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Roedel v. Salmonsen

United States District Court, D. Montana, Missoula Division

September 5, 2018

LAWRENCE ROEDEL, Petitioner,
v.
JAMES SALMONSEN, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE

         Petitioner Lawrence Roedel, appearing pro se, seeks habeas corpus relief under 28 U.S.C. § 2254. Roedel again seeks to challenge the 2006 conviction and sentence he received in the Eleventh Judicial District, Flathead County, Montana. Roedel's petition should be dismissed as an unauthorized successive petition.

         I. Roedel's State Procedural Filing History

         The Montana Supreme Court has summarized Roedel's state proceedings as follows:

In 2006, a jury in Flathead County District Court convicted Roedel of deliberate homicide for killing his wife. He is serving an eighty-year prison sentence with a ten-year weapon enhancement.
Roedel appealed his conviction, raising at least four issues, whether: (1) he received ineffective assistance of counsel (LAC); (2) the evidence was insufficient; (3) he was denied the right to be present at all critical stages of the prosecution, and (4) he was denied the opportunity to review a tape recording before the District Court heard it at sentencing. We affirmed. State v. Roedel, 2007 MT 291, 339 Mont. 489, 171 P.3d 694 (Roedel I).
Roedel filed a petition for postconviction relief, which the District Court denied. He appealed to this Court, raising issues of IAC and police and prosecutorial misconduct related to his conviction. We affirmed the District Court's denial of his petition. Roedel v. State, 2010 MT 109N, 357 Mont. 558, 236 P.3d 2 (Roedel II).
In 2012, Roedel filed a petition for a writ of habeas corpus in which he alleged that his counsel failed to investigate the case adequately and failed to introduce evidence from or have his wife's son testify. Roedel v. Frink, No. OP 12-0527, Order, *1 (Mont. Oct. 9, 2012) (Roedel III). Roedel argued the outcome of his trial may have been different, but for the inadequacy of his counsel's defense, and asked for a new trial. We noted that he could not collaterally attack his conviction by way of habeas corpus and denied the petition as procedurally barred under § 46-22-101(2), MCA. Roedel III, *2.
In 2013, Roedel again sought habeas corpus relief, attacking his conviction primarily on IAC grounds. Roedel v. State of Montana, No. OP 13-0756, Order (Mont. Nov. 26, 2013) (Roedel IV). Roedel offered several affidavits in support of his arguments that he had new evidence. We stated that the issues presented were, or could have been, raised in his direct appeal or in his petition for postconviction relief. See State v. Wright, 2001 MT 282, ¶¶ 13, 22, 307 Mont. 349, 42 P.3d 753. We further noted "[t]his Court does not consider record-based issues in the context of a habeas corpus proceeding." Roedel IV, *2. We denied his petition because he had been" 'adjudged guilty of an offense in a court of record and has exhausted the remedy of appeal.' Section 46-22-101(2), MCA." Roedel IV, *2-*3. We concluded that he was not entitled to any relief by way of habeas corpus.
In 2014, Roedel filed a writ of coram nobis alleging claims of IAC against both his trial and appellate counsel. Roedel v. State of Montana, No. OP 14-0213, 375 Mont. 552, 346 P.3d 1133, Order (table) (Apr. 22, 2014) (Roedel V). This Court explained that, effective October 1, 2011, we had abolished various bills and writs, such as the writ of coram nobis, with the revisions of the Montana Rules of Civil Procedure. We denied his petition, stating: "Roedel's petition has failed to allege any valid reason to justify the delay in his attack on his sentence. Consequently, Roedel has chosen the wrong avenue to seek relief if there [were] any available to him." Roedel V, *1.
In 2016, Roedel petitioned this Court for an out-of-time appeal of an October 21, 2015 Flathead County District Court Order denying his petition for DNA testing. State of Montana v. Roedel, No. DA 16-0070, Order (Feb. 16, 2016) (Roedel VI). We reiterated that Roedel has previously pursued relief with this Court through his appeals of his conviction and denial of postconviction relief. Roedel I and Roedel II. We denied his petition and concluded "that Roedel has not demonstrated that a gross miscarriage of justice would result by the disallowance of his appeal." Roedel VI, *2.
Roedel now contends that exculpatory material exists to challenge his conviction. He points to pages 321 to 322 of his trial transcript and explains that omitted evidence exists concerning testing the bullet for DNA. He questions the investigation of the case and argues that he did not have a fair trial. He requests the same relief as Richard Earl Burkhart received from this Court. He requests his immediate release from prison and that his "record be totally expunged." Roedel is not entitled to his immediate release or other relief. Once again, Roedel is attempting to litigate issues, such as IAC or DNA, which were raised or could have been raised previously. Roedel I, ¶¶ 36-56; Roedel II, ¶ 3, Roedel VI, *l-*2. Roedel is time and procedurally barred from raising these issues now via a petition for habeas corpus relief. Lott v. State, 2006 MT 279, ¶¶ 4, 19, 334 Mont. 270, 150 P.3d 337; § 46-22-101(1), MCA; Roedel III, Roedel IV, Roedel V, and Roedel VI.

Roedel v. Salmonson, OP 18-0371, 2018 WL 3566865, at *l-2 (Mont. July 24, 2018).

         II. Roedel's ...


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