Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hoang v. Unknown

United States District Court, C.D. California

March 24, 2017

HUNG LINH HOANG, Petitioner,
v.
UNKNOWN, Respondent.

          ORDER DISMISSING PETITION AS SUCCESSIVE

          R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE

         On March 15, 2017, Hung Linh Hoang (“Petitioner”) filed in the Eastern District of California a letter the Court construes as a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. (Dkt. 1.) The Petition was transferred to this Court on March 20, 2017. (Dkt. 3.) The Petition is the second habeas corpus petition that Petitioner has filed in this Court stemming from his 2004 state court conviction and sentence for attempted murder and active participation in a criminal street gang in Orange County Superior Court case no. 03WF1095. See Hoang v. Gonzalez, CV 10-01588-RGK-RT (2010).

         Under Rule 4 of the Rules Governing Section 2254 Cases in the United States district Courts, a habeas petition filed by a prisoner in state custody “must” be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court[.]” For the reasons set forth below, the Petition must be dismissed without prejudice as a second or successive petition pursuant to 28 U.S.C. § 2244(b).

         I.

         BACKGROUND

         A. State Court Proceedings[1]

         In late 2004, a jury convicted Petitioner of street terrorism and of willful, deliberate and premeditated attempted murder committed for the benefit of, at the direction of, and in association with a criminal street gang. People v. Hoang, case no. G034779, 2006 WL 1124673, at *1 (Cal.App. 4th. 2006).

         Petitioner appealed, arguing prosecutorial misconduct and that his attempted murder offense was a lesser included offense of street terrorism. Id. The California Court of Appeal affirmed Petitioner's conviction on April 28, 2006. Id. The California Supreme Court denied further direct review on July 16, 2006. People v. Hoang, case no. S143982.

         On September 8, 2015, Petitioner, represented by counsel, filed a state habeas corpus petition in the California Court of Appeal. He argued that his 2004 conviction for active participation in a criminal street gang should be overturned in light of People v. Rodriquez, 55 Cal.4th 1125 (2012), a California Supreme Court case holding that the gang participation statute applies only when the defendant acts in concert with other gang members to commit a felony, and not when he acts alone. People v. Hoang, case no. G052501, 2016 WL 747065, at *1 (Cal.App. 4th 2016) (“2016 State Habeas Case”). The California Court of Appeal agreed, finding that “in the absence of evidence any of [Petitioner's] fellow gang members participated in the attempted murder, he did not violate the statute under which he was convicted.” Id. The Court of Appeal vacated the criminal gang participation conviction and directed the trial court to amend the abstract of judgment accordingly. Id. at *5.

         B. Prior Federal Habeas Petitions[2]

         On October 19, 2010, Petitioner filed his first section 2254 petition in this Court. Hoang v. Gonzalez, CV 10-01588-RGK-RT. In that petition, Petitioner challenged his 2004 attempted murder and street terrorism conviction and sentence, arguing ineffective assistance of counsel, violation of the double jeopardy clause, and prosecutorial misconduct. (Id. at Dkt. 1.) On January 28, 2011, judgment was entered denying the Petition as untimely and dismissing the petition with prejudice. (Id. at Dkt. 13.)

         C. The Instant Petition

         The instant Petition consists of a one-page letter to the Court, along with an attached copy of the California Court of Appeal's 2016 opinion granting Petitioner's state habeas petition. (Dkt. 1.) In his letter, Petitioner claims that the Court of Appeal did not “hear the other two grounds for issuance of a new trial.”[3]He claims that he intended to also challenge his attempted murder conviction in that state petition, but that “[his] attorney had refused to file the grounds.” (Id. at 1.) He also claims that the grounds “are certainly admissible for equitable tolling due to the new discovery of such evidence.” (Id.) Petitioner does not include in his Petition the two “other grounds” he wished to raise in state court. He requests that this Court “please let him know the steps to take or appoint an attorney to help.”[4](Id.)

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.