United States District Court, N.D. California
August 22, 2005.
ROBERT S. HUDSON, Plaintiff,
A.P. KANE, ACTING WARDEN, THE CORRECTIONAL TRAINING FACILITY, Defendant.
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.
2. Parole proceedings.
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.
STANDARD OF REVIEW
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 an
unreasonable application of established federal law. Id. at
960-61. When confronted with denials without citation or that
offer no rationale, the court's scope of review must include an
"independent review of the record . . . to determine whether the
state court clearly erred in its application of controlling
federal law." Id.
1. State claims have been exhausted.
Respondent argues that the petition should be dismissed because
it contains a claim that has not been exhausted in state court.
Respondent contends that petitioner never presented the claim
that his federal due process rights were violated because the BPT
does not normally grant parole.
Under AEDPA, a federal district court can grant a writ of
habeas corpus with respect to the judgment of a state court only
after the petitioner has exhausted all remedies available in the
courts of the state. 28 U.S.C. § 2254(b)(1)(A). Hudson's petition
to the California Supreme Court specifically claims that the
"Board's bias against granting parole . . . violat[ed]
Petitioner's state and federal due process rights, depriving him
of his federally protected liberty interest." Resp't Ex. I.
This Court finds that Hudson fairly presented his federal
claims to the state courts and gave the state court a fair
opportunity to adjudicate his claims of federal due process
violations. His habeas petition should not be dismissed based on
unexhausted state claims.
2. Petition is not moot.
Respondent argues that Hudson's petition for review of the
denial for parole after his May 2003 parole suitability hearing
is moot because he has since received subsequent parole
considerations that again found him unsuitable for parole. Hudson
argues that under Ninth Circuit case law, his petition is not
moot. Furthermore, suitability hearings after the May 2003
hearing do not make petitioner's challenge to May 2003 hearing
moot since he is still incarcerated as a result of the subsequent
The Ninth Circuit has determined that where claims are "capable
of petition yet evading review," exceptions to mootness*fn1 apply. Hubbart v. Knapp
379 F.3d 773, 777 (9th Cir. 2004), cert. denied, 125 S. Ct. 913
(2005) (habeas petition challenging a two-year commitment under
California's Sexually Violent Predators Act was found to "evade
review" because its duration was too short to be fully litigated
prior to its expiration). These exceptions apply when (1)
litigation likely takes longer than the duration of the
challenged action, and (2) it is likely that the same complaining
party will be repeatedly subject to the same action. Id.
Under Ninth Circuit reasoning in Hubbart, parole suitability
hearings that are conducted each year fall under both exceptions
to mootness. Therefore, Hudson's petition for review of his May
2003 hearing is not moot simply because he has since received
another parole suitability hearing.
3. The plea agreement was not violated.
A. Plea agreements are construed using contract
Petitioner argues that he has fully served the sentence
contemplated by the plea contract since, at the time of the plea,
the government offered him the opportunity to secure parole after
serving his minimum term if he stayed disciplinary-free and
programmed appropriately. Petitioner also argues that the plea
agreement precludes the BPT from relying on the facts of the
crime in parole suitability determinations. Respondent argues
that the plea agreement was not violated by denying petitioner
parole because the negotiated plea only agreed to drop
contemplation of a possible death sentence for guaranteed
sentence of twenty-five years to life.
Plea agreements are contractual in nature and are construed
using ordinary contract interpretation. Brown v. Poole,
337 F.3d 1155, 1159 (9th Cir. 2003). Under the due process rights of
the federal constitution, the defendant has the right to enforce
the terms of a plea agreement. Id. at 1159. The language of the
plea agreement and the conduct of the parties during the plea
colloquy must be examined in order to determine the intent of the
parties. Id. at 1160. "[D]ue respect for the integrity of plea
bargains demands that once a defendant has carried out his part
of the bargain the Government must fulfill its part." Santobello
v. New York, 404 U.S. 257, 262 (1971).
Petitioner's claim that the plea agreement was violated lacks
evidentiary support. The record before this Court does not
disclose any statements or terms of the plea bargain. Petitioner
also argues that the plea bargain operated as a stipulation by the trial court that the
crime was to be treated as a parole-eligible murder and that the
plea agreement also precluded the BPT from using the facts of the
crime in parole suitability determinations. In In re DeLuna,
126 Cal. App. 4th 585, 599 (2005), the court held that although a
plea agreement estops parties from arguing that the defendant
should be incarcerated longer than the "existing
matrix,"*fn2 when nothing in a plea agreement specifies
otherwise, the prosecutor (and by extension other agents acting
on behalf of the government) can continue to oppose parole based
on the characterization of the crime as especially callous. As
far as this Court can determine from the record, the petitioner
received the sentence expected from the plea agreement: 25-years
to life with parole eligibility, rather than a capital murder
sentence. Nothing in the record shows that the plea agreement
included a provision precluding the BPT from using the commitment
offense as an impediment to parole. Furthermore, at each parole
hearing, the petitioner stipulated to the facts of the crime, as
laid out by the BPT, that it would use in determining parole
suitability. The BPT is directed to consider all relevant and
reliable information available in determining parole suitability.
Id., 15 Cal. Code Regs. § 2402. An attempt to curtail the BPT's
exercise of discretion exceeds the court's authority. In re
DeLuna, 126 Cal. App. 4th at 599.
This Court cannot find that the plea agreement included any
terms or promises that would guarantee petitioner's release after
serving the minimum term on condition he remain disciplinary-free
and participate in self-help and educational programs, or that
the BPT could not consider the facts of the crime in parole
suitability determinations. Thus, this Court finds that the
respondent has not violated the plea agreement by denying parole
once the petitioner served the minimum term of the sentence or in
using the facts of the crime in parole suitability
B. BPT's use of the facts of the crime is authorized.
Petitioner also argues that the plea agreement precludes the
BPT from relying on the facts of the crime even as a partial
basis for denying parole. Petitioner analogizes the BPT's use of
the facts of the crime to limitations imposed by the Supreme Court in trial court
sentencing determinations. See generally Apprendi v. New
Jersey, 530 U.S. 466 (2000); Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004). In both Apprendi and Blakely,
the Supreme Court held that the trial court could not use facts
outside those found by the jury or those stipulated to in the
plea agreement to increase the defendant's sentence beyond the
statutory framework for the offense. However, the BPT is not only
authorized, but required, to look at the facts of the crime in
determination of parole suitability. 15 Cal. Code Regs. § 2402.
Furthermore, at each BPT hearing, petitioner stipulated to the
facts of the crime as laid out by the BPT. The BPT did not
increase the statutory term by denying petitioner parole at his
first hearing, or at subsequent hearings, with a finding that the
concern for public safety requires further incarceration. This is
part of the BPT's discretion. Cal. Penal Code § 3041(b). Under
California law, the BPT can decide that the facts of the offense
make it unsafe to fix a parole date as long as the BPT points to
factors beyond the minimum elements of the crime. See In re
Dannenberg, 34 Cal. 4th at 1071. Petitioner also argues that the
BPT, in setting a release date, is required to assure uniformity
in the term-setting practices (i.e., similar offenses have
uniform sentencing). However, petitioner ignores the fact that
the statutory scheme weights individual suitability for parole
more heavily than term uniformity. In re Dannenberg,
34 Cal. 4th at 1070-71:
While subdivision (a) of section 3041 states that
indeterminate life (i.e., life-maximum) sentencees
should "normally" receive "uniform" parole dates for
similar crimes, subdivision (b) provides that this
policy applies "unless [the Board] determines" that
a release date cannot presently be set because the
particular offender's crime and/or criminal history
raises "public safety" concerns requiring further
indefinite incarceration . . . Nothing in the statute
states or suggests that the Board must evaluate the
case under standards of term uniformity before
exercising its authority to deny a parole date on the
grounds the particular offender's criminality
presents a continuing public danger.
Id. at 1070 (emphasis, brackets, and parentheses as in
original). The BPT only need set a base term for a life prisoner
who is found suitable for parole. 15 Cal. Code Regs. § 2403(a).
Therefore, this Court does not find that the BPT is precluded
from using the facts of the crime in determining petitioner's
4. Due process violation.
Petitioner argues that, under Supreme Court and Ninth Circuit
case law, California's parole statutes create a liberty interest
in parole by using the words "shall normally." Petitioner further
contends that his due process rights were violated because of BPT's repeated reliance
on the unchanging facts of the crime to deny parole, and that
BPT's repeated denial of parole is not supported by "some
A. California statutes create a liberty interest in parole.
The Ninth Circuit has clearly held that California's parole
scheme, which uses mandatory language ("shall normally"), gives
rise to a federally protected liberty interest in parole.
McQuillion v. Duncan, 306 F.3d 895, 900 (9th Cir. 2002). The
existence of a federally protected liberty interest in parole, in
turn, allows federal courts to consider the due process questions
in habeas petitions challenging denials of parole. "A procedural
due process claim has two distinct elements: (1) a deprivation of
a constitutionally protected liberty or property interest, and
(2) a denial of adequate procedural protections." Id., at 900.
Respondent asserts that McQuillion was "erroneous," and
apparently suggests that this Court simply ignore it. Answer, at
8. This Court, of course, is not free to ignore Ninth Circuit
precedent, and in any event respondent's analysis of McQuillion
is entirely unconvincing. The Supreme Court has clearly stated
that while there is "no constitutional or inherent right of a
convicted person to be conditionally released before the
expiration of a valid sentence," a state's statutory parole
scheme that uses mandatory language may create a presumption that
parole release will be granted, thereby creating a
constitutionally protected liberty interest. Greenholtz v.
Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 11-12
(1979) (Nebraska parole statute, providing that the board "shall"
release prisoner subject to certain restrictions, creates due
process liberty interest in release on parole); Board of Pardons
v. Allen, 482 U.S. 369, 376-78 (1987) (Montana parole statute,
providing that the board "shall" release prisoner subject to
certain restrictions, creates due process liberty interest in
release on parole). In Sandin v. Conner, 515 U.S. 472, 481
(1995), the Supreme Court rejected the Greenholtz "mandatory
language" analysis with respect to prison regulations and
administrative management of prisons, but did not address parole
eligibility determinations. Sandin, 515 U.S. at 481-82.
McQuillion does not erroneously apply a pre-Sandin test, as
B. California parole standards.
California uses indeterminate sentences for most non-capital
murders. A first-degree murder conviction yields a minimum sentence of twenty-five years to life. Cal.
Penal Code § 190. One year prior to the inmate's minimum eligible
release date, the BPT meets with the inmate to determine a parole
release date. Cal. Penal Code § 3041(a). The statute provides:
"The panel or board shall set a release date unless it determines
that the gravity of the current convicted offense or offenses, or
the timing and gravity of current or past convicted offense or
offenses, is such that consideration of the public safety
requires a more lengthy period of incarceration for this
individual, and that a parole date, therefore cannot be fixed at
this meeting." § 3041(b). Parole suitability determinations
proceed by first determining if the prisoner is suitable for
release on parole. 15 Cal. Code Regs. § 2402(a). Regardless of
the length of time served, a prisoner "shall be found unsuitable
for and denied parole if in the judgment of the panel the
prisoner will pose an unreasonable risk of danger to society if
released from prison." § 2402(a). Section 2402 also outlines
factors that the BPT considers in parole hearings to support or
oppose parole suitability.*fn3
The California Supreme Court has determined that the BPT can
use the facts of the crime alone to support a sentence longer
than the statutory minimum even if everything else about the
prisoner is laudable. In re Dannenberg, 34 Cal. 4th at 1071.
"While the Board must point to factors beyond the minimum
elements of the crime for which the inmate was committed, it need
engage in no further comparative analysis before concluding that
the particular facts of the offense make it unsafe, at that time,
to fix a date for the prisoner's release." Id. However, "sole
reliance on the commitment offense might . . . violate section
3041, subdivision (a)'s provision that a parole date `shall
normally be set' . . . and might thus also contravene the
inmate's constitutionally protected expectation of parole." Id.
Such a case would occur "where no circumstances of the offense
reasonably could be considered more aggravated or violent than
the minimum necessary to sustain a conviction for that offense."
Id. at 1094-95 (quoting In re Rosenkrantz, 29 Cal. 4th 616,
683 (2002), cert. denied, 538 U.S. 980 (2003)).
The BPT's decision to deny parole must be based on "some
evidence" in order to satisfy the requirements of due process. McQuillion, 306 F.3d at 904
(adopting "some evidence" standard for disciplinary hearings set
forth in Superintendent v. Hill, 472 U.S. 445 (1985)).
Additionally, the evidence underlying the board's decision must
have some indicia of reliability. Id.
C. The BPT's denial of parole suitability was supported by
Petitioner argues that the BPT's denial of parole based on the
commitment offense and finding of increased pattern of
criminality is not based on any evidence and violates
petitioner's due process rights. Petitioner further argues that
continued reliance on the unchanging facts of the crime in
denying parole is in violation of due process.
i. Nature of the offense.
One of the factors that the BPT can consider in denying parole
is that the offense was committed in an "especially heinous,
atrocious or cruel manner." 15 Cal. Code Regs. §
2402(c)(1).*fn4 The BPT determined that Hudson was not
suitable for parole primarily on the gravity of the offense. This
Court must consider whether there is some evidence to support the
decision to deny Hudson parole.
Some evidence supports the BPT's determination that the killing
was done in a cruel and callous manner. Beating a person to death
with a pipe demonstrates an offense carried out in a
dispassionate manner and with callous disregard for human
suffering. The murder of the victim was due to several beatings
by both Hudson and his partner. Although there was the
opportunity to stop the beating after Hudson hit the victim with
the pipe once, he neither stopped himself, stopped his partner
from beating the victim, nor called for help. Both men continued
to beat the victim until his head was smashed open and he died.
The murder was also committed during commission of a robbery.
After the killing, Hudson and his partner went on to great
lengths to hide the body and avoid detection by police. The house
was cleaned, the body was driven to Nevada in the victim's car, weighted down with weights purchased at an
all-night sporting goods store, rowed out in a rubber raft, and
dumped into Lake Mead. Hudson then drove and abandoned the
victim's car in Mexico. Hudson hid the crime from authorities for
at least three years while the victim's family anguished over his
disappearance. Had Hudson not told his spouse of the crime, and
had she not seen fit to notify the police, it is likely that the
disappearance of the victim would have continued to remain
Hudson's activities on the day of the offense were beyond the
minimum elements necessary to constitute first degree murder.
This Court finds that the BPT's decision to deny parole by
relying on the facts of the crime are based on "some evidence."
ii. Increased pattern of criminality.
This Court does not find the BPT determination that Hudson had
a prior "escalating pattern of criminal conduct and violence" is
based on some evidence. Prior to the commitment offense, Hudson
had only been charged with minor drug-related offenses and had no
convictions for violent crimes. In order to find unsuitability
based on a previous record of violence, the BPT must find that
the prisoner had previously "inflicted or attempted to inflict
serious injury on a victim . . . [or] demonstrated serious
assaultive behavior at an early age." 15 Cal. Code Regs. §
2402(c)(2). Hudson's prior record does not support a finding of a
previous record of violence. However, since this is only a minor
reason that the BPT denied parole, and according to the
discussion above, this determination by the Court does not impact
the final decision to deny the writ.
iii. Petitioner's denial of parole at the May 2003 hearing did
not violate his due process rights.
Petitioner argues that the BPT has relied solely on the
unchanging facts of the crime to deny him parole, which violates
Petitioner relies on the Ninth Circuit decision in Biggs v.
Terhune that suggests that continued reliance solely on the
unchanging facts of the crime and conduct prior to imprisonment
to deny parole, even if supported by "some evidence," could
result in a due process violation. Biggs v. Terhune, 334. F.3d
910, 916-17 (9th Cir. 2003). In Biggs, petitioner's habeas
petition challenged the failure of California BPT to find him
suitable for parole at his first suitability hearing because the denial
was based solely on the unchanging facts of the gravity of the
commitment offense and his prior criminal record. Id. at 913.
The Ninth Circuit denied the writ, stating that the BPT's
"reliance on the gravity of the offense and conduct prior to
imprisonment to justify denial of parole can be initially
justified as fulfilling the requirements set forth by state law."
Id. at 916. The court noted, however, that continued denial
based solely on these two factors "would raise serious questions
involving [petitioner's] liberty interest in parole." Id.
In Irons v. Warden of California State Prison-Solano,
358 F. Supp. 2d 936, 947 (E.D. Cal. 2005), a district court relied on
this language in Biggs to hold that the BPT's reliance on the
crime to deny a prisoner parole violated due process. In Irons,
petitioner challenged his fifth denial of parole because the BPT
based the denial on the unchanging facts of the crime. Id. at
939. The BPT had relied solely on the crime for at least three
previous hearings. Id. at 947. Psychological reports from three
years prior to his fifth hearing were supportive of release.
Id. at 945. The court held that "[u]nder these circumstances,
the continued reliance on [the facts of the crime] . . . violated
due process. Id. at 947.
In the present case, petitioner's first parole suitability
determination was denied based on three factors: (1) the facts of
the crime, (2) an unstable social history with past criminal
history and substance abuse, and (3) a psychological report that
was not fully supportive of release. Although the second parole
suitability determination relied to a large extent on the facts
of the crime to deny parole, the BPT was also concerned that the
psychological report was not totally supportive of release and
indicated that petitioner's potential for violence was higher
than that of the average citizen. "We want it to be no threat to
the community, period." Pet'r Ex. F at 48. It is not until
petitioner's third and fourth parole suitability determinations
where the psychological report was supportive of release that the
BPT's only reason to deny parole were the facts of the crime. The
question is whether there is any evidence in the record that
could support the conclusion reached by the decision-maker. See
Superintendent v. Hill, 472 U.S. at 454. Substantial deference
is given to the BPT in determination of whether a prisoner is
suitable for parole. The BPT followed the appropriate guidelines
in 15 California Code of Regulations § 2402 and there was some
evidence to support the denial of parole based on the facts of
Now before the Court is petitioner's third denial of parole,
which was the first denial based solely on the facts of the crime. Petitioner's present situation falls
under the same factual circumstances as Biggs, which held that
a prisoner's due process rights are not violated the first time
parole is denied based solely on the facts of the crime.
Petitioner has subsequently had a fourth hearing in August 2004,
in which the BPT again denied parole based on the facts of the
crime. Resp't Ex. J. He is due for his fifth parole hearing in
August 2005. A denial based on the unchanging facts of the crime
at the August 2005 hearing would make it the third time that
petitioner is denied parole solely on the basis of the facts of
his convicted offense. At that time, petitioner's situation would
be more factually similar to the Irons case and would more
clearly require analysis of the concerns raised in Biggs, that
continued denial based solely on the facts of the crime can raise
serious questions of due process violations.
At this time, based on the discussion above, the Court does not
find that BPT's reliance solely on the nature of the offense in
denying petitioner parole at his May 2003 hearing violates
petitioner's federal due process rights.
The petition for writ of habeas corpus is DENIED.
IT IS SO ORDERED.
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