free counsel would have demanded that evidence of the prior night’s fight be admitted and would
have argued that if any decision or plan to shoot rival gang members was made, it was made by
Truong and others the night before the shooting when Huynh was not present. Such evidence
could undercut the state’s “common design” theory.

The appellate court did not explain why it refused to find an actual conflict based on
Johnson’s decision to prevent the evidence of the prior night’s events. The court simply stated in
conclusion that “there has been no showing that defense counsel labored under an actual conflict
of interest or even a potential conflict. The arguments are speculative at best.” Huynh, No. 1-99-
0588, at 8. This court disagrees. As the appellate court noted, the evidence that Johnson
prevented from being admitted could have established that Truong “had a motive to instigate the
gang fight which led to the shooting because of an injury he had received the previous evening.
Truong swore revenge although defendant was not present.” Jd. at 7. Given that Huynh was held
accountable under common design principles, it requires no speculation to conclude that a
competent, independent counsel would have demanded that this evidence be admitted and would
have argued in closing that Huynh lacked the foreknowledge to be held accountable under
common design principles. However, because this evidence was damaging to Truong, Johnson
successfully moved the court to exclude it.

Respondent argues that “petitioner does not provide any indication that the outcome of
the case would have been vastly different if the motive testimony was admitted.” (Resp. Answer,
at 7.) Similarly, the appellate court rejected the proposition that Johnson’s decision to exclude
the evidence “prejudiced defendant.” Huynh, No. 1-99-0588, at 7. But a showing of prejudice is

not necessary. The Supreme Court has “clearly established” that “a defendant who shows that a

13


B. Facts

When considering a habeas petition, the court must presume that the state courts’ factual
determinations are correct unless the petitioner rebuts the presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7" Cir. 2002).
Huynh has not presented clear and convincing evidence to rebut this presumption. Thus, the
court relies on the Illinois Appellate Court’s recitation of the facts. People v. Huynh, No. 1-99-
0588, slip op. at 1-4 (Ill. App. 1" Dist. 2000).

On September 29, 1996, a fight erupted between rival gang members, during which one
individual, Khanh Duong, was shot and killed. Huynh was charged with a total of eighteen
counts stemming from the fight.' Two other individuals, Phuoc Truong (“Truong”) and Man
Phan (“Phan”), were also charged. Huynh waived his right to a jury trial, and proceeded to a
bench trial. Co-defendant Truong was tried at the same bench trial. Both were represented by
Michael Johnson (“Johnson”). Phan was tried before a jury and was represented by a different
attorney. At the trial of Huynh and Truong, the state argued and presented evidence that during
the gang fight, Phan shot and killed Khanh Duong.” The state argued that Huynh and Truong
were accountable for the murder under common design principles.

1. Berk’s Testimony

Robert Berk, a forensic scientist employed by the Illinois State Police Forensic Science

Center who specializes in trace evidence analysis, testified that he conducted an analysis of a

\The indictment charged Huynh with the following crimes: two counts of first degree murder, three counts
of attempted first degree murder, three counts of aggravated discharge of a firearm, four counts of armed violence,
and six counts of aggravated battery.

2 The jury returned a verdict of not guilty for Phan,

4


(Trial Tr., April 1, 1996, at 55-57.)

Huynh argues that Johnson’s cross-examination of Nguyen, who first identified Truong as
the individual with the weapon and as the individual the police brought back to the scene,
demonstrates an actual conflict of interest that adversely affected Johnson’s performance. Huynh
contends that Johnson’s conflicting loyalties to Huynh and Truong prevented him from pursuing
“the obvious strategy” of inculpating Truong based on Nguyen’s misidentification.

In rejecting this argument, the appellate court stated, “This court fails to see how the
defendant has been prejudiced by that testimony since it is clear that defense counsel in
questioning this witness established that he was unsure as to which of the two defendants he saw
and that the object he saw was not a gun, thereby casting doubt upon his ability to observe the
events as they unfolded.” Huynh, No. 1-99-0588, at 8. Although the Cuyler test does not require
a defendant to show that he was prejudiced, 446 U.S. at 349-50, the appellate court did not
unreasonably apply Cuyler here. While Johnson did not use Nguyen’s misidentification to
inculpate Truong, he did cast doubt upon Nguyen’s “ability to observe the events as they
unfolded.” This court cannot conclude that an independent, conflict-free attorney would have
actually employed a different strategy. Thus, Huynh is not entitled to habeas relief based on

Johnson’s cross-examination of Nguyen.

17


similar test was announced by the United States Court of Appeals for the First Circuit in United
States v. Fahey, 769 F.2d 829, 836 (1* Cir. 1985):
In order to establish an actual conflict the petitioner must demonstrate that some plausible
alternative defense strategy or tactic might have been pursued. He need not show that the
defense would necessarily have been successful if it had been used, but that it possessed
sufficient substance to be a viable alternative. Second, he must establish that the
alternative defense was inherently in conflict with or not undertaken due to the attorney’s
other loyalties or interests.
In adopting the Fahey test, the Court of Appeals for the Third Circuit explained that “‘a defendant
who establishes that his attorney rejected a plausibl¢ defense because it conflicted with the
interests of another client establishes not only an actual conflict but the adverse effects of it.”
United States v. Gambino, 864 F.2d 1064, 1070-71 (3d Cir. 1988). The Court of Appeals for the
Second Circuit cited Fahey and Gambino favorably in Winkler v. Keane, 7 F.3d 304, 309 (2d Cir.
1993). Similarly, the Court of Appeals for the Tenth Circuit has stated that a defense counsel’s
performance is adversely affected by an actual conflict of interest “if a specific and seemingly
valid or genuine alternative strategy or tactic was available to defense counsel, but it was
inherently in conflict with his duties to others or to his own personal interests.” United States v.
Bowie, 892 F.2d 1494, 1500 (10" Cir. 1990).
The rule enunciated in these federal cases is clearly in conflict with the Minois rule,
Under the federal rule, to establish a violation of the Sixth Amendment a defendant must show
that a plausible alternative strategy was available to his counsel but was damaging to the cause of
the co-defendant represented by the same counsel. Under the linois rule, the availability of a
plausible alternative strategy is not enough. A defendant must also show that the attomey would

have actually employed the alternative strategy but for the joint representation. If any speculation


people who had been chasing his friends run to their cars and saw Huynh place what appeared to
be a pipe in his waistband. He denied ever telling a detective that he saw Huynh putting a gun in
his waistband, and that he told the detective it was a “shiny dark object.” He further testified that
the state's attorneys were trying to make him say it was a gun.

Huynh was found guilty of murder and aggravated assault under section 5 - 2(c) of the
Illinois Criminal Code of 1961, which provides that a person is legally accountable for the acts of
another when “[e]ither before or during the commission of an offense, and with the intent to
promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such
other person in the planning or commission of the offense. 720 ILCS § 5-2(c) (West 1998). The
Iltinois Supreme Court has construed section 5-2(c) as incorporating the “common design rule,”
which provides that all parties engaged in a common criminal design or agreement are equally
responsible for an act committed by any of the parties in furtherance of the agreement. Huynh,
No. 1-99-0588, at 9-10 (Hoffman, P.J., specially concurring)(citing People v. Hoard, 249 DL
App. 3d 21, 30,618 N.E.2d 808, 815 (1993).

IV. Discussion

This court first reviews the state court decision to determine whether the state court
arrived at a “conclusion opposite to that reached by [the Supreme] Court on a question of law” or
“4f the state court confront(ed] facts that are materially indistinguishable from a relevant Supreme
Court precedent and arrive[d] at a result opposite to [it].” Williams v. Taylor, 529 U.S. 362, 405
(2000). As he did on direct appeal, Huynh claims that he was denied his Sixth Amendment right
to effective assistance of counsel because his trial counsel labored under a conflict of interest in

representing both Huynh and his co-defendant, Truong, In Cuyler v. Sullivan, 446 U.S. 335


gunshot residue test that was performed on Huynh. A microscopic analysis of Huynh’s hands
indicated that the left palm surface had been exposed to gunshot residue, which means that
Huynh either handled, fired or was in close proximity to the weapon when it was discharged.

2. Som’s Testimony

Sanday Som, a friend of the victim, testified that on September 28, 1996, he was in a pool
hall when he observed a fight going on outside among persons he believed to be female members
of rival street gangs. He estimated that there were approximately twenty people involved in the
melee and stated that they were fighting with their hands, a bat, a bottle, and some sticks. When
he went outside the pool hall, he saw Truong, Huynh’s co-defendant, bleeding from the head. He
believed that Truong belonged to the Gap Family street gang, although he was not positive. He
did not indicate that Huynh was present.

Som testified that on the following day, he was driving his car in the same area when he
happened upon the street fight that resulted in the death of Khanh Duong. He testified that he
saw Huynh moving his hand against his waistband. Som testified that he thought Huynh had
something in his waistband that could have been a gun, but Som was not sure. Som then drove
around the block to where the victim was lying on the ground bleeding and waited for an
ambulance. A police car drove up with Huynh inside, and Som was asked to identify him, which
he did. He later identified Huynh in a lineup.

3. Nguyen’s Testimony

Minh Nguyen testified that on September 29, 1996, he observed members of the Gap
Family street gang chasing some of his friends down an alley. He exited the car in which he was

riding and ran toward the scene, at which time he heard three or four gunshots. He then saw the


CONCLUSION
For the above reasons’ this court grants Huynh’s petition for a writ of habeas corpus
based on the ineffective assistance of counsel. Huynh’s convictions for burglary and aggravated

assault are declared to be void and of no effect unless the State of Illinois retries Huynh within

120 days of this order.
Enter: n+ lt-firhter

(QAN HUMPHREY LEFKOW
United States District Judge

Date: October 21, 2003

18


independent counsel would have acted differently, the uncertainty is resolved against the
defendant.” Id. at 174 (emphasis added).

Huynh argues that the test applied by the appellate court “does not comport with federal
Sixth Amendment Constitutional guarantees.” Under the Illinois rule, a defendant must
demonstrate that his attorney’s trial performance actually differed from what it would have been
if the defendant had been the attorney’s only client. As the Illinois Supreme Court stated in
People v. Echols,

While we agree that it is possible that an independent attorney might have pursued [a

different] strategy, it is also possible that he would have acted no differently than did the

public defender in this case . . . In short, we do not know what strategy independent
counsel would have pursued, and this court has in the past refused to find hostility
between the interests of criminal co-defendants based on the mere possibility that one
strategy available to defense counsel would have helped one defendant at the expense of
another.

74 Mil. 2d 319, 327-28, 385 N.E. 2d 644, 648 (1978).

In contrast, several federal circuit courts have approached the problem of conflict of
interest by considering the extent to which the defendant’s tactical options were limited by his
attorney’s other interests or obligations to other clients. The Seventh Circuit has stated that the
“test for a conflict between defendants is . .. whether in making the choice of defenses the
interests of the defendants were in conflict.” United States ex rel. Gray v. Director, Dept. of
Corrections, 721 F.2d 586, 597 (7 Cir. 1983)(emphasis in original). In making the choice of
defenses, the interests of the defendants are in conflict “whenever one defendant stands to gain

significantly by counsel adducing probative evidence or advancing plausible arguments that are

damaging to the cause of a co-defendant whom counsel is also representing.” Id. at 596-97. A


Minute Order Form (0697)

SN United States District Court, Northern District of Illinois

name of nse ue Joan H. Lefkow Sng ede fe

CASE NUMBER 01 C 7523 DATE 10/21/2003
CASE Kim Huynh vs. Edwin R. Bowen
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

(1) O1_ Filed motion of [ use listing in “Motion” box above.]

Q) im Brief in support of motion due___—.

Q) im) Answer brief to motion due. . Reply to answer briefdue__.

(4) Oo Ruling/Hearing on setfor_ at

(5) Oo Status hearing[held/continued to] [set for/re-set for]on__setfor__—_at

(6) oO Pretrial conference[held/continued to) [set for/re-setfor]on__—_esetfor__—s at
(7) Qa Trial{set for/re-set forjon at

(8) a (Bench/Jury trial] [Hearing] held/continuedto__—_aat

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (Cl Local Rule 41.1 OFRCP41(a)(1) CO FRCP41(a)(2).

ao = (Other docket entry} | Enter Memorandum Opinion and Order. The Court grants Kim Huynh’s

. petition for writ of habeas corpus based on the ineffective assistance of counsel. Huynh’s convictions for
burglary and aggravated assault are declared to be void and of no effect unless the State of Illinois retries
Huynh within 120 days of this order.

(il) @ {For further detail see order attached to the original minute order.)

No noticea required, advised in open court.
2
No notices required. sunber of nies
J | Notices maited by judge's staff.
Notified counsel by telephone.
Docketing to mai notices.
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‘| Mail AO 450 form. Mailed by MD. £YUNGS Lass
Copy to judge/magistrate judge. os seatnan
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courtroom _ os
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actual conflict of interest adversely affected his lawyer’s performance.” 446 U.S. at 348,
Concurring in part and dissenting in part in Cuyler, Justice Marshall expressed uncertainty as to
the operation of this test:
If the Court’s holding would require a defendant to demonstrate that his attomney’s trial
performance differed from what it would have been if the defendant had been the only
client, I believe it is inconsistent with our previous cases. Such a test is not only unduly
harsh, but incurably speculative as well.
id. at 355 (Marshall, J., concurring in part and dissenting in part). On the other hand, Justice
Marshall observed,
It is possible that the standard articulated by the Court may not require a defendant to
demonstrate that his attomey chose an action adverse to his interests because of a
conflicting duty to another client. Arguably, if the attomey had to make decisions
concerning his representation of the defendant under the constraint of inconsistent duties
imposed by an actual conflict of interests, the adequacy of the Tepresentation was
adversely affected. If that is the case, the Court’s view and mine may not be so far apart
after all.”
Id. at 352-53 (internal citations omitted). Ten years later, Justice Marshall noted that doubt
remained as to the operation of the “adverse effect” requirement, commenting that “[t}his Court
has never squarely resolved the question whether proof of adverse effect is required to overturn a
conviction once an actual conflict is proved. . . . [Cuyler] left unclear... whether an actual
conflict should be presumed to have an adverse effect, or whether a defendant must prove both
an actual conflict and an adverse effect.” Bonin v. California, 494 U.S. 1039, 1508 (1990)
(Marshall, J., dissenting from denial of certiorari), To this date, the Supreme Court has not
clarified the proper application of the Cuyler test.
Because the proper application of the Cuyler rule is not “clearly established,” this court

cannot conclude that the Ilinois rule is “contrary to . . . clearly established Federal Jaw, as

11


is necessary as to whether independent counsel would have actually employed the alternative
strategy, the uncertainty is resolved against the defendant. Powers, 260 Ill. App. 3d at 174. In
Powers, the Illinois Appellate Court specifically recognized the conflict between the Illinois rule
and the federal cases cited above. The court noted that “however sound these Federal decisions
may be, they appear to be incompatible with the decisions of our supreme court . . . The time may
now be at hand, however, for our supreme court to take a fresh look at the issue.” 631 N.E. 2d at
871-72, 260 Ill. App. 3d at 175.

Despite the conflict between these federal decisions and Illinois case law, this court
cannot conclude that the Illinois Appellate Court’s decision affirming Huynh’s conviction was
“contrary to .. . clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1); Lindh, 96 F.3d at 879. To demonstrate that the appellate
court’s decision was “contrary to” Cuyler, Huynh must show “that the Supreme Court has
‘clearly established’ the propositions essential to [his] position.” Mueller v. Sullivan, 141 F.3d
1232, 1234 (7" Cir. 1998)(emphasis added). This court may not rely upon Seventh Circuit
precedent or that of other circuit courts to grant a writ. See Schaff v. Snyder, 190 F.3d 513, 522
(7" Cir. 1999); Yancey v. Gilmore, 113 F.3d 104, 106 (7" Cir. 1997). “A petitioner must have a
Supreme Court case to support his claim, and that Supreme Court decision must have clearly
established the relevant principle as of the time of his direct appeal.” Schaff, 190 F.3d at 522.

Cuyler does not “clearly establish” that a defendant’s Sixth Amendment right to effective
assistance of counsel is violated when defendant’s tactical options are limited by his attorney’s
interests or obligations to other clients. Cuy/er states only that “{iJn order to establish a violation

of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an

10


(1980), the Supreme Court established the standard for finding ineffectiveness based on multiple
representation, stating, “In order to establish a violation of the Sixth Amendment, a defendant
who raised no objection at trial? must demonstrate that an actual conflict of interest adversely
affected his lawyer’s performance.” 446 U.S. at 348. The mere possibility of conflict is not
enough, but once a defendant has shown an actual conflict, no showing of prejudice is required.
Id, at 348-50.

In finding that Huynh did not demonstrate that a conflict of interest adversely affected
Johnson's performance, the Illinois Appellate Court relied on People v. Powers, 260 Wil. App. 3d
163, 631 N.E, 2d 862, (Ill. App. 2d Dist. 1994). Powers cited the “well-established rule in
Illinois” that the “mere availability of a strategy that would have helped one defendant at the
expense of another does not create hostility between the interests of criminal defendants.” Jd. at
170. Instead, the question is “whether counsel with no obligations to a co-defendant would have

actually employed a different strategy or tactics. Where speculation is necessary as to whether

>Huynh suggests that Johnson did bring a potential conflict to the court’s attention before trial. During a
status conference on November 17, 1997, Johnson stated that because of recent discovery, “Mr, Huynh is going to
have to take a jury trial. There are some conflicts so there will be two juries.” After the trial court inquired as to
whether there had been a change in circumstances, Johnson replied, “Judge, after the motion if the Court wanted to
engage in an issues conference to make sure there is conflicts [sic] and scheduling purposes, I have no problem with
that.” It does not appear that there was any further discussion of a potential conflict. In its ruling on Huynh’s post-
trial motion, the trial court stated,

There is absolutely no question now, and there was no question then, that when Mr. Johnson indicated that
there had been a change in circumstances, as the State argued, the gunshot residue test results had come in. .
. . Based on that, there may be a jury as to this defendant. And then based on that, having two juries, there
may be a conflict. There was no doubt in anybody’s mind involved in the case, including the Court, that
what that conflict was was a conflict between Mr. Cohn’s client [Man Phanj and Mr. Huynh. . . . But there
was never any contemplating that there was a conflict between two defendants that Mr. Johnson.
represented. That simply was not anywhere.

Thus, the trial court determined that Johnson did not bring any potential conflict of interest to its attention prior to
trial, The appellate court accepted the trial court’s finding of fact on this issue, and Huynh has not rebutted the
finding of fact with clear and convincing evidence. Thus, this court accepts that Huynh “raised no objection at trial”
to the possibility of a conflict of interest.


determined by the Supreme Court and whether the state court decision is “contrary to” that
precedent. When a case falls under the “unreasonable application of” clause of § 2254(d)(1),
however, the court defers to a reasonable state court decision. Anderson v. Cowan, 227 F.3d 893,
896-97 (7" Cir. 2000). In other words, the court reviews core issues of federal law de novo.
Lindh, 96 F.3d at 877. When confronted with mixed questions of law and fact (i.e., whether a
state court’s holding involved an “unreasonable application” of clearly established Supreme
Court precedent), the court also applies a de novo standard but “with a grant of deference to any
reasonable state court decision.” Anderson, 227 F.3d at 897. A state court satisfies this
reasonableness standard if its application is “at least minimally consistent with the facts and
circumstances of the case.” Spreitzer v. Peters, 114 F.3d 1435, 1442 (7" Cir. 1997).
Iii. Background

A. Procedural History

On May 1, 1998, Huynh filed a Motion for a New Trial in the Circuit Court of Cook
County. On October 6, 1998, Huynh filed a Supplemental Motion for a New Trial & Request for
an Evidentiary Hearing, as a supplement to the previously filed motion. Huynh argued in both
motions that he was denied the effective assistance of counsel based upon his attomney’s
simultaneous representation of a co-defendant. Petitioner requested that the circuit court conduct
an evidentiary hearing so as to permit him to substantiate the allegations set forth in his motion.
The circuit court denied the motion for a new trial and refused to conduct the requested
evidentiary hearing. On August 10, 2000, the Illinois Appellate Court affirmed the circuit court’s
judgment on direct appeal. The Supreme Court of Illinois denied Huynh’s petition for leave to

appeal on November 29, 2000.


conflict of interest actually affected the adequacy of his representation need not demonstrate
prejudice in order to obtain relief.” Cuyler, 446 U.S. at 349-50. The Court has explicitly refused
“to indulge in nice calculations as to the amount of prejudice attributable to the conflict. The
conflict itself demonstrate[s] a denial of the ‘right to have effective assistance of counsel.” Id. at
349 (quoting Glasser v. United States, 315 U.S. 60, 16 (1942)). Thus, Huynh does not need to
show that he would have been found not guilty had the evidence of the prior night’s fight been
admitted. He only needs to establish that conflict-free counsel would not have opposed the
introduction of the evidence and that such a strategy was plausible defense. He has done this.

The Supreme Court has cautioned that under AEDPA an unreasonable application is
something more than an incorrect one. Bell v. Cone, 535 U.S. 685 (2002). A federal court may
not grant habeas relief simply because it has independently concluded that the relevant state court
decision is incorrect; the state court’s application of Supreme Court precedent must be so
erroneous as to be objectively unreasonable. /d. at 1852. This is an exceedingly high standard,
but it is not an absolute bar. In this case, this court believes that the appellate court’s decision
was objectively unreasonable. This court can conceive of no reason that a competent, conflict-
free defense attomey would have moved to exclude the evidence of the prior evening’s fight,
Truong’s oath of revenge, and Huynh’s absence. Johnson’s decision to prevent the admission of
that evidence is a clear example of an actual conflict of interest adversely affecting counsel’s
performance. Thus, his conviction cannot stand.

B. Johnson’s Cross-Examination of Nguyen

During the state’s direct examination of Nguyen, the following exchange took place:

Qa Was Phuoc [Truong] there that night?

14


0

>

Q > BP FF

Did you see him with a gun?
No, I did not.

Wait a second, page 7, you told the Grand Jury you saw one guy, Moochie
{Huynh], he was putting a weapon back into his waistband, correct?

Yes,

So you could see him actually putting something in his waistband, correct?
Yes.

And from there he ran directly to his automobile, correct?

Right.

And they brought him back?
Yes.

Right?

Right.

And you weren’t sure now whether it was Moochie [Huynh] or Phuoc [Troung],
correct?

Not really, I wasn’t up close to the car.

In fact, at the Grand Jury, they showed you photographs of Phuoc and ~ page 4.
And at first, they showed you a photograph, the question was “I’m showing you a
photograph marked as People’s Exhibit Number Two for identification, do you
recognize that?” Answer. “That’s Phuoc.” Question. “That’s a photograph of
Phuoc?” Answer. “Moochie [Huynh].” Question. “of Moochie?” “Yes.” There
was a mix up as far as who was who, correct? (Internal quotation and punctuation
supplied).

Yes.

16


IL Jurisdiction

This is Huynh’s first petition, and he filed it within one year of the date his conviction
became final by the conclusion of direct review in state court. Thus, this court has jurisdiction to
consider the petition pursuant to 28 U.S.C. § 2244(d)(1)(A).
I. Standard of Review

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), this court
must deny Hunyh’s petition for a writ of habeas corpus with respect to any claim adjudicated on
the merits in a state court unless the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1); Lindh v. Murphy, 96 F.3d 856, 879 (7" Cir.
1996), rev'd on other grounds, 521 U.S. 320 (1997). A state court’s decision is contrary to
clearly established Supreme Court precedent “if the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law” or “if the state court confronts facts
that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite to [it].” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court’s decision is
an unreasonable application of clearly established Supreme Court law “if the state court identifies
the correct governing legal rule from [the] Court’s cases but unreasonably applies it to the facts
of a particular prisoner’s case” or “if the state court either unreasonably extends a legal principle
from [Court] precedent to a new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply.” Jd.

When a case falls under § 2254(d)(1)’s “contrary to” clause, this court reviews the state

court decision de novo to determine the legal question of what is clearly established law as


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
United States of America )
ex rel. KIM HUYNH, )
) HW
Petitioner, ) D OCKE TED
) OCT 2
v. ) No. 01 C7523 2 2003
) Judge Joan H. Lefkow
EDWIN R. BOWEN, )
Warden, )
Centralia Correctional Center, )
)
Respondent. )
)

MEMORANDUM OPINION AND ORDER

Petitioner Kim Huynh (“Huynh”) was convicted at a bench trial in the Circuit Court of
Cook County, Illinois, of aggravated battery and first-degree murder in connection with a gang
fight. The court sentenced him to twenty years’ imprisonment. After unsuccessfully appealing
his conviction, Huynh filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
on October 1, 2001. Huynh asserts that he was convicted and sentenced in violation of the
Constitution of the United States, in that he was denied the effective assistance of counsel as
guaranteed by the Sixth Amendment and the principles enunciated by the Supreme Court in
Cuyler v. Sullivan, 446 U.S. 335 (1980). Specifically, Huynh alleges that his trial counsel
labored under an actual conflict of interest that adversely affected his performance when the
counsel represented both Huynh and his co-defendant. For the following reasons, the court

grants the writ.


determined by the Supreme Court of the United States.” Thus, this court must determine
whether the appellate court unreasonably applied Cuyler in denying Huynh’s appeal.

A. Johnson’s Prevention of Evidence of Truong’s Motive

In its opening statements, the state indicated that it would present evidence that Truong
had a motive to initiate the gang fight. The night before the gang fight, Truong had received an
injury at the hands of a rival gang member and had sworn revenge. Huynh, however, was not
present. Johnson informed the trial court that he was unaware of any of this evidence and that it
had not been produced to him in discovery. He successfully moved the court not to consider this
evidence because of the state’s violation of discovery rules.

Huynh contends that Johnson’s decision to prevent the admission of evidence of the fight
that occurred the evening before the shooting demonstrates that an actual conflict adversely
affected Johnson’s performance. Huynh was held accountable for the shooting under the
“common design rule.” Huynh, No. 1-99-0588, at 9-10 (Hoffman, P.J., specially concurring).
This rule provides that all parties engaged in a common criminal design or agreement are equally
responsible for an act committed by any of the parties in furtherance of the design. See Hoard,
249 Ill. App. at 30. Accountability under a common design principle requires “that in addition to
being present at the scene, the accountable party had some advance knowledge of the criminal
plan or scheme.” People v. Estrada, 243 Ill. App. 3d 177, 611 N.E.2d 1063, 1068 (1% Dist.
1993)(emphasis added). Evidence that a defendant attached himself to a group bent on illegal
acts with knowledge of the group's plan supports the inference that he shared the group’s
common purpose. Huynh, No. 1-99-0588, at 9 (citing People v. Reckers, 251 Ill, App. 3d 790,

794, 623 N.E.2d 811, 815 (1993)(emphasis added). Huynh argues that any competent, conflict-

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He was.
And what did you see Phuoc do?
He just put a black object in his waistband.

Phuoc?

PF QO > QD

Oh. I thought - Phuoc is the one with the long hair, I just seen him running to the
car.

(Trial Tr., April 1, 1996, at 17.)

Soon after the shooting, a detective from the Chicago Police Department brought Huynh
back to the scene. Later during the State’s direct examination of Nguyen, he was asked if he
could identify the person that the detective brought to the scene:

Q: Were you there at any time when that same police car came back to the scene or
had you already left?

A I think I was still there.
Okay. Did you see someone in that gray police car?
I believe it was — I did see someone, I think it was Phuoc.
(Trial Tr., April 1, 1996, at 19-20.) The state then attempted to clear up the ambiguity:

Q: The guy who they brought back to the scene, that you’re not sure of, could that
have been Moochie [Huynh]?

A: It could have been.
(Trial Tr., April 1, 1996, at 20.)
On Johnson’s cross-examination, Nguyen testified as follows:

Q: Did you ever tell any policemen that you saw Moochie [Huynh] with any sort of
gun?

A T never said a gun.

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