Dung the Pham v. C.A. Terhune

Dung The Pham, a California state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. In 1998, a jury convicted Pham and his co-defendant, Son Hoang Nguyen, of first degree murder. Pham was sentenced to a term of 29 years to life.

The State and Pham agree that Tong Nguyen was murdered by two gunmen, and that one of the gunmen was Tien Ha, who remains at large. At trial, Pham presented a defense arguing that another man, Hoang Tuan, was the second shooter. On the basis of a license plate identification, Tuan was arrested on the night of the murder. An eyewitness had also identified Tuan as one of the assailants in a photo lineup. While in police custody, Tuan was subjected to a gunshot residue (GSR) test, which was analyzed by, state criminalist Mario Soto. Tuan was later released from custody and was never charged with Nguyen’s murder.

At Pham’s trial, the defense called Soto as a .witness. Soto testified that Tuan’s hands contained several particles’ consistent with, but not unique to, GSR as well as one particle — a mixture of titanium and antimony with a molten appearance — inconsistent with GSR. Stating that he was…