United States District Court, D. Oregon
Anthony D. Bornstein, Assistant Federal Public Defender,
Office of the Federal Public Defender, Of Attorneys for
F. Rosenblum, Attorney General, and Nick M. Kallstrom,
Assistant Attorney General, Oregon Department of Justice, Of
Attorneys for Respondent.
OPINION AND ORDER
Michael H. Simon, United States District Judge
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.
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
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)).
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.
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 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.
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.
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.
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