6/5/2023 2:46 PM

23CV13593

4 IN THE CIRCUIT COURT OF THE STATE OF OREGON

5 FOR THE COUNTY OF MULTNOMAH
6 LISA ROBERTS, Case No. 23CV13593
7 Petitioner, RESPONSE TO PETITIONER'S MOTION FOR
SUMMARY JUDGMENT AND
8 v. RESPONDENT'S CROSS-MOTION FOR
SUMMARY JUDGMENT
9 THE STATE OF OREGON,
Oral Argument Requested
10 Respondent.
11
ORS 20.140 - State fees deferred at filing
12

13
UTCR 5.010 / 5.050 CERTIFICATION
14
Pursuant to UTCR 5.010, no conferral is required in advance of this cross-motion for
15
summary judgment made pursuant to ORCP 47. Respondent requests oral argument with official
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court reporting services and estimates that 60 minutes will be required.
17
MOTION
18
Respondent, the State of Oregon, opposes Petitioner’s Motion for Summary Judgment,
19
cross-moves for summary judgment, and submits the following memorandum of law in support
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of same.
21
MEMORANDUM OF LAW
22
I. Introduction
23
Petitioner asks this court to find that the issues raised in this Petition have already been
24
fully litigated and resolved in the preceding federal habeas matter by Judge Marsh’s April 9,
25

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 1 2014, Opinion and Order, granting in part and denying in part, Petitioner’s request for habeas

2 relief. Roberts v. Howton, 13 F.Supp.3d 1077, 1116 (2014).

3 In order for issue preclusion to apply, Plaintiff would have to show that the court in

4 Roberts found that she did not commit the crime of murder as required by the language of S.B.

5 1584. The court made no such finding. In fact, the Roberts court rejected Petitioner’s claim that

6 she was “probably innocent.” As a result, if issue preclusion applies in this case, Petitioner is the

7 party foreclosed from arguing she did not commit the crime.

8 II. Legal Standards

9 A. Summary Judgment

10 Respondent agrees with Petitioner’s recitation of the legal standard for summary

11 judgment.

12 B. Collateral Estoppel / Issue Preclusion

13 Respondent agrees that Judge Marsh’s Opinion should have preclusive effect, but

14 disagrees as to which of his rulings should control here.

15 C. S.B. 1584 Elements and Burden of Proof

16 In order to prevail in a claim for compensation pursuant to S.B. 1584, petitioner must

17 prove, paraphrased here for brevity, all four of the following elements by a preponderance of the

18 evidence: (1) she was convicted and imprisoned for a crime; (2) that was vacated and dismissed;

19 (3) and which she did not commit and was not otherwise involved; and (4) and which she did not

20 otherwise bring about.

21 The parties agree that there is no factual dispute with respect to elements (1), (2), and (4).

22 The only dispute is with respect to element (3), and which portion of Judge Marsh’s ruling

23 determines judgment in this matter.

24

25

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 1 III. Facts

2 On April 9, 2014, Judge Marsh issued an Order and Opinion which granted, in part, and

3 denied, in part, petitioner Lisa Roberts’ petition for habeas corpus relief in Oregon District Court

4 case no. 3:08-cv-01433-MA. Roberts, 13 F.Supp.3d 1077. Judge Marsh ruled that Petitioner had

5 defaulted on certain claims, that Petitioner’s new evidence of innocence met the Schlup standard

6 to allow the court to review those claims, that Petitioner was not afforded constitutionally

7 effective assistance of counsel in certain respects, and that she was therefore entitled to habeas

8 relief. Id. at 1103.

9 Judge Marsh also considered, pursuant to Herrera, whether Petitioner had proven that she

10 was “probably innocent” of murder and therefore entitled to habeas relief independent of any

11 constitutional defect in the original proceedings. Id. at 1113. Judge Marsh found that she did not

12 meet that burden and denied her petition for relief on those grounds. Id. at 1116. Subsequent to

13 Judge Marsh’s Order, the Multnomah County District Attorney filed notice that they would not

14 seek retrial of Petitioner. See Petitioner’s Motion for Summary Judgment, Ex. 1, p. 20, “Notice

15 re Opinion,” May 28, 2014.

16 IV. Discussion

17 A. Introduction

18 In his decision, Judge Marsh considered, among other things, whether Petitioner had met

19 two standards of review.

20 (1) The Schlup standard. This is a procedural gateway that permits a court reviewing a

21 habeas petition to consider otherwise procedurally-defaulted claims of a

22 constitutional violation. Schlup v. Delo, 513 U.S. 298, 303 (1995).1 This requires the

23 petitioner to prove by a preponderance of evidence that, in light of newly discovered

24
1
25 For example of a procedurally-defaulted claim, see ORS 138.550(3), which requires that “[a]ll
grounds for relief claimed by petitioner ... must be asserted in the original or amended petition,
26 and any grounds not so asserted are deemed waived....”
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 1 evidence, no reasonable juror would find petitioner guilty beyond a reasonable doubt.

2 Roberts, 13 F.Supp.3d at 1097. Passing through this gateway does not grant petitioner

3 any relief, it only permits the court to consider other, independent claims of

4 constitutional violations.

5  Ruling: Judge Marsh found Petitioner met this standard, considered her

6 otherwise-defaulted claims of constitutional violations, and granted the habeas

7 petition on the grounds that her trial counsel was constitutionally ineffective.

8 Id. at 1104. Judge Marsh provided 90 days for the state to decide whether to
9 retry her, which it did not. Id. at 1116.

10 (2) The Herrera standard. This standard of review required Petitioner to prove that she

11 was “probably innocent of murder.” Herrera v. Collins, 506 U.S. 390, 435 (1993)

12 (Blackmun, J., dissenting); Roberts, F.Supp.3d at 1116. If she had met this standard,

13 Petitioner would have been entitled to habeas relief without any showing of a

14 constitutional violation. Roberts, 13 F.Supp.3d at 1114. This standard requires a

15 higher burden of proof than the Schlup standard because it does not consider whether

16 the earlier criminal proceeding was tainted by a constitutional violation. See Carriger

17 v. Stewart, 132 F.3d 463, 477 (1997).

18  Ruling: Judge Marsh denied this claim, finding that Petitioner had not proven

19 she was “probably innocent” of murder. Id. at 1116.

20 Whereas the Schlup standard is inapposite to Petitioner’s requested relief pursuant to S.B.

21 1584, and requires a lesser burden of proof, and whereas the Herrera standard is equivalent to

22 the S.B. 1584 requirement, Respondent respectfully asks that this Court deny Petitioner’s Motion

23 for Summary Judgment, and grant the State’s Cross-Motion for Summary Judgment.

24

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 1 B. Schlup is a Procedural Gateway and Not a Substantive Finding of Innocence

2 Petitioner argues that the Schlup standard is equivalent to the S.B. 1584 standard and that

3 Petitioner has already proven her innocence as shown by Judge Marsh’s finding that Petitioner

4 met the Schlup standard. This argument is directly contradicted by Judge Marsh’s opinion, which

5 ruled that Petitioner had made a “colorable claim” of innocence sufficient to pass through the

6 Schlup gateway, but rejected Petitioner’s claim that she was probably innocent. Roberts, 13

7 F.Supp.3d at 1116.

8 Passing through the Schlup gateway does not require proof of actual innocence, and does
9 not result in a finding of actual innocence. Instead, the Schlup gateway is a standard used by

10 courts to determine whether already-defaulted claims should be considered in light of new

11 evidence of innocence. Schlup, 513 U.S. at 326-27. In order to pass through this gateway, the

12 petitioner has the burden to bring new evidence to court and prove by a preponderance of the

13 evidence that no rational juror would find proof beyond a reasonable doubt that petitioner

14 committed the crime. Id. As the Ninth Circuit has held, “a Schlup claim is procedural, not

15 substantive.” Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013). It permits the court to review

16 otherwise defaulted claims, but does not by itself entitle petitioner to any relief.

17 Courts sometimes refer to the Schlup standard in shorthand as the ‘actual innocence’

18 standard, because rather than considering the legal sufficiency of the evidence at trial, courts

19 require the petitioner to make a colorable showing of actual innocence. Roberts, 13 F.Supp.3d at

20 1096 citing McQuiggin v. Perkins, 569 U.S. 383 (2013). But while the Schlup standard refers to

21 ‘actual innocence,’ the petitioner “need not prove that he is ‘actually innocent.’” Gable v.

22 Williams, 49 F.4th 1315, 1318 (9th Cir. 2022), cert. denied sub nom. Steward v. Gable, No. 22-

23 581, 2023 WL 3046231 (U.S. Apr. 24, 2023). Rather, “‘actual innocence’ is a term of art, which

24 has acquired a technical meaning in the habeas corpus context.” In re Allen, 366 S.W.3d 696,

25 706 (Tex. 2012) As the Ninth Circuit has explained:

26
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 Thus, we cannot consider the merits of these claims unless the Schlup v. Delo
1 “actual innocence” exception to procedural default applies. Under Schlup, Gable
need not prove that he is “actually innocent.” Instead, we examine Gable's new
2 evidence against the entire record and determine whether it is more likely than not
that no reasonable juror would find him guilty beyond a reasonable doubt. If the
3 answer is yes, then Schlup opens a procedural gateway through which Gable
passes to have his constitutional claims heard on the merits.
4

5 Id. (internal citations omitted); see also Larsen v. Soto, 742 F.3d 1083, 1095 (9th Cir.

6 2013) quoting Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002) (en banc) (“We have

7 held that ‘where post-conviction evidence casts doubt on the conviction by undercutting the

8 reliability of the proof of guilt, but not by affirmatively proving innocence, that can be enough to
9 pass through the Schlup gateway to allow consideration of otherwise barred claims.’”).

10 Oregon District Courts have followed this mandate: “The Ninth Circuit has made clear

11 that Schlup does not require a petitioner to affirmatively prove he is innocent of the crime for

12 which he was convicted.” Choat v. Coursey, No. 2:16-CV-01459-JR, 2019 WL 6703946, at *14

13 (D. Or. Oct. 2, 2019), report and recommendation adopted, No. 2:16-CV-01459-JR, 2019 WL

14 6709383 (D. Or. Dec. 6, 2019).

15 C. A Petitioner’s Burden under Schlup is Less Than Petitioner’s Burden Under S.B.

16 1584 Which Precludes Collateral Estoppel

17 In keeping with the above-cited case law, Judge Marsh did not require Petitioner to prove

18 her actual innocence in order to pass through the Schlup gateway, but did find that Petitioner had

19 made a “colorable claim of actual innocence.” On that basis, he reviewed her otherwise defaulted

20 constitutional claims, and granted Petitioner her requested habeas relief. Roberts, 13 F.Supp.3d

21 at 1097. This finding, however, is definitively short of a finding of actual innocence. We know

22 this because, in addition to the cases cited above, which repeatedly rule a petitioner need not

23 prove their innocence in order to pass through the Schlup gateway, Judge Marsh explicitly

24 considered Petitioner’s claim of actual innocence and rejected it, finding that she had failed to

25 prove that she was “probably innocent.” Id. at 1117.

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 1 Although the Schlup gateway standard does not require affirmative proof of innocence,

2 and although Judge Marsh did not require Petitioner to prove her actual innocence in order to

3 grant her relief, S.B. 1584 does require Petitioner to do exactly that. Accordingly, the Schlup

4 standard is necessarily a lesser burden of proof. Because the requisite burden determined by

5 Judge Marsh under Schlup is less than Petitioner’s burden in this case, it cannot be a basis for

6 collateral estoppel and Petitioner’s motion should be denied. In re Gygi, 273 Or 443, 448 (1975)

7 (“Collateral estoppel is not applicable when the standard of proof in the second proceeding is

8 greater than that which applied in the first.”).

9 D. The Decisions of Texas and California are Inapposite

10 In arguing that a finding under Schlup equates to a finding of actual innocence by a

11 preponderance of the evidence, Petitioner relies in part on two out-of-jurisdiction state court

12 opinions, one from Texas and one from California, both of which assess a claimant’s eligibility

13 for compensation after having been granted habeas relief pursuant to Schlup.

14 These decisions are distinguishable primarily because they are predicated upon whether

15 the respective state legislatures intended the statutory terms “factual innocence” or “actually

16 innocent” to include those instances where a habeas court found that petitioner met the Schlup

17 standard. Larsen v. California Victim Comp. Bd., 64 Cal. App. 5th 112, 134 (2021), as modified

18 (June 1, 2021), review dismissed, cause remanded, 516 P.3d 878 (Cal. 2022) (interpreting the

19 California legislature’s intent in using the term “factual innocence”); In re Allen, 366 S.W.3d

20 696, 700 (Tex. 2012 (“Our task is to effectuate the Legislature's expressed intent”).

21 It is worth noting that California courts actually disagreed on whether a Schlup finding

22 constituted “factual innocence,”2 whereas the Texas court acknowledged that a Schlup finding

23

24 2
See Souliotes v. California Victim Comp. Bd., 275 Cal. Rptr. 3d 489, 504 (Ct. App. 2021), reh'g
denied (Mar. 10, 2021), cause transferred and opinion not citable, 516 P.3d 878 (Cal. 2022)
25 (holding that a Schlup finding was distinct from factual innocence which requires proof by a
preponderance of the evidence that the claimant did not commit the crime). The California
26 legislature subsequently amended the statute to resolve the dispute by adding language to ensure
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 1 was not a finding of actual innocence, and that in extending compensation to petitioners who

2 were granted relief pursuant to Schlup, it “may result in compensating someone temporarily who

3 is actually guilty of the crime.” In re Allen, 366 S.W.3d at 707 (emphasis added).

4 S.B. 1584 does not use the terms “factual innocence” or “actually innocent” and does not

5 refer to prior habeas proceedings – nor does it extend compensation to anyone who is actually

6 guilty of the crime. The conclusion of Texas and California courts, regarding the intent of their

7 respective state legislatures in using terms of art that do not appear within S.B. 1584, is irrelevant

8 to resolving these issues. What S.B. 1584 does instead is require petitioner to prove that they
9 probably did not commit the crime.

10 The Texas and California cases are also distinguishable because the preceding habeas

11 matters did not address a Herrera claim under the standard prescribed by the Ninth Circuit

12 wherein a petitioner must prove they are probably innocent. See Larsen v. Adams, 718 F. Supp.

13 2d 1201, 1225 (C.D. Cal. 2010), aff'd sub nom. Larsen v. Soto, 730 F.3d 930 (9th Cir. 2013),

14 opinion amended and superseded on denial of reh'g, 742 F.3d 1083 (9th Cir. 2013), and aff'd sub

15 nom. Larsen v. Soto, 742 F.3d 1083 (9th Cir. 2013); Ex parte Allen, No. AP-75,580, 2009 WL

16 282739 (Tex. Crim. App. Feb. 4, 2009). In our case, however, the preceding habeas matter did

17 directly address whether Petitioner is probably innocent, as discussed in more detail below,

18 which is the same standard of proof required under S.B. 1584, and why the State should be

19 granted summary judgment in its favor.

20 E. Petitioner’s Claim of Actual Innocence Was Rejected

21 Petitioner claimed in her habeas petition that she was actually innocent and asked the

22 court to grant her relief on that basis, pursuant to Herrera v. Collins, 506 U.S. 390 (1993);

23 Roberts, 13 F.Supp.3d at 1113. This is a “free-standing” claim of innocence by which Petitioner

24 argued that relief could be granted even absent concern that the conviction was tainted by a

25
that compensation would be provided “under any standard for factual innocence” in a prior
26 proceeding. Ca. Stats. 2021, ch. 490, § 1. (S.B. 446).
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 1 constitutional violation. See Carriger, 132 F.3d at 477. Judge Marsh considered all evidence

2 from the parties and denied the claim, finding that Petitioner had failed to prove that she was

3 “probably innocent” of murder – the same burden Petitioner bears here. Id. at 1117.

4 While Petitioner asserts that the U.S. Supreme Court has “never articulated the requisite

5 showing for this still-hypothetical freestanding claim,” Petitioner fails to mention that the Ninth

6 Circuit – whose decisions were binding upon Judge Marsh and upon whose decisions Judge

7 Marsh explicitly relied – did articulate a standard and this is the standard that Judge Marsh

8 applied. Motion for Summary Judgment, p. 13.

9 As Judge Marsh noted in his opinion, “the Ninth Circuit has opined that the applicable

10 threshold for such a claim is that articulated by Justice Blackmun in his Herrera dissent, i.e., that

11 a petitioner must ‘go beyond demonstrating doubt about his guilt [the Schlup standard], and

12 must affirmatively prove that he is probably innocent.’” Roberts, 13 F.Supp.3d at 1113,

13 quoting Carriger v. Stewart, 132 F.3d at 476 (emphasis added). Judge Marsh cited Carriger in

14 which the Ninth Circuit considered a claim of actual innocence and denied the claim by a

15 preponderance of the evidence standard: “Accordingly, the confession by itself falls short of

16 affirmatively proving that Carriger more likely than not is innocent. Carriger's freestanding claim

17 of actual innocence must fail.” Carriger, 132 F.3d at 477.

18 This standard is exactly Petitioner’s burden here: whether Petitioner can “affirmatively

19 prove that [s]he is probably innocent.” Roberts, 13 F.Supp.3d at 1113; see also Ninth Circuit

20 Model Civil Jury Instruction 1.6 (defining a preponderance of the evidence as “more probably

21 true than not true”). Petitioner argues that because this standard is “extraordinarily high,” it is

22 higher than the Schlup standard and higher than what S.B. 1584 requires. The standard may be

23 described as “extraordinarily high,” but this is in the context of a habeas proceeding where

24 petitioner has already been afforded the right to counsel, discovery, the right to trial and to

25 confront witnesses, the right to appeal and to postconviction remedies, and yet still stands

26
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 1 convicted of a crime, either by proof beyond a reasonable doubt or, as is the case here, by

2 Petitioner’s own admission. We would consequently assume because of that procedural history

3 that the production of new and persuasive evidence of innocence would be difficult, but the

4 literal burden of proof remains the same.

5 Regardless of what adjectives courts may employ in its description, the burden of proof is

6 still precisely delineated: the burden to prove by a preponderance of the evidence that petitioner

7 did not commit the crime. The burden is not by clear and convincing evidence and the burden is

8 not by proof beyond a reasonable doubt; the burden is proof by a preponderance of the evidence
9 that petitioner is innocent.

10 As Judge Marsh noted, the Ninth Circuit adopted this standard in 1997, ruling:

11 We conclude that the Herrera majority's statement that the threshold for a
freestanding claim of innocence would have to be “extraordinarily high,”
12 contemplates a stronger showing than insufficiency of the evidence to convict.
We therefore decline to adopt the modified Jackson standard. We believe that the
13 required showing would have to be at least as high as the more demanding
standard articulated by Justice Blackmun in his Herrera dissent. Justice
14 Blackmun stated that to be entitled to relief, a habeas petitioner asserting a
freestanding innocence claim must go beyond demonstrating doubt about his
15 guilt, and must affirmatively prove that he is probably innocent.
16
Carriger v. Stewart, 132 F.3d at 476 (internal citations omitted) (emphasis added).
17
Ultimately, we are bound by what Judge Marsh ruled in his Order, which neither party
18
appealed. As noted in the opinion, “Petitioner alleges that she is actually innocent of
19
manslaughter.” Roberts, 13 F.Supp.3d at 1113. In determining what standard to apply in
20
assessing this claim of actual innocence, the court ruled: “I conclude that petitioner must prove
21
that she is ‘probably innocent’ of murder under both theories.3” Id. at 1114. In applying that
22
standard Judge Marsh ruled:
23

24
3
25 “Both theories” refers to the fact that “under the indictment the prosecution could have proven
at trial either that petitioner intentionally killed Williams or that Williams was killed in the
26 course of a felony.” Id. (emphasis in original, citations omitted).
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 I nevertheless conclude that, considering the totality of the evidence and giving
1 due regard to its reliability, petitioner has not made the “truly persuasive” and
“extraordinarily high” showing necessary to support a finding that she is probably
2 innocent of killing Williams intentionally, or during the commission of a felony.
Accordingly, habeas relief is not warranted on this claim.
3
Id. at 1117.
4
In sum, Petitioner claimed actual innocence, Judge Marsh considered the claim under the
5
burden of whether Petitioner had proved she was “probably innocent,” and rejected the claim.
6
This is the same burden required under S.B. 1584. Consequently, Judge Marsh’s decision is
7
binding and preclusive for those same reasons argued by Petitioner in her Motion for Summary
8
Judgment.
9
CONCLUSION
10
Petitioner has the burden in these proceedings to prove that she did not commit the crime.
11
That claim has already been heard, considered, and rejected. The Oregon District Court ruled
12
that Petitioner failed to prove that she is probably is innocent. Collateral estoppel prevents
13
Petitioner from attempting to relitigate this factual issue and Respondent respectfully requests
14
her motion be denied, Respondent’s motion granted, and judgment entered in favor of the State
15
of Oregon.
16
DATED June 5 , 2023.
17
Respectfully submitted,
18
ELLEN F. ROSENBLUM
19 Attorney General
20

21 s/Eliot D. Thompson
ELIOT D. THOMPSON #160661
22 Senior Assistant Attorney General
Trial Attorney
23 Tel (503) 947-4700
Fax (503) 947-4791
24 eliot.thompson@doj.state.or.us
Of Attorneys for Respondent
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 1 CERTIFICATE OF SERVICE

2 I certify that on June 5 , 2023, I served the foregoing RESPONSE TO PETITIONER'S

3 MOTION FOR SUMMARY JUDGMENT AND RESPONDENT'S CROSS-MOTION FOR

4 SUMMARY JUDGMENT upon the parties hereto by the method indicated below, and addressed

5 to the following:

6
Steven T. Wax HAND DELIVERY
7 Benjamin Wright Haile X MAIL DELIVERY
8 Claire M. Powers OVERNIGHT MAIL
Oregon Justice Resource Center SERVED BY E-FILING
9 618 NW Glisan Street X E-MAIL DELIVERY
P.O. Box 5248
10 Portland, OR 97209
Of Attorneys for Defendant Lisa
11
Roberts
12

13
s/ Eliot D. Thompson
14 ELIOT D. THOMPSON #160661
Senior Assistant Attorney General
15 Trial Attorney
Tel (503) 947-4700
16 Fax (503) 947-4791
eliot.thompson@doj.state.or.us
17 Of Attorneys for State of Oregon

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