Opinion
CIVIL ACTION NO. 02-9460
November 26, 2003
REPORT AND RECOMMENDATION
Presently before this court is a pro se petition for a Writ of Habeas Corpus filed by a state prisoner, Hai Due Le, currently incarcerated at the State Correctional Institution in Coal Township, Pennsylvania. The petitioner ("Le") seeks to challenge his conviction pursuant to 28 U.S.C. § 2254. For the reasons set forth below, this court recommends that Le's petition be DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
The facts set forth below were compiled from the Petition for Writ of Habeas Corpus and the Response filed on behalf of respondents by the Philadelphia County District Attorney's Office.
Bao Nguen, the victim in this case, met Le in 1992 when she worked at a sewing factory owned by Le and his brother. Le had made numerous romantic advances on Bao which she repeatedly discouraged by telling Le she saw him as a brother and friend but nothing more. Approximately one week before the incident, Le asked Bao to meet him. Bao refused saying she had a boyfriend and did not want anything to do with him. Le told Bao he was going to commit suicide and wanted her to meet with him so he could give her some property. Bao was frightened Le would follow through on his threat, so she agreed to meet with him.
At the time of the incident Bao Nguen was Bao Le. Having since married Due Nguen, who was her boyfriend at the time of this incident, Bao Le is now Bao Nguen. To avoid confusion she will be referred to as Bao.
On Saturday, November 11, 1995, Bao met Le in the cafeteria of the Community College of Philadelphia at 16th and Spring Garden Streets. Based on his prior obsession with her, however, Bao was frightened and asked her boyfriend, Due Nguen (Nguen), to accompany her. Nguen watched Bao and Le meet inside the college cafeteria then followed them to the parking lot where Le's van was parked. He observed Le pleading with Bao, at one point getting down on his knees. Le was begging Bao to get in his van. Bao, in tears, complied after Le put the van keys in the grass nearby to show he would not drive away with her. When Nguen saw Bao and Le get into the van, he grew more concerned with her safety so he went over and pulled her out of the van. Le got out of the van and became incensed, pacing back and forth, asking Bao if she had made a decision. Nguen yelled at Le to leave them alone and; Le eventually got into his van and drove away.
Nguen and Bao walked over to his car and stood talking. Unbeknown to them, Le had only driven around the block. He double-parked his van in the street, got out and called Bao's name. As Bao turned, Nguen saw that Le was pointing a black revolver at Bao. Nguen pushed Bao to the ground to avoid the shots that were fired, but he saw blood coming from her head. Nguen tried to distract Le to keep him away from Bao who was bleeding from her face. Le fired several times at Nguen missing. Nguen tried to grab Le's gun but fell to his knees during his attempt. At that point, Le walked up to him, put the gun to his forehead, and asked if he was prepared to die. Le pulled the trigger, but the gun did not fire. He then jumped in his van and drove away.
After Le drove away, Nguen ran over to Bao who had blood spurting from both sides of her neck. An ambulance had been called and took Bao to Hahneman Hospital. Her jawbone was shattered, and she lost most of her teeth. Bao was in the hospital approximately four days and had to have her jaw wired shut for four months during which she could only eat through a straw. She also has had repeated surgeries to repair her jaw, but still has a significant speech impediment as a result of scar tissue under her tongue.
After the shooting, Nguen identified Le as the person who shot Bao and who attempted to shoot him. On the evening of the shooting Bao regained consciousness and also identified Le as the person who had shot her. There were also several additional witnesses to the shooting who identified Le as the shooter.
After the shooting, Le fled Philadelphia and evaded capture for almost three years. Le was caught when a detective investigating the shooting on the internet found that Le had attempted to buy property in Houston, Texas, and had been subject to a credit check. Le was arrested and eventually extradited to Pennsylvania.
On September 23, 1998, a preliminary hearing was held before the Honorable Louis G. F. Retacco of the Municipal Court of Philadelphia. Nguen's testimony regarding the incident was found sufficient to make out a prima facie case. In consultation with his attorney, and apparently to avoid having to call Bao to the stand, Le decided to stipulate to the facts at trial and waive his right to a jury trial.
On February 10, 1999, Le entered a stipulated trial, with the aid of a Vietnamese interpreter. At trial, the Commonwealth summarized the evidence it would have presented, and the defendant stipulated to such. The Honorable Ricardo C. Jackson then convicted Le of: the attempted murder of Bao, aggravated assault of Bao and Nguen, recklessly endangering another person, terroristic threats against Nguen, two counts of possessing an instrument of crime, and two counts of violating the Uniform Firearms Act.
At Le's initial sentencing hearing on April 8, 1999, Judge Jackson sentenced Le to an aggregate term of thirty to sixty years of imprisonment. Le filed a petition for reconsideration of sentence on April 16, 1999, which the court denied on May 6, 1999. Le then filed a notice of appeal to the Pennsylvania Superior Court, by new counsel, on June 1, 1999. Le also filed a Statement of Matters Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
In his appellate brief to the Superior Court Le claimed: he was denied effective assistance of trial counsel and a fair trial when trial counsel did not explain to him that he would have a stipulated trial, an error compounded by trial counsel's failure to ensure an adequate colloquy explaining to Le what a stipulated trial was; he was denied effective assistance of trial counsel and a fair trial when trial counsel failed to present evidence of Le's good character; and that the sentences imposed were illegal under the doctrine of merger of lesser included offenses. In a memorandum opinion on November 21, 2000, the Superior Court held that Le's first two claims lacked merit but remanded for resentencing after holding Le's sentence was illegal under the merger doctrine.Commonwealth v. Le, No. 1713 EDA 1999 (Nov. 21, 2000).
Le next filed a petition for allowance of appeal in the Supreme Court of Pennsylvania in which he raised the first two issues argued in Superior Court. That Court denied allocatur on May 3, 2001.Commonwealth v. Le, No. 776 E.A.L. 2000 (Pa. 2001).
Le was resentenced on March 13, 2002, by the Honorable John M. Younge, to an aggregate sentence of twenty to forty years of imprisonment. Le did not file a motion for reconsideration of sentence or a notice of appeal from his new judgment of sentence by his deadline of April 12, 2002.
Le also did not file a state collateral relief petition under the Pennsylvania Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 et seq., ("PCRA") within a year of his new judgment of sentence becoming final. Instead, Le filed a nonconforming federal habeas petition on December 24, 2002, then filed this proper and timely pro se Petition for Writ of Habeas Corpus on January 31, 2003, with an attached memorandum of law. In his habeas petition, Le claims:
In his response to question 11(d) in his habeas petition Le states he did not appeal based on his counsel's advice to not do so.
1) Ineffective assistance of trial counsel for inducing him to unknowingly enter into a stipulated trial; and
2) Ineffective assistance of trial counsel for depriving him of the opportunity to call character witnesses to testify on his behalf.
In his habeas petition, Le frames his first claim as a general due process violation. Le argues that his constitutional rights were violated because his counsel did not adequately explain what it meant to enter into a stipulated trial. This court interprets this to be an ineffective assistance of counsel claim because the complained of conduct was by Le's trial counsel. Moreover, Le did not raise a general due process claim in the state courts, but rather, raised the two ineffective assistance of counsel claims above. See Le, No. 776 E.A.L. 2000; Le, 1712 EDA 1999. Assuming, arguendo, that Le intended to raise a broad due process claim here, this court would be precluded from hearing the issue as it was not previously presented to the state courts. See McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 6 (1982), for proposition that to have fairly presented federal claim in state courts, petitioner must have presented federal claim's factual and legal substance to state courts in manner that provided notice that federal claim was being asserted). Additionally, "mere similarity of claims is insufficient to exhaust."Duncan v. Henry, 513 U.S. 364, 366 (1995).
The Commonwealth responded to Le's petition on June 10, 2003, contending that Le is not entitled to federal habeas relief because his claims lack merit and/or are defaulted. This court finds that Le has exhausted his state remedies on these claims. They are, however, without merit.
II. DISCUSSION
Before a federal court may grant habeas relief to a state prisoner, the habeas petitioner must have exhausted all available state remedies. 28 U.S.C. § 2254(b); O' Sullivan v. Boerckel, 526 U.S. 838, 839 (1999); Vasquez v. Hillery, 474 U.S. 254 (1986); Picard v. Connor, 404 U.S. 270 (1971). A petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). Thus, a petitioner must invoke "one complete round of the State's established appellate review process," to exhaust his state remedies. O'Sullivan, 526 U.S. at 845. The policy behind the total exhaustion doctrine is rooted in the notion of comity: the state must be given the initial opportunity to pass upon, and correct, alleged violations of the petitioner's constitutional rights.O'Sullivan, 526 U.S. at 842; Picard, 404 U.S. at 275.
To satisfy the exhaustion requirement, the petitioner must fairly present every claim included in a federal habeas petition to each level of the state courts. O' Sullivan, 526 U.S. at 847;Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996). Exhaustion does not require that the highest state court rule on the merits of a petitioner's claims but only that said court be given the opportunity to do so. Swanger v. Zimmerman, 750 F.2d 291 (3d Cir. 1984). A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demands, in turn, that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts.Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982),cert. denied, 459 U.S. 1115 (1983). In the case of an unexhausted petition, the federal courts should dismiss without prejudice, otherwise they risk depriving state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993).
Under these circumstances, this court has concluded that Le's claims are exhausted and reviewable, thus, this court will address their merits.
A. Standard of Review
To be eligible for federal habeas relief, Le must establish that the state court's adjudication of the merits of his 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), (d)(2); Williams v. Taylor, 529 U.S. 362 (2000). Any factual determination made by the state court shall be presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254 (e).
The United States Supreme Court, in Williams, set forth a two-part test for analyzing claims under § 2254(d), making it clear that the "contrary to" and "unreasonable application" clauses of § 2254(d) have independent meaning. First, 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 from the Supreme Court on a set of materially indistinguishable facts.Williams, 529 U.S. at 404-05. Second, under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from the Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Id. at 405. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was unreasonable." Id. "A federal habeas court may not issue a 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 410. See also Hameen v. Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (discussing Williams).
B. Ineffective Assistance of Counsel Claims
In this case, Le has raised several claims of ineffective assistance of trial counsel. The Sixth Amendment to the United States Constitution recognizes the right of every criminal defendant to effective assistance of counsel. When reviewing claims of ineffective assistance of counsel this court must view the totality of the evidence before the trial court and determine whether the petitioner has shown that the decision reached is reasonably likely to have been different, absent the alleged ineffectiveness of counsel. Strickland v. Washington, 466 U.S. 668, 695 (1984).
The Supreme Court has set forth a two-prong test that a petitioner must satisfy before his conviction may be overturned for ineffectiveness of counsel. Strickland, 466 U.S. 668. The petitioner must show that his counsel's performance was deficient, falling below an objective standard of reasonableness, and that the deficient conduct prejudiced the petitioner's defense to such an extent that the result is unreliable. Id. at 687-88. A court, however, need not make it's determinations in this order. If it is easier for the court to dispose of the matter by first addressing a lack of sufficient prejudice then the court should take that route.Id. at 697.
Under the first prong of the Strickland test, the petitioner must demonstrate that his trial counsel's performance "fell below an objective standard of reasonableness." Id. at 688. An attorney's performance should be assessed by evaluating the conduct from the attorney's perspective at that time, not in hindsight. Id. at 689. Additionally, petitioner must overcome the strong presumption that counsel's conduct was within the range of reasonable assistance and might have been sound trial strategy. Strickland, 466 U.S. at 689. A convicted defendant asserting ineffective assistance of counsel must, therefore, identify the acts or omissions that are alleged to have not been the result of reasoned professional judgment. Id. at 690. Then, the reviewing court must determine whether, in light of all the circumstances, the identified acts or omissions were outside "the wide range of professionally competent assistance." Id. Under the second prong the petitioner must demonstrate that his counsel's deficient performance prejudiced his defense by showing that, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different.Id. at 687, 694.
1. Ineffective Assistance of Trial Counsel for Inducing Le to Unknowingly Enter Into a Stipulated Trial
Le first claims that his trial counsel was ineffective for inadequately explaining the ramifications of entering into a stipulated trial. Based on the colloquy conducted at Le's trial and the lower court's findings, this court determines that trial counsel was not ineffective for the reasons which follow.
On February 10, 1999, Le entered into a stipulated trial. During that proceeding, counsel, A. Charles Peruto, Jr., explained to him, on the record, that he was entitled to a jury trial, and the differences between a jury and bench trial. (N.T. 2/10/99, p. 4-5). Peruto also explained to Le that if any of the witness' testimony was stipulated to, the defense would not have the opportunity to cross examine that witness.Id. at 6. The colloquy continued:
MR. PERUTO: After discussing this case with me, we have agreed to stipulate to the testimony today; am I correct?
THE DEFENDANT: Yes.
MR. PERUTO: And that means we will not be cross-examining the witnesses today.
THE DEFENDANT: Yes.
MR. PERUTO: Do you understand that?
THE DEFENDANT: Yes.
MR. PERUTO: And are you doing that of your own free will?
THE DEFENDANT: Yes.
(N.T. 2/10/99, p. 7).
At the end of the stipulations, the prosecutor asked for a colloquy regarding whether Le understood what had been read into the record.
MR. PERUTO: I'll ask him, Judge. Have you listened to everything that has been said in court today?
THE DEFENDANT: Yes, I did.
MR. PERUTO: And do you understand so far what has taken place?
THE DEFENDANT: Yes.
MR. PERUTO: Okay. Do you have any questions?
THE DEFENDANT: No.
THE COURT: Do you understand everything the District Attorney read from the record?
THE DEFENDANT: Yes, Your Honor.
MR. PERUTO: Okay.
MS. ZUCKERMAN: And, if I may, Your Honor, the defendant did — just for the record, the defendant did answer you in English, so he did understand Your Honor's question in English.
THE COURT: Yes.
(N.T. 2/10/99, p. 27-28).
At the first sentencing hearing, Peruto stated that he and Le decided to enter into a stipulated trial so as to not put Bao through any more than necessary. (N.T. 4/8/99, p. 31). Peruto added that Le was so remorseful he did not want to take up anyone's time with a full trial.Id.
In his Statement of Matters Complained of on Appeal, Le claimed, inter alia, that counsel had been ineffective for failing to explain to him the strategy for entering into a stipulated trial. In its opinion, the trial court determined that Le's colloquy refuted his claim of ineffective assistance. Commonwealth v. Le, No. 98-09-1026, p. 7 (Ct. Common Pleas Nov. 19, 1999). The court also held that Le's desire to accept responsibility for his actions and to avoid further pain to Bao refuted his claim of ineffectiveness, as these were the basis of counsel's strategy. Id.
The Superior Court agreed with the trial court. Le, No. 1713 EDA 1999, p. 15-17. The Superior Court also agreed that counsel had a rational basis for choosing a stipulated trial which was Le's desire to not put Bao through a trial. Id. at 16-17. The Court concluded that counsel could not be deemed ineffective for carrying out his client's wishes. Id. at 17.
Likewise, here, in light of the above colloquy and his reasons for choosing a stipulated trial, Le fails to establish that his counsel did not act within the wide range of professionally competent assistance of counsel. Moreover, Le has failed to meet the second Strickland prong requiring a showing of prejudice resulting from counsel's alleged ineffectiveness.
Accordingly, this court concludes that the Superior Court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court in Williams, 529 U.S. at 409-411.
2. Ineffective Assistance of Trial Counsel for Depriving Le of the Opportunity to Call Character Witnesses
Le next claims that his trial counsel was ineffective for failing to present character witnesses. Regardless of whether this could be deemed unreasonable conduct by trial counsel, Le does not cannot establish actual prejudice resulting from a lack of character witnesses. Based on this lack of prejudice and the lower court's findings, this court finds this claim to be without merit.
After the Commonwealth had presented their case by stipulation, Peruto asked counsel for the Commonwealth whether she would stipulate as to character. (N.T. 2/10/99, p. 25). The Commonwealth declined and Peruto rested the defense case. Id. It is not articulated on the record why character witnesses were not called by the defense or why counsel did not require that character testimony be stipulated to. However, the issue of whether this decision was a reasonable one need not be addressed here Strickland provides that a court may determine an ineffectiveness claim by looking to the prejudice prong first, and petitioner has failed to meet this prong.
Pursuant to this second test of Strickland, Le must show that, but for his counsel's alleged unprofessional error, there is a reasonable probability that the result of his trial would have been different. At trial, prior to finding Le guilty of all charges, Judge Jackson determined that "[u]sing a deadly weapon on the vital part of a person's body indicates you can infer that he had an intent to kill." (N.T. 2/10/99, p. 28). At Le's first sentencing hearing, Judge Jackson listed all the information he considered, including, "the manner in which [Le] shot Bao in the face, the manner in which [Le] drove around the block in this [sic] van, and the manner in which [Le] attempted to murder [Bao]." (N.T. 4/8/99, p. 37). Judge Jackson also noted, "[t]hat's the only way we can look at it is that [Le] attempted to murder [Bao]."Id.
On appeal, the Superior Court reiterated all the evidence presented to Judge Jackson in the stipulated trial and all the witnesses the Commonwealth would have called had their testimony not been stipulated to. Le, No. 1713 EDA 1999, p. 19-20. The Court found that the evidence of Le's guilt was overwhelming, and that he had failed to show that there was a reasonable probability that, but for the lack of character witnesses, the outcome of his trial would have been different. Id. at 20.
We agree. As outlined earlier, the evidence against Li, especially the eyewitness accounts, is overwhelming. It is apparent that based on such evidence, Le has failed to establish that he suffered any prejudice as a result of his counsel's alleged ineffectiveness. Although Le has provided affidavits of people willing to testify on his behalf, he has failed to establish that counsel's failure to call these witnesses would have changed the outcome of his trial. This court concludes that the Superior Court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court in Williams, 529 U.S. at 409-411.
Having determined that Le's claims are without merit the following recommendation is made: ___
RECOMMENDATION
AND NOW, this ___ day of November 2003, IT IS RESPECTFULLY RECOMMENDED that the petition for Writ of Habeas Corpus be DENIED with prejudice. It is also RECOMMENDED that a certificate of appealability not be granted.ORDER
AND NOW, this ___ day of ___, 2003, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Linda K. Caracappa, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DENIED with prejudice.
3. There is no probable cause to issue a certificate of appealability.
4. The Clerk of the Court shall mark this case closed for statistical purposes.