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Hill v. Giurbino

September 14, 2007

EUGENE HILL, PETITIONER,
v.
G. J. GIURBINO, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER GRANTING MOTION TO DISMISS [DOC. NO. 11]

Petitioner Eugene Hill, a prisoner proceeding pro se and in forma pauperis, filed the pending Petition for Writ of Habeas Corpus [doc. no. 1] pursuant to 28 U.S.C. § 2254. The Petition was filed in the United States District Court for the Central District of California on July 26, 2006. On August 30, 2006, the Petition was transferred to this Court. Petitioner makes four claims: (1) The Board of Prison Terms (now known as the Board of Parole Hearings ("BPH")) altered the transcripts of his March 20, 2002, parole hearing; (2) the BPH did not consider letters submitted on Hill's behalf in support of his suitability for parole; (3) during his parole hearing, the BPH commissioner referenced the crime of stalking although Petitioner was not convicted of stalking; and (4) the district attorney fraudulently misrepresented at the BPH hearing that Hill had not engaged in programming, therapy, or educational training while in prison. (Pet. 5-6.) Petitioner also alleges that the BPH erred when it considered malicious statements made by a correctional officer about him, and the BPH made recommendations that are forbidden by California law.*fn1 (Id. at 5a; see Pet. Attach. Ex. Vol. III at 2 [doc. no. 1, Pt. 1, at 10].)

On February 2, 2007, Respondent Giurbino filed a Motion to Dismiss [doc. no. 11] and a Notice of Lodgment [doc. no. 12]. Respondent claims the Petition should be dismissed because it is untimely; Hill's claims are unexhausted; and it fails to state a federal question. (Mot. to Dismiss 2.) Petitioner filed an Opposition to Motion of Respondent[] to Dismiss [doc. no. 18] and a Notice of Lodgment on April 4, 2007 [doc. no. 18 Attach. 1].

The Court has reviewed the Petition, Respondent's Motion and Memorandum in Support of the Motion, Hill's Opposition, and the lodgments. For the reasons expressed below, Respondent's Motion to Dismiss is GRANTED.

I. FACTUAL BACKGROUND

On April 17, 1990, in the Los Angeles Superior Court, Petitioner was convicted of attempted murder. (Pet. 2; Lodgment No. 1, People v. Hill, No. A822011, Judgment (Cal. Super. Ct. June 21, 1990).) The jury also found that in the commission of the offense, Hill personally used a firearm and caused great bodily injury. (Lodgment No. 1, People v. Hill, No. A822011, Judgment; Lodgment No. 2, Legal Status Summary.) While separated from his wife, Petitioner went to her home and shot her once in the abdomen and once in the arm with a shotgun. (Lodgment No. 8, In re Hill, No. BH002655, Order 1-2 (Cal. Super. Ct. June 11, 2004).) He was sentenced to life imprisonment with the possibility of parole, with an additional five-year term for the firearm use and great bodily injury enhancements. (Lodgment No. 1, People v. Hill, No. A822011, Judgment.) His conviction was affirmed on direct appeal by the California Court of Appeal, and the California Supreme Court declined to review that decision. (Pet. 3.)

Petitioner had a parole hearing on March 20, 2002. (Lodgment No. 3, BPH Decision on Appeal 1 (Feb. 11, 2003).) The Board denied Hill parole for two years, finding that he "would pose an unreasonable risk of danger if released from prison at th[at] time." (Id.; Pet. Attach. BPH Decision 1.) The Board noted that Petitioner's offense was carried out in a cruel, dispassionate manner. (Pet. Attach. BPH Decision 1.) Hill had a history of criminality. (Id. at 2.) He had "failed to program" in prison, and he had not increased his education level or his vocational skills. (Id.) The Board also noted that a psychiatric evaluation indicated therapy was necessary to address Petitioner's history of committing domestic violence and stalking his wife. (Id. at 5.) Hill was instructed to remain discipline-free, participate in self-help and therapy programming, and solidify his parole plans in writing. (Id.)

II. PROCEDURAL BACKGROUND

Petitioner submitted an inmate grievance (known as a "602 form") on May 16, 2002, complaining about the parole denial. (Pet. Attach. Hill v. Superior Court, No. not included, Pet. for Habeas Corpus Ex. C-4) (Cal. Ct. App. filing date not included) [doc. no. 1, Pt. 1, at 108]. He complained that the BPH based its decision in part on statements made by a correctional officer who indicated that Hill would pose an unpredictable threat of harm if released. (Id.) Petitioner asserted that the correctional officer did not know Hill well enough to form an opinion about his level of dangerousness. (Id.) Petitioner's grievance was denied at the informal level on May 29, 2002. (Id.) Hill appealed the adverse determination of his 602, and it was denied at all three levels of formal review. (See id. at C-25 [doc. no. 1, Pt. 1, at 125].) The appeal was concluded on January 17, 2003, when it was denied at the Director's Level of Review. (Id.) Petitioner also appealed the parole denial to the BPH on August 9, 2002. (See Lodgment No. 3, BPH Decision on Appeal 1.) The Board denied his appeal on February 11, 2003. (Id.)

On September 22, 2003, Hill filed a habeas corpus petition in the state superior court. (Lodgment No. 4, Hill v. Daly, No. BH002463, Pet. for Habeas Corpus 1 (Cal. Super. Ct. Dec. 9, 2003).) He made six claims, all arising from his March 20, 2002, parole hearing: (1) The BPH altered the hearing transcripts; (2) the Board did not consider letters submitted in support of Petitioner; (3) the BPH stated that Hill stalked his ex-wife although he was never convicted of stalking; (4) the deputy district attorney made fraudulent misrepresentations about Petitioner's programming in prison; (5) a correctional officer's opinion was used by the Board to deny Hill parole, although the officer did not know Petitioner well enough to form an opinion about his parole suitability; and (6) the BPH's recommendation that Hill participate in self-help and therapy programming was unjust and contrary to California law. (Id. at 3-30.) The petition was denied on December 9, 2003. (Lodgment No. 6, In re Hill, No. BH002463, Order 1-2 (Cal. Super. Ct. Dec. 9, 2003).) Petitioner filed a request for reconsideration on March 9, 2004, and it was denied on June 11, 2004. (Lodgment No. 7, In re Hill, No. BH002463, Request to Reconsider 1 (Cal. Super. Ct. June 11, 2004); Lodgment No. 8, In re Hill, No. BH002463, Order 5 (Cal. Super. Ct. June 11, 2004).)

Hill filed a habeas petition in the California Court of Appeal, Fourth Appellate District, on July 27, 2004. (Pet'r's Lodgment No. 3, In re Hill, No. D044756, Letter from Deputy Clerk Jean Cook to Petitioner (July 29, 2004) [doc. no. 18 Attach. 1.) The petition was denied without prejudice on August 10, 2004, because it had been filed in the wrong appellate district. (Id. Order of Aug. 10, 2004.) Petitioner refiled the habeas petition in the Second Appellate District of the California Court of Appeal on August 23, 2004. (Lodgment No. 9, Hill v. Superior Court, No. B177389, Pet. for Habeas Corpus 1 (Cal. Ct. App. Aug. 26, 2004).) Petitioner alleged that the superior court erred in denying his habeas petition and in failing to address claims three through six of his petition. (Id. at 3-6.) The appellate court denied his petition on August 26, 2004. (Lodgment No. 10, In re Hill, No. B177389, Order 1 (Cal. Ct. App. Aug. 26, 2004).)

On May 13, 2005, Hill filed a habeas petition in the California Supreme Court, asking the court to review the decisions of the superior court and appellate court denying his petitions. (Lodgment No. 11, In re Hill, No. S133871, Pet. for Habeas Corpus 3-6 (Cal. Feb. 1, 2006).) The petition was denied on February 1, 2006, with a citation to In re Robbins, 18 Cal. 4th 770, 780, 959 P.2d 311, 316, 77 Cal. Rptr. 2d 153, 158 (1998); In re Dannenberg, 34 Cal. 4th 1061, 104 P.3d 783, 23 Cal. Rptr. 3d 417 (2005); and In re Rosenkrantz, 29 Cal. 4th 616, 59 P.3d 174, 128 Cal. Rptr. 2d 104 (2002). (Lodgment No. 5, In re Hill, No. S133871, Order 1 (Cal. Feb. 1, 2006).)

Petitioner filed the pending Petition for Writ of Habeas Corpus [doc. no. 1] in the United States District Court for the Central District of California on July 26, 2006. On August 14, 2006, District Judge Ronald S. W. Lew ordered that the case be transferred to the Southern District of California. The Petition was received and filed in this Court on August 30, 2006.

In his Petition, Hill asserts four grounds for relief: (1) The BPH altered the transcripts of his March 20, 2002, parole hearing; (2) the BPH did not consider letters submitted in support of his suitability for parole; (3) during his parole hearing, the BPH commissioner referenced the crime of stalking, although Petitioner was not convicted of stalking; and (4) the prosecuting attorney fraudulently misrepresented that Hill had not engaged in programming, therapy, or educational training while in prison. (Pet. 5-6.) Petitioner also alleges that the BPH erred by considering malicious statements made by a correctional officer about Hill and that the BPH made recommendations that are forbidden by California law. (Id. at 5a; see Pet. Attach. Ex. Vol. III at 2. [doc. no. 1, Pt. 1, at 10])

On February 2, 2007, Respondent filed a Motion to Dismiss Petition for Writ of Habeas Corpus [doc. no. 11] with a Memorandum of Points and Authorities and a Notice of Lodgment [doc. no. 12]. Respondent contends that Hill's Petition should be dismissed because it was filed after the expiration of the statute of limitations; Petitioner's claims were not exhausted in state court; and Hill's claims fail to present a federal question because they do not allege a violation of federal law. (Resp't's Mem. of P. & A. 2.)

Petitioner filed an Opposition to Motion of Respondent[] to Dismiss [doc. no. 18] and a Notice of Lodgment [doc. no. 18 Attach. 1] on April 4, 2007. Hill claims his Petition should not be dismissed because he has properly pleaded violations of his federal constitutional rights, and his Petition is timely. (Pet'r's Opp'n 2, 6.) Petitioner admits that he did not properly exhaust his claims by presenting them to the state appellate court and supreme court, but he alleges that this error should be excused. (Id. at 11-12.)

III. STANDARD OF REVIEW

Because Hill filed his Petition after April 24, 1996, it is subject to the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. 28 U.S.C.A. § 2244 (West 2006). AEDPA sets forth the scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C.A. § 2254(a) (West 2006); see also Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991).

In 1996, Congress "worked substantial changes to the law of habeas corpus." Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). Amended § 2254(d) now reads: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the ...


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