Thach v. Nooth
Filing
81
OPINION & ORDER: Petitioner's Petition for Writ of Habeas Corpus 2 is Denied. The Court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). Signed on 7/15/19 by Judge Robert E. Jones. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LAI NGOC THACH,
Case No. 2:16-cv-00659-JO
Petitioner,
OPINION AND ORDER
v.
MARK NOOTH,
Respondent.
Kristina Hellman
Assistant Federal Public Defender
101 s.w. Main Street, Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
Ellen F. Rosenblum, Attorney General
Nick M. Kallstrom, Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97310
Attorneys for Respondent
1 - OPINION AND ORDER
JONES, District Judge.
u.s.c.
2254
§
case pursuant to 28
habeas corpus
Petitioner brings this
the
challenging
of
legality
his
conviction for Murder. For the reasons that follow,
state-court
the Petition
for Writ of Habeas Corpus (#2) is denied.
BACKGROUND
In
December
at
the
sister,
Son
had been at the center of the fight at its outset,
and
Wetlands
Thach,
Public
2006,
House
a
large
in
bar
Portland.
fight
Petitioner's
when the bar fight began to calm down,
balls which extended the fighting.
broke
out
she began throwing pool
As a result,
the victim in
this case, Robert Pfeifer, put Son Thach in a bear hug, took her
away
from
the
Petitioner,
pool
and
he
table,
released
fighting
began
and
with
her.
This
Pfeifer.
angered
Pfeifer
was
prevailing in the physical altercation, and several eyewitnesses
saw
Petitioner pull
out
a
handgun
and
shoot
Pfeifer
in
the
throat. The shot, occurring at point-blank range, killed Pfeifer
instantly.
The Multnomah County Grand Jury indicted Petitioner on one
count of Murder with a Firearm, and the case proceeded to a jury
trial.
The defense called Son Thach to testify on Petitioner's
behalf.
The prosecutor advised her that she had a right not to
testify,
she could also consult with an attorney prior to her
testimony, and that anything she said could be used against her.
When
the
prosecutor
provided free
informed
of charge,
her
that
an
attorney
could
be
Son Thach asked him whether she was
going to be arrested. The prosecutor responded that it depended
2 - OPINION AND ORDER
on the content of her testimony. Son Thach asked to speak with an
attorney, and ultimately elected to exercise her Fifth Amendment
right against self-incrimination and did not testify.
One of the witnesses to Pfeifer's murder was Leslie Hatch, a
bouncer at the Wetlands Public House. His testimony at trial was
somewhat different from other eyewitnesses insofar as he claimed
that
Petitioner
intended
to
had pointed
shoot
him,
not
grabbed Petitioner's arm,
went off,
the
gun directly at
Pfeifer.
Hatch
him
and had
testified
that
he
causing movement so that when the gun
the shot hit Pfeifer.
Hatch' s
testimony prompted the
prosecutor to ask the court for an instruction on transferred
intent.
The
court
intent
that
same
agreed,
day,
instructed
and
the
the
jury
jury
him
to
life
imprisonment
transferred
unanimously
Petitioner of the charged offense. As a result,
sentenced
on
with
a
convicted
the trial court
25-year
minimum
sentence.
Petitioner took a direct appeal raising claims that are not
at issue in this habeas corpus case. The Oregon Court of Appeals
affirmed
the
trial
court's
decision
without
Oregon Supreme Court denied review. State v.
opinion,
Thach,
and
the
238 Or. App.
758, 246 P.3d 101 (2010), rev. denied, 350 Or. 230, 253 P.3d 1079
(2011) .
Petitioner next filed for post-conviction relief
("PCR")
in
Malheur County. Relevant to this case, he alleged that his trial
attorney was
prosecutor
ineffective
for
failing
to:
intimated Son Thach into not
(1)
testifying;
that the shooting was reckless or negligent;
3 - OPINION AND ORDER
object
and
(3)
when
(2)
the
argue
object to
the
transferred
effectively
intent
amended
the
Following a hearing,
instruction
Indictment.
on
the
basis
Respondent's
that
Exhibit
it
109.
the PCR court denied relief on all claims.
Respondent's Exhibit 143.
The Oregon Court of Appeals affirmed
that decision without issuing a written opinion, and the Oregon
Supreme Court denied review.
Thach
(2014),
rev.
denied,
Petitioner filed
341
this
this
v.
P.3d
252
267 Or.
Nooth,
356
Or.
837,
App.
346
423,
P.3d 496
(2015).
federal
habeas
corpus case on
April 18, 2016, and the Court counsel to represent him. With the
assistance of counsel, Petitioner argues three of the claims from
his prose Petition. Respondent asks the Court to deny relief on
those claims because the PCR court denied them in a decision that
reasonably applied federal law.
DISCUSSION
I.
Standard of Review
An application for a
writ of
habeas
corpus shall not be
granted unless adjudication of the claim in state court resulted
in
a
decision
that
was:
(1)
"contrary
to,
or
involved
an
unreasonable application of, clearly established Federal law, as
determined
by
the
Supreme
Court
of
the
United
States;"
or
(2) "based on an unreasonable determination of the facts in light
of
the
U.S.C.
evidence
§
presented in
the
State
court proceeding. "
28
2254 (d). A state court decision is "contrary to .
clearly established precedent if the state court applies a rule
that
contradicts
Court's]
the
governing
law set
forth
in
[the
Supreme
cases'' or ''if the state court confronts a set of facts
4 - OPINION AND ORDER
that are materially
Supreme]
Court
indistinguishable
from
a
and nevertheless arrives at
a
from [that] precedent." Williams v. Taylor,
decision of
[the
result different
529 U.S. 362, 405-06
(2000) .
Under the "unreasonable application" clause of
a
federal
habeas
identifies
Supreme
may grant
relief
correct
the
court
governing
legal
Court's]
decisions
but
II
if
the
decision
to
application"
unreasonably
be
more
Twenty-eight u. S. C.
than
clause
2254 (d)
§
requires
incorrect
or
state
principle
principle to the facts of the prisoner's case.''
"unreasonable
2254 (d) (1),
§
court
from
[the
applies
that
Id at 413.
the
state
erroneous.
Id
The
court
at
410.
"preserves authority to issue the
writ in cases where there is no possibility fairminded jurists
could disagree
that
the
state court's
decision conflicts
with
[the Supreme] Court's precedents. It goes no farther." Harrington
v. Richter, 562 U.S. 86, 102 (2011).
Twenty-eight
"challenge
attempt
to
substantial
the
show
U.S.C.
substance
that
evidence
2254 (d) (2)
§
of
those
in
the
the
state
findings
state
allows
a
petitioner
court's
were
court
findings
not
to
and
supported
record."
by
Hibbler
v.
Benedetti, 693 F.3d 1140, 1146 (9 th Cir. 2012). A federal habeas
court cannot overturn a state court decision on factual grounds
"unless
objectively
unreasonable
in
light
of
the
evidence
presented in the state-court proceeding." Miller-El v.
Cockrell,
537 U.S. 322, 340 (2003). This is a "'daunting standard-one that
will be satisfied in relatively few cases,' especially because we
must
be
'particularly
5 - OPINION AND ORDER
deferential
to
our
state-court
colleagues.'" Hernandez v.
2014)
(quoting Taylor v.
(9 th Cir.
1000
366 F.3d 992,
Maddox,
857
(9 th Cir.
750 F.3d 843,
Holland,
2004)).
II.
Unargued Claims
With the assistance of counsel, Petitioner chooses to argue
three
of
the
claims
he
presented
in
argues
that
Petitioner
Specifically,
ineffective when he failed to:
his
pro
counsel
trial
to
the
was
(1) investigate and present expert
testimony in support of a mental heal th defense
(2) object
Petition.
se
prosecutor's
interference
(Ground 2. 3) ;
with
Son
Thach' s
testimony (Ground 2.2); and (3) object on federal constitutional
grounds
to
the
transferred
intent
jury
instruction
which
constructively amended the Indictment and deprived Petitioner of
notice of the charges against him (Ground 2.5).
With
respect
to
the
remainder
of
his
claims,
Petitioner
relies upon the record and does not address any of Respondent's
arguments as
to why relief
on these claims
should be denied.
Petitioner has not carried his burden of proof with respect to
these unargued claims. See Silva v.
Woodford,
(9th
the
Cir.
claims).
claims,
2002)
Even
the
(Petitioner
if
Petitioner
Court
has
bears
had
examined
burden
briefed
them
279 F.3d 825,
the
based
of
proving
merits
upon
the
of
835
his
these
existing
record and determined that they do not entitle him to relief.
III.
Mental Health Defense {Ground 2,3)
Petitioner's primary defense at trial was that he lacked the
intent
required
defense
hired
to
Dr.
be
convicted
of
intentional
Colistro
to
conduct
Frank
6 - OPINION AND ORDER
a
murder.
The
psychological
evaluation of Petitioner. Dr. Colistro concluded (based upon the
history
as
recounted
to
him
by
Petitioner)
that
Petitioner
suffered from severe alcohol dependency and was inebriated on the
night
of
the
shooting.
Petitioner's
shooting
rather
deliberate
than
Dr.
of
Colistro
Pfeifer
and
also
"was
concluded
reckless
intentional."
and
that
negligent
Respondent's
Exhibit
127, p. 7.
Petitioner does not argue that counsel
In this proceeding,
should
have
involved
called
reckless
believes Dr.
Colistro
Dr.
and
to
negligent
testify
conduct.
that
the
Instead,
killing
Petitioner
Colistro could have testified to his diagnosis of
severe alcohol dependency as well as his opinion that Petitioner
was intoxicated on the night in question such that the jury could
have used that information to conclude that Petitioner did not
intend to murder Pfeifer.
The Court uses the general two-part test established by the
Supreme
Court
ineffective
U.S.
111,
counsel's
determine
assistance
122-23
Due
performance,
of
(2009).
performance
reasonableness.
(1984).
to
counsel.
First,
fell
Strickland v.
to
the
Petitioner
whether
Knowles
v.
received
Mirzayance,
556
Petitioner must show that his
below
an
objective
Washington,
difficulties
in
standard
466 u. s.
668,
evaluating
of
686-87
counsel's
courts must indulge a strong presumption that the
conduct falls within the "wide range of reasonable professional
assistance.'' Id at 689.
Second, Petitioner must show that his counsel's performance
prejudiced the defense.
The appropriate
7 - OPINION AND ORDER
test
for
prejudice
is
whether
Petitioner
probability that,
can
show
"that
there
is
a
reasonable
but for counsel's unprofessional errors,
the
result of the proceeding would have been different." Id at 694. A
reasonable probability is one which is sufficient to undermine
confidence
in
the
outcome
of
the
trial.
at
Id
696.
When
Strickland's general standard is combined with the standard of
review governing 28 U.S.C.
§
2254 habeas corpus cases, the result
is a "doubly deferential judicial review." Mirzayance,
556 U.S.
at 122.
As an initial matter, although Petitioner believes that the
PCR court did not comprehend the nature of his claim, he did not
present the claim he argues here to the PCR court.
Petitioner
argues
dependence
that
his
intoxication
and
severe
alcohol
prevented him from forming intent to commit intentional murder,
and that Dr. Colistro could have testified about these alcoholrelated issues.
proceedings.
Petitioner presented no such claim in his PCR
Instead,
he argued that Dr.
Colistro' s
report was
favorable to the defense because it concluded that Petitioner's
conduct
p. 27.
was
At
reckless
no
time
and negligent.
did
Petitioner
Respondent's
argue
the
Exhibit
intoxication
alcohol dependence issues he now argues in this Court.
110,
and
In this
respect, Petitioner failed to fairly present the claim he argues
as Ground 2.3 to Oregon's state courts and provide those courts
with a fair opportunity to pass on the merits of the claim. See
Rose
v.
Lundy,
455
U.S.
509,
519
(1982)
(requiring
fair
presentation of claim to state courts). Because Petitioner can no
longer present the claim in Oregon's state courts,
8 - OPINION AND ORDER
the claim is
procedurally
default.
defaulted,
and
Petitioner
has
not
excused
the
The argued claim is therefore not properly before this
Court for adjudication. 1
As to the preserved claim that Petitioner did fairly present
to
Oregon's
Colistro' s
state
courts,
the
conclusions on the
PCR
court
legal
issue of
have been admissible in state court.
p. 3.
Such a
habeas court.
( 11
[W] e
it
is
not
is
Dr.
intent would not
binding on a
502 U.S.
See Estelle v. McGuire,
that
that
Respondent's Exhibit 14 3,
state-law determination
reemphasize
determined
the
62,
province
67-68
of
a
federal
(1991)
federal
habeas court to reexamine state-court determinations on state-law
questions.
11
)
•
Even if Petitioner had pled and fairly presented his argued
Ground 2. 3
claim,
recognizes,
Dr.
he would not be
entitled to
relief.
As
he
Colistro had a conflict of interest because he
was treating Hatch for the emotional trauma that ensued from the
shooting.
the
case,
This conflict prompted Dr.
thus
he
was
not
available
Colistro to withdraw from
to
testify.
Respondent's
Exhibit 139, p. 2. Although Petitioner asserts that any competent
psychologist could have provided similar testimony,
the
PCR
court
no
evidence
as
to
the
identity
he offered
of
such
a
psychologist, whether (s)he would have been available to testify,
1 Respondent argues that this claim is also not contained within the Petition
for Writ of Habeas Corpus, and is therefore not properly before this Court for
consideration. See Rule 2 {c), Rules Governing Section 2254 Proceedings, 28
U.S. C. foll. § 2254 (requiring each habeas petition to "specify all the
grounds for relief which are available to the petitioner 11 ) ; Greene v, Henry,
302 F.3d 1067, 1070 fn 3 (9th Cir. 2002) (a court need not consider claims not
raised in the petition), Where it is evident that the claim is unpreserved,
the Court need not resolve this issue.
9 - OPINION AND ORDER
and what the content of the testimony would have been. See Horn
v. Hill,
180 Or.
App.
139,
148-49,
41 P.3d 1127
(2002)
( 11 Where
evidence omitted from a criminal trial is not produced in a post. its omission cannot be prejudicial 11 ) .
conviction proceeding
For all of these reasons, Petitioner is not entitled to relief on
this claim.
IV,
Ground 2.2: Son Thach's Testimony
During Petitioner's defense,
he sought to call his sister,
Son Thach, to testify on his behalf. The trial court informed her
that the prosecutor had a matter he wished to discuss with her
before the defense proceeded with her testimony.
ensured
testify,
Son
Thach
knew
that
she
was
under
no
The prosecutor
obligation
to
that she had the right to remain silent, had the right
to an attorney, and that anything she said on the stand could be
used against her.
her whether,
Trial Transcript,
knowing those rights,
pp.
1005-06.
He then asked
she wished to proceed.
Son
Thach responded in the affirmative. Id at 1006.
At that point,
defense counsel informed Son Thach that he
was representing her brother,
not her,
and established that he
had not given her any legal advice and had informed her that she
had the right to consult an attorney of her choice before coming
to court to testify.
that
he
had
Id. At that point,
forgotten
to
cover
one
the prosecutor indicated
item
and
the
transpired:
DA: You know if you want an attorney to
consult with prior to your testimony, that
one could be appointed to you at no charge?
10 - OPINION AND ORDER
following
ST:
Am I going to get arrested or -
DA: That depends on what your testimony will
be.
ST:
I don't know.
Court:
In other words, not only do you
have the right to have an attorney and to
talk to an attorney before you testify or
decide whether to testify today, but if you
can't afford to hire an attorney, I will
appoint one for you at no cost to you.
ST: Okay. I think I want to
attorney first before I talk.
talk
to
an
Court:
I' 11 talk to indigent defense and
see if they can get somebody here. You can
step down.
Id
at
1007.
Son Thach consulted with
counsel
and elected
to
exercise her Fifth Amendment right not to testify.
Petitioner
transcript,
the
argues
that
prosecutor
based
upon
the
substantially
interfered with Son Thach' s decision.
contents
and
of
the
improperly
The PCR court disagreed,
and concluded that the "discussion about Son's right to remain
silent and possible consequences if she testified was conducted
before the trial
judge and was done on the record.
The record
does not reflect intimidation but rather an advice of rights. She
made
her
choice
not
to
testify
after
she
consulted
with
an
attorney." Respondent's Exhibit 143, p. 2.
It was Son Thach who introduced the idea of arrest when the
prosecutor was attempting to inform her that if she wished to
consult with an attorney but could not afford one,
the court
could provide an attorney free of charge. Her question about the
possibility of arrest put the prosecutor in a difficult position
11 - OPINION AND ORDER
because he could neither assure that she would not be arrested,
nor could he
matter
the
suggest
content
that
of
she
indeed,
testimony. 2
her
would,
In
be
this
arrested no
regard,
his
response was a reasonable one occasioned by the question asked,
and
the
PCR
court
correctly
determined
that
there
was
no
intimidation. Counsel was therefore under no duty to object, and
his
performance
did
not
fall
below an
objective
standard of
reasonableness. The PCR court reasonably resolved this claim.
V.
Ground 2.5: Transferred Intent Jury Instruction
At the close of
trial,
the prosecutor asked the judge to
instruct the jury on the issue of transferred intent based upon
Batch's testimony that Petitioner had actually intended to kill
him,
causing
Hatch
to
grab
Petitioner's
arm
and
affect
the
direction of the shot. Trial counsel objected:
First of all, your Honor, the State's theory
of the case has never been that. They have
maintained from the opening statement that
Mr. Thach was alone when he shot the gun, and
he shot with intent right at Robby Pfeifer,
that's been their theory. This is brand new,
not supported by the facts and the evidence
as it stands right now. It is potentially a
comment on the evidence, it is a way for [the
prosecutor] to possibly save face just in
case they don't think Mr. Thach had the
intent to kill Mr. Pfeifer.
Now they are saying, well maybe he had the
intent to kill [Hatch] and the gun did go his
way, but otherwise there's no other evidence
to support this. And there's no evidence that
anyone said Mr. Lai Thach had any kind of
2
The prosecutor issued notifications of the same general rights to a
subsequent witness, Heather Zimmerman, who opted to testify without speaking
to counsel. Trial Transcript, pp. 1008-09, Where Zimmerman did not raise the
issue of arrest, the prosecutor made no reference to any such possibility.
12 - OPINION AND ORDER
intent. There were no questions even asked
about it, what intent he might have had
towards Leslie Hatch.
Trial Transcript, pp. 1068-69. Defense counsel also informed the
Court that Hatch "was witness number two for the State. The first
witness
. was very brief, didn't really see anything.
.
was Tuesday.
And here they are trying to surprise us."
That
Id at
1071. As noted in the Background of this Opinion, the trial court
overruled the objection and issued the instruction.
Petitioner
asserts
that
due
process
guarantees
adequate
notice of the charges against a criminal defendant, and that the
trial court improperly allowed the prosecutor to constructively
amend
the
Indictment
on
the
day
the
jury was
instructed.
He
points out that the Indictment charged him with the intentional
murder of Pfeifer, thus he defended against that specific charge
only to have the trial court instruct the jury on transferred
intent after all the evidence had been presented. He specifically
faults trial counsel for not raising an objection based upon the
Due Process Clause.
The PCR court specifically determined that counsel did,
fact,
in
object to the instruction as a constructive amendment to
the Indictment,
and it also concluded as a matter of state law
that the objection preserved the issue for appellate review:
Petitioner has failed to prove that his trial
attorney was ineffective for
failing to
object to the instruction regarding transfer
of intent. He did in fact object to the
instruction although he acknowledged that it
was a correct statement of the law. He argued
that it was too late in the trial to raise
such an issue and that it constituted an
amendment to the indictment. Those issues
13 - OPINION AND ORDER
were preserved for appeal and were raised on
appeal. There was no basis to object to the
instruction as an improper statement of the
law because id did in fact state the law
correctly.
Respondent's Exhibit 143, p. 4.
Petitioner's claim that counsel failed to lodge an objection
to
the
intent
transferred
instruction
jury
based
upon
insufficient notice is belied by the record. Counsel specifically
argued that this was a brand-new theory being argued on the day
the case went
surprise
the
objection,
is
to the
jury,
defense.
and that
Even
if
the State was
counsel
had
raised
the
the Supreme Court has specifically stated that "[i) t
doubtful
application
whether
to
a
this
case
principle
of
of
transferred
fair
1437,
1438
{9th
Cir.
1984)
notice
intent [. J"
Richey, 546 U.S. 74, 76-77 (2005); see also U.S.
F.2d
not
trying to
has
Bradshaw
v. Montoya,
(rejecting
any
argument
v.
739
that
transferred intent instruction deprived defendant of notice of
the precise nature of the charge against him). For these reasons,
the
PCR
court's
decision
did
determination of the facts
involve
an
unreasonable
not
involve
an
in light of the record,
application
of
clearly
unreasonable
nor did it
established
federal law. 3
CONCLUSION
For the reasons identified above,
Habeas
Corpus
(#2)
is
denied.
The
the Petition for Writ of
Court
declines
to
issue
a
3 Where Petitioner's claim fails on its merits,
the Court need not address
Respondent's arguments that Petitioner procedurally defaulted this claim in
state court, and omitted it from his Petition for Writ of Habeas Corpus. See
28
u.s.c.
§
2254(b) (2).
14 - OPINION AND ORDER
Certificate of Appealability on the basis that petitioner has not
made
a
substantial
right pursuant to 28
showing of
u.s.c.
the
denial
of
a
constitutional
§ 2253(c) (2).
IT IS SO ORDERED.
DATED this
/ sl~ day of July, 2019.
Jones
tates District Judge
15 - OPINION AND ORDER
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