                       REVISED NOVEMBER 1, 2012

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                            FILED
                                                                        October 26, 2012
                                       No. 11-20238
                                                                          Lyle W. Cayce
                                                                               Clerk
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
judgment in favor of respondent Rick Thaler, which resulted in the denial of Ho’s
28 U.S.C. § 2254 habeas corpus petition. On appeal, he argues that the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 11-20238

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. At the 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


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                                  No. 11-20238

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 of the 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



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                                  No. 11-20238

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.
Wendel testified that the bullet hole was caused by a bullet fired 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



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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
Thao Lam, 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 that the 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



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                                       No. 11-20238

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


       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.

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                                  No. 11-20238

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 that the state violated his constitutional right to 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



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                                  No. 11-20238

      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 that the 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, that they did not learn about the 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

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                                 No. 11-20238

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 that this evidence was misleading because the prosecution knew that the
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

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                                       No. 11-20238

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 that the bullet hole was caused by a bullet
being shot from inside the car. The prosecution did not ask Hale about the bullet
hole.
        Ho contends that the prosecution presented false evidence about the 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

        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.

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                                  No. 11-20238

creates a credibility question for the jury). Ho did not present any evidence of
falsity other than the fact that 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 material to 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,

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                                No. 11-20238

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.




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