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Thach v. Nooth

United States District Court, D. Oregon

July 15, 2019

LAI NGOC THACH, Petitioner,
MARK NOOTH, Respondent.

          Kristina Hellman Assistant Federal Public Defender Attorney for Petitioner

          Ellen F. Rosenblum, Attorney General, Nick M. Kallstrom, Assistant Attorney General Department of Justice Attorneys for Respondent



         Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court conviction for Murder. For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied.


         In December 2006, a large bar fight broke out at the Wetlands Public House in Portland. Petitioner's sister, Son Thach, had been at the center of the fight at its outset, and when the bar fight began to calm down, she began throwing pool balls which extended the fighting. As a result, the victim in this case, Robert Pfeifer, put Son Thach in a bear hug, took her away from the pool table, and released her. This angered Petitioner, and he began fighting with Pfeifer. 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 informed her that an attorney could be provided free of charge, Son Thach asked him whether she was going to be arrested. The prosecutor responded that it depended 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 had pointed the gun directly at him and had intended to shoot him, not Pfeifer. Hatch testified that he grabbed Petitioner's arm, causing movement so that when the gun went off, the shot hit Pfeifer. Hatch's testimony prompted the prosecutor to ask the court for an instruction on transferred intent. The court agreed, instructed the jury on transferred intent that same day, and the jury unanimously convicted Petitioner of the charged offense. As a result, the trial court sentenced him to life imprisonment with a 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 opinion, and the Oregon Supreme Court denied review. State v. Thach, 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 ineffective for failing to: (1) object when the prosecutor intimated Son Thach into not testifying; (2) argue that the shooting was reckless or negligent; and (3) object to the transferred intent instruction on the basis that it effectively amended the Indictment. Respondent's Exhibit 109. Following a hearing, 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 v. Nooth, 2 67 Or.App. 423, 341 P.3d 252 (2014), rev. denied, 356 Or. 837, 346 P.3d 496 (2015).

         Petitioner filed this this 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 pro se 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.


         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 evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is "contrary to . . . clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

         Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant relief "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id. at 410. Twenty-eight U.S.C. § 2254(d) "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 U.S.C. § 2254(d)(2) allows a petitioner to "challenge the substance of the state court's findings and attempt to show that those findings were not supported by substantial evidence in the state court record." Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th 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 deferential to our state-court colleagues.'" Hernandez v. Holland, 750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox, 366 F, 3d 992, 1000 (9th Cir. 2004)) .

         II Un ...

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