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Ivan Hill v. Kevin Chappell

June 19, 2012

IVAN HILL, PETITIONER,
v.
KEVIN CHAPPELL, WARDEN, CALIFORNIA STATE PRISON AT SAN QUENTIN RESPONDENT.



The opinion of the court was delivered by: Christina A. Snyder United States District Judge

JS-6

DEATH PENALTY CASE

ORDER DENYING AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

I.BACKGROUND

Petitioner, Ivan Hill, was convicted and sentenced to death in 2007 for the serial murders of six women along the 60 freeway corridor east of Los Angeles in the early to mid-1990's.*fn1 Each of the victims was strangled and their bodies were dumped on the side of the road. Petitioner subsequently pled guilty to the murder of two additional victims that he had killed in the 1980's.*fn2 For those murders he received a sentence of life without the possibility of parole. Petitioner had also previously been convicted of the murder of a liquor store clerk during the commission of a robbery in 1979.

Petitioner applied to the California Supreme Court for the appointment of counsel on May 23, 2007 and the State Public Defender was appointed on July 13, 2011. (See California Supreme Court Case No. S152463 ("State Docket").) As of this date, no petition for review is yet on file in Petitioner's direct review case.

On June 5, 2012, Petitioner filed a pro se Petition for Writ of Habeas Corpus with this Court. Though he casts his petition as being filed under 28 U.S.C. § 2241, the contents of the pleading make it clear that Petitioner is seeking relief from what he believes to be his wrongful conviction and sentence. (Pet. at ii.) This case falls within the statutory scheme established by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) codified at 28 U.S.C. § 2254.

II.DISCUSSION

A.Petitioner Has Not Exhausted His State Court Remedies and Has Not Been Subjected to a Suspension of the Writ

Under AEDPA, a state prisoner can only bring a federal habeas petition if "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). There is a narrow exception to the exhaustion requirement crafted specifically for those situations where there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the rights of the prisoner. 28 U.S.C. § 2254(b)(1)(B)(i)(ii).

Though Petitioner has designed his complaint in the form of a request to be permitted to bypass state habeas proceedings under subsection (b)(1)(B)(ii), his actual complaint is that, an ongoing due process violation is occurring because his state direct appeal and habeas corpus cases have not been resolved.

AEDPA limits the federal courts' ability to entertain habeas corpus petitions by state prisoners. This Court cannot entertain such a petition unless the petitioner has exhausted all state court remedies available to him. 28 U.S.C. § 2254(b)(1)(A). The only exception to this "complete exhaustion" rule exists in those cases where the petitioner can demonstrate either that there is an absence of available state corrective process; or circumstances exist that render such process ineffective to protect his rights. 28 U.S.C. § 2254(b)(1)(B).

Petitioner apparently believes that the California's State Court Policies violate the federal constitution. The Court has consulted those policies in connection with its holding herein.*fn3 Petitioner complains that the policies operate to suspend habeas corpus or other collateral challenge because: the appointment of counsel for state habeas proceedings is not required until after the direct appeal; the appointment of counsel for direct appeals takes four to six years; and, in actuality a habeas brief may not be filed for eight to ten years post-conviction and sentence. He believes his opportunity to have his claims of conspiracy and malfeasance heard by the federal courts is being hampered by these policies.

The California Supreme Court Policies state that the "appointment of habeas corpus counsel for a person under a sentence of death shall be made simultaneously with appointment of appellate counsel, or at the earliest practicable time thereafter." (Policy 3.2-1.) Thus, Petitioner's claim that by policy the California courts do not appoint habeas counsel until after the direct appeal has been adjudicated is demonstrably false. Indeed, the policies contemplate different timeliness measures for the filing of the state habeas petition based on the type of appointment that is made. If direct appeal counsel is also appointed as state habeas counsel, then the habeas petition must be filed within 180 days of the date filing of the reply brief on direct appeal. (Policy 3.1-1.2.) On the other hand, if habeas counsel is appointed apart from direct appeal counsel, then the petition is not due until 36 months after the date on which habeas counsel was appointed. (Policy 3.1-1.2.) It is therefore conceivable that ...


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