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Sophear Om v. G.D. Lewis

March 19, 2012

SOPHEAR OM, PETITIONER,
v.
G.D. LEWIS, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

I. INTRODUCTION

Sophear Om, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. At issue are his 2007 convictions in San Joaquin County, case number SF10104A.

II. FACTUAL AND PROCEDURAL BACKGROUND

On July 19, 2006, Om, a member of the Tiny Rascal Gang ("TRG"), approached the victim and made gang comments. Om shot the victim with a semi-automatic handgun and struck the victim's head with the gun. The victim survived but suffered serious injuries. At the preliminary hearing on September 6, 2006, Om made threatening gestures and comments toward the victim.

For these two incidents, a jury convicted Om of premeditated attempted murder, assault with a semiautomatic firearm, two counts of active gang participation, possession by a felon of a firearm, and dissuading a victim. The jury found the shooting was for the benefit of a gang and that Om personally used, discharged and caused great bodily injury with a firearm. Om admitted that he had incurred a prior serious felony conviction. The trial court sentenced him to an aggregate term of 73 years to life.

On appeal, the California Court of Appeal, Third District, affirmed the convictions but found an error of state law in the sentence. See People v. Om, No. C057184, 2009 WL 1076884 (Cal. App.3d April 22, 2009). As modified, Om's aggregate sentence is 16 months plus life, plus an additional sentence of 39 years to life. A petition for review to the California Supreme Court was denied.

III. GROUNDS FOR RELIEF

Incorporating his state appellate brief into his federal petition, Om claims the trial court erred in violation of California law, the Sixth Amendment, and federal due process when it denied defense counsel's petition to release confidential juror information to enable the defense to develop and file a motion for new trial.*fn1

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. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 25 (2002).

V. ANALYSIS OF THE CLAIM

A. Additional Background*fn2

On Thursday, August 2, 2007, a gang expert testified at trial that TRG "is the largest Asian criminal street gang in the nation," and has ...


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