Khek v. Foulk

• Decision Date: 22 January 2016
• Docket Number: Case No. 14-cv-02936-EMC
• Court: U.S. District Court — Northern District of California
• Parties: KOSAL K. KHEK, Petitioner, v. FRED FOULK, Respondent.

KOSAL K. KHEK, Petitioner, v. FRED FOULK, Respondent.

Case No. 14-cv-02936-EMC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

January 22, 2016

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

I. INTRODUCTION

Kosal Kim Khek filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his murder conviction. Respondent has filed an answer to the petition and Mr. Khek has filed a traverse. For the reasons discussed below, the Court dismisses one claim as untimely filed and denies the other claim on the merits.

II. BACKGROUND

The California Court of Appeal described the facts of the crime:

Viet Society (VS) and Strictly Family (SF) are rival criminal street gangs in San Jose. Defendants [Kosal Kim Khek and Christopher Lee] are VS members.

On August 29, 2007, SF gang members drove to and stopped at the Magic Sands Mobile Home Park where several of defendants' friends were sitting on the grass near a swimming pool. One of the friends, Tuan Nguyen, began arguing with a passenger in the SF car, and the passenger pulled out a gun and shot Nguyen three times. Another of the friends recognized the shooter and identified him to the police. Another friend described the car and a partial license plate number to the police. The police arrested the shooter and owner of the car for attempted murder.

When defendants found out about the shooting, they began to plot revenge against SF via computer instant messaging. For example, Lee told Khek that he was going to find out where the shooter lived and added: "Oh yeah. I found out that this Anthony [Nguyen] kid from Andrew Hill [High School] lives with Johnny.... [¶] ... [¶] ... We start by taking them out one by one. [¶] ... [¶] ... Just hit them up. Let's kill this Anthony kid from A Hill. He's a kid, too, just like Tuan. Eye for an eye." And Khek told Lee: "How does that Anthony kid look like? I am going to fuck his ass up. [¶] ... [¶] And run away like an assassin. [¶] ... [¶] And he won't know who hit him." Lee later sent pictures of Anthony Nguyen to Khek, and Khek told Lee that "I'm going to get him after school so maybe at 3:00."

On September 6, 2007, Anthony Nguyen, Phong Nguyen, Kim Huynk, Lily Phong, and Kevin Huynh were smoking and talking outside a laundromat and the Q-Cup café. Khek walked up to Anthony Nguyen and asked whether he was Anthony. When Anthony Nguyen affirmed that he was Anthony, Khek stabbed him twice and ran away. Anthony Nguyen died at the scene from massive bleeding. One of the stab wounds penetrated his shoulder; the other wound penetrated his stomach four and a half inches, cut through the liver and aorta, and caused six to 12 inches of bowel to protrude from the body. Phong Nguyen and Kim Huynk identified Khek to the police. Police obtained an arrest warrant for Khek, determined that he was on probation with a search condition, arrested him at his apartment, and seized his computer. A witness linked Anthony Nguyen to Lee, and the police determined that Lee was on juvenile probation with a search condition. The police went to Lee's residence, conducted a probation search, and seized Lee's computer.

Cal. Ct. App. Opinion, pp. 2-3 (alterations other than first bracketed material, and omissions, in original).

III. JURISDICTION AND VENUE

This Court has subject matter jurisdiction over this action for a writ of habeas corpus under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the conviction and sentence of a person convicted in Santa Clara County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).

IV. STANDARD OF REVIEW

This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

The Antiterrorism And Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable applicationof, 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).

"Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

"Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. "A federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was 'objectively unreasonable.'" Id. at 409.

V. DISCUSSION

A. Exclusion of Mr. DeJong's Statement That The Plan Was To Hurt But Not Kill The Victim

1. Background

Mr. Khek contends that his federal constitutional rights to compulsory process and due process were violated by the trial court's exclusion of "exculpatory evidence" that Robert DeJong (a fellow gang member) "had told the police that the plan was to hurt Nguyen, but not to kill him." Docket No. 1 at 9. Mr. Khek argues that the exclusion of the evidence interfered with his presentation of "relevant evidence demonstrating that he was not guilty of first degree murder," and was contrary to the Supreme Court's rulings that "technical evidentiary rules cannot be relied upon by trial courts to deny an accused citizen the opportunity to present legitimate exculpatory evidence." Id. at 9, 12 (citing Crane v. Kentucky, 476 U.S. 683 (1986), and Chambers v.Mississippi, 410 U.S. 284 (1973)).¹

The evidence in question consisted of statements made by Mr. DeJong to the police in an interview a week after the killing.² The context in which Mr. DeJong had made the statements and the statements sought to be admitted were as follows:

DeJong first told the police that he had been sleeping at his home at the time of the murder. He then told them that he had left home near the time of the murder to deliver a friend's backpack to school. Later in the interview, he denied ever going to the Q-Cup café and offered that he had learned of a killing at the Q-Cup from his girlfriend. After taking a break, the police told DeJong that they were investigating Anthony Nguyen's murder at the Q-Cup; did not believe DeJong; and wanted to hear the truth from DeJong. DeJong then admitted that he went to the Q-Cup after dropping off the backpack. Before continuing, the officers revealed that they knew what had happened and cautioned DeJong against lying. DeJong then admitted being at the Q-Cup with Khek.

Defendants proffered the following statements from the interview for admission into evidence.

1. "We were driving to Q-Cup. We weren't planning it—this—there wasn't any plan it was just supposed to be, you know. We weren't—we weren't about to do it—or he wasn't—but then...."

2. "And we walked back close to my car and we didn't know if we should do it ... and then, fuck, I don't know, I took him back home to his house."

3. [Question: What was the plan? How were you going to hurt him?] "Either jump him and if you were gonna use a weapon, use, not that, not too muc[h] 'cause we didn't want him to die. Just stab him once, twice middle of the stomach and that was it. But I guess he got him in the neck too."

4. "Go to his house, stab him, and walk—walks away. [¶] ... [¶] That was plan 2."

5. [Question: Who came up with the stabbing plan, you, [Vinh] Ly, and Khek. How 'bout [Lee]?] "No, he wasn't—he wasn't in [the car]."

6. [Dialogue to the effect that DeJong, Khek, and Ly drove back to Khek's home and Lee was already there harboring the belief that the plan had been to jump Anthony Nguyen.]

Cal. Ct. App. Opinion at 8-9 (alternations and omissions in original).

The California Court of Appeal rejected Mr. Khek's state law and federal constitutional challenges to the exclusion of the evidence. As to the state law claims, the California Court of Appeal concluded that Mr. DeJong's statement that the plan was only to hurt the victim was not admissible under the hearsay exception for declarations against penal interest. Whether the declaration against penal interest exception applies depends on the context in which the statement is made, and the "trial court could have rationally concluded that DeJong's statements were exculpatory or self-serving and untrustworthy because DeJong lied to the police and, when caught in the lie, sought to minimize his culpability by posing an assault-gone-awry scenario." Id. at 11-12. The trial court's exercise of its discretion was "entirely consistent with the case law for determining the declaration-against-interest exception to the hearsay rule." Id. at 12.

The California Court of Appeal also determined that Mr. Khek's constitutional claims were "without merit." Id. at 12. The evidence had been determined to be unreliable by the trial court, and its exclusion pursuant to the application of ordinary rules of...