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Pham v. McEwen

United States District Court, Ninth Circuit

June 6, 2013

DUY PHAM Petitioner,
LELAND McEWEN, Warden, Respondent.


WILLIAM Q. HAYES, District Judge.


Duy Pham (hereinafter "Duy" or "Petitioner"), a state prisoner represented by counsel, has filed a Second Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his San Diego County Superior Court conviction in case number S114992 for conspiracy to commit murder (Cal. Penal Code §§182, 187(a)), attempted murder (Cal. Penal Code §§ 664, 187), and of being a felon in possession of a firearm (Cal. Penal Code §12021(a)).[1] ("Second Amended Petition" or "SAP" at 1-2) [ECF No. 127.]) As to the conspiracy and attempted murder charges, the jury also found true that Petitioner personally used a firearm (Penal Code §12022.5(a)) and the attempted murder charge also included an enhancement for great bodily injury (Cal. Penal Code §12022.7(a).) ( Id. ) Petitioner was sentenced to a twenty-five years to life indeterminate prison term, plus an additional ten-year prison term for the armed enhancement. ( Id. at 2.)

Petitioner contends that (1) his Sixth and Fourteenth Amendment rights were violated because his trial attorney provided ineffective assistance of counsel for failing to adequately investigate the criminal background of the primary prosecution witness, (2) the prosecutor committed misconduct when he failed to disclose that the chief witness for the prosecution committed perjury, in violation of Pham's Fifth and Fourteenth Amendment rights, (3) his federal due process rights were violated because his defense was unduly restricted by the exclusion of critical impeachment evidence of the prosecution's main witness, (4) the jury was instructed improperly on aiding and abetting a conspiracy, (5) his Sixth and Fourteenth Amendment rights were violated by the admission of hearsay testimony not made during the course and scope of a conspiracy, (6) his federal constitutional rights to due process were violated because favorable, material evidence was withheld from him which would have substantially impeached a key witness, in violation of Brady v. Maryland, 373. U.S. 83 (1963), [2] and (7) his rights to due process and a fair trial were violated when the prosecutor presented false testimony from two key witnesses concerning favors given to the witnesses in exchange for their testimony, in violation of Napue v. Illinois, 360 U.S. 264 (1959).[3] ("Second Amended Petition" or "SAP" at 5-10.) Petitioner further requests discovery and an evidentiary hearing in support of claims six and seven. (Traverse 11-17.)

The Court has considered the Second Amended Petition, Respondents' Answer and Memorandum of Points and Authorities in Support thereof (hereinafter "Respt's Mem."), Petitioner's Traverse and all supporting documents submitted by the parties. The Court has also considered the requests for discovery and an evidentiary hearing. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court DENIES the Petition, DENIES the request for discovery, DENIES the request for an evidentiary hearing and further, GRANTS in part a Certificate of Appealability.


This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1)(West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). The facts as found by the California Court of Appeal are as follows:

[Footnote 3] We observe that the trial of this matter took place amidst a continuing stream of threats, apparently emanating from the two defendants, and extending to the motion for new trial. The trial court denied pretrial requests for discovery of witness addresses and phone numbers, because witnesses feared they would be killed in retaliation for their testifying. At trial, several witnesses confirmed their fear of testifying against the defendants. There was also evidence of an attempt to arrange either a beating or a killing of Dong, a roommate of Duy's and a key witness against the defendants, while he was in custody.
A. Synopsis - Andy Pham, Carlos Go, Khanh and Duy [Pham]
Carlos Go owned Asian markets. He had been assisted in getting into the business by another man who operated several Asian markets, Andy Pham, Khanh's older brother. At one point Go leased a defunct Marshall's department store in Mira Mesa, across the street from one of Andy Pham's Asian markets, to operate as an Asian market. Andy Pham did not want Go to open a competing Asian market across the street, so his brother, Khanh, purchased a nine millimeter semiautomatic and hired Duy [Pham] to kill Go. Khanh, using his distinctive gray Toyota Supra, then drove Duy to Go's home on the evening of July 27, 1994. Duy fired many shots at Go, hitting him several times, but failed to kill Go because of the presence of an object (an address book) in Go's breast pocket, which stopped a bullet. Duy then fled with Khanh in the gray Supra, which Duy later received as partial payment. [FN 4]
[Footnote 4] Andy Pham himself was shot October 1, 1995 (six months before the trial herein) and died November 7, 1995. It appears that at some time before his death Andy Pham was the subject of an FBI investigation.
B. Before The Shooting - Go, Andy Pham, and Khanh
In 1989, Go bought his first store, from Andy Pham. Between 1989-1994, Andy Pham helped Go expand his business to several stores. In early 1994, however, Go acquired a lease for an Asian market on Mira Mesa Boulevard in San Diego, directly across the street from one of Andy Pham's businesses, the "79 Supermarket." Andy Pham met with Go and asked him not to open the store at this location because it would hurt Andy Pham's business. Go felt that the meeting was civil and professional, but Andy Pham was angry because Go still intended to open the store and construct his market.
About the time Go began to build his market, Khanh spoke to people who worked for and knew Go, including Lam Van Do and his brother, Ninh Van Do, and asked for Go's home address. Khanh said he wanted to have Go, the "soi" [footnote omitted], shot because he wanted to open a business directly competing with Khanh's brother's market. Ninh Van Do had worked for both Andy Pham and Go, and called Go to warn him to be careful.
C. Khanh, Thaboua and the Nine Millimeter Gun in Santa Ana
In the next few weeks, Khanh drove to Los Angeles and Santa Ana, looking for someone to hire to kill Go. On these trips, Khanh often brought with him Ms. Khamla Thaboua, who moved in with Khanh for the three weeks in which Khanh's wife traveled to Vietnam. On one trip to Santa Ana, Khanh rejected the services of a black man who had wanted $3, 000 to $5, 000 for a killing, believing the black man was "asking too much" and could not be trusted.
Thaboua stated Andy Pham gave Khanh money to go to Santa Ana to find someone to beat up or kill Go. [Footnote omitted.] Once, at his brother's market, Khanh pointed across the street and asked if Thaboua "knew somebody that can kill for money."
On another trip to Santa Ana with Thaboua, Khanh bought a nine millimeter semiautomatic gun from a Vietnamese man. Thaboua also heard Khanh repeatedly ask about people to kill Go. Khanh finally hired Duy, promising to pay him $3, 000 and give him Khanh's gray Toyota Supra. He introduced Duy to Thaboua, and told her they (Khanh and Duy) were going to "have a good business together."
D. Duy, Dong and Giang
Duy shared an apartment with Chuong Dong, whose girlfriend, Thuy Giang, had gone to high school with Duy, and also spent time at the apartment. Duy told Dong someone wanted to pay him $3, 000 for a killing, and Duy was going to meet the victim at a store and shoot him. Dong and Giang tried to talk Duy out of becoming involved. At least once, Khanh came to the apartment looking for Duy, but Duy hid in his bedroom and asked Dong to lie and tell Khanh he was not home. On one occasion, Khanh also told Dong that Duy was supposed to shoot someone for him, Khanh.
E. The Evening of the Shooting
Around 9 or 10 p.m. on July 27, 1994, Duy was seen by Dong and Giang cleaning a gun similar to Khanh's nine millimeter gun. Soon after, Duy left the apartment with Khanh, looking for Go. Duy wore jeans and a top with a light-colored hood. Khanh and Duy sought Go at one of his stores, which was closed, but then followed Go to his home.
F. The Shooting
Around 10:30 p.m. on the evening of July 27, 1994, Go returned to his home at 517 Kiley Road in Chula Vista. Go parked outside the garage and opened the door with an automatic opener. In the garage, Go heard shots, which he at first thought were firecrackers. Go then turned around and saw a man firing at him. Go could not see the man's face, but the man wore a yellow jacket with a hood.
Go picked up a baby car seat to throw at the shooter, but he fell to the floor by the door leading into the house, and then Go realized he had been shot in the shoulder, arm and leg. The shooter ran out from the garage and into the passenger side of a waiting gray foreign sports car, which then drove off. Go's neighbor, Steve Paulin looked out from his bedroom window when he heard the shots. Paulin saw a stocky Oriental male with a white ball cap and what appeared to be a long-sleeved pullover sweater go to the gray car.
Paulin also identified a photograph of Khanh's gray Toyota Supra as being "just like" the car the Oriental male had jumped into to make his getaway. The car's lights were off as it drove away.
Go's brother had been inside the house during the shooting. He went outside into the garage and found Go on the floor. Another neighbor of Go's, Coronado Police Officer Keith James, who came to the scene after hearing seven or eight gunshots, administered first aid to Go until the police and ambulance arrived.
G. After The Shooting
Once back at the apartment, Duy exitedly exclaimed, "I did it, I did it" and "I killed him." He then told Dong and Giang that Khanh paid him to shoot Go, that Khanh drove him to Go's home in Khanh's Supra, and that he (Duy) shot Go. Duy discussed the details of the shooting, including the facts he had fired multiple shots, Go had picked up a chair to throw at him, and the gun had jammed as he pointed it at Go's head. Duy said "Fuck, I shoot him six, seven times you know, but he keep on screaming, you know."
Two days later, Duy and Dong went to Altadena, where Duy met Khanh. Duy and Khanh talked while Dong sat inside a car. Duy later told Dong he only got half of the money promised to him, because Go had not died. Duy began driving Khanh's Supra. When Duy was arrested, the Supra was parked at his house, and he had the keys to it.
Dong wrapped the gun inside newspaper and hid it inside a stove to help Duy. Dong also read newspaper articles about the Go shooting, and asked if Duy had been involved, and Duy confirmed he had. Duy said the sweatshirt he wore during the shooting was "haunting him." Dong and Giang got rid of the shirt for Duy by throwing it out of a car window.
Trying to help Duy get rid of the gun, Dong spoke with Thanh Nguyen about trading the gun for another. [FN 7] However, Duy believed Dong had discussed the shooting of Go with Nguyen, and then Duy threatened to kill Dong. Dong moved out of the apartment he had with Duy, and moved in with Nguyen's brother. Duy continued to threaten Dong even after he moved out.
[Footnote 7] Nguyen, testifying for Duy, confirmed that Dong brought him the gun, but claimed that when Dong brought him the gun used to shoot Go, (a) he was driving a gray Toyota Supra and (b) after admitting the gun was "dirty, " Dong nodded his head in response to the question "Did you do it." Nguyen also said he never saw Duy Pham with any gun.
However, Nguyen also stated, in a tape recored interview with the district attorney's investigator Robert Marquez in April 1995, that Dong had brought him the gun and told him "they" shot somebody with it. Duy later told Nguyen that he had been involved in the Chula Vista shooting, having been driven to the location by a third person, not Dong.
The tape, edited to remove references to Khanh, was played for the jury. Nguyen, however, explained that his taped statements to Marquez had all been lies, which Marquez had forced him to tell, and that Marquez had prompted him on whom to identify as having been involved in the shooting. As noted earlier (fn. 3, ante), the trial was redolent with the witnesses' fear of the defendants.
Dong and Nguyen later took the gun to Eric Angeles. In mid-August, Angeles was arrested, and during a probation search, the police found the gun (along with several others). No identifiable fingerprints were obtained from the gun. At Go's home after the shooting, the police found eight nine millimeter casings and two lead bullets from the garage. Another witness testified that ballistics markings indicated the casings recovered were fired by the Angeles gun.
H. Things Fall Apart
Dong was arrested August 25, 1994, because of three felony warrants. He told the police he feared his life was in danger and his ex-roommate wanted to kill him. Dong cooperated with the police, and implicated both Khanh and Duy in the shooting of Go.
Khanh and his girlfriend Thaboua had a falling out over a car she had bought for $8, 000 from Khanh, but had never received. Thaboua was also angry about other girlfriends Khanh had. Thaboua then went to the police. Both Khanh and Duy later threatened Thaboua: Duy told her, "If you tell the cops anything about Khanh, you [sic] going to get killed."
Go, in consultation with his family, eventually decided not to open the new Mira Mesa market.
Duy testified and denied having had anything to do with the shooting of Go, and also denied having had a gun or bullets, also pointing out that he was subject to parole searches, and thus (inferentially) would be unlikely to have contraband in his possession.
Khanh testified, and he denied having bought a gun in Santa Ana, and denied having paid Duy to shoot Go or having ever discussed business with his brother Andy.
Essentially, Duy's argument to the jury was that Dong, a main prosecution witness, had actually been the shooter, perhaps working with one Quang. Khanh also argued that Dong had been the shooter, while he, Khanh, had not been the one who drove the shooter.

(Lodgment No. 1 at 3-10.)


On October 23, 1995, the San Diego District Attorney's office filed an Information charging Duy Pham with one count of conspiracy to commit murder (a violation of Penal Code sections 182 and 187(a)); one count of attempted murder (a violation of Penal Code sections 664 and187(a)); and one count of being a felon in possession of a firearm (a violation of Penal Code section 12021(a)). ( See Lodgment No. 7, vol. 1 at 1-4.) The information further alleged as to counts one and two that during the crimes Petitioner personally used a firearm (a violation of Penal Code section 12022.5(a)). ( Id. at 3) In addition, count two included an enhancement for infliction of great bodily injury (a violation of Penal Code section 12022.7(a)). ( Id. ) On May 10, 1996, a jury found Petitioner guilty of all charges. (Lodgment No. 7, vol. 3 at 461.)

On December 9, 1996, the California Superior Court heard and denied Petitioner's motion for new trial. (Lodgment No. 8 at 1589-1605.) The trial court then sentenced Petitioner to an indeterminate term of 25 years to life in prison, plus ten years for being a felon in possession of a firearm. (Lodgment No. 7 at 461.) Petitioner appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One which affirmed the judgment on July 24, 1998. (Lodgment No. 1.)

On August 31, 1998, Petitioner filed a Petition for Review in the California Supreme Court. (Lodgment No. 2.) The California Supreme Court denied the petition on October 14, 1998. (Lodgment No. 3.)

Petitioner filed a state habeas corpus petition in the California Supreme Court on September 10, 2001, which was amended on October 25, 2001. (Lodgment Nos. 4, 5.) The California Supreme Court denied the petition on May 1, 2002, with citations to In re Swain, 34 Cal.2d 300, 304 (1949), In re Duvall, 9 Cal.4th 464, 474 (1995), In re Waltreus, 62 Cal.2d 218 (1965) and In re Dixon, 41 Cal.2d 756 (1953). (Lodgment No. 6.)

On March 7, 2003, Petitioner filed his original federal habeas Petition, and on August 6, 2003, filed a First Amended Petition in this Court. [ECF Nos. 1, 21.] On November 21, 2006, this Court issued an order dismissing the First Amended Petition as being time-barred. [ECF No. 34.]

Petitioner filed a Rule 60(b) motion for relief from judgment on January 25, 2005 [ECF No. 49], and filed a notice of appeal on February 1, 2005. [ECF No. 47.] The Court denied Petitioner's motion for relief from judgment on February 8, 2005. [ECF No. 51.] On May 26, 2005, the Court of Appeals for the Ninth Circuit vacated this Court's Order dismissing the amended petition and returned the matter ...

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