Huy Tran v. Kelly Harrington

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 06 2015

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

HUY TRONG TRAN, No. 13-55640

Petitioner - Appellant, D.C. No. 8:11-cv-01865-AG-JPR

v.
MEMORANDUM*
KELLY HARRINGTON, Warden,

Respondent - Appellee.

Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding

Submitted December 11, 2014**
Pasadena, California

Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.

Huy Trong Tran was convicted of numerous charges, including attempted

first degree murder and attempted voluntary manslaughter, following a series of

violent confrontations between Tran, his ex-girlfriend (Michelle Ho), and his ex-

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
girlfriend’s new boyfriend (Antonio Hernandez).1 Tran appeals the district court’s

order dismissing his 28 U.S.C. § 2254 habeas corpus petition. He argues the state

court unreasonably denied his claim that his trial counsel was ineffective under

Strickland v. Washington, 466 U.S. 668 (1984), by failing to retain an expert to

testify that Tran’s methamphetamine use prevented him from formulating the

required intent for attempted murder and attempted voluntary manslaughter. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s order.

We “review de novo a district court’s decision to deny a habeas petition

brought under 28 U.S.C. § 2254.” Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.

2001). Here, the district court correctly concluded that Tran’s ineffective

assistance of counsel claim was denied on the merits. The writ will not issue

unless “there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with [the Supreme] Court’s precedents.” Harrington v.

Richter, 131 S. Ct. 770, 786 (2011). When evaluating Strickland claims under

AEDPA, our review is “doubly deferential.” Knowles v. Mirzayance, 556 U.S.

111, 123 (2009).

1
The parties are familiar with the facts of the case, so we will not
recount them here.

2
A district court’s denial of a habeas petitioner’s request for an evidentiary

hearing is reviewed for abuse of discretion. West v. Ryan, 608 F.3d 477, 484 (9th

Cir. 2010).

1. The clearly established federal law regarding ineffective assistance of

counsel is found in Strickland. Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).

To prevail on an ineffective assistance of counsel claim, a habeas petitioner must

prove that counsel’s performance was deficient and that the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687. This court looks to the state

court’s last reasoned decision. Benson v. Terhune, 304 F.3d 874, 880 n.5 (9th Cir.

2002). Here, that is the California superior court’s July 2011 decision.

We conclude the state superior court did not unreasonably apply Strickland

when it ruled that Tran failed to show deficient performance by his trial counsel.

There was no declaration from trial counsel addressing why he did not use a drug

expert at trial, and no showing that a drug expert was available who would provide

favorable testimony.

2. Tran requests that the court take judicial notice of scientific research on how

methamphetamine use impairs cognitive functioning. We deny this request

because “review under § 2254(d)(1) is limited to the record that was before the

3
state court that adjudicated the claim on the merits.” Pinholster, 131 S. Ct. at

1398.

3. Prior to obtaining counsel on appeal, Tran also requested that this court take

judicial notice of Johnson v. United States, 860 F. Supp. 2d 663 (N.D. Iowa 2012).

We deny this request because it is not clear what fact Tran wants noticed, and

because he did not renew this request after he obtained counsel.

4. Finally, Tran argues that if the court is unwilling to grant relief based on the

state record, it should remand for an evidentiary hearing under § 2254(e)(2). But

apart from his conclusory assertion, Tran has not shown that he is entitled to an

evidentiary hearing. See Pinholster, 131 S. Ct. at 1398–1401. Even accepting

Tran’s allegations as true, he did not establish a prima facie case for relief.

AFFIRMED.