Xiong Nick Yang v. Jeanne S. Woodford

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable James G. Carr, Senior District Judge for the U.S.**
District Court for the Northern district of Ohio, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIONG NICK YANG,
Petitioner - Appellant,
v.
JEANNE S. WOODFORD,
Respondent - Appellee.
No. 09-17813
D.C. No. 2:05-cv-00943-JAM-
KJM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted December 1, 2011
San Francisco, California
Before: THOMAS and CLIFTON, Circuit Judges, and CARR, Senior District
Judge.**
Xiong Nick Yang appeals from the denial of his petition for a writ of habeas
corpus arising out of his convictions in California state court. We affirm. Because
the parties are familiar with the history of the case, we need not recite it here.
FILED
DEC 21 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The California state court decision denying relief was not contrary to, or an
unreasonable application of, clearly established federal law, as determined by the
United States Supreme Court. 28 U.S.C. § 2254(d).
In this case, co-defendants entered into plea agreements, but sentencing was
deferred until after Yang’s trial. Yang contends that the plea agreements were
structured to prevent his co-defendants from testifying and, if they had testified,
they would have identified a different person as the actual shooter in the incident.
The state court’s conclusion that the plea structuring was not misconduct that
“infected the entire trial” was not objectively unreasonable. After carefully
considering the evidence and the record, we conclude that the state court’s
determination was not “so lacking in justification that [it] was an error well
understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
A fairminded jurist could conclude that a defendant, after pleading guilty, might
falsely accept responsibility for the crime in order to exculpate a co-defendant.
See, e.g., People v. Conerly, 176 Cal. App. 4th 240, 249 (2009) (“When the
evidence against a particular defendant is strong, that individual will have a
powerful incentive to accept a plea offer. Following sentencing, that individual has
nothing to lose by testifying on behalf of the other co-defendants and taking sole

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responsibility for the crime, free of further penal consequences.”). In addition, the
state court found that petitioner had failed to show prejudice, in that no other
outcome of the trial would have been reasonably likely, particularly in light of
aider and abetter liability under California law. Although fair minded jurists might
well draw different conclusions on these questions, the state court’s resolution is
sufficiently justifiable under 28 U.S.C. § 2254(d). Therefore, the district court
correctly denied federal habeas relief.
AFFIRMED.

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