Tony Kwak v. Clayton Frank , 400 F. App'x 246 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TONY JIN KWAK, No. 09-15950
Petitioner - Appellant, D.C. No. 1:07-cv-00534-SOM-
KSC
v.
CLAYTON FRANK, Acting Director, MEMORANDUM *
Department of Public Safety, State of
Hawaii,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted October 12, 2010
Honolulu, Hawaii
Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.
The district court properly denied Petitioner-Appellant Tony Jin Kwak’s
(Kwak) federal habeas petition because the Hawaii Intermediate Court of Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
made a reasonable “determination of the facts in light of the evidence presented in
the [s]tate court proceeding.” 28 U.S.C. § 2254(d)(2).
Trial counsel’s failure to pursue a defense theory predicated on another
person’s elbow strike, rather than Kwak’s kick as the fatal blow, was reasonably
determined to be a tactical decision. See Cheney v. Washington, 614 F.3d 987, 996
(9th Cir. 2010) (“Under Strickland [v. Washington, 466 U.S. 668 (1984)], the court
must indulge a strong presumption that counsel acted for tactical reasons rather
than through sheer neglect.” ) (citation, alteration and internal quotation marks
omitted).
Kwak’s argument that counsel’s decision not to interview Mahealani Kaae
(Kaae) was objectively unreasonable, and could not have been tactical, fails.
“Counsel is not obligated to interview every witness personally in order to be
adjudged to have performed effectively[.]” Lord v. Wood, 184 F.3d 1083, 1095 n.8
(9th Cir. 1999) (citations omitted). Counsel reached an informed decision by
reviewing Kaae’s inconsistent statements to the police. “A claim of failure to
interview a witness may sound impressive in the abstract, but it cannot establish
ineffective assistance when the person’s account is otherwise fairly known to
defense counsel.” Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986)
(citation omitted).
2
Kwak’s argument regarding counsel’s failure to secure a medical expert to
testify that an elbow strike could have caused the victim’s death is unpersuasive.
The medical examiner who performed the victim’s autopsy expressly refuted the
elbow strike theory, rendering the theory “so inherently implausible as to
undermine defense counsel’s credibility[.]” Lord, 184 F.3d at 1086.
AFFIRMED.
3