Huy Tran v. Kelly Harrington ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 06 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HUY TRONG TRAN, No. 13-55640
Petitioner - Appellant, D.C. No. 8:11-cv-01865-AG-JPR
v.
MEMORANDUM*
KELLY HARRINGTON, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted December 11, 2014**
Pasadena, California
Before: SILVERMAN, BEA, and CHRISTEN, Circuit Judges.
Huy Trong Tran was convicted of numerous charges, including attempted
first degree murder and attempted voluntary manslaughter, following a series of
violent confrontations between Tran, his ex-girlfriend (Michelle Ho), and his ex-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
girlfriend’s new boyfriend (Antonio Hernandez).1 Tran appeals the district court’s
order dismissing his 28 U.S.C. § 2254 habeas corpus petition. He argues the state
court unreasonably denied his claim that his trial counsel was ineffective under
Strickland v. Washington, 466 U.S. 668 (1984), by failing to retain an expert to
testify that Tran’s methamphetamine use prevented him from formulating the
required intent for attempted murder and attempted voluntary manslaughter. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s order.
We “review de novo a district court’s decision to deny a habeas petition
brought under 28 U.S.C. § 2254.” Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.
2001). Here, the district court correctly concluded that Tran’s ineffective
assistance of counsel claim was denied on the merits. The writ will not issue
unless “there is no possibility fairminded jurists could disagree that the state
court’s decision conflicts with [the Supreme] Court’s precedents.” Harrington v.
Richter, 131 S. Ct. 770, 786 (2011). When evaluating Strickland claims under
AEDPA, our review is “doubly deferential.” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009).
1
The parties are familiar with the facts of the case, so we will not
recount them here.
2
A district court’s denial of a habeas petitioner’s request for an evidentiary
hearing is reviewed for abuse of discretion. West v. Ryan, 608 F.3d 477, 484 (9th
Cir. 2010).
1. The clearly established federal law regarding ineffective assistance of
counsel is found in Strickland. Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).
To prevail on an ineffective assistance of counsel claim, a habeas petitioner must
prove that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687. This court looks to the state
court’s last reasoned decision. Benson v. Terhune, 304 F.3d 874, 880 n.5 (9th Cir.
2002). Here, that is the California superior court’s July 2011 decision.
We conclude the state superior court did not unreasonably apply Strickland
when it ruled that Tran failed to show deficient performance by his trial counsel.
There was no declaration from trial counsel addressing why he did not use a drug
expert at trial, and no showing that a drug expert was available who would provide
favorable testimony.
2. Tran requests that the court take judicial notice of scientific research on how
methamphetamine use impairs cognitive functioning. We deny this request
because “review under § 2254(d)(1) is limited to the record that was before the
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state court that adjudicated the claim on the merits.” Pinholster, 131 S. Ct. at
1398.
3. Prior to obtaining counsel on appeal, Tran also requested that this court take
judicial notice of Johnson v. United States, 860 F. Supp. 2d 663 (N.D. Iowa 2012).
We deny this request because it is not clear what fact Tran wants noticed, and
because he did not renew this request after he obtained counsel.
4. Finally, Tran argues that if the court is unwilling to grant relief based on the
state record, it should remand for an evidentiary hearing under § 2254(e)(2). But
apart from his conclusory assertion, Tran has not shown that he is entitled to an
evidentiary hearing. See Pinholster, 131 S. Ct. at 1398–1401. Even accepting
Tran’s allegations as true, he did not establish a prima facie case for relief.
AFFIRMED.
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