FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DUNG THE PHAM, 

No. 03-17214 Petitioner-Appellant,

D.C. No.

v.  CV-02-01348-PJH

C. A. TERHUNE,

OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted

September 17, 2004—San Francisco, California

Filed March 7, 2005

Before: Robert R. Beezer, William A. Fletcher, and

Raymond C. Fisher, Circuit Judges.

Per Curiam Opinion

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COUNSEL

Cliff Gardner, San Francisco, California, for the petitionerappellant.

Glenn R. Pruden, OFFICE OF THE CALIFORNIA ATTORNEY GENERAL, San Francisco, California, for the

respondent-appellee. 

OPINION

PER CURIAM: 

Dung The Pham, a California state prisoner, appeals the

district court’s denial of his 28 U.S.C. § 2254 petition for a

writ of habeas corpus. In 1998, a jury convicted Pham and his

co-defendant, Son Hoang Nguyen, of first degree murder.

Pham was sentenced to a term of 29 years to life. 

The State and Pham agree that Tong Nguyen was murdered

by two gunmen, and that one of the gunmen was Tien Ha,

who remains at large. At trial, Pham presented a defense arguing that another man, Hoang Tuan, was the second shooter.

On the basis of a license plate identification, Tuan was

arrested on the night of the murder. An eyewitness had also

identified Tuan as one of the assailants in a photo lineup.

While in police custody, Tuan was subjected to a gunshot residue (GSR) test, which was analyzed by state criminalist

Mario Soto. Tuan was later released from custody and was

never charged with Nguyen’s murder. 

At Pham’s trial, the defense called Soto as a witness. Soto

testified that Tuan’s hands contained several particles consistent with, but not unique to, GSR as well as one particle —

a mixture of titanium and antimony with a molten appearance

— inconsistent with GSR. Stating that he was unable to rule

2700 PHAM v. TERHUNE
out environmental sources, Soto testified that the GSR test

was inconclusive. Soto further testified that if he had found a

molten-looking particle containing barium, lead, and antimony or barium and antimony, he could testify conclusively

to the presence of GSR. Prior to trial, Pham’s attorney

requested in a letter that the state disclose expert reports,

statements, and test results, including criminalists’ notes.

Although the state disclosed Soto’s one-page report of conclusions regarding the GSR test, it did not disclose the underlying laboratory notes or raw data before trial, and Pham’s trial

counsel did not seek a court order mandating disclosure. Since

trial, the state has consistently refused Pham’s repeated

requests for the laboratory notes. 

Pham exhausted his claims in state court and filed this

amended habeas petition in the district court. The district

court denied the petition. Pham appeals, arguing that the district court erred in finding that the government’s failure to disclose the underlying notes did not violate Brady v. Maryland,

373 U.S. 83 (1963). In his briefing of several uncertified

issues, Pham further argues that the district court abused its

discretion by declining to order discovery of the notes under

Rule 6(a) of the Federal Rules Governing Section 2254 Cases

(“Rule 6(a)”) and erred in denying his ineffective assistance

of counsel claim. He also argues that the trial court’s jury

instructions violated his rights to due process and trial by jury.

[1] This court reviews de novo the district court’s decision

to deny a 28 U.S.C. § 2254 habeas petition. Clark v. Murphy,

331 F.3d 1062, 1067 (9th Cir. 2003). Denial of a discovery

request under Rule 6(a) is reviewed for abuse of discretion.

See Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir. 1997).

Because Pham’s habeas petition was filed on March 19, 2002,

after the effective date of the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110

Stat. 1214 (1996), AEDPA’s provisions apply. See Delgado

v. Lewis, 223 F.3d 976, 979 (9th Cir. 2000). Under AEDPA,

the scope of review in a habeas case is limited to those issues

PHAM v. TERHUNE 2701
specified in the certificate of appealability (COA). Nardi v.

Stewart, 354 F.3d 1134, 1137 (9th Cir. 2004). The district

court granted a COA only with respect to the Brady issue

raised in Pham’s habeas petition. Although Pham’s Rule 6(a)

discovery request, like his Brady claim, involves the state’s

suppression of the laboratory notes, it is unclear whether the

Rule 6(a) argument falls within the scope of the COA granted

on the Brady issue. 

However, under Ninth Circuit Rule 22-1(e), a habeas petitioner may move to expand the COA by presenting uncertified issues, under a separate heading, in his opening brief.

“Uncertified issues raised and designated in this manner will

be construed as a motion to expand the COA and will be

addressed by the merits panel to such extent as it deems

appropriate.” Ninth Circuit Rule 22-1(e). In evaluating a

request to broaden a COA, this court must determine whether

the petitioner has made a “substantial showing of the denial

of a constitutional right.” Nardi, 354 F.3d at 1138 (quoting

Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999)). 

[2] It is possible to construe the COA that has been granted

on the Brady issue to include the Rule 6(a) discovery issue,

because the notes sought are directly relevant to the Brady

issue. The state has briefed the discovery issue and stated at

oral argument that it does not need to brief it further.

Although we are not certain that we need to do so, out of

abundance of caution we grant Pham’s motion to expand the

COA to encompass his Rule 6(a) claim. 

Under AEDPA, this court must “defer to the state court’s

determination of the federal issues unless that determination

is ‘contrary to, or involved an unreasonable application of,

clearly established Federal law.’ ” Himes v. Thompson, 336

F.3d 848, 852 (9th Cir. 2003) (quoting Lockyer v. Andrade,

538 U.S. 63, 71 (2003)); see also 28 U.S.C. § 2254(d)(1). In

reviewing a state court’s summary denial of a habeas petition,

this court must “look through” the summary disposition to the

2702 PHAM v. TERHUNE
last reasoned decision. See Shackleford v. Hubbard, 234 F.3d

1072, 1079 n.2 (9th Cir. 2000) (citing Ylst v. Nunnemaker,

501 U.S. 797, 803-04 (1991)). However, when no reasoned

state court decision denying a habeas petition exists, the federal court should “perform an ‘independent review of the

record’ to ascertain whether the state court decision was

objectively unreasonable.” Himes, 336 F.3d at 853 (quoting

Delgado, 223 F.3d at 982). 

[3] In evaluating Pham’s Rule 6(a) request for discovery of

the laboratory notes, the district court stated that “[w]ere this

not a petition for writ of habeas corpus, the court would be

inclined to grant Pham’s request for discovery.” Under the

misapprehension that the state court had refused to issue an

order requiring disclosure of the notes, the district court concluded that it was required “to afford more stringent deference

to the state appellate court, which upheld suppression of the

lab notes, than that of an appellate court reviewing the decision of a trial court on direct appeal.” The district court erred

in applying this “stringent deference” to Pham’s Rule 6(a)

claim because there was no state court decision refusing to

order production of the notes. Pham’s trial counsel informally

requested the notes from the state both before and after trial

but never sought a court order to obtain them. 

[4] The district court thus erred in using the highly deferential AEDPA standard in denying Pham’s Rule 6(a) discovery

request. Rule 6(a) provides that a habeas petitioner is entitled

to discovery “if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave

to do so, but not otherwise.” Rule 6(a). The Supreme Court

has stated that Rule 6(a) “is meant to be ‘consistent’ ” with its

holding in Harris v. Nelson, 394 U.S. 286 (1969), in which

the Court held that “where specific allegations before the

court show reason to believe that the petitioner may, if the

facts are fully developed, be able to demonstrate that he is . . .

entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.”

PHAM v. TERHUNE 2703
Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris, 394 U.S. at 300) (alteration in original). Likewise, we

have held that a district court abused its discretion in not

ordering Rule 6(a) discovery when discovery was “essential”

for the habeas petitioner to “develop fully” his underlying

claim. Jones, 114 F.3d at 1009. 

[5] The laboratory notes are “essential” to the full development of Pham’s Brady claim within the meaning of Jones

because they may well contain favorable, material information that would tend to exculpate Pham by inculpating Hoang.

Specifically, Pham contends that titanium and barium are particularly difficult to distinguish, and that Soto may have mistaken barium for titanium when conducting his analysis. This

potential error, if caught, would result in a conclusive finding

of GSR. While a conclusive finding of GSR does not prove

that Hoang actually fired a gun, such forensic evidence would

significantly bolster the defense theory of the case. In light of

the significant amount of other evidence tending to inculpate

Hoang, we cannot say that an increased probability of

Hoang’s having fired a gun would be immaterial under Brady.

[6] We do not reach the merits of Pham’s Brady claim. To

obtain Rule 6(a) discovery of the laboratory notes, Pham need

not demonstrate that he will ultimately prevail on his underlying Brady claim. See Bracy, 520 U.S. at 909 (“It may well be,

as the Court of Appeals predicted, that petitioner will be

unable to obtain evidence sufficient to support a finding of

actual judicial bias in the trial of his case, but we hold that he

has made a sufficient showing . . . to establish ‘good cause’

for discovery.”). Once Soto’s notes have been disclosed, the

Brady issue is for the district court to decide in the first

instance. Nor do we reach Pham’s motions to broaden the

COA to include his claims for ineffective assistance of counsel and violation of his rights to due process and jury trial.

However, our failure to reach these motions at this time is

without prejudice to their being made at a later time. 

2704 PHAM v. TERHUNE
Appellant’s motion to expand the COA to include the Rule

6(a) issue should be granted. We therefore set aside the denial

of the petition for the writ of habeas corpus and remand to the

district court for further proceedings consistent with this opinion. 

The district court’s order is VACATED, and the case is

REMANDED to the district court. 

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