United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
R. MEANS UNITED STATES DISTRICT JUDGE
the Court is a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by Petitioner, Nam Bryan Tran,
a state prisoner, against Lorie Davis, director of the Texas
Department of Criminal Justice, Correctional Institutions
Division, Respondent. After having considered the pleadings
and relief sought by Petitioner, the Court has concluded that
the petition should be denied.
Factual and Procedural History
April 8, 2013, in the 371st Judicial District Court, Tarrant
County, Texas, No. 1277354D, a jury found Petitioner guilty
of murder and assessed his punishment at 99 years'
confinement. (Clerk's R. 88, doc. 10-14.) His conviction
was affirmed on appeal and his petition for discretionary
review was refused by the Texas Court of Criminal Appeals.
(Docket Sheet 2, doc. 10-2.) Petitioner also filed a state
habeas-corpus application challenging his conviction, which
was denied by the Texas Court of Criminal Appeals without
written order. (Action Taken, doc. 11-15.)
state appellate court summarized the evidence at trial as
The mood was festive as celebrants left a July 21, 2011,
wedding reception to continue the festivities at Saigon
Nites, an Asian nightclub in Arlington. Nguyen, who had flown
home from New Jersey the previous day to attend the wedding
of his friend, was among the celebrants. The nightclub had
placed several tables together when it was alerted that a
group from the wedding was expected so that the wedding
guests could sit together and socialize.
Tran, who was not among the wedding celebrants, visited
Saigon Nites that same evening with friends. After arriving
at the nightclub, Tran walked around, visited, and spoke with
his friend Tinh Pham. Tran then sat down at the end of a
group of tables occupied by the wedding celebrants. Although
he was seated next to Nguyen, Tran did not know him. Tran
remembers Nguyen asking him if his name was Birdie. Tran then
leaned in towards Nguyen, and the two spoke. Within seconds
of leaning in to speak with Nguyen, Tran was knocked to the
ground by Nguyen's punch. Tran does not recall saying
anything that would have provoked this response.
After the attack by Nguyen, Tran reports that he was attacked
by one or more men. Frightened, Tran ran in front of the
stage area and pulled an AMT handgun from his pocket. Tran
testified that he pulled his gun before there were further
threats from Nguyen. He conceded that, at the time he pulled
his gun, he was the only one displaying deadly force.
Kite, a friend of Tran's, pulled Tran towards the game
room. As he was being pulled, Tran fell. As a scare tactic,
Tran fired one shot in the air. He did this not because he
feared for his life; instead, according to Tran, he intended
to scare Nguyen. After he fell, Tran recalls looking directly
at Nguyen, who was running at him with a chair, looking as
though he intended to harm Tran. Believing that Nguyen was
going to strike him with the chair and taking into account
Nguyen's group of friends, Tran saw that he was
outnumbered and was frightened that he would be seriously
injured or killed. Tran yelled at Nguyen to stay back. Tran
then pointed his gun at Nguyen, who was facing him, and
After the initial shot, Nguyen fell to his right and ceased
his charge on Tran. Tran later testified that he shot at
Nguyen several times as Nguyen ran toward him, and saw him
fall to the floor after he finished shooting. Tran denied
shooting Nguyen in the back.
Pham-a friend of Tran's-in large part verified most of
Tran's version of events. Although he did not see the
blow that initiated the confrontation between Tran and
Nguyen, Pham came to Tran's defense when he saw Tran on
the floor with Nguyen and Loc Tran [Nguyen's
brother-in-law] stomping on him. After Pham helped Tran to
break free of the fight, Tran began backing up towards the
restroom area. By that time, the fight had been broken up.
Nonetheless, Nguyen chased Tran down. Pham next witnessed
Tran holding a gun with Nguyen standing approximately five
feet in front of Tran holding a chair. When Nguyen ran at
Tran with the chair, Tran fired at Nguyen. At that point,
Pham ducked for cover and did not see anything else. A chair
with blood spots, split wood, and one broken leg was found in
the alcove leading to the restrooms.
Other witnesses to the event tell a different story. Kathy
Nguyen [a friend of Nguyen], who was transported from prison
to testify at trial, testified that she, Nguyen, Tran, Loc,
Pham, a person named “Bi, ” and Michael Tran were
all seated together at a table inside the nightclub. Although
Tran and Nguyen were seated next to each other, she did not
see the two arguing while they were seated at the table. When
Tran touched Nguyen on the shoulder, Nguyen pushed or punched
Tran. After the two began to fight, Kathy assumed Loc stopped
the fight. After the scuffle ended, Nguyen walked by the
stage, where Kathy was standing. She then felt Tran nudge
her, and she saw a gun in his hand. As Kathy was standing
between Tran and Nguyen, Tran raised his gun and shot.
Although it did not appear that Tran was shooting at Nguyen,
Nguyen was lunging at Tran when the initial shot was fired.
The scene then became chaotic, with people ducking and
running. Nguyen ran towards the game room, where Tran chased
him down and shot him. At least five or six shots were fired,
and when he was hit in the back, Nguyen fell to the floor.
After Nguyen collapsed, Tran quit shooting and fled the
scene. The entire incident occurred within approximately ten
minutes of Tran's arrival at the club.
Loc was seated next to Pham at Saigon Nites on the evening of
the shooting. Although Loc did not see Nguyen's initial
attack on Tran, when he saw the two fighting, he ran over to
try and stop it. Loc grabbed Nguyen by the elbow and tried to
pull him away from Tran. He denied kicking or hitting Tran
after Tran was down. Pham then grabbed Loc and held him back.
While Pham was still holding Loc, Tran pulled a gun from his
pocket and shot Nguyen, who was standing two feet from Tran.
He denied witnessing Nguyen attack Tran with a chair.
Dr. Lloyd White, a pathologist employed by the Tarrant County
Medical Examiner, performed an autopsy on Nguyen's body.
Nguyen suffered six gunshot wounds, two of which were fatal.
The first fatal wound entered Nguyen's upper mid-back
near the base of the neck. White opined that Nguyen might
have been lying face down on the floor when this wound was
inflicted because the projectile did not exit the body but
was recovered under the skin on the front of the abdomen.
Conversely, the projectile may not have exited simply because
it slowed and stopped at that point. The second fatal wound
entered the back of the right shoulder. The projectile
causing this wound exited the body on the lower right front
of the abdomen. Both of these wounds were back entrance
wounds which generally traversed from back to front and
downward through portions of the chest and abdominal
cavities. Although the two fatal wounds entered Nguyen's
back, White could not determine if these wounds were
inflicted while Nguyen was leaning forward. Nguyen also
suffered defensive wounds to his hand and forearm caused by
bullet fragments. These wounds likely resulted from Nguyen
raising his arms to defend or block against the gunshots.
After the shooting, Tran left the nightclub and fled to his
apartment in a car-jacked vehicle. He then drove to Houston
with his girlfriend, where he remained for several months
until his arrest on April 3, 2012, following a routine
(Mem. Op. 4-8, doc. 10-3 (footnotes omitted).)
ground for relief, Petitioner claims he received ineffective
assistance of trial counsel. (Pet. 6, doc. 1.)
RULE 5 STATEMENT
believes that Petitioner's state-court remedies have been
exhausted and that the petition is neither time-barred nor
successive. (Resp't's Answer 6, doc. 13.)
LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF
§ 2254 habeas petition is governed by the heightened
standard of review provided for in the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). See 28 U.S.C. §
2254. Under the AEDPA, a writ of habeas corpus should be
granted only if a state court arrives at a decision that is
contrary to or an unreasonable application of clearly
established federal law as established by the United States
Supreme Court or that is based on an unreasonable
determination of the facts in light of the record before the
state court. See 28 U.S.C. § 2254(d)(1)-(2);
Harrington v. Richter, 562 U.S. 86, 100 (2011). This
standard is difficult to meet but “stops short of
imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings.”
Richter, 562 U.S. at 102.
statute also requires that federal courts give great
deference to a state court's factual findings. Hill
v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section
2254(e)(1) provides that a determination of a factual issue
made by a state court shall be presumed to be correct.
Valdez v. Cockrell, 274 F.3d 941, 948 n. 11 (5th
Cir. 2001). The petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence.
28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell,
537 U.S. 322, 340 (2003); Williams v. Taylor, 529
U.S. 362, 399 (2000).
when the Texas Court of Criminal Appeals, the state's
highest criminal court, denies relief on a state
habeas-corpus application without written order, typically it
is an adjudication on the merits, which is likewise entitled
to this presumption. Richter, 562 U.S. at 100;
Ex parte Torres,943 S.W.2d 469, 472 (Tex. Crim.
App. 1997). In such a situation, a federal court
“should ‘look through' the unexplained
decision to the last related state-court decision
providing” particular reasons, both legal and factual,
“presume that the unexplained ...