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Babinski v. Spearman

United States District Court, E.D. California

November 2, 2017

BRIAN BABINSKI, Petitioner,
v.
M.E. SPEARMAN, Respondent.

          FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

         Petitioner Brian Babinski is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, Petitioner asserts a violation of the Fourth Amendment's prohibition on unreasonable searches. For the reasons discussed herein, the Court recommends denial of the petition for writ of habeas corpus.

         I. BACKGROUND

         On December 16, 2014, Petitioner pled no contest in the Fresno County Superior Court to one count of possession of child pornography. (2 CT[1] 381-84; 6 RT[2] 921). Petitioner admitted that he had prior convictions within the meaning of the three strikes law. (2 CT 382; 6 RT 922- 24). Petitioner was sentenced to an imprisonment term of twenty-five years to life. (2 CT 385).On January 31, 2017, the California Court of Appeal, Fifth Appellate District affirmed the judgment. People v. Babinski, No. F070916, 2017 WL 412733, at *2 (Cal.Ct.App. Jan. 31, 2017). The California Supreme Court denied Petitioner's petition for review on April 26, 2017. (LDs[3] 16, 17).

         On May 19, 2017, Petitioner filed the instant federal petition for writ of habeas corpus. (ECF No. 1). Respondent has filed an answer to the petition, and Petitioner has filed a traverse. (ECF Nos. 11, 16).

         II. STATEMENT OF FACTS[4]

         Procedural and Factual Background

         On February 9, 2011, while confined at Coalinga State Hospital awaiting adjudication of a petition to have him committed as a sexually violent predator (Welf. & Inst. Code, § 6600 et. seq.), Babinski walked through a metal detector causing it to alert. During a subsequent search of a folder he was carrying, a police officer found two memory cards that were seized and examined without a warrant and one was found to contain child pornography. On June 15, 2011, when he was arrested pursuant to a warrant that was issued based on the pornography found on the memory cards, other memory cards containing child pornography were found in a sock that was sewn into his boxers.

         On September 1, 2011, the Fresno County District Attorney filed a first amended complaint charging Babinski with two counts of possession of child pornography with a prior conviction and with having two prior convictions within the meaning of the Three Strikes law.

         On April 26, 2012, prior to the preliminary hearing in this matter, Babinski filed a motion to suppress (§ 1538.5). In his motion, Babinski alleged that the seizure and search of the memory cards were unlawful because they occurred without a warrant, and that all materials subsequently seized from Babinski were the “fruits of the illegal search.” On May 8, 2012, the prosecutor filed a reply to the motion arguing the first memory cards were lawfully seized because: (1) at the time, Babinski was housed at the hospital pursuant to a civil commitment under Welfare and Institutions Code section 6600 and had a reduced expectation of privacy; and (2) Babinski disclaimed ownership in the memory cards.

         On August 9, 2012, the motion was heard at the preliminary hearing.

         On August 15, 2012, the magistrate issued an order granting Babinski's suppression motion as to both seizures of memory cards. As to the initial seizure, the court found that if the effectiveness of therapeutic treatment was the driving force behind the hospital's search policy that resulted in the seizure of the cards, the hospital had other reasonable options it could pursue that did not infringe on the Fourth Amendment rights of its patients. It also found that Babinski did not abandon the memory cards. The magistrate granted the motion as to the second seizure because the arrest warrant that resulted in that seizure was based on the illegal seizure of the first memory cards. Based on the absence of admissible evidence, the court also dismissed the underlying complaint.

         On August 30, 2012, the prosecutor filed a motion for reinstatement of the complaint (§ 871.5), arguing that the search was lawful because, as a person who was housed at a state hospital pending a civil commitment as a sexually violent predator, Babinski had a lesser expectation of privacy than a private citizen. He also argued that the magistrate erred in granting the suppression motion because Babinski disclaimed ownership of the memory cards.

         On October 19, 2012, the court granted the prosecutor's motion and reinstated the first amended complaint.

         On December 7, 2012, Babinski was held to answer on the complaint.

         On December 10, 2012, the prosecutor issued an information that reiterated the charges and allegations contained in the amended complaint.

         On February 6, 2013, Babinski filed a motion to dismiss the information (§ 995), which the court denied on March 15, 2013.

         On December 16, 2014, Babinski pled no contest to one count of possession of child pornography with a prior and admitted the three strikes allegation in exchange for the dismissal of the remaining count and a stipulated sentence of 25 years to life.

         On January 23, 2015, the court sentenced Babinski to an indeterminate term of 25 years to life.

         The ...


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