Unpublished Disposition, 875 F.2d 318 (9th Cir. 1980)

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U.S. Court of Appeals for the Ninth Circuit - 875 F.2d 318 (9th Cir. 1980)

Leonard BUTLER, Petitioner-Appellant,v.Kenneth DUCHARME, Respondent-Appellee.

No. 88-3925.

United States Court of Appeals, Ninth Circuit.

Submitted*  May 2, 1989.Decided May 10, 1989.

Before ALARCON, FERGUSON and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Petitioner-Appellant, Leonard Butler, appeals the dismissal of his petition for writ of habeas corpus, claiming that his state court conviction for armed robbery was based upon evidence obtained from an illegal arrest.

We affirm.

Butler was arrested without a warrant in his home on March 26, 1980, for the armed robbery of a pharmacy. Two days later, Gary Heffner, a pharmacy employee identified Butler in a lineup as the assailant in the pharmacy robbery.

On June 9, 1980, Butler made a pre-trial motion in the state trial court to suppress Heffner's lineup identification and subsequent potential in-court identification, on the grounds that they were fruits of the arrest made without probable cause in violation of the Fourth Amendment. The state trial court found that the arrest was illegal and granted Butler's motion to suppress the lineup identification. The court, however, found that since Heffner had closely observed the perpetrator prior to Butler's illegal arrest, his in-court identification would be made independent of the lineup and would therefore not be excluded on Fourth Amendment grounds if later offered into evidence.

Butler was subsequently convicted of armed robbery based, in large part, on Heffner's in-court identification, and sentenced to life imprisonment. Having exhausted all state remedies with respect to his Fourth Amendment legal arrest claim, Butler petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed Butler's petition, and Butler now appeals.1 

Butler argues that his Fourth Amendment rights have been violated by the state trial court's admission of Heffner's in-court identification, since this identification was the fruit of his illegal arrest. However, this issue was fully and fairly litigated before both the state trial court and on direct appellate review. Thus, under Stone v. Powell, 428 U.S. 465 (1976), we are precluded from entertaining his Fourth Amendment claim based on the exclusionary rule on habeas review. See, 428 U.S. at 494 ("where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.")

Accordingly, the district court's dismissal of Butler's petition was proper.

AFFIRMED.

 *

This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Butler's petition sets forth facts which suggest that his lineup may have been unduly suggestive. However, since Butler at no point in his petition contends that Heffner's in-court identification should have been excluded because the lineup was unfair in and of itself (i.e., irrespective of the illegal arrest), we need not consider this issue