 1242, 1248 (9th Cir. 2014) (quoting
Dobbert v. Wainwright, 468 U.S. 1231, 1233 (1984) (Brennan, J., dissenting from
denial of certiorari)). Where actual innocence is dependent on a recantation, the
standard is whether “every juror would credit [the] recantation testimony over [the]
trial testimony . . . .” Id. at 1250.
Childs did not establish that every juror would find CW’s recantation more
credible than her trial testimony. The district court noted the suspicious timing of
the recantation: five years after Childs’s conviction and “during the very short time
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[CW] lived in TK’s home.” CW had stated that “TK pressured her” to make the
recantation and that her family was pressuring her to get Childs out of prison. The
court also noted that “[CW’s] statements to DDA Bureta that she could not
remember [Childs] touching her [are] not tantamount to a denial that the touching
[ever] occurred.” These factual findings and credibility determinations are not
clearly erroneous. See United States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010).
Childs contends that CW was truthful in her recantation, despite its timing and
circumstances, because it was corroborated by evidence that CW’s stepfather GG
sexually abused her. This is unconvincing, because evidence that GG abused her
does not make it less likely that CW was truthful in her trial testimony that Childs
abused her.
Moreover, it is not more likely than not that a reasonable juror would have
found Childs innocent based on the total record. The judge at Childs’s bench trial
found CW’s trial testimony about Childs’s abuse “very believable” and
“corroborated in several respects.” DDA Bureta, who interviewed CW after CW’s
recantation, stated that it was unclear “whether [CW was] now recanting because
of family pressure, or because it did not happen.” CW had referenced a time when
Childs was “hurting” her and stated that “he should get in trouble but not that much
trouble.” Childs argues that CW was not credible in her original accusation and
trial testimony because Childs’s wife, employer, and employer’s wife testified that
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CW was “a happy, outgoing child who sought out [Childs’s] company” and that
those descriptions “did not line up with CW’s claims of ongoing sexual abuse.”
However, it is undisputed that Childs took a photograph of CW’s genitalia without
her consent and showed her the cropped and enlarged photo; a reasonable juror
could find that if that incident did not change CW’s behavior around Childs, her
behavior around him may not have been indicative of his actions toward her.
Childs’s remaining arguments about CW’s credibility are logically
inconsistent and thus unconvincing. Childs contends CW is credible in her
recantation, even though it was made several years after Childs’s conviction, but
that she is not credible in her original allegations of abuse because they were made
“several months after [the abuse] allegedly had happened.” He also contends that
CW is credible in her recantation because GG was “not around” anymore, but that
she is not credible in her withdrawal of her recantation—even though GG was still
“not around”—because she “may have been too frightened of [GG] to maintain her
account.”
3. The district court did not abuse its discretion in denying an evidentiary
hearing. “[T]he court shall not hold an evidentiary hearing on [a] claim unless . . .
the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.” 28 U.S.C.
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§ 2254(e)(2). Based on the foregoing, Childs did not meet this standard.
AFFIRMED.
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