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Duy Pham v. Edward Almeida

March 25, 2011

DUY PHAM,
PETITIONER,
v.
EDWARD ALMEIDA, JR., WARDEN, RESPONDENT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Motion for Leave to File a Second Amended Petition and Application to Stay Proceedings Pending Exhaustion of State Court Remedies filed by Petitioner Duy Pham, a state prisoner proceeding with counsel. [Doc. No. 115.]

I. BACKGROUND

On March 7, 2003, Petitioner, then proceeding pro se, filed his original federal habeas petition in this Court pursuant to 28 U.S.C. § 2254. [Doc. No. 1.]

On August 6, 2003, Petitioner, proceeding pro se, filed a First Amended Petition, alleging five claims. [Doc. No. 21.] Claim two of the First Amended Petition is captioned as follows: "The prosecutor, Victor Nunez, committed prosecutorial misconduct when he failed in his constitutional duty to disclose to the court his chief witness committed perjury, in violation of the U.S. Constitution 5th, 14th Amendment." [First Amended Petition at 7, Doc. No. 21.] The claim alleges:

In assessing this claim, Petitioner request[s] the court take judicial notice of the statement of facts in claim one.

During the attempted cross-examination of the prosecution's chief witness (Chong Dong), petitioner's defense was deprived of bringing to light evidence that would have discredited the testimony of Chong Dong, including the witness associated to and with him. Although the defense was deprived of bringing these facts to light for the jury's determination. Subsequently, in the process of his testimony, Chong Dong perjured himself to secure a conviction for the prosecution.

Chong Dong committed perjury throughout his testimony, and admitted it at the motion for new trial although the jury had been discharged.... [T]he prosecutor was aware of the perjury before the discharge of the jury. The prosecutor failed to disclose this unlawful act to the court, due to petitioner's conviction resting on the testimony of Chong Dong. [Id. at 8 (citations omitted).] In claim two, Petitioner "request[s] the court take judicial notice" of the following "statement of facts":

During the cross-examination of Chong Dong, Petitioner's attorney was denied from questioning the witness about his motive for falsely implicating petitioner in the crime, indicating the possibility of Chong Dong being the actual perpetrator in the crime, including leniency in the exchange for his testimony. In an attempt to bring to light the criminal disposition of Chong Dong, Petitioner's attorney ... questioned Dong on whether he had eve[r] shot any[one], Dong denied ever shooting anyone.

Subsequently, petitioner was convicted. The conviction was due to the hear-say testimony of Chong Dong and others associated with him. Once petitioner's jury was dismissed, petitioner's attorney ... filed a motion for new trial. In questioning [whether] Chong Dong had committed perjury in the testimony at petitioner's trial ... Dong testified he had never shot anyone when he in fact shot David Bailey in the back.... [Id. at 7 (citations omitted).]

On October 31, 2007, this Court issued an Order finding that the First Amended Petition was timely filed and ordering Respondent to file an Answer to the First Amended Petition. [Doc. No. 73.]

On December 14, 2007, Respondent filed an Answer. [Doc. No. 76.]

On August 27, 2009, Petitioner, proceeding with counsel, filed a Traverse which contained a request for "discovery on the issue of undisclosed favors to both Dong and [his girlfriend and prosecution witness] Lonnie, including but not limited to favors bestowed during their face-to-face contact visits at the district attorney's office." [Doc. No. 100 at 52.]

On March 17, 2010, the assigned Magistrate Judge issued a Report and Recommendation recommending that the Court find that claim two of the First Amended Petition is not procedurally barred, claim two has been exhausted, and Petitioner's request for discovery be granted in ...


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