Petition for Writ of Certiorari — Jae Yung Kim, Petitioner v. Debbie Asuncion, Warden

No. ____________

IN THE

JAE YUNG KIM

Petitioner,

v.

A.M. GONZALES

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

HILARY POTASHNER

Federal Public Defender

JELANI J. LINDSEY*

LAUREN COLLINS*

Deputy Federal Public Defender

321 East 2nd Street

Los Angeles, California 90012-4202

Telephone: (213) 894-2854

Facsimile: (213) 894-0081

Attorney_Email@fd.org

Attorneys for Petitioner

*Counsel of Record

QUESTION PRESENTED

Did the Ninth Circuit misapply the standard for the issuance of a certificate

of appealability (“COA”) articulated by this Court in such cases as Buck v. Davis,

137 S. Ct. 759 (2017), Miller-El v. Cockrell, 537 U.S. 322 (2003), and Slack v.

McDaniel, 529 U.S. 473 (2000), in denying Petitioner’s request for a COA, where

Petitioner made a substantial showing that his facially-untimely petition for habeas

corpus should still be considered on the merits because he is actually innocent and

entitled to equitable tolling?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

TABLE OF AUTHORITIES ......................................................................................... iii

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

I.

ORDERS AND OPINIONS BELOW .................................................................. 1

II.

JURISDICTION .................................................................................................. 1

III.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............. 2

IV.

STATEMENT OF THE CASE ............................................................................ 3

A.

V.

Facts Material to the Consideration of the Question Presented ............ 3

1.

State Court ..................................................................................... 3

2.

Federal Habeas Proceedings ......................................................... 6

a.

District Court ...................................................................... 6

b.

Ninth Circuit ....................................................................... 8

REASONS FOR GRANTING THE WRIT.......................................................... 8

A.

Kim Has Meet the COA Standard ........................................................... 8

1.

Kim is Entitled to Equitable Tolling............................................. 9

a. Kim Faced Extraordinary Circumstances .............................. 10

b. Kim Was Diligent .................................................................... 11

2.

B.

VI.

Kim Is Actually Innocent ............................................................ 12

Kim’s Underlying Claims Are Meritorious ........................................... 15

CONCLUSION .................................................................................................. 17

INDEX TO APPENDICES .......................................................................................... 18

ii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Brady v. Maryland,

373 U.S. 83 (1963) .....................................................................................................................4

Buck v. Davis,

137 S. Ct. 759 (2017) .................................................................................................................9

Calderon v. U.S. Dist. Court (Beeler),

128 F.3d 1283 (9th Cir. 1997) .................................................................................................11

Calderon v. U.S. Dist. (Kelly),

163 F.3d 530 (9th Cir. 1998) ...................................................................................................12

Holland v. Florida,

560 U.S. 631 (2010) .......................................................................................................9, 11, 12

House v. Bell,

547 U.S. 518 (2006) .................................................................................................................12

Jones v. Blanas,

393 F.3d 918 (9th Cir. 2004) ...................................................................................................10

Lambright v. Stewart,

220 F.3d 1022 (9th Cir. 2000) .................................................................................................16

McQuiggin v. Perkins,

569 U.S. 383 (2013) .....................................................................................................12, 13, 15

Miller-El v. Cockrell,

537 U.S. 322 (2003) ...................................................................................................................8

Rhines v. Weber,

544 U.S. 269 (2005) ...................................................................................................................7

Schlup v. Delo,

513 U.S. 298 (1995) .................................................................................................................12

Silva v. Woodford,

279 F.3d 825 (9th Cir. 2002) ...................................................................................................16

Slack v. McDaniel,

529 U.S. 473 (2000) ...................................................................................................................8

iii

Tennard v. Dretke,

542 U.S. 274 (2004) ...............................................................................................................8, 9

Federal Constitution, Statutes and Court Rules

28 U.S.C. § 1254 ..............................................................................................................................1

28 U.S.C. § 2253 ....................................................................................................................1, 2, 16

28 U.S.C. § 2254 .................................................................................................................... passim

28 U.S.C. § 2255 ..............................................................................................................................2

U.S. Const. amend. V...................................................................................................................... 7

U.S. Const. amend. VI .............................................................................................................2, 6, 7

U.S. Const. amend. XIV ..............................................................................................................2, 7

U.S. Supreme Court Rule 10(c) .......................................................................................................9

U.S. Supreme Court Rule 13............................................................................................................2

State Statutes

Cal. Evid. Code § 352 ......................................................................................................................6

Cal. Pen. Code § 187........................................................................................................................4

iv

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Jae Yung Kim petitions for a writ of certiorari to review the judgment of the

United States Court of Appeal for the Ninth Circuit in his case.

I.

ORDERS AND OPINIONS BELOW

The Ninth Circuit issued an order on November 5, 2018, denying Petitioner’s

request for a certificate of Appealability on the claims he raised in the his district

court habeas petition. Pet. App. 1. The district court adopted the Report and

Recommendation of the magistrate judge, dismissed Kim’s habeas corpus petition

with prejudice, and entered judgment against him. Pet. App. 7, 8, 9-26.

II.

JURISDICTION

On November 5, 2018, the Ninth Circuit denied Kim’s request for a COA

pursuant to 28 U.S.C. § 2253(c)(2). Pet. App. 1. This Court has jurisdiction pursuant

to 28 U.S.C. § 1254(1). Petitioner Jae Yung Kim is serving a sentence of fifty years

to life for a crime he did not commit. He filed a habeas corpus petition under 28

U.S.C. § 2254 challenging the constitutionality of his conviction and sentence. The

district court dismissed his petition with prejudice on procedural grounds. Pet. App.

1

7. He moved for a certificate of appealability in the Ninth Circuit, and his request

was denied. Pet. App. 1. This petition is filed within 90 days of the entry of

judgment pursuant to Supreme Court Rule 13.

III.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Sixth Amendment of the U.S. Constitution

The Sixth Amendment to the United States Constitution provides, in

pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to …

have the Assistance of Counsel for his defense.”

Fourteenth Amendment of the U.S. Constitution

The Fourteenth Amendment to the United States Constitution provides, in

pertinent part: “No State shall . . . abridge the privileges . . . of citizens of the

United States . . . nor shall any State deprive any person of life, liberty, or property,

without due process of law.”

28 U.S.C. § 2253(c)

(1) Unless a circuit judge issues a certificate of appealability, an appeal may not be

taken to the courts of appeal from –

(A) the final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court, or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant

has made substantial showing of the denial of a constitutional right.

2

IV.

STATEMENT OF THE CASE

A.

Facts Material to the Consideration of the Question Presented

1.

State Court

On March 6, 2003, after a jury trial, the Superior Court of Los Angeles

County sentenced Kim to a term of fifty years to life for the murder of Ho Yoon Lee

and the attempted murders of Tae Yong Kong, Sung Moon, and Young Jo Lee. (8

RT 1 1123-26.) Kim is a Korean national who needed the aid of an interpreter

through the entirety of his trial. (See, e.g., 2 RT A-2; 8 RT 1102-03.) Kim appealed

his conviction to the California Court of Appeal (Case No. B070775). (See Dkt. 13,

Ldg. 4.) On October 29, 2004, the court of appeal affirmed Kim’s convictions and

sentence in all respects, except it remanded his case to the trial court to strike a

concurrent sentence enhancement. (Dkt. 13, Ldg. 7.) Kim filed a petition for review

in the California Supreme Court, which was denied on January19, 2005. (Dkt. 13,

Ldg. 8.) The statute of limitations began to run on April 18, 2005.

On or about March 2005, Kim’s parents, Moon Baik and Sung Ja Kim,

retained David Elder to represent Kim in his habeas corpus proceedings. (Dkt. 17,

Ex. B.) On March 14, 2005, Elder wrote Kim and explained that he had represented

1 “RT” refers to Reports Transcript for Los Angeles Superior Court case

number BA204515-02, which were lodged in the district court, case number CV 1489-R, docket number (“Dkt.”) 13, lodgment number (“Ldg.”) 2.

3

“several people that [Kim knew] including Batman, Harry, Dong, and others. As you

know all of them are on the street.” (Id.)

Elder and Kim signed a retainer agreement. (Dkt. 17, Ex. B.) The agreement

stated: “Client retains Attorney to investigate, research, and file a Writ of Habeus

[sic] Corpus on behalf of Client Jae Yung Kim in his California Superior Court Case,

formerly pending in Los Angeles Superior Court, Central Division for alleged

violations of Penal Code section 187.” (Id. at 19.) Kim and his family agreed to pay

Elder $20,000 for his legal services. (Dkt. 17, Ex. B, at 20; Ex.7, Billing Invoice.)

On January 18, 2006, Elder filed a petition for writ of habeas corpus on

Kim’s behalf in the California Court of Appeal. (Dkt. 13, Ldg. 10.) He did not first

file a petition in the superior court. The petition raised two claims, including a

claim based on Brady v. Maryland, 373 U.S. 83 (1963), and an ineffective assistance

of trial counsel claim. (Id.) On April 11, 2006, the court of appeal summarily denied

the petition. (Id.) Elder did not file a petition for review in the California Supreme

Court. (Dkt. 12 at 2.)

On April 11, 2007, Elder filed a second habeas petition on Kim’s behalf in the

California Court of Appeal alleging newly discovered evidence and a Brady

violation. (Dkt 13, Ldg. 12 at 43-44.) He did not first file a petition in the superior

court. On May 4, 2007, the court of appeal denied the petition. (Dkt. 12 at 2; Dkt.

13, Ldg. 13.) Elder did not file a petition for review in the California Supreme

Court. (Dkt. 12 at 2.)

4

On November 14, 2007, Kim’s family retained Carla Johnson to represent

Kim in his habeas corpus proceedings. (Dkt. 32, Ex. 4, E. Turlington Decl., ¶ 10.)

Kim’s parents initially paid Johnson $2,000 for her legal services and also paid her

$1,000 to visit Kim at Centinela State Prison. (Dkt. 32, Ex. 4, E. Turlington Decl., ¶

10.) Johnson determined that Antiterrorism and Effective Death Penalty Act’s

(“AEDPA”) one-year federal statute of limitations had expired. (See Dkt. 32, Ex 4,

E. Turlington Decl., ¶ 10; see also Dkt. 32, Ex. 6, A. Mabaquiao Decl., ¶ 3.) She did

not file a petition in any court, at least in part, because of the statute of limitations.

(Dkt. 32, Ex. 6, A. Mabaquiao Decl., ¶ 4.) Johnson did not seek equitable tolling for

Kim in federal court.

On August 3, 2013, Kim filed a “Writ of Habeas Corpus; Writ of Error Coram

Nobis; Alternative Writ” in Los Angeles Superior Court. (Dkt. 12 at 4; Dkt. 13, Ldg.

20.) He alleged that his constitutional rights were violated because of reversible

error, prosecutorial misconduct, ineffective assistance of counsel, denial of due

process, and an unauthorized sentence. (Dkt. 13, Ldg. 20 at 3-4.) On September 3,

2013, the superior court denied the petition in a minute order. (Dkt. 13, Ldg. 21.)

Kim filed the same petition in the California Court of Appeal on September 27,

2013. (Dkt. 12 at 4; Dkt. 13, Ldg. 22.) On October 23, 2013, the court of appeal

summarily denied Kim’s petition on the merits, and also denied the newlydiscovered evidence claim as repetitive and raised an rejected on appeal, and the

Brady claim as repetitive. (Dkt. 13, Ldg. 23.) On October 28, 2013, Kim filed a

5

Petition for Review in the California Supreme Court, which was denied on

December 11, 2013. (Dkt. 13, Ldg. 24, Ldg. 25.)

2.

Federal Habeas Proceedings

a.

District Court

On January 6, 2014, Kim filed a habeas petition in district court. (Dkt 1.) The

pro se petition raised four claims: (1) that his sentence is incorrect and illegal

because the trial court failed to exclude evidence of his prior arrest pursuant to

California Evidence Code section 352; (2) that he was denied the effective assistance

of counsel because his trial counsel failed to do any investigation, even though he

was aware of crucial information concerning the defense; (3) that the prosecutor

deprived him of his Constitutional right to a fair trial by failing to disclose favorable

evidence to the defense, which would have helped to exonerate him; (4) that the

prosecutor violated Brady by failing to disclose evidence relating to the credibility of

witnesses. (Dkt. 1 at 2-11.) Respondent moved to dismiss the petition as untimely.

(Dkt.12.) On January 12, 2015, the district court appointed counsel to represent

Kim. (Dkt. 18.)

In his Supplemental Opposition to Respondent’s Motion to Dismiss, Kim

asked the district court to find the pro se petition to be timely based on either one of

two theories: actual innocence or equitable tolling. (Dkt. 32.)

After briefing on issues of exhaustion and procedural default, on April 18,

2016, Kim moved to amend his petition, and Respondent opposed. 2 (Dkt. 72.)

2 The proposed first amended petition raised the following four claims: (1) Jae

Yung Kim was denied his Sixth Amendment right to the effective assistance of

6

On September 20, 2016, the district court denied Kim’s motion to amend

without prejudice because Kim’s First Amended Petition (“FAP”) was a mixed

petition containing both exhausted and unexhausted claims. (Dkt. 82.) The district

court stated that Kim could file a request for a stay pursuant to Rhines v. Weber,

544 U.S. 269, 277 (2005). (Id.)

On October 19, 2016, Kim requested a stay to exhaust the claims in the FAP

under Rhines. (Dkt. 83.) The district court, acknowledging the complex procedural

issues in this case, denied Kim’s request for a Rhines stay without prejudice and

explained that it could not properly determine whether a Rhines stay is warranted

here before it decided the issue of timeliness. (Dkt. 97.)

Ultimately, the magistrate issued its Report and Recommendation (R&R)

denying Kim’s petition on timeliness grounds. Pet. App. 34. Kim filed objections

(Dkt. 102), and the district court adopted the R&R and dismissed the petition with

prejudice on February 26, 2019. Pet. App. 7 The district court also denied Kim a

certificate of appealability. Pet. App. 5. Kim timely filed a notice of appeal. Pet. App.

2.

counsel; (2) the prosecution violated Kim’s constitutional rights by not turning over

impeachment and exculpatory evidence; (3) Kim’s conviction and sentence must be

vacated because there was insufficient evidence that he was present and committed

the crimes; (4) Kim’s constitutional rights were violated because the trial court

should have given the jury a second-degree murder lesser included offense

instruction.

7

b.

Ninth Circuit

Kim filed a COA motion in the Ninth Circuit, which was denied on the basis

that Kim failed to make “a substantial showing of the denial of a constitutional

right.” Pet. App. 1. The procedural issues at play in the district court were whether

Kim was entitled to equitable tolling or the actual innocence exception to the

AEDPA statute of limitations, so that he could have his constitutional claims based

on the Fifth, Sixth and Fourteenth Amendments considered on the merits.

V.

REASONS FOR GRANTING THE WRIT

A.

Kim Has Meet the COA Standard

In Slack v. McDaniel, 529 U.S. 473, (2000), this Court explained that: “a COA

may not issue unless the applicant has made a substantial showing of the denial of

constitutional right.” Id. at 483-84 (internal quotation marks omitted). The

“substantial showing” standard” is “relatively low.” Id. at 483. A petitioner can

make “a substantial showing” when “reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different

manner.” Slack, 529 U.S. at 484 (citing Barefoot v. Estelle, 463 U.S. 880, 893, n. 4

(1983)). A “substantial showing” is also made when “jurist could conclude that the

issue[] presented [is] adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Following Miller-El, this Court

reversed the Fifth Circuit’s denial of a petitioner’s request for a certificate of

appealablity because the court only “pa[id] lipservice to the principles guiding the

issuance of a COA[.]” Tennard v. Dretke, 542 U.S. 274, 282 (2004). The Court

8

reiterated in Buck v. Davis, 137 S. Ct 759 (2017), that the “COA inquiry is not

coextensive with a merits analysis.” Id. at 773-74. The Court emphasized that a

circuit court of appeals cannot “invert[] the statutory order of operations and first

[decide] the merits of an appeal,…then [justify] the denial of a COA” because that

would amount to the court “deciding an appeal without jurisdiction.” Id.

This Court may grant certiorari when “a United States court of appeal has

decided an important federal question in a way that conflicts with relevant

decisions of this Court.” Supreme Court Rule 10(c). Here, the Ninth Circuit only

paid lip service to the Court’s COA principles when it denied Kim a COA after

finding that jurists of reason would not find it debatable that 1) Kim was denied his

constitutional rights, and 2) the district court was wrong in its procedural ruling.

See Tennard, 542 U.S. at 282. At the very least, Kim has met the relatively low

standard the issuance of a COA, and reasonable jurists could conclude that Kim

established his entitlement to proceed on his underlying habeas claims based on his

showing of entitlement to equitable tolling and actual innocence.

1.

Kim Is Entitled to Equitable Tolling

The statute of limitations in § 2244(d) is subject to equitable tolling in

appropriate cases. Holland v. Florida, 560 U.S. 631, 648 (2010). To qualify for

equitable tolling, a petitioner must establish that: (1) some extraordinary

circumstance stood in his way and prevented timely filing of the petition; and (2) he

has been pursuing his rights diligently. Holland, 560 U.S. at 648. The purpose of

the equitable tolling doctrine “is so to soften the harsh impact of technical rules

9

which might otherwise prevent a good faith litigant from having a day in court.”

Jones v. Blanas, 393 F.3d 918, 929 (9th Cir. 2004) (internal citations omitted).

a. Kim Faced Extraordinary Circumstances

Kim retained Elder approximately twelve months before the AEDPA statute

of limitations period expired. (Dkt. 12 at 6; Dkt. 13, Ldg. 10, Ex. F, D. Elder Decl.,

at 080.) Elder’s first failure was in not maintaining adequate communications with

Kim. Elder visited Kim only once. (Ex. 5, D. Elder Decl.,¶ 4.) Although Elder

represented Kim for over two years, he had not more than two telephone

conversations with Kim. (Id.) Elder does not remember if he even notified Kim when

the 2006 and 2007 habeas petitions were denied by the court of appeal. (Ex .4, E.

Turlington, ¶ 7).

Second, Elder failed to do competent legal work on Kim’s behalf. This is

particularly the case for the 2006 state habeas petition. (Dkt. 13, Ldg. 10.)

Although Kim and his family paid Elder a grand total of $20,000 to represent Kim

during his habeas corpus proceedings (Dkt. 17, Ex. B, at 20; ex. 7, Billing Invoice),

Elder performed minimal investigations (Ex .4, E. Turlington, ¶ 5). Elder did not

attend any workshops or seminars on the best practices for conducting an

investigation to prepare for the filing of writ of habeas corpus before or during his

representation of Kim. (Ex. 4, E. Turlington Decl., ¶ 5.) Therefore, Elder did not

know how to conduct the necessary investigation to raise claims in habeas petitions

at the time he agreed to represent Kim, and he did not take any steps towards

acquiring that knowledge.

10

Elder presented two constitutional claims in the 2006 state habeas petition.

The evidence that Elder presented in the 2006 petition to support these two claims

was primarily the same evidence that Kim’s appellate counsel presented on direct

appeal. Elder re-used entire passages from Kim’s opening brief on direct appeal.

The 2006 petition was denied on April, 11 2006 (Dkt. 13, Ldg. 11), and Elder failed

to file a subsequent habeas petition or a petition for review in the California

Supreme Court. Thus, the statute of limitations for Kim to raise federal Claims

One, Two, and Three in a federal habeas petition expired on July 11, 2006. (Dkt. 12

at 7.) But Elder continued to represent Kim until 2007, when Carla Johnson took

over. Under these circumstances, Elder’s misconduct constituted abandonment.

Elder’s misconduct “seriously prejudiced [Kim] who thereby lost what was likely his

single opportunity for federal habeas review of the lawfulness of his

imprisonment[.]” Holland v. Florida, 560 U.S. 631, 653(2010).

b. Kim Was Diligent

Kim was reasonably diligent in pursuing his rights despite Elder’s

misconduct. First, he reasonably relied on Elder to advocate and preserve his rights

on habeas corpus. Then, upon realizing that he could not rely upon Elder to

represent his rights, Kim promptly retained Carla Johnson to represent him in

November of 2007. (Ex. 4, E. Turlington Decl., ¶ 2.) Johnson determined that the

federal statute of limitations under AEDPA had run during the time Kim was

represented by Elder. (Ex. 6, A. Mabaquiao Decl., ¶ 3.) Johnson could have filed a

federal habeas petition on Kim’s behalf and sought equitable tolling, but she did

not. Equitable tolling has been available in the Ninth Circuit since 1997. Calderon

11

v. U.S. Dist. Court (Beeler),128 F.3d 1283, 1289 (9th Cir. 1997) (overruled in part on

other grounds by Calderon v. U.S. Dist. (Kelly),163 F.3d 530, 540 (9th Cir. 1998). At

the very least, Johnson could have filed a federal petition containing Kim’s

exhausted direct appeal claims. Instead, she ceased her representation of Kim in

2010 without filing anything. (Ex. 4, E. Turlington Decl., ¶ 10.)

Kim remained diligent to the extent he was able after Johnson’s

representation of him ended. The diligence required of a habeas petitioner is

reasonable diligence, not “maximum feasible diligence.” Holland, 560 U.S. at 653.

2. Kim Is Actually Innocent

Even if Kim’s claims are untimely, they should still be considered on the

merits because he is actual innocent. In McQuiggin v. Perkins, 569 U.S. 383, 398

(2013), this Court held that there is an actual innocence exception to the AEDPA

statute of limitations. Under Perkins, a habeas petitioner’s late filing may be

excused if he presents new evidence that shows it is more likely than not that no

reasonable juror would have convicted him. Id. at 399. This case followed Schlup v.

Delo, 513 U.S. 298, 315-16 (1995), which established the actual innocence “gateway”

to claims that were otherwise procedurally defaulted. See also House v. Bell, 547

U.S. 518, 554 (2006) (habeas petitioners seeking to pass through the innocence

gateway must show that, in light of the new evidence, it is more likely than not that

no reasonable juror would have found the petitioner guilty beyond a reasonable

doubt).

A petitioner may qualify for the actual innocence exception even if he was not

diligent in seeking habeas relief. Perkins, 568 U.S. at 399. Delay should not be

12

counted “as an absolute barrier to relief, but as a factor in determining whether

actual innocence has been reliably shown.” Id. at 385.

Here, no reasonable juror would have convicted Kim if they had heard the

testimony of Samuel Tokko. Tokko could have testified that Kim was not in the car

that opened fire upon the victims on the day of the shooting, because Kim was with

Tokko. (See Dkt. 35, Ex. 1, S. Tokko Decl., ¶¶ 2-3 and Ex. 4, E. Turlington Decl., ¶

11.)

Kim was convicted based on a theory of aiding and abetting. (Dkt. 13, Ldg. 7

at 7.) The jury rejected the claim that Kim was the shooter. Instead, the jury

convicted Kim on the theory that he drove the shooter, who opened fire upon the

vehicle carrying Ho Yoon Lee, Tae Young Kong, Song Moon, and Young Jo Lee. (7

RT 918.)

Kim’s identification was an issue at trial. Although the surviving victims of

the shooting identified Kim as one of the occupants of the vehicle that opened fire

upon them in their pre-trial statements and preliminary hearing testimony, they

failed to identify Kim as an occupant of the vehicle during the trial. Song Moon

admitted that he lied during his preliminary hearing testimony when he identified

Kim as one of the occupants in the car that opened fire upon their vehicle. (3 RT

368, 370-71.) Similarly, Young Jo Lee admitted he lied when he told police that Jae

was in the vehicle that opened fire on them. (5 RT 596-98.) Lastly, Tae Yong Kong’s

preliminary hearing testimony was read into evidence because he was unavailable

as a witness to testify at trial. (6 RT 786.) Although Tae Young Kong told police that

13

he believed Kim to be the shooter (6 RT 783-84, 820, 841), he testified at the

preliminary hearing, under an immunity agreement that would only protect him if

he told the truth, that he did not see the face of the driver, the front passenger, or a

supposed passenger in the back seat because he ducked down upon hearing shorts

fired. (6 RT 782-83, 845-46.)

Furthermore, in a declaration signed under the penalty of perjury on October

13, 2009, a surviving victim of the June 30, 2000 shooting, Young Jo Lee states that

he knew Kim was not present during the shooting. (See Ex. 2, Y. Lee Decl.) Young

Jo Lee declares that he initially said Kim and Dong Rib Lee were occupants in the

car at the urging of Los Angeles Police Officer Ron Kim. (Id.) The deputy district

attorney came to visit Young Jo Lee in the holding tank the night before he took the

witness-stand, and he told the deputy district attorney that Kim was not at the

shooting. (Id.) But the deputy district attorney “didn’t want to hear the truth.” (Id.)

Kim’s federal habeas counsel uncovered new evidence, in which Tokko

declared under penalty of perjury that he met Kim in the late evening of the day

before the shooting. (See Dkt. 35 Ex. 1, S. Tokko, Decl., ¶ 2; and Ex. 4, E. Turlington

Decl., ¶ 11.) They went to dinner at a pub in Koreatown. (See Dkt. 35 Ex. 1, S.

Tokko, Decl., ¶ 2.) After dinner, they stayed at the pub and continued drinking. (Id.)

Shortly after midnight, Kim received a phone call and spoke for a while on his cell

phone. (Id.) They left the pub, and Tokko rode in Kim’s black SUV to the Basic

nightclub. (Id.) Tokko stayed in the car while Kim went inside and talked to

someone for about five minutes. (Id.) They went to the liquor store where Kim

14

worked after Kim came out of the club.(Id.) Kim dropped Tokko off at an apartment

at Hobart Street at around 3 a.m. on the day of the shooting. (Id.) Tokko played

poker at the apartment and ended up spending the night there. (Id.)

In light of the new evidence—the declarations of Sam Tokko and Young Jo

Lee—no reasonable jury would have convicted Kim of murder and attempted

murder under an aiding and abetting theory, because it is clear that Kim was with

Tokko at the relevant time frame, and could not have been the driver involved in

the shooting. Perkins, 669 U.S. at 398. The trial testimony establishes that the

surviving victims did not see Kim in the car that opened fire upon them on June 30,

2000. Both Tokko’s declaration and Young Jo Lee’s declaration provide evidence

that, indeed, Kim was not in the car.

This new alibi evidence would have made a difference. During closing

argument, the prosecutor highlighted the importance of alibi testimony:

I will tell you that you can bet that if there were anyone

who could say that they were with the defendant on June

30th before 2 o’clock in the morning and that he was

somewhere else other than driving the car at the shooting,

that the defense would have brought that witness in. But

you didn’t hear from that witness because that witness

doesn’t exist because the defendant was the driver.

(7 RT 992.) This evidence is all the more important given the surviving victims’

problems identifying Kim.

B. Kim’s Underlying Claims Are Meritorious

Finally, Kim’s underlying claims are meritorious, in order to be granted a

COA, the applicant must make “a substantial showing of the denial of a

15

constitutional right.” 28 U.S.C.§2253(c)(2). Kim need not show that he should

prevail on the merits; he need only show that the issues are not frivolous, affording

him an “opportunity to persuade [the appellate court] through full briefing and

argument of the potential merit of issues that may appear, at first glance, to lack

merit. ”Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000). This is a “modest

standard,” and the Court “must be careful to avoid conflating the standard for

gaining permission to appeal with the standard for obtaining a writ of habeas

corpus.” Silva v. Woodford, 279 F.3d 825, 832 (9th Cir. 2002) (internal quotation

marks omitted).

Kim meets this modest standard. The underlying claims in Kim’s pro se

habeas petition are debatable among jurists of reason. Kim’s pro se ineffective

assistance of counsel claim (pro se Claim II), Kim alleged that his trial counsel

failed to do any investigation despite being aware of crucial information concerning

the case. (Dkt. 1 at 5-6.) Kim’s trial counsel utterly failed to present a defense to

refute the government’s theory of the case; in fact, Kim’s trial counsel failed to raise

a defense altogether. In his prosecutorial misconduct claim (pro se Claim III), Kim

alleged that the prosecutor deprived Kim of his right to a fair trial by withholding

evidence of Officer Ron Kim’s inconsistent testimony prior to Kim’s trial, which

undermined the prosecution’s gang theory of the case. (Id. at 6.) This evidence could

have been used to impeach the state’s witnesses and exonerate Kim. In his Brady

claim (pro se Claim IV), Kim alleged that the prosecutor failed to turn over evidence

that someone else confessed to the shooting. (Id. at 6-7.) This evidence could have

16

INDEX TO APPENDICES

1.

Ninth Circuit Order in case no. 18-55318, filed 11/5/18 .................................... 1

2.

Petitioner’s Notice of Appeal in C.D. Cal. case no.

CV 14-00089-R (AFM), filed 03/09/2018............................................................. 2

3.

Order re Certificate of Appealability in C.D. Cal. case no

CV 14-00089-R (AFM), entered 2/26/2018 ......................................................... 5

4.

Judgment in C.D. Cal. case no. CV 14-00089-R (AFM), entered

2/26/2018 ............................................................................................................. 7

5.

Order Accepting Finings and Recommendation of U.S. Magistrate

Judge in C.D. Cal. case no. CV 14-00089-R (AFM), entered 2/26/18 ............... 8

6.

Report and Recommendation of U.S. Magistrate Judge in C.D. Cal.

case no. CV 14-00089-R (AFM) filed 12/19/17.................................................... 9

7.

California Court of Appeal order denying petition for writ of habeas

corpus in case no. B251657, filed 10/23/2013 ................................................... 35

18