Len Nguyen v. M. Knowles

FILED

NOT FOR PUBLICATION APR 06 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEN NGUYEN, No. 11-16611

Petitioner - Appellant, D.C. No. 2:03-cv-02381-MCE-

GGH

v.

M. KNOWLES, Warden and ATTORNEY MEMORANDUM*

GENERAL FOR THE STATE OF

CALIFORNIA,

Respondents - Appellees.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding

Argued and Submitted March 12, 2012 San Francisco, California

Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.

Len Nguyen appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition challenging his jury convictions for murder and attempted murder.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. We review de novo the district court’s denial of Nguyen’s habeas petition

and review findings of fact for clear error. Brown v. Ornoski, 503 F.3d 1006, 1010

(9th Cir. 2007). Because Nguyen filed his federal habeas…

MEMORANDUM *

Len Nguyen appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his jury convictions for murder and attempted murder.

We review de novo the district court’s denial of Nguyen’s habeas petition and review findings of fact for clear error. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir.2007). Because Nguyen filed his federal habeas petition after 1996, the An-titerrorism and Effective Death Penalty Act (“AEDPA”) governs his petition. Id.; see also 28 U.S.C. § 2254 (d). The AEDPA requires that appellate courts defer to the last reasoned state court decision. Id. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.’” Harrington v. Richter, — U.S. -, -, 131 S.Ct. 770, 785 , 178 L.Ed.2d 624 (2011) (citation omitted). A state court’s determination of the facts is “unreasonable” under § 2254(d)(2) only if the appellate court is “convinced that an appellate panel, applying normal standards of appellate review, could not reasonably conclude that the finding is supported by the record [before the state court].” Taylor v. Maddox, 366 F.3d 992, 1000 (9th…

dissenting:

Really the only evidence to which the majority points to support its conclusion is the speed with which the shooting of Andy was accomplished. Could a reasonable juror infer from that fact that Len had beyond a reasonable doubt the intention to abet the shooting? That the two boys had had a fight; that Len had recruited help to get back at Andy; that Len and his friends conferred; that his friends had a gun and access to a supply of guns; that his friends waited for him; that they fled together— none of these facts proves or tends to prove Len guilty of murder in the first degree.

That Len himself was a gang member was not proved, and in oral argument to us the state declared that there was “no direct evidence of such membership,” but that it “could be inferred” that Len was at least “associated” with gang members. The state referred to Nhat and Si’s interrogations and Ahn Phan’s statement that “Si’s friends were members of MAC” to support this inference. The state provided no evidence of Len having a gang affiliation. An inference that Len was a gang member is speculative.

Neither did the state prove that Len knew about Si’s firearm. The state claims Len must have…