* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

REVISED NOVEMBER 1, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20238

DINH TAN HO,

Petitioner-Appellant

v.

RICK THALER, Director, 

Texas Department of Criminal Justice, 

Correctional Institutional Division,

Respondent-Appellee

Appeal from the United States District Court 

for the Southern District of Texas

No. 4:10-CV-920

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

The petitioner, Dinh Tan Ho, was convicted of non-capital murder for the

killing of David Bundy. Ho now appeals the district court’s grant of summary

judgmentin favor of respondent RickThaler, which resulted in the denial of Ho’s

28 U.S.C. § 2254 habeas corpus petition. On appeal, he argues that the

United States Court of Appeals

Fifth Circuit

F I L E D

October 26, 2012

Lyle W. Cayce

Clerk
No. 11-20238

2

prosecutor violated his due process rights by knowingly using false and

misleading evidence to prosecute the case. Because Ho did not show that the

misleading evidence was material to his conviction or prejudicial to his right to

a fair trial, we AFFIRM the district court. 

FACTS AND PROCEDURAL HISTORY

In the early morning hours of December 7, 2001, David Bundy, Eric

Harrison, Bayard Hill, Mike Miller, and Jabare Rattler left a Houston nightclub

in Harrison’s car, driven by Bundy. While driving in downtown Houston, the car

nearly collided with a blue Honda Civic occupied by three Asian men. Atthe next

stoplight, Rattler got out of the car and shouted obscenities at the occupants of

the Honda Civic. When the light turned green, Rattler got back into the car and

Bundy drove toward Highway 59, a freeway. They lost sight of the Civic. Then,

while traveling on Highway 59, the Civic approached Harrison’s car from the

rear right side of the vehicle. One of the passengers of the Civic then fired

multiple gunshots at Harrison’s car. Bundy was shot and killed, and Hill, Miller,

and Rattler were each shot and injured. The shooting occurred at approximately

4:00 a.m.; Bundy was driving between 65 and 80 miles per hour, and the night

was foggy and dark. 

Later that morning, at approximately 5:20 a.m., William Hagans saw

three young Asian men standing on his neighbor’s lawn beside a blue Honda

Civic. He recognized one of the men as Jay Le, his neighbor’s grandson and

owner of the blue Honda Civic. He saw one of the men make a gesture of a gun

with his fingers. After Hagans saw a TV news report about a shooting on

Highway 59 involving a blue Honda, Hagans called the police. He reported

seeing a blue Honda at Le’s grandmother’s house and later gave the police its

license plate number. The police, after identifying the car as belonging to Le,

questioned Le and Richard Hoang separately about the shooting. After a

prolonged interrogation, Le and Hoang both told police that Ho called them and
No. 11-20238

3

admitted to shooting several men on the freeway. Le also told the police that Ho

had been in possession of the car on the night of the shooting. He also told the

them about a bullet hole in his car, sustained while Ho had possession of the

vehicle. Le was interrogated several days before Hoang and told Hoang about his

interrogation. 

The police presented photo lineups to Harrison and the other witnesses.

Harrison was able to tentatively identify Le and Ho from the photographs. Miller

identified Le as the driver but could not identify the shooter. Miller also was

shown a photograph of Le’s car and he identified it as the Honda Civic involved

in the shooting, but was not shown photographs of any other car. Rattler

identified Le as the driver and Ho as the shooter. 

The prosecutor, who prosecuted both Le and Ho, proceeded to trial on the

theory that Le was the driver, Ho was the shooter, and Hoang was the third

individual in the backseat of the Honda Civic. Le was tried first. At his trial, Le

and Hoang recanted their statements and testified that Ho had not confessed to

the freeway shooting and that they gave false statements to the police because

the police threatened to prosecute them for the crime if they did not cooperate.

Hoang testified that when he, Le, and Ho met outside Le’s grandmother’s house

on the morning of December 7, 2001, Ho confessed to his involvement in a prior

shooting at Café Eden on December 1, 2001, but that the men did not discuss

any other shooting other than the Café Eden incident. Le testified that Ho was

in possession of Le’s car at the time of the shooting and during the first two

weeks of December 2001. Le and Hoang also testified that the bullet hole in Le’s

car occurred during the Café Eden shooting, and Officer Hale, an investigating

officer ofthe freeway shooting, testified that the bullet hole was sustained while

the car door was open and therefore likely did not occur during the freeway

shooting. Sergeant Wayne Wendel, however, testified that he believed that a
No. 11-20238

4

bullet fired from within the car while the door was closed caused the hole. Le

was convicted, and the prosecutor proceeded to trial against Ho. 

At Ho’s trial, Le and Hoang were called as witnesses for the state, and

testified again that they were not involved in the freeway shooting and that Ho

had never discussed the shooting with them. The prosecution elicited testimony

about what Le and Hoang said to the police in their initial statements. Le and

Hoang admitted to having implicated Ho to the police, but said that they lied to

the police only after an extensive interrogation because they were afraid the

police would arrest or imprison them. In closing arguments, the prosecution

suggested that Le and Hoang recanted only because they were afraid of

retribution from Ho. The prosecutor also elicited testimony from Hoang that Ho

discussed a shooting when the three men met around 5:20 a.m. on December 7,

2001, and that Ho made a shooting gesture during this conversation. Although

Hoang had testified at Le’s trial that they had been discussing the Café Eden

shooting, the judge in Ho’s trial granted the defense a motion in limine to

exclude evidence of the Café Eden shooting, which prevented Hoang from

explaining that the discussion pertained to the Café Eden shooting. The

prosecution also presented evidence about the bullet hole in Le’s Honda Civic.

Wendeltestified thatthe bullet hole was caused by a bulletfired from within the

car while the door was closed. Neither the prosecution nor the defense asked

Hale about the bullet hole. The prosecution also elicited witness testimony from

Hagan, Harrison, Rattler, Miller, and Hill. Harrison and Rattler both testified

that Ho was the shooter and that he was the passenger in the blue Honda Civic

that Le owned. Wendel also testified that both Harrison and Rattler identified

Ho’s photograph immediately in the photographic lineup. Hagan testified that

he saw Le and two young Asian men outside of Le’s grandmother’s house, next

to a blue Honda Civic, around 5:20 a.m. on the morning of Bundy’s murder. He
No. 11-20238

5

also testified that one of the men demonstrated a shooting gesture with his

finger and hand.

The jury found Ho guilty of non-capital murder. During the sentencing

phase of trial, the prosecutor elicited testimony from several witnesses about

Ho’s role in the Café Eden shooting, as well as his alleged role in the murder of

ThaoLam,to demonstrate Ho’s dangerousness. Le and Hoang both testified that

Ho had confessed to them that he participated in the Café Eden shooting, and

Le testified that Ho told him that a bullet struck his car during the incident.

Officer Charlie Cash testified about Hoang’s past involvement with gangs. Nam

Do and Kristine Nguyen testified that Ho had gotten into a fight with Lam’s

boyfriend on the night of her murder. Wendel, who was assigned to investigate

Lam’s murder, testified that he suspected Ho of committing the murder. Paul

Wayne Shrode, an assistant medical examiner, testified about the gunshot

wound that killed Lam. Ho was sentenced by a jury to 50 years of imprisonment

and assessed a fine of $10,000.

On direct appeal, Ho raised seven points of error, arguing, inter alia, that

the trial court erred in admitting (1) Le’s and Hoang’s initial statements, wich

they later recanted; (2) evidence of the bullet hole in Le’s car; and (3) evidence

that Ho discussed a shooting and made a gun gesture with his hand while

outside Le’s grandmother’s house on the morning of December 7, 2001. The

Fourteenth Court of Appeals of Texas affirmed Ho’s conviction. Ho filed a motion

for rehearing. On rehearing, the court issued a modified opinion that again

affirmed his conviction. See Ho v. State, 171 S.W.3d 295 (Tex. App.–Houston

[14th Dist.] 2005). On June 26, 2005, Ho filed a second motion for rehearing, in

which he asserted for the first time thatthe prosecutor knowingly relied on false

and misleading evidence in securing his conviction, thus depriving him of due

process. The Fourteenth Court of Appeals of Texas denied Ho’s second motion
No. 11-20238

1 Although the district court did not explicitly grant Ho a Certificate of Appealability

(“COA”),it adopted the magistrate judge’s amended memorandum and recommendation, which

specifically recommended that a COA should be issued. 

6

for rehearing. Ho then petitioned for discretionary review before the Texas Court

of Criminal Appeals (TCCA), which the TCCA denied.

Ho filed a state habeas application that was denied by the trial court and

the TCCA. Ho then filed a § 2254 habeas petition in federal court, which again

raised his claim that the prosecutor knowingly relied on false and misleading

evidence. A magistrate judge was assigned to the case and ultimately concluded

that Ho was not procedurally barred from raising his due process claim, but that

his claim was without merit. The district court adopted the magistrate judge’s

amended memorandum and recommendation and granted summary judgment

in favor of the respondent. Ho appealed.1

STANDARD OF REVIEW

“In a habeas corpus appeal, we review the district court’s findings of fact

for clear error and review its conclusions of law de novo, applying the same

standard of review to the state court’s decision as the district court.” Register v.

Thaler, 681 F.3d 623, 626 (5th Cir. 2012) (quoting Garcia v. Quarterman, 454

F.3d 441, 444 (5th Cir. 2006)). Because Ho’s due process claim was dismissed

by the state habeas court on procedural grounds and not adjudicated on the

merits in state court, we do not apply the heightened standard of review

provided for in 28 U.S.C. § 2254(d). Graves v. Dretke, 442 F.3d 334, 339 (5th Cir.

2006). “We review the adequacy of a state law used to preclude federal habeas

review de novo.” Wright v. Quarterman, 470 F.3d 581, 586 (5th Cir. 2006). 

DISCUSSION

A. Procedural Default

Respondent argues that Ho procedurally defaulted his due process claim

because he raised it for the first time in his second motion for rehearing before
No. 11-20238

7

the Fourteenth Court of Appeals of Texas. We pretermit this issue because the

“claim can be resolved more easily” on the merits. See Busby v. Dretke, 359 F.3d

708, 720 (5th Cir. 2004).

B. Due Process 

On appeal, Ho argues thatthe state violated his constitutional rightto due

process by knowingly presenting false or misleading evidence at trial in order to

secure his conviction. He specifically contends that the state: (1) knowingly

elicited false, recanted statements from Le and Hoang; (2) knowingly presented

evidence of a bullet hole in Le’s Honda Civic that the prosecutor knew to be

associated with an unrelated incident; and (3) knowingly presented evidence of

Le, Hoang, and Ho’s discussion about a shooting that the prosecution knew to

concern an unrelated incident. 

“[A] conviction obtained through use of false evidence, known to be such

by representatives of the State, must fall under the Fourteenth Amendment.”

Napue v. Illinois, 360 U.S. 264, 269 (1959); see also Giglio v. United States, 405

U.S. 150, 153 (1972) (“[D]eliberate deception of a court and jurors by the

presentation of known false evidence is incompatible with ‘rudimentary demands

of justice.’” (citation omitted)). To establish that he suffered a due process

violation based on the government’s reliance on false or misleading testimony,

Ho “must show (1) that the witness’s testimony was actually false, (2) that the

testimony was material, and (3) that the prosecution had knowledge that the

witness’s testimony was false.” Boyle v. Johnson, 93 F.3d 180, 186 (5th Cir.

1996). Ho must prove that the recanted statements, bullet hole evidence, and

shooting conversation were all actually false and that the prosecution had

knowledge of their falsity. The evidence that meets these standards must then

be shown to have been material to the case. 

1. False Statements
No. 11-20238

8

At trial, the prosecution called Le and Hoang to testify against Ho. They

both testified that Ho did not call them on the morning of the freeway shooting

and did not confess. The prosecution questioned them about their initial

statements to the police, and gave Le and Hoang copies of their statements in

order to refresh their memories. They both admitted to having implicated Ho

but again recanted their statements, as they had done at Le’s trial, and testified

that they had lied when they gave their statements because the police

threatened to arrest and imprison them.

On appeal, Ho argues that the prosecution knowingly introduced false

testimony when it elicited testimony about what Le and Hoang said during their

police statements because the prosecution did not believe that Ho called Le and

Hoang to confess the shootings.“A state denies a criminal defendant due process

when it knowingly uses perjured testimony at trial or allows untrue testimony

to go uncorrected.” Faulder v. Johnson, 81 F.3d 515, 519 (5th Cir. 1996). It is not

sufficient for Ho merely to show that the state elicited testimony of past

statements that have been recanted or contradicted by testimony produced at

trial; “[s]uch contradictory trial testimony . . . merely establishes a credibility

question for the jury.” Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). 

In the present case, Ho showed thatthe prosecution did more than present

inconsistent testimony. He showed that the prosecution knew and believed Le’s

and Hoang’s police statements to be false because the prosecution secured a

conviction against Le on the theory that Le and Hoang were in the car with Ho

during the shooting. The prosecution therefore knew that Ho had not called Le

and Hoang,thatthey did notlearn aboutthe shooting during the phone call, and

that Ho had not called to confess because its theory was that Ho, Le, and Hoang

were together during the shooting and therefore Ho had no reason to call them

to confess. The prosecution presented statements that not only had been

recanted, but which the prosecution knew to be false and would likely mislead
No. 11-20238

9

the jury into believing that Ho confessed to shooting Bundy to his friends, who

allegedly recanted only because they feared retaliation from Ho. The

prosecution’s use of the recanted statements therefore qualifies as false or

misleading for the purposes of Ho’s due process challenge. 

2. Shooting Discussion

Ho also argues on appeal that the prosecution presented false or

misleading evidence when it put on evidence that Ho, Le, and Hoang engaged

in a discussion about a shooting on the morning of Bundy’s murder and that Ho

demonstrated the shooting by making the figure of a gun with his hand. Ho

argues thatthis evidence was misleading because the prosecution knew thatthe

shooting discussion and gun demonstration were unrelated to Bundy’s murder

and that Ho was instead discussing a shooting that happened a week earlier at

Café Eden. 

Ho cannot challenge, on due process grounds, the prosecution’s use of this

information because “[d]efense counsel was aware that the testimony was

misleading but consciously decided not to clarify it for the jury.” Beltran v.

Cockrell, 294 F.3d 730, 736 (5th Cir. 2002). As we have explained, 

When a criminal defendant, during his trial, has reason to believe

that perjured testimony was employed by the prosecution, he must

impeach the testimony at trial, and cannot have it both ways. He

cannot withhold the evidence, gambling on an acquittal without it,

and then later, after the gamble fails, present such withheld

evidence in a subsequent proceeding. 

Id. at 735 (quoting Evans v. United States, 408 F.2d 369, 370 (7th Cir. 1969))

(internal quotation marks omitted). 

In the present case, the prosecution elicited evidence that Le, Hoang, and

Ho discussed a shooting. Defense counsel deliberately withheld from the jury

any evidence that it pertained to the Café Eden shooting and not to Bundy’s

murder; obtained a motion in limine to prevent the prosecution from eliciting

testimony relating to the Café Eden shooting; and opted not to ask Hoang or Le
No. 11-20238

2

In Beltran, the deliberate defense strategy—in which the defense opted not to

introduce evidence pertaining to Beltran’s alleged co-conspirator because counsel believed the

co-conspirator resembled a serial killer—became grounds to grant relief on the basis of

ineffective assistance of counsel. 294 F.3d at 734-36.

10

any questions that would clarify what shooting the three men discussed on the

morning of Bundy’s murder. Because defense counsel knew about the alleged

falsity at trial and failed to rebut it in furtherance of a deliberate defense

strategy, he waived any error that resulted. See id.2

3. Bullet Hole Evidence

Finally, Ho argues on appeal that the prosecution knowingly presented

false or misleading evidence when it elicited testimony from Wendel regarding

a bullet hole in Le’s car. It is undisputed that Le’s car had suffered a bullet hole

that broke the car window and caused damage to the frame and that Ho paid to

replace the car window. At Le’s trial, Hale testified that a bullet fired while the

door was open caused the bullet hole, and that he had reason to believe that it

was not related to the freeway shooting. Wendel testified that he disagreed with

Hale’s assessment and that he believed the bullet hole could have been caused

by a bullet shot from inside the car while the door was closed. The prosecution

called both Wendel and Hale to testify against Ho. Wendel again testified that

Le told him about a bullet hole in the Honda Civic, and that he saw damage from

a bullet hole in the frame of Le’s car and obtained samples of broken glass found

inside the vehicle. He further testified thatthe bullet hole was caused by a bullet

being shotfrom inside the car. The prosecution did not ask Hale about the bullet

hole. 

Ho contends thatthe prosecution presented false evidence aboutthe bullet

hole because Wendel’s testimony contradicted Hale’s testimony at Le’s trial.

Inconsistency is not enough to prove knowing falsity. See Koch, 907 F.2d at 531.

The same is true where the disagreement is between witnesses. See Little v.

Butler, 848 F.2d 73, 76 (5th Cir. 1988) (inconsistency between various witnesses
No. 11-20238

11

creates a credibility question for the jury). Ho did not present any evidence of

falsity other than the factthat Wendel’s testimony contradicted Hale’s testimony

at Le’s trial. He therefore failed to prove that Wendel’s testimony was false.

Moreover, the defense knew that Hale had previously testified that the bullet

hole could only have happened if the car door had been open, but chose not to

question him about his bullet hole theory. Because the defense knew of the

disagreement between Hale and Wendel and chose not to present it to the jury,

it waived any error resulting from the allegedly false testimony.See Beltran, 294

F.3d at 736. 

4. Materiality

In order to prove that the prosecutor committed a due process violation by

relying on false or misleading evidence, Ho must show that the false or

misleading evidence was materialto the state’s case.“False evidence is ‘material’

only ‘if there is any reasonable likelihood that [it] could have affected the jury’s

verdict.’” Nobles v. Johnson, 127 F.3d 409, 415 (5th Cir. 1997) (alteration in

original) (quoting Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996)). 

The recanted statements, in which Le and Hoang stated that Ho called

them to confess to committing the Highway 59 murder, were false and the

prosecution knew them to be false and that Ho had not called Le and Hoang to

confess to the crime because the prosecution knew that Le and Hoang were both

present at the shooting with Ho. However, Ho did not show that there was a

reasonable likelihood that the recanted statements could have affected the jury’s

verdict. Two witnesses—Harrison and Rattler—provided eyewitness testimony

that Ho was the shooter and that he had been the passenger in Le’s blue Honda

Civic. Wendel testified that both Harrison and Rattler identified Ho’s

photograph immediately in the photographic lineup. In addition, Hagan testified

that he saw Le and two young Asian men outside of Le’s grandmother’s house,

next to a blue Honda Civic, around 5:20 a.m. on the morning of Bundy’s murder,
No. 11-20238

12

and that one of the men demonstrated a shooting gesture with his hand.

Furthermore, the jury heard testimony from Hoang and Le that Ho discussed a

shooting with them on the morning of Bundy’s murder. The prosecution also

presented evidence that Le’s car sustained a bullet hole. Given this evidence,

there is no reasonable likelihood that the recanted statements affected the

judgment of the jury.

CONCLUSION

We AFFIRM the district court’s grant of summary judgment in favor of

respondent and dismissal of Ho’s § 2254 habeas corpus petition.