Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ballou v. Carlin

September 13, 2010

MICHAEL BALLOU, PETITIONER,
v.
TEREMA CARLIN, RESPONDENT.



The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER

Pending before the Court in this habeas corpus action is Respondent's Motion for Summary Dismissal. (Dkt. 14.) The Motion is fully briefed and ripe for adjudication. Both parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case. (Dkt. 9 & 12.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

Having considered the parties' arguments contained in the briefing, and having reviewed the record in this matter, including the portions of the state court record provided by the parties, the Court has determined that oral argument is unnecessary and enters the following Order granting the Motion for Summary Dismissal.

MOTION FOR SUMMARY DISMISSAL

1. Standard of Law

Rule 4 of the Rules Governing § 2254 Cases authorizes the Court to summarily dismiss a petition for writ of habeas corpus when "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." When considering dismissal, the Court construes the facts in a light most favorable to the petitioner. It is appropriate for the Court to take judicial notice of court dockets from state court proceedings. Fed. R. Evid. 201(b); Dawson v Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).

Petitioner's only claim is a Fourth Amendment search and seizure claim. The threshold issue in a Fourth Amendment claim presented in a federal habeas corpus petition is whether the state provided the petitioner an opportunity for full and fair litigation of his claim in state court. Stone v. Powell, 428 U.S. 465, 494 (1976). If the federal district court determines that full and fair litigation of the claim took place in state court, then it cannot grant habeas corpus relief on the ground that the evidence was obtained in violation of the Fourth Amendment. Id.

The federal district court must first "inquire into the adequacy and fairness of available state court procedures for the adjudication of Fourth Amendment claims." Sanna v. Dipaolo, 265 F.3d 1, 8-9 (1st Cir. 2001) (internal citation omitted). If the court determines that the state court procedures are adequate, the inquiry generally ends there. Id. That is, "[s]o long as a state prisoner has had an opportunity to litigate his Fourth Amendment claims by means of such a set of procedures, a federal habeas court lacks the authority, under Stone, to second-guess the accuracy of the state court's resolution of those claims." Id. at 9. Stated another way, "[t]he relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). Petitioner bears the burden of establishing that the state courts did not consider the Fourth Amendment claim fully and fairly. Mack v. Cupp, 564 F.2d 898, 901 (9th Cir. 1977).

2. Facts and Procedural History

On November 26, 2004, Petitioner was driving a stolen car with no license plates, when he was spotted by police officers. He refused to stop, and later abandoned the vehicle and fled on foot. He briefly eluded officers, escaping to his own apartment, where he changed his clothes. Officers came to Petitioner's apartment and spoke with Petitioner's wife, Roxana Frank (Ballou). Petitioner tried to escape through the back window of the apartment while officers gaining entrance to the apartment, but he was apprehended by a police K-9 (canine) unit. Officers later entered the apartment again and found not only the clothing Petitioner had been wearing during the chase, but also burglary tools and stolen goods. (State's Lodging C-10, pp. 1-3.) As a result of the events of the day and the items found at the apartment, Petitioner was charged with felony eluding a police officer, grand theft, and being a persistent violator in criminal case number CRF-04-25736 in the First Judicial District Court in Kootenai County, Idaho. (State's Lodging A-1, pp. 87-90.)

Petitioner's Fourth Amendment claim arises from the police entry into his apartment, and focuses specifically on whether his wife freely and voluntarily consented to officers entering and searching the apartment several times that day. Petitioner's appointed counsel filed a motion to suppress "all evidence and fruits thereof obtained by the State as a direct or proximate result of the warrantless armed invasion and search of [Petitioner's] private home." (Id., pp. 115-16.)

The state district court scheduled an evidentiary hearing in the case. At the start of the hearing, the parties stipulated to admission of a four-hour DVD showing the actual dialogue between officers and Mr. Ballou's wife regarding entry into the apartment. The state district judge continued the hearing so that he could first watch the DVD. (State's Lodging A-3, pp. 6-15.)

After watching the DVD, the state court held the first evidentiary hearing. (Id., p. 16.) The parties stipulated that the entry was warrantless. (Id.) Officer Christy Mattson testified that she noticed a car without license plates, she pursued it, the driver led her on a high speed chase, and then he fled on foot into the apartment complex. (Id., pp. 17-25.) Officer Mattson described how she believed the suspect was Ballou from prior contacts with him, and that Ballou's wife (Roxana Frank) answered the door of the apartment after officers had knocked on the door 7 to 10 times. Officer Mattson testified that Frank initially did not consent to the officers entering the apartment, but it was her opinion that Frank later gave permission because Frank "understood that I realized who the suspect was, she got quiet, and she seemed like she got kind of fearful and realized what was going on. And beginning--she began nodding in consent and basically moved from the doorway and allowed us entry." (Id., p. 32.) Mattson testified that, at point, they made entry into the apartment for the purpose of pursuing a suspect who had committed several felonies. (Id.) Mattson testified that when she entered the apartment, she saw Ballou jumping out the back window. Mattson then left the apartment and did not re-enter.

On cross-examination of Mattson, Petitioner's attorney made several important points, comparing the DVD to Mattson's testimony: (1) the time was approximately 3:40 a.m.; (2) Frank was wearing nothing but a blanket; (3) it had been 40 minutes between the chase and the knocking on the apartment door; (4) Petitioner's wife had stated, "If you ain't got a warrant, you ain't coming in"; (5) a male officer said that "If you don't let us in, we're going to put you in custody, take you to a car, cuff you, put you in a car, and you're going to wait there until we go get a warrant"; (6) Frank was crying hysterically when she was nodding her head to indicate they could come in; (7) a female voice on the DVD said, "Push him out so the dog [canine unit] can get him"; and (8) Mattson was the only female officer at the scene. (Id., pp. 38-47.)

Officer Eric Anderson testified that he left his vehicle to pursue Petitioner on foot, and then lost track of Petitioner in the apartment complex. He called a K-9 unit for help. (Id., pp. 55-56.) He believed it was an unsafe situation with Petitioner's wife in the apartment and officers not knowing whether someone would come out shooting. He thought she could be handcuffed and removed from the situation, not because she was in trouble, but for safety reasons. He testified that Petitioner's wife went ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.