Marco Damian v. J. Ochoa

MEMORANDUM

This case stems from Marco Damian’s fourth trial in state court for murder after we previously granted habeas relief following his third trial. In his third trial, Damian was tried and convicted of several counts on which he had previously been acquitted as well as charges that were not barred by the Double Jeopardy Clause. The trial court realized the error at sentencing, and struck the jeopardy-barred convictions. In his previous habeas petition, Damian claimed that striking the convictions was inadequate because the presence of the jeopardy-barred charges tainted his trial. Instead of merely striking the improper charges, Damian claimed, the state courts should have granted him a new trial. In our prior decision, we held that there was a “reasonable probability” that Damian would not have been convicted of second-degree murder if not for the presence of the jeopardy-barred charges, and we ordered that the writ issue with respect to that conviction. Damian v. Vaughn (“Damian I”), 186 Fed.Appx. 775, 778 (9th Cir. 2006). Subsequently, Damian was retried on the murder count and convicted. Following his appeals in state court, he filed a federal habeas petition which was…