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Tran v. Davis

United States District Court, N.D. Texas, Fort Worth Division

May 14, 2018

NAM BRYAN TRAN, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         Before 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.

         I. Factual and Procedural History

         On 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.)

         The state appellate court summarized the evidence at trial as follows:

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 fired.
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 traffic stop.

(Mem. Op. 4-8, doc. 10-3 (footnotes omitted).)

         II. Issues

         In one ground for relief, Petitioner claims he received ineffective assistance of trial counsel. (Pet. 6, doc. 1.)


         Respondent 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.)


         A § 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.

         The 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).

         Finally, 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 ...

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