STATE v. KANG (2019)

Relator seeks review of the district court's February 27, 2018 ruling (1) summarily denying his second application for post-conviction relief (hereinafter “APCR”) without first allowing him the opportunity to respond to the procedural objections, as required by La. C.Cr.P. art. 930.4(F) and (2) procedurally defaulting his post-conviction claims without first granting his discovery requests or conducting an evidentiary hearing on the factual disputes. Relator also claims that the district court failed to address the newly discovered evidence claim set forth in his second APCR, which he asserts was presented within the time limitations of La. C.Cr.P. art. 930.8(A)(1).

Background and Procedural History

On November 16, 2000, a jury found relator guilty of second degree murder. He is currently serving a sentence of life imprisonment at hard labor without benefits for this conviction. On November 21, 2005, relator filed his first APCR, which the district court denied on May 4, 2006. After multiple proceedings in the district court and review by this Court and the Louisiana Supreme Court, relator was denied the relief he seeks.

 Federal Court Proceedings

Because relator was denied relief in state court, relator filed a federal habeas petition filed in the United States District Court for the Eastern District of Louisiana. Relator also filed a motion for discovery in federal court requesting an in camera review of the grand jury testimony and to have the gunshot residue kits tested.

On February 17, 2016, this matter came before the federal magistrate court for a hearing, at which time Judge Jay Wilkinson indicated that he was considering a stay of the federal proceedings for relator to exhaust his claim of ineffective assistance of counsel in state court in hopes that “somebody recognizes at some point, as I think I do, that there might be serious questions about this man's guilt.”

On March 7, 2016, Judge Wilkinson issued a Stay Order and Reasons, staying the federal habeas corpus proceeding until “after the finality of all state post-conviction review through the Louisiana Supreme Court related to the unexhausted claims and arguments asserted in the original petition and the supplemental memorandum in support of the petition.” Judge Wilkinson gave the following reasons:

At this time, I am unable to conclude that Kang's ineffective assistance of counsel claims are “plainly meritless.” I do not discern from the record that he has engaged in unnecessary litigation, abusive tactics or intentional delay.

As cause for his failure to exhaust, Kang indicates that his state post-conviction counsel inexplicably failed to include the ineffective assistance of trial counsel claims in the Louisiana Supreme Court writ application․ Without addressing the applicability of Martinez to Kang's situation, I find that Kang's request to forgive any federal or state procedural barrier to review of his ineffective assistance of trial counsel claims is premature.

In this case, Kang has presented a colorable actual innocence argument as a basis to excuse any state imposed procedural default of his ineffective assistance of trial counsel claims. However, no such procedural bar has yet been imposed by the Louisiana Supreme Court, and I am unwilling to assume that it will do so. Kang, through new counsel, and the State recognize that other federal claims and supporting arguments, including the gateway opportunities presented through a showing of actual innocence and Martinez, which were presented in Kang's supplemental memorandum may require further exhaustion. Kang also may have unexplored avenues remaining in the state courts to enforce the state's district court's order directing release of the gunpowder residue kits and to pursue his actual innocence arguments.

Judge Wilkinson deferred the determination of relator's Motion for Leave to Conduct Discovery.

 State Court Proceeding On Second APCR

After Judge Wilkinson's March 7, 2016 Order, on May 3, 2016, relator, through new post-conviction counsel, filed a second APCR with the district court. In the second APCR, relator raised the following claims: (1) ineffective assistance of trial counsel; (2) prosecutorial misconduct; (3) ineffective assistance of the first post-conviction counsel; (4) cumulative error; and (5) actual innocence. Before responding to relator's second APCR, the State filed multiple motions for extension of time, with relator's consent, to allow the Jefferson Parish District Attorney's Office to interview witnesses and re-investigate the case over a period of eighteen (18) months. During this period, relator asserts that the JPDA Chief Investigator interviewed witnesses and reviewed discovery from the original case file, and concluded that Duy Hoang, not Frank Kang, was the shooter.

After the State re-investigated this matter, there were plea negotiations with relator. Because plea discussions were unsuccessful, on February 16, 2018, relator filed the following discovery motions in the district court: (1) a Motion for In Camera Review of Grand Jury Testimony; (2) a Motion to Amend Order to Release Gunshot Residue Kits for Testing; (3) and a Motion for Discovery of Witness Statements Obtained by JPDA During Its Review of Frank Kang's Conviction and Post-Conviction Investigative Memoranda (hereinafter collectively referred to as “discovery motions”).

On February 20, 2018, the State filed its opposition to relator's second APCR. On February 27, 2018, the district court summarily denied relator's second APCR finding that it was untimely, repetitive, and successive citing La. C.Cr.P. art. 929. On March 1, 2018, the district court denied relator's three discovery motions finding that those pleadings were moot. Relator challenges both the district court's denial of his second APCR and his discovery motions.

Relator's Assignments of Error

In his writ application, relator asserts the following assignments of error, including (1) the district court erred in denying the second APCR without making any finding as to whether the failure to include these claims on appeal or in his prior post-conviction pleadings was “inexcusable,” which would have then required the court to consider the merits of his claims; (2) the district court erred in denying his claim of actual innocence as procedurally barred because the court failed to consider the newly discovered evidence (namely, (i) the Buras report, (ii) the photographic lineups, and (iii) the 2016 affidavits of his trial counsel and the defense's private investigator); (3) the district court erred in finding that his claim of ineffective assistance of post-conviction counsel was not cognizable in an APCR; and (4) the district court incorrectly sustained the State's procedural objections without first granting his discovery motions, and without first holding an evidentiary hearing when there exists factual disputes of whether a procedural default is excusable.

Law and Analysis

La. C.Cr.P. art. 930.8 provides as follows:

A. No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922, unless any of the following apply:

(1) The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his prior attorneys. Further, the petitioner shall prove that he exercised diligence in attempting to discover any post-conviction claims that may exist. “Diligence” for the purposes of this Article is a subjective inquiry that must take into account the circumstances of the petitioner. Those circumstances shall include but are not limited to the educational background of the petitioner, the petitioner's access to formally trained inmate counsel, the financial resources of the petitioner, the age of the petitioner, the mental abilities of the petitioner, or whether the interests of justice will be served by the consideration of new evidence. New facts discovered pursuant to this exception shall be submitted to the court within two years of discovery.

La. Code Crim. Proc. Ann. art. 930.4(F) states as follows:

If the court considers dismissing an application for failure of the petitioner to raise the claim in the proceedings leading to conviction, failure to urge the claim on appeal, or failure to include the claim in a prior application, the court shall order the petitioner to state reasons for his failure. If the court finds that the failure was excusable, it shall consider the merits of the claim.

In support of his claim for post-conviction relief, relator included Lieutenant Buras's March 4, 2000 supplemental police report (the Buras report), Quoc Nguyen's March 4, 2000 statement identifying Duy Hoang from the line-up as the shooter, Line-Up # 1 and Line-Up # 2 shown to Quoc Nguyen by Lieutenant Buras, several affidavits dated in 2012 and 2016 attesting that relator was not the shooter,¹ and correspondence between attorney Jack E. Truitt and the Louisiana Attorney Disciplinary Board regarding the complaint filed by Chan Won Kang (relator's father) against relator's trial counsel, James Williams, and photographs of Duy Houng and relator taken by JPSO on March 4, 2000. These exhibits are also included in the instant writ application.

In the January 15, 2016 affidavit of trial counsel, Mr. Davidson Ehle, Mr. Ehle stated that relator did not inform him or his law partner, James Williams, that someone else was the shooter, and that “We did not discuss any other line of defense with Mr. Kang.” He also indicated that until he met with Mr. Magner and Ms. Pardee, he did not know prior to trial that Quoc Nguyen, the rear-passenger in the victim's car, had identified Duy Hoang, and not Frank Kang, as the shooter. Mr. Ehle further stated, “I am certain that I did not have the Buras Report of the Quoc Nguyen Statement prior to January 7, 2016.” Moreover, in his affidavit, Mr. Ehle asserted, in part:

[I] did not question Quoc Nguyen about his having identified Duy Hoang as the shooter. My review of the cross-examination of Quoc Nguyen confirms that I did not know before trial that Quoc Nguyen had identified Duy Hoang as the shooter.

* * *

An eyewitness identification of someone other than Frank Kang as the shooter is an important fact and something that, had we known about it, we would have used when investigating Frank Kang's case, developing our theory of defense, and examining witnesses at trial.

Relator also attached to his second APCR the affidavit of Steve Halbert, who was retained as a private investigator by Mr. Williams and Mr. Arthur Leman, III, to investigate the underlying matter on behalf of relator and the co-defendant, James Oh. Mr. Halbert stated, in part:

Before trial, I never saw the supplemental JPSO police report written by Lt. Steve Buras in which it was reported that Quoc Nguyen, the rear seat passenger of the victim's car, had identified Duy Hoang as the front seat passenger in the black Lexus and as the person who had shot Vuon Nguyen. I never saw the transcript of Quoc Nguyen's statement to Lt. Steve Buras. I never saw the photographic line-ups that were used with Quoc Nguyen when he was interviewed by Lt. Steve Buras[.]

As it was, I never interviewed or attempted to interview Quoc Nguyen before Frank Kang's trial. To my knowledge, no other member of the defense team interviewed or attempted to interview Quoc Nguyen.

All the discovery provided to the defense team was done in open court. I did not go to the assistant district attorney's office to review the discovery. The information I had for Frank Kang's case was provided to me by attorney Jim Williams, and I believe that whatever information that Jim Williams had, he provided to me.

Our focus here is on relator's claim that the district court erred in summarily denying relator's second APCR as procedurally barred because the court failed to consider whether the alleged newly discovered evidence meets an exception for delayed filing and the prohibition against filing a repetitive and successive application. Based on the record, the alleged new information set forth in the second APCR may not have been known to relator and/or his prior counsel. Thus, this information may be sufficient to rise to the level of newly discovered evidence and may also meet the exceptions for delayed filing and the prohibition of filing a repetitive and/or successive application. Accordingly, we find the district court erred in not considering whether relator's second APCR presented newly discovered evidence (namely, (i) the Buras report, (ii) the photographic lineups, and (iii) the 2016 affidavits of his trial counsel and the defense's private investigator); and whether this evidence meets the exception for delayed filing and the prohibition against filing a repetitive and successive application. We therefore vacate the district court's denial of relator's second APCR and the denial of his discovery motions and remand this matter for the district court to address whether relator has presented newly discovered exculpatory evidence that meets the exception of the time bar under La. C.Cr.P. art. 930.8 and the exception for successive filings, and if so, to consider the merits of relator's discovery motions and his second APCR, and if necessary to conduct an evidentiary hearing.

We also find that there exists factual issues as to whether the alleged newly discovered evidence concerning Quoc Nguyen's statement to Lieutenant Buras as well as the photographic line-ups were not known to relator and his trial counsel before, during, and after the trial. The trial concluded in this matter on January 16, 2000, and the alleged newly discovered evidence was not discovered until 2016.

While the State seeks to discredit the newly discovered evidence claim by challenging the 2016 affidavit of Charlie Kang, the State makes no mention of the 2016 affidavits of Mr. Ehle and Mr. Halbert, even though the State may have interviewed them during its post-2015 investigation. Thus, we find that factual issues exist that cannot be resolved on the pleadings alone as to whether relator may have presented newly discovered exculpatory evidence that meets the exception of the time bar under La. C.Cr.P. art. 930.8(A)(1) and the exception for successive filings.

Conclusion

In light of the foregoing, we vacate the district court's denial of relator's second APCR on procedural grounds and denial of his discovery motions, and remand this matter for the district court to address:

1. Whether relator has presented newly discovered exculpatory evidence that meets the exception of the time bar under La. C.Cr.P. art. 930.8, and the exception for successive filings: and if so,

2. To consider the merits of relator's discovery motions and his second APCR, and if necessary to conduct an evidentiary hearing.

In addition, relator's motion to supplement is denied as moot.

FOOTNOTES

1.   For instance, relator claimed that the February 1, 2016 affidavit of Chul-Min “Charlie” Kang was newly discovered evidence. He asserted that Charlie Kang's affidavit indicated that he “picked up” relator, Duy Hoang, and James Oh after the shooting and was told of the plan for relator to take the fall for Duy Hoang. Charlie Kang's affidavit was attached as an exhibit to relator's second APCR and is also included in this writ application. Relator also asserted that James Oh and Duy Hoang were unavailable to testify at his trial because of the charges pending against them regarding this shooting. Relator stated, “Charlie Kang could have testified that Duy Hoang admitted to the shooting and convinced Frank Kang to take the fall, but was not contacted by Frank Kang's trial lawyers before trial.”