Du v. Lebanon Correctional Institution

Filing 6

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the matter in light of the Objections, the Magistrate Judge again respectfully recommends that the Petition be dismissed with prejudice, that the Petitioner be denied a certificate of appealability, and that the Court certify an appeal would not be taken in objective good faith. Objections to R&R due by 7/5/2013. Signed by Magistrate Judge Michael R Merz on 6/17/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CHI Q. DU,
:
Petitioner,

Case No. 3:13-cv-121
:

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

-vsERNIE MOORE, Warden,
Lebanon Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus pursuant is before the Court on Petitioner’s Objections (Doc. No. 4)
to the Magistrate Judge’s Report and Recommendations recommending dismissal with prejudice
(Doc. No. 3). Judge Rice has recommitted the case for reconsideration in light of the Objections
(Doc. No. 5).

Because the Report was made upon initial review under Habeas Rule 4,

Respondent has not been served and has had no occasion to respond to the Objections.

Ground One: Admission of Prejudicial Evidence

Petitioner Chi Q. Du was indicted for the simultaneous murderous attacks on Thuy Mai
and Eric Borton on October 28, 1997, at Wright State University. State v. Du, 2011 Ohio 6306,
2011 Ohio App. LEXIS 5191, ¶ 3 (2nd Dist. 2011). Du was Ms. Mai’s former boyfriend; Borton
became her boyfriend after she terminated her relationship with Du, much against Du’s wishes.
Without objection by Du, these charges were set for trial together.
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On the morning of trial, Du pled guilty for his attack on Ms. Mai, then attempted
unsuccessfully to exclude evidence regarding that attack from admission in the trial for the attack
on Borton. In his First Ground for Relief, Du claims the admission of crime scene photos and
testimony about the injuries to Mai deprived him of due process and a fair trial (Petition, Doc.
No. 1, PageID 5).
This claim was raised as the Third Assignment of Error on direct appeal. In rejecting it,
the court of appeals wrote in part:
Evidence regarding the nature and extent of Mai's injuries was
admissible for at least two reasons. First, it was relevant for the
State to establish Du's murderous intent when he stabbed Borton.
Indeed, Du's intent when he attacked Mai was indicative of his
intent when he stabbed Borton because the two incidents occurred
almost simultaneously. We hesitate to characterize the attack on
Mai as other "crimes, wrongs or acts" evidence as included in
Evid. R. 404(B) because the attack on Mai is a cohesive part of the
same event. However, 404(B) is at least instructive to indicate that
other acts evidence of one's "motive,* * * intent, * * * [and] plan"
may be admitted to prove those components when relevant. The
vicious nature of the attack on Mai, as shown through the disputed
evidence, was relevant to prove motive and intent. Second, as
noted above, evidence regarding the nature and extent of Mai's
injuries was relevant to the issue of prior calculation and design.
The fact that Du violently attacked Mai in Borton's presence,
despite knowing that Borton was willing to die for her, supports an
inference that the jury could draw that the attack on Mai was
calculated to result in Borton's death as well. The trial court did not
act unreasonably or arbitrarily in finding that the probative value of
the disputed evidence was not substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury. The third assignment of error is overruled.
State v. Du, 2011 Ohio 6306, ¶ 22, 2011 Ohio App. LEXIS 5191 at *13-15 (2nd Dist. 2011).
Because the state court of appeals1 decided this issue on the merits, this habeas corpus
court must defer to that decision unless it is is contrary to or an objectively unreasonable
1

The Ohio Supreme Court declined further review in a form entry. State v. Du, 131 Ohio St. 3d 1510 (2012). The
court of appeals’ decision is therefore the last reasoned state court decision.

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application of clearly established precedent of the United States Supreme Court. 28 U.S.C. '
2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 785 (2011); Brown v. Payton,
544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor,
529 U.S. 362, 379 (2000).

Based on this controlling precedent, the Magistrate Judge

recommended dismissal of Ground One (Report, Doc. No. 3, PageID 365-366).
Petitioner objects. While conceding the general principle that errors in administering
state evidentiary rules do not usually rise to the level of due process violations, he asserts these
do (Objections, Doc. No. 4, PageID 379-388). He provides, however, no clearly established
Supreme Court precedent remotely in point. For example, he cites Estelle v. Williams, 525 U.S.
501 (1976), for the general principle that “The right to a fair trial is a fundamental liberty secured
by the Fourteenth Amendment.” (Objections, Doc. No. 4, PageID 388). But the holding of that
case is that a state court may not compel a defendant to stand trial in prison clothes over his
objection; the case has nothing to do with admission of evidence of injuries to a co-victim in a
common attack.
Similarly, he cites Lisenba v. California, 314 U.S. 219 (1941), for the general proposition
that “[t]he aim of the requirement of due process . . . is to prevent fundamental unfairness in the
use of evidence whether true or false.” (Objections, Doc. No. 4, quoting Lisenba at 236.) The
holding of the case is on the voluntariness of confessions, not admission of evidence from
another part of the criminal occurrence in trial.
In determining whether a state court decision is contrary to or an unreasonable
application of clearly established Supreme Court precedent, a federal court may look only to the
holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant
state court decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S.

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362 at 412 (2000). Petitioner has pointed to no holdings of the Supreme Court which were
unreasonably applied by the Second District Court of Appeals in deciding this issue.

Ground Two: Insufficient Evidence

In his Second Ground for Relief, Du asserts that the evidence introduced against him at
trial is insufficient to sustain a conviction on the element of prior calculation and design. As
with the First Ground for Relief, the Report concluded that the Second District Court of Appeals
had decided this issue on the merits and that its decision was not an objectively unreasonable
application of the relevant Supreme Court holding in Jackson v. Virginia, 443 U.S. 307
(1979)(Report, Doc. No. 3, PageID 376).
The Objections criticize the Report on this Ground for Relief “predominantly because the
issues raised as to the lack of evidence and standards regarding prior calculation and design are
essentially not even addressed by the Magistrate Judge. . . . Rather there is almost a complete
reliance upon and deference given to the state court decision. ” (Objections, Doc. No. 4, PageID
390).
Du does not dispute that the issue of legal sufficiency of the evidence was raised in his
First Assignment of Error and decided on the merits by the Second District Court of Appeals.
That court recited at length the evidence from the trial transcript on which it relied to find
sufficiency. State v. Du, 2011 Ohio 6306, 2011 Ohio App. LEXIS 5191, ¶¶ 8-19 (2nd Dist.
2011)(quoted in full at Report, Doc. No. 3, PageID 371-376). In his Objections, Du does not
reargue this claim, but instead insists his original arguments in the Petition did not receive the
analysis they are due.

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As Supporting Facts on Ground Two, Petitioner asserted:
Petitioner was charged with attempted aggravated murder. The
evidence presented against Petitioner consisgted [sic] of evidence
that given State and Federal auithority [sic]does not rise to the
level of attempted aggravated murder. The alleged victim and
petitioner did not have any history of violence or abuse. The
Petitioner and alleged victim did not have any prior physical
altercations. Petitioner did not attack alleged victim, but in fact the
evidence demonstrated that the alleged victim rushed the Petitioner
who had made no aggressive moves towards the alleged victim.
The photographs referenced in Ground One were the basis of the
conviction given the prejudice to the jury; instead of valid evidence
of actual guilt. The trial court thereby made an unreasonable
determination of the facts in light of the evidence in violation of
Petitioner's Due Process rights.
(Petition, Doc. No. 1, PageID 7, emphasis added.2) The substance of the argument on this
Ground for Relief is that the Second District Court of Appeals was wrong on what Ohio law
requires to show prior calculation and design (Petition, Doc. No. 1, PageID 44-59).
In deciding a sufficiency of the evidence claim in habeas, it is state law which defines the
elements of the crime, but federal law which determines whether enough evidence was presented
to support that element. In re Winship, 397 U.S. 358, 364 (1970). When a habeas court reviews
a state court decision on the sufficiency of the evidence, it must give double deference to that
decision. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence
habeas corpus case, deference must be given to the trier-of-fact's verdict under Jackson v.
Virginia and then to the appellate court's consideration of that verdict, as commanded by
AEDPA. Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008). The Supreme Court reiterated this
standard just last term:
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of
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The emphasized language suggests the trial court made findings of fact which are in issue, but the case was tried to
a jury, not to the bench.

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judicial deference. First, on direct appeal, "it is the responsibility of
the jury -- not the court -- to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury's verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury."
Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d
311, 313 (2011) (per curiam). And second, on habeas review, "a
federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).
Petitioner structures his argument on this Ground for Relief as if this Court were
supposed to engage in de novo review of what the jury found, but that would be contrary to the
law just cited. Du’s Petition cites evidence from the trial transcript at length (Petition, Doc. No.
1, PageID 56-59) as if he were making a de novo argument, but he offers no analysis of how the
court of appeals’ decision, based on the same facts, is an objectively unreasonable application of
Jackson v. Virginia.
In fact, the only place in the fifteen-page argument in the Petition on this Ground for
Relief where the court of appeals’ decision is mentioned is at PageID 51 as follows:
The Court of Appeals found that Mr. Du followed Borton and the
female to the parking lot and counsel would simply indicate that
based upon the transcript in this case that this Court will see that
those were not the facts elicited entirely at trial as is contended in
the transcript. It is submitted that this fact is essential to a fair
determination of this case and the reliance by the Court of Appeals
on this fact warrants consideration by this Court.

Id.. The referenced finding is in ¶ 11 of the appellate opinion:
[*P11] Between 7:00 p.m. and 9:00 p.m. that evening, another
Wright State student, Bichnhu Nguyen, was studying in the school
library. Du approached her and asked where Borton and Mai were.
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(Id. at 180). Du appeared "agitated" and "anxious to find them."
(Id.). Shortly thereafter, Nguyen called Borton and told him about
her encounter with Du. (Id. at 181). Later that night, sometime
after 11:00 p.m., Borton and Mai returned to Wright State so Mai
could retrieve a jacket. (Id. at 291). While they were at the school,
Du arrived and found them. (Id. at 292). As he had previously, Du
began pleading with Mai to return to him. During the encounter,
Du mentioned having been to Borton's apartment looking for them.
(Id.). Borton and Mai proceeded to leave the building and head
toward Borton's car. (Id. at 300-302). Du followed them to the
parking lot. At some point, Borton got ahead of Du and Mai. He
then heard Mai scream. (Id. at 303).

State v. Du, supra (emphasis supplied). The transcript pages referenced by the court of appeals
are reproduced in the record at PageID 143-144. The prosecutor is examining Mr. Borton on a
photo or video depiction of two relevant places at Wright State University involved in the crime.
The depictions at trial in 2002 are somewhat different from what the places looked like in 1997
when the crime occurred because the Wright State campus had changed in the meantime3. The
court of appeals’ summary of the relevant testimony as “Due followed them to the parking lot” is
completely accurate, albeit not a verbatim repetition of the testimony. Certainly it is not an
unreasonable determination of the facts based on the evidence presented. And it is not material.
Even if all three of them had walked out of the library together, that would not undermine the
conclusion that Du meant to kill both of them.
In sum, the standard of review on a sufficiency claim is not de novo. Even if it were, in
the one instance in which Du criticizes the court of appeals’ findings, the finding is clearly not
erroneous.

3

The trial was delayed for fifteen years because Mr. Du fled to Canada after the crime and had to be found and then
extradited. State v. Du, supra, at ¶ 3.

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Conclusion

Having reconsidered the matter in light of the Objections, the Magistrate Judge again
respectfully recommends that the Petition be dismissed with prejudice, that the Petitioner be
denied a certificate of appealability, and that the Court certify an appeal would not be taken in
objective good faith.
June 17, 2013.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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