Trung TRAN, Petitioner-Appellant, v. Robert HOREL, Respondent-Appellee.
No. 09-15183.
United States Court of Appeals, Ninth Circuit.
Filed Aug. 9, 2011.
Resubmitted Aug. 5, 2011.
442 F. App‘x 324
Before: O‘SCANNLAIN, TROTT, and PAEZ, Circuit Judges.
Argued Feb. 10, 2010. Mark Donnell Flanagan, Esquire, Senior Litigation, Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, CA, for Petitioner-Appellant. Trung V. Tran, pro se. Juliet Haley, Deputy Attorney General, Stan Helfman, Deputy Attorney General, Office of the California Attorney General, San Francisco, CA, for Respondent-Appellee.
Petitioner-Appellant Trung Tran, a state prisoner, appeals the district court‘s
We review de novo the district court‘s denial of a habeas petition. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007). Tran‘s habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“). Under the AEDPA, we must determine whether the state court proceedings “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.”
Tran argues that the state court unreasonably applied the Supreme Court‘s decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in concluding that there was sufficient evidence that Tran was subject to
The parties dispute whether the certificate of appealability (“COA“) comprises Tran‘s claim that there was insufficient evidence of his specific intent to promote, further, or assist in criminal conduct by gang members. Because we think Tran has made a showing that “reasonable jurists would find the district court‘s assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), we construe Tran‘s brief as a request to expand the COA and grant the request.
We must affirm the district court‘s denial of Tran‘s habeas petition if there was “evidence upon which a rational trier of fact could find that [Tran] acted with the specific intent to promote, further, or assist in some type of criminal conduct by gang members, which may include the crimes of conviction.” Emery v. Clark, 643 F.3d 1210 (9th Cir. 2011) (internal quotation marks omitted). The California Supreme Court has explained that the application of
We conclude that there is sufficient evidence upon which a rational trier of fact could find that Tran committed the offense with the specific intent to promote, further, or assist in criminal conduct by gang members. The trial record includes evidence that the four people with whom Tran committed the offense were all members of a gang called the Asian Gangsters. There is also evidence that Tran knew that at least some of the four were gang members. For example, one participant in the offense testified that on a previous occasion, Tran took co-defendant Huynh—a member of the Asian Gangsters—to the hospital after he was stabbed by members of a rival gang. From this testimony, a rational fact finder could find that Tran
Because there is evidence upon which a rational trier of fact could find that Tran acted with the specific intent to promote, further, or assist in some type of criminal conduct by gang members, the state court‘s decision was not contrary to nor an unreasonable application of clearly established federal law. We affirm the district court‘s denial of habeas relief.
AFFIRMED.