Opinion
C 03-0127 CRB
July 31, 2003
MEMORANDUM AND ORDER
Now before the Court is Senh Duong's petition for a writ of habeas corpus. The petition arises out of petitioner's 1998 conviction for three counts of first degree murder, multiple murder special circumstance, and personal use of a firearm. After careful review and consideration of the papers submitted, the petition for writ of habeas corpus is DENIED.
I. BACKGROUND
A. Procedural History
Petitioner and seven codefendants were each charged with three counts of first-degree murder (Cal. Penal Code § 187), multiple murder special circumstance (Cal. Penal Code § 190.2(a)(3), and personal use of a firearm. (Cal. Penal Code § 12022.5(a)(1)). See Resp't's Mem. at 1. They were severed into two groups for trial; petitioner was tried first, along with codefendants Jefrey Subana ("Subana") and Quang Minh Tran ("Tran"). See id. at 2.
On May 29, 1998 a jury in the Santa Clara County Superior Court found petitioner guilty of three counts of first degree murder, found Subana and Tran each guilty of three counts of second degree murder, and found the multiple murder special circumstance and firearm-use allegations true for all three. See id. at 1-2. The trial court later vacated the multiple murder special circumstance finding for both codefendants, but not for petitioner. Id. at 2. On October 23, 1998, the trial court sentenced petitioner to state prison for three consecutive indeterminate terms of life without possibility of parole and a consecutive determinate term of 30 years. See Resp't's Mem. at 2; Cal. Penal Code § 1203.06(a)(1)(A) (sentencing guidelines).
Petitioner unsuccessfully appealed on several grounds stemming from conduct at his trial: burdening of his privilege against self-incrimination, denial of due process and fair trial rights by the trial court's improper admission of evidence, denial of due process and fair trial by the trial court's lack of proper jury instructions, and denial of due process because of lack of sufficient evidence to sustain his conviction. See People v. Tran, No. H012159, unpublished op. (Pet. Ex. A) [hereinafter Appellate Opinion]. The Supreme Court of California denied review. Resp't's Ex. K.
Petitioner subsequently sought and was denied habeas relief from the Santa Clara County Superior Court. Resp't's Exs. M, N. The state habeas petition maintained the same grounds as the direct appeal, and added two new grounds: denial of due process and fair trial rights by the prosecution's formal introduction of evidence after the jury had begun deliberating, and ineffective assistance of counsel for failure to raise this issue on direct appeal. Pet.'s Ex. C. Review was denied by the California Court of Appeal, and, on October 2, 2002, by the Supreme Court of California. Resp't's Ex. P, R.
Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. He maintains the same grounds as on his state habeas petition. Pet. at 7-19.
Per order filed on January 23, 2003, this Court found that the petition stated cognizable claims under section 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause. Petitioner has filed a traverse.
B. Trial Proceedings
Except where otherwise specified, the following factual summary derives from the state appellate review of petitioner's conviction. See Appellate Opinion at 2-4. Both parties are in substantial agreement with these facts for the purposes of the issues raised by this petition. See id. at 2, 11. 1-3; Pet. at 5.
1. Prosecution's Case in Chief
On March 11, 1995, past midnight, a group of individuals, not including petitioner but including codefendants Subana and Tran, was drinking at First Club, a night club in San Jose. Subana was a member of a gang called "Asian Boys," or "AB." Some but not all of the other individuals present were also members of AB, including a man named Cuong Do. Do denied being the leader of AB, but admitted that the younger gang members respected him. Do testified at trial that he and petitioner had been friends for five years, but that petitioner was not a member of AB. RT at 393.
Around 12:30 a.m., an Asian male wearing a mustard brown jacket and a baseball hat shot Do in the stomach and ran out of the club. Do was taken to the hospital and survived.
At trial, Do testified that while he did not actually see the shooter, he heard people identify "Loc," an individual whom Do had hit with a beer bottle two weeks earlier when Loc tried to pick up Do's girlfriend. Do also attributed the shooting to a conflict between AB and another gang with which he used to associate, called "Asians Kicking Ass," or "AKA."
After the shooting, a group including both petitioner and his two codefendants gathered at a residence. According to witness testimony, the group discussed revenge for Do's shooting. The shooter was identified as having a mustard-colored shirt. Firearms were acquired from the house. One witness testified that he thought petitioner had a .22-caliber gun.
After the gathering, petitioner, his two codefendants, and others left the house. One member of the group was paged and told that Do's shooter was at the May Diem Café. They gathered in the café's parking lot.
At about 1:45 a.m., when the café owner was about to close for the night, a man tried to enter. The owner told him the café was closed, and escorted him to the exit. The owner saw three men in the doorway, who then walked to the parking lot to join several other people.
Shortly thereafter, six men, including the men who had previously tried to enter, came into the café armed with five handguns and one shotgun. The owner recognized one of them as codefendant Tran, who had been at the café a number of times in the past. The six men entered the game room where there were four men playing video games, one of whom was wearing a mustard-colored jacket. The six intruders starting shooting into the game room, then fled the café. Three of the game room patrons died from gunshot wounds.
The café had two surveillance tapes: one in the main room and one in the parking lot. A witness identified petitioner in one of the tapes. The appellate court's factual summary does not explicitly indicate which tape, but it seems to have been the interior tape: in his closing argument, the prosecutor replayed the tape of the shooting itself, which occurred in the main room, and pointed out petitioner. See Appellate Opinion at 7.
Prosecution witness Long Ngo told police that petitioner later admitted to being present at the shooting, but claimed to have only fired into the air. RT at 2811-16.
2. Petitioner's Defense
Petitioner's defense emphasized the unreliability of prosecution witnesses, attempting to discredit their testimony. He also presented evidence concerning his own moral character.
Petitioner's counsel outlined this theory in his opening argument: "The foundation, the steel beams, the low [sic] bearing walls as to [the case against] Mr. Duong are going to be consisting of the statements of various witnesses . . . many of whom are liars, they were all intoxicated for the most part. They have testified inconsistently. They have lied." RT at 170. Counsel further argued that "the evidence in this case as to Mr. Duong is going to be that he was a twenty-year-old junior college student. . . . He had a reputation in the community for nonviolence or peacefulness. . . . He had absolutely no gang affiliations whatsoever." RT at 171-72. He also pointed to petitioner's Chinese ethnicity and lack of competency in Vietnamese as evidence that he was not associated with a gang. Id.
To support his contentions of good moral character, petitioner presented the testimony of Samuel Colon, whose family petitioner had befriended. Pet. at 6-7. He presented no other witnesses and did not take the stand in his own defense. Id.
II. DISCUSSION
Petitioner raises seven constitutional claims based on his trial proceedings. They fall into the following categories:1. denial of his right under Griffin v. California, 380 U.S. 609 (1965), to not have a burden placed on his Fifth Amendment right not to testify (Claim I);
2. denial of due process and fair trial rights by the admission of gang evidence (Claims II and III);
3. denial of due process and fair trial rights because of the trial court's failure to give proper jury instructions (Claim IV);
4. denial of due process because the conviction of first degree murder had insufficient evidence of the required mens rea (Claim V);
5. denial of due process and fair trial rights when the trial court permitted the formal submission of evidence during jury deliberation (Claim VI);
6. ineffective assistance of counsel due to failure to raise the above late submission issue on direct appeal (Claim VII).
A. Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court 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." Id. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254 (d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. See id at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
B. Griffin claims
1. Legal Standard
"Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt." United States v. Robinson, 485 U.S. 25, 32 (1988) (quotation omitted); accord Portuonado v. Agard, 529 U.S. 61, 69 (2000). A court must look at both the intent of a statement and its likely inference to determine whether it constitutes Griffin error: "The test we use to determine whether there is a Griffin violation is whether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify." United States v. Tam, 240 F.3d 797, 805 (9th Cir. 2001).
The right protected by Griffin applies only to comments on the defendant's personal silence, not to the general defense or lack thereof. "[A] comment on the failure of the defense as opposed to the defendant to counter or explain the testimony introduced is not an infringement on the defendant's Fifth Amendment privilege." United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995) (quotations omitted); see also United States v. Mavans, 17 F.3d 1174, 1185 (9th Cir. 1994) ("While a prosecutor may not draw attention to a defendant's silence, prosecutors are entitled to call attention to the defendant's failure to present exculpatory evidence more generally.").
2. Background
Prior to closing arguments, the court instructed the jury:
A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.
In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him No lack of testimony on defendant's part will make up for a failure of proof by the People as to support a finding against him on any such essential element.
TR at 1187. Petitioner points to three specific instances as evidence of the denial of his Griffin rights. The first occurred during the prosecutor's closing argument:
[PROSECUTOR]: After evidence, not just the videotape showing these three men and showing the actions, what happened, after two weeks of the prosecution case, witness after witness identifying them, describing the fresh wounds to the shoulders and whatnot, you had one day, yesterday, part of a day, what defense did you hear yesterday?
Well, maybe a better question is what reason or explanation did you ever hear or have you ever gotten any clue about as to why these three murderers shot to death three innocent people.
[TRAN'S COUNSEL]: Your Honor, excuse me. I want to place an objection on the record about our clients' failure to testify.
THE COURT: Noted.
[PROSECUTOR]: I'm not suggesting that any defendant has to testify. That is not the law.
You will get instructions — I'll go over them — that neither side has to produce all the evidence in this case. Certainly, a defendant does not have to even produce any evidence. He's entitled to rely on the state of the evidence, but a defendant may also certainly put on evidence. That's what I'm talking about.
[SUBANA'S COUNSEL]: I'm going to object. Griffen [sic] error.
[PETITIONER'S COUNSEL]: I would like the Court to admonish the jury to the extent he attempts to place a burden on the Defense. That's improper.
THE COURT: I already instructed the jury. The only burden they have is as to that one instruction.
The question is, do we have Griffen [sic] error? Close, but not there.
RT at 123 1-3 3. Shortly thereafter, following an attempt to discredit codefendant Subana's alibi evidence, the following exchange occurred:
[PROSECUTOR]: Mr. Duong called a nice man, Samuel Colon, said he played soccer with his son. You certainly haven't heard any evidence as to an alibi for Mr. Duong. No friends or family who were with him, nothing to excuse him, put him somewhere else other than the scene.
[PETITIONER'S COUNSEL]: I'm going to object. The Prosecutor's attempting to shirk the burden to the Defense and he should be admonished. That is clearly Griffen [sic] error.
[PROSECUTOR]: It's not Griffen [sic] error. Objection overruled.
RT at 1235. Finally, in his rebuttal, the prosecutor stated:
[PROSECUTOR]: Finally, [petitioner's] Counsel makes much of the argument that you should draw an inference from the fact that he's presented evidence of good character and I have not rebutted that, and, therefore, you should infer that Mr. Duong, I guess, had good character back in `94 when Mr. Sam Colon came in. Good inference, I agree, I agree.
But times change. He fell in with these gangsters or whatever happened to him. Doesn't amount to reasonable doubt.
Let's look at the way inferences get drawn. I have showed you where Senh Duong was that night, showed you what he did and what weapon he had.
What was the response? No one has to put on any evidence if they don't want to, if they feel my case is so very weak, but if the only witness they can bring you, someone who wasn't even there, what inference do you draw from that? Because there is no witness. No one can contradict Senh Duong was not there and did not participate in this murder, because he was there that night. That's the inference.
TR at 1447-48. There was no objection raised to these statements.
3. Analysis
As a preliminary issue, the Court notes that much of petitioner's argument relies on a misreading of the trial record. Petitioner consistently misquotes the prosecutor as saying, "You certainly haven't heard any evidence as to any alibi from Mr. Duong." See. e.g. Pet. at 26; Traverse at 4 (emphasis added). The trial record is clear that the prosecutor said "for," rather than "from". RT at 1235. The Court therefore rejects petitioner's contention that "the prosecutor's argument was not indirect; to the contrary, the prosecutor called out petitioner by name as the person who [sic] unable or unwilling to give alibi testimony." See Traverse at 7, 11. 8-11 (emphasis in original); see also Pet. at 30, 31. The prosecutor did no such "calling out" — if there was Griffin error here, it was indeed indirect.
Arguing for indirect error, petitioner essentially contends that prosecutorial comment on a defendant's failure to present an alibi is per se Griffin error:
[A]n alibi defense may rest on testimony from third parties who saw the defendant elsewhere at the time of the crime, but it always has the defendant himself as at least the anchor and often the only source of alibi testimony. Thus, the jury would have naturally and necessarily [sic, concluded] that the prosecutor's repeated references to the absence of alibi testimony, and the inference of guilt to be drawn therefrom, was a direct attack on appellant's exercise on his right to remain silent.
Traverse at 4-5 (emphasis in original.) He claims that it is "settled law that comment on the failure to present alibi evidence is necessarily and inherently a comment on the defendant's silence." Id. at 4 (emphasis in original).
The three cases cited by petitioner do not support such a broad proposition. They presented situations where the jury would infer that the defendant was likely the only person who could have presented the rebuttal evidence in question, not simply that the defendant could have presented such evidence. In United States v. Triplett, 195 F.3d 990, 995-96 (8th Cir. 1999), the court held that the prosecution's theory that the defendant acted alone made comments about lack of rebuttal evidence necessarily a reference to the defendant's silence. In Freeman v. Lane, 962 F.2d 1252, 1260 (7th Cir. 1992), the court found it "highly unlikely that anyone other than the defendant could rebut the evidence" when there were no witnesses other than himself and the victim. In Lincoln v. Sunn, 807 F.2d 805, 809-811 (9th Cir. 1987), the court found Griffin error when the prosecutor pointed out failure to rebut testimony about transactions to which the defendant was the only non-testifying party and failure to present a non-criminal motive for the defendant's actions.
The applicability of Sunn is also called into question by the fact that the prosecutor there was much clearer about attacking the defendant's silence rather than the defense in general. Among other things, he at one point referred to the "only . . . other person who can testify." See Sunn, 807 F.2d at 809 n. 1; see also Mavans, 17 F.3d at 1185 (distinguishing Sunn on similar grounds).
While petitioner is correct to suggest that he himself would necessarily have been able to testify as to any alibi defense, this does mean that the jury would infer that he was the only person able to do so. Alibis are often corroborated, and nothing in the prosecution's case suggested that petitioner was the only person who could testify concerning his whereabouts on the evening in question. In fact, the prosecutor broadly attacked the failure to present "friends or family who were with him," thus drawing the jury's attention to the possibility of a corroborated alibi and the lack of any defense witnesses to suggest this. RT at 1235.
C. Gang Evidence
1. Legal Standard
The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied. 479 U.S. 839 (1986). Juries are presumed to follow a court's limiting instructions with respect to the purposes for which evidence is admitted. See Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997).
2. Background
At trial, evidence was introduced about the feud between AB and AKA. Pet. at 42-44. Evidence was also introduced that codefendant Subana was a member of AB and codefendant Tran was a member of another gang called "IVB". Id., see also RT at 1258-60. The prosecutor introduced two photos of codefendant Subana holding an automatic pistol in one hand and an IVB sign in another. Pet. at 49. Defense counsel objected to the admission of gang evidence generally and the photos in particular. Id. at 42-45, 49.
The jury was instructed as to the limited inferences it was permitted to draw from the gang evidence. RT at 1185-86. In his closing argument, the prosecutor reminded the jury that gang membership does not support an inference of criminality and argued that the point of the gang evidence was "to show you the motive, the explanation for why these three innocent people who were strangers to these defendants were killed that night, and I think it became clear that it was because of the Cuong Do shooting." RT at 1258-59. He further argued that the evidence showed why "these defendants are so motivated, are so upset . . . You can't let your leader get shot and not do anything." RT at 1259-60. He then noted that "[w]e have an admission by each of the defendants he's a gangster — that's a mistake. Obviously, Mr. Duong, there's no such evidence. I have no evidence he's a gangster at all." RT at 1260.
3. Analysis
Petitioner's claims here are not cognizable under federal habeas review.
First of all, petitioner cites no Supreme Court law suggesting that the admission of gang evidence violates a specific constitutional guarantee. The only Supreme Court decision he cites is Dawson v. Delaware, 503 U.S. 159 (1992), offered to support the proposition that a prosecutorial theory based on group retaliation for a mutually perceived slight does not authorize the admission of gang evidence." Pet. at 45.
Dawson supports no such proposition. In Dawson, the Court found that a stipulation which attested to Dawson's membership in a prison gang was not relevant in the context of his sentencing hearing. Dawson, 503 U.S. at 165-69. As presented, the stipulation provided no evidence of aggravating circumstances nor did it constitute a permissible rebuttal of mitigating circumstances. See id. Nowhere does Dawson imply that evidence of gang affiliations may not be used to provide evidence of motive for a shooting. In fact, Dawson is a narrow holding that does not even establish a particularly broad bar on the introduction of gang evidence at sentencing. See id. at 165.
Secondly, even if the admission of this evidence was error, it was not of such magnitude that it violates due process fair trial rights. The court instructed the jury not to draw impermissible inferences from the gang evidence, and petitioner gives no reason for this Court to disregard the presumption that the jury followed that instruction.
Finally, the prosecutor expressly stated in his closing argument that there was no evidence of petitioner being a gang member, thus restricting the gang evidence to petitioner's codefendants. As the state appellate court noted, the implication is that the verdict did not rely on a finding that petitioner was a gang member. See Appellate Opinion at 10. This was not, as petitioner contends, simply "guilt by association." Traverse at 8, 1. 22. As will be discussed more completely in subsection E, there was direct evidence of petitioner's involvement with both the planning and execution of the crime.
D. Jury Instructions
1. Legal Standard
A state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. See id. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995).
The omission of an instruction is less likely to be prejudicial than a misstatement of the law. See Walker v. Endell, 850 F.2d at 475-76 (citingHenderson v. Kibbe 431 U.S. at 155). Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an "`especially heavy burden.'" Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting Kibbe 431 U.S. at 155). The significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given. See Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson, 431 U.S. at 156).
It is well established that a criminal defendant is entitled to adequate instructions on the defense theory of the case. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000). However, the defendant is not entitled to have jury instructions raised in his or her precise terms where the given instructions adequately embody the defense theory. See United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996); United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. l979), cert. denied, 445 U.S. 966 (1980).
2. Background
The trial court gave the jury the standard CALJIC instructions on viewing accomplice testimony with suspicion. RT at 1192-96. In doing so, it rejected three instructions proposed by petitioner. Pet. at 51-52. The state appellate court found that the CALJIC instructions were identical to petitioner's requested instructions except that the requested instructions inform the jury as to why it ought to regard accomplice testimony with suspicion. Appellate Opinion at 18. Petitioner does not offer any additional differentiation between his proposed instructions and those given by the trial court.
The state appeals court noted that the trial court instructed the jury regarding conspiracy, aiding and abetting, and the target crimes of first degree murder, second degree murder, and voluntary manslaughter. Id. at 16. The appeals court also noted that the court specifically and expressly related the aiding and abetting instructions to the target crimes. Id.
3. Analysis
Petitioner contends that the trial court's instructions regarding accomplice witnesses amounted to a refusal to instruct on the defense theory of the case. Pet. at 15-18. There is nothing in the record to support this contention The CALJIC instructions stated the law regarding the level of credibility attached to accomplice testimony. Petitioner cites no case to support the proposition that petitioner has a constitutional right for the court, rather than defense counsel, to instruct the jury as to general reasons why accomplice testimony is considered unreliable.
Petitioner also contends that the trial court failed to adequately guide the jury as to the elements of the target crimes for the purposes of finding aiding and abetting liability. Pet. at 54. He argues that he "was convicted of first-degree murder based on a faulty instruction that left the determination of the underlying crime up to the jury's unguided speculation." Id. Because it shows that the jury was indeed instructed as to the elements of first-degree murder, the record does not support this contention.
Petitioner's citation of People v. Prettyman, 14 Cal.4th 248 (1996), does not raise any issues under habeas, since this is a state case rather than a United States Supreme Court opinion. Moreover, the state appellate court found that Prettyman did not apply to petitioner. See Appellate Opinion at 14-16.
E. Insufficient Evidence
1. Legal Standard
A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. See Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). The federal court "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The "prosecution need not affirmatively `rule out every hypothesis except that of guilt,'" and the reviewing federal court "`faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326).
2. Background
Petitioner asserts that the evidence against him is constitutionally insufficient to support a finding of guilt. Pet. at 55. The state appellate court addressed the claim as follows:
Duong claims the evidence was insufficient to convict him of first degree murder because Linh Nguyen's identification of him on the video establishes only, at most, his presence at the scene of the shooting, not his mental state for first degree murder. Duong further claims that evidence of the meeting at Khoa's house cannot be used to fill in the gaps regarding premeditation and deliberation because the fact that the jury found [codefendants] Subana and Tran guilty of second degree murder only shows that the evidence of the meeting at the Khoa house did not demonstrate a plan to kill in that had the jury accepted evidence of the meeting as evidence of a plan to kill, the jury would have found all the defendants, and not just Duong, guilty of first degree murder.
The argument is not persuasive. First, the jury could have determined that conspiracy was not sufficiently established. Accordingly, evidence of premeditation and deliberation by Duong would not make Subana and Tran equally liable for first degree murder, if Subana's and Tran's mental state did not also include premeditation and deliberation. In this regard it is important to note that while there was evidence that Subana and Tran were intoxicated on the night of the shootings, there was no evidence of intoxication with respect to Duong. Second, there was evidence of motive. The killing of the victims was in retaliation for the shooting of Do. Third, there was evidence of planning. Duong, his codefendants, and other alleged accomplices arrived at the May Tiem Café in three cars, armed with a shotgun and at least five handguns, and there was evidence of scouting the café prior to the shootings. Fourth, the victims, who were unarmed and had moved themselves into a corner, were shot by six gunmen who fired a total of approximately twenty-two shots. Such a manner of killing demonstrated premeditation and deliberation.
We conclude there is on this record substantial evidence to support Duong's conviction of first degree murder.
Appellate Opinion at 19-20.
3. Analysis
Petitioner gives this Court no reason to reconsider the appellate court's reasoning, especially in light of his high burden in attempting to overturn a valid jury verdict.
F. Late Admission of Evidence
1. Legal Standard
The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan 197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839 (1986). Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. See Henry, 197 F.3d at 1031; Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784 F.2d at 990. Only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. See Jammal, 926 F.2d at 920.
2. Background
In petitioner's state habeas review, the reviewing state court summarized the issue as follows:
The crux of Petitioner's argument is that it was error to allow the prosecution to reopen the case, after jury deliberations had begun, so that a tape and transcript of witness Long Ngo [detailing his interview with the police] could be marked and moved into evidence. According to an excerpt of the trial transcript provided by Petitioner, the jury, during its deliberations, had requested the tape and transcript to aid their deliberations. However, while the tape was played in open court during the prosecution's case-in-chief and a proper foundation was made, the prosecutor failed formally to have the tape marked and moved into evidence. The trial court allowed the prosecution, over Petitioner's objection, to enter the tape and transcripts into evidence.
Resp't's Ex. N at 1-2 [hereinafter State Habeas Opinion]. The court went on to deny relief on two grounds. First, it found that there was no prejudice in allowing the jury to rehear a tape it had already heard. Id. at 2-3. Second, it found that petitioner's argument had no legal merit.Id. at 3.
3. Analysis
Petitioner fails meet his burden to establish denial of his due process rights. He does not contend that the tape and transcript should have been altogether disallowed; instead, he focuses on the procedural irregularity of allowing the formal marking after deliberations had begun. Petitioner does not argue how this prejudiced him, other than to say that the "trial court's ruling gave a potent but unfair advantage to the prosecution during the final phases of jury deliberation." Pet. at 17-18.
Petitioner cites no Supreme Court case law, relying instead on two circuit court cases, neither of which supports the conclusion that the trial court here committed constitutional error. In United States v. Lampkin, 159 F.3d 607 (D.C. Cir. 1999), the government conceded error when the district court allowed a deliberating jury to see videotaped testimony that had not been played at trial. See id. at 611. Here, the tape and transcript were both introduced during the prosecution's case in chief.
In United States v. Berry, 92 F.3d 597 (7th Cir. 1996), a recording of illegal activity involving an undercover agent and an unidentified second party was entered into evidence and played to the jury. The defendant contested whether the other voice on the recording belonged to him. Id. at 598. Over the defendant's objections, a transcript, which was not admitted into evidence, was also provided to the jury at the time the tape was played. Id. The margins of the transcript identified the defendant as one of the speakers. Id. In his testimony, the undercover agent failed to identify the second speaker as the defendant, thus leaving the transcript's identification uncorroborated. Id. at 598-99. The trial court made an evidentiary finding that the availability of the uncorroborated transcript during deliberations had a reasonable likelihood of prejudicing the jury, and ordered a new trial. Id. at 599-600. The government appealed, and the matter was remanded for specific factual findings regarding prejudice.Id. at 600. The trial court found evidence of prejudice, and this finding was affirmed on appeal. Id. at 5 97-602.
The present case contains no prejudice analogous to the identification issue in Berry. Petitioner does not argue that the late formal introduction of the tape and transcript harmed him in any specific way. Instead, he appears to contend that the late admission of the tape was prejudice per se. Neither Lampkin nor Berry supports this proposition — in both cases, the appellate court conducted a detailed inquiry as to whether the specific circumstances amounted to prejudice. See Lampkin, 159 F.3d at 614-15; Berry, 92 F.3d 597-602.
Petitioner attempts to seize upon a procedural mistake and raise it to the level of constitutional error. He lacks any basis for doing so. While it may be true that the prosecution did not observe the proper formalities of introducing the tape and transcript into evidence when they were presented at trial, their failure to do so does not render the proceedings fundamentally unfair.
G. Ineffective Assistance of Counsel on Appeal
Petitioner claims ineffective assistance of counsel on direct appeal for failure to raise the issue of late admission of evidence.
1. Legal Standard
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out inStrickland v. Washington, 466 U.S. 668 (1984). See Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986). A defendant therefore must show that counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. See Miller 882 F.2d at 1434 n. 9 (citing Strickland, 466 U.S. at 688, 694; Birtle, 792 F.2d at 849).
2. Analysis
Even if his appellate counsel's failure to argue about the procedural irregularity was objectively unreasonable, there is no reasonable probability that petitioner would have prevailed had the state appeals court addressed the issue. In denying petitioner's state habeas petition, the reviewing court unambiguously found that the trial court was within its discretion to correct the technical error of not formally introducing the tape and transcript into evidence. State Habeas Opinion at 2-3 (citing precedent). Furthermore, it found that there was no harm to petitioner. Id. There is no reason to believe that the argument would have been any more availing on direct appeal.
This Court does not reach this issue.
IV. CONCLUSION
For the foregoing reasons, Senh Duong's petition for writ of habeas corpus is DENIED.
IT IS SO ORDERED.