NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIK HUNG LE, No. 18-56434
Petitioner-Appellant, D.C. No.
3:16-cv-02302-WQH-RNB
v.
M. E. SPEARMAN, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted October 20, 2021**
Pasadena, California
Before: CALLAHAN and FORREST, Circuit Judges, and AMON,*** District
Judge.
In February 2010, a jury convicted Petitioner-Appellant Erik Le of murder,
attempted premeditated murder, discharging a firearm from a car, and assault with
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
a semi-automatic firearm. Mr. Le was sentenced to prison for 96 years to life. After
an unsuccessful direct appeal in state court, Mr. Le filed a federal habeas petition.
The district court denied the petition, and Mr. Le appealed. We affirm.
We review (1) de novo the district court’s denial of a habeas petition and (2)
for clear error any factual findings made by the district court. See Martinez v. Cate,
903 F.3d 982, 991 (9th Cir. 2018). As the parties agree, the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) applies here. AEDPA bars re-
litigation of any habeas claims that have been adjudicated on the merits in state
court, unless the state court adjudication “(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)(1)–(2).
The petitioner has the burden of showing that the state court decision is objectively
unreasonable. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Mr. Le asserts four grounds for relief. First, he argues that the government
committed prosecutorial misconduct through misrepresentations to the court at
trial. The government incorrectly accused defense counsel of asking a witness
several inflammatory questions and thereby violating an in limine ruling regarding
a witness’s prior conviction. But the in limine ruling was not as restrictive as
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government counsel represented and defense counsel had not asked the
inflammatory questions—the referenced testimony had come during the
government’s examination of another witness. On direct appeal, the California
Court of Appeal found that even if the government’s accusations constituted
prosecutorial misconduct, “any conceivable error, misconduct or deficiency were
harmless by any standard.” Although the government’s comments were sloppy and
may even deserve condemnation, the Court of Appeal’s conclusion is nonetheless
reasonable because the comments were made outside the jury’s presence and did
not “so infect[] the trial with unfairness as to make the resulting conviction a denial
of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
Second, Mr. Le argues that the trial court erred by granting the government’s
request for a curative jury instruction based on the false assertions made against
defense counsel. Unlike the government misstatements, the jury instruction was
presented to the jury. The court told the jury that it “may have heard some
inaccurate information regarding [a government witness’s] criminal history [during
cross-examination]. I would like to correct that, if it occurred, at this time.” Mr. Le
argues that this jury instruction cast defense counsel in a negative light by
suggesting that defense counsel was responsible for the misinformation. The Court
of Appeal rejected this argument on several grounds. Even if some of the Court of
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Appeal’s reasoning is problematic, its conclusion that any error was harmless is
reasonable, particularly since the jury was as likely to infer that the misinformation
came from the government witness—who faced credibility issues as a gang
member and former co-defendant in the case—as from defense counsel. Mr. Le has
not shown that the Court of Appeal’s determination was “so lacking in justification
that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86,
103 (2011).
Third, Mr. Le argues that the government violated its obligations under
Brady v. Maryland, 373 U.S. 83 (1963), when it failed to disclose an email sent to
the government by a government witness’s ex-girlfriend that criticized the
witness’s credibility. The Court of Appeal concluded that there was no Brady
violation because Mr. Le could not show that the government suppressed the email
or that Mr. Le suffered any prejudice. See Strickler v. Greene, 527 U.S. 263, 282
(1999). Mr. Le’s attorney learned of the email during trial in sufficient time to use
it in his examination of the ex-girlfriend but chose not to. There was also ample
other evidence of the government witness’s propensity for lying. Mr. Le has not
shown that the Court of Appeal’s decision was unreasonable.
Finally, Mr. Le argues that he had ineffective assistance of counsel. One
defense theory asserted at trial was that two other witnesses had committed the
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alleged crimes instead of Mr. Le and his co-defendant. But defense counsel did not
ask for a jury instruction regarding third-party culpability. Applying Strickland v.
Washington, 466 U.S. 668 (1984), the Court of Appeal reasonably determined that
Mr. Le was not prejudiced by this failure. The jury was properly instructed on
other related issues, including instructions on the presumption of innocence, the
burden of proof, and reasonable doubt. The record shows that the defense argued to
the jury that individuals other than the defendants committed the charged crimes.
The jury still convicted Mr. Le. There is no basis to conclude that a third-party
culpability instruction would have changed this result.
AFFIRMED.
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Erik Le v. M. Spearman
Combined Opinion