Tran v. Lindsey

• Decision Date: 16 May 2000
• Docket Number: No. 98-56251,98-56251
• Citation: 212 F.3d 1143
• Parties: (9th Cir. 2000) TUAN VAN TRAN, Petitioner-Appellant, v. GARY LINDSEY, Warden; SALINAS VALLEY STATE PRISONS; STATE OF CALIFORNIA, Respondents-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1143

212 F.3d 1143 (9th Cir. 2000)

TUAN VAN TRAN, Petitioner-Appellant, v. GARY LINDSEY, Warden; SALINAS VALLEY STATE PRISONS; STATE OF CALIFORNIA, Respondents-Appellees.

No. 98-56251

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted September 14, 1999

Submission Withdrawn October 14, 1999

Resubmitted May 3, 2000

Filed May 16, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

COUNSEL: Allen Bloom, San Diego, California, for the petitionerappellant.

Garrett Beaumont, Deputy Attorney General, San Diego, California, for the respondents-appellees.

Appeal from the United States District Court for the Southern District of California, Barry Ted Moskowitz, District Judge, Presiding. D.C. No.CV-96-02161-BTM

Before: Stephen Reinhardt and Michael Daly Hawkins, Circuit Judges, and Ronald M. Whyte,¹ District Judge.

OPINION

REINHARDT, Circuit Judge:

We must once again examine the question whether a state court decision denying a petitioner's ineffective assistance of counsel claim was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court -this time in light of the Supreme Court's recent decision in Williams v. Taylor , 120 S.Ct. 1495 (2000). Petitioner, Tuan Tran, appeals the district court's denial of his petition for a writ of habeas corpus, claiming that he received ineffective assistance of counsel because his lawyer did not pursue motions to suppress evidence based on a lack of probable cause to arrest him and the use of an impermissibly suggestive lineup. Tran also contends that the incourt identification of his co-defendant during his trial violated his due process rights.

FACTS

Petitioner Tuan Van Tran (hereinafter "Petitioner " or "Tran") was arrested on February 11, 1989, by San Diego police officers who were investigating a series of residential robberies, including a robbery-murder. That day, Petitioner had driven co-defendant Tho Tran (not a relative) in his car to Tho's brother's apartment. At the time, the police were executing a search warrant at the apartment, as Tho was a suspect in the robberies.² Shortly thereafter, investigating officer Detective Larmour noticed that Petitioner was sitting in a car parked behind the apartment and approached him. Petitioner identified himself as "Tuan Tran" and produced his driver's license. Larmour then took him to the apartment and arrested him.

Larmour testified, both at a preliminary hearing and at trial, that he based his arrest of Petitioner on several facts known to him at the time of the arrest. First, Petitioner's name, Tuan, was the same as the name that a robbery victim had heard used by one of the robbers during an attack. Second, according to Larmour, Petitioner was dressed entirely in black, as were the suspects in the robberies.³ Third, he fit the description of the suspects, as he was 20 to 25 years old and between 5'5" and 5'9", and he spoke in Vietnamese.⁴ Fourth, Larmour testified that Tho Tran and the Petitioner told him inconsistent stories about how they had arrived at the scene.

After his arrest, Petitioner consented to a search of his automobile where a knife was found.⁵ He was then taken to a hospital for a physical examination and collection of evidence. While at the hospital police seized Tran's clothing and his gold ring, which was later identified as one stolen from a victim's mother. Tran was also fingerprinted at the station that evening. Police tested his fingerprints and found that they matched some of those found at the scene of the robberymurder that took place on February 2. While in custody, Petitioner was placed in a live lineup. Five witnesses identified him through that procedure as one of the robbers.

Roughly three weeks after Petitioner was arraigned, defense counsel filed a motion to suppress evidence arising from the arrest, including Petitioner's fingerprints and the lineup identification evidence, on the ground that he had been arrested without probable cause. This motion was later withdrawn by defense counsel for unexplained "tactical reasons." In addition, defense counsel prepared, but never filed, a motion to suppress the out-of-court and in-court identifications of Tran on the ground that they were too suggestive to comport with Fifth Amendment standards.

At trial, the evidence against Petitioner consisted of the following: He was named Tuan, and a victim during one of the robberies had heard a robber referred to as Tuan. He fit the description of one of the robbery suspects. He wore a gold ring that was later identified as one stolen at the first robbery, on January 18, 1989. His fingerprints matched prints found at the scene of the second robbery (on February 2), and five witnesses identified him at the lineup. Some identified him at trial as well.

Petitioner denied participating in any of the robberies or the murder. At trial, he presented a defense of mistaken identity and alibis. During the trial, the prosecution brought in codefendant Tho Tran for Detective Larmour to identify. Tho appeared in civilian clothes, without handcuffs. He did not testify. This identification is the subject of Petitioner's due process claim.

A San Diego Superior Court jury found Petitioner guilty of one count of first degree murder and three counts of residential robbery. On appeal, Petitioner argued that he received ineffective assistance of counsel because counsel failed to pursue the motions to suppress, and that the identification of co-defendant Tho in court violated due process. The California Court of Appeal, Fourth Appellate District, affirmed the conviction, holding that Tran suffered no prejudice from counsel's failure to pursue the motions to suppress, and that the due process violation was harmless error. People v. Tran, Case No. D011037, slip op. at 17-19 (Cal. Ct. App. 4th Dist. Div. 1 Jan. 23, 1991). The California Supreme Court denied Tran's appeal without opinion. Petitioner subsequently filed habeas petitions in state court which were denied. After two earlier federal habeas petitions were dismissed for failure to exhaust state remedies, the petition before us was filed, on December 18, 1996. A magistrate recommended denying the petition, and the district court adopted the reasoning set forth in his recommendation, along with some further comments of its own.

ANALYSIS

Because Tran's petition was filed on December 18, 1996, we review it under the provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Lindh v. Murphy, 521 U.S. 320 (1997). Tran argues that AEDPA should not govern his petition because he first sought habeas review in 1993, prior to the date of AEDPA's enactment. Both that first petition and another petition that he filed in January 1995 were dismissed for failure to exhaust state remedies. He asserts that his current petition "relates back" to his first petition for habeas review. However, we have held that a second petition does not relate back to a first petition where the first petition was dismissed for failure to exhaust state remedies. Henry v. Lungren, 164 F.3d 1240, 1241 (9th Cir. 1999).

Tran argues that Calderon v. United States District Court (Gordon), 107 F.3d 756 (9th Cir. 1997) requires that we look to his first petition to determine what law applies. In that case, we decided that funds to investigate unexhausted claims could be awarded to a habeas petitioner even after a petition was dismissed for failure to exhaust. However, our holding in Calderon was based on the power of a district court to authorize funds prior to the initiation of habeas litigation. See Calderon, 107 F.3d at 761-62 (citing McFarland v. Scott , 512 U.S. 849 (1994)). As the power to authorize funds and attorneys' fees constitutes a special circumstance for jurisdictional purposes,⁶ we decline to extend Calderon's holding, especially where doing so would likely create a conflict with Henry.⁷

STANDARD OF REVIEW UNDER AEDPA

The question whether the defendant has received ineffective assistance of counsel is a mixed question of law and fact. Strickland v. Washington, 466 U.S. 668, 698 (1984); Chacon v. Wood, 36 F.3d 1459, 1465 (9th Cir. 1994). Prior to AEDPA mixed questions in habeas petitions were reviewed de novo. Moran v. Godinez, 57 F.3d 690, 699 (9th Cir. 1995); Crotts v. Smith, 73 F.3d 861, 864 (9ldth Cir. 1996). Under AEDPA, the standard of review we apply is governed by 28 U.S.C. S 2254(d) and the Supreme Court's recent decision in Williams v. Taylor, 120 S.Ct. 1495 (2000). Under AEDPA, we may reverse a state court's decision denying relief only if that decision is "contrary to, or involves an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States." 28 U.S.C. S 2254(d)(1).

In Williams, the Supreme Court reversed the Fourth Circuit's denial of habeas relief to a capital defendant on ineffective assistance of counsel grounds.⁸ In so doing, the Court largely resolved much of the disagreement concerning how to interpret AEDPA's provision governing federal court review of state court determinations of law. First, the Court made clear that the statute embodies no distinction between pure questions of law and mixed questions of law and fact that corresponds to its division between decisions "contrary to" federal law and decisions involving an "unreasonable application of" federal law.⁹ The holding of the Court endorsed by six justices, was that the Virginia Supreme Court's application of ineffectiveness law, a classic mixed question, was both contrary to clearly established federal law and an unreasonable application of such law. Williams, 120 S.Ct. at 1515. Moreover, Justice O'Connor's opinion for the Court interpreting AEDPA gave an example of a state court decision that could be "contrary to" Strickland in the course of explaining what that term meant. Id. at 1519-20. Thus, both prongs of S 2254(d)...