Duong v. Sherman

• Decision Date: 22 July 2022
• Docket Number: CV 20-6040-KS
• Parties: MUOI VAN DUONG, Petitioner, v. STEW SHERMAN, Warden, Respondent.
• Court: U.S. District Court — Central District of California

MUOI VAN DUONG, Petitioner, v. STEW SHERMAN, Warden, Respondent.

No. CV 20-6040-KS

United States District Court, C.D. California

July 22, 2022

MEMORANDUM OPINION AND ORDER

KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE

INTRODUCTION

On July 6, 2020, Petitioner, a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“the Petition”). (Dkt. No. 1.) On August 2 2021, Respondent filed an Answer to the Petition and lodged the relevant state court records. (Dkt. Nos. 31-32.) On January 10, 2022, the Court deemed the matter ready for submission because Petitioner had not filed a Reply. (Dkt No. 45.) The parties have consented to the jurisdiction of the undersigned Magistrate Judge. (Dkt. Nos. 2, 22, 26.) Briefing on this matter is now complete, and the matter is under submission to the Court for decision.

PRIOR PROCEEDINGS

On December 12, 2017, a Ventura County Superior Court jury convicted Petitioner of resisting an executive officer with force or violence (California Penal Code (“Penal Code”) § 69(a)). (2 Reporter's Transcript (“RT”) 283-84; Clerk's Transcript (“CT”) 114.) On the same date, in a bifurcated trial, the jury found true the allegations that Petitioner had committed two serious prior felonies (assault with a deadly weapon and making criminal threats) and that he had served three prior prison terms (Penal Code §§ 245(a)(1), 422, 667(c)(1), 667(e)(1), 667.5(b)). (2 RT 323-25; CT 115-17.) On March 1, 2018, the trial court sentenced Petitioner to seven years in state prison. (2 RT 334; CT 141, 143.)

Petitioner appealed the judgment of conviction. (Lodged Document (“Lodg.”) No. 4.) On April 15, 2019, the California Court of Appeal issued an unpublished, reasoned opinion affirming the judgment. (Lodg. No. 7.) On June 19 2019, the California Supreme Court summarily denied a Petition for Review. (Lodg. Nos. 8-9.)

On April 17, 2020, Petitioner filed a habeas petition with the Ventura County Superior Court. (Lodg. No. 10 at 1.) On April 24, 2020, the Superior Court denied the habeas petition. (Id.) On September 9, 2020, Petitioner filed another habeas petition with the Ventura County Superior Court. (Id. at 3.) On September 14, 2020, the Superior Court denied the habeas petition. (Id.)

Petitioner filed the instant Petition on July 6, 2020. (Dkt. No. 1.) On August 21, 2020, the Court granted Petitioner's request for a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005), so he could exhaust his unexhausted claims. (Dkt. No 7.) On November 19, 2020, Petitioner filed a habeas petition with the California Supreme Court. (Lodg. No. 11.) On January 27, 2021, the California Supreme Court denied the habeas petition. (Lodg. No. 12.) On February 12, 2021, the Court lifted the stay. (Dkt. No. 13.)

SUMMARY OF THE EVIDENCE AT TRIAL

The following factual summary from the California Court of Appeal's unpublished decision on direct review is provided as background. See also 28 U.S.C. § 2254e(1) (“[A] determination of a factual issue made by a State court shall be presumed to be correct” unless rebutted by the petitioner by clear and convincing evidence).

On August 6, 2017, Oxnard police received a 911 call from [Petitioner's] brother Hai Duong, who said that [Petitioner] was outside and “broke . . . the door . . . to the house.” Asked to explain [Petitioner's] conduct, Hai Duong replied, “he do drugs.” He identified [Petitioner] as “Timmy Duong.”

Officers Hayley Bracken, David McAlpine and Jamie Toney went to Hai Duong's house in uniform, driving marked patrol cars. The dispatcher told them that [Petitioner] was on parole, was subject to restraining orders, and had an outstanding arrest warrant for a parole violation. Bracken testified that they had a duty to take [Petitioner] into custody on the warrant. Also, she mistakenly believed that the restraining orders applied to the address; the dispatcher did not mention that the orders were unconnected to Hai Duong's home.

Bracken saw no one at Hai Duong's front door. She entered the side yard through a partially open gate and saw [Petitioner], whom she knew from a prior encounter as “Timmy.” The exchange between [Petitioner] and the officers was captured on body cameras. McAlpine and Toney believed [Petitioner] was under the influence of drugs because he was sweating, grinding his teeth, fidgeting and had rapid speech.

When Bracken asked [Petitioner] if she could talk to him, he demanded to know who called the police. Without identifying the caller, she assured him that someone called. [Petitioner] stated that his family was inside in the house, adding “they're chicken” and “they hide.”

McAlpine testified that [Petitioner], as a parolee, can be searched and detained at any time and must cooperate with police. To gauge [Petitioner's] honesty and cooperation, McAlpine asked if he was on parole, which he denied. McAlpine directed [Petitioner] to relinquish the cell phone in his hand and to extend his wrist. When McAlpine took hold of [Petitioner's] left wrist to prevent him from fleeing, he tried to jump and spin out of McAlpine's grasp. McAlpine described [Petitioner] as “extremely strong and resistant” to cooperating with a parole search.

Bracken tried to gain control of [Petitioner's] right arm. He hit his head into her chin and mouth in a movement she and McAlpine described as a “headbutt.” Toney grabbed [Petitioner's] legs. They lowered [Petitioner] to the ground and handcuffed him. Bracken had a swollen lip and a bruise inside her mouth from the headbutt.

For safety reasons McAlpine did not tell [Petitioner] about the arrest warrant before taking him into custody, to prevent him from devising a plan of escape. After the scuffle, Toney told [Petitioner] about the warrant. He demanded to see it. En route to the jail, [Petitioner] yelled that he “knocked [Bracken] in [her] head, and that if [she] did not show him the warrant, he would kick [her] in [her] head.” The recorded threat was played for the jury.

(Lodg. No. 7 at 2-4.)

PETITIONER'S HABEAS CLAIMS

Petitioner presents the following grounds for federal habeas relief:

Ground One: There was no substantial evidence that Petitioner knew that the officers were engaged in the lawful performance of their duty. (Dkt. No. 1 at 5.)^[1]

Ground Two: The trial court prejudicially erred in not instructing sua sponte on assault as a lesser-included offense. (Id. at 5-6.)

Ground Three: The trial court committed prejudicial error in admitting evidence concerning the existence of two restraining orders against Petitioner. (Id. at 6.)

Ground Four: The arresting officers violated Petitioner's rights under Miranda v. Arizona, 384 U.S. 436 (1966). (Id.)

Ground Five: There were violations of due process and Brady v. Maryland, 373 U.S. 83 (1963), because the video evidence was inadequate, inaudible, and cut off. (Id.)

STANDARD OF REVIEW

I. The Antiterrorism And Effective Death Penalty Act.

Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner whose claim has been “adjudicated on the merits” cannot obtain federal habeas relief unless that 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.

For the purposes of Section 2254(d), “clearly established Federal law” refers to the Supreme Court holdings in existence at the time of the state court decision in issue. Cullen v. Pinholster, 563 U.S. 170, 182 (2011); see also Kernan v. Cuero, 138 S.Ct. 4, 9 (2017) (per curiam) (“circuit precedent does not constitute clearly established federal law.... [n]or, of course, do state-court decisions, treatises, or law review articles”) (internal quotation marks and citations omitted). A Supreme Court precedent is not clearly established law under § 2254(d)(1) unless it “squarely addresses the issue” in the case before the state court or establishes a legal principle that “clearly extends” to the case before the state court. Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009); see also Harrington v. Richter, 562 U.S. 86, 101 (2011) (it “‘is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by'” the Supreme Court) (citation omitted).

A state court decision is “contrary to” clearly established federal law under Section 2254(d)(1) only if there is “a direct and irreconcilable conflict,” which occurs when the state court either (1) arrived at a conclusion opposite to the one reached by the Supreme Court on a question of law or (2) confronted a set of facts materially indistinguishable from a relevant Supreme Court decision but reached an opposite result. Murray v Schriro, 745 F.3d 984, 997 (9th Cir. 2014) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision is an “unreasonable application” of clearly established federal law under Section 2254(d)(1) if the state court's application of Supreme Court precedent was “objectively unreasonable, not merely wrong.” White v. Woodall, 572 U.S. 415, 419 (2014). The petitioner must establish that “there [can] be no ‘fairminded disagreement'” that the clearly established rule at issue applies to the facts of the case. See Id. at 1706-07 (internal citation omitted). Finally, a state court's decision is based on an unreasonable determination of the facts within the meaning of 28 U.S.C. § 2254(d)(2) when the federal court is...