Henh Chu Ngo v. Gregory Holloway
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:12-cv-00074-LMB-IDD Copies to all parties and the district court/agency. [999279368].. [12-7954]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7954
HENH CHU NGO,
Petitioner – Appellant,
v.
GREGORY HOLLOWAY, Warden, Wallens Ridge State Prison,
Respondent − Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Leonie M. Brinkema,
District Judge. (1:12-cv-00074-LMB-IDD)
Argued:
December 10, 2013
Decided:
January 17, 2014
Before TRAXLER, Chief Judge, and WILKINSON and DAVIS, Circuit
Judges.
Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Chief Judge Traxler and Judge Wilkinson joined.
ARGUED: Jonathan P. Sheldon, SHELDON, FLOOD & HAYWOOD, PLC,
Fairfax, Virginia, for Appellant. Craig Stallard, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General of
Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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DAVIS, Circuit Judge:
Petitioner-Appellant
appeals
the
district
Henh
court’s
Chu
Ngo,
denial
of
a
Virginia
his
inmate,
federal
habeas
petition filed under 28 U.S.C. § 2254. Because we agree with the
district court that the state court did not make unreasonable
findings
of
fact
or
unreasonably
apply
clearly
established
federal law, 28 U.S.C. §§ 2254(d)(1-2), we affirm.
I.
A.
In August 2005, Ngo was indicted on charges of murdering
Ngoc Quy Doan Nguyen (“Quy”) and using a firearm during the
commission of a felony. The evidence supporting the case against
Ngo came primarily from the testimony of Phuc Nguyen (“Phuc”)
and Hoan Minh Le (“Le”), who were present when Quy was shot. Ngo
pled not guilty and the case proceeded to trial.
On the first day of Ngo’s three-day trial, Phuc testified
that, on the evening of December 27, 2002, he, Le, and Quy were
leaving
a
pool
hall
when
two
men
approached
them
and
asked
whether they were affiliated with a certain gang, Asian Young
and Dangerous (“AYD”). Phuc denied affiliation with AYD, but did
not hear the responses of Quy and Le. According to Phuc, members
of
AYD
had
recently
attacked
Ngo,
Family (“ADF”), a rival gang.
2
a
member
of
Asian
Dragon
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Phuc,
Le,
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and
Quy
then
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got
into
Quy’s
car,
when
Quy
remembered that he had left his eyeglasses in the pool hall.
While Quy went to retrieve them, Ngo approached Quy’s car, where
Phuc
was
seated
in
the
front
passenger
seat
with
Le
seated
behind him. Ngo motioned for Phuc to roll down his window, but
Phuc refused because Ngo’s right hand was concealed suspiciously
in his coat.
Ngo then walked to the front of Quy’s car as Quy returned
from inside the pool hall. As Quy opened the driver’s door, Ngo
again asked whether Quy was affiliated with AYD. Phuc did not
hear Quy’s response, but immediately heard gunshots, causing him
to duck behind the dashboard. Ngo’s first shot struck Quy in the
head while the next two shots went through the car’s windshield.
When police officers arrived at the scene fifteen to twenty
minutes later, Phuc told them that Ngo shot Quy. Phuc testified
that he was familiar with Ngo from having seen him around their
community and that Ngo was heavyset and had a tattoo. Phuc also
testified that he identified Quy’s shooter in photographic lineups while at the police station later that evening. On crossexamination, Phuc admitted that Le had made several phone calls
before calling 911 after Quy was shot, and that, contrary to his
earlier
testimony,
he
had
previously
denied
hearing
substance of Ngo’s comment to Quy before he shot him.
3
the
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Numerous other officers described the evidence at the scene
of Quy’s shooting in a manner consistent with Phuc’s account of
the event, including the location of shell casings, the bullet
holes in Quy’s car, and the condition of Quy’s body.
Officer Curtis Cooper then recounted the statements Phuc
made to him at the scene of Quy’s murder and at the police
station later that evening. Defense counsel objected to this
testimony as inadmissible hearsay; the trial court overruled the
objection. The trial court reasoned that the testimony could be
admitted
as
credibility
prior
consistent
determinations.
statements
The
court
for
also
the
issued
purpose
a
of
limiting
instruction to the jury, stating that the testimony was “not
being elicited for the truth of what Mr. Phuc Nguyen told him
but just as it might affect your determinations about Mr. Nguyen
. . . your determination of his credibility.” J.A. 154.
Officer
Cooper
went
on
to
testify
that,
at
the
police
station, Phuc identified Ngo, by his nickname, as Quy’s killer
and related in detail the events surrounding the crime. On cross
examination,
extensively
defense
counsel
regarding
Phuc’s
questioned
prior
Officer
statements,
and
Cooper
Cooper
acknowledged that Phuc initially denied knowing who shot Quy.
On
events
the
second
surrounding
day
of
Quy’s
trial,
Le
murder;
testified
that
regarding
testimony
the
was
substantially similar to Phuc’s. There were some inconsistencies
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between Phuc and Le’s testimony, however, such as Le’s testimony
that Ngo’s left hand was inside his jacket when he approached
Quy’s car, while Phuc testified that it was Ngo’s right hand. Le
also testified that (1) he knew Ngo from seeing him on prior
occasions around their community; (2) Ngo was a member of ADF;
and (3) Ngo was heavyset and had a dragon tattoo on his arm.
Describing
his
interaction
with
law
enforcement
on
the
night of the shooting, Le said he told police officers who the
shooter was and identified Ngo in a photographic line-up. Le
also testified that (1) members of AYD had attacked Ngo several
weeks before Quy’s murder; (2) he called two members of AYD
before calling 911 after Quy was shot; and (3) that he lied to
the police regarding his affiliation with AYD.
Next, Detective Chad Ellis testified about his interaction
with Le at the scene of Quy’s murder. Detective Ellis stated
that Le identified Ngo, a “big person,” as Quy’s shooter and
described
the
events
surrounding
the
crime
in
a
manner
consistent with Le’s testimony at trial. Defense counsel made no
objection to Ellis’ testimony, even though it raised the same
hearsay
concern
as
Officer
Cooper
and
Detective
Allen’s
testimony.
Finally, Detective David Allen testified that he spoke with
Phuc and Le at the police station later on the night Quy was
shot,
and
that
both
Le
and
Phuc
5
identified
Ngo
from
a
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photographic line-up. Defense counsel objected to the admission
of Allen’s testimony regarding what Le had told him. The trial
court determined that Le’s statements to Detective Allen were
admissible as prior consistent statements to rehabilitate Le’s
previously impeached testimony. Detective Allen then testified
that,
when
surrounding
he
interviewed
Le,
Le
Quy’s
shooting
a
manner
in
described
the
consistent
events
with
Le’s
testimony at trial.
On
March
23,
2006,
the
jury
found
Ngo
guilty
on
both
counts. The jury sentenced Ngo to 23 years for murder in the
first
degree,
and
three
years
for
use
of
a
firearm
in
the
murder, to run consecutively for a total of 26 years.
Ngo appealed his conviction, claiming that the trial court
erred in admitting the testimony of Officer Cooper and Detective
Allen.
Accepting
the
Commonwealth’s
concession
of
error,
the
Virginia Court of Appeals (“VCOA”) nonetheless affirmed Ngo’s
conviction,
finding
that
any
error
was
harmless.
Ngo
v.
Commonwealth, No. 1671-06-4, slip op. at 1 (Va. Ct. App. June
17, 2008). The court noted that while the evidence of Ngo’s
guilt was not overwhelming, the improperly admitted hearsay was
cumulative of other uncontested evidence, namely the eyewitness
testimony, photographic identification, and the testimony from
Detective Ellis to which trial counsel failed to object. The
Virginia Supreme Court denied Ngo’s petition for appeal. Ngo v.
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Commonwealth, No. 082065 (Va. Mar. 10, 2009), reh’g denied (Va.
Apr. 24, 2009).
B.
In April 2010, Ngo sought post-conviction relief in state
court,
claiming,
in
pertinent
part,
that
trial
counsel
was
ineffective for not objecting to the photographic line-up and
the Ellis hearsay. Ngo argued that counsel’s neglect provided
the VCOA with the basis on which to find harmless error on
direct
appeal.
petition,
After
finding
a
that
hearing,
trial
the
state
counsel’s
court
denied
omissions
did
the
not
prejudice Ngo. Ngo v. Commonwealth, No. CL-2010-6101, slip op.
at 5 (Va. Cir. Ct. May 18, 2011). The court explained that
“there
[Phuc
was
and
substantial
Le’s
corroborated
by
evidence
testimony]”
other
and
evidence
of
[Ngo’s]
that
in
guilt,
their
addition
including
“testimony
to
the
was
hearsay
evidence that was erroneously admitted.” J.A. 66-67.
The
Virginia
Supreme
Court
denied
Ngo’s
petition
for
appeal. Ngo v. Commonwealth, No. 111512 (Va. Oct. 27, 2011).
C.
In January 2012, Ngo filed a 28 U.S.C. § 2254 petition in
the Eastern District of Virginia. In his petition, Ngo alleged
that
trial
counsel
rendered
deficient
performance
by
not
objecting to each instance of inadmissible hearsay, specifically
the testimony of Detective Ellis. Ngo asserted that counsel’s
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carelessness prejudiced him in two distinct ways: it undermined
confidence in the jury’s verdict and it precluded a successful
direct appeal.
Rejecting
determined
each
that
of
the
Ngo’s
state
contentions,
the
post-conviction
district
court’s
court
finding
regarding the sufficiency of the evidence was supported by the
fact
that
Phuc
and
Le’s
accounts
of
Quy’s
murder
were
very
similar. Further, the court noted that Phuc and Le’s testimony
was corroborated by the physical evidence at the scene of the
crime and by police officer testimony regarding Ngo’s tattoos
and heavy build.
The district court also determined that Ngo could not show
prejudice
failed
hearsay
to
to
overruled.
because
the
bolstering
testimony
object
was
cumulative
of
which
counsel
Accordingly,
raised
the
a
the
which
improperly
proper
district
to
objection
court
counsel
admitted
but
dismissed
was
Ngo’s
petition.
We granted Ngo’s request for a certificate of appealability
as
to
one
issue:
whether
Ngo’s
counsel
was
constitutionally
ineffective in failing to consistently object to the improper
admission of hearsay during Ngo’s trial.
II.
We review a district court’s dismissal of a habeas petition
de novo, keeping in mind the constraints of 28 U.S.C. § 2254.
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See Muhammad v. Kelly, 575 F.3d 359, 367 (4th Cir. 2009). Under
the Antiterrorism and Effective Death Penalty Act (AEDPA), we
cannot grant relief unless the state court’s final decision on
the merits
(1) resulted in a decision that 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) 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); Moore v. Hardee, 723 F.3d 488, 495 (4th
Cir. 2013).
A.
Ngo
first
contends
that
the
state
post-conviction
court
made an unreasonable determination of the facts. We presume that
the state court’s factual findings are sound unless Ngo “rebuts
the
‘presumption
evidence.’”
of
Miller-El
correctness
v.
Dretke,
by
545
clear
U.S.
and
convincing
231,
240
(2005)
by
finding
(quoting 28 U.S.C. § 2254(e)(1)).
Ngo
insists
that
the
state
court
erred
that
there was substantial evidence and that the eyewitness testimony
was corroborated by other evidence. But Ngo has not shown by
clear and convincing evidence that the state court was incorrect
(to
say
nothing
eyewitnesses,
of
including
“unreasonable”)
their
to
photographic
9
credit
the
identifications
two
of
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him as the shooter, as corroborated by Detective Allen, as well
as their in-court identifications. Ngo attempts to negate the
effect
of
the
inconsistencies
eyewitness
in
the
testimony
testimony
of
by
the
highlighting
two
minor
witnesses.
The
record reflects that Le and Phuc testified to a substantially
similar
series
of
events,
and
both
identified
Ngo
at
a
photographic lineup following the murder and later in court.
Their unwavering identification of Ngo would be sufficient on
its
own,
but
photographic
there
is
also
identification
corroborating
from
Detective
testimony
Allen,
as
of
their
well
as
physical evidence that supports the eyewitness testimony (albeit
not their identification of Ngo as the shooter). We agree with
the district court that Ngo has not offered anything that would
amount
to
the
clear
and
convincing
evidence
necessary
to
overcome the presumption in favor of the state court’s factual
findings.
B.
Ngo
next
contends
that
the
state
post-conviction
court
unreasonably applied clearly established federal law. A state
court’s decision is objectively unreasonable under AEDPA where
the state court “correctly identifies the governing legal rule
but applies it unreasonably to the facts of [the particular]
case, or if the court is unreasonable in refusing to extend the
governing legal principle to a context in which the principle
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should have controlled.” Barbe v. McBride, 521 F.3d 443, 543-54
(4th Cir. 2008) (internal quotation marks omitted).
Ngo does not dispute that the state post-conviction court
applied
the
correct
test
as
dictated
by
Strickland
v.
Washington, 466 U.S. 668, 690-94 (1984). “Where a habeas corpus
petition alleges ineffective assistance of counsel, we review
the claim not only through the strictures of the AEDPA but also
‘through the additional lens of Strickland and its progeny.’”
Hardee at 495-96 (quoting Richardson v. Branker, 668 F.3d 128,
139 (4th Cir. 2012)). Strickland lays out a two-part test for a
petitioner to demonstrate that he did not receive the effective
assistance of counsel: first, that the petitioner’s counsel’s
performance was “outside the range of professionally competent
assistance”; and second, that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at
690-94;
Winston
v.
Pearson,
683
F.3d
489,
504-05
(4th
Cir.
2012). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at
694.
We will focus our analysis on the prejudice prong, as that
is
where
the
state
post-conviction
court
rested
its
determination. See id. at 697 (stating that “a court need not
determine
whether
counsel’s
performance
11
was
deficient
before
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examining the prejudice suffered by the defendant as a result of
the alleged deficiencies”). 1 At the outset, Ngo asks us to decide
if, when a habeas petitioner raises a question of ineffective
assistance of trial counsel for failing to preserve an issue for
direct
appeal,
our
prejudice
analysis
looks
to
whether
the
outcome of the direct appeal would have been different, or if
the outcome of the original trial must be called into question.
While this is an interesting issue, 2 this case does not require
us to decide it; Ngo’s claim fails either way.
We
agree
with
the
district
court
that
the
state
post-
conviction court did not unreasonably apply clearly established
1
We do note, however, that the prosecution conceded the
error made by counsel in the state court proceedings. The Warden
now attempts to argue that the state trial court was not in
error in admitting the disputed testimony. We need not decide
whether lawyers for the Commonwealth of Virginia may have it
both ways in this fashion.
2
The federal appellate courts are split on this issue.
Compare Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006)
(rejecting prejudice analysis which relies on a different
outcome on appeal as opposed to the entire criminal proceeding),
and Smith v. Jago, 888 F.2d 399, 405 (6th Cir. 1989) (same) with
Parker v. Ercole, 666 F.3d 830, 834-35 (2d Cir. 2012)
(conducting a Strickland analysis on whether outcome on appeal
would have been different had trial counsel preserved the
objection), and Gov’t of Virgin Islands v. Forte, 865 F.2d 59,
64 (3d Cir. 1989) (“While we realize that ordinarily the
Strickland principles are advanced when the contention is made
that the trial cannot be relied upon to have produced a just
result, we see no logical reason why they should not be
applicable when the defendant was denied a just result on appeal
because of the ineffectiveness of his attorney at the trial.”).
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federal law as there is not a reasonable probability that either
the outcome of the trial, or the direct appeal, would have been
different had Ngo’s trial counsel objected to the admission of
Detective Ellis’ testimony.
Ngo
has
not
shown
that
if
his
trial
counsel
had
acted
differently, there is a reasonable probability that his trial
outcome would have changed. During the trial, the judge ruled on
the admission of two very similar witnesses, Officer Cooper and
Detective Allen, on the same grounds of hearsay. Ngo does not
suggest, and nothing else indicates, that the judge would have
ruled
differently
testimony.
objection
content
of
on
Moreover,
(had
his
one
the
even
been
testimony
admission
if
made)
–
the
to
of
Detective
judge
the
had
Ellis
corroborating
Le’s
Ellis’
sustained
testimony,
story
of
an
the
the
shooting and Le’s identification of Ngo as the shooter – already
was
presented
to
the
jury
through
Le’s
own
testimony,
its
similarity to Phuc’s testimony, and the corroboration of Phuc’s
testimony from the other police officers whose testimony was
allowed
over
defense
counsel’s
objections.
Ngo’s
speculative
argument that it was the singular power of the Ellis testimony
that tipped the credibility of Le and Phuc in favor of the
prosecution is just that, speculation, and the district court
was right to reject it.
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Nor has Ngo shown a reasonable probability that the outcome
would have been different on direct appeal. The VCOA held that
the admission of the testimony, over objection, from Officer
Cooper and Detective Allen was harmless error, as it was “merely
cumulative of other, undisputed evidence.” J.A. 37. Among the
pieces of the other, undisputed evidence, the VCOA cited to was
Detective Ellis’ testimony, the basis now asserted for trial
counsel’s ineffectiveness. Ngo contends that without this piece
of evidence, which would not have received the appellate court’s
consideration
in
its
harmlessness
analysis
but
for
trial
counsel’s failure to object to its admission, there was not an
adequate basis for the VCOA to find the admission of hearsay
testimony harmless error. Thus, he contends, he likely would
have obtained a reversal on appeal and a new trial. We disagree.
As
we
reason
above,
Ngo
overstates
the
significance
of
Detective Ellis’ testimony. While the VCOA did rely on it, the
testimony was just one of several pieces of evidence, as we have
discussed: even after removing Detective Ellis’ testimony, there
still remains Phuc and Le’s testimony that Ngo was the shooter,
including
their
out-of-court
and
in-court
identifications;
Detective Allen’s testimony that Phuc and Le identified Ngo in
the photographic lineup (which was certainly admissible under
Virginia law); and the physical evidence regarding the location
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of shell casings and the bullet holes in Quy’s car, which align
with Phuc and Le’s testimony.
In short, Ngo has failed to show that but for his trial
counsel’s failure to object, the outcome of either his direct
appeal or his trial would have been different. We agree with the
district
court
that
the
state
post-conviction
court
did
not
unreasonably apply clearly established federal law in coming to
this same conclusion.
III.
For the reasons stated above, the judgment of the district
court is
AFFIRMED.
15
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