Son Thanh Bui v. Anthony Hedgpeth , 596 F. App'x 575 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 09 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SON THANH BUI, No. 10-55399
Petitioner - Appellant, D.C. No. 2:06-cv-07769-DDP-RC
v.
MEMORANDUM*
ANTHONY HEDGPETH, Warden,
Respondent - Appellee.
BUNTHOEUN ROEUNG, No. 10-55815
Petitioner - Appellant, D.C. No. 2:06-cv-05258-DDP-RC
v.
DOMINGO URIBE, Jr., Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted March 2, 2015
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: GOULD and TALLMAN, Circuit Judges, and KORMAN, Senior District
Judge.**
Habeas petitioners Son Thanh Bui and Bunthoeun Roeung (“Petitioners”)
—co-defendants in a state court trial of seven gang members for four gang-related
shooting incidents that left six dead and eight wounded—seek to overturn their
multiple life sentences without the possibility of parole. We have jurisdiction
under 28 U.S.C. §§ 1291, 2253, and we affirm the denial of both petitions.
First, the California Court of Appeal’s rejection of Petitioners’ jury
impartiality claim was not objectively unreasonable where Juror No. 11’s bias
against the death penalty did not taint the jury during the guilt phase, and she was
properly removed before deliberations for the penalty phase began. Cf.
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553-56 (1984)
(stating the standard for jury impartiality claims in a civil case without dual
phases). Thus, Petitioners were not denied a fair trial based on controlling
Supreme Court precedent. See Bumper v. North Carolina, 391 U.S. 543, 545
(1968); Witherspoon v. Illinois, 391 U.S. 510, 517-18 (1968) (holding that a juror’s
views on the death penalty do not establish bias in the juror’s determination of
guilt).
**
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
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Second, trial counsel did not render ineffective assistance of counsel by
failing to move to suppress an eyewitness’ pre-trial identifications where they
vigorously cross-examined him at trial. Cf. Harrington v. Richter, 131 S. Ct. 770,
791 (2011). Additionally, Petitioners cannot show a reasonable probability that the
outcome of the trial would have been different, considering the combination of the
devastating cross examination of the eyewitness, the non-identification testimony
of the eyewitness, which was corroborated by the testimony of Petitioners’
accomplice, and the testimony of the detective who pulled over Petitioners’ car
near the crime scene. Under AEDPA review, the California courts did not
unreasonably deny Petitioners’ ineffective assistance of counsel claims.
We decline to expand the certificate of appealability. See Ninth Circuit Rule
22-1; see, e.g., Richter, 131 S. Ct. at 785-92 (rejecting IAC claims based on sound
trial tactics or strategy); Ngo v. Giurbino, 651 F.3d 1112, 1116-17 (9th Cir. 2011)
(foreclosing Batson challenge); Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir.
2000) (rejecting similar habeas claim for requiring corroboration of accomplice
testimony); Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999) (stating
discovery is rarely allowed on habeas review).
AFFIRMED.
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