Jason Pai Chen v. Kelly Harrington, No. 2:2012cv06819 - Document 48 (C.D. Cal. 2014)

Court Description: MEMORANDUM DECISION DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 by Magistrate Judge Frederick F. Mumm. The Court orders that judgment be entered denying the Petition on the merits with prejudice. **See attached Order for further details.** (es)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 ) ) ) ) Petitioner, ) ) v. ) KELLY HARRINGTON, Warden ) ) ) Respondent. ) JASON P. CHEN, No. CV 12-6819 FFM MEMORANDUM DECISION DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 I. PROCEEDINGS 16 Petitioner, Jason P. Chen ( Petitioner ), a state prisoner in the custody of 17 18 the California Department of Corrections, filed a Petition for Writ of Habeas 19 Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ( Petition ) on 20 August 8, 2012. Petitioner and respondent consented to proceed before the 21 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 22 Petitioner filed a First Amended Petition on May 24, 2013. On August 13, 2013, 23 respondent filed an answer to the First Amended Petition. On March 10, 2014, 24 Petitioner filed a traverse. The matter, thus, stands submitted and ready for 25 decision. 26 /// 27 /// 28 /// 1 II. PROCEDURAL HISTORY 2 A Los Angeles County Court jury found Petitioner guilty of first degree 3 murder (Cal. Penal Code § 187). (Clerk s Transcript [ CT ] 135.) The jury also 4 found true the allegation that he personally and intentionally discharged a firearm 5 proximately causing death (Cal. Penal Code § 12022.53). (Id.) Petitioner was 6 sentenced to an indeterminate sentence of 50 years to life in state prison. (CT 7 159-60.) 8 Petitioner then appealed his conviction. On January 28, 2011, the 9 California Court of Appeal filed an unpublished opinion affirming the judgment 10 against him. Thereafter, he filed a petition for review in the California Supreme 11 Court, which denied review on June 27, 2012. He then filed a petition for writ of 12 habeas corpus in the California Supreme Court, which denied the petition on June 13 27, 2012. 14 15 After filing a federal habeas petition that was dismissed without prejudice, Petitioner initiated this action. 16 17 III. FACTUAL BACKGROUND 18 The following facts were taken verbatim from the California Court of 19 Appeal s opinion affirming Petitioner s conviction: 20 In January 2008, David Hoang and his friend Tahn Hai Cong 21 went to visit [Petitioner] at an El Monte motel where [Petitioner] and 22 his mother resided. Hoang, who was 25 years old at the time of trial, 23 had known Cong since the two of them were about 16 years old and 24 members of the same Wah-Ching gang. By January 2008, neither 25 man had been associated with the gang for over two years. Hoang 26 had known [Petitioner] since [Petitioner] was about 13 years old; 27 [Petitioner] had also been a member of the Wah-Ching gang. Hoang 28 /// 2 1 and [Petitioner] had lost touch for about a year, but had resumed 2 contact in late 2007. 3 Hoang knew [Petitioner] had always disliked Cong; their 4 problems went way back. [Petitioner] viewed Cong as a hood 5 hopper, viz., someone who moved from gang to gang, an activity 6 that demonstrated disrespect for a gang. [Petitioner] also disliked and 7 found annoying Cong s jokes and attitude. [Petitioner] was also 8 irritated by Cong s persistent attempts to spar with [Petitioner]. 9 Sometime in mid-January, about a week before the shooting, 10 [Petitioner] invited Hoang to visit him at the motel. When 11 [Petitioner] learned Hoang was with Cong, [Petitioner] told Hoang to 12 bring him along, and said he had no problem with Cong. During that 13 visit, the three men drank beers and talked for about 40 minutes. 14 Hoang did not observe problems in any interaction between 15 [Petitioner] and Cong. 16 On the evening of January 19, 2008, [Petitioner] called Hoang 17 and told him he had been disciplined by a couple of homies from the 18 hood with whom he was having problems. He said he needed 19 someone to talk to. Hoang told [Petitioner] he was with Cong; 20 [Petitioner] told Hoang to bring him along. Cong and Hoang drove 21 over in Cong s car. They stopped on the way to buy beer to share 22 with [Petitioner], although no one drank any after they arrived. After 23 they arrived at the motel and knocked on his door, it took a while for 24 [Petitioner] to emerge. After he did, Hoang, Cong and [Petitioner] 25 stood in the parking lot talking and joking around. Hoang said 26 [Petitioner] seemed very irritated by some of Cong s comments, and 27 Cong calling him out to box for fun, as he had done in the past. 28 /// 3 1 After Hoang, Cong, and [Petitioner] had been standing around 2 for about 10 minutes, Steven Chen drove into the motel parking lot. 3 Long Tran was sitting in the passenger seat. Chen, [Petitioner], and 4 Tran had known one another for about two years and used to hang 5 out. Tran was a member of the Wah-Ching gang, but Chen was not. 6 [Petitioner] had called Chen and Tran at about midnight and asked 7 them to drive him to a party. Chen saw [Petitioner] standing in the 8 parking lot with Cong, whom Chen knew, and another man (Hoang) 9 whom he did not know. Chen did not turn off the engine of his car 10 because he planned to pick up [Petitioner] and leave. 11 Tran stepped out of the car, said hello to [Petitioner] and told 12 him to get in. [Petitioner] refused, and told Tran and Chen to leave. 13 [Petitioner] lifted his shirt and flashed a gun at Tran that was tucked 14 into [Petitioner s] waistband. Tran assured [Petitioner] he was not 15 afraid of the gun, said he had his own and told [Petitioner] to get into 16 the car. He also said, if you re going to pull the trigger, pull it. If 17 you re going to do something, do it. Tran then said, repeatedly, 18 he s not going to do nothing. He s not going to do nothing. 19 At that point, [Petitioner] pulled the gun from his waistband 20 and pointed it in the direction of Hoang and Cong. Hoang ran away. 21 [Petitioner] began to chase Cong around the parking lot and some 22 parked cars, firing his gun at him. Hoang heard [Petitioner] call 23 Cong a fucking bitch. He also heard Cong tell [Petitioner] that he 24 was sorry, and beg for mercy. [Petitioner] pursued Cong around a 25 car and Cong, who had already been shot, fell to his knees. 26 [Petitioner] stood over Cong and continued to fire at his head. Hoang 27 heard [Petitioner] shoot until he emptied the entire clip, and then 28 heard him keep shooting blanks. Hoang also thought he heard 4 1 Chen and Tran laughing in the car, although Chen denied either of 2 them had laughed. 3 When the shooting began, Steven Chen, whose car had 4 remained in the middle of the parking lot, began backing up. He 5 testified the shooting came as a surprise to him and he wanted to 6 leave without [Petitioner]. But, when [Petitioner] ran over to Chen s 7 car Chen stopped backing up; [Petitioner] had a gun and Chen was 8 afraid. Tran opened the door to let [Petitioner] into the back seat. 9 [Petitioner s] mother ran out of the motel, screaming (in Taiwanese), 10 What happened? What happened? She went back into the motel 11 as Chen drove off with Tran and [Petitioner]. 12 Chen drove [Petitioner] (who still carried the gun) to a friend s 13 house in Orange County. On the way there, Chen asked [Petitioner] 14 why he had done what he did. [Petitioner] told him it involved a 15 money issue, and also a long-held grudge against Cong with 16 whom he had got[ten] into a fight when they were younger. After a 17 couple of hours, Chen left alone. When he got home, Chen told his 18 parents what had happened. They hired an attorney who advised 19 Chen to contact the police. Chen did so, and was eventually given 20 use immunity in the prosecution of this action. 21 22 The police officer who responded to the scene of the shooting found Cong lying on the ground, covered in blood. 23 Homicide Detective Gean Okada of the Los Angeles Sheriff s 24 Department (LASD), was assigned to supervise the investigation. At 25 the scene, Detective Okada observed five empty shell casings, five 26 live rounds, some bullet fragments, and some of the victim s clothing 27 as well as a few unopened cans of beer. Detective Okada interviewed 28 Hoang the same morning as the shooting, and spoke with Chen when 5 1 he contacted the police a few days later. [Petitioner] was arrested 2 about nine months after the shooting. 3 The forensic pathologist who performed the autopsy on Cong 4 found six gunshot wounds. He opined Cong died as a result of 5 multiple gunshot wounds. 6 LASD Forensic Firearms Examiner David Kim testified that he 7 examined five unfired/live nine-millimeter Luger caliber cartridges, 8 five fired nine-millimeter Luger caliber cartridge cases, two 9 fragments of fired bullets, and the bullet recovered from the coroner. 10 He opined that the fired cartridge cases had each been fired by the 11 same firearm. Deputy Kim also testified the three bullet fragments 12 were fired from a single gun. However, Deputy Kim did not have the 13 gun and was not able to determine whether the fired cartridge cases 14 and the bullet fragments were fired from the same weapon. Deputy 15 Kim also testified that, when the slide of a gun is pulled back sharply 16 without the trigger being pulled, an unfired cartridge will be thrown 17 out. In addition, if a gun is not held firmly when fired, it can jam. If 18 the slide is pulled back at that point, it can eject a live round. 19 (Lodged Doc. No. 6 at 3-6.) 20 21 22 IV. PETITIONER S CLAIMS 1. The prosecutor failed to introduce sufficient evidence to support the jury s 23 verdict that Petitioner murdered Tahn Hai Cong with premeditation and 24 deliberation. 25 /// 26 /// 27 /// 28 6 1 2. Trial counsel deprived Petitioner of his Sixth Amendment right to effective 2 assistance of counsel by failing to conduct an adequate investigation into 3 facts that would have impeached a prosecution witness and implicated him 4 as an accomplice in the charged murder. 5 3. Trial counsel deprived Petitioner of his Sixth Amendment right to effective 6 assistance of counsel by failing to request that the jury be instructed on the 7 lesser included offense of manslaughter. 8 4. 9 appellate counsel by failing to raise on appeal the foregoing claims of 10 11 Appellate counsel violated Petitioner s right to effective assistance of ineffective assistance of trial counsel. 5. Petitioner was denied his Sixth Amendment right to trial counsel because 12 his counsel was laboring under an actual conflict of interest that prevented 13 counsel from adequately defending Petitioner of the charge against him. 14 15 V. STANDARD OF REVIEW 16 The standard of review applicable to Petitioner s claims herein is set forth 17 in 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death 18 Penalty Act of 1996 ( AEDPA ) (Pub. L. No. 104-132, 110 Stat. 1214 (1996)). 19 See 28 U.S.C. § 2254(d); see also Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 20 2059, 138 L. Ed. 2d 481 (1997). Under AEDPA, a federal court may not grant 21 habeas relief on a claim adjudicated on its merits in state court unless that 22 adjudication resulted in a decision that was contrary to, or involved an 23 unreasonable application of, clearly established Federal law, as determined by the 24 Supreme Court of the United States, or resulted in a decision that was based on 25 an unreasonable determination of the facts in light of the evidence presented in 26 /// 27 /// 28 /// 7 1 the State court proceeding. 1 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 2 U.S. 362, 402, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). 3 The phrase clearly established Federal law means the governing legal 4 principle or principles set forth by the Supreme Court at the time the state court 5 renders its decision. 2 Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 6 155 L. Ed. 2d 144 (2003). However, a state court need not cite the controlling 7 Supreme Court cases in its own decision, so long as neither the reasoning nor the 8 result of the state-court decision contradicts relevant Supreme Court precedent 9 which may pertain to a particular claim for relief. Early v. Packer, 537 U.S. 3, 8, 10 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam). A state court decision is contrary to clearly established federal law if the 11 12 decision applies a rule that contradicts the governing Supreme Court law or 13 reaches a result that differs from a result the Supreme Court reached on 14 materially indistinguishable facts. Williams, 529 U.S. at 405-06. A decision 15 involves an unreasonable application of federal law if the state court identifies 16 the correct governing legal principle from [Supreme Court] decisions but 17 unreasonably applies that principle to the facts of the prisoner s case. Id. at 413. 18 A federal habeas court may not overrule a state court decision based on the federal 19 court s independent determination that the state court s application of governing 20 1 In addition, under 28 U.S.C. § 2254(e)(1), factual determinations by a state court shall be presumed to be correct unless the petitioner rebuts the presumption 22 by clear and convincing evidence. 21 23 24 25 26 27 28 2 Under AEDPA, the only definitive source of clearly established federal law is set forth in a holding (as opposed to dicta) of the Supreme Court. See Williams, 529 U.S. at 412; see also Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004). Thus, while circuit law may be persuasive authority in analyzing whether a state court decision was an unreasonable application of Supreme Court law, only the Supreme Court s holdings are binding on the state courts and only those holdings need be reasonably applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 8 1 law was incorrect, erroneous, or even clear error. Lockyer, 538 U.S. 2 at 75. Rather, a decision may be rejected only if the state court s application of 3 Supreme Court law was objectively unreasonable. Id. 4 The standard of unreasonableness that applies in determining the 5 unreasonable application of federal law under Section 2254(d)(1) also applies in 6 determining the unreasonable determination of facts in light of the evidence 7 under Section 2254(d)(2). Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). 8 Accordingly, a federal court may not second-guess a state court s fact-finding 9 process unless, after review of the state-court record, it determines that the state 10 11 court was not merely wrong, but actually unreasonable. Id. Where more than one state court has adjudicated the petitioner s claims, the 12 federal habeas court analyzes the last reasoned decision. Barker v. Fleming, 423 13 F.3d 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 14 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991) for presumption that later unexplained 15 orders, upholding judgment or rejecting same claim, rest upon same ground as the 16 prior order). Thus, a federal habeas court looks through ambiguous or 17 unexplained state court decisions to the last reasoned decision in order to 18 determine whether that decision was contrary to or an unreasonable application of 19 clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 20 2003). 21 VI. DISCUSSION 22 23 A. Sufficiency of the Evidence 24 In his first claim for relief, Petitioner contends that the prosecutor failed to 25 introduce sufficient evidence that Petitioner committed premeditated and 26 deliberate murder. According to Petitioner, the evidence showed, at best, that he 27 rashly and spontaneously decided to kill Cong. As such, Petitioner surmises that 28 he could be guilty of, at most, voluntary manslaughter, not first degree murder. 9 1 The California Court of Appeal rejected this claim on the merits. As explained 2 below, the court of appeal did not commit constitutional error in doing so. 3 Habeas relief is unavailable on a sufficiency of the evidence challenge 4 unless no rational trier of fact could have agreed with the jury. Cavasos v. 5 Smith, __ U.S. __, 132 S. Ct. 2, 181 L. Ed. 2d 311 (2011) (per curiam); Jackson v. 6 Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). All 7 evidence must be considered in the light most favorable to the prosecution. 8 Jackson, 443 U.S. at 319. Accordingly, if the facts support conflicting inferences, 9 reviewing courts must presume even if it does not affirmatively appear in the 10 record that the trier of fact resolved any such conflicts in favor of the 11 prosecution, and must defer to that resolution. Id. at 326; Bruce v. Terhune, 376 12 F.3d 950, 957 (9th Cir. 2004) (per curiam); Turner v. Calderon, 281 F.3d 851, 13 882 (9th Cir. 2002). Under AEDPA, federal courts must apply the standards of 14 Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 15 1274 (9th Cir. 2005). 16 Furthermore, circumstantial evidence and inferences drawn from it may be 17 sufficient to sustain a conviction. See Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 18 2000) (finding sufficient evidence for murder conviction where evidence was 19 almost entirely circumstantial and relatively weak ). The reviewing court must 20 respect the exclusive province of the factfinder to determine the credibility of 21 witnesses, resolve evidentiary conflicts, and draw reasonable inferences from 22 proven facts. See United States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987). 23 To prove deliberate and premeditated murder under California law, the 24 prosecutor must establish that the defendant weighed the consequences and 25 considerations of his actions before he took the action leading to his conviction. 26 See People v. Koontz, 27 Cal. 4th 1041, 1080, 119 Cal. Rptr. 2d 859, 46 P.3d 335 27 (2002). This showing, however, does not require proof that the defendant had a 28 great deal of time in which to weigh those consequences and considerations: The 10 1 process of premeditation and deliberation does not require any extended period of 2 time. The true test is not the duration of time as much as it is the extent of the 3 reflection. Thoughts may follow each other with great rapidity and cold, 4 calculated judgment may be arrived at quickly. . . . Id. In considering whether 5 the defendant acted with premeditation and deliberation, California courts 6 consider three categories of evidence: (1) prior planning activity; (2) motive; and 7 (3) the manner of killing. Id. at 1081. 8 Here, the jury reasonably could infer that Petitioner planned to kill Cong. 9 Although Petitioner suggests that he had no idea that his friend Hoang would be 10 bringing Cong to Petitioner s residence on the night of the murder, testimony 11 showed that Hoang told Petitioner that he was with Cong. And, when he learned 12 of that fact, Petitioner urged Hoang to bring Cong. Moreover, as the court of 13 appeal noted, Petitioner armed himself with a loaded gun before Cong arrived. 14 See Jones v. Woods, 207 F.3d 557, 563 (9th Cir. 2000) (securing weapon before 15 confronting victim supports reasonable inference of prior planning to support 16 conviction for premeditated and deliberate murder). Additionally, even though 17 Petitioner was aware that Cong and Hoang were bringing beers to drink with 18 Petitioner, Petitioner refrained from drinking. Based on this evidence, the jury 19 reasonably could infer that Petitioner planned to kill Cong and that he maintained 20 his sobriety so as not to interfere with that plan. 21 Moreover, based on the evidence at trial, the jury reasonably could 22 conclude that Petitioner had motive to kill Cong. Hoang testified that Petitioner 23 had long-standing problems with Cong, dating back years. Those problems 24 stemmed from Petitioner s annoyance with Cong for being a hood hopper and 25 for boxing with Petitioner for fun. Additionally, Chen testified that, after the 26 shooting, Petitioner explained that he had shot Cong because they had gotten into 27 a fight a long time ago. Petitioner also told Chen that there was a money issue 28 between Cong and Petitioner. Adding to the weight of this evidence is the fact 11 1 that, before being hit with the fatal shot, Cong told Petitioner that he was sorry. 2 What is more, Petitioner called Cong a fucking bitch as Cong pleaded for mercy 3 and forgiveness. Put simply, the record was rife with evidence showing that 4 Petitioner had motive to kill Cong. 5 Finally, the manner of the shooting evidences premeditation and 6 deliberation. Petitioner fired an entire magazine of bullets at Cong. Indeed, 7 testimony showed that Petitioner continued to fire his weapon, even though he had 8 run out of bullets. And, Petitioner fired several of the gunshots at Cong while 9 Cong was on the ground pleading for his life. Moreover, after the shooting, 10 Petitioner confided to his friend why he had shot Cong. These facts easily support 11 a finding that the murder was premeditated and deliberate. See Jackson, 443 U.S. 12 at 325 (evidence of shooting multiple shots at close range indicates manner of 13 attempted killing consistent with premeditation and deliberation); Koontz, 27 Cal. 14 4th at 1082 (manner of killing supported deliberate intent to kill where defendant 15 fired close range shot at a vital area of the [victim s] body ). 16 17 Accordingly, the state courts reasonably rejected Petitioner s sufficiency of the evidence claim. 18 B. Trial Counsel s Performance 19 Petitioner asserts several challenges to his trial counsel s performance. In 20 the first, Petitioner maintains that counsel failed to adequately investigate the facts 21 underlying Petitioner s conviction. Specifically, Petitioner faults counsel for 22 failing to uncover facts about Chen, one of the prosecution s main eyewitnesses, 23 that would have impeached his credibility in the eyes of the jury. According to 24 Petitioner, counsel should have discovered and presented evidence regarding 25 Chen s gang affiliation and his purported involvement in the crime. Petitioner 26 presumably believes that evidence of Chen s gang affiliation would have caused 27 the jury to doubt his testimony. Moreover, Petitioner believes that counsel could 28 have shown that Chen was an accomplice to the murder by eliciting testimony that 12 1 he knew of Petitioner s plan to murder Cong and agreed to act as Petitioner s 2 getaway driver. According to Petitioner, had these facts been established, the trial 3 court would have been forced to instruct the jury to view Chen s testimony with 4 caution because he was an accomplice in the charged murder. 5 In his second challenge to counsel s performance, Petitioner asserts that 6 trial counsel erred in failing to request that the jury be instructed on voluntary 7 manslaughter, a lesser included crime of first degree murder. According to 8 Petitioner, such an instruction was warranted because the evidence supported an 9 inference that Petitioner did not premeditate the murder; rather, the murder was 10 11 the result of a rash and spontaneous act on Petitioner s part. Finally, Petitioner faults counsel for failing to adequately cross-examine 12 Hoang, one of the eyewitnesses to the murder, about what he actually saw during 13 the murder. Specifically, Petitioner notes that Hoang made inconsistent 14 statements about whether he saw someone get in and out of the vehicle in which 15 Petitioner drove away after the shooting. 16 In analyzing claims challenging the performance of trial counsel, reviewing 17 courts apply the two prong test set forth in Strickland v. Washington, 466 U.S. 18 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, the petitioner must 19 prove that his attorney s representation fell below an objective standard of 20 reasonableness. Id. at 687-88, 690. To establish deficient performance, the 21 petitioner must show his counsel made errors so serious that counsel was not 22 functioning as the counsel guaranteed the defendant by the Sixth Amendment. 23 Id. at 687; Williams, 529 U.S. 362, 391, 120 S. Ct. 1495, 146 L. Ed. 2d 389 24 (2000). In reviewing trial counsel s performance, however, courts strongly 25 presume[] [that counsel] rendered adequate assistance and made all significant 26 decisions in the exercise of reasonable professional judgment. Strickland, 466 27 U.S. at 690; Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 157 L. Ed. 2d 1 28 (2003). Only if counsel s acts and omissions, examined within the context of all 13 1 the surrounding circumstances, were outside the wide range of professionally 2 competent assistance, will petitioner meet this initial burden. Kimmelman v. 3 Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986); 4 Strickland, 466 U.S. at 690. 5 Second, the petitioner must show that he was prejudiced by demonstrating a 6 reasonable probability that, but for his counsel s errors, the result would have been 7 different. Strickland, 466 U.S. at 694. The errors must not merely undermine 8 confidence in the outcome of the trial, but must result in a proceeding that was 9 fundamentally unfair. Williams, 529 U.S. at 393 n.17; Lockhart, 506 U.S. at 369. 10 The petitioner must prove both deficient performance and prejudice. A court need 11 not, however, determine whether counsel s performance was deficient before 12 determining whether the petitioner suffered prejudice as the result of the alleged 13 deficiencies. Strickland, 466 U.S. at 697. 14 Here, the California Supreme Court rejected each of Petitioner s challenges 15 on their respective merits. In doing so, the California Supreme Court did not 16 commit constitutional error. Each of Petitioner s allegations of attorney error is 17 addressed in turn below. 18 19 1. Counsel s Investigation A criminal defense counsel has a duty to make reasonable investigations or 20 to make a reasonable decision that makes particular investigations unnecessary. 21 Strickland, 466 U.S. at 691. A lawyer who fails adequately to investigate, and 22 to introduce into evidence, [information] that demonstrates his client s factual 23 innocence, or that raises sufficient doubts as to that question to undermine 24 confidence in the verdict, renders deficient performance. Reynoso v. Giurbino, 25 462 F.3d 1099, 1112 (9th Cir. 2006) (quoting Lord v. Wood, 184 F.3d 1083, 1093 26 (9th Cir. 1999)); see also Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th Cir. 2008) 27 ( This court has repeatedly held that a lawyer who fails adequately to investigate 28 and introduce [evidence] that demonstrate[s] his client s factual innocence, or 14 1 raise[s] sufficient doubt as to that question to undermine confidence in the verdict, 2 renders deficient performance. ). 3 Here, Petitioner can show no prejudice with regards to counsel s purported 4 deficient investigation. Although Petitioner asserts that further investigation 5 would have shown that Chen was an accomplice to the crime, he offers no actual 6 facts to support that assertion. Furthermore, Chen testified that he was attempting 7 to leave when he was stopped by Petitioner. Chen also explained that he allowed 8 Petitioner into his car because Petitioner was armed and Chen feared for his life. 9 In an attempt to counter that explanation, Petitioner notes that Hoang testified that 10 it appeared to him as if Chen was waiting for Petitioner. However, this fact is 11 inconsequential because the jury heard Hoang s testimony on that point. 12 Likewise, the jury heard testimony that Petitioner may have dropped his gun and 13 retrieved it before he drove away in Chen s car. In other words, the facts that, in 14 Petitioner s view, showed Chen s involvement in the crime were presented to the 15 jury. 16 Moreover, there is no merit to Petitioner s suggestion that further 17 investigation would have caused the trial court to conclude that Chen was an 18 accomplice and, therefore, instruct the jury to view Chen s testimony with 19 caution. The trial court acknowledged that there were facts that supported a 20 possible inference that Chen harbored Petitioner after the shooting. But, in the 21 trial court s view, those facts, at most, supported an inference only that Chen was 22 an accessory after the fact. Pursuant to California law, one who is merely an 23 accessory after the fact is not an accomplice. See People v. Sully, 53 Cal. 3d 1195, 24 283 Cal. Rptr. 144, 812 P.2d 163 (1991) (distinguishing accomplice from 25 accessory after the fact). Citing that law, the trial court, and later the court of 26 appeal, held that an accomplice instruction was not required under California law. 27 This Court is bound by the state courts interpretation of state law. See Bradshaw 28 v. Richey, 546 U.S. 74, 76, 126 S. Ct. 602, 163 L. Ed. 2d 407 (2005) (per curiam) 15 1 (stating that a state court s interpretation of state law, including one announced 2 on direct appeal of the challenged conviction, binds a federal court sitting in 3 habeas corpus ). 4 Put simply, the state courts reasonably concluded that the evidence was 5 insufficient to suggest that Chen was aware of Petitioner s intent to kill Cong or 6 that Chen encouraged or aided Petitioner in killing Cong. Although Petitioner 7 believes that further investigation would have yielded such evidence, he provides 8 nothing other than his own self-serving allegations to support that belief. Such 9 conclusory, unsupported allegations, however, do not warrant habeas relief. See 10 James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ( Conclusory allegations which are 11 not supported by a statement of specific facts do not warrant habeas relief. ); 12 Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (habeas relief not warranted 13 where claims for relief are unsupported by facts). 14 Regardless, even if the jury had been instructed to view Chen s testimony 15 with caution, it would in all likelihood have reached the same conclusion. Indeed, 16 emphasizing Chen s purported awareness of Petitioner s plan would only serve to 17 drive home to the jury that the murder was premeditated and deliberate. More 18 importantly, Chen s testimony regarding Petitioner s actions was corroborated in 19 every material way by that of Hoang. Given that corroborating testimony, the jury 20 would have had no reason to reject Chen s testimony, even if the jury had initially 21 viewed Chen s testimony with caution. 22 2. Voluntary Manslaughter 23 Voluntary manslaughter is the unlawful killing of a human being without 24 malice . . . upon a sudden quarrel or heat of passion. Cal. Penal Code § 192(a). 25 A conviction for voluntary manslaughter is appropriate if the victim has provoked 26 the defendant in a manner causing the reason of the accused [to be] obscured or 27 disturbed by passion to such an extent as would cause the ordinarily reasonable 28 person of average disposition to act rashly and without deliberation and reflection, 16 1 and from such passion rather than from judgment. People v. Barton, 12 Cal. 4th 2 186, 201, 47 Cal. Rptr. 2d 569, 906 P.2d 531 (1995). The California Supreme 3 Court has noted, however, that if sufficient time has elapsed between the 4 provocation and the fatal blow for passion to subside and reason to return, the 5 killing is not voluntary manslaughter. . . . People v. Breverman, 19 Cal. 4th 142, 6 163, 77 Cal. Rptr. 2d 870, 960 P.2d 1094 (1998). 7 Here, counsel could not have performed deficiently in failing to request that 8 the jury be instructed on voluntary manslaughter under a heat of passion or sudden 9 quarrel theory because, as the court of appeal held, the evidence at trial was 10 insufficient under California law to support such an instruction. This Court is 11 bound by the state Court of Appeal s interpretation of state law. See Bradshaw, 12 546 U.S. at 76 (supra). 13 Moreover, after independently reviewing the evidence, this Court concurs 14 that no evidence supported a voluntary manslaughter instruction. On the contrary, 15 no evidence at trial indicated any provocation on the victim s part, nor was there 16 any evidence that Petitioner acted in the heat of passion. Rather, the eyewitnesses 17 expressed surprise at Petitioner s unprovoked actions. And, based on Petitioner s 18 act of arming himself and his subsequent explanation for his actions, it is clear 19 that he did not act in the heat of passion. Thus, counsel could not have erred in 20 failing to request an instruction based on sudden quarrel or heat of passion. 21 Furthermore, assuming Petitioner could establish deficient performance, he 22 cannot show prejudice from the lack of a heat of passion or sudden quarrel 23 instruction. The jury found Petitioner guilty of premeditated and deliberate 24 murder. That verdict necessarily shows that the jury did not believe that Petitioner 25 acted in the heat of passion or in response to a sudden quarrel; rather, the verdict 26 shows that the jury believed that Petitioner intended to kill his victim and that his 27 intent had been formed upon pre-existing refection and not under a sudden heat 28 of passion or other condition precluding the idea of deliberation. . . . (CT 117 17 1 (emphasis added).) Thus, there is no reason to believe that the jury would have 2 found Petitioner guilty of voluntary manslaughter under the heat of passion or 3 sudden quarrel theory, had counsel requested such an instruction. 4 3. Cross-Examination of Hoang 5 Petitioner can show no prejudice from counsel s purported inadequate 6 cross-examination of Hoang. At best, Petitioner notes that counsel failed to 7 highlight Hoang s supposed contradictory statements about whether or not he saw 8 someone exit and enter the car in which Petitioner drove away after murder. Any 9 cross-examination on this point, however, would not have influenced the jury s 10 verdict because the proposed cross-examination had no impact on Hoang s 11 testimony that he saw Petitioner draw a gun, chase down Chen, and shoot multiple 12 times. Moreover, that aspect of Hoang s testimony that is, the portion in which 13 he describes Petitioner s actions was corroborated by Chen, who likewise 14 witnessed Petitioner draw a gun, chase Cong, and gun him down. Given that 15 testimony, there is no reason to believe that Petitioner suffered prejudice from 16 counsel s purported failure to cross-examine Hoang on a relatively 17 inconsequential point. 18 C. 19 In his next claim for relief, Petitioner contends that he was denied his right 20 to effective assistance of appellate counsel because his appellate counsel failed to 21 allege on appeal the preceding ineffective assistance of trial counsel claims. 22 Appellate Counsel s Performance The Due Process Clause guarantees a criminal defendant effective 23 assistance of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 24 391-405, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). The standard for assessing the 25 performance of trial and appellate counsel is the same. Id. at 395-99. Under both, 26 Petitioner bears the burden of establishing both components of the standard set 27 forth in Strickland. 466 U.S. at 687 (supra). Appellate counsel has no 28 constitutional duty to raise every issue, where, in the attorney s judgment, the 18 1 issue has little or no likelihood of success. McCoy v. Wisconsin, 486 U.S. 429, 2 436, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). 3 Here, Petitioner was not deprived of his constitutional right to effective 4 assistance of appellate counsel. As an initial matter, Petitioner s ineffective 5 assistance of trial counsel claims involve matters outside of the trial record, such 6 as why counsel decided against conducting further investigation into Chen s 7 background, why counsel elected against challenging the trial court s finding that 8 an instruction on accomplice testimony was unwarranted, and why counsel did not 9 press for an instruction on the lesser included offense of manslaughter. 10 Consequently, those claims were not proper ones to assert on direct appeal. See 11 People v. Mendoza Tello, 15 Cal. 4th 264, 266-67, 62 Cal. Rptr. 2d 437, 933 P.2d 12 1134 (1997) (ineffective assistance of counsel claims not proper on direct appeal 13 unless record illuminates all facts necessary to resolve claim, including basis for 14 counsel s challenged decision or shortcoming). Regardless, as explained above, 15 each of the claims that Petitioner faults his counsel for declining to raise fails on 16 its merits. And, each claim was rejected on the merits by the California Supreme 17 Court. Thus, Petitioner can show no prejudice from appellate counsel s failure to 18 assert those claims on direct appeal. 19 20 Accordingly, habeas relief is not warranted as to Petitioner s ineffective assistance of appellate counsel claim. 21 D. Conflict of Interest 22 In his final claim for relief, Petitioner contends that he was denied his Sixth 23 Amendment right to counsel because his trial counsel was laboring under an 24 actual conflict of interest. In support of this claim, Petitioner maintains that an 25 unidentified conflict caused his trial counsel to neglect his duty to investigate and 26 present facts related to Chen and to fail to call Petitioner s brother as a witness. 27 Petitioner further asserts that, had counsel not been laboring under this purported 28 conflict, he would have been able to successfully undermine Chen s credibility 19 1 and, presumably, to persuade the jury to find Petitioner not guilty of the first 2 degree murder count. The California Supreme Court rejected this claim on the 3 merits. As explained below, the California Supreme Court did not commit 4 constitutional error in doing so. 5 The Sixth Amendment right to counsel includes the right to assistance by a 6 conflict-free attorney. Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 7 L. Ed. 2d 220 (1981). Where a petitioner raises a Sixth Amendment challenge 8 based on a conflict of interest, the defendant must demonstrate that his attorney s 9 performance was adversely affected by the conflict of interest. Mickens v. 10 Taylor, 535 U.S. 162, 174, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002). 11 Here, Petitioner has failed to show that counsel was laboring under a 12 conflict of interest that adversely impacted his performance. On the contrary, 13 Petitioner does not even identify the conflict under which counsel was purportedly 14 laboring. Instead, he merely attempts to use this claim to repackage the 15 allegations underlying his first ineffective assistance of counsel claim namely, 16 that his trial counsel failed to conduct an adequate investigation into the facts 17 underlying Petitioner s conviction. But, as explained above, there is no merit to 18 that claim. Although Petitioner adds the allegation that counsel erred in failing to 19 call Petitioner s brother as a witness, that allegation is of no consequence in terms 20 of Petitioner s conflict of interest claim. Indeed, even if counsel had performed 21 deficiently in that regard, nothing suggests that counsel s purported deficient 22 performance was attributable to a conflict of interest. Accordingly, this claim 23 fails. 24 /// 25 /// 26 27 28 20 1 2 3 ORDER Therefore, the Court orders that judgment be entered denying the Petition on the merits with prejudice. 4 5 DATED: June 10, 2014 6 7 8 /S/ FREDERICK F. MUMM FREDERICK F. MUMM United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21

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