                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-7954


HENH CHU NGO,

                Petitioner – Appellant,

           v.

GREGORY HOLLOWAY, Warden, Wallens Ridge State Prison,

                Respondent − Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:12-cv-00074-LMB-IDD)


Argued:   December 10, 2013              Decided:   January 17, 2014


Before TRAXLER, Chief Judge, and WILKINSON and DAVIS, Circuit
Judges.


Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Chief Judge Traxler and Judge Wilkinson joined.


ARGUED: Jonathan P. Sheldon, SHELDON, FLOOD & HAYWOOD, PLC,
Fairfax, Virginia, for Appellant. Craig Stallard, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General of
Virginia, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DAVIS, Circuit Judge:

      Petitioner-Appellant             Henh       Chu   Ngo,     a   Virginia       inmate,

appeals    the      district     court’s       denial       of   his    federal       habeas

petition filed under 28 U.S.C. § 2254. Because we agree with the

district court that the state court did not make unreasonable

findings       of   fact   or    unreasonably           apply    clearly       established

federal law, 28 U.S.C. §§ 2254(d)(1-2), we affirm.

                                              I.

                                              A.

      In August 2005, Ngo was indicted on charges of murdering

Ngoc Quy Doan Nguyen (“Quy”) and using a firearm during the

commission of a felony. The evidence supporting the case against

Ngo came primarily from the testimony of Phuc Nguyen (“Phuc”)

and Hoan Minh Le (“Le”), who were present when Quy was shot. Ngo

pled not guilty and the case proceeded to trial.

      On the first day of Ngo’s three-day trial, Phuc testified

that, on the evening of December 27, 2002, he, Le, and Quy were

leaving    a     pool   hall    when    two       men   approached      them    and    asked

whether they were affiliated with a certain gang, Asian Young

and Dangerous (“AYD”). Phuc denied affiliation with AYD, but did

not hear the responses of Quy and Le. According to Phuc, members

of   AYD   had      recently    attacked      Ngo,      a   member     of   Asian     Dragon

Family (“ADF”), a rival gang.



                                              2
       Phuc,    Le,     and   Quy   then    got     into    Quy’s    car,   when    Quy

remembered that he had left his eyeglasses in the pool hall.

While Quy went to retrieve them, Ngo approached Quy’s car, where

Phuc   was     seated    in   the   front       passenger   seat    with    Le   seated

behind him. Ngo motioned for Phuc to roll down his window, but

Phuc refused because Ngo’s right hand was concealed suspiciously

in his coat.

       Ngo then walked to the front of Quy’s car as Quy returned

from inside the pool hall. As Quy opened the driver’s door, Ngo

again asked whether Quy was affiliated with AYD. Phuc did not

hear Quy’s response, but immediately heard gunshots, causing him

to duck behind the dashboard. Ngo’s first shot struck Quy in the

head while the next two shots went through the car’s windshield.

       When police officers arrived at the scene fifteen to twenty

minutes later, Phuc told them that Ngo shot Quy. Phuc testified

that he was familiar with Ngo from having seen him around their

community and that Ngo was heavyset and had a tattoo. Phuc also

testified that he identified Quy’s shooter in photographic line-

ups while at the police station later that evening. On cross-

examination, Phuc admitted that Le had made several phone calls

before calling 911 after Quy was shot, and that, contrary to his

earlier      testimony,       he    had     previously      denied     hearing      the

substance of Ngo’s comment to Quy before he shot him.



                                            3
     Numerous other officers described the evidence at the scene

of Quy’s shooting in a manner consistent with Phuc’s account of

the event, including the location of shell casings, the bullet

holes in Quy’s car, and the condition of Quy’s body.

     Officer Curtis Cooper then recounted the statements Phuc

made to him at the scene of Quy’s murder and at the police

station later that evening. Defense counsel objected to this

testimony as inadmissible hearsay; the trial court overruled the

objection. The trial court reasoned that the testimony could be

admitted    as    prior    consistent         statements    for    the    purpose    of

credibility      determinations.        The    court   also      issued   a     limiting

instruction to the jury, stating that the testimony was “not

being elicited for the truth of what Mr. Phuc Nguyen told him

but just as it might affect your determinations about Mr. Nguyen

. . . your determination of his credibility.” J.A. 154.

     Officer      Cooper   went    on     to    testify    that,    at    the    police

station, Phuc identified Ngo, by his nickname, as Quy’s killer

and related in detail the events surrounding the crime. On cross

examination,       defense       counsel         questioned        Officer       Cooper

extensively      regarding       Phuc’s       prior    statements,        and    Cooper

acknowledged that Phuc initially denied knowing who shot Quy.

     On    the   second    day    of   trial,     Le   testified     regarding      the

events     surrounding        Quy’s       murder;         that      testimony       was

substantially similar to Phuc’s. There were some inconsistencies

                                          4
between Phuc and Le’s testimony, however, such as Le’s testimony

that Ngo’s left hand was inside his jacket when he approached

Quy’s car, while Phuc testified that it was Ngo’s right hand. Le

also testified that (1) he knew Ngo from seeing him on prior

occasions around their community; (2) Ngo was a member of ADF;

and (3) Ngo was heavyset and had a dragon tattoo on his arm.

        Describing      his    interaction       with    law    enforcement       on     the

night of the shooting, Le said he told police officers who the

shooter was and identified Ngo in a photographic line-up. Le

also testified that (1) members of AYD had attacked Ngo several

weeks before Quy’s murder; (2) he called two members of AYD

before calling 911 after Quy was shot; and (3) that he lied to

the police regarding his affiliation with AYD.

     Next, Detective Chad Ellis testified about his interaction

with Le at the scene of Quy’s murder. Detective Ellis stated

that Le identified Ngo, a “big person,” as Quy’s shooter and

described       the     events    surrounding           the    crime   in     a    manner

consistent with Le’s testimony at trial. Defense counsel made no

objection to Ellis’ testimony, even though it raised the same

hearsay     concern       as     Officer     Cooper       and    Detective        Allen’s

testimony.

     Finally, Detective David Allen testified that he spoke with

Phuc and Le at the police station later on the night Quy was

shot,     and    that    both     Le   and       Phuc    identified     Ngo       from     a

                                             5
photographic line-up. Defense counsel objected to the admission

of Allen’s testimony regarding what Le had told him. The trial

court determined that Le’s statements to Detective Allen were

admissible as prior consistent statements to rehabilitate Le’s

previously impeached testimony. Detective Allen then testified

that,     when     he     interviewed         Le,       Le    described        the    events

surrounding      Quy’s    shooting      in     a    manner      consistent      with       Le’s

testimony at trial.

     On    March    23,    2006,      the     jury      found      Ngo   guilty      on    both

counts. The jury sentenced Ngo to 23 years for murder in the

first    degree,    and    three      years       for   use     of   a   firearm      in    the

murder, to run consecutively for a total of 26 years.

     Ngo appealed his conviction, claiming that the trial court

erred in admitting the testimony of Officer Cooper and Detective

Allen.    Accepting      the   Commonwealth’s            concession       of   error,       the

Virginia Court of Appeals (“VCOA”) nonetheless affirmed Ngo’s

conviction,      finding       that    any        error      was     harmless.       Ngo    v.

Commonwealth, No. 1671-06-4, slip op. at 1 (Va. Ct. App. June

17, 2008). The court noted that while the evidence of Ngo’s

guilt was not overwhelming, the improperly admitted hearsay was

cumulative of other uncontested evidence, namely the eyewitness

testimony, photographic identification, and the testimony from

Detective Ellis to which trial counsel failed to object. The

Virginia Supreme Court denied Ngo’s petition for appeal. Ngo v.

                                              6
Commonwealth, No. 082065 (Va. Mar. 10, 2009), reh’g denied (Va.

Apr. 24, 2009).

                                            B.

       In April 2010, Ngo sought post-conviction relief in state

court,    claiming,        in    pertinent         part,    that     trial    counsel     was

ineffective for not objecting to the photographic line-up and

the Ellis hearsay. Ngo argued that counsel’s neglect provided

the VCOA with the basis on which to find harmless error on

direct    appeal.        After    a    hearing,      the     state    court     denied    the

petition,        finding     that      trial        counsel’s       omissions       did   not

prejudice Ngo. Ngo v. Commonwealth, No. CL-2010-6101, slip op.

at 5 (Va. Cir. Ct. May 18, 2011). The court explained that

“there    was     substantial         evidence       of    [Ngo’s]     guilt,       including

[Phuc     and     Le’s     testimony]”      and       that     their       “testimony     was

corroborated       by     other       evidence      in     addition    to     the    hearsay

evidence that was erroneously admitted.” J.A. 66-67.

       The      Virginia    Supreme       Court       denied       Ngo’s     petition     for

appeal. Ngo v. Commonwealth, No. 111512 (Va. Oct. 27, 2011).

                                            C.

        In January 2012, Ngo filed a 28 U.S.C. § 2254 petition in

the Eastern District of Virginia. In his petition, Ngo alleged

that     trial     counsel       rendered          deficient       performance       by   not

objecting to each instance of inadmissible hearsay, specifically

the testimony of Detective Ellis. Ngo asserted that counsel’s

                                               7
carelessness prejudiced him in two distinct ways: it undermined

confidence in the jury’s verdict and it precluded a successful

direct appeal.

       Rejecting       each    of    Ngo’s   contentions,          the       district    court

determined       that     the       state    post-conviction             court’s      finding

regarding the sufficiency of the evidence was supported by the

fact   that     Phuc    and     Le’s    accounts       of   Quy’s       murder    were     very

similar. Further, the court noted that Phuc and Le’s testimony

was corroborated by the physical evidence at the scene of the

crime and by police officer testimony regarding Ngo’s tattoos

and heavy build.

       The district court also determined that Ngo could not show

prejudice       because       the   bolstering     testimony            to   which   counsel

failed    to    object    was       cumulative     of       the   improperly         admitted

hearsay    to    which    counsel       raised     a    proper      objection        but   was

overruled.       Accordingly,          the   district        court       dismissed       Ngo’s

petition.

       We granted Ngo’s request for a certificate of appealability

as   to   one    issue:       whether    Ngo’s     counsel        was    constitutionally

ineffective in failing to consistently object to the improper

admission of hearsay during Ngo’s trial.

                                             II.

       We review a district court’s dismissal of a habeas petition

de novo, keeping in mind the constraints of 28 U.S.C. § 2254.

                                              8
See Muhammad v. Kelly, 575 F.3d 359, 367 (4th Cir. 2009). Under

the Antiterrorism and Effective Death Penalty Act (AEDPA), we

cannot grant relief unless the state court’s final decision on

the merits

      (1) resulted in a decision that was contrary to, or
      involved an unreasonable application of, clearly
      established Federal law, as determined by the Supreme
      Court of the United States; or

      (2) resulted in a decision that was based on an
      unreasonable determination of the facts in light of
      the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Moore v. Hardee, 723 F.3d 488, 495 (4th

Cir. 2013).

                                            A.

      Ngo   first    contends        that   the    state    post-conviction         court

made an unreasonable determination of the facts. We presume that

the state court’s factual findings are sound unless Ngo “rebuts

the   ‘presumption       of     correctness         by     clear     and     convincing

evidence.’”     Miller-El       v.    Dretke,      545     U.S.    231,     240   (2005)

(quoting 28 U.S.C. § 2254(e)(1)).

      Ngo   insists     that    the    state      court    erred    by    finding   that

there was substantial evidence and that the eyewitness testimony

was corroborated by other evidence. But Ngo has not shown by

clear and convincing evidence that the state court was incorrect

(to   say     nothing     of     “unreasonable”)            to     credit     the    two

eyewitnesses,       including    their      photographic          identifications     of



                                            9
him as the shooter, as corroborated by Detective Allen, as well

as their in-court identifications. Ngo attempts to negate the

effect      of     the     eyewitness         testimony       by   highlighting        minor

inconsistencies           in    the    testimony      of    the    two   witnesses.         The

record reflects that Le and Phuc testified to a substantially

similar      series       of    events,        and   both     identified      Ngo      at    a

photographic lineup following the murder and later in court.

Their unwavering identification of Ngo would be sufficient on

its   own,       but    there   is    also     corroborating       testimony      of   their

photographic           identification        from    Detective     Allen,    as   well       as

physical evidence that supports the eyewitness testimony (albeit

not their identification of Ngo as the shooter). We agree with

the district court that Ngo has not offered anything that would

amount      to    the     clear       and     convincing      evidence      necessary       to

overcome the presumption in favor of the state court’s factual

findings.

                                               B.

      Ngo    next        contends      that    the    state    post-conviction         court

unreasonably applied clearly established federal law. A state

court’s decision is objectively unreasonable under AEDPA where

the state court “correctly identifies the governing legal rule

but applies it unreasonably to the facts of [the particular]

case, or if the court is unreasonable in refusing to extend the

governing legal principle to a context in which the principle

                                               10
should have controlled.” Barbe v. McBride, 521 F.3d 443, 543-54

(4th Cir. 2008) (internal quotation marks omitted).

       Ngo does not dispute that the state post-conviction court

applied     the     correct      test    as    dictated       by     Strickland    v.

Washington, 466 U.S. 668, 690-94 (1984). “Where a habeas corpus

petition alleges ineffective assistance of counsel, we review

the claim not only through the strictures of the AEDPA but also

‘through the additional lens of Strickland and its progeny.’”

Hardee at 495-96 (quoting Richardson v. Branker, 668 F.3d 128,

139 (4th Cir. 2012)). Strickland lays out a two-part test for a

petitioner to demonstrate that he did not receive the effective

assistance of counsel: first, that the petitioner’s counsel’s

performance was “outside the range of professionally competent

assistance”; and second, that there is a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at

690-94;   Winston       v.    Pearson,   683   F.3d    489,    504-05     (4th    Cir.

2012). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at

694.

       We will focus our analysis on the prejudice prong, as that

is     where      the    state      post-conviction       court        rested     its

determination. See id. at 697 (stating that “a court need not

determine      whether       counsel’s   performance    was        deficient   before

                                          11
examining the prejudice suffered by the defendant as a result of

the alleged deficiencies”). 1 At the outset, Ngo asks us to decide

if, when a habeas petitioner raises a question of ineffective

assistance of trial counsel for failing to preserve an issue for

direct    appeal,    our   prejudice   analysis     looks   to    whether   the

outcome of the direct appeal would have been different, or if

the outcome of the original trial must be called into question.

While this is an interesting issue, 2 this case does not require

us to decide it; Ngo’s claim fails either way.

     We   agree     with   the   district   court   that    the   state   post-

conviction court did not unreasonably apply clearly established


     1
       We do note, however, that the prosecution conceded the
error made by counsel in the state court proceedings. The Warden
now attempts to argue that the state trial court was not in
error in admitting the disputed testimony. We need not decide
whether lawyers for the Commonwealth of Virginia may have it
both ways in this fashion.
     2
       The federal appellate courts are split on this issue.
Compare Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006)
(rejecting prejudice analysis which relies on a different
outcome on appeal as opposed to the entire criminal proceeding),
and Smith v. Jago, 888 F.2d 399, 405 (6th Cir. 1989) (same) with
Parker v. Ercole, 666 F.3d 830, 834-35 (2d Cir. 2012)
(conducting a Strickland analysis on whether outcome on appeal
would have been different had trial counsel preserved the
objection), and Gov’t of Virgin Islands v. Forte, 865 F.2d 59,
64 (3d Cir. 1989) (“While we realize that ordinarily the
Strickland principles are advanced when the contention is made
that the trial cannot be relied upon to have produced a just
result, we see no logical reason why they should not be
applicable when the defendant was denied a just result on appeal
because of the ineffectiveness of his attorney at the trial.”).



                                       12
federal law as there is not a reasonable probability that either

the outcome of the trial, or the direct appeal, would have been

different had Ngo’s trial counsel objected to the admission of

Detective Ellis’ testimony.

      Ngo   has     not      shown    that      if    his    trial      counsel    had   acted

differently, there is a reasonable probability that his trial

outcome would have changed. During the trial, the judge ruled on

the admission of two very similar witnesses, Officer Cooper and

Detective Allen, on the same grounds of hearsay. Ngo does not

suggest, and nothing else indicates, that the judge would have

ruled     differently          on     the       admission         of     Detective       Ellis’

testimony.        Moreover,         even       if    the    judge       had    sustained    an

objection        (had    one   been        made)     to     the   Ellis       testimony,    the

content     of    his    testimony         –    corroborating          Le’s    story   of   the

shooting and Le’s identification of Ngo as the shooter – already

was   presented         to   the     jury      through       Le’s      own    testimony,    its

similarity to Phuc’s testimony, and the corroboration of Phuc’s

testimony from the other police officers whose testimony was

allowed     over    defense         counsel’s        objections.        Ngo’s     speculative

argument that it was the singular power of the Ellis testimony

that tipped the credibility of Le and Phuc in favor of the

prosecution is just that, speculation, and the district court

was right to reject it.



                                                13
     Nor has Ngo shown a reasonable probability that the outcome

would have been different on direct appeal. The VCOA held that

the admission of the testimony, over objection, from Officer

Cooper and Detective Allen was harmless error, as it was “merely

cumulative of other, undisputed evidence.” J.A. 37. Among the

pieces of the other, undisputed evidence, the VCOA cited to was

Detective Ellis’ testimony, the basis now asserted for trial

counsel’s ineffectiveness. Ngo contends that without this piece

of evidence, which would not have received the appellate court’s

consideration     in     its   harmlessness     analysis     but   for   trial

counsel’s failure to object to its admission, there was not an

adequate basis for the VCOA to find the admission of hearsay

testimony harmless error. Thus, he contends, he likely would

have obtained a reversal on appeal and a new trial. We disagree.

     As   we    reason    above,   Ngo    overstates   the   significance   of

Detective Ellis’ testimony. While the VCOA did rely on it, the

testimony was just one of several pieces of evidence, as we have

discussed: even after removing Detective Ellis’ testimony, there

still remains Phuc and Le’s testimony that Ngo was the shooter,

including      their     out-of-court     and   in-court     identifications;

Detective Allen’s testimony that Phuc and Le identified Ngo in

the photographic lineup (which was certainly admissible under

Virginia law); and the physical evidence regarding the location



                                         14
of shell casings and the bullet holes in Quy’s car, which align

with Phuc and Le’s testimony.

     In short, Ngo has failed to show that but for his trial

counsel’s failure to object, the outcome of either his direct

appeal or his trial would have been different. We agree with the

district   court   that   the   state    post-conviction   court    did   not

unreasonably apply clearly established federal law in coming to

this same conclusion.

                                   III.

     For the reasons stated above, the judgment of the district

court is

                                                                   AFFIRMED.




                                    15
