The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Robert S. Hudson, a California prisoner incarcerated at
Correctional Training Facility, Soledad, filed this action on
June 07, 2004, seeking a writ of habeas corpus pursuant to
28 U.S.C. § 2254. After reviewing the papers and evidence submitted,
the Court DENIES the petition for the reasons discussed below.
Robert S. Hudson was convicted of first degree murder pursuant
to a guilty plea in Los Angeles County Superior Court. On July
10, 1984, he was sentenced to twenty-five years to life in
prison. In this action, petitioner challenges the execution of
his sentence. Petitioner asserts that his federal due process
rights were violated when the Board of Prison Terms ("BPT") found
him unsuitable for parole in May 2003.
1. The commitment offense.
Reports from parole suitability determinations (June 24, 1998,
November 5, 2001, and May 21, 2003) and a probation officer's
report dated July 10, 1984, describe the crime as follows:
Hudson and the victim, Duane Keith Rice, had been
dealing drugs for approximately six years. Business
dealings between Hudson and Rice had gone bad, and
Hudson developed animosity towards Rice. Both Hudson's wife and his friend, Patrick Dickey,
convinced Hudson to rob Rice for money. Rice was
known to typically carry large sums of money on his
person for his narcotics business, and Hudson
believed that he would be able to obtain
approximately $50,000 from Rice. For over a month,
Hudson and Dickey devised a plan to assault and rob
Rice. Hudson maintains that the original plan was not
to murder Rice, but to assault and rob him. Although
Hudson admits to previous alcohol abuse problems, he
maintains that he was not drinking on the day of the
On February 28, 1983, Hudson and Dickey carried out the plan.
In the course of the robbery, Rice attempted to defend himself. A
struggle ensued and Hudson and Dickey repeatedly struck Rice with
a metal pipe, splitting Rice's head open and killing him. Dickey
suggested that he and Hudson clean-up the mess and dump the body
in Lake Mead, Nevada. Hudson and Dickey wrapped Rice's body in
plastic and loaded the body into Rice's van. After thoroughly
cleaning the crime scene, Hudson and Dickey began driving to Las
Vegas. On the way, they stopped at an all-night sporting goods
store and bought a rubber raft and lead weights. Hudson and
Dickey weighted Rice's body down with the lead weights, rowed out
into the middle of Lake Mead, and tossed the body into the water.
Hudson and Dickey then drove Rice's van to Tijuana, Mexico and
cleaned and abandoned the van. Rice's body has never been
On January 24, 1984, Diane Carol Hudson, petitioner's spouse,
contacted Detective Douglas McCormack of the Pomona Police
Department and voluntarily stated that she believed Hudson and
Dickey were involved in the murder of Rice. McCormack also
interviewed William Howard Robertson on February 23, 1984.
Robertson stated that in late 1983, Hudson had mentioned that a
pipe had been used to kill Rice, and detailed other aspects of
the crime, including dumping the body in Lake Mead and abandoning
the victim's car in Mexico.
Hudson entered a guilty plea for first degree murder on July
10, 1984, and was sentenced to twenty-five years to life.
Hudson's minium eligible parole date was July 17, 1999.
Hudson has had four parole suitability hearings (June 24, 1998,
November 5, 2001, May 21, 2003, and August 18, 2004). This petition is against the third parole
suitability hearing (May 21, 2003), at which Hudson was denied
parole for one year. Hudson was subsequently denied parole for an
additional year at the August 2004 hearing.
Hudson and his attorney were both present and given an
opportunity to speak. The BPT panel enumerated the facts of the
crime, to which Hudson stipulated. The panel considered Hudson's
past criminal history, which consisted of minor drug-related
charges, one conviction for misdemeanor marijuana possession, and
no violent crimes. The panel also reviewed Hudson's prison record
and found no serious disciplinary actions (only one 128(a)
violation for misappropriation of state food in 1986 a
misdemeanor) and an exceptional number of laudatory reports
relating Hudson's participation in self-help programs, volunteer
programs, and educational and vocational training. Hudson also
presented a letter containing a job offer upon his parole, and
statements of family support for his release. The psychological
report determined Hudson's potential for violence once released
was no higher than the average citizen and was supportive of
The panel concluded that Hudson was "not suitable for parole
and would pose an unreasonable risk of danger to society or a
threat to public safety if released from prison at this time."
Resp't Ex. B at 34. The primary reasoning was the timing and
gravity of the offense. The BPT stated that the offense was
carried out in . . . a vicious, brutal manner. The
gentleman was bashed in the head with a pipe . . .
The victim was mutilated during the offense. The
offense was carried out in a dispassionate and
calculated manner and that it was planned out. It was
a process to try and deceive or avoid prosecution by
taking his body and dumping it and weighting it down
in Lake Mead. Then on top of that as well, his
vehicle was disposed of in another country, in
Mexico, after the fact of the murder. . . . The
offense was carried out in a manner which
demonstrates a cold-hearted disregard for human
Id. at 34-35. The panel also expressed concerns of Hudson's
criminal history and his prior problems with substance abuse.
The prisoner has an escalating pattern of criminal
conduct and violence and a history of unstable
tumultuous relationships with others . . . [He had]
failed to profit from society's previous attempts to
correct his criminality. Such attempts included
Id. at 35. The panel commended Hudson on his behavior in prison
and his educational and self-help achievements. However, the
panel found that the "positive aspects of [Hudson's] behavior
don't outweigh the factors of unsuitability at this time" and
recommended that Hudson remain disciplinary-free and "continue
self-help programming to better understand the causative
factors." Id. at 38. The panel expressed that if Hudson continues disciplinary-free and maintains what he is doing in
prison, that "it is felt that [he] will get a date at some point
here fairly soon." Id.
Hudson's fourth denial of parole was based "a lot on the
crime." The BPT again characterized the crime as especially
crueland callous. However, in contrast to the third hearing, the
BPT found that the prisoner did not have much of an escalating
pattern of criminal conduct and no violent offenses. The
psychological evaluation showed that his level of dangerousness
was that of an average citizen in the community. The BPT denied
parole and recommended the prisoner continue to remain
disciplinary-free and participate in self-help programs.
3. State habeas proceedings.
After the BIT's third denial of parole, Hudson sought a writ of
habeas corpus in state court. The Los Angeles County Superior
Court denied the petition for writ of habeas corpus because
petitioner "failed to show a prima facie case for relief." Resp.
Ex. H. The California Court of Appeals and the California Supreme
Court denied Hudson's petition without comment. Resp. Ex. G, H.
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a federal court may grant a writ of habeas corpus if
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 facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A decision is contrary to established law if
it applies a rule that contradicts the law as set forth by the
Supreme Court, or arrives at a different result in a case that is
"materially indistinguishable" from a Supreme Court decision.
Penry v. Johnson, 532 U.S. 782
, 792 (2001). Unreasonable
application of established law occurs when the court "correctly
identifies the governing legal rule but applies it unreasonably
to the facts." Id. Under AEDPA, although Supreme Court
precedent is the only controlling authority, Ninth Circuit case
law is persuasive authority for the purposes of review of
previous state court decisions. Luna v. Cambra, 306 F.3d 954
960 (9th Cir. 2002), amended by 311 F.3d 928 (9th Cir. 2002). In reviewing a habeas corpus petition, a federal court must
look at the last reasoned decision of the state court to
determine whether that court's decision was contrary to or ...