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Thanh Van Tran v. Superintendent Varano

August 31, 2011

THANH VAN TRAN,
PETITIONER,
v.
SUPERINTENDENT VARANO, ET AL. RESPONDENTS.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM ON PETITION FOR WRIT OF HABEAS CORPUS

I. Introduction

Petitioner Thanh Van Tran ("Van Tran") filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, raising several grounds for relief. (Pet., ECF No. 1.) This Court referred the matter to Magistrate Judge Carol Sandra Moore Wells for a Report & Recommendation ("R & R") on the merits (Order, ECF No. 3), and the Commonwealth responded to Van Tran's Petition (Resp., ECF No. 12).

On May 27, 2011, Judge Wells filed her R & R, which recommends that the Petition be dismissed for several reasons. (R & R, ECF No. 15.) According to Judge Wells, one of Van Tran's claims is procedurally defaulted and the others are meritless. On June 12, 2011, Van Tran timely filed objections to the R & R.*fn1 (Objections, ECF No. 18.) Upon independent and thorough review, and for the reasons stated below, the Court will adopt the R & R and dismiss the Petition.

II. Factual and Procedural Background

According to the Pennsylvania Superior Court, the facts underlying Van Tran's state court conviction and sentencing are as follows:

"Following a February 5 to March 1, 1999 jury trial, Van Tran was convicted of second-degree murder, criminal conspiracy, possession of instruments of crime (PIC), and four counts of robbery stemming from his involvement in a 1995 robbery of a massage parlor. Van Tran and eight co-conspirators agreed to rob the Physical Therapy Massage Parlor. The conspirators were to intimidate the owner of the business into giving them $500 per month in protection money. Van Tran was appointed leader of the group entering the massage parlor and had the task of taking care of the security officer. At approximately 1:30 am on August 4, 1995, the robbery began. Three co-conspirators acted as lookouts, and Van Tran and two co-conspirators went inside. They sat in the receiving area reviewing the 'girls.' Fifteen minutes later, the other co-conspirators entered. Ms. Jackie Kim, the manager, asked the final three co-conspirators to leave when it became evident that they had no intention of obtaining a massage. When Ms. Kim asked them to leave a second time, Van Tran and a con-conspirator drew their guns. The security officer attempted to unholster his weapon but was shot one time each by Van Tran and the co-conspirator. The security officer fell to his knees when he was shot again in the head. He fell to the floor. At that time, Van Tran shot him in the back of the head.

The conspirators then robbed the girls and the patrons, in some instances by threatening to rape or kill them. One of the co-conspirators raped one of the girls. The conspirators then ordered the girls to disrobe and bound them together with electrical and telephone cables. Ms. Kim was handcuffed to a clothes rod in a storage room. Van Tran took the patron[s'] driver's licenses and warned them not to call the police because he knew where they lived. The conspirators left and divided the stolen goods; Van Tran received $1000.

Van Tran was charged with ninety-seven counts for his involvement in the robbery of the massage parlor and the homicide of the security officer. Following the conviction, Van Tran received a life sentence and a consecutive aggregate sentence of twenty to forty years of imprisonment on the murder, criminal conspiracy, PIC and four robbery charges; ninety-one of the counts were nolle prossed."

Commonwealth v. Van Tran, No. 3430 EDA 2008, slip op. at 1-3 (Pa. Super. Ct. Oct. 27, 2009).

Van Tran filed a direct appeal of his conviction and sentence, which the Pennsylvania Superior Court affirmed. Commonwealth v. Van-Tran, No. 2969 EDA 1999, at 18 (Pa. Super. Ct. Sept. 5, 2002). On direct appeal, Van Tran raised four issues: (1) insufficient evidence to support the conviction for second-degree murder; (2) the trial court's refusal to instruct the jury on the defense of duress; (3) failure to grant a mistrial for a detective's use of the term "organized crime" during his testimony; and (4) the prosecutor's closing argument was unduly prejudicial. The Pennsylvania Supreme Court denied allocatur.

On January 2, 2004, Van Tran filed a timely pro se petition under Pennsylvania's Post-Conviction Relief Act, 42 Pa. Cons. Stat. Ann. §§ 9541, et seq. ("PCRA"). He sought post-conviction relief based on several claims, including counsel's failure to preserve or appeal the denial of his motion to suppress statements to the police and violation of his right to receive Miranda warnings. Van Tran's appointed counsel filed an amended PCRA petition, was subsequently removed from the case, and new appointed counsel filed a corrected supplemental amended petition. In this amended petition, appointed counsel raised one issue: whether appellate counsel was ineffective for failure to appeal the denial of the motion to suppress Van Tran's statements to police for failure to properly advise under Miranda.

The PCRA trial court denied the petition, Commonwealth v. Van Tran, No. CP-51-CR-07/93651-1997, slip op. at 4 (Phila. Ct. Com. Pl. Dec. 19, 2008), and the Pennsylvania Superior Court affirmed, Van Tran, No. 3430 EDA 2008, slip op. at 7. The Pennsylvania Supreme Court denied Van Tran's request for an allowance of appeal.

Van Tran filed the instant Petition for Writ of Habeas Corpus on November 15, 2010. (Pet.); see Nara v. Frank, 264 F.3d 310, 315 n.3 (3d Cir. 2001) (recognizing that pro se prisoner's habeas petition is deemed filed on date it is placed in prison's internal mail system). He claims his statements to police were coerced, trial counsel was ineffective for failing to challenge the denial of the motion to suppress his statements, and appellate counsel was ineffective for failing to appeal the denial of the motion to suppress. Judge Wells recommends the Petition be dismissed.*fn2 (ECF No. 15.) Van Tran filed timely objections. (ECF No. 18.)

III. Parties' Contentions

A. Habeas Petition

Van Tran raises three issues in his Petition. Initially, he claims he did not receive Miranda warnings in his native language, Vietnamese, prior to making statements to the police. Based on this claim, he then asserts two counsel errors. First, he claims his trial counsel was ineffective for failing to challenge the denial of the motion to suppress statements to the police and, second, appellate counsel was ineffective for failing to raise the issue on appeal. In his accompanying Memorandum of Law, he also claims he was denied access to counsel during the interrogation and the PCRA trial court erred by denying him an evidentiary hearing.

In the Memorandum of Law, Van Tran alleges the PCRA courts misstated the record when they found he was advised of his rights in Vietnamese. According to Van Tran, the interpreter the police eventually summoned admitted that he did not translate the Miranda warnings. For this reason, he contends the record does not support the ...


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