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Pham v. Beaver

July 7, 2006

DAT PHAM, PETITIONER
v.
JOHN BEAVER, SUPERINTENDENT, ORLEANS CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Dat Pham ("Pham"), proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a jury trial in New York State Supreme Court (Monroe County) on charges of burglary and robbery. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).

II. Factual Background and Procedural History

Pham's conviction stems from his alleged involvement in the burglary and robbery of a Vietnamese couple at their home in the City of Rochester on the night of January 19, 1998. Thanh Le ("Le") testified through an interpreter that on the evening in question, she had been at an acquaintance's house on Fulton Avenue. T.153.*fn1 There was a group of people there, and they were playing cards and gambling. T.164. Le had about $5,300 in cash; this money had been paid to her by members of the Vietnamese community in Rochester in return for purchasing airplane tickets to Vietnam for them. T.154. A woman named Quy Ho ("Ho") gave Le a check for $78 that had Dat Pham's name as the payee on it and was endorsed as "Pham Dat"*fn2 on the back of the check. Ho asked Le to cash it. T.162-63, 176. Le testified that she had known Ho for nine years, and so Le agreed to cash the check. T.172. Le testified that as she opened her wallet to take out the money, Ho was sitting right next to her and could see her purse. T.165. After losing that money gambling, Ho asked Le to loan her an additional $100. T.164.

Shortly after 11 p.m., Le left the house at Fulton Avenue, dropping Ho off at an address on Emerson Street. T.166. Le then returned home to Perinton Street where her husband Thang Nguyen ("Nguyen") was sitting in the kitchen eating dinner after returning home from his job at the post office at about 11:30 p.m. As Le was sitting at the table counting her money, someone knocked on the door. Le testified that this made her "nervous" and she asked Nguyen not to open the door. T.167, 220.

Nguyen testified that he went to the door, looked outside, and opened the door anyway because he saw that the visitors were Vietnamese. T.216. At trial, Nguyen identified Pham as the person who was at the door. T.220 Nguyen testified that he could see who was at the door because there were lights on in the kitchen and that there was a light outside the door, which also was on. T.217. Nguyen testified that Pham's face was "very easy to memorize because he got a mole on his face." T.220. He admitted that in his statement to the police, he did not mention that the person who knocked on the door had a facial mole. T.243. Nguyen testified that he thought he had done so, and stated that one of the police officers specifically asked him if the perpetrator hand a mole or a scar. T.245-46. The police officer testified that Nguyen had not said anything about the perpetrator having moles or scars when he was asked that in the course of the officer taking a statement. T.309.

Nguyen testified that he had not met Pham before, but that he knew Ho. T.233. Nguyen stated that there were two other men with Pham. Id. Pham said, "Chau" to Nguyen, which "means like hi to an uncle in America." T.221. Pham then punched Nguyen in the chest and face, causing him to fall to the floor. T.222. Nguyen tried to get away, but the men punched him until he "was exhausted" and he told them "that was enough." T.224. Then the men walked Nguyen into the house while displaying a long, silver knife. T.225.

Meanwhile, one of the intruders kicked Le, who was five-months pregnant, causing her to fall to the ground. T.167-68. Le did not get a look at any of the perpetrators' faces and, in fact, tried to avoid identifying them out of fear of reprisals. T.168. The intruders tied Le and Nguyen up in the hallway and proceeded to ransack their house, stealing their jewelry out of the bedroom and the cash that Le had been counting prior to the intrusion. T.226. The men left after about fifteen minutes. Id.

The human resources manager at the Hickey-Freeman Company testified that Pham had submitted an application for employment there on January 6, 1998. T.286. The application indicated that Pham had moved to Rochester from Georgia about five weeks previously and needed employment because his wife was pregnant. T.288. Pham's employment with the company commenced on January 8, 1998. However, Pham did not appear for work on January 19, 1998. T.290. On January 22, 1998, when Pham still had failed to appear for work, his job was deemed abandoned. T.292. While he was employed, Pham had not made any request for vacation time. Id.

Hiep Pham ("Hiep") testified for the defense that Pham had married her daughter, Quy Ho. T.320. Pham left their house on Emerson Street on Sunday, January 18, 1998, at about 10 p.m., with luggage, because he was going to Atlanta for a "ceremony of forty-nine day [sic] of his parents." T.330. According to the translated testimony of Hiep, in Vietnam, after one's parents die, all of the family has to come together and pray for them for forty-nine days. T.331. Pham returned to Hiep's house about ten days after he left. Id.

Pham's wife, Ho, testified for the defense that Pham left for Atlanta on Friday, January 16, 1998. She testified that while he was gone, he called her from Ohio, and she told him that the police were looking for him. T.342. Once Pham returned home about ten days later, he called the police several times. The officers came to talk to him on Tuesday and took him into the police station. T.343. On cross-examination, Ho stated that Pham told her that he had gone gambling at the casino while he was away and had won some money. When he returned home he showed her the cash he had won and a red car he had bought. T.345.

Tien Tran ("Tran") testified for the defense that he lived on South Avenue in Rochester and that Pham was his neighbor. He stated that on January 19, 1998, he was living in Atlanta.

T.352. At about 11 p.m., Pham came to his house in Atlanta and they had a brief conversation about two stereo speakers. T.354. On cross-examination, Tran testified that he did not attend any religious ceremony with Pham in Atlanta and that he and Pham were not "close friend[s]." Id. He explained that he was first contacted by the defense about testifying about seven months after the incident, in July. When asked how he remembered the date of their brief meeting, Tran said that it was because it occurred on the Martin Luther King holiday.

Pham testified in his own behalf at trial that his father died in October 1997 and his mother died in December of 1997. T.358. He testified that it is Vietnamese tradition to hold a funeral ceremony seven weeks after one's parents die.*fn3 T.359. Pham testified that he left Rochester on Sunday, January 18, 1998, at about 10 p.m. to drive down to Atlanta. T.360. On cross-examination, he admitted that when he was at work on Friday, January 16, he did not ask for time off to attend the religious ceremony because he had not quite ...


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