Monday, September 9, 2002
Court Orders New Hearing for LAPD Officer Convicted of Murder
By KENNETH OFGANG, Staff Writer/Appellate Courts
A former Los Angeles police officer, now serving a life-without-parole sentence as a hired killer, was granted a new habeas corpus hearing by the Ninth U.S. Circuit Court of Appeals Friday.
A divided panel reversed a ruling by then-U.S. District Judge Richard A. Paez of the Central District of California, since elevated to the appeals court, dismissing two petitions by Richard Ford as untimely. Ford may have been misled, “although not intentionally,” into thinking he could dismiss his claims and litigate them later, Judge Stephen Reinhardt concluded for a divided panel.
Ford and fellow officer Robert Von Villas, dubbed the “Killer Cops” by journalists covering their cases, were convicted in 1988 of murdering businessman Thomas Weed for financial gain. Weed’s widow, Janie Ogilvie, testified that she hired the two officers to kill her estranged husband in order to put an end to bitter divorce proceedings.
Ogilvie pled guilty to second degree murder and was sentenced to 15 years to life. Von Villas and Ford were convicted in another case of attempting to murder Jean Loguercio—a friend of Von Villas who worked as an exotic dancer in Hollywood—as well as conspiracy to murder Loguercio’s husband and robbery of a Northridge jewelry store. Ford received a sentence of 36 years to life in prison in that case.
The Loguercio plot was alleged to be part of a scheme to collect life insurance proceeds.
Ford’s convictions were affirmed in 1992. His petitions for review in the state and U.S. Supreme Courts were denied in 1993.
On April 19, 1997, he filed pro se habeas corpus petitions seeking to set aside his convictions. He claimed that multiple evidentiary and instructional errors by Los Angeles Superior Court Judges Darlene Schempp in the Weed case and Alexander Williams III in the Loguercio case had denied him due process.
U.S. Magistrate Judge Stephen Hillman concluded that Ford had filed improper “mixed” petitions—ones that included some claims that were exhausted in state court and others that were not. Although Ford moved for a stay so that he could litigate the unexhausted claims in state court while preserving his exhausted claims, Hillman held that the federal petitions would have to be dismissed without prejudice unless Ford dismissed the unexhausted claims.
Ford did not dismiss any of his claims, and Hillman recommended that the petitions be dismissed without prejudice. Paez agreed.
Ford then filed state habeas corpus petitions, which the California Supreme Court summarily denied.
He then filed new federal petitions in 1998, which Paez dismissed as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996. The act establishes a one-year limitations period in which to bring a federal habeas corpus petition challenging a conviction.
Defendants such as Ford, whose convictions were affirmed before AEDPA was enacted, generally must have filed their habeas corpus petitions no later than April 24, 1997, one year after AEDPA became law.
Reinhardt, writing for the Ninth Circuit, agreed that the district court could not stay Ford’s mixed petitions. But it could have allowed him to dismiss his unexhausted claims, then stayed the petitions while he litigated in state court, then allowed him to amend his petitions to bring the newly exhausted claims back into the federal case, the judge said.
A pro se litigant’s lack of knowledge of such “highly technical” requirements should not deprive him of the right to be heard, Reinhardt declared. Instead, he concluded, a person in Ford’s position should be allowed a reasonable amount of time to amend his petition, with the amendment relating back to the filing date of the original petition.
Reinhardt declined, however, to extend that conclusion to a claim raised for the first time in Ford’s second petition in the Weed case—that Ogilive was threatened by the police and drugged before she testified against him. That claim would only be timely, the appellate jurist explained, if Ford can establish equitable tolling of the one-year limitation by proving his allegation that his former lawyer failed to provide him with the documents necessary to plead the claim.
Judge Harry Pregerson concurred in the opinion, but Judge Barry Silverman dissented.
Ford, he declared, had been “perfectly free to re-file” his petitions and “to assert whatever factual, statutory, and equitable defenses to the statute of limitations he might have had.”
“It is one thing to construe a pro se petitioner’s pleadings liberally, and to require the district court to explain its reasons for dismissing a complaint. It is quite another thing to require the district court judge to act as petitioner’s legal advisor.”
Faced with the opportunity to litigate exhausted claims on the one hand, but with the possibility of permanently losing unexhausted claims on the other, Silverman reasoned, a petitioner would be expected to look at a variety of specific factors, including the statute of limitations, the merits of the claims, and the availability of evidence.
The court, he said, is hardly in a position to make those judgments for the petitioner. Its obligation, Silverman said, is to “to fairly and impartially decide the case before it, not to act as the petitioner’s paralegal.”
Lisa M. Bassis of Los Angeles represented Ford on appeal, while Deputy Attorney General Paul M. Roadarmel Jr. was counsel for the state.
The case is Ford v. Hubbard, 98-56455.
Copyright 2002, Metropolitan News Company