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Hillman v. Nooth

United States District Court, D. Oregon

September 20, 2019

MARK NOOTH, Respondent.

          Anthony D. Bornstein, Assistant Federal Public Defender, Office of the Federal Public Defender, Of Attorneys for Petitioner.

          Ellen F. Rosenblum, Attorney General, and Nick M. Kallstrom, Assistant Attorney General, Oregon Department of Justice, Of Attorneys for Respondent.


          Michael H. Simon, United States District Judge

         Bobby Lee Hillman (“Petitioner”) seeks habeas corpus relief in federal court claiming that he was denied due process of law under the Fourteenth Amendment of the United States Constitution because his conviction for kidnapping rests on false testimony. In support, Petitioner submits an affidavit from Jasmine Hill, the victim in the kidnapping offense, that seeks to retract her trial testimony, which she now asserts was false. For the reasons below, the petition for habeas corpus is denied.


         Ordinarily, a federal court reviewing a petition for habeas corpus under 28 U.S.C. § 2254 may only consider claims that have “been properly exhausted and [are] not procedurally barred.” Cockett v. Ray, 333 F.3d 938, 941 (9th Cir. 2003). “To exhaust a claim, a petitioner must fairly present a federal claim to the state courts, which requires that the petitioner present ‘both the operative facts and the federal legal theory on which the claim is based.” Id. at 942 (quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)). Any claims not first presented in state court are procedurally defaulted.

         “A federal habeas petitioner can overcome a procedural default . . . by demonstrating actual innocence of the crime underlying his conviction.” Vosgien v. Persson, 742 F.3d 1131, 1134 (9th Cir. 2014). “[T]he Supreme Court has long recognized that in a ‘narrow class of cases . . . implicating a fundamental miscarriage of justice, ’ federal courts may hear the merits of a habeas petition despite an otherwise applicable procedural bar.” Larsen v. Soto, 742 F.3d 1083, 1088 (9th Cir. 2013) (quoting Schlup v. Delo, 513 U.S. 298, 314-15 (1995)). “[P]risoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’” Id. (quoting House v. Bell, 547 U.S. 518, 536-37 (2006)).


         The Court derives the following facts surrounding Petitioner’s criminal conviction from the transcript of Petitioner’s trial. In 2006, Petitioner lived with Jasmine Hill, the mother of his child, several nights a week. Hill was on probation at the time. In December 2006, Petitioner and Hill got into an argument and Petitioner hit Hill with a pistol. When probation officers searched Hill’s home, they found three handguns.

         On March 20, 2007, Hill attended a class at Lifeworks Center as part of her conditions of probation. She drove to the class in a car that Petitioner had given to her. She brought her four-month-old child with her. While Hill was in class, Petitioner called Hill on her cell phone and told her that he was on his way to meet her and he wanted her to come outside. Petitioner was upset because Hill had told someone about the incident when Petitioner had hit Hill with a pistol. Hill left her baby with a classmate and went outside to meet Petitioner.

         When Petitioner arrived, he yelled at Hill and asked for the keys to her car. Hill told him that she had left the keys in the classroom. Petitioner then opened the hood to Hill’s car and removed some fuses and tossed them onto the passenger seat of his car. When Hill went to retrieve the car parts from Petitioner’s car, he pushed her into the back seat of Petitioner’s car and started driving away. Hill yelled at him that she needed to go back for her baby and climbed into the passenger seat of the car. She tried to stop the car by moving the gear shift, but Petitioner hit her. Hill was crying and asking Petitioner to take her back to her daughter. Hill and Petitioner fought inside the car and Hill remembered that Petitioner kept a knife under the passenger’s seat. She pulled out the knife and cut Petitioner’s face. Petitioner dialed 911. Hill then got out of the car and ran back towards her class, but Petitioner followed in his car, saying that she would go to jail and lose her baby because she had cut him. Hill also called 911. At first, Hill did not reach a 911 dispatcher, but a dispatcher soon returned Hill’s call. A passing driver gave Hill a ride back to Lifeworks.

         The receptionist at Lifeworks testified that she had seen Petitioner’s car drive by earlier but did not see it return. At some point, one of Hill’s classmates had come out to check on Hill because Hill had left her baby in the classroom. The receptionist looked for Hill and noticed that the driver-side door to Hill’s car was open, but Hill was not there. Later, the receptionist saw Hill running back to Lifeworks and let Hill enter the building to get her baby. Petitioner returned to Lifeworks shortly thereafter with a bleeding gash on his face.

         A grand jury indicted Petitioner for second degree assault and unlawful use of a firearm based on the December 2006 incident as well as three counts of being a felon in possession of a firearm for the three handguns found in his home. The grand jury also indicted Petitioner for first and second degree kidnapping and assault in the fourth degree based on the March 2007 incident.

         The case was tried to a jury. Petitioner argued that Hill had fabricated the incidents because she wanted him “out of the picture” and had shifted the blame to Petitioner out of fear of the repercussions of her own actions. Petitioner and Petitioner’s ex-wife both testified that the ex-wife had been with them in the car and Hill had gotten into Petitioner’s car voluntarily and then attacked Petitioner. Petitioner’s ex-wife testified that the three of them had driven around the block to talk, but Petitioner testified that the car did not leave the parking lot. The jury convicted Petitioner of kidnapping in the first degree, ...

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