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Phim v. Demoura

United States District Court, D. Massachusetts

March 14, 2018

DAVID PHIM, Petitioner,
v.
DOUGLAS DEMOURA, Respondent.

          MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS AND PETITIONER'S MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. NO. 34)

          Leo T. Sorokin, United States District Judge.

         David Phim, a prisoner at the Massachusetts Correctional Institution in Concord, Massachusetts, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for second-degree murder. Doc. No. 1.[1] The respondent answered the petition, Phim briefed the merits of his claims and moved for judgment on the pleadings, and the respondent opposed the motion. Doc. Nos. 13, 34-36. Because each of his federal claims is meritless, Phim's petition and motion for judgment on the pleadings are DENIED.

         I. BACKGROUND

         On August 20, 2009, following a jury trial in Middlesex County Superior Court, Phim was convicted of second-degree murder and three firearms charges. Doc. No. 1 at 1-2; see Commonwealth v. Phim, 969 N.E.2d 663, 666 (Mass. 2012). He received a life sentence. S.A. at 6, 586.[2]

         The charges against Phim stemmed from a gang-related shooting in Lowell, Massachusetts. Phim, 969 N.E.2d at 665. The Supreme Judicial Court (“SJC”) summarized the evidence adduced at Phim's trial as follows:

On the evening of April 7, 2007, several bullets were fired into a window at 168 Fletcher Street in Lowell. One of those bullets hit Vuthavy Phay, a guest at a party being held at that house. Phay died from his injuries. At the time of the shooting, [Phim] was . . . dating . . . a resident of 168 Fletcher Street, Jennifer Chhea. Jennifer lived there with her parents and siblings. The oldest of her siblings, her brother John, was a member of the “Asian Boyz” gang. [Phim] was a member of a rival gang, “TRG Grey.”
The jury reasonably could have inferred that these rival gang affiliations were a source of tension between John and [Phim]. The jury heard testimony that John, as well as other family members, disapproved of Jennifer's relationship with [Phim], and would not allow [Phim] into their house. In her testimony, Jennifer suggested also that when John learned [Phim] had been in their house, he threatened [Phim] with physical harm.
Less than a week before the murder, Jennifer told [Phim] that she had engaged in sexual relations with another man. On April 7, the day of the shooting, Jennifer told [Phim] that she was pregnant. [Phim] reacted angrily, throwing her on the bed and punching her.
Later the same day, [Phim] met with his friend Roth Em, who had also previously dated Jennifer. Em had recently quarreled with Jennifer, expressing his disdain for her brother John's gang. At trial, Em testified that, on April 7, he, [Phim], and two other men [one of whom was Savong Moun] had gone together to Fletcher Street. Em stated that he and [Phim] walked up an alley behind 168 Fletcher Street. From the alley, [Phim] shot several rounds into one of the building's windows.
If not himself the shooter, Em was the only percipient witness to the shooting. Jennifer's middle brother, Bunthorng, testified that he saw [Phim] with a gun outside the building immediately after the shooting.[3] However, Bunthorng heard, but did not see, the shots being fired, and therefore could not testify to whether it was Em or [Phim] who had fired the gun.

Id. at 665-66 (footnote 2 omitted).[4]

         Phim's trial featured five days of evidence, including a view of the scene in Lowell and testimony by sixteen witnesses called by the Commonwealth. S.A. at 377-541. Only two witnesses testified that they had seen Phim at the scene of the shooting-Bunthorng Chhea and Roth Em-and the credibility of both witnesses was substantially challenged by Phim's counsel on cross-examination. S.A. at 408-21, 461-76. The Commonwealth also presented relatively brief testimony by an employee of Sprint who described records of phone calls occurring on the night of the shooting. S.A. at 504-07.

         Two other men also were indicted and charged with participating in the murder. Commonwealth v. Phim, 41 N.E.3d 330 (Mass. App. Ct. 2015) (unpublished). One, Savong Moun, was tried separately a year after Phim, and was acquitted of murder “but convicted . . . of being an accessory after the fact to [Phim]'s murder of Phay, and of committing perjury before the grand jury.” Id. The other, Roth Em, entered into a plea agreement pursuant to which the charge against him was reduced to manslaughter in exchange for his cooperation as a witness for the Commonwealth at his two co-defendants' trials. Id.

         On June 14, 2012, the SJC affirmed Phim's conviction and sentence on direct review, rejecting various challenges which Phim does not repeat in his federal habeas petition. Phim 969 N.E.2d at 665-72. Phim filed a counseled motion for a new trial in the Superior Court in early 2013. S.A. at 9, 165-89. His motion raised two claims: 1) whether Bunthorng Chhea's recantation, during Moun's trial, of his identification of Phim as the man he saw holding a gun after the shooting amounted to newly discovered evidence that cast doubt on the validity of Phim's conviction; and 2) whether the revelation during Moun's trial that site records for Moun's cell phone had been mislabeled, were available, and showed the location of his phone on the night of the murder demonstrated a disclosure violation by the government or ineffectiveness of Phim's trial counsel. S.A. at 176-88.

         On July 10, 2014, the Superior Court denied Phim's motion in a decision containing the following additional factual summary:

At [Phim's] trial, [Bunthorng] Chhea testified that he looked from his second floor bedroom window immediately after the gunfire stopped. He saw [Phim] and Em quickly leaving the scene. The streetlight enabled him to see the two men and to see [Phim] with a gun in his hand. Chhea knew both men.
It was established at [Phim]'s trial that Chhea did not immediately report to the police that he knew the two men. However, within hours of the murder he revealed the name of [Phim] and identified Em with an initial, “B.”[5] Chhea also identified both men from photo arrays and later testified at the grand jury where he placed the gun in Em's hand. His explanation for this latter inconsistency was his fear of [Phim]. Chhea's explanation was persuasive. Although Chhea was not a gang member he lived in a home frequented by his brother's fellow gang members, the Asian Boyz. [Phim] was a member of a rival gang.
At Moun's trial, Chhea testified that he did not know the two people he observed from his window. However, he did testify that he initially denied any knowledge of the shooting but he admitted that he later told the police that he saw [Phim] carrying the gun and fleeing the scene with “B” after the shooting, that he selected photos of [Phim] and Em, and that he had previously testified to such.

         * * *

In the Moun trial, Moun called Vincent Moise (“Moise”), a former employee of Sprint Nextel . . . .[6] Moise testified concerning the location of various cellphones during the critical times surrounding the murder. . . . While the subscriber records for Moun's cellphone showed direct-connect calls to and from his phone at the pertinent times, no site records were provided to Moise. However, site records were provided for the interconnect calls to and from Moun's phone and Moise testified consistent with the available records.
After Moise completed his testimony, it was determined that Moun's direct-connect site records were available but they had been mislabeled. The evidence was reopened and Moise testified that all calls made and received on Moun's phone between 11:44 p.m. and 12:08 a.m. placed the location of Moun's phone in Lowell, about two miles from the murder scene. . . . Since it was documented that the body of the victim arrived at Lowell General Hospital at 11:55 p.m., the jury could have reasonably inferred that the shooting occurred within five to ten minutes prior to 11:55 p.m.[7]

         S.A. at 84-85 (footnote 3 omitted). The Superior Court went on to find Chhea's recantation incredible, S.A. at 88, and that a fifteen-minute gap between calls logged on Moun's cell site records “would have been adequate” time “for Moun to travel to and from the murder scene consistent with Em's testimony, ” S.A. at 89.

         The Massachusetts Appeal Court (“MAC”) affirmed the Superior Court's denial of Phim's motion for a new trial on December 3, 2015. Phim, 41 N.E.3d at 330. The SJC denied further review. S.A. at 279. Phim timely filed his habeas petition in June 2016. Doc. No. 1. His petition, read in light of the brief he submitted in support of his motion for judgment on the pleadings, Doc. No. 34, raises three claims:

1) Ineffectiveness of trial counsel for failing to use Moun's cell phone records to impeach Em's testimony as to the timing and sequence of events around the time of the shooting;
2) A violation by the Commonwealth of its obligations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), for failing to disclose or accurately label Moun's cell ...

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