Jerry Vang v. Steve Hammer

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Diana E. Murphy and Bobby E. Shepherd (UNPUBLISHED) [4483613] [16-2664] DISSENT BY: Diana E. Murphy [4483613] [16-2664]--[Edited 12/27/2016 by SRD]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-2664
___________________________
Jerry Vang
lllllllllllllllllllllPetitioner - Appellant
v.
Steve Hammer
lllllllllllllllllllllRespondent - Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: October 5, 2016
Filed: December 27, 2016
[Unpublished]
____________
Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Petitioner Jerry Vang’s request for a certificate of appealability (COA)
following the district court’s1 dismissal of his 28 U.S.C. § 2254 petition is denied.
1

The Honorable David S. Doty, United States District Judge for the District of
Minnesota, adopting the report and recommendations of the Honorable Jeffrey J.

Appellate Case: 16-2664

Page: 1

Date Filed: 12/27/2016 Entry ID: 4483613

When 14 years old, Vang shot two people, killing one of them. The State of
Minnesota filed a delinquency petition, charging Vang with first-degree murder
during a drive-by shooting, second-degree murder during a drive-by shooting, and
attempted first-degree murder during a drive-by shooting. The State sought
certification to prosecute Vang as an adult, however the juvenile court accepted
Vang’s guilty plea to the first-degree and attempted first-degree murder charges
without ruling on the adult-certification request. The juvenile court convicted him
of the adult convictions and sentenced him to adult sentences of life in prison for the
murder and a concurrent 200 month sentence for the attempted murder.
Several years later, Vang sought postconviction relief. The Minnesota
Supreme Court granted postconviction relief, holding Vang’s adult conviction and
sentence were void because the juvenile court lacked the jurisdiction to enter the
conviction and sentence. The Minnesota Supreme Court remanded the case to a
district court—not the juvenile court—to retry Vang. On remand, Vang chose—on
the advice of his trial counsel—to reject a plea offer and instead to go to trial and
assert a claim of self defense. A jury found Vang guilty of first- and second-degree
murder committed during a drive-by shooting and of attempted first-degree murder
committed during a drive by shooting. The district court imposed a life sentence with
the possibility of release for the first-degree murder conviction and a consecutive 90month sentence for the attempted first-degree murder conviction.
While Vang’s direct appeal from the conviction and sentence was pending,
Vang filed a state postconviction petition, asserting that his counsel was ineffective
for advising him to reject a plea offer and to proceed to trial on a claim of self
defense. This petition was denied while the direct appeal was pending. The
Minnesota Supreme Court consolidated the appeal of denial of the postconviction
petition with Vang’s direct appeal. In the consolidated appeal, Vang asserted, as

Keyes, United States Magistrate Judge for the District of Minnesota.
-2-

Appellate Case: 16-2664

Page: 2

Date Filed: 12/27/2016 Entry ID: 4483613

relevant, that his ineffective-assistance claims were improperly dismissed, that the
trial court lacked jurisdiction under Minnesota law because the juvenile court had
exclusive jurisdiction, and that his sentence violated Miller v. Alabama, 132 S. Ct.
2455, 2460 (2012). The Minnesota Supreme Court affirmed Vang’s conviction and
sentence as well as the denial of his postconviction petition. As to Vang’s
ineffective-assistance claim, the Minnesota Supreme Court found that counsel’s
advice to reject a plea offer and proceed to trial on a claim of self defense was not
objectively unreasonable, as Vang offered evidence at trial that could have supported
the claim.
Vang filed a counseled section 2254 petition, asserting the ineffectiveassistance claim, the jurisdiction claim, and the Miller claim. The district court
denied relief and dismissed Vang’s petition. Vang now seeks a certificate of
appealability to challenge the district court’s dismissal of his section 2254 petition.
As the dissent agrees that a certificate of appealability should be denied as to
Vang’s jurisdictional and Miller claims, we will not discuss those claims further. We
write only to explain why the Court is denying a certificate of appealability as to
Vang’s ineffective-assistance claim.
Before we can grant a certificate of appealability, the habeas petitioner “must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). When making its “assessment” of the merits of Vang’s constitutional claim,
the district court had to decide whether the Minnesota Supreme Court’s decision that
Vang’s counsel was not ineffective “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or . . . 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)(1)-(2). In other words, the district court had to determine not whether
-3-

Appellate Case: 16-2664

Page: 3

Date Filed: 12/27/2016 Entry ID: 4483613

Vang’s counsel provided effective assistance but “whether the state court’s
application of the Strickland standard was unreasonable.” See Harrington v. Richter,
562 U.S. 86, 101 (2011); see also Strickland v. Washington, 466 U.S. 668, 689 (1984)
(“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel’s defense after
it has proved unsuccessful, to conclude that a particular act or omission of counsel
was unreasonable.”). “This is different from asking whether defense counsel’s
performance fell below Strickland’s standard.” Harrington, 526 U.S. at 101. Instead,
the district court was tasked with determining “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id. at 105. This
is the “doubly deferential” standard referred to by the district court.
In reviewing the trial court evidence, the district court thoroughly reviewed the
Minnesota Supreme Court decision which concluded Vang’s counsel did not provide
objectively unreasonable assistance. The district court noted several conclusions
reached by the Minnesota Supreme Court including (1) Vang’s prior counsel had
advised that Vang did not have a viable self defense claim and thus he was aware of
the conflicting advice from counsel, (2) the state district court determined there was
sufficient evidence of self defense to instruct the jury of the defense, and (3) the
advice to reject the plea and present the defense was not based on erroneous legal
conclusion but instead an ultimately unsuccessful strategic decision. Thus, the
district court determined the Minnesota Supreme Court decision was not based on an
unreasonable application of the Strickland standard.
The district court’s assessment is not “debatable or wrong.” Instead, it
provided the proper deference entitled to counsel under Strickland and to the
Minnesota Supreme Court under section 2254. To grant a certificate of appealability
in this situation would require this Court to ignore the highly deferential standards

-4-

Appellate Case: 16-2664

Page: 4

Date Filed: 12/27/2016 Entry ID: 4483613

that must be given to the trial counsel, the Minnesota Supreme Court, and the district
court.
The certificate of appealability is denied.
MURPHY, Circuit Judge, dissenting in part.
A habeas petitioner is entitled to a certificate of appealability (COA) if
"reasonable jurists could debate" whether the petitioner is entitled to a writ of habeas
corpus. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see 28 U.S.C. § 2253(c)(2).
Since reasonable jurists could debate whether the state court unreasonably concluded
that Jerry Vang's trial counsel had not provided ineffective assistance of counsel, I
dissent from the decision to deny a certificate of appealability on that claim.
To establish a claim for ineffective assistance of counsel, a petitioner must
show that counsel performed deficiently and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 686 (1984). Vang
alleges that his trial counsel provided ineffective assistance by advising him to reject
a plea bargain offered by the prosecution and to go to trial on a self defense theory.
On collateral review, the Minnesota Supreme Court rejected his theory although it
considered it a "close call" whether "trial counsel's alleged advice was objectively
unreasonable." State v. Vang, 847 N.W. 2d 248, 268 (Minn. 2014).
In denying Vang habeas relief and a certificate of appealability on his
ineffective assistance of counsel claim, the district court referred to the "'doubly
deferential' standard of review that gives both the state court and the defense attorney
the benefit of the doubt." See Burt v. Titlow, 134 S. Ct. 10, 13 (2013) (quoting
Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)). That standard does not of course
mandate the outcome of such a review. Appellate courts regularly review habeas

-5-

Appellate Case: 16-2664

Page: 5

Date Filed: 12/27/2016 Entry ID: 4483613

claims brought under 28 U.S.C. § 2254 that raise ineffective assistance of counsel
questions. See, e.g., Lafler v. Cooper, 132 S. Ct. 1376, 1390 (2012).
Here, there is affirmative evidence that Vang's trial counsel's advice to proceed
to trial on a self defense theory may have been objectively unreasonable. The lawyer
Vang previously retained had concluded that Vang lacked "a viable self-defense
defense" because "there was nothing to suggest Mr. Vang had to shoot the victims to
prevent great bodily harm of [sic] death." Consistent with that conclusion, Vang
testified at trial on cross examination that he could have left the scene without
shooting the two victims, thereby weakening any claim to self defense. See Minn.
Stat. § 609.065 (precluding use of deadly force "except when necessary in resisting
or preventing . . . great bodily harm or death"); Minnesota v. Basting, 572 N.W. 2d
281, 285–86 (Minn. 1997). A reasonable jurist could conclude that no reasonable
lawyer would advise a client to proceed to trial on a self defense theory where there
has been no evidence that the defendant faced great bodily harm or death (let alone
in circumstances like here where the defendant's own statements undermined that
claim). See Tenny v. Cockrell, 420 F. Supp. 2d 617, 627–33 (W.D. Tex. 2004), aff'd
416 F.3d 404, 407–08 (5th Cir. 2005).
The state post conviction court reasoned that Vang's trial counsel could not
have been aware that his testimony would undermine his claim to self defense.
Indeed, the district court stated that "[i]t strains credulity . . . to think that [Vang's]
attorney, or any attorney, would have proffered such a defense had he known that the
petitioner would have testified in this manner." Vang nevertheless testified
consistently with a statement that he had made to law enforcement immediately
following his arrest and another he had given to his codefendant's attorney. Both of
those pretrial statements indicate that Vang had fired his weapon not because he was
physically threatened by the victims, but rather because he was angry that one of them
had disrespected him and his family.

-6-

Appellate Case: 16-2664

Page: 6

Date Filed: 12/27/2016 Entry ID: 4483613

On this record it appears that trial counsel did not sufficiently investigate
Vang's prior testimony and that the decision to pursue a self defense claim was not
"strategic" or entitled to deference by the state court. See Wiggins v. Smith, 539 U.S.
510, 527 (2003). Alternatively, the record may also be read as suggesting that Vang's
counsel may have given objectively unreasonable advice. Under either situation,
reasonable jurists could debate whether the state court unreasonably applied
Strickland to the facts of Vang's case. Vang is entitled to an opportunity for full
briefing on his ineffective assistance of counsel claim. For that reason, I dissent in
part from the denial of a certificate of appealability.2
______________________________

2

I agree that Vang is not entitled to a certificate of appealability on his two
remaining claims.
-7-

Appellate Case: 16-2664

Page: 7

Date Filed: 12/27/2016 Entry ID: 4483613