Don Soon Park v. People of the State of Ca., No. 96-56750

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: TROTT
• Citation: 202 F.3d 1146
• Parties: (9th Cir. 2000) DON SOON PARK, Petitioner-Appellant, v. PEOPLE OF THE STATE OF (JR) CALIFORNIA; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellees
• Docket Number: No. 96-56750
• Decision Date: 21 January 2000

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202 F.3d 1146 (9th Cir. 2000) DON SOON PARK, Petitioner-Appellant,
v.
PEOPLE OF THE STATE OF (JR) CALIFORNIA; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellees. No. 96-56750 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted October 5, 1998
Opinion Filed January 14, 1999
Opinion Withdrawn January 21, 2000
Filed January 21, 2000

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COUNSEL: Sharon M. Bunzel, O'Melveny & Myers, San Francisco, California, for the petitioner-appellant.

Carl N. Henry, Deputy Attorney General, Los Angeles, California, for the respondents-appellees.

Appeal from the United States District Court for the Central District of California; James M. Ideman, District Judge, Presiding. D.C. No. CV-96-02841-JMI (JR).

Before: Procter Hug, Jr., Chief Judge, Betty B. Fletcher, and Stephen S. Trott, Circuit Judges.

ORDER

The opinion filed January 14, 1999, is hereby WITHDRAWN.

OPINION

TROTT, Circuit Judge:

Don Soon Park seeks review of a decision by the District Court for the Central

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District of California dismissing his petition for a writ of habeas corpus under 28 U.S.C.S 2254(a) (1994). Park's petition contained four claims. The district court dismissed his first claim on the merits, holding that the state court's consolidation for trial of crimes committed on different occasions did not present a federal due process concern. The district court dismissed Park's remaining claims as procedurally defaulted in the California courts. Park could have pursued those claims on direct appeal from his conviction, and the district court concluded that Park's failure to do so constituted a procedural default from which he was not entitled to relief.

Park has since completed his prison sentence on the conviction at issue in this habeas petition. He was thereafter ordered deported based on that conviction and released on bail pending his appeal of the deportation order. Park's release from prison does not moot his habeas petition. Wood v. Hall, 130 F.3d 373, 376 (9th Cir. 1997). Because he faces deportation, Park suffers actual consequences from his conviction.

We have jurisdiction under 28 U.S.C. S 2253 (1994), and we affirm in part, reverse in part, and remand. ¹

I

Background

Park was imprisoned in 1994 in California as the result of five felony convictions stemming from two separate incidents of criminal behavior. For his crimes against Munho Kim, Park was convicted of conspiracy to commit robbery, conspiracy to commit burglary, first degree residential burglary, and attempted first degree residential robbery. For his subsequent crime against Keum Kim, Park was convicted of making terrorist threats, but acquitted of counts charging use of a destructive device and explosives to injure/destroy and burn a structure.

The Munho Kim crimes were the result of a plan hatched by Park, Michael Nelson, and Raymond Sander to rob Munho Kim, who owed Park money. On August 20, 1991, Sander and Nelson followed Munho into his garage and attacked him while Park waited a few blocks away in his automobile. Nelson and Sander abandoned the robbery attempt when Munho's wife entered the garage and screamed, but were detained by the police while trying to flee. Park escaped.

Park's crime against Keum Kim occurred almost a year later. Park had demanded money from Keum on account of a statement by her granddaughter that Park regarded as defamatory, and for a debt owed to Park by Keum's son. Keum refused to pay. Park repeatedly demanded payment over a period of several months, ultimately threatening to bomb Keum's family liquor store and kill Keum and her family. On June 8, 1992, the store owned by Keum's family was destroyed by a pipe bomb.

Michael Nelson cooperated with the police after he was arrested. While still in jail, he participated in two incriminating taped conversations with Park, who was not yet in custody. They discussed the burglary and attempted robbery of Munho Kim. Later, Nelson was released and continued his feigned friendship with Park, the latter not aware of Nelson's role as an informer. Nelson testified that Park then told him of Park's intention to "blow up" Keum's family store.

Over Park's objection, the state trial court allowed the consolidation into one trial of the two sets of alleged crimes.

At Park's trial, Nelson testified against Park, and the incriminating tapes that Nelson had cooperated in making were introduced into evidence. During the trial, Park's counsel discovered that Nelson had been a government informer on other matters, and he moved for a mistrial, arguing that he had been surprised and denied the opportunity to conduct discovery with regard to possible bias. The trial court held

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an in camera hearing on the extent of Nelson's role as an informer for the police and denied the motion, concluding that Nelson's role did not involve information which might impeach Nelson's testimony. The court later gave the jury a standard instruction about the suspect credibility of a cooperating witness.

Park was convicted on all four Munho Kim counts and the terrorist threats count from the Keum Kim crimes. Park appealed only the state court's refusal to sever the counts for trial. The California court of appeal affirmed the consolidation. The California Supreme Court denied discretionary review. Park then brought a habeas petition in the California Supreme Court, claiming (1) prosecutorial misconduct for failing to disclose Nelson's informant status, (2) abuse of the trial court's discretion for permitting the secret tapes to be entered into evidence, and (3) denial of the right to a speedy trial. Park's petition variously characterized his claims as violations of both the federal and the California Constitutions and California statutes, citing statutes and provisions of each Constitution as well as case law pertaining to each body of law. On March 27, 1996, the California Supreme Court denied the petition with only this explanation: "Petition for writ of habeas corpus DENIED. (See In re Dixon (1953) 41 Cal. 2d 756, 759.)." Dixon stands for the proposition that an inexcusable failure to bring a trial-error claim on direct appeal normally bars consideration of that claim on habeas. We note that the court did not make a clear statement that its decision was based on a bona fide, adequate, and independent ground. See Harris v. Reed, 489 U.S. 255, 261 (1989).

Park then brought this habeas petition in federal district court, alleging (1) federal constitutional error arising from the consolidation of the sets of counts, (2) prosecutorial misconduct in failing to disclose that Nelson had been a government informant, (3) abuse of discretion by the California trial court in permitting the jury to hear a secret jailhouse tape, and (4) denial of his right to a speedy trial.

II

Standard of Review

This court reviews a district court's decision to deny an application for a writ of habeas corpus de novo. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). Factual findings are reviewed for clear error. United States v. Span, 75 F.3d 1383, 1386 (9th Cir. 1996).

III

Consolidation of Counts

We attend first to Park's properly exhausted claim that is before us -the claim that the consolidation in one trial of the crimes for which he was charged violated his federal due process rights.

Federal habeas is available for improper consolidation only if the simultaneous trial "actually render[ed Park]'s state trial fundamentally unfair and hence, violative of due process." Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991). This court considers each count separately, asking whether "the trial on a particular count was fundamentally unfair in light of that count's joinder with one or more other charges." Id. Park has the burden to prove unfairness rising to the level of a due process concern. See McKenzie v. McCormick, 27 F.3d 1415, 1418 (9th Cir. 1994). We hold that Park's arguments fail to fulfill his burden, and we affirm the district court's decision on this claim.

Park argues first that, under California law, the crimes should not have been consolidated because evidence relevant to one set of counts would not have been admissible at a separate trial on the other set of counts. However, a violation of state law standing alone is not cognizable in federal court on habeas. Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("We have stated many times that `federal habeas corpus

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relief does not lie for errors of state law.' ") (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); Featherstone, 948 F.2d at 1503. Park has failed to meet his burden of showing, in federal constitutional terms, that his state trial was fundamentally unfair. We have held that the failure of the jury to convict on all counts is " `the best evidence of the jury's ability to compartmentalize the evidence.' " United States v. Baker, 10 F.3d 1374, 1387 (9th Cir. 1993) (quoting United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987)). The Baker rule distinguishes the instant case from our decision in Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998). In Bean, "no such acquittal offered affirmative evidence of the jury's ability to assess the Schatz and Fox evidence separately." Id. at 1086. In the case at bar, by contrast, the jury did not convict Park on two of the Keum Kim counts, strong evidence that he was not prejudiced by the admission of evidence which was possibly irrelevant with regard to some of the counts.

Park next argues that the consolidation was likely to inflame the jury against him. In order to demonstrate actual unfairness, however, Park must show that the jury was actually inflamed. See Featherstone, 948 F.2d at 1503. Park makes no such showing and, as discussed above, because the jury did not convict on all counts it presumably was able to compartmentalize the evidence. See Baker, 10 F.3d at 1387. This case is entirely unlike Bean, where the government...