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Viet Kim Le v. Richard Kirkland

June 24, 2011




Petitioner, Viet Kim Le, is a state prisoner proceeding by counsel witha petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of life plus seven years without the possibility of parole after his conviction by jury trial in the Sacramento County Superior Court, for the murder of Melinda Vo and the attempted murder of Thanh La, with a penalty enhancement on each of the above charges for personal use of a firearm. The jury also found true a special circumstance for discharging a firearm from a motor vehicle with the intent to inflict death. Here, Petitioner challenges the constitutionality of his convictions.


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

(1) Petitioner was deprived of the effective assistance of counsel by counsel's failure to investigate and expose the physical impossibility of Thanh La's identification of Petitioner as the driver of the car chasing him through the Kelley Drive intersection.

(2) Petitioner was deprived of effective assistance of counsel and due process of law by the combination of defense counsel's failure to investigate and present evidence of Thanh La's motive to falsely incriminate Petitioner, and the prosecutor's failure to disclose and acknowledge evidence of Thanh La's bias.

(3) Petitioner was deprived of due process and a fair trial by the court's erroneous admission of evidence of Petitioners' purported gang membership and a generic "rivalry" between a group of gangs with which Petitioner was affiliated and a group of gangs with which Thanh La was affiliated.

Petitioner's ineffective assistance of counsel claims, set forth in his first and second grounds for relief, will be addressed cumulatively in section (V)(A), below. To the extent that the remainder of Petitioner's second ground for relief alleges a separate prosecutorial misconduct claim, it will discussed in section (V)(B). Petitioner's final claim alleging that the trial court improperly admitted gang evidence will be addressed in section (V)(C). Based on a thorough review of the record and applicable law, it is recommended that each of Petitioner's claims be denied.


A. FACTS*fn1

The basic facts of Petitioner's crime were summarized in the unpublished opinion of the California Court of Appeal, Third Appellate District, as follow:

[Thanh La] was born in Vietnam and came to the United States when he was 10 or 11. [Thanh] met [Melinda Vo] at a Vietnamese New Year celebration; they dated off and on for a year. At the time [of the shooting], [Thanh] was on parole and living with his parents.

Late one night in June 1997, [Melinda] and [Thanh] were coming back from a drive to the river in Stockton. On the way to the river, [Thanh] had bought a six-pack of beer and had drunk half of it. Since [Thanh] did not want to drive after drinking, [Melinda] was driving on the way back.

While [Melinda] and [Thanh] were driving around the neighborhood, [Thanh] noticed a car following behind them on Kelley Drive near the Kelley Drive-Hammer Lane intersection. [Thanh] heard the car following, turn around, and recognized a person whom he know as "Viet" ([Petitioner]'s first name) as the driver of the car. In the passenger seat was a person whom [Thanh] did not recognize, but who he could tell was Asian. [Thanh] also believed that there were others in the car, but he could not see anyone in the back seat because the back window was tinted. [Petitioner]'s car followed [Thanh]'s car closely, almost bumper-to-bumper, for a few minutes. Although [Thanh] and [Melinda] were about a half-mile from [Thanh]'s parents' house, [Thanh] did not want to go there because he was afraid that [Petitioner] and his companions would do something to his family. Accordingly, [Thanh] told [Melinda] to get onto the freeway, and she did, turning from Kelley Drive onto Hammer Lane and getting onto the freeway headed toward Sacramento.

On the ramp to the freeway, [Thanh] ducked down so that [Petitioner] could not see him. [Melinda] and [Thanh] thought that [Petitioner] might not have seen [Thanh] and might let them go. Still, [Thanh] was concerned that [Petitioner] and his companions might do something to him. [Petitioner]'s car followed [Thanh] and [Melinda] onto the freeway. [Thanh] and [Melinda] were going about 80 to 90 miles an hour. [Petitioner]'s car was about one car-length behind. On three or four occasions, [Petitioner]'s car pulled up on the passenger side of [Thanh] and [Melinda]'s car. Although [Thanh] remained ducked down, he would sit up and look off and on. When he did, he had a better view of whether there were others in [Petitioner]'s car. [Thanh] could see the person sitting on the passenger side of the pursuing car, but could not tell whether there were others in the back because of the tinted windows. And [Thanh] could not identify anyone but [Petitioner], because he did not recognize the man in the passenger seat. [Thanh] and [Melinda] got off the freeway at an exit where there was a gas station. [Thanh] thought that there might be people to help. But [Melinda] went through the stop sign at the end of the off ramp and got back onto the freeway. [Petitioner]'s car followed them off and back onto the freeway. [Melinda] said that they should keep on driving until they saw another car and wave for help. But there were no other cars that night.

Finally, [Petitioner]'s car pulled alongside; [Thanh] heard gunshots. [Thanh] had remained ducked down and did not see [Petitioner] or anybody with a gun. But he heard five or six gunshots, some louder than others, for a few seconds. His car then went over to the other side of the freeway and off the road into a farm field where it stopped. [Thanh] was all right and checked [Melinda]. She did not answer. He tried giving her mouth-to-mouth resuscitation for about 10 minutes, but she did not respond. [Thanh] ran to the freeway to get some help. [Thanh] eventually was able to flag down a woman motorist, who, in turn, flagged down a trucker, who called 911. California Highway Patrol officers, who responded to the call, found bullet holes in the car and [Melinda] unconscious and without a pulse.

A Sacramento County Sheriff's deputy who arrived shortly thereafter questioned [Thanh]. [Thanh] told him that he did not recognize anyone in the car, did not know who they were, and did not recognize the other car.

But later that day, [Thanh] went to the Sheriff's Department and was shown a photographic lineup. [Thanh] picked out [Petitioner]'s photograph. And [Thanh] told investigating officers that [Petitioner] was [Melinda]'s boyfriend, that he knew [Petitioner] independently from the Stockton area, and that he saw [Petitioner] driving the car but did not see a gun.

Some days later local news media were reporting that [Petitioner] was a suspect in the shooting. [Petitioner] disappeared for almost four years, but in April 2001 turned himself in to the police. (Lodged Doc. 5 at 2-6).

Following a jury trial, Petitioner was convicted of murder and attempted murder with penalty enhancements on each charge for personal use of a firearm. He was sentenced to life imprisonment without the possibility of parole on the murder charge, plus one additional year for use of a firearm. In addition, Petitioner was sentenced to a consecutive term of seven years on the attempted murder charge, plus one additional year for use of a firearm.

Petitioner appealed his convictions to the California Court of Appeal, Third Appellate District. In addition, he filed a concurrent petition for writ of habeas corpus in the appellate court, requesting that it be consolidated with his direct appeal. The appellate court denied the habeas corpus petition without comment on October 9, 2003, and denied Petitioner's appeal with a reasoned opinion on October 29, 2003. He then filed a petition for review of the appellate court's denial of his habeas corpus petition and a separate petition for review of the appellate court's denial of his appeal in the California Supreme Court, again requesting that the petitions be consolidated. Both of the petitions were denied without comment on December 23, 2003 and January 14, 2004, respectively. Petitioner next filed an original petition for writ of habeas corpus in the California Supreme Court. The petition was denied without comment on February 2, 2005

Petitioner filed this federal petition for writ of habeas corpus on January 30, 2006. Respondent filed its answer on April 11, 2006. Petitioner did not file a traverse.


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 or laws of the United States. 28 U.S.C. § 2254(a); 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, the 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).


A. Effective Assistance of Counsel

Petitioner claims that trial counsel rendered prejudicially ineffective assistance by

1) failing to investigate and expose the physical impossibility of Thanh La's identification of him as the driver of the car chasing him through the Kelley Drive intersection and 2) failing to investigate and present evidence of Thanh La's motive to falsely incriminate him.

The Sixth Amendment to the United States Constitution guarantees to a criminal defendant the effective assistance of counsel. The United States Supreme Court set forth the test for determining whether counsel's assistance was ineffective in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim that counsel's performance was ineffective, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. 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 Williams v. Taylor, 529 U.S. 362, 391-92 (2000); Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000).

A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (citing Strickland, 466 U.S. at 697). In assessing an ineffective assistance of counsel claim, "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). In addition, there is a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). Thus, a reasonable tactical decision by counsel with which the defendant disagrees cannot form the basis of an ineffective assistance of counsel claim. Strickland, 466 U.S. at 689. The court does not consider whether another lawyer with the benefit of hindsight would have acted differently than trial counsel. Id. Instead, the court considers whether counsel made errors so serious that counsel failed to function as guaranteed by the Sixth Amendment. Id. at 687.

In this case, both of Petitioner's ineffective assistance claims allege that trial counsel's performance was deficient based on a failure to investigate. Defense counsel has a "duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "This includes a duty to . . . investigate and introduce into evidence records that demonstrate factual innocence, or that raise sufficient doubt on that question to undermine confidence in the verdict." Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) (citing Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999). In this regard, it has been recognized that "the adversarial process will not function normally unless the defense team has done a proper investigation." Siripongs v. Calderon, 133 F.3d 732, 734 (9th Cir. 1998) (citing Kimmelman, 477 U.S. at 384). Therefore, counsel must, "at minimum, conduct a reasonable investigation enabling him to make informed decisions about how best to represent his client." Hendricks v. Calderon, 70 F.3d 1032, 1035 (9th Cir. 1995) (quoting Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994) (internal quotations omitted)). On the other hand, where an attorney has consciously decided not to conduct further investigation because of reasonable tactical decisions, his or her performance is not constitutionally deficient. See Siripongs, 133 F.3d at 734; Babbitt v. Calderon, 15 F.3d 1170, 1173 (9th Cir. 1998); Hensley v. Crist, 67 F.3d 181, 185 (9th Cir. 1995). "A decision not to investigate thus 'must be directly assessed for reasonableness in all circumstances.'" Wiggins, 539 U.S. at 533 (quoting Strickland, 466 U.S. at 691). See also Kimmelman, 477 U.S. at 385 (counsel "neither investigated, nor made a reasonable decision not to investigate"); Babbitt, 151 F.3d at ...

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