FILED
NOT FOR PUBLICATION AUG 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VU TRONG NGUYEN, No. 09-15186
Petitioner-Appellant, D.C. No. 04-04104-MHP
v.
MEMORANDUM
DARRELL G. ADAMS, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
Argued and Submitted May 10, 2011
San Francisco, California
Before: B. FLETCHER and THOMAS, Circuit Judges, and GERTNER, District
Court Judge.**
__________________________________
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
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Vu Trong Nguyen (“Nguyen”), a California prisoner, appeals the district
court’s denial of his petition for a writ of habeas corpus on the grounds that his
defense counsel was ineffective for failing to request a heat of passion or voluntary
manslaughter jury instruction. Nguyen raised this claim before the California
Supreme Court in a state habeas petition, which was summarily denied.
We review the district court’s denial of a habeas petition de novo. Lopez v.
Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000). If, however, a state court denies a
habeas petition on the merits (even in a summary decision), we review the petition
under the more deferential standard prescribed by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). See 28 U.S.C § 2254(d); Harrington v. Richter,
131 S. Ct. 770, 784 (2011). Under AEDPA, a federal court may grant a writ of
habeas corpus only if the state court’s decision on the merits was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or “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). We find that the California
Supreme Court could have reasonably concluded that Nguyen’s trial counsel’s
performance, even if constitutionally deficient, did not prejudice him. We affirm
the district court.
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I.
We assume that the parties are familiar with the facts, and recite only those
necessary to our decision. Nguyen was charged with one count of first degree
murder and five counts of attempted murder for a shooting that occurred in a
residential garage on March 16, 1997. With no physical evidence linking Nguyen
to the crime scene, the government focused on Nguyen’s motive, introducing
evidence that the victims were members of a rival gang and that Nguyen’s brother
had been wounded (presumably by members of the rival gang) mere hours before
the shooting. Though several individuals identified Nguyen as the shooter a few
days after the incident, most recanted before or at the trial. Nguyen produced two
alibi witnesses who testified that he was at the hospital with his brother when the
shooting took place.
At the end of the trial, the trial court held a charge conference and asked
defense counsel, “[Y]ou’re not asking for any L-I-Os [lesser-included offenses]
except murder second for Count One?” to which he responded “Right.” The trial
judge then said, “Okay. And I understand your reasoning on that based on what’s
transpired so far.”
The court gave the following instruction to the jury:
If you find that the killing was preceded and
accompanied by a clear, deliberate intent on the part of
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the defendant to kill, which was the result of deliberation
and premeditation, so that it must have been formed upon
preexisting reflection and not under a sudden heat of
passion or other condition precluding the idea of
deliberation, it is murder of the first degree.
(emphasis added).
The instruction approved by the trial court and counsel did not indicate that,
under California law, one who intentionally kills “in the heat of passion” lacks
malice and is guilty of voluntary manslaughter, not murder. C AL. P ENAL C ODE §
192(a). If there is substantial evidence of heat of passion, a voluntary
manslaughter instruction is required in California even if it is against the
defendant’s wishes and regardless of the trial tactics that the defendant has
pursued. People v. Breverman, 960 P.2d 1094, 1100–01 (Cal. 1998).
II.
To prevail on an ineffective assistance of counsel claim, the petitioner must
show not only that his counsel’s performance fell below objective standards of
reasonableness, but also that there is a reasonable probability that absent the errors
the result of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 688, 694 (1984). Under AEDPA our review of an ineffective
assistance of counsel claim is “doubly” deferential. Harrington, 131 S. Ct. at 788
(internal quotation marks and citation omitted).
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Where, as here, the state court issues a summary denial on the merits, federal
courts must attempt to deduce any reasonable basis for the state court’s decision.
Harrington, 131 S. Ct. at 784, 786. If the state court could have denied Nguyen’s
claim through a reasonable application of Strickland’s prejudice prong, we may not
grant the writ. Id. at 788. Therefore, we must ask whether the California Supreme
Court could reasonably conclude that Nguyen has not shown a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
It would have been reasonable for the California Supreme Court to conclude
that, even if the jury had been given a voluntary manslaughter instruction, there
was no reasonable probability that the jury would have found Nguyen guilty of
voluntary manslaughter. The evidence indicated that there was a pre-existing gang
rivalry between Nguyen and the victims and that the shooting was planned—albeit
in a rapid manner. Furthermore, the shooter paused to reload, suggesting that the
shooting was deliberate rather than in the heat of passion. We recognize that there
is strong evidence suggesting heat of passion. But in a case with reasonable
arguments on both sides, we are bound under AEDPA to defer to the state court’s
judgment. Harrington, 131 S. Ct. at 792.
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In sum, because the California Supreme Court could have reasonably denied
Nguyen’s habeas petition on the grounds that trial counsel’s failures did not
prejudice him, the district court’s denial of habeas relief is AFFIRMED.
We deny Nguyen’s motion to expand the certificate of appealability and do
not address the uncertified issues he raised in his opening brief. See Towery v.
Schriro, 641 F.3d 300, 311 (9th Cir. 2010).
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