                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TIN TRI NGUYEN,                                  No. 09-15788

              Petitioner - Appellant,            D.C. No. 3:06-cv-01414-JSW

  v.
                                                 MEMORANDUM *
RODERICK HICKMAN, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                             Submitted July 18, 2012 **
                             San Francisco, California

Before: CLIFTON and MURGUIA, Circuit Judges, and COLLINS, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Raner C. Collins, District Judge for the U.S. District
Court for the District of Arizona, sitting by designation.
      California state prisoner Tin Nguyen appeals the district court’s denial of his

petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. We conclude that the

California state court did not unreasonably apply clearly established federal law or

base its decision on an unreasonable determination of the facts in denying

Nguyen’s ineffective assistance of counsel claims now on appeal. Accordingly, we

affirm.

      Under Strickland v. Washington, 466 U.S. 668 (1984), in order to prevail on

an ineffective assistance of counsel claim, a habeas petitioner must show that

counsel’s performance was deficient and that the deficient performance prejudiced

the defense. The state court’s determination that Nguyen’s trial counsel made a

tactical decision in choosing not to object to the field identification evidence

collected during a traffic stop the night before the murder was not “based on an

unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). Although the

decision may be called into question in hindsight, Nguyen has failed to provide

sufficient evidence to combat the strong presumption that this tactical decision was

“within the wide range of reasonable professional assistance.” Strickland, 466 U.S.

at 689. Nguyen has also failed to affirmatively prove a substantial likelihood of a

different result had his trial counsel objected to the introduction of the field

identification evidence. Harrington v. Richter, 131 S. Ct. 770, 792 (2011). The


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primary evidence against him at trial was the testimony of his accomplice, which

the state court reasonably concluded was sufficiently corroborated even without the

field identification cards.

       The state court also did not act unreasonably in denying Nguyen’s

ineffective assistance of counsel claim based on his trial counsel’s failure to object

to the introduction of gang affiliation evidence. “[T]he use of gang membership

evidence to imply ‘guilt by association’ is impermissible and prejudicial.” Kennedy

v. Lockyer, 379 F.3d 1041, 1056 (9th Cir. 2004). Evidence of gang affiliation may

be used, however, to impeach witnesses or to show that certain parties had pre-

existing relationships. See, e.g., United States v. Abel, 469 U.S. 45, 51-53 (1984)

(holding gang evidence admissible to demonstrate racial bias); Windham v. Merkle,

163 F.3d 1092, 1103-1104 (9th Cir. 1998) (holding gang evidence admissible to

demonstrate defendant’s motive for participating in the alleged crimes). Nguyen

has failed to show that he was prejudiced by the introduction of the gang affiliation

evidence. Even if this evidence damaged Nguyen’s defense, the state court

reasonably concluded that the remainder of the case against him was substantial,

including the corroborated testimony of his accomplice directly identifying him as

participating in the crimes.




                                           3
      Nguyen has not met the high burden of showing that the state court’s

determination was unreasonable. Knowles v. Mirzayance, 556 U.S. 111, 123

(2009).

      AFFIRMED.




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