United States District Court, S.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE REGARDING PETITION FOR WRIT OF HABEAS CORPUS
ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE
Report and Recommendation is submitted to the Honorable
William Q. Hayes, United States District Judge, pursuant to
28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(d) of
the United States District Court for the Southern District of
September 9, 2016, Petitioner Erik Hung Le
(“Petitioner” or “Le”), a state
prisoner proceeding pro se, filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF
No. 1 (“Pet.”).) Petitioner challenges his
convictions in San Diego Superior Court, Case No. SCD212126,
for attempted willful, deliberate, and premeditated murder,
discharging a firearm from a motor vehicle, and assault with
a semi-automatic firearm. (Id.) Petitioner raises
four grounds for relief in the Petition he has filed in this
February 7, 2017, Respondent M.E. Spearman, Warden
(“Respondent”), filed an Answer and Notice of
Lodgment. (ECF Nos. 8, 9.) Petitioner did not file a
thorough review of the pleadings and all supporting
documents, the Court RECOMMENDS that the
Petition be DENIED.
March 27, 2009, the San Diego County District Attorney filed
an information charging Petitioner and co-defendant Down
George Yang (“Yang”) with murder (count 1, Penal
§ 187(a)); attempted willful, deliberate and
premeditated murder (count 2, Penal Code §§ 664,
187(a)); discharging a firearm from a motor vehicle (count 3,
Penal Code § 12034(d)); and assault with a
semi-automatic firearm (counts 4 & 5, Penal Code §
245(b)) in Superior Court of California, County of San Diego,
Central Division, Case No. SCD212126. (ECF No. 9-37 at
24-28.) As to all counts, it was alleged that Petitioner and
Yang committed the crime for the benefit of a criminal street
gang (Penal Code § 186.22(b)). (Id.) As to
counts 1, 2, and 3, it was alleged that Petitioner and Yang
were principals in the offense and that during its
commission, at least one principal used a firearm (Penal Code
§ 12022.53(d), (e)). (Id.) Finally, as to
counts 4 and 5, it was alleged that Yang personally used a
firearm (Penal Code § 12022.5(a)(1)). (Id.)
by jury was held beginning on or about January 19, 2010.
(See ECF No. 9-43 at 41-42.) On February 19, 2010,
the jury found Petitioner and Yang guilty of all charged
counts and found that all alleged enhancements were true.
(See ECF No. 9-1 at 2; ECF No. 9-45 at 16-27.) On
May 7, 2010, the trial court sentenced Petitioner to an
indeterminate term of 96 years to life. (See ECF No.
9-1 at 2; ECF No. 9-41 at 199-02; ECF No. 9-36 at 1-46.) That
same day, the court sentenced Yang to an indeterminate term
of 101 years to life. (See ECF No. 9-1 at 2; ECF No.
9-41 at 195-98; ECF No. 9-36 at 47-78.)
direct appeal, Petitioner raised several grounds for relief,
including the four claims being raised by him herein.
(See ECF No. 9-3 at 39 to ECF No. 9-4 at 22.)
April 27, 2012, the Court of Appeal affirmed the judgment of
the Superior Court in a partially published opinion. (ECF No.
9-1; see also ECF No. 9-12 at 23-25.) Petitioner,
Yang, and the People petitioned for review. (ECF No. 9-4 at
31 to ECF No. 9-12 at 26.) Petitioner raised, inter
alia, the same claims he is raising herein. (ECF No. 9-7
at 3-81.) On July 25, 2012, the California Supreme Court
denied the petitions filed by Petitioner and Yang without
citation or comment. See People v. Le, 282 P.3d 173
(2012). On June 15, 2015, the California Supreme Court
affirmed the judgment. See People v. Le, 61 Cal.4th
416 (2015). Petitioner did not file any collateral challenges
in state court. (See Pet. at 3.)
OF THE EVIDENCE PRESENTED AT TRIAL
Court has independently reviewed the state court record.
See Nasby v. McDaniel, 853 F.3d 1049, 1052-54 (9th
Cir. 2017) (citing Jones v. Wood, 114 F.3d 1002,
1008 (9th Cir. 1997)) (finding that “meaningful
collateral review of the state court's adjudication of
petitioner's claims requires an ‘independent'
assessment of the basis for the state court's
decision.”). Based on its independent review of the
record, the Court adopts the following factual summary from
the “Factual Background” section of the partially
published California Court of Appeal opinion in People v.
Le, et al., Case No. D057392 (Cal.Ct.App. April
27, 2012) as a fair and accurate summary of the evidence
presented at trial:
In 2002 Le and [Down George Yang (Yang)] were members of the
Tiny Oriental Crips (TOC), a criminal street gang that
claimed as its territory Linda Vista and parts of Mira Mesa,
communities within the City of San Diego. TOC territory
included the Han Kuk Pool Hall (pool hall) located on Convoy
Street then owned by Don Su (Don) and his wife Kyung Su
(Kyung) (together, the Sus). The Sus had owned the pool hall
for about three months at the time of shooting. Rivals of TOC
included Asian Crips (AC) and the Tiny Rascal Gang (TRG). The
pool hall was managed by the Sus' nephew, Min Su (Min).
On the night of June 14, 2002, TOC member Kane Bo
Pathammavong and his friends Gerry Ian Sulit, Phouthasanoe
Volvo Syrattanakoun, Sherri Pak and Rei Morikawa were
drinking in a grassy area near the pool hall. During the
evening, Le joined the group. At some later point, Le spotted
AC members near the pool hall and yelled out a gang
Le left to make a phone call to Yang. When Le returned, he
told Pathammavong and Syrattanakoun to leave with their
friends. Pathammavong and his group left and went to a tea
house located in the same shopping center as the pool hall.
Octavius Soulivong (Octavius) was at the house of his twin
brother Orlando, along with Yang and several other TOC
members. Around midnight, Orlando received a telephone call.
Orlando claimed the caller was Le. After talking to Le,
Orlando handed the phone to Yang, who walked outside to talk.
When Yang returned, he told the group that he and Le were
going to the pool hall. About 15 minutes later, Le arrived at
the house. Le told the group there were some AC members at
the pool hall and asked whether anyone had a
“strap” (e.g., slang for gun). Le left the house
shortly thereafter with Yang and John Vue.
Pathammavong and his friends were at the tea house when Le
returned. Le said he needed to take care of something and
told Pathammavong and his group to stay put. Another car
pulled up and parked next to Le's car. Le spoke to a
passenger in that car, returned to Pathammavong and his group
and told them not to follow. Both cars then left the parking
Pathammavong did not take Le's advice. Thinking there
might be a fight or shooting because of the “tension,
” Pathammavong and Sulit began driving to the pool hall
in Pathammavong's car. On the way they heard gunshots and
decided to return to the tea house.
At the time of the shooting, Don and his friend Jinwon Lee
were outside the pool hall. TRG members Michael Lieng and
Nikhom Somsamout arrived in the parking lot near the pool
hall. A car with two people inside pulled into the alley near
the pool hall. Shots were fired from the car and then the car
sped away. One of the bullets struck Don in the neck area.
Another struck Lieng in the right elbow and a third bullet
struck Somsamout in the right foot. Don died three days later
from the gunshot wound.
After the shooting, Le and Yang returned to Orlando's
house where, according to Octavius, they spoke about the
shooting. Le claimed he was the driver and Yang the shooter.
Le also claimed Yang “shot the whole clip” from
the rear left seat of the car driven by Le; Yang shot at
people in front of the pool hall and kept shooting without
aiming. Le referred to AC members as “ass crack,
” and bragged that he and Yang shot at them. During
Le's recounting of the shooting, Yang interjected and
corrected some of Le's statements about the shooting.
TOC members subsequently learned that the shots fired on the
night of June 14 had struck and killed Don and not AC
members. TOC members, including Yang, agreed not to discuss
the shooting any more.
Police investigators recovered a beer bottle in the alley on
the south side of the pool hall; a fingerprint matched to Le
was found on the neck of the bottle. Police also found
several cartridge casings consistent with a 9 millimeter
Luger semi-automatic. Because police did not have a murder
weapon, a casing was placed into a computer database matching
bullets to weapons.
During a search warrant executed at Yang's home, police
found under a bed an empty box of 9 millimeter casings along
with a gun-cleaning kit. Yang's fingerprints were on the
gun box and an instruction manual for the gun.
In early 2005, Deputy Richard Sanchez of the San Diego County
Sheriff's Department stopped a car for speeding. The
driver was Daniel Manalo, a member of the
“B-Down” criminal street gang. During a search of
the vehicle, Deputy Sanchez found a 9 millimeter Jennings
Bryco semiautomatic handgun with an illegible serial number.
Manalo claimed he bought the gun a short time earlier from an
individual in Del Mar.
Criminalist Mary Jane Flowers of the San Diego Police
Department found the gun had a serial number
“145266” with the “” being either a 3
or a 5. Flowers test-fired the gun and placed the results in
the computer database. A match came back to the pool hall
shooting and four other shootings.
Investigators traced the gun to Yang's older brother,
Meng. Meng told police he purchased the gun for Yang from a
federally-licensed firearms dealer at a gun show in October
2001. Although Meng filled out the paperwork to acquire the
gun, Yang paid for the weapon and accompanied Meng to pick up
the gun after the waiting period. Meng told police he gave
Yang the gun that day and never saw it again.
Meng identified the box of ammunition recovered during the
search warrant as the box that came with the gun. When a
detective asked Meng about the gun, Meng said he bought it
for Yang and did not know its whereabouts. Meng then blurted
out, “Was it used in a murder or something?” In
August 2007 police obtained authorization to wiretap
Yang's phone. The record includes myriad incriminating
statements involving Yang and the shooting[.]
(ECF No. 9-10 at 10-14.)
prosecutor violated Brady v. Maryland, 373 U.S. 83
(1963) by suppressing an e-mail that a defense witness, Tina
Ngyuen, sent to the prosecutor's investigator. (Pet. at
prosecutor committed misconduct by misadvising the trial
court that defense counsel elicited testimony that the
prosecutor actually had elicited, and by procuring a curative
instruction based on the misrepresentation. (Pet. at 7.)
trial court violated Petitioner's right to due process by
giving the requested curative instruction. (Pet. at 8.)
Trial defense counsel provided ineffective assistance by
failing to request a jury instruction on third-party
culpability. (Pet. at 9.)
28 U.S.C. § 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”):
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the 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
28 U.S.C. § 2254(d)(1)-(2).
the AEDPA, the “clearly established Federal law”
that controls federal habeas review of state court decisions
consists of holdings (as opposed to dicta) of Supreme Court
decisions “as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362,
412 (2000); see also Carey v. Musladin, 549 U.S. 70,
a particular state court decision may be both “contrary
to” and “an unreasonable application of”
controlling Supreme Court law, the two phrases have distinct
meanings. See Williams, 529 U.S. at 391, 404-05,
413. A state court decision is “contrary to”
clearly established federal law if the decision either
applies a rule that contradicts the governing Supreme Court
law, or reaches a result that differs from the result the
Supreme Court reached on “materially
indistinguishable” facts. See Early v. Packer,
537 U.S. 3, 8 (2002) (per curiam); Williams, 529
U.S. at 405-06. When a state court decision adjudicating a
claim is contrary to controlling Supreme Court law, the
reviewing federal habeas court is “unconstrained by
§ 2254(d)(1).” See Williams, 529 U.S. at
406. However, the state court need not cite or even be aware
of the controlling Supreme Court cases, “so long as
neither the reasoning nor the result of the state-court
decision contradicts them.” See Early, 537
U.S. at 8.
court decisions that are not “contrary to”
Supreme Court law may be set aside on federal habeas review
only “if they are not merely erroneous, but ‘an
unreasonable application' of clearly established
federal law, or based on ‘an unreasonable
determination of the facts.'” See Early,
537 U.S. at 11 (citing 28 U.S.C. § 2254(d)) (emphasis
added). A state-court decision that correctly identified the
governing legal rule may be rejected if it unreasonably
applied the rule to the facts of a particular case. See
Williams, 529 U.S. at 406-10, 413 (e.g., the
rejected decision may state the Strickland standard
correctly but apply it unreasonably); Woodford v.
Visciotti, 537 U.S. 19, 24-27 (2002) (per curiam).
However, to obtain federal habeas relief for such an
“unreasonable application, ” a petitioner must
show that the state court's application of Supreme Court
law was “objectively unreasonable.”
Visciotti, 537 U.S. at 24-27; Williams, 529
U.S. at 413. An “unreasonable application” is
different from an erroneous or incorrect one. See
Williams, 529 U.S. at 409-10; Visciotti, 537
U.S. at 25; Bell v. Cone, 535 U.S. 685, 699 (2002).
Moreover, review of state court decisions under §
2254(d)(1) “is limited to the record that was before
the state court that adjudicated the claim on the
merits.” See Cullen v. Pinholster, 563 U.S.
170, 181-82 (2011).
Supreme Court explained in Harrington v. Richter,
562 U.S. 86 (2011):
Under § 2254(d), a habeas court must determine what
arguments or theories supported or, as here [i.e.,
where there was no reasoned state-court decision], could have
supported, the state court's decision; and then it must
ask whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the
holding in a prior decision of this Court.
Id. at 102.
“[a]s a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state
court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” See
Id. at 103.
claims encompassing Grounds 1-4 of the Petition were raised
by Petitioner on direct appeal and denied by the Court of
Appeal in a reasoned decision. Those same claims encompassing
Grounds 1-4 were then presented in Petitioner's Petition
for Review, which the California Supreme Court denied.
Accordingly, for purposes of applying the AEDPA standard of
review to Grounds 1-4 herein, the Court of Appeal decision on
direct appeal constitutes the relevant state court
adjudication on the merits. See Berghuis v.
Thompkins, 560 U.S. 370, 380 (2010) (where state supreme
court denied discretionary review of decision on direct
appeal, the decision on direct appeal is the relevant
state-court decision for purposes of the AEDPA standard of
Habeas relief is not warranted with respect to Ground 1
of the Petition.
Ground 1 of the Petition, Petitioner claims the prosecutor
violated Brady by failing to disclose an August 6,
2008 email sent by Tina Nguyen to District Attorney
Investigator (“D.A.I.”) Daio Soliven, which
summarized her knowledge of Octavius
Soulivong's credibility during the previous ten years,
and explained that ...