Tin Tri Nguyen v. RODERICK HICKMAN, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Raner C. Collins, District Judge for the U.S. District***
Court for the District of Arizona, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIN TRI NGUYEN,
Petitioner - Appellant,
v.
RODERICK HICKMAN, Warden,
Respondent - Appellee.
No. 09-15788
D.C. No. 3:06-cv-01414-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted July 18, 2012**
San Francisco, California
Before: CLIFTON and MURGUIA, Circuit Judges, and COLLINS, District
Judge.***
FILED
JUL 26 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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California state prisoner Tin Nguyen appeals the district court’s denial of his
petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. We conclude that the
California state court did not unreasonably apply clearly established federal law or
base its decision on an unreasonable determination of the facts in denying
Nguyen’s ineffective assistance of counsel claims now on appeal. Accordingly, we
affirm.
Under Strickland v. Washington, 466 U.S. 668 (1984), in order to prevail on
an ineffective assistance of counsel claim, a habeas petitioner must show that
counsel’s performance was deficient and that the deficient performance prejudiced
the defense. The state court’s determination that Nguyen’s trial counsel made a
tactical decision in choosing not to object to the field identification evidence
collected during a traffic stop the night before the murder was not “based on an
unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). Although the
decision may be called into question in hindsight, Nguyen has failed to provide
sufficient evidence to combat the strong presumption that this tactical decision was
“within the wide range of reasonable professional assistance.” Strickland, 466 U.S.
at 689. Nguyen has also failed to affirmatively prove a substantial likelihood of a
different result had his trial counsel objected to the introduction of the field
identification evidence. Harrington v. Richter, 131 S. Ct. 770, 792 (2011). The

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primary evidence against him at trial was the testimony of his accomplice, which
the state court reasonably concluded was sufficiently corroborated even without the
field identification cards.
The state court also did not act unreasonably in denying Nguyen’s
ineffective assistance of counsel claim based on his trial counsel’s failure to object
to the introduction of gang affiliation evidence. “[T]he use of gang membership
evidence to imply ‘guilt by association’ is impermissible and prejudicial.” Kennedy
v. Lockyer, 379 F.3d 1041, 1056 (9th Cir. 2004). Evidence of gang affiliation may
be used, however, to impeach witnesses or to show that certain parties had pre-
existing relationships. See, e.g., United States v. Abel, 469 U.S. 45, 51-53 (1984)
(holding gang evidence admissible to demonstrate racial bias); Windham v. Merkle,
163 F.3d 1092, 1103-1104 (9th Cir. 1998) (holding gang evidence admissible to
demonstrate defendant’s motive for participating in the alleged crimes). Nguyen
has failed to show that he was prejudiced by the introduction of the gang affiliation
evidence. Even if this evidence damaged Nguyen’s defense, the state court
reasonably concluded that the remainder of the case against him was substantial,
including the corroborated testimony of his accomplice directly identifying him as
participating in the crimes.

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Nguyen has not met the high burden of showing that the state court’s
determination was unreasonable. Knowles v. Mirzayance, 556 U.S. 111, 123
(2009).
AFFIRMED.

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