Filed: Jan. 17, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7954 HENH CHU NGO, Petitioner – Appellant, v. GREGORY HOLLOWAY, Warden, Wallens Ridge State Prison, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:12-cv-00074-LMB-IDD) Argued: December 10, 2013 Decided: January 17, 2014 Before TRAXLER, Chief Judge, and WILKINSON and DAVIS, Circuit Judges. Affirmed by unpublished
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7954 HENH CHU NGO, Petitioner – Appellant, v. GREGORY HOLLOWAY, Warden, Wallens Ridge State Prison, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:12-cv-00074-LMB-IDD) Argued: December 10, 2013 Decided: January 17, 2014 Before TRAXLER, Chief Judge, and WILKINSON and DAVIS, Circuit Judges. Affirmed by unpublished o..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7954
HENH CHU NGO,
Petitioner – Appellant,
v.
GREGORY HOLLOWAY, Warden, Wallens Ridge State Prison,
Respondent − Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:12-cv-00074-LMB-IDD)
Argued: December 10, 2013 Decided: January 17, 2014
Before TRAXLER, Chief Judge, and WILKINSON and DAVIS, Circuit
Judges.
Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Chief Judge Traxler and Judge Wilkinson joined.
ARGUED: Jonathan P. Sheldon, SHELDON, FLOOD & HAYWOOD, PLC,
Fairfax, Virginia, for Appellant. Craig Stallard, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General of
Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DAVIS, Circuit Judge:
Petitioner-Appellant Henh Chu Ngo, a Virginia inmate,
appeals the district court’s denial of his federal habeas
petition filed under 28 U.S.C. § 2254. Because we agree with the
district court that the state court did not make unreasonable
findings of fact or unreasonably apply clearly established
federal law, 28 U.S.C. §§ 2254(d)(1-2), we affirm.
I.
A.
In August 2005, Ngo was indicted on charges of murdering
Ngoc Quy Doan Nguyen (“Quy”) and using a firearm during the
commission of a felony. The evidence supporting the case against
Ngo came primarily from the testimony of Phuc Nguyen (“Phuc”)
and Hoan Minh Le (“Le”), who were present when Quy was shot. Ngo
pled not guilty and the case proceeded to trial.
On the first day of Ngo’s three-day trial, Phuc testified
that, on the evening of December 27, 2002, he, Le, and Quy were
leaving a pool hall when two men approached them and asked
whether they were affiliated with a certain gang, Asian Young
and Dangerous (“AYD”). Phuc denied affiliation with AYD, but did
not hear the responses of Quy and Le. According to Phuc, members
of AYD had recently attacked Ngo, a member of Asian Dragon
Family (“ADF”), a rival gang.
2
Phuc, Le, and Quy then got into Quy’s car, when Quy
remembered that he had left his eyeglasses in the pool hall.
While Quy went to retrieve them, Ngo approached Quy’s car, where
Phuc was seated in the front passenger seat with Le seated
behind him. Ngo motioned for Phuc to roll down his window, but
Phuc refused because Ngo’s right hand was concealed suspiciously
in his coat.
Ngo then walked to the front of Quy’s car as Quy returned
from inside the pool hall. As Quy opened the driver’s door, Ngo
again asked whether Quy was affiliated with AYD. Phuc did not
hear Quy’s response, but immediately heard gunshots, causing him
to duck behind the dashboard. Ngo’s first shot struck Quy in the
head while the next two shots went through the car’s windshield.
When police officers arrived at the scene fifteen to twenty
minutes later, Phuc told them that Ngo shot Quy. Phuc testified
that he was familiar with Ngo from having seen him around their
community and that Ngo was heavyset and had a tattoo. Phuc also
testified that he identified Quy’s shooter in photographic line-
ups while at the police station later that evening. On cross-
examination, Phuc admitted that Le had made several phone calls
before calling 911 after Quy was shot, and that, contrary to his
earlier testimony, he had previously denied hearing the
substance of Ngo’s comment to Quy before he shot him.
3
Numerous other officers described the evidence at the scene
of Quy’s shooting in a manner consistent with Phuc’s account of
the event, including the location of shell casings, the bullet
holes in Quy’s car, and the condition of Quy’s body.
Officer Curtis Cooper then recounted the statements Phuc
made to him at the scene of Quy’s murder and at the police
station later that evening. Defense counsel objected to this
testimony as inadmissible hearsay; the trial court overruled the
objection. The trial court reasoned that the testimony could be
admitted as prior consistent statements for the purpose of
credibility determinations. The court also issued a limiting
instruction to the jury, stating that the testimony was “not
being elicited for the truth of what Mr. Phuc Nguyen told him
but just as it might affect your determinations about Mr. Nguyen
. . . your determination of his credibility.” J.A. 154.
Officer Cooper went on to testify that, at the police
station, Phuc identified Ngo, by his nickname, as Quy’s killer
and related in detail the events surrounding the crime. On cross
examination, defense counsel questioned Officer Cooper
extensively regarding Phuc’s prior statements, and Cooper
acknowledged that Phuc initially denied knowing who shot Quy.
On the second day of trial, Le testified regarding the
events surrounding Quy’s murder; that testimony was
substantially similar to Phuc’s. There were some inconsistencies
4
between Phuc and Le’s testimony, however, such as Le’s testimony
that Ngo’s left hand was inside his jacket when he approached
Quy’s car, while Phuc testified that it was Ngo’s right hand. Le
also testified that (1) he knew Ngo from seeing him on prior
occasions around their community; (2) Ngo was a member of ADF;
and (3) Ngo was heavyset and had a dragon tattoo on his arm.
Describing his interaction with law enforcement on the
night of the shooting, Le said he told police officers who the
shooter was and identified Ngo in a photographic line-up. Le
also testified that (1) members of AYD had attacked Ngo several
weeks before Quy’s murder; (2) he called two members of AYD
before calling 911 after Quy was shot; and (3) that he lied to
the police regarding his affiliation with AYD.
Next, Detective Chad Ellis testified about his interaction
with Le at the scene of Quy’s murder. Detective Ellis stated
that Le identified Ngo, a “big person,” as Quy’s shooter and
described the events surrounding the crime in a manner
consistent with Le’s testimony at trial. Defense counsel made no
objection to Ellis’ testimony, even though it raised the same
hearsay concern as Officer Cooper and Detective Allen’s
testimony.
Finally, Detective David Allen testified that he spoke with
Phuc and Le at the police station later on the night Quy was
shot, and that both Le and Phuc identified Ngo from a
5
photographic line-up. Defense counsel objected to the admission
of Allen’s testimony regarding what Le had told him. The trial
court determined that Le’s statements to Detective Allen were
admissible as prior consistent statements to rehabilitate Le’s
previously impeached testimony. Detective Allen then testified
that, when he interviewed Le, Le described the events
surrounding Quy’s shooting in a manner consistent with Le’s
testimony at trial.
On March 23, 2006, the jury found Ngo guilty on both
counts. The jury sentenced Ngo to 23 years for murder in the
first degree, and three years for use of a firearm in the
murder, to run consecutively for a total of 26 years.
Ngo appealed his conviction, claiming that the trial court
erred in admitting the testimony of Officer Cooper and Detective
Allen. Accepting the Commonwealth’s concession of error, the
Virginia Court of Appeals (“VCOA”) nonetheless affirmed Ngo’s
conviction, finding that any error was harmless. Ngo v.
Commonwealth, No. 1671-06-4, slip op. at 1 (Va. Ct. App. June
17, 2008). The court noted that while the evidence of Ngo’s
guilt was not overwhelming, the improperly admitted hearsay was
cumulative of other uncontested evidence, namely the eyewitness
testimony, photographic identification, and the testimony from
Detective Ellis to which trial counsel failed to object. The
Virginia Supreme Court denied Ngo’s petition for appeal. Ngo v.
6
Commonwealth, No. 082065 (Va. Mar. 10, 2009), reh’g denied (Va.
Apr. 24, 2009).
B.
In April 2010, Ngo sought post-conviction relief in state
court, claiming, in pertinent part, that trial counsel was
ineffective for not objecting to the photographic line-up and
the Ellis hearsay. Ngo argued that counsel’s neglect provided
the VCOA with the basis on which to find harmless error on
direct appeal. After a hearing, the state court denied the
petition, finding that trial counsel’s omissions did not
prejudice Ngo. Ngo v. Commonwealth, No. CL-2010-6101, slip op.
at 5 (Va. Cir. Ct. May 18, 2011). The court explained that
“there was substantial evidence of [Ngo’s] guilt, including
[Phuc and Le’s testimony]” and that their “testimony was
corroborated by other evidence in addition to the hearsay
evidence that was erroneously admitted.” J.A. 66-67.
The Virginia Supreme Court denied Ngo’s petition for
appeal. Ngo v. Commonwealth, No. 111512 (Va. Oct. 27, 2011).
C.
In January 2012, Ngo filed a 28 U.S.C. § 2254 petition in
the Eastern District of Virginia. In his petition, Ngo alleged
that trial counsel rendered deficient performance by not
objecting to each instance of inadmissible hearsay, specifically
the testimony of Detective Ellis. Ngo asserted that counsel’s
7
carelessness prejudiced him in two distinct ways: it undermined
confidence in the jury’s verdict and it precluded a successful
direct appeal.
Rejecting each of Ngo’s contentions, the district court
determined that the state post-conviction court’s finding
regarding the sufficiency of the evidence was supported by the
fact that Phuc and Le’s accounts of Quy’s murder were very
similar. Further, the court noted that Phuc and Le’s testimony
was corroborated by the physical evidence at the scene of the
crime and by police officer testimony regarding Ngo’s tattoos
and heavy build.
The district court also determined that Ngo could not show
prejudice because the bolstering testimony to which counsel
failed to object was cumulative of the improperly admitted
hearsay to which counsel raised a proper objection but was
overruled. Accordingly, the district court dismissed Ngo’s
petition.
We granted Ngo’s request for a certificate of appealability
as to one issue: whether Ngo’s counsel was constitutionally
ineffective in failing to consistently object to the improper
admission of hearsay during Ngo’s trial.
II.
We review a district court’s dismissal of a habeas petition
de novo, keeping in mind the constraints of 28 U.S.C. § 2254.
8
See Muhammad v. Kelly, 575 F.3d 359, 367 (4th Cir. 2009). Under
the Antiterrorism and Effective Death Penalty Act (AEDPA), we
cannot grant relief unless the state court’s final decision on
the merits
(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); Moore v. Hardee, 723 F.3d 488, 495 (4th
Cir. 2013).
A.
Ngo first contends that the state post-conviction court
made an unreasonable determination of the facts. We presume that
the state court’s factual findings are sound unless Ngo “rebuts
the ‘presumption of correctness by clear and convincing
evidence.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005)
(quoting 28 U.S.C. § 2254(e)(1)).
Ngo insists that the state court erred by finding that
there was substantial evidence and that the eyewitness testimony
was corroborated by other evidence. But Ngo has not shown by
clear and convincing evidence that the state court was incorrect
(to say nothing of “unreasonable”) to credit the two
eyewitnesses, including their photographic identifications of
9
him as the shooter, as corroborated by Detective Allen, as well
as their in-court identifications. Ngo attempts to negate the
effect of the eyewitness testimony by highlighting minor
inconsistencies in the testimony of the two witnesses. The
record reflects that Le and Phuc testified to a substantially
similar series of events, and both identified Ngo at a
photographic lineup following the murder and later in court.
Their unwavering identification of Ngo would be sufficient on
its own, but there is also corroborating testimony of their
photographic identification from Detective Allen, as well as
physical evidence that supports the eyewitness testimony (albeit
not their identification of Ngo as the shooter). We agree with
the district court that Ngo has not offered anything that would
amount to the clear and convincing evidence necessary to
overcome the presumption in favor of the state court’s factual
findings.
B.
Ngo next contends that the state post-conviction court
unreasonably applied clearly established federal law. A state
court’s decision is objectively unreasonable under AEDPA where
the state court “correctly identifies the governing legal rule
but applies it unreasonably to the facts of [the particular]
case, or if the court is unreasonable in refusing to extend the
governing legal principle to a context in which the principle
10
should have controlled.” Barbe v. McBride, 521 F.3d 443, 543-54
(4th Cir. 2008) (internal quotation marks omitted).
Ngo does not dispute that the state post-conviction court
applied the correct test as dictated by Strickland v.
Washington, 466 U.S. 668, 690-94 (1984). “Where a habeas corpus
petition alleges ineffective assistance of counsel, we review
the claim not only through the strictures of the AEDPA but also
‘through the additional lens of Strickland and its progeny.’”
Hardee at 495-96 (quoting Richardson v. Branker,
668 F.3d 128,
139 (4th Cir. 2012)). Strickland lays out a two-part test for a
petitioner to demonstrate that he did not receive the effective
assistance of counsel: first, that the petitioner’s counsel’s
performance was “outside the range of professionally competent
assistance”; and second, that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”
Strickland, 466 U.S. at
690-94; Winston v. Pearson,
683 F.3d 489, 504-05 (4th Cir.
2012). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Strickland, 466 U.S. at
694.
We will focus our analysis on the prejudice prong, as that
is where the state post-conviction court rested its
determination. See id. at 697 (stating that “a court need not
determine whether counsel’s performance was deficient before
11
examining the prejudice suffered by the defendant as a result of
the alleged deficiencies”). 1 At the outset, Ngo asks us to decide
if, when a habeas petitioner raises a question of ineffective
assistance of trial counsel for failing to preserve an issue for
direct appeal, our prejudice analysis looks to whether the
outcome of the direct appeal would have been different, or if
the outcome of the original trial must be called into question.
While this is an interesting issue, 2 this case does not require
us to decide it; Ngo’s claim fails either way.
We agree with the district court that the state post-
conviction court did not unreasonably apply clearly established
1
We do note, however, that the prosecution conceded the
error made by counsel in the state court proceedings. The Warden
now attempts to argue that the state trial court was not in
error in admitting the disputed testimony. We need not decide
whether lawyers for the Commonwealth of Virginia may have it
both ways in this fashion.
2
The federal appellate courts are split on this issue.
Compare Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006)
(rejecting prejudice analysis which relies on a different
outcome on appeal as opposed to the entire criminal proceeding),
and Smith v. Jago,
888 F.2d 399, 405 (6th Cir. 1989) (same) with
Parker v. Ercole,
666 F.3d 830, 834-35 (2d Cir. 2012)
(conducting a Strickland analysis on whether outcome on appeal
would have been different had trial counsel preserved the
objection), and Gov’t of Virgin Islands v. Forte,
865 F.2d 59,
64 (3d Cir. 1989) (“While we realize that ordinarily the
Strickland principles are advanced when the contention is made
that the trial cannot be relied upon to have produced a just
result, we see no logical reason why they should not be
applicable when the defendant was denied a just result on appeal
because of the ineffectiveness of his attorney at the trial.”).
12
federal law as there is not a reasonable probability that either
the outcome of the trial, or the direct appeal, would have been
different had Ngo’s trial counsel objected to the admission of
Detective Ellis’ testimony.
Ngo has not shown that if his trial counsel had acted
differently, there is a reasonable probability that his trial
outcome would have changed. During the trial, the judge ruled on
the admission of two very similar witnesses, Officer Cooper and
Detective Allen, on the same grounds of hearsay. Ngo does not
suggest, and nothing else indicates, that the judge would have
ruled differently on the admission of Detective Ellis’
testimony. Moreover, even if the judge had sustained an
objection (had one been made) to the Ellis testimony, the
content of his testimony – corroborating Le’s story of the
shooting and Le’s identification of Ngo as the shooter – already
was presented to the jury through Le’s own testimony, its
similarity to Phuc’s testimony, and the corroboration of Phuc’s
testimony from the other police officers whose testimony was
allowed over defense counsel’s objections. Ngo’s speculative
argument that it was the singular power of the Ellis testimony
that tipped the credibility of Le and Phuc in favor of the
prosecution is just that, speculation, and the district court
was right to reject it.
13
Nor has Ngo shown a reasonable probability that the outcome
would have been different on direct appeal. The VCOA held that
the admission of the testimony, over objection, from Officer
Cooper and Detective Allen was harmless error, as it was “merely
cumulative of other, undisputed evidence.” J.A. 37. Among the
pieces of the other, undisputed evidence, the VCOA cited to was
Detective Ellis’ testimony, the basis now asserted for trial
counsel’s ineffectiveness. Ngo contends that without this piece
of evidence, which would not have received the appellate court’s
consideration in its harmlessness analysis but for trial
counsel’s failure to object to its admission, there was not an
adequate basis for the VCOA to find the admission of hearsay
testimony harmless error. Thus, he contends, he likely would
have obtained a reversal on appeal and a new trial. We disagree.
As we reason above, Ngo overstates the significance of
Detective Ellis’ testimony. While the VCOA did rely on it, the
testimony was just one of several pieces of evidence, as we have
discussed: even after removing Detective Ellis’ testimony, there
still remains Phuc and Le’s testimony that Ngo was the shooter,
including their out-of-court and in-court identifications;
Detective Allen’s testimony that Phuc and Le identified Ngo in
the photographic lineup (which was certainly admissible under
Virginia law); and the physical evidence regarding the location
14
of shell casings and the bullet holes in Quy’s car, which align
with Phuc and Le’s testimony.
In short, Ngo has failed to show that but for his trial
counsel’s failure to object, the outcome of either his direct
appeal or his trial would have been different. We agree with the
district court that the state post-conviction court did not
unreasonably apply clearly established federal law in coming to
this same conclusion.
III.
For the reasons stated above, the judgment of the district
court is
AFFIRMED.
15
