Philong Huynh v. J. Lizarraga

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 2023
• Docket: 20-55343
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PHILONG HUYNH, No. 20-55343

Petitioner-Appellant, D.C. No. 3:15-cv-01924-BTM-AGS v.

J. LIZARRAGA, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of California Barry Ted Moskowitz, District Judge, Presiding

Argued and Submitted November 8, 2023 Pasadena, California

Before: WALLACE, W. FLETCHER, and OWENS, Circuit Judges.

California state prisoner Philong Huynh appeals from the district court’s

denial of his 28 U.S.C. § 2254 habeas petition challenging his convictions for first-

degree felony murder, Cal. Penal Code § 189, two counts of sodomy of an

intoxicated person, id. § 286(i), and two counts of oral copulation of an intoxicated

person, id. § 288a(i) (current version at id. § 287(i)). Applying the Antiterrorism

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and Effective Death Penalty Act (“AEDPA”), the district court in relevant part

denied habeas relief on—and granted a certificate of appealability for—Huynh’s

claims of: (1) insufficient evidence to support the murder, oral copulation, and

sodomy convictions as to Williams; (2) actual innocence; (3) inability to confront

the nurse who examined Jeremiah following his sexual assault; (4) inability to

confront Jeremiah at trial; and (5) ineffective assistance of counsel. We review the

district court’s denial of habeas relief de novo. Panah v. Chappell, 935 F.3d 657,

663 (9th Cir. 2019).

Under AEDPA, we may grant relief only if the state court’s adjudication

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding,” id. § 2254(d)(2).

Where the last state-court decision on the merits is not accompanied by

reasons, the federal habeas court must “‘look through’ the unexplained decision to

the last related state-court decision that does provide a relevant rationale . . . [and]

presume that the unexplained decision adopted the same reasoning.” Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018). Here, the California Supreme Court

summarily denied Huynh’s petition for review, so the California Court of Appeal’s

2 decision provides the “relevant rationale.” Id. As the parties are familiar with the

facts, we do not recount them here. We affirm.1

1. Huynh alleges that there was insufficient evidence to support his

convictions for murder, sodomy, and oral copulation of Williams, and that the state

court’s decision to the contrary constitutes error under AEDPA. The state court

did not err in denying this claim.

Viewing the evidence “in the light most favorable to the prosecution,” a

“rational trier of fact could have found” Huynh guilty of murder beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Substantial

evidence—including DNA and other forensic evidence, the diazepam found in

Williams’s body, the sexual assault (that may have caused an obstruction to

Williams’s breathing), and Huynh’s modus operandi—supported the guilty verdict.

Huynh cannot overcome the “double dose” of deference due under AEDPA and

Jackson. Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011).

The state court similarly did not err in denying Huynh’s insufficient

evidence claim as to his convictions for sodomy and oral copulation of Williams.

Huynh contends that the state court committed AEDPA error under both

§ 2254(d)(1) and (d)(2). However, the California Court of Appeal neither applied

1 The Motion for Leave to File an Amicus Brief (ECF No. 34) is DENIED. The proposed amicus’s seven Requests for Judicial Notice (ECF Nos. 37, 38, 51, 55, 64, 69, and 70) are also DENIED.

3 a standard fundamentally at odds with Supreme Court precedent nor confronted a

set of facts that are materially indistinguishable from a relevant Supreme Court

decision and yet arrived at a different result. See Williams v. Taylor, 529 U.S. 362,

405-06 (2000) (defining the meaning of “contrary to” in § 2254(d)(1)). The court

applied the correct standard (the Jackson standard) and, in so doing, reasonably

found that a rational trier of fact could find the essential elements of sodomy and

oral copulation met beyond a reasonable doubt.

Huynh relies on (1) a lack of evidence linking him to the semen found on

Williams’s mouth and anus; (2) a lack of required penetration for sodomy and

contact for oral copulation; and (3) a failure to establish that Williams was still

alive at the time of the sexual assault. But substantial evidence, including DNA

and modus operandi evidence, showed that a rational juror could have found

Huynh guilty beyond a reasonable doubt of the sex crimes against Williams. The

California Court of Appeal’s decision to that effect thus did not constitute error

under § 2254(d)(1).

Nor did the court err under § 2254(d)(2). See Murray v. Schriro, 745 F.3d

984, 1012 (9th Cir. 2014) (noting that, to find an error, we must be “convinced that

an appellate panel . . . could not reasonably conclude that the state court’s findings

are supported by the record” (quoting Taylor v. Maddox, 366 F.3d 992, 1000 (9th

Cir. 2004), abrogated on other grounds by Cullen v. Pinholster, 563 U.S. 170,

4 184-85 (2011))). Huynh asserts that the state court’s factfinding was unreasonable

because the court incorrectly stated that Williams’s autopsy found diazepam

metabolite—rather than only diazepam. Huynh cites the absence of metabolite

(the result of the breakdown of diazepam) to argue that Williams died shortly

“after ingesting diazepam and before any sexual acts took place.” But the court’s

mistake did not go to a “material factual issue” and its ultimate conclusion that

Williams was alive at the time of the sexual assault was reasonable. Taylor, 366

F.3d at 1001.

2. Huynh’s actual innocence claim (based on supposedly new evidence

not presented at trial) fails for several reasons. First, the claim is procedurally

defaulted, because Huynh failed to include it in his petition for state habeas, and

California’s rule against successive petitions bars him from presenting this claim to

the state courts. See Casey v. Moore, 386 F.3d 896, 920-21 (9th Cir. 2004); In re

Clark, 855 P.2d 729, 760 (Cal. 1993). Second, a freestanding claim of actual

innocence is likely not cognizable in non-capital habeas. See Prescott v. Santoro,

53 F.4th 470, 482 (9th Cir. 2022). Third, the claim falls far below the

“extraordinarily high” threshold required to prevail, even on de novo review.

Herrera v. Collins, 506 U.S. 390, 417 (1993).

Assuming we proceed with de novo review, much of Huynh’s “new”

evidence was available to the defense at the time of trial and some of his arguments

5 as to what this evidence shows were already presented to the jury. Thus, Huynh

cannot “show that, in light of all the evidence, including evidence not introduced at

trial, ‘it is more likely than not that no reasonable juror would have found [him]

guilty beyond a reasonable doubt.’” Majoy v. Roe, 296 F.3d 770, 776 (9th Cir.

2002) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

Huynh’s alternative request for an evidentiary hearing is barred by AEDPA

because he has not shown either “a new rule of constitutional law” or new facts

that could not have been previously discovered through the exercise of “due

diligence.” 28 U.S.C. § 2254(e)(2).

3. Next, we consider the first Confrontation Clause issue—one of two

Huynh has raised in this appeal. Huynh argues that he was denied his Sixth

Amendment right to confrontation when a supervising nurse (Claire Nelli) testified

about a sexual assault examination of Jeremiah that was conducted by another

nurse. AEDPA governs our review; a state court’s decision cannot be contrary to,

or involve an unreasonable application of, law that has not been clearly established

by the Supreme Court. Id. § 2254(d)(1).

Supreme Court precedent in the area of forensic reports and expert

witnesses—culminating in the fractured plurality opinion in Williams v. Illinois,

567 U.S. 50 (2012)—is not clearly established. Accordingly, the California Court

of Appeal reasonably concluded that Williams does not bar expert witnesses from

6 offering their expert opinions based on photographs and reports prepared by others.

And to the extent that Nelli’s testimony relayed or referenced the examining

nurse’s process or findings, that fact-pattern—a supervisor testifying on behalf of

an unavailable supervisee—was expressly left open in Bullcoming v. New Mexico,

564 U.S. 647, 672 (2011) (Sotomayor, J., concurring). Given the lack of clarity in

Supreme Court caselaw, the state court did not err in denying Huynh’s

Confrontation Clause claim. See Crater v. Galaza, 491 F.3d 1119, 1123 (9th Cir.

2007) (precluding habeas relief under § 2254(d)(1) when relief depends on the

resolution of a question left open by the Supreme Court).

Even if Huynh could show a violation of his Sixth Amendment right, any

such error was harmless. See United States v. Nielsen, 371 F.3d 574, 581 (9th Cir.

2004). Given substantial corroborating evidence and the overall strength of the

prosecution’s case, the error did not have a “substantial and injurious effect or

influence in determining the jury’s verdict” as to the two sex crimes against

Jeremiah. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v.

United States, 328 U.S. 750, 776 (1946)). Although the state court did not

conduct a harmlessness analysis, we nevertheless apply the Brecht standard to

evaluate the harmlessness of constitutional error at trial. See Fry v. Pliler, 551

U.S. 112, 120-22 (2007).

4. The state court did not err in concluding that Huynh’s Confrontation

7 Clause rights were not violated when the trial court admitted Jeremiah’s prior

testimony after he refused to appear at trial. Contrary to what the government

alleges, this claim was presented to the state courts and is encompassed within the

district court’s certificate of appealability.

Nevertheless, Huynh’s claim fails. Admitting Jeremiah’s preliminary

hearing testimony squarely aligns with Supreme Court precedent: Jeremiah was

properly deemed unavailable for trial and defense counsel had an opportunity to

cross-examine him at the preliminary hearing. See Crawford v. Washington, 541

U.S. 36, 59 (2004). As the trial judge explained, the government did “everything

[it could] to obtain the appearance of Jeremiah.” See Hardy v. Cross, 565 U.S. 65,

69 (2011) (reiterating that a witness is unavailable where “the prosecutorial

authorities have made a good-faith effort to obtain his presence at trial” (quoting

Barber v. Page, 390 U.S. 719, 725 (1968))).

Huynh insists that he should have been able to cross-examine Jeremiah

about his potential drug use. But the Confrontation Clause guarantees the right to

an effective cross-examination; it does not guarantee the right to ask every

conceivable question. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

Huynh’s Sixth Amendment right to confront Jeremiah was not violated by the

admission of Jeremiah’s preliminary hearing testimony. Under AEDPA, the

California Court of Appeal did not err in coming to the same conclusion.

8 Moreover, even if the state court erred, any such error was harmless. Again,

we apply Brecht’s “substantial and injurious effect” standard despite the fact that

the California Court of Appeal did not conduct a harmless error analysis. See Fry,

551 U.S. at 120-22. The insinuation that Jeremiah was a drug user would have

been unlikely to substantially influence the jury’s verdict. As a Navy corpsman,

Jeremiah was subject to regular and random drug tests, which he had never failed.

A drug user, moreover, could still be the victim of a sexual assault that involved

drugging the victim.

5. Finally, Huynh is not entitled to relief on his ineffective assistance of

counsel claim. Specifically, Huynh contends that his counsel failed to question

Jeremiah about a discrepancy between two toxicology reports. When Jeremiah’s

urine was tested on June 7, 2009, it tested positive for Xanax (a benzodiazepine).

A test the following day came up positive for Klonopin (another benzodiazepine).

Huynh again suggests that this proposed line of questioning could have shown that

Jeremiah was a drug user.

Huynh presented this argument to the state court on collateral review.

Because the California Supreme Court’s brief order denying the petition does not

specify which grounds applied to which claims, federal review is not precluded.

See Morales v. Calderon, 85 F.3d 1387, 1392 (9th Cir. 1996) (“[A] procedural

default based on an ambiguous order that does not clearly rest on independent and

9 adequate state grounds is not sufficient to preclude federal collateral review.”).

In any event, Huynh’s claim fails because he has neither shown (1) that his

counsel’s performance was deficient, in that it fell below an objective standard of

reasonableness, or (2) resulting prejudice, such that there is a reasonable

probability that, but for counsel’s errors, the outcome of the proceeding would

have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

Defense counsel cross-examined Jeremiah extensively at the preliminary hearing.

And Huynh’s proposed line of questioning was not critical to his defense.

Whatever the reason for the discrepancy between the toxicology reports, it is

highly unlikely that any explanation would have altered the outcome of the

proceeding.

AFFIRMED.