Tong v. Davis
| Decision Date | 30 September 2016 |
| Docket Number | CIVIL ACTION NO. 4:10-2355 |
| Parties | CHUONG DUONG TONG, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
Petitioner Chuong Duong Tong is a Texas death row inmate. This case is before the Court on Tong's Amended Petition for Writ of Habeas Corpus (Doc. # 57), and Respondent Lorie Davis' Second Amended Motion for Summary Judgment (Doc. # 59). Having carefully considered the Amended Petition, the Second Amended Summary Judgment Motion, Tong's Reply to the motion, all the arguments and authorities submitted by counsel, and the entire record, the Court is of the opinion that Davis' Second Amended Motion for Summary Judgment will be granted in part and denied in part, and Tong's Amended Petition for Writ of Habeas Corpus should be denied in part.
On April 6, 1997, Houston police officer Tony Trinh was working at Sunny's, a Houston convenience store owned by Trinh's parents. 16 Tr. at 16-17.1 Tong entered Sunny's, and approached Trinh, who was working behind the counter. Tong held a Glock17 semi-automatic handgun. Id. at 164. Tong demanded Trinh's wallet and jewelry. While Trinh was handing over his jewelry, Tong attempted to open the cash register. Trinh then identified himself as a police officer, showed Tong his badge, and told Tong that he 'was not going to get away with this." Tong shot Trinh once in the head at close range, took Trinh's jewelry, and fled to a waiting car. Id. at 165. Tong took the gun apart and disposed of the components in several storm drains. SX 4, 43.2
Several days later, Tong asked his roommate, Hoa Huu Than, a/k/a "Too Short," to sell some of Trinh's jewelry. 16 Tr. at 119-20. After doing so, Than became suspicious that the jewelry might be Trinh's. When he asked Tong, Tong threatened him if he said anything about the jewelry. Id. at 124-25.
Several months later, Tong was arrested for capital murder. Id. at 138-39. He gave police a statement detailing the robbery and shooting. Id. at 142-43, 149, 155; SX 4. In the statement, Tong claimed that he accidentally shot Trinh while jumping over the counter. SX 4. He later showed police where he disposed of the handgun components. 17 Tr. at 177-82.
While in a jail holding tank, Tong told a fellow inmate, Stephen Mayeros, why he was in jail. Mayeros asked Tong how close he was when he shot Trinh, and Tong responded by touching his finger to Mayeros's forehead and saying "bang." 18 Tr. at 17-18. When Mayeros asked Tong if he felt bad about killing Trinh, Tong replied that he felt terrible and cried himself to sleep, and then laughed. Id. at 19. Later, when a police officer was kneeling in front of Tong preparing Tong's restraints for transport, Tong placed his fingers in theshape of a pistol, pointed them at the officer's head, and mouthed the word "bang." Id. at 21-23.
At trial in 1998, Tong gave an alibi defense, testifying that he was asleep with his girlfriend at the time of the murder, and that he had never been to Sunny's. 17 Tr. at 92-94. He claimed that he was induced and coerced to confess by promises of lesser charges and threats by police officers. Id. at 91-93, 109-10. The jury found Tong guilty of capital murder on the alternative theories that he intentionally killed Trinh, a police officer performing his official duties, and/or that he intentionally killed Trinh during the course of robbing or attempting to rob Sunny's. SH at 639.3
During the penalty phase, the State presented evidence that Tong was arrested for stealing, and had numerous disciplinary problems, during high school. Efforts to counsel Tong were unsuccessful due to Tong's lack of remorse. He got in trouble for theft, destruction of property, sexual harassment, and assault. He was eventually expelled from school due to concerns that he posed a threat to the safety of other students. 19 Tr. at 59-83.
During the penalty phase, the State also presented evidence of other incidents. The first was that, about a month after the murder, Tong took part in a bank larceny involving $400,000. Id. at 92-118. Also, two days before the Trinh incident, Tong and an accomplice broke into the home of Vincent and Hannah Lee. Mrs. Lee was at home with her sick toddler, Christina. Tong tied Mrs. Lee up, put a gun to her head, and told her he was going to take all of her money and then kill her. Mr. Lee came home during the robbery. Tong andhis accomplice heard Mr. Lee enter and told Mrs. Lee that they would kill her if she made any noise. Tong approached Mr. Lee with a gun. When Mr. Lee reached for the gun, Tong shot him. Tong dragged Mr. Lee into the living room, where Mrs. Lee and Christina were held, threw him to the floor, and threatened to kill him. As he was leaving, Tong stated that he was "going to kill all of you" and began firing toward the family. He shot Christina in the leg, and hit Mr. Lee with two more shots. Tong laughed after shooting the Lees and left. 19 Tr. at 237-58.
Tong's father, Hoang Tong, testified that he had had marital problems. Because of this, he left Vietnam with Tong when Tong was three years old. They moved to the Phillipines for approximately nine months. One day, Hoang found Tong standing in the water near the beach because he missed his mother and wanted to swim back to Vietnam to see her. 20 Tr. at 19-24.
The trial record revealed that Tong had a difficult childhood. Tong and his father moved to Germany. Tong lived briefly in one foster home, then in an orphanage, and eventually moved into another foster home, where he lived with Jim and Gabby Wyatt for three years. During that period, Hoang said he was going on a vacation to the United States, but never returned to Germany, apparently abandoning Tong. Eventually, after Tong became a serious discipline problem, the Wyatts determined that they could no longer handle him. The Wyatts were able to get in touch with Hoang, and Jim Wyatt brought Tong to Houston. Hoang took informal custody of Tong and they lived together with other family until Hoang left Tong again. Tong lived with extended family until he was 21 years old. His relationshipwith his father was very strained. Id. at 26-88.
Tong's uncle testified that Tong had trouble communicating when he first arrived because he spoke only German. Tong was unhappy because he missed the Wyatts and his own mother. Id. at 41-49.
Jim Wyatt testified that he met Tong when Tong and his father lived in a Red Cross refugee home in Germany. He testified that Hoang was not an attentive father and was a very severe disciplinarian. The Wyatts took Tong in. For some time, he did well living as part of their family. However, when Tong returned from weekend visits with his father, he was subdued. After his father went to the United States, Tong began having difficulties in the Wyatt home. Eventually, the Wyatts decided to send Tong to live with his family in the United States. Id. at 68-88.
The jury found that there is a probability that Tong would commit future acts of criminal violence posing a conmtinuing threat to society, and that the mitigating evidence did not warrant imposing a life sentence. SH at 639-40. Accordingly, on March 11, 1998, the trial court sentenced Tong to death. Id. at 640.
The Texas Court of Criminal Appeals ("TCCA") affirmed Tong's conviction and sentence. Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000). The TCCA denied his application for a writ of habeas corpus. Ex Parte Tong, No. WR-73377-01, 2009 WL 1900372 (Tex. Crim. App. July 1, 2009).
Tong filed his initial federal petition for a writ of habeas corpus on July 1, 2010. Respondent moved for summary judgment on April 22, 2011. Tong amended his petitionon September 13, 2011. Respondent filed an amended motion for summary judgment on December 13, 2011.
On September 6, 2012, this Court stayed proceedings to allow Tong to file a subsequent writ in state court. On May 22, 2013, the TCCA dismissed Tong's subsequent writ as an abuse of the writ. Ex Parte Tong, WR-71,377-02, 2013 WL 2285455 .
After Tong's return to federal court, this Court granted Tong's motion for additional counsel, recognizing that the Supreme Court's recent decision in Trevino v. Thaler, 133 S.Ct. 1911 (2013), mandated a review of whether ineffective assistance of counsel had occurred in the habeas process, thereby potentially creating a conflict of interest for prior counsel. On January 27, 2014, this Court appointed new counsel to represent Tong.
Tong filed his second amended petition (entitled "Amended Petition For Writ Of Habeas Corpus After Return From State Court" (Doc. # 57)) on October 17, 2014, Respondent moved for summary judgment on December 19, 2014, and Tong responded to the motion on January 30, 2015. The parties filed supplemental briefs in June and July 2015, and in February and March 2016.
This federal petition for habeas corpus relief is governed by the applicable provisions of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). See Woodford v. Garceau, 538 U.S. 202, 205-08 (2003); Lindh v. Murphy, 521 U.S. 320, 335-36 (1997).Under the AEDPA, federal habeas relief based upon claims that were adjudicated on the merits by the state courts cannot be granted unless the state court's decision (1) "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) "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); Early v. Packer, 537 U.S. 3, 7-8 (2002); Cobb v. Thaler, 682 F.3d 364, 372-73 (5th Cir. 2012).
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