Roman v. Frauenheim

Filing 46

ORDER by Judge Haywood S. Gilliam, Jr. DENYING PETITIONER'S 45 MOTION FOR RECONSIDERATION. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 4/29/2020)

Case 4:16-cv-02985-HSG Document 46 Filed 04/29/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ISIDRO ROMAN,
Petitioner,

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v.

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ORDER DENYING PETITIONER'S
MOTION FOR RECONSIDERATION

S. FRAUENHEIM,

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United States District Court
Northern District of California

Case No. 16-cv-02985-HSG

Re: Dkt. No. 45
Respondent.

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Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

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challenging a 1994 state court conviction. Almost three years ago, the Court dismissed this

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petition as procedurally defaulted. Now pending before the Court is petitioner’s “Motion to

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Reconsider [the] Unresolved Issue of Controversy With Respect[] to Ineffective Trial Counsel.”

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Dkt. No. 45. For the reasons set forth below, the Court DENIES this motion.

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PROCEDURAL BACKGROUND
The instant petition for a writ of habeas corpus challenges petitioner’s 1994 state court

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conviction on the grounds that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by

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failing to disclose various pieces of exculpatory evidence showing that the victim posed a threat to

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petitioner at the time of the shooting, which forced petitioner to act in self-defense. Dkt. Nos. 1, 8.

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On May 30, 2017, the Court dismissed the petition as procedurally defaulted, denied a certificate

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of appealability, entered judgment in favor of respondent, and closed the case. Dkt. Nos. 28, 29.

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Since the Court entered judgment against petitioner almost three years ago, petitioner has

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unsuccessfully continued to seek relief in various ways. Petitioner filed an unsuccessful motion

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for reconsideration (Dkt. Nos. 31, 32); unsuccessfully sought a certificate of appealability from the

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Ninth Circuit Court of Appeals so that he could appeal the denial of this petition (Dkt. Nos. 33,

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40); unsuccessfully sought to reopen this case in order to consider a claim that trial counsel was

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ineffective because he (or she) possessed the exculpatory evidence at the time of trial (Dkt. Nos.

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43, 44); and unsuccessfully sought leave from the Ninth Circuit Court of Appeals to file a second

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or successive petition (Dkt. No. 43-1 at 36-41).
DISCUSSION

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Petitioner has filed a “Motion to Reconsider [the] Unresolved Issue of Controversy With

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Respect[] to Ineffective Trial Counsel.” Dkt. No. 45. Petitioner argues that the Court’s failure to

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resolve his ineffective assistance of trial counsel claim on the merits constitutes a miscarriage of

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justice that excuses any procedural default, and that the fact that he is a “greenhorn at law” and
that he was mistaken in his assumption that appellate counsel would raise all viable issues on

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United States District Court
Northern District of California

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appeal constitute cause to excuse any procedural default.

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As explained in the Court’s February 3, 2020 Order, the instant petition and action only

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alleged Brady claims; no ineffective assistance of trial counsel claim was raised. Dkt. No. 44. A

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claim that the prosecution withheld exculpatory evidence, i.e. a Brady claim, is distinct from a

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claim that trial counsel was ineffective for failing to present exculpatory evidence at trial, i.e. an

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ineffective assistance of counsel claim. A petitioner does not present all possible constitutional

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claims stemming from a common set of facts merely by raising one specific claim. Cf.

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Gulbrandson v. Ryan, 738 F.3d 976, 993 (9th Cir. 2013) (mere submission of a relevant affidavit

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to state court not sufficient to place that court on notice of all potential constitutional challenges

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stemming from that affidavit) (citing Koerner v. Grigas, 328 F.3d 1039, 1046-48 (9th Cir. 2003)

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(holding even though factual basis for claim was submitted to state court, claim itself not fairly

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presented to that court because facts were used exclusively to support another claim)).

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If petitioner wishes for the district court to consider an ineffective assistance of trial

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counsel claim, he must raise this claim in a separate habeas petition. However, a separate petition

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claiming ineffective assistance of trial counsel is most likely a second or successive petition, and

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the Ninth Circuit Court of Appeals has denied petitioner leave to file a second or successive

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petition. Dkt. No. 43-1 at 36-41.

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Regardless of whether such a petition would be second or successive, the Court need not
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resolve an ineffective assistance of trial counsel claim in this action, as the petition did not present

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an ineffective assistance of trial counsel claim. Accordingly, petitioner’s request is DENIED.

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Dkt. No. 45.
CONCLUSION

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For the foregoing reasons, petitioner’s “Motion to Reconsider [the] Unresolved Issue of
Controversy With Respects to Ineffective Trial Counsel” is DENIED Dkt. No. 45.

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This order terminates Dkt. No. 45.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: 4/29/2020
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HAYWOOD S. GILLIAM, JR.
United States District Judge

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