Hung Tan Vo v. Michael T. Maloney

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
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No. 00-2336
HUNG TAN VO,
Petitioner, Appellant,
v.
MICHAEL T. MALONEY,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
____________________
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
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Kenneth G. Littman, Peppard & Littman, P.C., for appellant.
Thomas F. Reilly, Attorney General, with whom Annette C.
Benedetto, Assistant Attorney General, was on brief, for appellee.
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September 24, 2001
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LYNCH, Circuit Judge. The district court denied the
habeas corpus petition under 28 U.S.C. § 2254 of Hung Tan Vo,
who was convicted of murder in state court and sentenced to
life imprisonment.
Vo asserts on habeas that he was not competent to
stand trial as of the point in his murder trial when he
learned his girlfriend, Maureen Ambrose, was living with
another man, and that the conclusion of the state courts that
he was competent was wrong. He also argues that his counsel
was constitutionally ineffective, inter alia, in permitting
the trial to go forward. Finally, he claims that jury
instructions on malice aforethought and deliberate
premeditation (not objected to at trial) were constitutionally
offensive. He asserts that the state court decisions ruling
against him on these points were contrary to, and an
unreasonable application of, established federal
constitutional law.
Vo’s murder conviction was affirmed on appeal by the
Massachusetts Supreme Judicial Court. Commonwealth v. Vo, 427

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Mass. 464, 693 N.E.2d 1374 (1998). The trial judge’s
determination, made after an evidentiary hearing more than
three years after trial, that Vo was not incompetent was also
affirmed. Id. at 467-69.
This case is a tragedy originating in a love
triangle and culminating with one man dead and another in
prison for life. The woman involved, Ambrose, testified for
the state and was, apparently, never charged for her role.
The facts underlying the conviction and the analysis of the
issues on habeas are set forth ably in the Magistrate Judge’s
report and recommendation, which was adopted by the district
court in a succinct Memorandum Order. Both courts were
correct in their decision to deny the habeas petition and
there is no need to repeat their analysis. The state supreme
court decision was neither contrary to, nor an unreasonable
application of, established federal constitutional law.
We add only this. This petition is brought within
the constraints on federal habeas power established by the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"). Pub. L. No. 104-132, 110 Stat. 1214 (codified as
amended in scattered sections of 8, 18, 22, 28, 40 and 42

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U.S.C.). A habeas petition may not be granted unless the
state court decision: 1) "was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States" or 2)
"was 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) (Supp. II 1996).
The primary issue argued on habeas concerns the
competency determination. The determination of whether Vo was
competent to stand trial was essentially a fact determination.
Thompson v. Keohane, 516 U.S. 99, 111 (1995), citing Maggio v.
Fulford, 462 U.S. 111, 117 (1983) (per curiam). AEDPA
established a presumption of correctness of "a determination
of a factual issue made by a State court" as provided in 28
U.S.C. § 2254(e)(1):
In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a
determination of a factual issue made by a State
court shall be presumed to be correct. The
applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence.

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Vo thus must show error in the state court’s factual
determination of competency "by clear and convincing
evidence." This he has not done. That factual determination
was made by the judge who presided over the trial, saw Vo
testify, and who later evaluated the witnesses as to the
competency issue. Credibility determinations are committed to
the sound discretion of the trial judge. The trial judge's
conclusion that Vo was competent finds ample support in the
record.
Affirmed.

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