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Roman v. Frauenheim

United States District Court, N.D. California

May 30, 2017

ISIDRO ROMAN, Petitioner,
v.
S. FRAUENHEIM, Warden, Respondent.

          ORDER GRANTING MOTION TO DISMISS; DENYING CERTIFICATE OF APPEALABILITY Re: Dkt. No. 15

          HAYWOOD S. GILLIAM, JR. United States District Judge

         Petitioner, a pro se prisoner, has filed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition on the grounds that it is: (1) procedurally defaulted, and (2) untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d). Petitioner has filed an opposition, and respondent has filed a reply. For the reasons given below, the motion will be granted.

         BACKGROUND

         In 1994, petitioner was convicted by a San Mateo County jury of second degree murder with personal use of a firearm. Petition at 2.[1] He was sentenced to 19 years to life in state prison. Ex. A.[2] The conviction was affirmed on appeal in 1995. Id. The California Court of Appeal's online Register of Actions shows that petitioner did not seek direct review in the California Supreme Court. The state appellate court summarized the events of the crime as follows:

On November 4, 1993, [petitioner] and Jose Manuel Gonzales (also known by the nickname “Mafia”) got into an argument over a business exchange transaction. At one point, Mafia attacked [petitioner] and began beating his head repeatedly against a door jamb. A neighbor broke up the fracas after which both men traded angry threats and insults. Mafia vowed to come back, “shoot up” [petitioner]'s house and kill him, his wife and his children.
On the night before the shooting, Mafia telephoned [petitioner] and told him he wanted to fix things between them one way or the other. [Petitioner] told him not to come over and that he did not want to talk with him.
The next morning Mafia rode up to [petitioner]'s house on his motorcycle. [Petitioner], armed with a revolver in his waistband, met him at the door. The two men stood facing each other and spoke for a few minutes. Suddenly, [petitioner] pulled out his gun and fired several shots. As Mafia fell backwards and stumbled over his motorcycle, [petitioner] came toward him and fired again at close range. He fired a final shot into Mafia's head from about two to three feet away. Of the four gunshot wounds sustained, only the head wound was sufficient to cause death.

Dkt. No. 15 at 12-13.

         On August 19, 2014[3], petitioner filed a habeas petition in the San Mateo County Superior Court, in which he claimed that the prosecution violated its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963)[4], by allegedly failing to disclose to defense counsel (1) arrest reports of the victim in unrelated incidents involving sales of narcotics and possession and concealment of firearms, and (2) evidence that a second weapon was at the crime scene. Ex. B, Petition at 9, 13, 16-17. As evidence of the former, petitioner submits the allegedly suppressed police reports concerning incidents involving the victim. Petition at 50-79. As evidence of the latter, petitioner submits the San Mateo County Sheriff's Office Crime Scene Report. Id. at 91-94. The report does not specifically state that a second weapon was found at the crime scene. Rather, it states that a “spent nominal caliber 38, semi-jacketed bullet” was found in the living room of the residence of the yard where the incident took place. See Id. Petitioner appears to argue that this was evidence of a second weapon because he had been armed with a caliber .357 revolver. Petition at 16-17. Nothing in the record shows that a second weapon was ever recovered from the crime scene, from the victim, or elsewhere. Petitioner's opening brief on appeal conceded that no gun was recovered from the victim. Id. at 38.

         Petitioner argued that suppression of these materials was prejudicial to his self-defense claim at trial insofar as they would have helped show that he was defending himself against the victim, who had a propensity for violence and purportedly had a weapon. Ex. B, Petition at 15-18. Petitioner asserted that he only learned of the allegedly suppressed evidence after counsel was appointed to assist him in 2012 in state court proceedings in relation to DNA evidence. Petition at 9; Dkt. No. 1-1 at 6; Dkt. No. 26 at 1.[5]

         The Superior Court denied the petition on February 11, 2015. Ex. B. The court found that petitioner had not proffered any evidence that the victim's arrest record had not been provided to defense counsel, and found that the material had “scant exculpatory value.” Id. The court also held, citing In re Clark, 5 Cal.4th 750, 765 (1993) and In re Robbins, 18 Cal.4th 770 (1998), that petitioner's claim that the police withheld reports pointing to a second weapon being at the crime scene was procedurally barred because the petition was unduly delayed. Ex. B.

         On March 23, 2015, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. Ex. C. On May 22, 2015, that court issued an Order stating:

[Petitioner] has filed a petition for writ of habeas corpus alleging that evidence discovered in 2012 shows a key witness perjured himself, and the prosecutor withheld exculpatory evidence, at [petitioner]'s trial for the 1993 murder of Jose Manuel Gonzales. The petition is procedurally barred because it is untimely. In re Sanders (1999) 21 Cal.4th 697, 703-704. Further, the record petitioner presents was not presented to the superior court (In re Steele (2004) 32 Cal.4th 682, 692), and, in any event, does not substantiate his claim for habeas relief (In re Swain (1949) 34 Cal.2d 300). For all of these reasons, the petition for writ of habeas corpus is denied, and the request for the appointment of counsel is denied as moot.

Id.

         On September 30, 2015, petitioner filed another petition for writ of habeas corpus in the court of appeal. Ex. D. That court denied that petition without an opinion on February 29, 2016. Id. On April 20, 2016, the ...


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