ROBERT N. BLOCK, 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.
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.").)
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
On March 27, 2009, the San Diego County District Attorney filed an information charging Petitioner and co-defendant Down George Yang ("Yang")
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.)
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
(ECF No. 9-10 at 10-14.)
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.)
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"):
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):
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).
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
During trial, Yang's counsel informed the court on February 4, 2010 that his investigator had contacted Tina Nguyen, an ex-girlfriend of Soulivong, the day before, and that she indicated she had corresponded with D.A.I. Soliven in 2008. (See ECF No. 9-30 at 7-8.) The correspondence related to a search warrant executed at her home that was based on information the District Attorney's Office received from Soulivong. (See id.) Yang's counsel noted that defense counsel did not yet have a copy of that correspondence, but that he was concerned the District Attorney's Office had not turned the correspondence over. (See id. at 8-9.) Defense counsel further indicated that he intended to ask Soulivong, who was on the stand at the time, about the lead he gave the District Attorney's Office, which turned out to be false. (See id. at 9.) The trial judge ultimately ruled that testimony about the search warrant was inadmissible. (See id. at 17-19.)
On February 8, 2010, Yang's counsel represented to the court that he had received from Ms. Nguyen a copy of an August 6, 2008 e-mail, which she had sent to D.A.I. Soliven. (See ECF No. 9-31 at 8-9.) The e-mail, in essence, was a summary of her ten-year duration of knowledge regarding Soulivong. (See id. at 9.) In the e-mail, Ms. Nguyen stated that she knew Soulivong to be "a habitual liar, [who] lies to get himself out of trouble and also for no other reason." (See id.) The e-mail also included specific examples of Soulivong's lies. (See id.)
Yang's counsel represented to the court that D.A.I. Soliven indicated to him that he showed the e-mail to the prosecutor at some point in time, the prosecutor looked at the e-mail, read it over, and said: "Hold on to it. I don't want it." (See id. at 9-10.) Then Mr. Soliven put the letter in a box, and it was not turned over to the defense as Brady material. (See id. at 10.)
Defense counsel argued before the trial judge that the prosecutor should have turned the e-mail over to the defense and that the failure to do so was a violation of Brady. (See id. at 12-16.) After a hearing on February 9, 2010, outside the presence of the jury, the trial court concluded there was no Brady violation. (See ECF No. 9-32 at 150-62.) The trial court took into consideration "the other evidence that exists about [Soulivong's] credibility," noting that it was not the "sole piece of impeaching evidence as to [Soulivong] or even, frankly, a significant one." (See id. at 161.)
The People rested their case-in-chief on February 10, 2010. (See ECF No. 9-33 at 75.) Later that day, defendants called Ms. Nguyen as their first witness. (See id. at 93.) Defense counsel did not question Ms. Nguyen about the search warrant or the e-mail. (See id. at 93-99.) However, Ms. Nguyen testified that Soulivong was a liar who would "lie about what he ate for breakfast, what he did for the day," and "l[ie] for no reason" at all. (See id. at 97.)
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. The obligation extends to favorable evidence regardless of whether it was requested by the defense. See Kyles v. Whitley, 514 U.S. 419, 432-34 (1995); Carriger v. Stewart, 132 F.3d 463, 479 (9th Cir. 1997), cert. denied, 523 U.S. 1133 (1998). The Supreme Court has identified three components of a Brady violation: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also United States v. Stinson, 647 F.3d 1196, 1208 (9th Cir. 2011) (citation omitted). Brady applies not only to information known to the prosecutor, but also to "evidence known only to police investigators and not to the prosecutor." See Strickler, 527 U.S. at 280-81 (citation & quotation marks omitted).
As to the third Brady criterion, "[t]o determine whether prejudice exists, we look to the materiality of the suppressed evidence." Jackson v. Brown, 513 F.3d 1057, 1071 (9th Cir. 2008); see also Strickler, 527 U.S. at 282. "[E]vidence is `material' within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Cone v. Bell, 556 U.S. 449, 469-70 (2009); see also United States v. Jernigan, 492 F.3d 1050, 1053-54 (9th Cir. 2007) (en banc). For this purpose, "reasonable probability" is a lower threshold than a finding that the outcome "would more likely than not" have been different. See Kyles, 514 U.S. at 434. Rather, "favorable evidence is subject to constitutionally mandated disclosure when it `could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" See Cone, 556 U.S. at 470 (quoting Kyles, 514 U.S. at 435); see also Banks v. Dretke, 540 U.S. 668, 698-99 (2004); Strickler, 527 U.S. at 290.
In rejecting this claim when Petitioner raised it on direct appeal, the Court of Appeal reasoned that even if the e-mail qualified as Brady material, Petitioner had failed to make the requisite showing of suppression or prejudice, stating as follows:
(ECF No. 9-11 at 20-21.) This Court concurs with the Court of Appeal's reasoning and conclusions.
First, Petitioner's counsel learned of the e-mail during trial in sufficient time to obtain it from Ms. Nguyen and to utilize it in his examination of her, if he had chosen to do so. Thus, there was no suppression of the e-mail by the prosecutor.
Second, the Court of Appeal reasonably applied clearly established Supreme Court law in finding there was no prejudice. During trial, both the prosecution and defense counsel elicited testimony regarding Soulivong's propensity for lying, and his history of lying to law enforcement. (See, e.g., ECF No. 9-28 at 281; ECF No. 9-29 at 120, 159; ECF No. 9-33 at 97-99, 106-09.) Soulivong also admitted on the stand that he initially lied to law enforcement about who was involved in the shooting of Mr. Su, first pointing the finger at Pathammavong and Sulit, before changing his story to say that the defendants committed the shooting. (See ECF No. 9-28 at 281; ECF No. 9-29 at 159.)
Moreover, as noted above, Petitioner's counsel had possession of the e-mail when he called Ms. Nguyen to testify and had an opportunity to utilize it in his examination of her, but chose not to do so. (See ECF No. 9-33 at 93-99.) "When a defendant has the opportunity to present impeaching evidence to the jury, . . . there is no prejudice in the preparation of his defense." Aichele, 941 F.2d at 764 (citing United States v. Shelton, 588 F.2d 1242, 1247 (9th Cir. 1978)); see also United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) (substantial opportunity to use information at trial cures any prejudice caused by delayed disclosure).
The Court therefore finds that the Court of Appeal's rejection of this claim neither was contrary to nor involved an unreasonable application of clearly established Supreme Court law.
In Ground 2 of the Petition, Petitioner claims that his conviction was the result of prosecutorial misconduct. (Pet. at 7.) Petitioner contends the prosecutor engaged in misconduct by (a) misrepresenting to the trial judge that defense counsel had elicited certain details from Pathammavong regarding a 2003 shooting, when in fact it was the prosecutor who had elicited the information from this witness, and (b) procuring a curative instruction based on this misrepresentation. (Id.) In Ground 3 of the Petition, Petitioner makes the related claim that the trial court erred in giving the curative instruction requested by the prosecution. (Id. at 8.)
Prosecutorial misconduct is cognizable in federal habeas corpus. Darden v. Wainwright, 477 U.S. 168, 181 (1986). "[T]he appropriate standard of review for such a claim ... is the narrow one of due process, and not the broad exercise of supervisory power." Id. (internal quotation marks omitted). A defendant's due process rights are violated when a prosecutor's misconduct renders a trial fundamentally unfair. Id.; Smith v. Phillips, 455 U.S. 209, 219 (1982) (noting "the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). Under Darden, the first issue is whether the prosecutor's remarks were improper; if so, the next question is whether such conduct "infected the trial with unfairness." Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005); see also Parker v. Matthews, 567 U.S. 37, 45 (2012) (recognizing Darden as "clearly established Federal law" regarding prosecutorial misconduct). A prosecutorial misconduct claim is decided by "examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process." Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (internal quotation marks omitted).
On federal habeas review of instructional error by a state court, federal courts are bound by a state court's interpretation of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (the fact that a jury instruction "was allegedly incorrect under state law is not a basis for habeas relief"). Federal habeas relief based on instructional error is warranted only if the petitioner shows "both that the instruction was ambiguous and that there was "`a reasonable likelihood'" that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt." Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (citing Estelle, 502 U.S. at 73, n.4 (quoting Boyde v. California, 494 U.S. 370, 379-80 (1990))).
In making this determination, the jury instruction "`may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). "[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation." Middleton v. McNeil, 541 U.S. 433, 437 (2004). "Because it is not enough that there is some `slight possibility' that the jury misapplied the instruction, Weeks v. Angelone, 528 U.S. 225, 236 (2000), the pertinent question `is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,'" Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147)." Waddington, 555 U.S. at 191.
In its Opinion, the Court of Appeal provided the following background:
(ECF No. 9-11 at 22-25.)
In rejecting Petitioner's claims corresponding to Grounds 2 and 3, the Court of Appeal did not address the question of whether the prosecutor's original misstatement rose to the level of prosecutorial misconduct, or whether the trial court had erred in giving the curative instruction. Instead, the Court of Appeal went directly to the question of whether the prosecutor's conduct and the curative instruction constituted harmless error. Specifically, the Court of Appeal concluded that it "need not determine whether the prosecution engaged in any misconduct or whether the trial court erred in giving the curative instruction because even if [it] assume[d] the record supported such conclusions, [it] nonetheless would conclude any conceivable error, misconduct or deficiency was harmless by any standard." (ECF No. 9-11 at 25 (citing People v. Sandoval, 4 Cal.4th 155, 193-94 (1992) (alleged prosecutorial misconduct harmless where there was no reasonably possibility the jury would have reached a more favorable verdict had the misconduct not occurred)).)
Under Brecht v. Abrahamson, 507 U.S. 619 (1993), "habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice." Davis v. Ayala, 135 S.Ct. 2187, 2197 (2015) (citing Brecht, 507 U.S. at 637) (internal citations and quotation marks omitted). "Under this test, relief is proper only if the federal court has grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict." Id. at 2197-98 (citing O'Neal v. McAninch, 513 U.S. 432, 436 (1995)). There must be more than a "reasonable possibility" that the error was harmful. Id. at 2198 (citing Brecht, 507 U.S. at 637).
The Brecht test does not abrogate, however, the requirements of § 2254. Davis, 135 S. Ct. at 2198. Because the "highly deferential AEDPA standard" applies, a federal court may not overturn a state court's decision unless it applied its harmless error standard in an "objectively unreasonable" manner. Davis, 135 S. Ct. at 2198-99 (citing Mitchell v. Esparza, 540 U.S. 12, 18 (2003)); see also Fry v. Pliler, 551 U.S. 112, 119 (2007) (a "federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable"). A state court decision is not unreasonable if fairminded jurists could disagree on its correctness. Id. at 2199 (internal quotations omitted) (citing Richter, 562 U.S. at 101). Petitioner must therefore show that the state court's decision to reject his claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. (citing Richter, 562 U.S. at 103).
The Court finds that Petitioner has not met this burden. The Court of Appeal reasonably determined that "any conceivable error, misconduct or deficiency was harmless by any standard." (See ECF No. 9-11 at 25.) First, the alleged prosecutorial misstatement was made to the trial judge outside the presence of the jury. (See ECF No. 9-26 at 237-40; ECF No. 9-27 at 11-15, 24-28.) Second, the alleged misstatement, i.e., the misattribution of information elicited by the prosecutor to defense counsel, was corrected by defense counsel and the trial court accepted defense counsel's correction, but decided to give the curative instruction anyway. (See ECF No. 9-27 at 25-26.) Thus, it is inconceivable that the alleged misstatement had a substantial and injurious effect or influence in determining the jury's verdict. Moreover, as also noted by the Court of Appeal, defense counsel had an opportunity to modify the proposed jury instruction to make it more passive before it was given. (See id. at 25-28.)
In addition, the Court concurs with the Court of Appeal that the curative instruction, which was generally covered by the final jury instructions, did not cast the defense in a negative light. (See ECF No. 9-11 at 25.) Rather, the instruction, which "merely cautioned the jurors that the facts underlying Pathammavong's conviction in 2004 were not to be considered," was content neutral. (See id.) When the trial judge stated, "you may have heard some inaccurate information regarding [Pathammavong's] criminal history," he did not attribute the elicitation of the inaccurate information to any particular party. (See ECF No. 9-27 at 28.)
The Court therefore finds that the Court of Appeal did not apply its harmless error standard in an objectively unreasonable manner. Nor, for the same reasons, does the Court find that either the prosecutor's alleged misstatement or the trial court's curative instruction so infected the trial with unfairness as to make the resulting conviction a denial of due process.
Accordingly, Petitioner is not entitled to habeas relief on Grounds 2 and 3.
In Ground 4 of the Petition, Petitioner claims that trial counsel's failure to request a third-party culpability instruction constituted ineffective assistance of counsel and deprived him of his right to due process and a fair trial. (Pet. at 9.)
On direct appeal, one of the claims Petitioner raised was that the trial court had erred in failing to sua sponte instruct the jury on a third-party culpability defense. (See ECF No. 11 at 26.) In the alternative, Petitioner claimed that his trial counsel rendered ineffective assistance in failing to request a third-party culpability defense. (See id.)
The Court of Appeal rejected Petitioner's instructional error claim, citing a California Supreme Court case
The Court of Appeal also rejected Petitioner's related ineffective assistance of counsel claim. (See ECF No. 12 at 3-4.) It reasoned that Petitioner was not prejudiced by counsel's failure to request the instruction because the jury was properly instructed on the presumption of innocence, the People's burden of proof, and the concept of reasonable doubt. (See id. at 4.) In addition, the Court of Appeal found that the record clearly showed that the jury knew the defense believed individuals other than the defendants (e.g., Pathammavong) committed the drive-by shooting, and if the jury believed a third-party and not the defendants committed the crime, presumably it would have acquitted one or both of the defendants of the crime. (See id.)
In his federal habeas petition, Petitioner has not raised the instructional error claim that he raised on direct appeal. But he has raised his ineffective assistance of counsel claim based on trial counsel's failure to request a third-party culpability instruction. (See Pet. at 9.)
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held that there are two components to an ineffective assistance of counsel claim: "deficient performance" and "prejudice." Id. at 694. "Deficient performance" in this context means unreasonable representation falling below professional norms prevailing at the time of trial. See id. at 688-89. To show "deficient performance," petitioner must overcome a "strong presumption" that his lawyer "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Further, petitioner "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. The Court must then "determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance." Id. The Supreme Court in Strickland recognized that "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689. Accordingly, to overturn the strong presumption of adequate assistance, petitioner must demonstrate that "the challenged action cannot reasonably be considered sound trial strategy under the circumstances of the case." See Lord v. Wood, 184 F.3d 1083, 1085 (9th Cir. 1999), cert. denied, 528 U.S. 1198 (2000).
To meet his burden of showing the distinctive kind of "prejudice" required by Strickland, petitioner must affirmatively "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694; see also Richter, 562 U.S. at 111 ("In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently."); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (noting that the "prejudice" component "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair").
Moreover, it is unnecessary to address both Strickland requirements if petitioner makes an insufficient showing on one. See Strickland, 466 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed."); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other."); Williams v. Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995), cert. denied, 516 U.S. 1124 (1996) (disposing of an ineffective assistance of counsel claim without reaching the issue of deficient performance because petitioner failed to make the requisite showing of prejudice).
This Court concurs with the Court of Appeal's determination that Petitioner has failed to make the requisite showing of Strickland prejudice. First, the Court of Appeal determined that the jury "was properly instructed [under state law] on the presumption of innocence, the People's burden of proof, and the concept of reasonable doubt." (See ECF No. 9-12 at 4.)
Second, it appears from the trial record that the jury heard evidence regarding Pathammavong's alleged role in the incident. During trial, Syrattanakoun testified as a witness for the prosecution. (See ECF No. 9-25 at 148 to 9-26 at 90.) He testified that he informed police during a 2004 interview that Pathammavong had told him that he committed the shooting. (ECF No. 9-26 at 40-41, 51-56.) Syrattanakoun further testified that he also told police during the 2004 interview that he had seen Pathammavong and Sulit drive into the alley where the shooting occurred. (Id. at 38, 59.)
After Syrattanakoun took the stand, Pathammavong testified for the prosecution. (See ECF No. 9-26 at 136 to ECF No. 9-27 at 76.) Pathammavong testified that he told his friends that he committed the shooting. (Id. at 184.)
Later, Soulivong took the stand, and testified that he originally told law enforcement that Pathammavong and Sulit committed the shooting. (ECF No. 9-29 at 281.)
Given the foregoing, this Court finds that it was not objectively unreasonable for the Court of Appeal to conclude that "the record clearly shows that the jury knew the defense believed individuals other than Le and Yang (e.g., Pathammavong) committed the drive-by shooting." (See ECF No. 9-12 at 4.)
In his Petition, Petitioner also contends that he was prejudiced by his counsel's failure to request a third-party culpability instruction because CALCRIM Nos. 334 and 373 led the jurors to find Pathammavong culpable solely in addition to, or as an accomplice of, the defendants, and not culpable as the perpetrator, and that a third-party instruction would have cured this deficiency. (Pet. at 9.) CALCRIM Nos. 334 and 373 state:
(ECF No. 9-41 at 45-46.)
(ECF No. 9-41 at 55.)
Petitioner made the same argument on direct appeal and the Court of Appeal rejected it. (See ECF No. 9-12 at 2-4, n.13.) The Court of Appeal noted that CALCRIM No. 334 simply "states the rule provided in Penal Code section 1111 that a defendant cannot be convicted by the testimony of an accomplice unless it is corroborated by other evidence. This rule exists because the testimony of an accomplice is viewed with a certain amount of caution." (Id. at 3, n.13.) In addition, the Court of Appeal noted that CALCRIM No. 373 simply "focuses on the significance of the facts that (1) the third party may not be currently participating in the criminal prosecution of the defendant, and/or (2) may not have been, or might not be, criminally prosecuted." (Id. at 2.) The instruction "does not tell the jury it cannot consider evidence that someone else committed the crime, but rather it merely says the jury is not to speculate on whether someone else might or might not be prosecuted." (Id. (internal quotation marks omitted).) As such, the Court of Appeal found that these instructions related to issues irrelevant to third-party culpability. (Id.)
This Court concurs with the Court of Appeal's reasoning. First, as the Court of Appeal explained, CALCRIM Nos. 334 and 373 do not relate to third-party culpability. Second, at no time was the jury instructed that it could not consider Pathammavong to be a perpetrator of the crime. In his closing, the prosecutor, in discussing CALCRIM No. 334, even informed the jury that it had to determine whether Pathammavong was an accomplice. (See ECF No. 9-33 at 263-64.) Thus, his role in the offense was not clearly defined, despite the plea agreement. In addition, defense counsel argued in closing that Pathammavong was more involved than as an accomplice, relying on the testimony presented at trial. (See ECF No. 9-34 at 31-37, 102-05.) As such, this Court finds that it was not objectively unreasonable for the Court of Appeal to find there was no prejudice when defense counsel decided not to ask for a third-party culpability instruction.
The Court therefore finds that the Court of Appeal's rejection of Petitioner's ineffective assistance of counsel claim on the basis of his failure to make the requisite showing of Strickland prejudice neither was contrary to nor involved an unreasonable application of clearly established Supreme Court law.
Any party having objections to the Court's proposed findings and recommendations shall serve and file specific written objections within
The parties are advised that Rule 11 provides that in habeas corpus matters pursuant to 28 U.S.C. § 2254, the District Judge must issue or deny a Certificate of Appealability when a final order adverse to the applicant is entered. The parties may wish to take this Rule into consideration at the time they file any Objections to the Report and Recommendation.
The Report and Recommendation of a Magistrate Judge is not a final appealable order. Any Notice of Appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of a judgment and/or order by the District Judge.
