Van Nguyen v. Lindsey

FOR PUBLICATION Argued and Submitted May 1, 2000 Pasadena, California OPINION Opinion by Judge Silverman OPINION An innocent bystander was killed in the crossfire of a shootout between two rival gangs. Two of the combatants were charged with murder and tried separately. At the trial of the first defendant (Phung), the prosecutor presented evidence that Phung had fired the first shot. At the trial of the second defendant (Nguyen, the petitioner here) the prosecutor introduced Nguyen's own statement to the police that someone in his car had fired first. On state habeas review, an evidentiary hearing was conducted in state court. The California Court of Appeal found as matter of fact that the prosecutor's underlying theory was the same in both trials -- that in a case of voluntary mutual combat, it did not matter who fired the first shot. It also found that the prosecution's arguments were consistent with the evidence actually adduced at each trial, and that the prosecution had not falsified evidence or engaged in bad faith. On this record, Nguyen has not shown that the state court's rejection of his due process claim was an unreasonable application of clearly established federal law. We affirm.