State of Louisiana Versus Frank Kang

STATE OF LOUISIANA NO. 19-KH-227

VERSUS FIFTH CIRCUIT

FRANK KANG COURT OF APPEAL

STATE OF LOUISIANA

March 17, 2020

Mary E. Legnon

Chief Deputy Clerk

IN RE FRANK KANG

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT

COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE

DANYELLE M. TAYLOR, DIVISION "O", NUMBER 00-1409

Panel composed of Judges Jude G. Gravois,

Marc E. Johnson, and Stephen J. Windhorst

WRIT DENIED

Relator, Frank Kang, seeks review of the district court’s March 14, 2019

ruling denying his second Application for Post-Conviction Relief (second APCR), a

Motion to Supplement Second Application for Post-Conviction Relief with

Additional Evidence of Actual Innocence (motion to supplement), and a Motion to

Supplement Second Application for Post-Conviction Relief with Newly Discovered

Evidence (motion to supplement with newly discovered evidence). For the

following reasons, we deny relator’s writ.

Procedural History

On November 16, 2000, a jury found Kang 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 and hearings in the

district court, and review by this Court and the Louisiana Supreme Court, Kang was

unable to obtain post-conviction relief.

Federal Court Proceedings

On June 25, 2015, Kang filed a federal habeas petition in the United States

District Court for the Eastern District of Louisiana, whereupon a hearing was held

on February 17, 2016. 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

19-KH-227

supplemental memorandum in support of the petition.” Judge Wilkinson concluded

that Kang’s ineffective assistance of counsel claims were not “plainly meritless,”

and that he had “presented a colorable actual innocence argument as a basis to excuse

any state imposed procedural default of his ineffective assistance of trial counsel

claims.”

State Court Proceeding on Kang’s Second APCR

After Judge Wilkinson’s March 7, 2016 Order, on May 3, 2016, Kang,

through new post-conviction counsel, filed a second APCR with the district court.

On February 27, 2018, the district court summarily denied relator’s second APCR

finding that it was untimely, repetitive, and successive. Kang filed a writ application

challenging the denial of his second APCR and discovery motions with this Court.

On January 9, 2019, this Court vacated the district court’s February 27, 2018 denial

of Kang’s second APCR and the denial of his discovery motions. State v. Kang, 18-

KH-155 (La. App. 5 Cir. 1/9/19) (unpublished writ disposition). Further, this Court

remanded the matter for the district court to address whether Kang has presented

newly discovered exculpatory evidence sufficient to meet the exceptions of the time

bar under La. C.Cr.P. art. 930.8 and successive filings under La. C.Cr.P. art. 930.4,

and if so, to then consider the merits of Kang’s discovery motions and his second

APCR, and to conduct an evidentiary hearing, if necessary. Id.

On January 15, 2019, Kang filed a Motion to Supplement Second Application

for Post-Conviction Relief with Additional Evidence of Actual Innocence (motion

to supplement) with the district court. Kang also filed a Motion to Supplement

Second Application for Post-Conviction Relief with Newly Discovered Evidence

(motion to supplement with newly discovered evidence) with the district court on

March 8, 2019. On March 14, 2019, the district court denied the second APCR, the

motion to supplement, and the motion to supplement with newly discovered

evidence.

In its March 14, 2019 ruling, the district court reviewed Kang’s alleged newly

discovered evidence. It determined that none of the listed evidence qualified as

newly discovered evidence for purposes of La. C.Cr.P. art. 930.8(A)(1)1 inasmuch

as the facts upon which his claims were predicated were located in the court record

months prior to trial, or known to trial counsel, and/or known to relator at the time

of the shooting. The district court determined, in pertinent part:

The Buras report and Quoc Nguyen [sic] statement and line-ups

were all located in the court record prior to trial. Petitioner is imputed

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In the March 14, 2019 ruling, the district court specifically outlined relator’s alleged “new” evidence as

follows: Lieutenant Buras’s supplemental police report dated March 4, 2000 (located in court record pre-

trial 6/22/2000); transcript of Quoc Nguyen statement dated March 4, 2000 (located in court record pre-trial

6/22/2000); the line-ups shown to Quoc Nguyen by Lieutenant Buras (located in court record pre-trial

6/22/2000); James Oh’s affidavit recanting post-arrest statement and swearing Duy Hoang was the shooter;

Frank Kang’s affidavit explaining why he confessed; Charlie Kang’s affidavit discussing events after the

shooting; statement of Thaddeus Johnson, Duy Hoang’s cellmate, stating Duy Hoang said he was the

shooter; statement of William Smith stating Duy Hoang said he was the shooter and Kang was taking the

charge; attorney Davidson Ehle’s affidavit stating he was unaware of Quoc Nguyen’s identification of Duy

Hoang as the shooter; attorney Jim Williams’ response to a bar complaint; trial investigator Steve Halbert’s

affidavit; Chan Won Kang’s affidavit; letter from Duy Hoang to Frank Kang; “minute entry email” from the

Jefferson district court’s clerk of court to Sam Dalton (post-conviction counsel) stating JPSO had ordered

them not to produce gunshot residue kit; and photograph of relator.

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to know said information. Moreover, Kang’s father states in his

affidavit that they became aware of said statements when Laurie White

was acting as appellate counsel. Kang’s father does not supply an exact

date, but states it was after direct appeal in 2005, and it must have been

prior to 2007, when she was seated as Criminal District Court for the

Parish of Orleans. Regardless, this was much longer than 2 years ago.

Additionally, as Kang’s father states, the report and statements were

found in trial counsel’s files. Newly discovered evidence is not the

same this [sic] as late discovered evidence. Thus, any claims arising

from this “evidence” is barred from review as untimely.

Mostly, the other evidence mostly pertains to Kang’s false

confessions, taking the charge, committed perjury at trial, coerced by

co-defendants to confess, etc. … None of this information qualifies as

“newly discovered evidence,” as Frank Kang was present at the time of

the shooting. … He never tried to prove that he was not the shooter.

Assuming arguendo that the multiple statements now put forth as

“evidence” are in fact true, which is quite questionable, all of those facts

for which the claims are predicated were clearly known to Frank Kang

at the time they occurred. He was present.

As for Quoc Nguyen’s affidavit, the district court found that (1) this affidavit

reiterates information that was in the supplemental police report and statements

located in the court record prior to trial; (2) was submitted nineteen years after the

shooting in this case; and (3) failed to satisfy the due diligence requirement as the

facts upon which the information is based was clearly known to relator at the time

of the incident.

Considering the above and that this case became final in 2004, the district

court found that Kang failed to meet his burden of proving the due diligence

requirement set forth in La. C.Cr.P. art. 930.8(A)(1) specifically noting that “he

cannot prove due diligence in attempting to discover his own alleged deception

during trial”; that the second APCR was untimely filed; that the second APCR was

successive and repetitive citing La. C.Cr.P. art. 930.4(D) and (E); and that Kang’s

claim of ineffective assistance of post-conviction counsels was procedurally barred

in that it is not a cognizable claim under La. C.Cr.P. art. 930.3.

On the same date as the May 13, 2019 return date, relator, through post-

conviction counsels, filed the instant writ application seeking review of the district

court’s March 14, 2019 ruling. Relator claims that despite this Court’s remand, the

district court “again procedurally defaulted” the second APCR without first holding

an evidentiary hearing on whether the evidence was newly discovered.

For the reasons discussed, we find no error in the March 14, 2019 ruling based

on the showing made.

Law and Analysis

Relator asserts that his actual innocence claim excuses any procedural

defaults.2 The Louisiana Supreme Court has held that a bona fide claim of actual

2 Kang seeks review of the denial of the second APCR and his discovery requests and raises the following

issues: 1) whether the district court erred in failing to find that his actual innocence excuses any procedural

default; 2) whether the district court erred in finding that his post-conviction counsels’ ineffective assistance

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innocence must involve “new, material, noncumulative,” and “conclusive”

evidence, which meets an “extraordinarily high” standard and undermines the

prosecution’s case. State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290, 291. In

State v. Pierre, the supreme court stated that in order for petitioner to meet the

threshold requirement for an actual innocence claim, he must show that in light of

new evidence, no juror, acting reasonably would have voted to find him guilty

beyond a reasonable doubt. Pierre, 13-873 (La. 10/15/13), 125 So.3d 403, 409.

After carefully reviewing the record, we find that relator does not meet the

extraordinarily high standard set forth by the Louisiana Supreme Court to state a

bona fide claim of actual innocence. At his 2000 trial, relator not only relied on a

self-defense theory but testified that he shot the victim. Specifically, at trial, relator

testified that “As the car was coming, I just ducked down like this and started

shooting the gun. It was so powerful, it was just going everywhere.” Twelve years

later, in 2012, relator first advanced an alternate and inconsistent defense that he was

not the shooter. Clearly, relator was aware that he could have presented a defense

that he was not the shooter given that he still admits that he was present during the

crime. Thus, it is highly suspicious that he waited so many years to raise it and

makes the reliability of the recently-obtained affidavits presented in the second

APCR questionable, particularly given that they are not supported by any other

documentation. Further, even if relator is now being truthful that he lied to the police

and perjured himself at trial, he does not meet the burden of proving the

“extraordinary high standard” that he is actually innocent, even in his recent attempt

to set forth alleged newly discovery evidence.

In addition, Louisiana case law also provides that recantations “are highly

suspicious,” and except in rare exceptions, a new trial should not be granted on the

basis of a recantation because it is tantamount to perjury so as to discredit the witness

at a later trial. State v. Clayton, 427 So.2d 827, 822 (La. 1982) and State v. McClain,

04-98 (La. App. 5 Cir. 6/29/04), 877 So.2d 1135, writ denied, 04-1929 (La.

12/10/04), 888 So.2d 835. In State v. Watts, 00-602 (La. 1/14/03), 835 So.2d 441,

the court considered the defendant’s newly discovered evidence claim meritorious

but it still stated, “It is appropriate to be skeptical when newly discovered evidence

is offered after a trial. Such evidence must be thoroughly and cautiously

scrutinized.” In the case at hand, relator’s alternate and inconsistent defense is based

on a recantation that he falsely confessed at the urging of the real shooter, Duy

Hoang. Further, relator seeks relief based on his co-defendant’s recantation of the

events surrounding the shooting. He also provides the March 7, 2019 affidavit of

Quoc Nguyen, an independent witness, who now attests that he told JPSO that Duy

Hoang was the shooter. Relator, Duy Hoang, and James Oh were all indicted for

second degree murder in this matter. However, relator cannot “switch places” with

Duy Hoang at this late stage in the proceedings in complete contradiction to the

defense he presented at trial and to which he confessed at trial. Even if relator is

now being truthful that he lied to the police and perjured himself at trial, he has not

set forth any other documents or evidence that would now substantiate his

excuses any procedural default; 3) whether the district court erred in finding that his claim of actual

innocence was repetitive when the Louisiana Supreme Court recognized actual innocence as a stand-alone

claim while the second APCR was pending; 4) whether the district court erred in finding that relator did not

timely submit the newly discovered evidence in support of his post-conviction claims; 5) whether the district

court erred in finding that his claims of ineffective assistance of counsel are not cognizable in an APCR;

and 6) whether the district court erred in procedurally defaulting the second APCR without first allowing him

discovery on disputed issues of fact that cannot be resolved on the pleadings and without first conducting

an evidentiary hearing.

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recantation or the new statements from witnesses, or like in Pierre, he has not made

an “affirmative case of ‘conclusive exoneration.’”

Although intertwined with his actual innocence argument, we next consider

relator’s arguments regarding the alleged newly discovered evidence. In his writ

application, relator asserts that he did not know at the time of trial, or in the early

stages of his first post-conviction proceedings, that there was evidence known to the

State that corroborated what actually happened and that was inconsistent with his

false confession.

On remand, we instructed 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.” State

v. Kang, supra. The March 14, 2019 order indicates that the district court considered

relator’s alleged “new” evidence and set forth reasons the evidence failed to qualify

as newly discovered evidence under La. C.Cr.P. art. 930.8. We find that the district

court properly determined that “The facts upon which all of the claims are predicated

were either located in the court record months prior to trial, known to trial counsel,

and/or known to the petitioner at the time of the shooting.” In light of the fact that

the alleged new evidence is to further an alternate and inconsistent defense that

relator was not the shooter but was present at the shooting, we find this conclusion

an accurate summation. Because relator was present at the shooting, he had

knowledge of the facts that he now seeks to provide evidence to support. The

exception in La. C.Cr.P. art. 930.8(A)(1) applies to “facts upon which the claim is

predicated were not known to the petitioner or his prior attorneys.”

Further, we cannot say the district court erred in finding that none of the

alleged new evidence qualified under La. C.Cr.P. art. 930.8, after we remanded for

further consideration on that issue. The Buras report, Quoc Nguyen’s statement, the

substantive portion of his grand jury testimony, and line-ups were located in the

court record and provided to the defense prior to trial. In his affidavit, relator’s father

acknowledges that the report and statements were found in trial counsel’s files. As

recognized by the district court, newly discovered evidence and late discovered

evidence are not the same. While relator presents evidence pertaining to his false

confessions for pleading guilty for Duy Hoang, committing perjury at trial, or being

coerced by co-defendants to confess, none of these new arguments qualify as “newly

discovered evidence” because relator was present at the time of the shooting and his

obtaining this evidence results from his late decision to try to prove that he was not

the shooter. Given that relator relied on self-defense at trial, it appears unlikely he

would have presented this evidence in light of the fact that it contradicts a defense

based on self-defense.

We also find no error in the district court’s conclusion that relator is not

entitled to application of the exception to the time bar under La. C.Cr.P. art.

930.8(A)(1) because he cannot meet the due diligence requirement.

As to relator’s argument that ineffective assistance of post-conviction

counsels excuses any procedural defects, we find that the district court did not err in

finding that this claim was procedurally barred from review as it is not a claim

cognizable in Louisiana. See La. C.Cr.P. art. 930.3. This Court is bound by the

Louisiana Supreme Court’s ruling in State v. Deloch, 13-1975 (La. 5/16/14), 140

So.3d 1167. In Deloch, the Louisiana Supreme Court held that unlike the rule

allowing federal courts conducting habeas review of final state court convictions to

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consider the merits of a claim otherwise procedurally defaulted, that decision is not

applicable to post-conviction claims raised in state court. Id. In other words,

relator’s claim that his post-conviction counsels were ineffective does not excuse

procedural defects in Louisiana post-conviction proceedings. Id. See also In re

Sepulvado, 707 F.3d 550, 553 (5th Cir. 2013), which held that the ruling in Martinez

v. Ryan does not confer a constitutional right to effective assistance of post-

conviction counsel nor does it allow a defendant to present an otherwise procedurally

defaulted ineffective assistance of counsel claim. Martinez, 566 U.S. 1, 132 S.Ct.

1309, 182 L.Ed. 2d 272 (2012) (holding that inadequate assistance of counsel at

initial-review collateral proceedings may establish cause for a prisoner’s procedural

default of a claim of ineffective assistance at trial).

After careful review of the instant writ application, the State’s opposition to

the application, and all the documents presented by the parties, we find no error in

the district court’s March 14, 2019 ruling summarily denying the second APCR as

untimely and successive as well as denying the motion to supplement, and the

motion to supplement with newly discovered evidence. Accordingly, we deny this

writ.

Gretna, Louisiana, this 17th day of March, 2020.

SJW

JGG

MEJ

6

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON

FREDERICKA H. WICKER

CHIEF DEPUTY CLERK

JUDE G. GRAVOIS

MARC E. JOHNSON

ROBERT A. CHAISSON SUSAN BUCHHOLZ

STEPHEN J. WINDHORST

FIRST DEPUTY CLERK

HANS J. LILJEBERG

JOHN J. MOLAISON, JR. FIFTH CIRCUIT

MELISSA C. LEDET

JUDGES 101 DERBIGNY STREET (70053)

DIRECTOR OF CENTRAL STAFF

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX

www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN

TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS

DAY 03/17/2020 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF

THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY

COUNSEL, AS LISTED BELOW:

19-KH-227

E-NOTIFIED

Avery B. Pardee (Relator) Terry M. Boudreaux (Respondent)

Darren A. Allemand (Respondent) Thomas J. Butler (Respondent)

MAILED

Michael W. Magner (Relator) Honorable Paul D. Connick, Jr.

Attorney at Law (Respondent)

201 St. Charles Avenue District Attorney

50th Floor Twenty-Fourth Judicial District

New Orleans, LA 70170 200 Derbigny Street

Gretna, LA 70053