Hillman v. Nooth

Filing 92

Opinion and Order - The Amended Petition for Habeas Corpus (ECF 37 ) is denied. Defendant's Motion to Strike (ECF 57 ) is denied as moot. The Court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 9/20/2019 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BOBBY LEE HILLMAN,
Petitioner,

Case No. 2:15-cv-656-SI
OPINION AND ORDER

v.
MARK NOOTH,
Respondent.
Anthony D. Bornstein, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, 101 SW Main Street, Suite 1700, Portland, Oregon 97204. Of Attorneys for
Petitioner.
Ellen F. Rosenblum, Attorney General, and Nick M. Kallstrom, Assistant Attorney General,
OREGON DEPARTMENT OF JUSTICE, 1162 Court Street NE, Salem, Oregon 97301. Of Attorneys
for Respondent.
Michael H. Simon, 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.
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STANDARDS
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)).
BACKGROUND
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.

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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 fourmonth-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

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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, kidnapping in the second degree, assault in
the fourth degree, and two counts of being a felon in possession of a firearm. The trial court
imposed a total sentence of 270 months.
Petitioner appealed to the Oregon Court of Appeals, which affirmed without opinion and
the Oregon Supreme Court, which denied review. He then petitioned for post-conviction relief
(“PCR”). The PCR court denied relief. Petitioner appealed to the Oregon Court of Appeals, and,
when unsuccessful, to the Oregon Supreme Court, which denied review.
In preparation for Petitioner’s federal habeas corpus petition, his counsel and an
investigator reached out to Hill. In March 2016, Hill submitted a notarized affidavit attesting that
she had fabricated many of the facts surrounding the March 2007 incident. ECF 35. In her
affidavit, Hill stated that she willingly got in Petitioner’s car and that she and Petitioner drove

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away so that they could talk. Hill also stated that she hit Petitioner first and that she knew
Petitioner would not cause any danger to her or otherwise harm her. ECF 35 at 3. Hill added that
the police, the prosecutor, and people from the Child Services Division had all pressured her into
testifying falsely and warned her that she might lose custody of her baby.
The Court originally scheduled an evidentiary hearing to hear Hill’s testimony and assess
her credibility. Hill, however, was unavailable to testify due unrelated criminal proceedings in
California in which Hill was charged with assault. In that matter, a jury found Hill guilty and she
is currently serving her sentence in California, making her unavailable to testify. The Court
therefore decides this case without the benefit of Hill’s testimony in person but aided by the
additional written evidence that the parties have submitted.
DISCUSSION
Petitioner’s only claim is 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. He is no longer pursuing any of the claims that he raised in state court. Because
Petitioner asserts a claim of actual innocence, his constitutional claim is not procedurally barred,
but he 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.’” Larsen, 742 F.3d at 1088
(quoting House, 547 U.S. at 536-37).
Hill’s affidavit tells an account of events which, if true, would cast serious doubt on
whether Petitioner is guilty of the kidnapping offense. The March 2016 affidavit is the first time
that Hill has asserted that Petitioner did not kidnap her. Hill’s testimony at trial told a very
different story. Hill’s trial testimony was consistent with the statements she made in her 911 call,
statements she made to police officers on the day of the incident, and statements she made to
police officers throughout the investigation. ECF 46-1. The consistent accounts that Hill gave on
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the 911 call and to police officers on the day of the incident pre-date any charges being filed
against Petitioner and pre-date any prosecutorial involvement. Thus, it is unlikely that the
version of events that Hill provided in the 911 call was the result of any pressure from
prosecutors or police.
Hill’s testimony that she did not get into the car voluntarily also accords with other
details in the record, such as the fact that the driver’s side door to her car was left open and she
left her four-month-old baby in the classroom. Furthermore, Hill’s affidavit is inconsistent with
Petitioner’s account of the incident. At trial, Petitioner testified that he did not drive his car
during the altercation, other than moving it a few feet in the parking lot, but in her affidavit, Hill
states that she voluntarily got in Petitioner’s car and they drove off together.
The affidavit that Hill submitted in this case is not the first affidavit that she submitted on
behalf of Petitioner. Before the trial, Hill signed an affidavit stating that the handguns in their
home in December 2006 belonged to Petitioner’s son, and not Petitioner. Ex. 120. That affidavit
contradicted Hill’s earlier statements to the police. At trial, however, Hill testified that she only
signed the affidavit because she was concerned for her own safety. ECF 20-1 at 271-72.
Petitioner and Hill eventually reconnected and, beginning in February 2015, Petitioner
and Hill spoke on the phone for hours at a time on a near-daily basis. See ECF 87-1. Hill
provided Petitioner with money for his pre-paid telephone account and sent hundreds of dollars
to Petitioner’s prison trust account. ECF 87-1. During one telephone call in February 2015,
Petitioner told Hill to “tell the truth” about the 2007 incident and say that “I didn’t put you in my
car. That you got in.” ECF 87-1 at 91. When Hill asked Petitioner if he was getting out of prison
soon, he responded, “Well, that depends on you.” Id.

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During Hill’s recent trial on an unrelated assault charge in California, Hill was asked
about the affidavit that she submitted in this case. Hill testified that Petitioner had been abusive,
and that she had felt the same feelings of fear towards Petitioner that she had felt towards her
more recent boyfriend, whom she was charged with assaulting. ECF 82-1 at 53. When asked why
she had signed “a document which took back statements of abuse,” she responded that she was
“just confused.” ECF 82-1 at 72-73. Explaining why she had signed the affidavit, Hill explained
that it was “so [her] daughter can have a relationship with her father.” Id. at 73.
On cross-examination, the government’s attorney asked Hill about the affidavit:
Q: So were you lying when the father of your daughter was
charged with domestic violence then or are you lying now when
you signed an affidavit saying it was different?
A: I wouldn’t say lying. I would say I was down playing my
situation in what happened to me when I signed it. Yes Ma’am.
When I signed it, yes.
Q: Yes, you did lie when you signed that affidavit?
A: I did downplay what happened to me, yes, ma’am.
ECF 82-1 at 90-91.
The Court cannot conclude that no reasonable juror could have chosen to believe the
version of events that Hill testified to at trial, even when also considering the new evidence.
Hill’s trial testimony was consistent with her statements in the 911 call and the statements made
to police officers on the day of the incident, the day after the incident, and throughout the
investigation. Additionally, the version of events in Hill’s affidavit is inconsistent with
Petitioner’s testimony of the incident at trial. Although Hill claims that she felt pressure from the
Child Services Division and the police and the prosecutors to give false testimony against
Petitioner, Hill’s initial account of the incident, from the 911 call, pre-dated any opportunity for
improper influence.
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Based on Hill’s credibility issues, as well as her re-kindled relationship with Petitioner in
2015, a juror could conclude that the 2016 affidavit was untrue. Hill’s testimony at her own
criminal trial came close to confirming that the 2016 affidavit was not an accurate description of
the incident. In short, a reasonable juror could disbelieve Hill’s affidavit. Accordingly, Petitioner
has not carried his burden to show that no reasonable juror, in light of Hill’s affidavit, could find
Petitioner guilty beyond a reasonable doubt.
CONCLUSION
The Amended Petition for Habeas Corpus (ECF 37) is denied. Defendant’s Motion to
Strike (ECF 57) is denied as moot. The Court declines to issue a Certificate of Appealability on
the basis that petitioner has not made a substantial showing of the denial of a constitutional right
pursuant to 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
DATED this 20th day of September, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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