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Hudson v. California Rehabilitation Center

United States District Court, E.D. California

December 10, 2019

JORDAN CORDELL HUDSON, Petitioner,
v.
CALIFORNIA REHABILITATION CENTER, Warden, Respondent.

          FINDINGS AND RECOMMENDATIONS

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE

         Introduction and Summary

         Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. The matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and Local Rule 302(c).

         Petitioner, convicted of serial sex crimes, raises two claims, but they both concern insufficiency of evidence. An appeal was taken, but on a sentencing issue only. Petitioner directed attacks to the merits of his conviction only in state habeas proceedings. Somewhat confusingly, petitioner in this federal case, apparently raises as a strongly argued straight claim that the evidence showing him to be at a different place when one of the crimes took place renders the evidence of conviction on that count to be insufficient, but this insufficiency is not raised in the section where he claims appellate counsel was ineffective for not raising “meritorious” claims. Conversely, petitioner asserts that for two of the other crime victims his appellate counsel was not effective for failing to raise two meritorious insufficiency of evidence claims, but petitioner does not assert claims in and of themselves that the evidence was insufficient.

         Regardless of the analytical prism for petitioner's claims, all involve an allegation of insufficient evidence, and no matter how framed, each claim requires an analysis of whether the evidence in some way was indeed insufficient. For the reasons set forth below, the undersigned recommends the petition should be denied in its entirety.

         Factual Background

         Although the California Court of Appeal, Third Appellate District (“Court of Appeal”) did not analyze a sufficiency of the evidence issue in its opinion, the factual findings of the appellate court are a useful starting point for our discussion herein.

On the morning of February 3, 2014, J.V. left her house to walk to the gym. She passed defendant along the way.
Defendant asked her if she would stop to talk to him. She said “no” and continued walking. A short while later, J.V. noticed defendant running towards her in the street. Defendant said, “I like the way you play with your booty hole.” J.V. may have cussed in response and kept walking on the sidewalk.
Defendant then grabbed J.V. by the waist from behind. She tried to peel his hands off her. As they struggled, they fell to the ground on the front lawn of a nearby house. The yard had a small brick retaining wall. J.V.'s back was on the grass, but her legs dangled over the short retaining wall. Defendant was on top of her.
Defendant tried to pull J.V.'s pants down while she continued to fight him. She held onto her pants with her left hand, and she hit defendant twice in the face with her right hand. He eventually succeeded in pulling her pants down so that her buttocks and vagina were partially exposed. She continued to struggle to pull her pants up, and yelled twice for defendant to “stop.” Defendant responded, “No, I don't even care.” Defendant then picked J.V. up and slammed her to the nearby sidewalk. At this point, defendant was able to pull J.V.'s pants to her knees, fully exposing her vagina and buttocks. He dragged her along the sidewalk and began fiddling with the drawstring on his pants. Defendant pulled J.V.'s neck towards his groin area in an attempt to force her to orally copulate him. J.V. could smell defendant's penis, which was a few inches from her face. She did not see defendant's penis, however, because she had turned her head away.
J.V. told defendant “no, ” and continued to pulled her head away. Defendant then said, “I don't even care, ” and ran away. Defendant did not succeed in putting his penis in either J.V.'s vagina or her mouth. J.V. described the incident as “very fast.” After defendant left, J.V. pulled her pants up. She called her boyfriend and her sisters to tell them about the attack. Although they looked for defendant in the area, they could not find him. Later that day, J.V. reported the attack to police.
Approximately two weeks later, on February 20, 2014, defendant assaulted M.C. while she walked home alone from school. Defendant passed her while riding a bike and said “Hey.” While standing in the street, defendant grabbed her legs from behind and threw her down. He unbuttoned his pants and tried to put his penis in her mouth. M.C. was able to yell for help and fight defendant off; he gave up the attack and ran away. M.C. reported the assault to police.
Later that same day, A.M. was walking home alone in the dark when defendant approached her on a bike. He commented about her butt, and grabbed her buttocks. She pushed him away and quickly walked to a nearby apartment complex while calling her sister. Defendant followed. A.M.'s sister came outside and confronted defendant, and defendant took off. He was apprehended by police later that night.

People v. Hudson, No. C083615, 2018 WL 3828783, at *1-3 (Cal.Ct.App. Aug. 13, 2018).

         Procedural Background

An October 2016 amended information charged defendant with assaulting J.V. with the intent to commit rape (§§ 220, 261, subd. (a)(2)-count one), assaulting J.V. with the intent to commit forcible oral copulation (§§ 220, 288a, subd. (c)(2)-count two), assaulting M.C. with the intent to commit forcible oral copulation (§§ 220, 288a, subd. (c)(2)-count three), and committing a lewd and lascivious act on A.M., a child over 15 years old and more than 10 years younger than defendant (§ 288, subd. (c)(1)-count four).
The jury found defendant guilty of all charges. The court sentenced defendant to an aggregate term of 21 years in state prison, consisting of the upper term of three years for the lewd and lascivious act conviction in count four, and to consecutive terms of six years each for the three assault convictions in counts one through three. Defendant timely appealed.

People v. Hudson, 2018 WL 3828783, at *2.

         The appeal was sought as to a sentencing error only. None of the issues here concern that appeal. The issue of insufficient evidence and ineffective assistance of counsel for not raising sufficiency of the evidence were first set forth in a habeas corpus petition before the Sacramento County Superior Court (“Superior Court”). ECF No. 12-15. The Superior Court denied the straight insufficient evidence issues on procedural default grounds with a citation to In re Harris, 5 Cal.4th 813, 829 (1993) (claims which should have been raised on direct appeal cannot be raised in habeas corpus). ECF No. 12-16. The Superior Court denied the ineffective assistance of appellate counsel issues on the merits. Id. The petitions filed in the Court of Appeal and the California Supreme Court were silent denials thereby adopting the decision of the Superior Court as a matter of law. ECF Nos. 12-17-12-20. See Wilson v. Sellers, 138 S.Ct. 1188 (2018).

         This federal petition was timely filed on August 8, 2019. ECF 1. Respondent answered, ECF No. 11, but addressed the merits only, and did not seek to have the straight sufficiency of evidence issues procedurally barred or found unexhausted. Rather, respondent treated the federal petition as having raised sufficiency of the evidence issues with respect to all three victims; the same was argued with respect to the ineffective assistance of appellate counsel.

         Issues ...


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