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Le v. Spearman

United States District Court, S.D. California

May 21, 2018

ERIK HUNG LE, Petitioner,
v.
M.E. SPEARMAN, Warden, Respondent.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE REGARDING PETITION FOR WRIT OF HABEAS CORPUS

          HON. ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE

         This 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 California.

         PROCEEDINGS

         On 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.”).)[1] 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 Court.

         On 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 Traverse.

         After a thorough review of the pleadings and all supporting documents, the Court RECOMMENDS that the Petition be DENIED.

         BACKGROUND

         On March 27, 2009, the San Diego County District Attorney filed an information charging Petitioner and co-defendant Down George Yang (“Yang”)[2] with murder (count 1, Penal Code[3] § 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.)

         A trial 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.)

         On 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.)

         On 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.)

         SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL

         The 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[4] 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 challenge.
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 lot.
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[.][5]

(ECF No. 9-10 at 10-14.)

         PETITIONER'S CLAIMS HEREIN

         1. The 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 6.)

         2. The 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.)

         3. The trial court violated Petitioner's right to due process by giving the requested curative instruction. (Pet. at 8.)

         4. Trial defense counsel provided ineffective assistance by failing to request a jury instruction on third-party culpability. (Pet. at 9.)

         STANDARD OF REVIEW

         Under 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 proceeding.

28 U.S.C. § 2254(d)(1)-(2).

         Under 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, 74 (2006).

         Although 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.

         State 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).

         As the 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.

         Furthermore, “[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.

         Here, 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 review).

         DISCUSSION

         A. Habeas relief is not warranted with respect to Ground 1 of the Petition.

         In 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[6] credibility during the previous ten years, and explained that ...


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