Oloth Insyxiengmay v. Morgan

• Decision Date: 30 March 2005
• Docket Number: No. 02-36017.,02-36017.
• Citation: 403 F.3d 657
• Parties: OLOTH INSYXIENGMAY, Petitioner-Appellant, v. Richard MORGAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

403 F.3d 657

OLOTH INSYXIENGMAY, Petitioner-Appellant, v. Richard MORGAN, Respondent-Appellee.

No. 02-36017.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 4, 2004.

Filed March 30, 2005.

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Nancy D. Tenney and Laura E. Mate, Federal Public Defender's Office, Seattle, WA, for the petitioner-appellant.

Christine O. Gregoire and John J. Samson, Office of the Washington Attorney General, Olympia, WA, for the respondent-appellee.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-00-05500-RJB.

Before: D.W. NELSON, REINHARDT, and THOMAS, Circuit Judges.

REINHARDT, Circuit Judge:

Oloth Insyxiengmay was convicted of two counts of murder in the first degree and two counts of assault in the first degree for an attack on four high school teens who egged his gang's hangout. Following his conviction and a series of appeals in the Washington state courts, Insyxiengmay petitioned the district court for a writ of habeas corpus. He now contends that the district court erred in dismissing three of the six claims on the ground that the claims were procedurally barred and denying his Sixth Amendment claim that he and his counsel were improperly excluded from an in camera hearing regarding a confidential informant. The three claims that the district court dismissed on procedural grounds are that the trial court failed to give a manslaughter instruction (claim 1), that a non-testifying co-defendant's statement inculpating Insyxiengmay should not have been received in evidence (claim 2), and that the prosecution's key witness's adverse polygraph examination results should have been admitted (claim 6). Because Insyxiengmay timely presented the claims to the Washington Supreme Court as federal issues, and because his allegations regarding his Sixth Amendment claim necessitated an evidentiary hearing in federal court, we reverse the district court's dismissal of his petition and remand for consideration of his claims.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Crime

On August 24, 1994, four high school boys drove down a Tacoma, Washington street throwing eggs at houses. Some of those eggs splattered on "the snake house," a hangout for a local gang called the Original Loco Boyz. Oloth Insyxiengmay, Nga Ngoeung, and Soutthanom Misaengsay¹ were associated with the gang. All three were juveniles in 1994; Insyxiengmay was fifteen years old.

Insyxiengmay, Ngoeung, and Misaengsay were outside the snake house during the egging. Believing that the attack was gang-related, Insyxiengmay entered the house and grabbed the owner's rifle. All three boys scrambled into a silver Buick and, with Ngoeung driving, proceeded to follow the other car. According to Misaengsay, it was Insyxiengmay who put the rifle out of the window and fired at the other boys' car. The driver and front seat passenger of that car were shot and killed.

The three returned to the snake house after the shootings. Insyxiengmay handed the rifle to Wendy West, the only person present in the house, and told her to get rid of it. Insyxiengmay said, "We shot them up. We shot them up. They threw eggs at us, the Rickets. We shot them up." West testified that Insyxiengmay was highly upset: "He's usually smiling and happy, and he was almost — he was real fearful. He was almost in a state of tears." Meanwhile, she said, Misaengsay was "smirking and almost laughing."

Insyxiengmay was arrested on September 1, 1994. After being advised of his rights, he agreed to make a statement. He admitted to being in the car during the shootings, but he denied being the shooter. He accused a fourth person, known as J-Rock, instead.²

Ngoeung was arrested two days later on September 3, 1994, based upon information as to his whereabouts provided by a confidential informant. Ngoeung confessed to police that he drove the car during the shootings.

Misaengsay was also arrested on September 3rd. He initially told the police that a fourth person present in the car was the one who was responsible for the shootings. However, when the police falsely told him that Insyxiengmay had implicated him as the shooter, he changed his statement to indicate that no fourth person was present and instead accused Insyxiengmay of being the shooter. Misaengsay subsequently entered into a plea agreement in which he agreed to testify and to plead guilty in exchange for the state's promise not to charge him as an adult. Subsequently, Misaengsay pled as a juvenile. Although Insyxiengmay was fifteen at the time and had no prior convictions, he was eventually tried along with Ngoeung as an adult.

B. Confidential Informant

During pretrial motion hearings, the prosecutor revealed to defense counsel that a confidential informant had provided information leading to Ngoeung's arrest and that the informant was a passenger in one of the two cars stopped on September 3rd when Ngoeung was arrested. The prosecutor further informed counsel that the arresting deputy's report regarding the arrest of Ngoeung falsely stated that he was on routine surveillance when he located Ngoeung's car. In truth, the deputy "got a phone call from one of the individuals that was in the car with these people traveling down the freeway." Because the prosecutor was not willing to reveal the identity of the informant, defense counsel moved for disclosure. The state judge subsequently held an in camera hearing to discuss the potential testimony of the confidential informant. The only witness who appeared at the in camera hearing was the deputy sheriff who arrested the defendants. The judge barred defense counsel from the hearing, refused to take his written questions so that they could be read to the witness by the court, did not compel the confidential informant to appear at the hearing, and issued a protective order prohibiting defense counsel from discussing the existence of the confidential informant with Insyxiengmay and his co-defendant.

Deputy Cassio, the only witness at the in camera hearing, was the arresting officer who had falsified his report of the arrest. He testified at the hearing that he received a phone call from Kong Prak, an informant, on the day of the arrest alerting him to Ngoeung's location. Cassio informed the court that, like the defendants, Prak was a member of the Original Loco Boyz and had regularly provided reliable information regarding the "activities of different members of th[e] gang." The trial court did not question Cassio about what information Prak had provided regarding the shootings or whether, to his knowledge, Prak had information that could be helpful to the defense. The court asked only whether, "to [Cassio's] knowledge, [Prak was] present at the snake house during the time surrounding the events when this murder occurred?" Following the in camera hearing, the court announced that it had determined that the confidential informant could not provide any information that would be of assistance or benefit to the defendants.

C. The Trial

The case against Insyxiengmay proceeded to trial. Insyxiengmay contends that during the trial, the judge erroneously admitted a statement by one of Insyxiengmay's co-defendants which implicated Insyxiengmay, refused to admit the adverse polygraph examination results of the state's key witness, Misaengsay, and failed to give a manslaughter instruction. Insyxiengmay did not testify in his own defense, having waived his right to do so, although he sought unsuccessfully to rescind the waiver at a later point in the trial.

The jury rejected the charges of premeditated murder against Insyxiengmay, but found him guilty of two counts of murder in the first degree, based upon the element of extreme indifference to human life, and two counts of first degree assault. Ngoeung was convicted of two counts of aggravated first degree murder and two counts of first degree assault.³ Insyxiengmay was sentenced to over 72 years in prison.

On August 18, 1998, Insyxiengmay timely appealed his conviction and sentence to the Washington Court of Appeals. The court of appeals affirmed the conviction and the Washington Supreme Court summarily denied further review on June 1, 1999. The mandate issued on June 17, 1999.

D. State Habeas Proceedings

On May 31, 2000, Insyxiengmay, acting pro se, initiated his first personal restraint petition ("PRP") in the Washington Court of Appeals. In that petition, he argued that (i) the trial judge improperly ordered him to serve his sentences consecutively; (ii) the trial judge gave the wrong burden of proof instruction; (iii) he had been denied his right to a speedy trial as a result of the joinder of his trial with his co-defendant's; (iv) he had been denied his constitutional right to a unanimous verdict; and (v) he had been denied his constitutional due process right to full discovery.

Approximately two weeks after filing his first PRP (and while it was still pending), Insyxiengmay filed a second PRP with the Washington Court of Appeals. In that petition, he raised four additional claims: (i) his Sixth Amendment right was violated when polygraph evidence of one of the state's witnesses was excluded by the trial judge; (ii) the Confrontation Clause was violated when a non-testifying co-defendant's statement implicating Insyxiengmay was received in evidence; (iii) the trial judge improperly denied his motion to sever his trial from his co-defendant's; and (iv) the trial judge failed to give a manslaughter instruction. Insyxiengmay signed the second petition on Sunday, June 18, 2000, and gave it to a prison official for filing with the court. However, it was not received by the clerk's office until Tuesday, June 20, 2000. As the mandate had issued on June 17, 1999, Insyxiengmay had until Monday, June 19, 2000, to file any PRPs. His petition was deemed "filed" one day late.

The court of appeals...