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Price v. Barnes

January 13, 2010

WILLIAM HENRY PRICE, PETITIONER,
v.
WARDEN RON BARNES, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges both his Butte County Superior Court 2003 conviction for petty theft with priors (California Penal Code § 666) with a sentencing enhancement for a prior prison term (California Penal Code § 667.5). Pursuant to the challenged conviction, petitioner was sentenced to a determinate prison term of eight years. Petitioner seeks federal habeas relief on two grounds: (1) that he was improperly arrested for the offense in question due to discriminatory profiling and was therefore subjected to false imprisonment; and (2) his conviction was obtained in reliance upon illegally seized evidence. (Am. Pet. at 4-7.)*fn1

Before the court are the following motions: (1) respondent's motion to dismiss this action on the ground that the amended habeas petition contains only non-cognizable claims, (2) petitioner's motions for leave to supplement his amended habeas petition, (3) petitioner's discovery motions, and (4) petitioner's requests for judicial notice. Below the court will summarize the arguments of the parties and address each of the pending motions.

RESPONDENT'S MOTION TO DISMISS*fn2

I. Parties' Arguments

A. Respondent's Motion

Respondent argues that the two claims in the amended habeas petition contending that evidence was obtained in violation of petitioner's Fourth Amendment rights, are not cognizable under the decision in Stone v. Powell, 428 U.S. 465 (1976). (Mot. to Dism. at 2.) Respondent contends that petitioner was provided a fair opportunity to raise his Fourth Amendment claims in state court and in the over thirty post-conviction collateral actions he has brought. (Id.) Finally, respondent argues that although petitioner attempts to cast these claims as implicating his rights to due process and equal protection, the claims squarely present Fourth Amendment challenges which are not cognizable in these federal habeas proceedings. (Id. at 3.)

B. Petitioner's Opposition

In his opposition to the motion to dismiss, petitioner essentially restates his claims in this regard. Petitioner argues that law enforcement officers lacked probable cause to arrest him. Because his arrest was unlawful, petitioner contends, the subsequent seizure of his clothing was illegal and both the video surveillance tapes from the Food-4-Less store*fn3 and the statement of the store's theft enforcement officer should have been suppressed. (Opp'n at 2.) Petitioner asserts that his habeas action alleges discrimination and "non-censual [sic] search and seizure." (Id.) Petitioner also asserts that the court must hold an evidentiary hearing with respect to these claims. (Id. at 4.)

II. Analysis

A. Claim One: Unlawful Arrest

In this claim, petitioner alleges that he was arrested as a result of discrimination based on his race and sex and that he was subjected to false imprisonment. (Am. Pet. (Doc. No. 12) at 4.) In this regard, petitioner alleges as follows. On November 16, 2002, he entered a Food-4-Less store and that a loss prevention store employee, singled him out for surveillance because he was an African American male. (Id.) The loss prevention employee accused petitioner of shop-lifting two bottles of liquor. (Id.) In his report of the incident, the store's loss prevention officer stated that he observed petitioner concealing the bottles of liquor and confronted petitioner outside the store. (Pet. (Doc. No. 1) at 31.) Petitioner ran from the loss prevention officer and threw the concealed bottles of liquor, one of which broke and the other of which was retrieved by the loss prevention officer. (Id.) The store employee telephoned the Oroville Police Department and petitioner was arrested about two blocks away from the store. (Am. Pet. at 4.)

In addition to the allegation of racial profiling, petitioner argues that probable cause was lacking for his arrest because (1) the police officers did not possess physical evidence (i.e., the bottles) that a crime had been committed, (2) no crime was committed in the presence of a police officer or "private actor", (3) the store's surveillance tape failed to show petitioner in the commission of a crime, and (4) his arrest was based merely on his prior criminal history. (Id. at 5.) Petitioner also argues that the store's loss prevention officer caused him to suffer false arrest and false imprisonment, that the store employee and Oroville Police officers conspired to detain petitioner and to violate his rights under the Fourteenth Amendment and his First Amendment right "to petition the government for redress of grievance to obtain the truth in evidence that could have resolved the question of guilt." (Id.)

Federal habeas relief may be granted "only on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It is established that a criminal conviction will not be set aside because the defendant was unlawfully brought before the court. See United States v. Crews, 445 U.S. 463, 474 (1980) ("An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction . . . . [Defendant] is not himself a suppressible 'fruit,' and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilty through the introduction of evidence wholly untainted by the police misconduct.") (citations omitted); Myers v. Rhay, 577 F.2d 504, 507 (9th Cir. 1978) ("[I]t is well settled that illegal arrest or detention of a suspect does not void a subsequent conviction. The proper time to challenge the probable cause underlying an arrest is prior to the prosecution of the case, while the illegal detention is in progress.") (citations omitted); see also Caldwell v. Cupp, 781 F.2d 714 , 715 (9th Cir. 1986) (federal habeas petitioner's claim that he was subject to illegal arrest, unsupported by probable cause, barred by Stone v. Powell).

Here, petitioner attempts to challenge his arrest as being unsupported by probable cause and as having stemmed from the discriminatory targeting of African American male customers for theft surveillance at the store in question. However, such claims challenging a petitioner's arrest are not cognizable in a federal habeas proceeding. In addition, to the extent petitioner is attempting to claim that his rights under the First Amendment, such a claim would be frivolous on its face, unsupported by any arguable legal theory and not ...


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