Victor Diep v. CHERYL K. PLILER, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Richard Mills, United States District Judge for the**
Central District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR DIEP,
Petitioner - Appellant,
v.
CHERYL K. PLILER, Warden,
Respondent - Appellee.
Nos. 05-15397; 05-15398
D.C. No. CV 03-00308 MHP
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Marylin Hall Patel, District Judge, Presiding
Argued and Submitted November 3, 2009
San Francisco, California
Before: GOODWIN and W. FLETCHER, Circuit Judges, and MILLS, District**
Judge.
California state prisoner Victor Diep appeals from a partial denial of his 28
U.S.C. § 2254 habeas petition and asserts that the district court erred in failing to
grant an evidentiary hearing. We have jurisdiction under 28 U.S.C. § 2253 and
FILED
NOV 25 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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review the denial of a habeas petition de novo. Koerner v. Grigas, 328 F.3d 1039,
1045-46 (9th Cir. 2003). A district court’s denial of an evidentiary hearing on a
habeas petition is reviewed for abuse of discretion. Tilcock v. Budge, 538 F.3d
1138, 1143 (9th Cir. 2008). This case is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) which bars federal habeas relief
unless the state court adjudication was “contrary to, or involved an unreasonable
application of clearly established Federal law, as determined by the Supreme Court
of the United States” or was “based on an unreasonable determination of the facts.”
28 U.S.C. § 2254(d). We affirm.
Diep argues that his Sixth Amendment rights were violated when state trial
court jurors discussed Asians and speculated that Diep was a gang member. The
state court’s treatment of these discussions was not contrary to, or an unreasonable
application of, clearly established federal law. Nor was it based on an
unreasonable determination of the facts. Further, Diep is unable to show that the
conversations about Asians and gang membership had a “‘substantial and injurious
effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507
U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)). Therefore, the district court was correct to deny Diep’s Sixth Amendment
claim.

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The district judge did not abuse her discretion in not granting an evidentiary
hearing because the habeas petition did not raise any significant factual questions
regarding jury misconduct, and instead suggested that there were enough facts in
the record to decide the issue.
Moreover, Diep is barred from receiving an evidentiary hearing because he
“failed to develop the factual basis of a claim in State court proceedings.” 28
U.S.C. § 2254(e)(2). The term “failed to develop” has been interpreted to mean a
“lack of diligence, or some greater fault, attributable to the prisoner or the
prisoner’s counsel.” Michael Williams v. Taylor, 529 U.S. 420, 432 (2000).
Diep relies heavily on supplemental juror declarations to advocate for an
evidentiary hearing. However, these supplemental declarations were not part of
the record before the state appellate court. The court noted that the declarations
were not placed in the record, despite assurances from counsel. At oral argument,
Diep’s counsel could not explain why previous counsel did not introduce these
documents. Because the record was not developed in the state court proceedings,
Diep is barred from receiving an evidentiary hearing.
AFFIRMED.

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