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Kenneth L. Pang v. James Shomig

January 17, 2012

KENNETH L. PANG, PETITIONER,
v.
JAMES SHOMIG, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Kenneth L. Pang, a state prisoner, proceeds pro se with a first amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue is the sufficiency of evidence supporting his conviction in the Butte County Superior Court, case number CM018940, for assault with a deadly weapon and an accompanying enhancement for street gang activity.

II. FACTUAL AND PROCEDURAL BACKGROUND

On April 12, 2003, Pang and several others were involved in an altercation in a 7-Eleven parking lot in Chico. Evidence at trial showed that Pang stabbed Tyson Luttenbacher once in the abdomen and fled. Police apprehended Pang a few blocks from the scene and recovered the knife used to stab Luttenbacher.

A jury found Pang guilty of assault with a deadly weapon with enhancements for using a deadly weapon, personally inflicting great bodily injury, and committing the offense for the benefit of a street gang. For this and other unrelated charged offenses not at issue here,*fn1 the court sentenced him to an aggregate term of 17 years and eight months in state prison. In an unpublished opinion on appeal, the California Court of Appeal, Third District, modified the judgment to strike the enhancement for use of a deadly weapon but otherwise affirmed the convictions and sentence.*fn2 See People v. Pang, No. C047579, 2008 WL 3893035 (Cal. Ct. App. 3rd Dist. 2008). The California Supreme Court denied a petition for review.

III. GROUNDS FOR RELIEF

Pang claims that insufficient evidence at trial supported (A) his assault conviction; and (B) the accompanying enhancement for street gang activity.

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS

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 the AEDPA, federal habeas corpus relief is also precluded 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).

This court looks to the last reasoned state court decision to determine 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. The state court's factual findings are presumed correct if not rebutted with clear and convincing evidence. 28 U.S.C. ยง 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden ...


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