Le v. Aldridge ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 19, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
VAN LE,
Petitioner - Appellant,
v. No. 17-6151
(D.C. No. 5:15-CV-01002-M)
DEBBIE ALDRIDGE, Warden, (W.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MORITZ, McKAY, and KELLY, Circuit Judges.
_________________________________
Van Le, an Oklahoma state prisoner, seeks a certificate of appealability (COA) to
challenge the denial of her habeas petition filed under 28 U.S.C. § 2254. See id.§ 2253(c)(1)(A) (stating that no appeal may be taken from a final order denying a § 2254
petition unless the petitioner obtains a COA). We deny a COA and dismiss the appeal.
I
Ms. Le is serving a life sentence without the possibility of parole for the first
degree murder of a child she was babysitting. She immigrated to the United States from
Vietnam some seventeen years before the murder and claimed on direct appeal that she
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
was denied a fair trial because she was tried without a qualified Vietnamese interpreter.
She also claimed her attorney rendered ineffective assistance of counsel by failing to
investigate her ability to speak and understand English, using an unqualified interpreter,
and failing to prepare and present an effective defense. Lastly, she claimed cumulative
error required reversal of her conviction. The Oklahoma Court of Criminal Appeals
(OCCA) rejected these claims and upheld her conviction. See Le v. Oklahoma,
No. F-2013-630 (Okla. Crim. App. Sept. 16, 2014) (unpublished). Ms. Le pursued
federal habeas relief on the same claims, but a magistrate judge recommended that her
§ 2254 petition be denied, and the district court adopted that recommendation. The
district court subsequently denied a COA. Ms. Le now seeks a COA in this court.
II
A COA is a jurisdictional prerequisite to our review. 28 U.S.C. § 2253(c)(1)(A);
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). We will issue a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). This requires an applicant to show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted).
We have reviewed the magistrate judge’s report and recommendation, as adopted
by the district court, and we conclude that reasonable jurists would not debate the district
court’s denial of relief. Federal habeas relief is precluded for claims adjudicated on the
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merits by a state court unless the state court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2). A state court’s factual determinations are presumed correct and are
rebuttable only by clear and convincing evidence. Id. § 2254(e)(1).
A. Interpreter
Ms. Le first claimed she was denied a fair trial because she was tried without a
qualified Vietnamese interpreter. But she did not request an interpreter, and thus the
OCCA reviewed only for plain error. The OCCA noted that on the day set for trial,
Ms. Le’s attorney sought a continuance because he had just recently discovered that she
could, in fact, speak English. Her attorney had explained to the trial court that after
several meetings with Ms. Le and a non-certified translator, he met with her alone and
informed her that her son would be providing incriminating testimony, at which point she
“became upset and began communicating with [him] in English.” R. at 31. The
non-certified translator had also testified that Ms. Le resisted his efforts to discuss the
case, claiming she did not understand or know what happened to the victim, but her
husband indicated to him that she lived in the United States for seventeen years and could
understand English. Additionally, the OCCA observed that Ms. Le had communicated in
English during a police interview, albeit at times with the help of an interpreter, and she
testified in English at trial, experiencing some difficulty understanding questions on
cross-examination but never indicating that she could not continue testifying due to a
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misunderstanding. Given this evidence, the OCCA concluded that the trial court’s failure
to appoint a qualified interpreter was not plain error and did not prejudice her defense.
The district court denied relief, ruling that no clearly established federal law held
that a trial court’s failure to appoint an interpreter violated a defendant’s constitutional
rights when the defendant could speak and understand English and had no impediment
preventing her from assisting in her defense. The court further concluded that the
OCCA’s decision was not based on an unreasonable determination of the facts, which
included the trial judge’s express finding that Ms. Le could speak English and did not
need an interpreter to aid in her defense.
In her COA application, Ms. Le offers no argument or authority suggesting the
district court’s conclusion is reasonably debatable. She asserts she was confused during
the trial and did not fully understand the extent of her prison term, but she cites no
evidence (let alone clear and convincing evidence) to rebut the OCCA’s findings. Under
these circumstances, reasonable jurists would not debate the denial of this claim.
B. Ineffective Assistance
Ms. Le also claimed her attorney rendered ineffective assistance. To establish
ineffective assistance of counsel, she had to show her attorney’s deficient performance
prejudiced her defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Ms. Le
claimed her attorney was ineffective in failing to investigate her ability to speak and
understand English, failing to use a qualified interpreter, and failing to prepare and
present an effective defense. She sought an evidentiary hearing on these claims and
submitted affidavits from several people attesting to her limited ability to speak English.
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She also submitted affidavits indicating her son would sometimes make inaccurate
statements, she and her husband were good people, the victim would often get sick in her
care, and her counsel failed to elicit favorable testimony from five potential witnesses.
Invoking Strickland, the OCCA denied Ms. Le an evidentiary hearing because she
failed to establish by clear and convincing evidence “a strong possibility [that] trial
counsel was ineffective for failing to utilize or identify the complained-of evidence,” as
required by Rule 3.11(B)(3)(b)(i), Rules of the Oklahoma Court of Criminal Appeals,
Title 22, Ch. 18, App. The OCCA explained that Ms. Le’s supporting affidavits reflected
her limited understanding of English, but there was contrary evidence demonstrating she
understood the proceedings, the proceedings were fundamentally fair, and an interpreter
was available to her. The OCCA also noted that she failed to show the non-certified
translator conveyed inaccurate information. Finally, regarding Ms. Le’s contention that
her attorney failed to prepare and present an effective defense, the OCCA determined that
defense counsel had full access to discovery, met with Ms. Le several times, and
presented a reasonably effective defense challenging the sufficiency of the evidence.
Under these circumstances, the OCCA concluded that Ms. Le failed to show her attorney
rendered ineffective assistance.
The district court determined that the OCCA reasonably applied Strickland. The
district court observed that, under Oklahoma law, the denial of a Rule 3.11 evidentiary
hearing is necessarily an adjudication that a defendant failed to show defense counsel was
ineffective under the Strickland standard. See R. at 423 (citing Simpson v. Oklahoma,
230 P.3d 888, 905-06 (Okla. Crim. App. 2010)). Moreover, the district court recognized
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that the OCCA’s ruling “‘operates as an adjudication on the merits of the Strickland
claim and is therefore entitled to deference under § 2254(d)(1).’” Id. (quoting Lott v.
Trammell, 705 F.3d 1167, 1213 (10th Cir. 2013)). Thus, applying deferential review and
considering the record and the material Ms. Le submitted in support of her claims, the
district court concluded that she was not entitled to relief because she failed to
demonstrate that fairminded jurists would disagree with the OCCA’s assessment of her
counsel’s effectiveness.
This conclusion is not reasonably debatable. Ms. Le claims her attorney failed to
investigate her ability to speak and understand English, but she cites no evidence to rebut
the OCCA’s presumptively correct finding that she understood the proceedings. She also
claims counsel used an inadequate interpreter, but she cites no evidence to counter the
OCCA’s conclusion that she failed to show the translator made inaccurate
communications in her case. Last, she claims her attorney failed to prepare and present
an adequate defense, but she offers only her own characterization of the evidence and
does not explain how she was prejudiced.
C. Cumulative Error
Finally, Ms. Le claimed cumulative error. Absent any errors, however, reasonable
jurists would not debate the district court’s rejection of this claim. See Hooks v.
Workman, 689 F.3d 1148, 1195 (10th Cir. 2012) (holding that cumulative-error analysis
“does not apply to the cumulative effect of non-errors” (ellipsis and internal quotation
marks omitted)).
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III
We deny a COA and dismiss this appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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