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King v. Hill

United States District Court, Ninth Circuit

July 8, 2013

DAVID JEROME KING, Petitioner,
v.
RICK M. HILL, Warden, Respondent.

REPORT AND RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Cormac J. Carney, United States District Judge, pursuant to 28 U.S.C. ยง 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on April 9, 2013, accompanied by exhibits ("Pet. Ex."). The Petition contains the single claim that the California Department of Corrections and Rehabilitation and/or California Board of Prison Terms[1] assertedly failed to perform a sentence review pursuant to former California Penal Code section 1170(f) (Petition, attachment).[2] Respondent filed a Motion to Dismiss on May 2, 2013, asserting that the Petition is untimely and procedurally defaulted. Petitioner filed a Reply on May 17, 2013.

BACKGROUND

In 1986, in Los Angeles Superior Court case number A632071, Petitioner received a sentence of 105 years for various crimes including kidnapping, rape, robbery, and grand theft of an automobile (Petition, p. 2). On April 11, 1989, the California Court of Appeal reportedly reversed on one count, but otherwise affirmed the judgment with modifications (Petition, pp. 2-3). On July 12, 1989, the California Supreme Court denied Petitioner's petition for review (Petition, p. 2).

On April 7, 1988, the California Board of Prison Terms ("Board") sent Petitioner a letter stating that, during the disparate sentence review process, the Board had discovered an apparent legal error in Petitioner's case (Pet. Ex. 1). The letter stated that, because of the alleged error, the Board could not review the sentence for disparity pursuant to California Penal Code section 1170(f) (Pet. Ex. 1). The letter advised Petitioner to contact the Records Office Staff at his place of incarceration concerning the alleged error (Pet. Ex. 1). The record does not indicate whether Petitioner ever did so.

The California Supreme Court's docket, of which the Court takes judicial notice, [3] shows that, on October 9, 1992, Petitioner filed a habeas corpus petition in the California Supreme Court, in In re King, case number S029186. The California Supreme Court denied the petition, which is not in the present record, on December 31, 1992.

On May 5, 1993, Petitioner filed a habeas corpus petition in this Court, challenging his 1986 conviction. See King v. White, CV 93-2607-RJK(E).[4] On November 4, 1993, judgment was entered denying and dismissing the petition with prejudice. Petitioner filed a Notice of Appeal on December 4, 1993. On July 20, 1994, the United States Court of Appeals for the Ninth Circuit dismissed the appeal.

The California Court of Appeal's docket, of which the Court has taken judicial notice, shows that, from 2002 through 2007, Petitioner filed a number of state habeas petitions concerning the conviction in Los Angeles County Superior Court case number A632071, none of which are in the record or are mentioned by the parties. On June 26, 2002, Petitioner filed a habeas corpus petition in the Court of Appeal, in case number B159595. The Court of Appeal denied this petition on August 12, 2002. On July 19, 2005, Petitioner filed a petition in the Court of Appeal in case number B184460, which the Court of Appeal denied on August 2, 2005. Petitioner filed another petition in the Court of Appeal on May 1, 2007, in case number B198573, which the Court of Appeal denied on May 18, 2007.

In the meantime, on February 5, 2003, Petitioner filed a second habeas corpus petition in this Court, in King v. Kramer, CV 03-829-CJC (E), which the Court dismissed without prejudice on May 27, 2003, as second or successive. Petitioner filed an application to file a second or successive petition in the United States Court of Appeals for the Ninth Circuit, which that court denied on February 14, 2005.

In or about April of 2010, Petitioner contacted the Board (see Pet. Ex. 2). The record does not contain this communication to the Board. The Board replied, stating that Petitioner previously had received a response on April 7, 1988, and advising Petitioner to discuss any questions with his counselor (Pet. Ex. 2).

On September 10, 2010, Petitioner filed a habeas corpus petition in the California Court of Appeal, in case number B227262, which concerned the conviction in Los Angeles County Superior Court case number A632071. The Court of Appeal denied the petition, which also is not in the record, on September 22, 2010.

On May 29, 2012, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court (see Pet. Ex. 3). The Superior Court denied the petition on the grounds that Petitioner had failed to exhaust available administrative remedies and that the Petition was untimely (Pet. Ex. 3). Petitioner filed a habeas corpus petition in the California Court of Appeal on August 24, 2012, which that court denied summarily on September 10, 2012 (Pet., p. 4; Pet. Ex. 4). Petitioner filed a habeas corpus petition in the California Supreme Court on October 29, 2012, which that court denied on January 3, 2013 with citations to In re Robbins , 18 Cal.4th 770, 77 Cal.Rptr.2d ...


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