1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

Page - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

KENNY H. CHO, )

)

Petitioner, ) CASE NO. C06-265-MJP-MJB

)

v. ) REPORT AND

) RECOMMENDATION

SANDRA CARTER, )

)

Respondent. )

_________________________________ )

I. INTRODUCTION AND SUMMARY CONCLUSION

Petitioner Kenny H. Cho is a state prisoner currently incarcerated at the Coyote

Ridge Corrections Center in Connell, Washington. He seeks relief under 28 U.S.C. §

2254 from his conviction in King County Superior Court in 2002 on a charge of

rendering criminal assistance in the first degree. After careful consideration of the record

in its entirety, the Court concludes that no evidentiary hearing is required and

recommends that petitioner’s federal habeas petition should be DENIED and this action

should be DISMISSED with prejudice.

//

//

Case 2:06-cv-00265-MJP Document 17 Filed 10/13/06 Page 1 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

Page - 2

II. FACTUAL AND PROCEDURAL HISTORY

A. Background Facts

In an unpublished opinion issued on July 12, 2004, the Washington Court of

Appeals summarized the facts related to petitioner’s conviction as follows:

Joseph Garcia was 14 years old when Kenny Cho initiated him into

the Rolling ‘90s CRIPS gang. By July 1999, when Garcia was 16, the

Rolling ‘90s had a rivalry with the Hoover CRIPS that Garcia described as

a “battle toward each other.” On July 30, 1999, Garcia was with several

members of the Rolling ‘90s–but not Kenny Cho–when they met some

Hoovers in Westway, and a fist fight broke out. The group dispersed when

Garcia fired several shots at the Hoovers, hitting one of them. Cho

subsequently learned about the shooting and the fact that several Hoovers

were looking for Garcia.

On the evening of August 2, Garcia when riding in Cho’s car along

with Sam Turner and Ryan Rodgers. After receiving a page, Rodgers

asked Cho to drive to Westway so that Rodgers could complete a drug

deal. Wanting to avoid the Hoovers and Westway because of the July 30

incident, Cho initially refused, but Rodgers persuaded him. When they

arrived at the same block where the July 30 shooting took place, Rodgers

got out of the car and went into an apartment building, leaving his gun

with Turner.

As Cho, Garcia and Turner waited in the car, several Hoovers

gathered around. One of them, known as “D-Ray,” came up to the car and

began pounding on the driver’s window, shouting for Cho to get out of the

car. Because the windows were tinted such that people inside the vehicle

could see out but people outside could not see in, Cho rolled down his

window slightly so that D-Ray could see him. D-Ray, who was wearing

gloves, continued shouting, and began making comments about the July 30

incident. Cho insisted that he did not know anything about the incident. 

Meanwhile, Garcia crouched in the back seat, hoping that D-Ray would

not notice him.

When Rodgers returned to the car and opened the rear passengerside door, Sam Turner, who had been sitting in the back seat, leaned his

upper body out the car door and fired one shot from the gun that Rodgers

had left with him. The bullet struck Eric Solier, who ran away without

realizing, at first, that he had been wounded in the arm. Turner and

Rodgers got back into the car, shut the door, and began yelling at Cho to

drive. Cho attempted to do so, but the car did not move, in that the

gearshift was in park. When the others in the car continued to yell at him

to drive, Cho shifted into drive and drove away, without exceeding the

speed limit. The group went to a park near Turner’s wife’s house, where

Case 2:06-cv-00265-MJP Document 17 Filed 10/13/06 Page 2 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

Petitioner is currently serving time on unrelated robbery and drug manufacturing

convictions; he has not served the community placement term of the conviction he challenges in

this petition. (See Dkt. #16, Ex. 1.)

REPORT AND RECOMMENDATION

Page - 3

they smoked pot and played basketball before going to their respective

homes. On the way to the park they passed near a fire station where police

were known to congregate. Cho did not stop to report the shooting. 

Garcia testified that before Cho drove away, Turner stated that he thought

he had hit one of the Hoovers.

Eric Solier testified that he ran away from the scene when he heard

the shot and only realized later that he had been struck in the arm. He

went to the nearby fire station to obtain help for his gunshot wound, and

reported the shooting to police.

Two days later, on August 4, police arrested Cho on an unrelated

felony warrant, and a detective questioned him about the August 2

shooting. Cho denied that he had been present at the scene of that

shooting.

The State charged Cho with rendering criminal assistance in the

first degree by information filed September 13, 1999. A jury found Cho

guilty on January 13, 2000, but following his successful appeal and

remand from this court, the trial court granted his motion for a new trial

based on juror misconduct.

Cho’s second trial was held July 26 to August 1, 200[2]. Cho

testified at the trial that he had not realized that Turner had leaned out of

the car and fired the shot; instead he thought that one of the Hoovers fired

the shot at the vehicle, and he did not learn that Turner had fired the shot,

and the he probably had hit someone, until later that evening. Cho also

testified that it was significant that D-Ray had been wearing gloves–this

being an indication to gang members that he was armed or intending to

fight. Cho admitted lying to the detective who questioned him about the

incident three days later, stating that he had been frightened either of what

the officer might do, or what his own gang might do to him if he broke the

code of silence required of all members of his gang.

(Dkt. #16, Ex. 5 at 1-4) (footnoted omitted). Petitioner was found guilty by jury verdict,

and on September 20, 2002, he was sentenced to 12 months of confinement, followed by

12 months of community placement.1

 (Dkt. #16, Ex. 2.)

//

Case 2:06-cv-00265-MJP Document 17 Filed 10/13/06 Page 3 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

Page - 4

B. Procedural History

Petitioner appealed to the Washington Court of Appeals, Div. I (“Court of

Appeals”), which affirmed the judgment and sentence in an unpublished opinion on July

12, 2004. (Dkt. #16, Ex. 5.) On March 1, 2005, the Supreme Court of Washington

denied petitioner’s petition review. (Dkt. #16, Ex. 7.) The Court of Appeals issued a

mandate on April 14, 2005. (Dkt. #16, Ex. 10.)

Petitioner filed the present petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 on March 3, 2006. Respondent filed an answer to the petition along with

relevant portions of the state court record. The briefing is now complete and this matter

is ripe for review.

III. GROUNDS FOR REVIEW

Petitioner presents a single ground for relief in his federal habeas petition:

Ground One: Conviction obtained by a violation of Mr. Cho’s United States

Constitutional right to jury unanimity. 

Respondent concedes that petitioner appears to have properly exhausted this claim. 

(Dkt. #14 at 10.)

IV. STANDARD OF REVIEW

A habeas corpus petition shall not be granted with respect to any claim

adjudicated on the merits in the state courts unless the adjudication either: (1) resulted in

a decision that was contrary to, or involved an unreasonable application of, clearly

established federal law, as determined by the United States Supreme Court (“Supreme

Court”); or (2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d). 

Under the “contrary to” clause, a federal habeas court may grant the writ if the

state court arrives at a conclusion opposite to that reached by the Supreme Court on a

Case 2:06-cv-00265-MJP Document 17 Filed 10/13/06 Page 4 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

Page - 5

question of law, or if the state court decides a case differently than the Supreme Court

has on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362,

412-13 (2000). Under the “unreasonable application” clause, a federal habeas court may

grant the writ if the state court identifies the correct governing legal principle from the

Supreme Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case. Id. at 413. The Ninth Circuit has interpreted “an unreasonable

application of law” to mean application that is “clearly erroneous.” Van Tran v. Lindsey,

212 F.3d 1143, 1152-54 (9th Cir.), cert. denied, 531 U.S. 944 (2000).

Additionally, if a habeas petitioner challenges the determination of a factual issue

by a state court, such determination is presumed correct, and the applicant has the

burden of rebutting the presumption of correctness by clear and convincing evidence. 28

U.S.C. § 2254(e)(1).

V. DISCUSSION

Petitioner claims that his conviction was obtained by a violation of his United

States Constitutional right to jury unanimity. He argues “there are no assurances of jury

unanimity because the prosecutor in closing argument sought the verdict based on Cho’s

act of driving away, on Cho’s failure to affirmatively report the crime, and on his denial

to detective Gordon that he was present at the scene, acts that were not a continuing

course of conduct.” (Dkt. #6 at 4.) Respondent contends, inter alia, that the

Washington Court of Appeals’ adjudication of this claim on the merits was not contrary

to, or an unreasonable application of, clearly established federal law. (Dkt. #14 at 13.)

The Sixth Amendment requires a unanimous jury verdict to convict in a federal

criminal trial. Johnson v. Louisiana, 406 U.S. 356, 371, 359, 925 S.Ct. 1620, 32

L.Ed.2d 152 (1972) (Powell, J., concurring). However, the Supreme Court has held that

Case 2:06-cv-00265-MJP Document 17 Filed 10/13/06 Page 5 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

Page - 6

the Fourteenth Amendment does not mandate unanimous verdicts for convictions in

criminal prosecutions in state courts. Johnson, 406 U.S. at 359, 92 S.Ct. 1620; see also

Apodaca v. Oregon, 406 U.S. 404, 410-411, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). 

Therefore, petitioner was not entitled to jury unanimity under the United States

Constitution.

Moreover, the state Court of Appeals analyzed petitioner’s claim under

Washington case law, stating: 

When the State charges one count of criminal conduct and then

presents evidence of multiple criminal acts, the State must elect one act for

the jury to rely on or the trial court must instruct the jury that all must

agree which act is proved beyond a reasonable doubt, in order to ensure

jury unanimity. State v. Love, 80 Wn. App. 357, 360-61, 908 P.2d 395

(1996); State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984). But a

unanimity instruction is not required where the evidence indicates a

continuing course of conduct. Petrich, 101 Wn.2d at 571-72. And neither

is the prosecutor required to make an election when the evidence indicates

an ongoing enterprise. State v. Gooden, 51 Wn. App. 615, 620, 754 P.2d

1000 (1988). Courts must evaluate the underlying facts in a common

sense manner to determine whether the evidence establishes a continuing

course of conduct. Petrich, 101 Wn.2d at 571. If the defendant’s actions

are intended to achieve a singular objective, then the evidence tends to

establish a continuing course of conduct. State v. Fiallo-Lopez, 78 Wn.

App. 717, 724, 899 P.2d 1294 (1995).

Here the prosecutor’s argument regarding the failure to report and

the false statement was directed toward Cho’s intent in driving away from

the scene of the crime and was designed to discredit Cho’s alternative

explanations for his actions. Each time she mentioned the failure to report

or the false statement, the prosecutor described Cho’s actions as

“continuing” to render criminal assistance in order to demonstrate his

intent in driving Turner from and scene and to refute his testimony

regarding why he drove from the scene. Under these circumstances, the

evidence establishes a continuing course of conduct with a singular

objective – to help Turner avoid discovery or apprehension. Cho was not

entitled to a unanimity instruction. And neither was the State required to

make an election.

(Dkt. #16, Ex 5 at 14-15.) A writ of habeas corpus is available under 28 U.S.C. §

2254(a) only on the basis of some transgression of federal law binding on the state

Case 2:06-cv-00265-MJP Document 17 Filed 10/13/06 Page 6 of 7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

REPORT AND RECOMMENDATION

Page - 7

courts. Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S.

1021 (1986). It is unavailable for alleged error in the interpretation or application of

state law. Id. Thus, because petitioner had no federal constitutional right to a

unanimous jury verdict and because assessment of this claim on the merits would 

involve interpretation and application of state law, this Court concludes that petitioner is

not entitled to federal habeas relief.

VI. CONCLUSION

For the reasons set forth above, this Court recommends that petitioner’s federal

habeas petition be DENIED, and that this action be DISMISSED with prejudice. A

proposed order accompanies this Report and Recommendation.

DATED this 13th day of October, 2006.

AMONICA J. BENTON

United States Magistrate Judge

Case 2:06-cv-00265-MJP Document 17 Filed 10/13/06 Page 7 of 7