400 F.3d 740 (9th Cir. 2005), 03-17214, Pham v. Terhune

Docket Nº:03-17214.
Citation:400 F.3d 740
Party Name:Dung The PHAM, Petitioner-Appellant, v. C.A. TERHUNE, Respondent-Appellee.
Case Date:March 07, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 740

400 F.3d 740 (9th Cir. 2005)

Dung The PHAM, Petitioner-Appellant,


C.A. TERHUNE, Respondent-Appellee.

No. 03-17214.

United States Court of Appeals, Ninth Circuit.

March 7, 2005.

Argued and Submitted Sept. 17, 2004

Page 741

Cliff Gardner, San Francisco, CA, for the petitioner-appellant.

Glenn R. Pruden, Office of the California Attorney General, San Francisco, CA, for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-02-01348-PJH.

Before BEEZER, W. FLETCHER, and FISHER, Circuit Judges.


Dung The Pham, a California state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. In 1998, a jury convicted Pham and his co-defendant, Son Hoang Nguyen, of first degree murder. Pham was sentenced to a term of 29 years to life.

The State and Pham agree that Tong Nguyen was murdered by two gunmen, and that one of the gunmen was Tien Ha, who remains at large. At trial, Pham presented a defense arguing that another man, Hoang Tuan, was the second shooter. On the basis of a license plate identification, Tuan was arrested on the night of the murder. An eyewitness had also identified Tuan as one of the assailants in a photo lineup. While in police custody, Tuan was subjected to a gunshot residue (GSR) test, which was analyzed by state criminalist Mario Soto. Tuan was later released from custody and was never charged with Nguyen's murder.

At Pham's trial, the defense called Soto as a witness. Soto testified that Tuan's hands contained several particles consistent with, but not unique to, GSR as well as one particle--a mixture of titanium and antimony with a molten appearance--inconsistent with GSR. Stating that he was unable to rule out environmental sources, Soto testified that the GSR test was inconclusive. Soto further testified that if he had found a molten-looking particle containing barium, lead, and antimony or barium and antimony, he could testify conclusively to the presence of GSR. Prior to trial, Pham's attorney requested in a letter that the state disclose expert reports, statements, and test results, including criminalists' notes. Although the state disclosed Soto's one-page report of conclusions regarding the GSR test, it did not disclose the underlying laboratory notes or raw data before trial, and Pham's trial counsel did not seek a court order mandating disclosure. Since trial, the state has consistently refused Pham's repeated requests for the laboratory notes.

Pham exhausted his claims in state court and filed this amended habeas petition in the district court. The district court denied the petition. Pham...

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