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Dang v. Kernan

September 4, 2008

SI VAN DANG, PETITIONER,
v.
SCOTT M. KERNAN, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation

ORDER

Petitioner Si Van Dang, a state prisoner proceeding with counsel, timely filed a Notice of Appeal of this Court's denial of his application for a writ of habeas corpus. (Doc. 46). Before Petitioner can appeal this decision, a Certificate of Appealability must issue. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).

A Certificate of Appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Court must either issue a Certificate of Appealability indicating which issues satisfy the required showing or must state the reasons why a certificate should not issue. Fed. R. App. P. 22(b)(1).

For the reasons set forth in this Court's denial of Petitioner's application for writ of habeas corpus, (Doc. 44), and reiterated in part below, Petitioner failed to make a substantial showing that his constitutional rights were infringed upon. Accordingly, a Certificate of Appealability shall not issue.

I.

Petitioner filed a direct appeal from the judgment of guilt and his sentence. In People v. Tran, No. C027927, 2003 Cal. App. Unpub. LEXIS 4653 (Cal. Ct. App. May 13, 2003), the California Court of Appeal affirmed the Superior Court's judgment. Petitioner's request for review of the California Court of Appeal's decision was summarily denied by the California Supreme Court on June 29, 2005.

II.

On October 26, 2005, Petitioner filed an application for writ of habeas corpus in this Court. (Doc. 1). Petitioner contended that his application for writ of habeas corpus must be granted based on federal constitutional errors that compel the setting aside of his conviction and sentence. In analyzing these contentions, this Court complied with the restrictions Congress placed on the authority of federal courts in reviewing applications for habeas corpus relief filed pursuant to U.S.C. § 2254(a).

Federal habeas corpus relief is not available to state prisoners for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court in the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

This Court looks to the last reasoned state court decision as the basis for the state court denial of Petitioner's state application for habeas relief. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Because the California Supreme Court summarily denied Petitioner's habeas application, this Court reviews the California Court of Appeal's decision as the last reasoned state court opinion addressing Petitioner's arguments. See Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002) (explaining that when a subsequent appeal is denied without comment, a federal court must review the last state court decision that actually addresses a claim).

Petitioner sets forth three claims in his petition. First, he contended that his appellate counsel's failure to raise a Batson challenge constituted ineffective assistance of counsel. Second, Petitioner argued that the trial court's admission of three items of evidence infringed upon his federal due process rights. Third, Petitioner alleged that the prosecutor engaged in a pervasive pattern of misconduct that violated his due process rights. This Court found Petitioner's claims lacked merit.

III.

Petitioner asserted that his counsel rendered ineffective assistance, and as a result his Sixth Amendment right to effective counsel was violated. Petitioner argued that his appellate counsel's failure to raise the trial court's denial of his motion to quash the jury panel based on Batson v. Kentucky, 476 U.S. 79 (1986), constituted a denial of his federal constitutional right to receive effective assistance of appellate counsel.

To prevail, Petitioner had to establish two elements for an ineffective assistance of counsel claim. First, Petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). To this end, Petitioner must identify the acts or omission that are alleged not to have been the result of reasonable professional judgment. Strickland, 466 U.S. at 690. The court must then determine whether in light of all the circumstances, the identified acts or omissions were outside the wide range of professional competent assistance. Id. at 690. Second, Petitioner must affirmatively prove prejudice. Id. at 693. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.; See also United States v. Murray, 751 F.2d 1528, 1535 (9th Cir. 1985) (holding that counsel's conduct and strategic choices were within the wide range of reasonable professional representation and that combined with overwhelming evidence against the defendant, there was no reasonable probability that the outcome would have differed); United States v. Schaflander, 743 F.2d 714, 717-18 (9th Cir. 1984) (per curiam) (holding that counsel's alleged acts and omissions did not fall outside the wide range of professional competent assistance and that defendants failed to establish grounds for relief based on professional incompetence).

To determine whether petitioner's appellate counsel's performance fellow below an objective standard of reasonableness, this Court first addressed whether the alleged Batson violation occurred. In Batson v. Kentucky, the United States Supreme Court held that purposeful discrimination on the basis of race or gender in the exercise of peremptory challenges violates the Equal Protection Clause of the United States Constitution. Batson, 476 U.S. at 89; Johnson v. California, 545 U.S. 162 (2005). This Court found that ...


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