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Xiong v. Felker

May 21, 2009




Petitioner Tong Xiong is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. He is currently serving a 15 year-to-life sentence of imprisonment after a jury convicted him of second degree murder in the Sacramento County Superior Court, case 99F02458. For purposes of this opinion, petitioner's grounds for relief are consolidated into the following two claims: (A) ineffective assistance of counsel at trial, and (B) jury misconduct and denial of the right to contact jurors about the alleged misconduct.


The following background summary was set forth in the unpublished opinion of the California Court of Appeal, Third District, case number C048798. (Lodged document 5.) Petitioner is the defendant referred to therein.

On December 9, 1998, Yeng Lee (Yeng) was driving a car with his wife in the front passenger seat, Kou Lee (Kou) behind her in the back seat and defendant sitting behind Yeng. Defendant and Kou were members of the True Blue street gang (True Blue), and Yeng was a member of the Black Tigers, a gang closely allied with True Blue.

At one point as they were driving, Kou told Yeng to back up because he saw a person who had "jumped" him. Yeng stopped the car and backed up. Kou told Yeng's wife to roll down her window and pull her seat forward, which she did. Jin Dao Lee (the victim), a member of a street gang called Junior Rascal Boys (JRB), was standing on the porch of the house where they had stopped.

Kou yelled "something about JRB" out of the window at the victim. While Kou was yelling, several gunshots were fired from the back seat of the car, fatally wounding the victim. Yeng's wife believed defendant fired the shots because she saw his hand outside the window with a gun and Kou was still leaning out of the window.

The four drove off, heading to defendant's residence. On the way, defendant and the co-defendants laughed about the shooting. At some point, Kou made a reference to the fact that he had been jumped and received a scar. When they arrived at defendant's residence, Yeng's wife saw defendant reach into the sunroof when he was getting out of the car.

Two days after the shooting, a .22-caliber semiautomatic pistol containing defendant's fingerprints was recovered from the garage at his residence. A criminalist concluded that spent cartridges recovered from the scene of the shooting had been fired from the recovered pistol.

During an interview with a police detective the following day, defendant's brother, Fue, reported he encountered defendant and the co-defendants at a cousin's house later on the day of the incident and they told him that they "shot a kid" who had "messed with" Kou at his house earlier in the day. Fue told the detective that defendant said he shot the victim.

Fue told another officer that True Blue was formed in 1992, while the Black Tigers formed "in the late eighties," with the Sacramento chapter organizing in 1996 after a soccer match resulted in a fight with another gang. Fue... identified several other Black Tigers members. Fue reported that JRB, the gang with which the victim was affiliated, was an enemy of the Black Tigers.

Evidence was presented that... sometime previously, defendant got into a fistfight with the JRB member at whose house the shooting occurred and that, when the rival gang member threatened defendant with a metal pipe, defendant left, saying he was going to get a gun to shoot him.

Based on a hypothetical question mirroring the facts of the current offense, a gang expert testified such shootings benefit a gang and promote gang activity due to fear and intimidation. (Lodged document 5 at 1-2)

Petitioner and two co-defendants were charged with murder, discharging a firearm at an inhabited dwelling, discharging a firearm from a motor vehicle at a person not in the vehicle, discharging a firearm from a motor vehicle, several firearm enhancements, a criminal street gang enhancement, and the special circumstance of intentional first degree murder perpetrated by discharging a firearm from a motor vehicle. (Id. at 1.) Petitioner's jury was unable to reach a verdict, and the court declared a mistrial. (Id.)

Upon retrial, petitioner was found guilty of murder in the second degree and all other counts. The second jury also found true that he was a principal in an offense in which a firearm was used, and that he committed the offenses for the benefit of a criminal street gang. Id. The enhancement for personal use of a firearm was found not true. (Id.) Petitioner was sentenced to a term of 15 years to life for the murder plus a consecutive term of 25 years to life for the firearm enhancement. (Id.) Sentences on the remaining counts were stayed, for a total sentence of 40 years to life. (Id.)

On direct appeal considering an insufficiency of the evidence claim, the state appellate court reversed the criminal street gang and firearm use enhancements and the single sentence thereon, affirming the judgment in all other respects. (C048798 opinion at 1-2.) Petitioner's sentence was reduced to 15 years to life. (Id.)


An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available 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 of 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

The "contrary to" and "unreasonable application" clauses of §2254(d)(1) are different. Under the "contrary to" clause of §2254(d)(1), a Federal habeas court may grant the writ only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides the case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405. As the Third Circuit has explained, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3rd Cir. 1999) (emphasis in original). It is not required that the state court cite the specific controlling test or Supreme Court authority, so long as neither the reasoning nor the result contradict same. Early v. Packer, 537 U.S. 3, 8-9 (2002).

The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle but unreasonably applies it to the facts of the particular case. Williams, 529 U.S. at 410. The focus of this inquiry is whether the state court's application of clearly established Federal law is objectively unreasonable. Id. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.

The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). A court may deny a petition for writ of habeas corpus on the ground that relief is ...

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