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Bee Vue v. Kelly Harrington

June 3, 2011

BEE VUE, PETITIONER,
v.
KELLY HARRINGTON, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Petitioner, Bee Vue, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of life without the possibility of parole plus a consecutive term of twenty five years to life with the possibility of parole following his conviction for first degree murder with a penalty enhancement for use of a firearm in the Sacramento County Superior Court. Here, Petitioner challenges the constitutionality of his conviction.

II. ISSUES PRESENTED

Petitioner presents two grounds for relief. Specifically, the claims are as follow, verbatim:

(1) The trial court erred when it ruled defense counsel could not argue in his closing that "reasonable doubt" means "near certainty" -- appellant was precluded from offering a full defense to the charges in violation of his federal sixth and fourteenth amendment rights (U.S. CONST. AMED. V, AMEND. VI, AND AMEND. XIV).

(2) The trial court erred when it denied appellant's Wheeler-Batson motion -- the court's ruling violated appellant's state and federal constitutional right to a jury selected according to non-discriminatory criteria (U.S. CONST. AMEND. V, AMEND. XIV, AND VI).

Based on a thorough review of the record and applicable law, it is recommended that both of Petitioner's claims be denied.

III. FACTUAL BACKGROUND

The basic facts of Petitioner's crimes were summarized in the unpublished opinion of the California Court of Appeals, Third Appellate District, as follows:

An information charged defendant with first degree murder and alleged the special circumstance that defendant committed the murder while engaged in the commission of attempted robbery (Pen. Code, §§ 187, subd. (a) (17).)FN1 The information also alleged defendant personally discharged a firearm within the meaning of section 12022.53, subdivision (d).

FN1. All further statutory references are to the Penal Code unless otherwise indicated.

A jury trial followed. The evidence adduced at trial revealed the following scenario surrounding Mai's murder.

FN2. Because some of the individuals discussed herein have the same or similar surnames, we will use first names to avoid confusion. No disrespect is intended.

The night of November 21, 2005, police found Mai's body lying face down in the parking lot of a motel. The breast pocket of Mai's jacket contained his wallet with $330 inside. Officers recovered three spent nine-millimeter shell cases and four bullet fragments near Mai's body.

Prelude to the Murder

Simona Saecho, pursuant to a negotiated plea, pled no contest to a charge of voluntary manslaughter and faced a sentence of between 12 years and 13 years eight months. Simona met defendant a month or two before the murder. Defendant and Simona used drugs together at her family's apartment.

Simona's brother Charlie was dating Cindy Thao prior to the murder. Cindy lived in the Saechos' apartment. Prior to trial, Cindy pled no contest to first degree murder and admitted she was armed during the commission of the offense.

The morning of the murder Cindy drove Simona to a fast food restaurant to meet Cindy's friend, O.G. Johnny (Johnny). Cindy introduced Simona and spoke to Johnny in Hmong, a language Simona did not understand. Johnny asked if the two women wanted to hang out, and they agreed to get together later that day.

That evening Cindy and Simona met Johnny again at the fast food restaurant. Johnny's brother-in-law, Mai, arrived, and the girls followed Johnny to a motel. Johnny checked in, and the group went into on of the motel rooms.

Johnny gave Cindy some money; she left the motel room to buy drugs, and Johnny left to buy beer. Alone in the room, Mai asked Simona to have sex with him for $100. Simona turned him down.

When Cindy returned, she and Simona drove back to the apartment. Cindy told Simona she tried to sell Simona to Mai and Johnny for drug money. Cindy said she wanted to go back to the motel and rob the two men. Simona did not want to go, but Cindy told her she had to.

That same evening, Yeng Yang drove to Simona's apartment looking for defendant. Prior to trial, Yeng entered into a negotiated plea, pleading guilty to a charge of voluntary manslaughter in exchange for a 12-year sentence.

When Yeng arrived at Simona's apartment, defendant came out and spoke with him. Simona and Cindy drove up and joined the duo. Yeng had never met Simona or Cindy before that night. Defendant spoke with Cindy, who, according to Simona, told defendant she wanted to rob the two men at the motel. Defendant said he did not want to but went along with the idea.

Defendant told Yeng that something had happened to Cindy and Simona and they were planning to rob two old men at a motel. Yeng did not want to rob the men but agreed to make sure the men did not resist. Defendant, Yeng, Simona, and Cindy got into Cindy's car after Cindy said, "[Let's just go do it." Cindy carried a revolver in her purse.

As they drove, Cindy outlined how they would rob the men. Defendant and Cindy decided Simona would knock on the motel room door to see if the men were still there. If so, defendant would enter the room and take the men's money. Defendant was armed with a nine-millimeter gun and Yeng carried Cindy's revolver.

The Murder of Mai Vang

Meanwhile, back at the motel, Valerie Bader, a prostitute, was approached by Johnny and accompanied him to his motel room. The pair passed Mai, who got into a truck in the motel's parking lot. Valerie agreed to have sex with Johnny for $200 and also agreed to have sex with Mai afterward.

Cindy and the others arrived at the motel and Cindy parked the car near some stairs. Simona got out, saw Mai sitting in his truck, and ran back to the car. Simona told the others she had seen Mai and asked to go home. Defendant said he did not want to go ahead with the planned robbery. Cindy began to drive away, but stopped and spoke to defendant in Hmong. Cindy backed up to Mai's truck and defendant and Yeng got out.

Defendant approached the driver's side of the truck and Yeng walked to the passenger side. Yeng tried to open the door, but it was locked. Defendant tried to open the driver's side door. Simona testified that defendant yelled at Mai; Yeng testified that dendant was talking with Mai about what he had done to Cindy and Simona.

Defendant reached through the driver's side window and unlocked the truck's door. Simona testified defendant leaned inside the truck and got "right up in [Mai's] face." Simona also told officers that defendant grabbed Mai's shirt.

Yeng testified defendant reached in, grabbed Mai's shirt, and demanded his wallet. Defendant held the gun and pointed it at Mai's rib cage. Defendant loaded a round into the gun. Mai grabbed defendant by the neck and fought for the gun. Defendant yanked Mai out of the truck and the men wrestled, struggling over the gun.

Yeng approached the pair and hit or kicked Mai in the face. Defendant fired the gun and Simona saw Mai's head bounce back, as if he had been shot in the head. Mai clung to defendant's waist and legs.

Defendant struggled to elude Mai's group and hit him in the head with the gun. Mai strengthened his grip on defendant. Defendant shot Mai in the left rib cage. Simona saw defendant lying on the ground beneath Mai. Defendant shot Mai again to get Mai to let go of him. Simona saw defendant trying to get out from under Mai, who was lying face down. As defendant got up, he placed the gun into Mai's back and shot him.

Defendant and Yeng, carrying their weapons, got into Cindy's Honda. Simona testified that Yeng said he searched Mai's pockets but did not find a wallet. Yeng testified he did not search Mai. After defendant retrieved his beanie hat from the scene, Cindy sped away. As they left, Mai lay face down and motionless in the parking lot.

Valerie heard the gunshots while in the bathroom of Johnny's motel room. When she looked out the window, Valerie saw Mai lying on the ground. She called 911 as Johnny left the room. As he left, Johnny mentioned a Honda driving away and that his friend had been shot. Valerie saw Johnny drive away in the truck Mai had been sitting in.

The manager of the motel heard two or three gunshots the evening of the murder. The manager saw Mai lying in the parking lot and a man standing nearby. A dark gray truck was parked nearby, which the man got into and drove away.

Aftermath of the Murder

Cindy, Yeng, and defendant cautioned Simona about talking about the shooting. Yeng put the revolver in Cindy's purse. Everyone changed clothes and defendant cleaned the guns, putting his in a gun case.

The quartet drove to a bingo hall, stayed for about half an hour, then returned to Simona's apartment. En route, they stopped to buy crystal methamphetamine with the money Cindy received from Johnny. While buying the drugs, Cindy told the seller that she killed someone.

At Simona's apartment, the four smoked the drugs. The next morning, Cindy and Simona bought more drugs. Simona also showed defendant a newspaper article about the shooting.

The following evening officers stopped Cindy and searched the Honda. Officers found a loaded .38-caliber revolver in Cindy's purse on the back floorboard. The search also uncovered a cigarette pack that had one live round in it, identification belonging to Cindy, and receipts from a fast food restaurant. Officers arrested Cindy.

Jordann Coleman met defendant through Jordann's roommate, Webster Vang. Defendant "hung out" in Webster and Jordann's apartment occasionally. Defendant once came to visit, bringing Yeng, Cindy, and another woman. During the visit, defendant waved around a loaded gun, and Cindy pulled out a revolver from her purse. Shortly after Cindy's arrest, Susan Vang saw defendant at Jordann's apartment with a handgun tucked into the waistband of his pants.

Webster testified that defendant admitted he shot an old man because the man attempted to fight back during defendant's attempt to rob him. Defendant told Webster he had the gun in his car. Cindy confirmed defendant's story.

After the murder, defendant contacted Sherrie Ly to buy methamphetamine. Sherrie called Phuong Nguyen to see if he had drugs for defendant. Sherrie also asked Phuong if he wanted to buy a nine-millimeter gun. She told Phuong the gun was not "dirty." Phuong ultimately agreed to buy the gun, and Sherrie and defendant met with him and delivered the weapon. Through Sherrie, defendant agreed to sell the gun for about $300 and some methamphetamine.

The day before the murder Donny Vargas saw a nine-millimeter gun in a bedroom of the Saechaos' apartment. Defendant, Cindy, Charlie, and Simona were there. Donny initially testified that Charlie claimed the gun was his but later testified that Charlie said it belonged to defendant. The day after the murder, Donny saw defendant, who asked Donny if he knew anyone who wanted to buy the nine millimeter. By the time Donny located a potential purchaser, defendant had already sold the gun to Phuong. Donny called Phuong and told him to get rid of the gun because it had been used in a murder.

After being alerted by Donny, Phuong tried to sell the gun. Eventually he sold the gun to a buyer from whom officers later recovered it.

Evidence of the Criminalist and Forensic Pathologist

A criminalist compared the bullet fragments and cartridge cases found at the scene with the test-fired bullets and cartridge cases from the nine-millimeter gun recovered by police. The criminalist concluded that the three recovered cases were fired from the nine-millimeter weapon. The criminalist also determined an intact bullet recovered from the scene was fired from the weapon. However, there was insufficient information to conclude the recovered bullet fragments were also fired from the nine-millimeter pistol. None of the recovered cases or fragments could have been fired by the .38-caliber revolver.

A forensic pathologist who performed the autopsy on Mai determined Mai suffered two gunshot wounds and a scalp laceration. The wound to Mai's left leg had stippling caused by the gun's muzzle being within two to three feet from Mai when the gun was fired. The other gunshot wound was located in Mai's back, and soot surrounding the wound indicated the muzzle was close to the skin when the gun was fired.

The exit wound was located in Mai's abdomen. The pathologist determined the bullet fired from back to front, left to right, and downward. The bullet entered the left side of Mai's chest and traveled through his lung, heart, and diaphragm. It entered his abdomen, injuring his liver before exiting the body. This wound killed Mai. The pathologist theorized the laceration on Mai's scalp could have been caused by a gun butt.

Defense Case

Defendant did not testify. Simona told her father about the shooting the day after the murder. She did not tell him the whole story. Simona denied telling her father that Cindy yelled at the person with the gun to shoot the old guy. Simona denied telling her father that she made Cindy stop the car to let her out and that she walked home.

Simona testified her father was home the day of the murder and the following day, and could have seen defendant and Cindy in the apartment on those days. She denied telling her father that the man with the gun tripped and accidentally squeezed the trigger of the gun, firing twice. One shot hit the victim in the chest, the other struck his forehead. After the victim fell, defendant shot him once more in the back.

Simona told her father that she asked Cindy to stop the car three times on the way home after the murder. Cindy stopped the car and Simona walked home. She was afraid.

Simona's father did not see defendant, Cindy, or Yang in the apartment after the murder.

Aftermath

The jury found defendant guilty of first degree murder and found the special circumstance and enhancement allegations true. The court sentenced defendant to life in prison without the possibility of parole for first degree murder. The court further sentenced defendant to a consecutive term of 25 years to life for the firearm enhancement and imposed various fines and fees. Defendant filed a timely notice of appeal.

(Lodged Doc. 4 at 2-10).

The appellate court affirmed Petitioner's conviction on October 2, 2008 with a reasoned opinion. Petitioner next sought review of his convictions in the California Supreme Court, which was denied without comment on December 23, 2008. Petitioner filed this federal petition for writ of habeas corpus on April 29, 2009. Respondent filed an answer on February 1, 2010, and Petitioner filed his traverse on March 23, 2010.

IV. APPLICABLE STANDARD OF HABEAS CORPUS REVIEW

This case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution, federal laws, or treaties of the United States. 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (2001); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Federal habeas corpus relief 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). Although "AEDPA does not require a federal habeas court to adopt any one methodology," Lockyer v. Andrade, 538 U.S. 63, 71 (2003), there are certain principles which guide its application.

First, AEDPA establishes a "highly deferential standard for evaluating state-court rulings." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Accordingly, when determining whether the law applied to a particular claim by a state court was contrary to or an unreasonable application of "clearly established federal law," a federal court must review the last reasoned state court decision. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004); Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Provided that the state court adjudicated petitioner's claims on the merits, its decision is entitled to deference, no matter how brief. Lockyer, 538 U.S. at 76; Downs v. Hoyt, 232 F.3d 1031, 1035 (9th Cir. 2000). Conversely, when it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, AEDPA's deferential standard does not apply and a federal court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

Second, "AEDPA's, 'clearly established Federal law' requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in U.S. Supreme Court decisions." Robinson, 360 F.3d at 155-56 (citing Williams, 529 U.S. at 381). In other words, "clearly established Federal law" will be " the governing legal principle or principles set forth by [the U.S. Supreme] Court at the time a state court renders its decision." Lockyer, 538 U.S. at 64.

It is appropriate, however, to examine lower court decisions when determining what law has been "clearly established" by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 2000).

Third, the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meanings." Bell v. Cone, 535 U.S. 685, 694 (2002). Under the "contrary to" clause, a federal court may grant a writ of habeas corpus 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. It is not necessary for the state court to cite or even to be aware of the controlling federal authorities "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002). Moreover, a state court opinion need not contain "a formulary statement" of federal law, but the fair import of its conclusion must be consistent with federal law. Id.

Under the "unreasonable application" clause, the court may grant relief "if the state court correctly identifies the governing legal principle...but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694. As the Supreme Court has emphasized, a 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." Williams, 529 U.S. at 410. Thus, the focus is on "whether the state court's application of clearly established federal law is objectively unreasonable." Bell, 535 U.S. at 694 (emphasis added).

Finally, a petitioner bears the burden of demonstrating that the state court's decision was either contrary to or an unreasonable application of federal law. Woodford, 537 U.S. at 24 ;

Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).

V. DISCUSSION

A. REASONABLE DOUBT

Petitioner claims that he was denied his rights to a fair trial, to present a complete defense, and to due process when the trial court precluded defense counsel from arguing that "beyond a reasonable doubt" means "near certainty." He argues that his trial counsel raised several points in closing argument that constituted reasonable doubt that Petitioner was the shooter. Thus, Petitioner contends that if trial counsel had been permitted to argue that near certainty that a crime has occurred does not establish near certainty as to the identity of the perpetrator of that crime, the result of his trial would have been different. According to Petitioner, absent such argument regarding a "near certainty" standard of proof, the jury was unlikely to understand the significance of the "abiding conviction" language used in California to define "beyond a reasonable doubt." On direct appeal, the state court found that the trial court so erred, but declined to find that Petitioner suffered any prejudice as a result of the error, explaining the background of the claim and its reasoning as follows:

Defendant argues the trial court erroneously denied defense counsel's request to argue, during closing argument, that reasonable doubt means "near certainty." According to defendant, the trial court confused "moral certainty," no longer a viable description of reasonable doubt, with "near certainty."

Background

Prior to closing argument, defense counsel requested to be allowed to argue that proof beyond a reasonable doubt means near ...


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