Le v. Mullin

• Decision Date: 26 November 2002
• Docket Number: No. 00-6333.,00-6333.
• Citation: 311 F.3d 1002
• Parties: Hung Thanh LE, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1002

311 F.3d 1002

Hung Thanh LE, Petitioner-Appellant, v. Mike MULLIN, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 00-6333.

United States Court of Appeals, Tenth Circuit.

November 26, 2002.

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Lanita Henricksen (Mark Henricksen, with her on the briefs), Henricksen & Henricksen, Lawyers, Inc., El Reno, OK, for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General of Oklahoma (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma City, OK, for Respondent-Appellee.

Before EBEL, HENRY, and BRISCOE, Circuit Judges.

PER CURIAM.

I. INTRODUCTION

Petitioner-Appellant Hung Thanh Le, a state prisoner in Oklahoma, filed a petition pursuant to 28 U.S.C. § 2254 seeking habeas corpus relief from his convictions for first-degree murder, robbery, and assault and resulting death sentence. In his petition, Mr. Le raised thirty-one grounds for relief. The district court denied him relief on each ground, and it also denied Mr. Le's request for a Certificate of Appealability ("COA"). After conducting a case management conference, this court granted a COA on three issues. On the basis of his COA, Mr. Le now appeals the denial of his § 2254 petition, arguing that (1) he was deprived of a fair trial because of the prosecutor's improper remarks; (2) he was denied effective assistance of counsel at trial; and (3) he should have been granted an evidentiary hearing by the district court in relation to these first two issues. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm the district court's denial of habeas corpus relief on all three grounds.

II. BACKGROUND

A. Factual Background

This case concerns the tragic events of November 12, 1992. On that day, Hai Hong Nguyen, his wife Thuy Tiffany Nguyen, and Mr. Le became involved in an altercation that led to the death of Mr. Nguyen, to serious physical injury to Mrs. Nguyen, and to the conviction of Mr. Le for assault and battery, robbery, and first-degree murder. To understand the events of that day, it is necessary to recount the history between Mr. Le and the Nguyens.

Mr. Le, a Vietnamese refugee, met Mr. Nguyen in a refugee camp in Thailand in the mid-1980s. They became friends, and both later immigrated to the United States. Mr. Nguyen settled in Oklahoma City, where he and his wife owned and operated a beauty salon. Mr. Le settled in Cleveland, Ohio, where he worked as a machinist. According to Mr. Le, he and Mr. Nguyen had planned to go into business together by opening a machine shop in Oklahoma City.

On July 4, 1992, Mr. Le flew to Oklahoma City, visited with Mr. Nguyen, and met Mrs. Nguyen for the first time. Mr. Le alleges that at this time he gave the Nguyens $10,000.00 as initial capital for the machine shop. By September of 1992, however, Mr. Le's family had arrived in the United States. Mr. Le asserts that because of his family's arrival, he wanted to reclaim the $10,000.00.

Whatever the purpose for his visit, Mr. Le returned to Oklahoma City again in November 1992. During the week of November 2, 1992, Mr. Le briefly stopped by the Nguyens' house in the early morning and told them that he was returning home to Cleveland after having secured a job in Texas. On November 9, 1992, Mr. Le again appeared at the Nguyens' house, and they offered him a place to stay. Mr. Le, after claiming to have lost his wallet, went shopping with the Nguyens on November 10. Mrs. Nguyen testified that Mr. Nguyen gave Mr. Le $200.00 on that occasion. On November 11, Mr. Le went to the salon with the Nguyens, borrowed their car, returned to their home, removed their home stereo without their knowledge, and then mailed the stereo to himself in Ohio. Mr. Le returned the car that afternoon so that Mrs. Nguyen could pick up her daughter, Carolyn, after school. When the Nguyens returned home that evening accompanied by Mr. Le, they noticed the missing stereo. A search of the house revealed no other missing items and no signs of a forcible entry. Mr. Le told the Nguyens that he did not know what happened to the stereo and that he had an expensive personal bag that was also missing.

Mrs. Nguyen testified that the next morning—November 12—she was called from her bed by her husband's words, "Honey, Hung kill me." Tr. vol. II, at 336. She ran into the living room of their house and found her husband covered in blood. Mrs. Nguyen dialed 911 and requested help. She next saw her husband try to pick up an 18-inch long metal bar from a barbell set that had apparently been used by Mr. Le to hit Mr. Nguyen. Mrs. Nguyen stopped him, telling her husband that she had called the police. At this point Mr. Le returned to the living room from the kitchen, brandishing a 13-inch long knife and a 7-inch long meat cleaver. According to Mrs. Nguyen, Mr. Le was visibly upset and angry, and she asked him to stop his attack. Mr. Le then attempted to corner Mr. Nguyen with the weapons. When Mr. Le tried to reach for Mr. Nguyen, a struggle ensued into which Mrs. Nguyen interceded, receiving knife wounds to her head and hands.

Mrs. Nguyen then retreated to the front door, but she was unable to open it. As Mr. Le pulled Mr. Nguyen towards the front door, Mrs. Nguyen sat down next to the television, shielding her injuries, and pleaded with Mr. Le to stop his attack. Mrs. Nguyen then watched Mr. Le stab her husband in the chest. According to Mrs. Nguyen, when her husband fell down onto the coffee table and couch, Mr. Le proceeded to hack at the back of Mr. Nguyen's neck with the meat cleaver.

Mrs. Nguyen's account of the events, which was uncontested at trial, is that Mr. Le responded to her pleas by telling her that he would kill her, too, for calling the police. At some point, Mr. Nguyen apparently asked Mr. Le why he was attacking them, and Mr. Le responded that he had been hired by someone to kill the Nguyens for $20,000.00. Mr. Le apparently then told Mrs. Nguyen to write him a check for this amount, but she responded that they did not have that amount of money. As her husband lost consciousness, Mrs. Nguyen ran back to the door and made it outside, finding an ambulance on the street.

The two paramedics who had arrived on the scene were waiting for the police before entering the Nguyens' house. When Mrs. Nguyen exited the house, they treated her wounds. While the paramedics treated Mrs. Nguyen, Mr. Le collected Mr. Nguyen's wallet, the Nguyens' keys, and a suit. Mr. Le then left the house and drove away in the Nguyens' car. One paramedic testified that he saw Mr. Le surveying the scene nonchalantly while driving away.

After learning that there was nobody else in the house, one of the paramedics entered, accompanied by two police officers who had just arrived. The paramedic testified that he saw Mr. Nguyen writhing on the ground, stating, "[H]elp me, help me, I'm dying, I'm dying." Tr. vol. II, at 320. Mr. Nguyen also asked the paramedic to help his wife, telling the paramedic that she had been hurt, too. Mr. Nguyen had multiple stab wounds to his chest, neck, head, abdomen, and arms, and he subsequently went in to hypovolemic shock and cardiac arrest before arriving at the hospital. At the hospital, Mr. Nguyen went into full cardiac arrest and died.

After leaving the Nguyens' house, Mr. Le began driving towards Dallas, stopped at a ditch to wash the blood off his body, and then returned to Oklahoma City. At some point after the events of that morning, Mr. Le went to the Nguyens' bank and, assuming Mr. Nguyen's identity, used the Nguyens' safety deposit box key to open their safety deposit box. Mr. Le removed $36,000.00 in cash and two diamond rings, leaving the box empty. Mr. Le left the Nguyens' car at the bank with blood and his fingerprints on it. That day, Mr. Le also bought expensive new clothes and paid cash to a downtown travel agent for a one-way first class airline ticket to Cleveland. The ticket was issued under the name Paul Koring.

The following day—Friday, November 13, 1992—after placing bets at Remington Park, an equine racetrack in Oklahoma City, Mr. Le was apprehended at the Will Rogers World Airport by a police officer who recognized his description. Mr. Le claimed his name was Paul Koring and that his identification had been stolen. When Mr. Le failed to produce identification, the officer took him into custody and searched him for weapons. During the search, the police officer found Mr. Nguyen's wallet and a briefcase containing the Nguyens' safety deposit box key, the Nguyens' car keys, and $34,966.37 in cash.

After his arrest, Mr. Le was booked at the police station, and his interrogation was videotaped. During the interrogation, he waived his Miranda rights and recounted his version of the events. Mr. Le admitted coming to Oklahoma City with the intent of robbing the Nguyens. He admitted to knowing beforehand about the safety deposit box and the address of the bank, but he said he never intended to kill Mr. Nguyen. He admitted having taken the Nguyens' stereo and mailing it to Ohio, and he said that Mr. Nguyen had confronted him about the theft the morning of the murder. He told the officers that the morning of November 12—even before being confronted by Mr. Nguyen about the stereo—he intended to rob Mr. Nguyen by knocking him out with the metal pipe from the weightlifting set.

Mr. Le admitted striking Mr. Nguyen and noted that Mr. Nguyen remained conscious after receiving the blow. Mr. Le claimed that Mr. Nguyen then threatened to kill Mr. Le if he did not stop, at which point Mr. Le said he ran into the kitchen and grabbed only one knife. Mr. Le claimed that Mr. Nguyen hit him on the forearm, to which Mr. Le responded by stabbing Mr. Nguyen five times. Mr. Le claimed that at this point, Mr. Nguyen collapsed on the coffee table. Mr. Le admitted to having told Mrs. Nguyen that he was hired to kill her and hitting...