Nguyen v. Pallares

MY LOAN NGUYEN, Petitioner, v. MICHAEL PALLARES, Acting Warden, Respondent.

Case No. C 19-2952 WHA (PR)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 2, 2021

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND GRANTING CERTIFICATE OF APPEALABILITY AS TO MIRANDA VIOLATION AND INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

INTRODUCTION

This is a federal habeas corpus action filed by a state prisoner pursuant to 28 U.S.C. § 2254.¹ Respondent was ordered to show cause why the petition should not be granted. Respondent filed an answer denying petitioner's claims. Petitioner filed a traverse. For the reasons stated below, the petition is DENIED.

STATEMENT

A. PROCEDURAL BACKGROUND

In 2014, a Santa Clara County jury convicted petitioner of attempted premeditated murder (count 1) and two counts of discharging a firearm from a vehicle at a nonoccupant (counts 2 & 3). The jury found true the allegation on count 1 that petitioner personally discharged a firearm, but it found not true the allegation that petitioner caused great bodily injury to the victim. Regarding count 2, the jury found not true the allegation that petitioner caused great bodily injury. At a subsequent court trial in June 2014, the Santa Clara County Superior Court found not true the allegation that petitioner had served a prior prison term.

On January 30, 2015, the trial court sentenced petitioner to life in prison with the possibility of parole on count 1, plus a consecutive twenty-year term for the firearm enhancement. The trial court stayed the sentence on count 3 and ran the sentence of a midterm of five years for count 2 concurrently with the executed sentences.

On appeal, the California Court of Appeal affirmed the judgment. On September 14, 2016, the California Supreme Court denied review.

On May 8, 2017, petitioner filed state habeas petition in the Santa Clara County Superior Court. On May 3, 2018, the state superior court denied the petition in a reasoned decision.

On May 25, 2018, petitioner filed a state habeas petition in the California Court of Appeal. On September 17, 2018, the state appellate court denied the petition.

On November 15, 2018, petitioner filed a state habeas petition in the California Supreme Court. On April 17, 2019, the state supreme court denied the petition.

On May 29, 2019, petitioner filed her federal petition under 28 U.S.C. 2254, in which she raises four claims: (1) her statements to police were introduced in evidence in violation of Miranda²; (2) police failed to preserve potentially exculpatory evidence and the trial court erred in denying her motion seeking dismissal of the case on this ground, filed pursuant to California v. Trombetta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488 U.S. 51 (1988) (hereinafter "Trombetta/Youngblood motion"); (3) her sentence is cruel and unusual in violation of the Eighth Amendment; and (4) an ineffective assistance of counsel ("IAC") claim during the course of plea negotiations. Petitioner raised her Miranda violation claim on direct review, and she raised the remaining claims on collateral review.

On June 28, 2019, the court ordered respondent to show cause why the petition should not be granted. On September 26, 2019, respondent answered. On October 21, 2019, petitioner filed her traverse.

B. FACTUAL BACKGROUND

The following description of the evidence presented at trial has been taken in part from the opinion of the California Court of Appeal (Resp. Exh. E at 2)³ and from the trial court record.

Prosecution Evidence

In 2012, the victim, Tracy Pham, lived with her boyfriend, Tri Nguyen,⁴ and her three children in San Jose. Vol. 4, Reporter's Transcript ("4RT") 423-424. In 2005, Pham split up with Hai Huynh, the father of two of Pham's oldest children, but they continued to remain in contact about their kids, sometimes through his parents. 4RT 423-424, 431.

Pham had been friends with petitioner for about ten years. 4RT 425, 460, 463. Petitioner was Tri's cousin, and he had known her all his life. 4RT 566. Sometime in early 2012, Pham introduced petitioner to Huynh, and they began to date. 4RT 427-428, 462, 464.

According to the state court opinion, the evidence at trial reflected that during the early morning of October 25, 2012, the date of the incident, Pham was waiting outside of a store to meet petitioner. Pham was with Tri, and Huynh was nearby. Petitioner and Pham had earlier exchanged angry words on the phone before deciding to meet. Petitioner arrived at the Pham's location as a passenger in a vehicle. As Pham and Tri approached the vehicle, petitioner fired a gun from the vehicle. The driver and petitioner then drove off. The police were dispatched to the scene, and petitioner was apprehended shortly thereafter. Petitioner was interviewed in the back of the police car and later at the police station.⁵

San Jose Police Officer Santiago, who was responsible for apprehending petitioner during a "high-risk vehicle stop," testified that upon making the stop he noticed an unspent 9-millimeter bullet in plain view on the front passenger seat. 4RT 591, 594. Officer Santiago also noticed aspent shell casing on the exterior of the vehicle on the left side of the windshield. 4RT 595. The office found no gun in the car. 4RT 594. Officer Santiago took petitioner into custody and placed bags over her hands to preserve possible gunshot residue. 4RT 594, 596-97. Subsequently, the samples from petitioner's left and right hands were tested and laboratory analysis detected the presence of gunshot residue on both hands. 4RT 627, 704-706.

Pham was treated in the emergency room of Valley Medical Center for multiple gunshot wounds caused by bullet fragments. 4RT 579; 5RT 782-783, 817-822.

San Jose Police Officer Chris Heinrich was dispatched to Valley Medical Center to contact Pham. 4RT 578-579. Pham was being treated for multiple lacerations in her thigh and buttocks. 4RT 579. Officer Heinrich interviewed Pham, and he did not recall that she appeared to be impaired by alcohol. 4RT 580-82. Officer Heinrich's report contained nothing to indicate she was intoxicated, and he likely would have noted such if she had been. 4RT 582-84.

Pham was advised to stay at the hospital for an additional day, but she decided to return home to take care of her children. 4RT 452-53. Pham was in pain and unable to walk when she left the hospital. 4RT 454. She was prescribed painkillers. 4RT 454. Pham was able to return to work as a waitress within two weeks, but at the time of trial, she continued to feel pain in her leg. 4RT 455-56. She had a "bullet hole" scar in her leg. 4RT 457.

Defense Evidence

A forensic firearm expert testified that the bullet fragments which lodged in Pham's thigh must have struck some intervening object before hitting her. 5RT 776, 782. Based on the Pham's medical records the entry wound had a diameter of one centimeter and the fragments were subcutaneous indicating the "penetration was very, very shallow . . . . There were two fragments, and they were barely under the skin." 5RT 782. There were no corresponding exit wounds. 5RT 783. The penetrative effect of the bullet or fragments was "almost zero." 5RT 790. Based on these factors, the expert opined the bullet "definitely hit an intervening object first." 5RT 782.

The defense also presented the expert testimony of an emergency room physician thatPham's wounds were superficial, "just below the skin." 5RT 823; see also 5RT 813-23. The emergency treatment was "nonsurgical," and the bullet fragments were not removed from the victim's thigh. 5RT 817-19, 822. The medical report indicated the entrance wound to the thigh was 1.0 by 0.5 centimeters and surrounded by three abrasions, but no exit wound existed. 5RT 818. There was no significant bleeding associated with that wound. 5RT 818. When Pham was released from the hospital, her pain level was rated a "0" on a scale of 0 to 10. 5RT 819.

Finally, the defense presented expert testimony of a forensic toxicologist that toxicology testing of Pham's blood indicated she would have had a blood-alcohol level of .202 at 2:20 a.m. on October 25, 2012. 5RT 842-845. The expert opined that at this level, she would be "impaired with respect to driving" and there was a "high likelihood that [she] would appear evidently drunk." 5RT 845.

ANALYSIS

A. STANDARD OF REVIEW

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may entertain a petition for 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 petition may not be granted with respect to any claim 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." 28 U.S.C. 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 United States 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 (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000)."Under the 'unreasonable 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 that court concludes in its independent judgment that the...