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HUDSON v. KANE

August 22, 2005.

ROBERT S. HUDSON, Plaintiff,
v.
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.

BACKGROUND

  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 murder.
  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 recovered.

  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 release.

  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 sufferings.
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 probation.
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 the

 
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 ...

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