The opinion of the court was delivered by: John Gleeson, United States District Judge:
Vinh Dinh, who is currently incarcerated at Upstate Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial in the Supreme Court of New York, Queens County, Dinh was convicted of one count of gang assault in the first degree, two counts of assault in the second degree and one count of criminal possession of a weapon in the fourth degree. Dinh was sentenced to an indeterminate term of imprisonment of 22 years to life on the gang assault count and lesser concurrent terms on the remaining counts. He now seeks habeas relief on two grounds: (1) the prosecutor engaged in misconduct during the course of the trial by making improper remarks during his cross-examination of Dinh and in his summation; and (2) Dinh's appellate counsel provided ineffective assistance by failing to obtain a Vietnamese interpreter and not raising certain arguments on appeal. For the reasons stated below, the petition is denied.
On May 27, 2007, Dinh was at a bar in Queens, New York, where he had spent several hours drinking liquor with friends. Another patron, Laing Qun Zou, got into a dispute with members of Dinh's group. After Zou punched one member of the group, Dinh and his friends attacked and beat Zou. When Zou was already lying on the floor, Dinh picked up a bar stool and hit Zou in the head with it, causing the metal legs on the stool to bend from the impact. Zou was left bleeding and unconscious on the floor. He was later hospitalized and suffered injuries including lacerations and a fracture of the orbital bone in his right eye. The entire incident was recorded by surveillance cameras in the bar.
Dinh was charged with one count of gang assault in the first degree, in violation of N.Y. Penal Law § 120.07, two counts of assault in the second degree, in violation of N.Y. Penal Law § 120.05(1) & (2), and one count of criminal possession of a weapon in the fourth degree, in violation of N.Y. Penal Law § 265.01(2). His trial took place over the course of several days in January 2008.
The evidence at trial included the video recording of the attack. Dinh, testifying in his defense, did not dispute that he was one of the assailants recorded in the video. However, he testified that he did not remember what happened that night because he had been extremely intoxicated, and that the attack was therefore not his fault.
In light of Dinh's testimony, the trial court instructed the jury on intoxication. Under New York law, "[i]ntoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged." N.Y. Penal Law § 15.25.
At the close of the prosecution's case, the trial court questioned why the indictment charged Dinh with "acting in concert" with others. According to the trial court, a charge of gang assault would ordinarily require proof only that the defendant was aided by two or more persons, regardless of those other persons' intent. Trial Tr. 454--55. However, the trial court reasoned that by charging Dinh with acting in concert with others, the prosecution would have to prove the intent of those other persons: "The gang assault statute only requires you to show that this defendant intended to cause serious physical injury. By charging acting in concert you are now saying that the other people also had to have that intent." Id. at 456--57. The trial court directed the prosecutor to research whether it would be permissible to strike the references to "acting in concert" from the indictment and reserved decision on that issue. See id. at 457--58. Shortly before instructing the jury, the trial court ruled, over Dinh's objection, that the deletion of the "acting in concert" language was proper. See id. at 498; see also id. at 493--94.
The jury found Dinh guilty on all counts. On February 13, 2008, the trial court sentenced Dinh, as a persistent violent felony offender to: (i) an indeterminate term of imprisonment of 22 years to life for the gang assault; (ii) an indeterminate term of imprisonment of 12 years to life for the two assault counts; and (iii) a determinate term of imprisonment of one year for the weapon possession. All of the sentences are concurrent.
Dinh appealed to the Appellate Division of the Supreme Court of New York, Second Department. Dinh argued that the prosecutor's improper remarks during his cross-examination of Dinh and summation deprived him of a fair trial.
The Appellate Division affirmed. See People v. Dinh, 892 N.Y.S.2d 910 (App. Div. 2d Dep't 2010). The court first held that Dinh's "contentions that the prosecutor engaged in misconduct both while cross-examining him and during his summation are unpreserved for appellate review." Id. at 910. It then held, "[i]n any event," that "the complained-of questioning fell within the bounds of proper cross-examination" and that "most of the prosecutor's summation constituted fair comment upon the evidence or a fair response to the defense summation." Id. (internal quotation marks and citation omitted). Finally, it concluded that "any improper comments constituted harmless error." Id.
Dinh sought leave to appeal to the New York Court of Appeals. In his leave application, Dinh added a claim that his trial counsel's failure to preserve his arguments regarding prosecutorial misconduct constituted ineffective assistance of counsel. A judge of the Court of Appeals denied leave to appeal. People v. Dinh, 927 N.E.2d 567 (N.Y. 2010) (Graffeo, J.).
D. Application for a Writ of Error Coram Nobis
On July 30, 2010, Dinh applied to the Appellate Division for a writ of error coram nobis, arguing that he had received ineffective assistance from the attorney that handled his direct appeal.*fn1 Dinh argued that his appellate counsel was ineffective for several reasons. First, he argued that Dinh could not communicate with his counsel in English and that counsel should have therefore obtained a Vietnamese interpreter. Second, Dinh argued that his counsel was deficient for failing to raise additional arguments on appeal, namely, that the trial court erred in allowing the prosecution to delete the "acting in concert" language from the indictment and that the evidence was insufficient to establish that Dinh had caused serious physical injury to Zou.
The Appellate Division denied the coram nobis application, stating without explanation that Dinh had "failed to establish that he was denied the effective assistance of appellate counsel." People v. Dinh, 915 N.Y.S.2d 278, 278 (App. Div. 2d Dep't 2010). A judge of the Court of Appeals denied leave to appeal. People v. Dinh, 949 N.E.2d 978 (N.Y. 2011) (Smith, J.).
In his federal habeas petition, Dinh asserts two grounds for relief. First, he argues that he was deprived of a constitutionally fair trial by prosecutorial misconduct. He claims, as he did on his direct appeal, that the prosecutor's remarks while cross-examining him and during summation were improper and prejudicial. Second, he argues that he received ineffective assistance of appellate counsel. He claims, as he did in his coram nobis application, that his appellate counsel should have obtained a Vietnamese interpreter and should have raised arguments regarding the amendment to the indictment and the sufficiency of the evidence.