Thach v. Nooth, No. 2:2016cv00659 - Document 81 (D. Or. 2019)
Court Description: OPINION & ORDER: Petitioner's Petition for Writ of Habeas Corpus 2 is Denied. The Court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 7/15/19 by Judge Robert E. Jones. (gm)
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Thach v. Nooth Doc. 81 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON LAI NGOC THACH, Case No. 2:16-cv-00659-JO Petitioner, OPINION AND ORDER v. MARK NOOTH, Respondent. Kristina Hellman Assistant Federal Public Defender 101 s.w. Main Street, Suite 1700 Portland, Oregon 97204 Attorney for Petitioner Ellen F. Rosenblum, Attorney General Nick M. Kallstrom, Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97310 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com JONES, District Judge. u.s.c. 2254 § case pursuant to 28 habeas corpus Petitioner brings this the challenging of legality his conviction for Murder. For the reasons that follow, state-court the Petition for Writ of Habeas Corpus (#2) is denied. BACKGROUND In December at the sister, Son had been at the center of the fight at its outset, and Wetlands Thach, Public 2006, House a large in bar Portland. fight Petitioner's when the bar fight began to calm down, balls which extended the fighting. broke out she began throwing pool As a result, the victim in this case, Robert Pfeifer, put Son Thach in a bear hug, took her away from the Petitioner, pool and he table, began and released fighting with her. This Pfeifer. angered Pfeifer was prevailing in the physical altercation, and several eyewitnesses saw Petitioner pull out a handgun and shoot Pfeifer in the throat. The shot, occurring at point-blank range, killed Pfeifer instantly. The Multnomah County Grand Jury indicted Petitioner on one count of Murder with a Firearm, and the case proceeded to a jury trial. The defense called Son Thach to testify on Petitioner's behalf. The prosecutor advised her that she had a right not to testify, she could also consult with an attorney prior to her testimony, and that anything she said could be used against her. When the prosecutor provided free informed of charge, her that an attorney could be Son Thach asked him whether she was going to be arrested. The prosecutor responded that it depended 2 - OPINION AND ORDER on the content of her testimony. Son Thach asked to speak with an attorney, and ultimately elected to exercise her Fifth Amendment right against self-incrimination and did not testify. One of the witnesses to Pfeifer's murder was Leslie Hatch, a bouncer at the Wetlands Public House. His testimony at trial was somewhat different from other eyewitnesses insofar as he claimed that Petitioner intended to had pointed shoot him, not grabbed Petitioner's arm, went off, the gun directly at Pfeifer. Hatch him and had testified that he causing movement so that when the gun the shot hit Pfeifer. Hatch' s testimony prompted the prosecutor to ask the court for an instruction on transferred intent. The court intent that same agreed, day, instructed and the the jury jury him to life imprisonment transferred unanimously Petitioner of the charged offense. As a result, sentenced on with a convicted the trial court 25-year minimum sentence. Petitioner took a direct appeal raising claims that are not at issue in this habeas corpus case. The Oregon Court of Appeals affirmed the trial court's decision without Oregon Supreme Court denied review. State v. opinion, Thach, and the 238 Or. App. 758, 246 P.3d 101 (2010), rev. denied, 350 Or. 230, 253 P.3d 1079 (2011) . Petitioner next filed for post-conviction relief ("PCR") in Malheur County. Relevant to this case, he alleged that his trial attorney was prosecutor ineffective for failing to: intimated Son Thach into not (1) testifying; that the shooting was reckless or negligent; 3 - OPINION AND ORDER object and (3) when (2) the argue object to the transferred effectively intent amended the Following a hearing, instruction Indictment. on the basis Respondent's that Exhibit it 109. the PCR court denied relief on all claims. Respondent's Exhibit 143. The Oregon Court of Appeals affirmed that decision without issuing a written opinion, and the Oregon Supreme Court denied review. 341 Thach (2014), rev. denied, Petitioner filed this this P.3d 252 v. 267 Or. Nooth, 356 Or. 837, App. 346 423, P.3d 496 (2015). federal habeas corpus case on April 18, 2016, and the Court counsel to represent him. With the assistance of counsel, Petitioner argues three of the claims from his prose Petition. Respondent asks the Court to deny relief on those claims because the PCR court denied them in a decision that reasonably applied federal law. DISCUSSION I. Standard of Review An application for a writ of habeas corpus shall not be granted unless adjudication of the claim in state court resulted in a decision that was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts in light of the U.S.C. evidence § presented in the State court proceeding. " 28 2254 (d). A state court decision is "contrary to . clearly established precedent if the state court applies a rule that contradicts Court's] the governing law set forth in [the Supreme cases'' or ''if the state court confronts a set of facts 4 - OPINION AND ORDER that are materially Supreme] Court indistinguishable from a and nevertheless arrives at a from [that] precedent." Williams v. Taylor, decision of [the result different 529 U.S. 362, 405-06 (2000) . Under the "unreasonable application" clause of a federal habeas identifies Supreme the court may grant relief correct governing legal Court's] decisions but II if the decision to application" unreasonably be more Twenty-eight u. S. C. than clause 2254 (d) § requires incorrect or state principle principle to the facts of the prisoner's case.'' "unreasonable 2254 (d) (1), § court from [the applies that Id at 413. the state erroneous. Id The court at 410. "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents. It goes no farther." Harrington v. Richter, 562 U.S. 86, 102 (2011). Twenty-eight "challenge attempt to substantial the show U.S.C. substance that evidence 2254 (d) (2) § of those in the the state findings state allows a petitioner court's were court findings not record." to and supported by Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9 th Cir. 2012). A federal habeas court cannot overturn a state court decision on factual grounds "unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This is a "'daunting standard-one that will be satisfied in relatively few cases,' especially because we must be 'particularly 5 - OPINION AND ORDER deferential to our state-court colleagues.'" Hernandez v. 2014) (quoting Taylor v. 366 F.3d 992, Maddox, 857 (9 th Cir. 1000 (9 th Cir. 750 F.3d 843, Holland, 2004)). II. Unargued Claims With the assistance of counsel, Petitioner chooses to argue three of the claims he presented in argues that Petitioner Specifically, ineffective when he failed to: his pro counsel trial to the was (1) investigate and present expert testimony in support of a mental heal th defense (2) object Petition. se prosecutor's interference (Ground 2. 3) ; with Son Thach' s testimony (Ground 2.2); and (3) object on federal constitutional grounds to the transferred intent jury instruction which constructively amended the Indictment and deprived Petitioner of notice of the charges against him (Ground 2.5). With respect to the remainder of his claims, Petitioner relies upon the record and does not address any of Respondent's arguments as to why relief on these claims should be denied. Petitioner has not carried his burden of proof with respect to these unargued claims. See Silva v. Woodford, (9th the Cir. claims). claims, 2002) Even the (Petitioner if Petitioner Court has bears had examined burden briefed them 279 F.3d 825, the based of proving merits upon the of 835 his these existing record and determined that they do not entitle him to relief. III. Mental Health Defense {Ground 2,3) Petitioner's primary defense at trial was that he lacked the intent required defense hired to Dr. be convicted of intentional Colistro to conduct Frank 6 - OPINION AND ORDER a murder. The psychological evaluation of Petitioner. Dr. Colistro concluded (based upon the history as recounted to him by Petitioner) that Petitioner suffered from severe alcohol dependency and was inebriated on the night of the shooting. Petitioner's shooting rather deliberate than Dr. of Colistro Pfeifer and also "was concluded reckless intentional." and that negligent Respondent's Exhibit 127, p. 7. Petitioner does not argue that counsel In this proceeding, should have involved called reckless believes Dr. Colistro Dr. and to negligent testify conduct. that the Instead, killing Petitioner Colistro could have testified to his diagnosis of severe alcohol dependency as well as his opinion that Petitioner was intoxicated on the night in question such that the jury could have used that information to conclude that Petitioner did not intend to murder Pfeifer. The Court uses the general two-part test established by the Supreme Court ineffective U.S. 111, counsel's determine assistance 122-23 Due performance, of (2009). performance reasonableness. (1984). to counsel. First, fell Strickland v. to the Petitioner whether Knowles v. received Mirzayance, 556 Petitioner must show that his below an objective Washington, difficulties in standard 466 u. s. 668, evaluating of 686-87 counsel's courts must indulge a strong presumption that the conduct falls within the "wide range of reasonable professional assistance.'' Id at 689. Second, Petitioner must show that his counsel's performance prejudiced the defense. The appropriate 7 - OPINION AND ORDER test for prejudice is whether Petitioner probability that, can show "that there is a reasonable but for counsel's unprofessional errors, the result of the proceeding would have been different." Id at 694. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the trial. at Id 696. When Strickland's general standard is combined with the standard of review governing 28 U.S.C. § 2254 habeas corpus cases, the result is a "doubly deferential judicial review." Mirzayance, 556 U.S. at 122. As an initial matter, although Petitioner believes that the PCR court did not comprehend the nature of his claim, he did not present the claim he argues here to the PCR court. Petitioner argues dependence that his intoxication and severe alcohol prevented him from forming intent to commit intentional murder, and that Dr. Colistro could have testified about these alcoholrelated issues. proceedings. Petitioner presented no such claim in his PCR Instead, he argued that Dr. Colistro' s report was favorable to the defense because it concluded that Petitioner's conduct p. 27. was At reckless no time and negligent. did Petitioner Respondent's argue the Exhibit intoxication alcohol dependence issues he now argues in this Court. 110, and In this respect, Petitioner failed to fairly present the claim he argues as Ground 2.3 to Oregon's state courts and provide those courts with a fair opportunity to pass on the merits of the claim. See Rose v. Lundy, 455 U.S. 509, 519 (1982) (requiring fair presentation of claim to state courts). Because Petitioner can no longer present the claim in Oregon's state courts, 8 - OPINION AND ORDER the claim is procedurally default. defaulted, and Petitioner has not excused the The argued claim is therefore not properly before this Court for adjudication. 1 As to the preserved claim that Petitioner did fairly present to Oregon's Colistro' s state courts, the conclusions on the PCR court legal issue of have been admissible in state court. p. 3. Such a habeas court. ( 11 [W] e it is not is Dr. intent would not binding on a 502 U.S. See Estelle v. McGuire, that that Respondent's Exhibit 14 3, state-law determination reemphasize determined the 62, province 67-68 of a federal (1991) federal habeas court to reexamine state-court determinations on state-law questions. 11 ) • Even if Petitioner had pled and fairly presented his argued Ground 2. 3 claim, recognizes, Dr. he would not be entitled to relief. As he Colistro had a conflict of interest because he was treating Hatch for the emotional trauma that ensued from the shooting. the case, This conflict prompted Dr. thus he was not available Colistro to withdraw from to testify. Respondent's Exhibit 139, p. 2. Although Petitioner asserts that any competent psychologist could have provided similar testimony, the PCR court no evidence as to the identity he offered of such a psychologist, whether (s)he would have been available to testify, 1 Respondent argues that this claim is also not contained within the Petition for Writ of Habeas Corpus, and is therefore not properly before this Court for consideration. See Rule 2 {c), Rules Governing Section 2254 Proceedings, 28 U.S. C. foll. § 2254 (requiring each habeas petition to "specify all the grounds for relief which are available to the petitioner 11 ) ; Greene v, Henry, 302 F.3d 1067, 1070 fn 3 (9th Cir. 2002) (a court need not consider claims not raised in the petition), Where it is evident that the claim is unpreserved, the Court need not resolve this issue. 9 - OPINION AND ORDER and what the content of the testimony would have been. See Horn v. Hill, 180 Or. App. 139, 148-49, 41 P.3d 1127 (2002) ( 11 Where evidence omitted from a criminal trial is not produced in a post. its omission cannot be prejudicial 11 ) . conviction proceeding For all of these reasons, Petitioner is not entitled to relief on this claim. IV, Ground 2.2: Son Thach's Testimony During Petitioner's defense, he sought to call his sister, Son Thach, to testify on his behalf. The trial court informed her that the prosecutor had a matter he wished to discuss with her before the defense proceeded with her testimony. ensured testify, Son Thach knew that she was under no The prosecutor obligation to that she had the right to remain silent, had the right to an attorney, and that anything she said on the stand could be used against her. her whether, Trial Transcript, knowing those rights, pp. 1005-06. He then asked she wished to proceed. Son Thach responded in the affirmative. Id at 1006. At that point, defense counsel informed Son Thach that he was representing her brother, not her, and established that he had not given her any legal advice and had informed her that she had the right to consult an attorney of her choice before coming to court to testify. that he had Id. At that point, forgotten to cover one the prosecutor indicated item and the transpired: DA: You know if you want an attorney to consult with prior to your testimony, that one could be appointed to you at no charge? 10 - OPINION AND ORDER following ST: Am I going to get arrested or - DA: That depends on what your testimony will be. ST: I don't know. Court: In other words, not only do you have the right to have an attorney and to talk to an attorney before you testify or decide whether to testify today, but if you can't afford to hire an attorney, I will appoint one for you at no cost to you. ST: Okay. I think I want to attorney first before I talk. talk to an Court: I' 11 talk to indigent defense and see if they can get somebody here. You can step down. Id at 1007. Son Thach consulted with counsel and elected to exercise her Fifth Amendment right not to testify. Petitioner transcript, the argues that prosecutor based upon the substantially interfered with Son Thach' s decision. contents and of the improperly The PCR court disagreed, and concluded that the "discussion about Son's right to remain silent and possible consequences if she testified was conducted before the trial judge and was done on the record. The record does not reflect intimidation but rather an advice of rights. She made her choice not to testify after she consulted with an attorney." Respondent's Exhibit 143, p. 2. It was Son Thach who introduced the idea of arrest when the prosecutor was attempting to inform her that if she wished to consult with an attorney but could not afford one, the court could provide an attorney free of charge. Her question about the possibility of arrest put the prosecutor in a difficult position 11 - OPINION AND ORDER because he could neither assure that she would not be arrested, nor could he matter the suggest content that of she her would, indeed, testimony. 2 In be this arrested no regard, his response was a reasonable one occasioned by the question asked, and the PCR court correctly determined that there was no intimidation. Counsel was therefore under no duty to object, and his performance did not fall below an objective standard of reasonableness. The PCR court reasonably resolved this claim. V. Ground 2.5: Transferred Intent Jury Instruction At the close of trial, the prosecutor asked the judge to instruct the jury on the issue of transferred intent based upon Batch's testimony that Petitioner had actually intended to kill him, causing Hatch to grab Petitioner's arm and affect the direction of the shot. Trial counsel objected: First of all, your Honor, the State's theory of the case has never been that. They have maintained from the opening statement that Mr. Thach was alone when he shot the gun, and he shot with intent right at Robby Pfeifer, that's been their theory. This is brand new, not supported by the facts and the evidence as it stands right now. It is potentially a comment on the evidence, it is a way for [the prosecutor] to possibly save face just in case they don't think Mr. Thach had the intent to kill Mr. Pfeifer. Now they are saying, well maybe he had the intent to kill [Hatch] and the gun did go his way, but otherwise there's no other evidence to support this. And there's no evidence that anyone said Mr. Lai Thach had any kind of 2 The prosecutor issued notifications of the same general rights to a subsequent witness, Heather Zimmerman, who opted to testify without speaking to counsel. Trial Transcript, pp. 1008-09, Where Zimmerman did not raise the issue of arrest, the prosecutor made no reference to any such possibility. 12 - OPINION AND ORDER intent. There were no questions even asked about it, what intent he might have had towards Leslie Hatch. Trial Transcript, pp. 1068-69. Defense counsel also informed the Court that Hatch "was witness number two for the State. The first witness . was very brief, didn't really see anything. . was Tuesday. And here they are trying to surprise us." That Id at 1071. As noted in the Background of this Opinion, the trial court overruled the objection and issued the instruction. Petitioner asserts that due process guarantees adequate notice of the charges against a criminal defendant, and that the trial court improperly allowed the prosecutor to constructively amend the Indictment on the day the jury was instructed. He points out that the Indictment charged him with the intentional murder of Pfeifer, thus he defended against that specific charge only to have the trial court instruct the jury on transferred intent after all the evidence had been presented. He specifically faults trial counsel for not raising an objection based upon the Due Process Clause. The PCR court specifically determined that counsel did, fact, in object to the instruction as a constructive amendment to the Indictment, and it also concluded as a matter of state law that the objection preserved the issue for appellate review: Petitioner has failed to prove that his trial attorney was ineffective for failing to object to the instruction regarding transfer of intent. He did in fact object to the instruction although he acknowledged that it was a correct statement of the law. He argued that it was too late in the trial to raise such an issue and that it constituted an amendment to the indictment. Those issues 13 - OPINION AND ORDER were preserved for appeal and were raised on appeal. There was no basis to object to the instruction as an improper statement of the law because id did in fact state the law correctly. Respondent's Exhibit 143, p. 4. Petitioner's claim that counsel failed to lodge an objection to the intent transferred instruction jury based upon insufficient notice is belied by the record. Counsel specifically argued that this was a brand-new theory being argued on the day the case went surprise the objection, is to the jury, defense. and that Even if the State was counsel had raised the the Supreme Court has specifically stated that "[i) t doubtful application whether to a this case principle of of transferred fair 1437, 1438 {9th Cir. 1984) notice intent [. J" Richey, 546 U.S. 74, 76-77 (2005); see also U.S. F.2d not trying to has Bradshaw v. Montoya, (rejecting any argument v. 739 that transferred intent instruction deprived defendant of notice of the precise nature of the charge against him). For these reasons, the PCR court's decision did determination of the facts involve an unreasonable not involve an in light of the record, application of clearly unreasonable nor did it established federal law. 3 CONCLUSION For the reasons identified above, Habeas Corpus (#2) is denied. The the Petition for Writ of Court declines to issue a 3 Where Petitioner's claim fails on its merits, the Court need not address Respondent's arguments that Petitioner procedurally defaulted this claim in state court, and omitted it from his Petition for Writ of Habeas Corpus. See 28 u.s.c. § 2254(b) (2). 14 - OPINION AND ORDER Certificate of Appealability on the basis that petitioner has not made a substantial right pursuant to 28 showing of u.s.c. the denial of a constitutional § 2253(c) (2). IT IS SO ORDERED. DATED this / sl~ day of July, 2019. Jones tates District Judge 15 - OPINION AND ORDER
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