State of Louisiana Versus Frank Kang

STATE OF LOUISIANA NO. 19-KH-227

VERSUS FIFTH CIRCUIT

FRANK KANG COURT OF APPEAL

STATE OF LOUISIANA

March 17, 2020

Mary E. Legnon
Chief Deputy Clerk

IN RE FRANK KANG

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT
COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
DANYELLE M. TAYLOR, DIVISION "O", NUMBER 00-1409

Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and Stephen J. Windhorst

WRIT DENIED

Relator, Frank Kang, seeks review of the district court’s March 14, 2019
ruling denying his second Application for Post-Conviction Relief (second APCR), a
Motion to Supplement Second Application for Post-Conviction Relief with
Additional Evidence of Actual Innocence (motion to supplement), and a Motion to
Supplement Second Application for Post-Conviction Relief with Newly Discovered
Evidence (motion to supplement with newly discovered evidence). For the
following reasons, we deny relator’s writ.

Procedural History

On November 16, 2000, a jury found Kang guilty of second degree murder.
He is currently serving a sentence of life imprisonment at hard labor without benefits
for this conviction. On November 21, 2005, relator filed his first APCR, which the
district court denied on May 4, 2006. After multiple proceedings and hearings in the
district court, and review by this Court and the Louisiana Supreme Court, Kang was
unable to obtain post-conviction relief.

Federal Court Proceedings

On June 25, 2015, Kang filed a federal habeas petition in the United States
District Court for the Eastern District of Louisiana, whereupon a hearing was held
on February 17, 2016. On March 7, 2016, Judge Wilkinson issued a Stay Order and
Reasons, staying the federal habeas corpus proceeding until “after the finality of all
state post-conviction review through the Louisiana Supreme Court related to the
unexhausted claims and arguments asserted in the original petition and the

19-KH-227

supplemental memorandum in support of the petition.” Judge Wilkinson concluded
that Kang’s ineffective assistance of counsel claims were not “plainly meritless,”
and that he had “presented a colorable actual innocence argument as a basis to excuse
any state imposed procedural default of his ineffective assistance of trial counsel
claims.”

State Court Proceeding on Kang’s Second APCR

After Judge Wilkinson’s March 7, 2016 Order, on May 3, 2016, Kang,
through new post-conviction counsel, filed a second APCR with the district court.
On February 27, 2018, the district court summarily denied relator’s second APCR
finding that it was untimely, repetitive, and successive. Kang filed a writ application
challenging the denial of his second APCR and discovery motions with this Court.
On January 9, 2019, this Court vacated the district court’s February 27, 2018 denial
of Kang’s second APCR and the denial of his discovery motions. State v. Kang, 18-
KH-155 (La. App. 5 Cir. 1/9/19) (unpublished writ disposition). Further, this Court
remanded the matter for the district court to address whether Kang has presented
newly discovered exculpatory evidence sufficient to meet the exceptions of the time
bar under La. C.Cr.P. art. 930.8 and successive filings under La. C.Cr.P. art. 930.4,
and if so, to then consider the merits of Kang’s discovery motions and his second
APCR, and to conduct an evidentiary hearing, if necessary. Id.

On January 15, 2019, Kang filed a Motion to Supplement Second Application
for Post-Conviction Relief with Additional Evidence of Actual Innocence (motion
to supplement) with the district court. Kang also filed a Motion to Supplement
Second Application for Post-Conviction Relief with Newly Discovered Evidence
(motion to supplement with newly discovered evidence) with the district court on
March 8, 2019. On March 14, 2019, the district court denied the second APCR, the
motion to supplement, and the motion to supplement with newly discovered
evidence.

In its March 14, 2019 ruling, the district court reviewed Kang’s alleged newly
discovered evidence. It determined that none of the listed evidence qualified as
newly discovered evidence for purposes of La. C.Cr.P. art. 930.8(A)(1)1 inasmuch
as the facts upon which his claims were predicated were located in the court record
months prior to trial, or known to trial counsel, and/or known to relator at the time
of the shooting. The district court determined, in pertinent part:

The Buras report and Quoc Nguyen [sic] statement and line-ups
were all located in the court record prior to trial. Petitioner is imputed

1
In the March 14, 2019 ruling, the district court specifically outlined relator’s alleged “new” evidence as
follows: Lieutenant Buras’s supplemental police report dated March 4, 2000 (located in court record pre-
trial 6/22/2000); transcript of Quoc Nguyen statement dated March 4, 2000 (located in court record pre-trial
6/22/2000); the line-ups shown to Quoc Nguyen by Lieutenant Buras (located in court record pre-trial
6/22/2000); James Oh’s affidavit recanting post-arrest statement and swearing Duy Hoang was the shooter;
Frank Kang’s affidavit explaining why he confessed; Charlie Kang’s affidavit discussing events after the
shooting; statement of Thaddeus Johnson, Duy Hoang’s cellmate, stating Duy Hoang said he was the
shooter; statement of William Smith stating Duy Hoang said he was the shooter and Kang was taking the
charge; attorney Davidson Ehle’s affidavit stating he was unaware of Quoc Nguyen’s identification of Duy
Hoang as the shooter; attorney Jim Williams’ response to a bar complaint; trial investigator Steve Halbert’s
affidavit; Chan Won Kang’s affidavit; letter from Duy Hoang to Frank Kang; “minute entry email” from the
Jefferson district court’s clerk of court to Sam Dalton (post-conviction counsel) stating JPSO had ordered
them not to produce gunshot residue kit; and photograph of relator.

2

to know said information. Moreover, Kang’s father states in his
affidavit that they became aware of said statements when Laurie White
was acting as appellate counsel. Kang’s father does not supply an exact
date, but states it was after direct appeal in 2005, and it must have been
prior to 2007, when she was seated as Criminal District Court for the
Parish of Orleans. Regardless, this was much longer than 2 years ago.
Additionally, as Kang’s father states, the report and statements were
found in trial counsel’s files. Newly discovered evidence is not the
same this [sic] as late discovered evidence. Thus, any claims arising
from this “evidence” is barred from review as untimely.

Mostly, the other evidence mostly pertains to Kang’s false
confessions, taking the charge, committed perjury at trial, coerced by
co-defendants to confess, etc. … None of this information qualifies as
“newly discovered evidence,” as Frank Kang was present at the time of
the shooting. … He never tried to prove that he was not the shooter.
Assuming arguendo that the multiple statements now put forth as
“evidence” are in fact true, which is quite questionable, all of those facts
for which the claims are predicated were clearly known to Frank Kang
at the time they occurred. He was present.

As for Quoc Nguyen’s affidavit, the district court found that (1) this affidavit
reiterates information that was in the supplemental police report and statements
located in the court record prior to trial; (2) was submitted nineteen years after the
shooting in this case; and (3) failed to satisfy the due diligence requirement as the
facts upon which the information is based was clearly known to relator at the time
of the incident.

Considering the above and that this case became final in 2004, the district
court found that Kang failed to meet his burden of proving the due diligence
requirement set forth in La. C.Cr.P. art. 930.8(A)(1) specifically noting that “he
cannot prove due diligence in attempting to discover his own alleged deception
during trial”; that the second APCR was untimely filed; that the second APCR was
successive and repetitive citing La. C.Cr.P. art. 930.4(D) and (E); and that Kang’s
claim of ineffective assistance of post-conviction counsels was procedurally barred
in that it is not a cognizable claim under La. C.Cr.P. art. 930.3.

On the same date as the May 13, 2019 return date, relator, through post-
conviction counsels, filed the instant writ application seeking review of the district
court’s March 14, 2019 ruling. Relator claims that despite this Court’s remand, the
district court “again procedurally defaulted” the second APCR without first holding
an evidentiary hearing on whether the evidence was newly discovered.

For the reasons discussed, we find no error in the March 14, 2019 ruling based
on the showing made.

Law and Analysis

Relator asserts that his actual innocence claim excuses any procedural
defaults.2 The Louisiana Supreme Court has held that a bona fide claim of actual

2 Kang seeks review of the denial of the second APCR and his discovery requests and raises the following
issues: 1) whether the district court erred in failing to find that his actual innocence excuses any procedural
default; 2) whether the district court erred in finding that his post-conviction counsels’ ineffective assistance
3

innocence must involve “new, material, noncumulative,” and “conclusive”
evidence, which meets an “extraordinarily high” standard and undermines the
prosecution’s case. State v. Conway, 01-2808 (La. 4/12/02), 816 So.2d 290, 291. In
State v. Pierre, the supreme court stated that in order for petitioner to meet the
threshold requirement for an actual innocence claim, he must show that in light of
new evidence, no juror, acting reasonably would have voted to find him guilty
beyond a reasonable doubt. Pierre, 13-873 (La. 10/15/13), 125 So.3d 403, 409.

After carefully reviewing the record, we find that relator does not meet the
extraordinarily high standard set forth by the Louisiana Supreme Court to state a
bona fide claim of actual innocence. At his 2000 trial, relator not only relied on a
self-defense theory but testified that he shot the victim. Specifically, at trial, relator
testified that “As the car was coming, I just ducked down like this and started
shooting the gun. It was so powerful, it was just going everywhere.” Twelve years
later, in 2012, relator first advanced an alternate and inconsistent defense that he was
not the shooter. Clearly, relator was aware that he could have presented a defense
that he was not the shooter given that he still admits that he was present during the
crime. Thus, it is highly suspicious that he waited so many years to raise it and
makes the reliability of the recently-obtained affidavits presented in the second
APCR questionable, particularly given that they are not supported by any other
documentation. Further, even if relator is now being truthful that he lied to the police
and perjured himself at trial, he does not meet the burden of proving the
“extraordinary high standard” that he is actually innocent, even in his recent attempt
to set forth alleged newly discovery evidence.

In addition, Louisiana case law also provides that recantations “are highly
suspicious,” and except in rare exceptions, a new trial should not be granted on the
basis of a recantation because it is tantamount to perjury so as to discredit the witness
at a later trial. State v. Clayton, 427 So.2d 827, 822 (La. 1982) and State v. McClain,
04-98 (La. App. 5 Cir. 6/29/04), 877 So.2d 1135, writ denied, 04-1929 (La.
12/10/04), 888 So.2d 835. In State v. Watts, 00-602 (La. 1/14/03), 835 So.2d 441,
the court considered the defendant’s newly discovered evidence claim meritorious
but it still stated, “It is appropriate to be skeptical when newly discovered evidence
is offered after a trial. Such evidence must be thoroughly and cautiously
scrutinized.” In the case at hand, relator’s alternate and inconsistent defense is based
on a recantation that he falsely confessed at the urging of the real shooter, Duy
Hoang. Further, relator seeks relief based on his co-defendant’s recantation of the
events surrounding the shooting. He also provides the March 7, 2019 affidavit of
Quoc Nguyen, an independent witness, who now attests that he told JPSO that Duy
Hoang was the shooter. Relator, Duy Hoang, and James Oh were all indicted for
second degree murder in this matter. However, relator cannot “switch places” with
Duy Hoang at this late stage in the proceedings in complete contradiction to the
defense he presented at trial and to which he confessed at trial. Even if relator is
now being truthful that he lied to the police and perjured himself at trial, he has not
set forth any other documents or evidence that would now substantiate his

excuses any procedural default; 3) whether the district court erred in finding that his claim of actual
innocence was repetitive when the Louisiana Supreme Court recognized actual innocence as a stand-alone
claim while the second APCR was pending; 4) whether the district court erred in finding that relator did not
timely submit the newly discovered evidence in support of his post-conviction claims; 5) whether the district
court erred in finding that his claims of ineffective assistance of counsel are not cognizable in an APCR;
and 6) whether the district court erred in procedurally defaulting the second APCR without first allowing him
discovery on disputed issues of fact that cannot be resolved on the pleadings and without first conducting
an evidentiary hearing.

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recantation or the new statements from witnesses, or like in Pierre, he has not made
an “affirmative case of ‘conclusive exoneration.’”

Although intertwined with his actual innocence argument, we next consider
relator’s arguments regarding the alleged newly discovered evidence. In his writ
application, relator asserts that he did not know at the time of trial, or in the early
stages of his first post-conviction proceedings, that there was evidence known to the
State that corroborated what actually happened and that was inconsistent with his
false confession.

On remand, we instructed the district court to address “Whether relator has
presented newly discovered exculpatory evidence that meets the exception of the
time bar under La. C.Cr.P. art. 930.8, and the exception for successive filings.” State
v. Kang, supra. The March 14, 2019 order indicates that the district court considered
relator’s alleged “new” evidence and set forth reasons the evidence failed to qualify
as newly discovered evidence under La. C.Cr.P. art. 930.8. We find that the district
court properly determined that “The facts upon which all of the claims are predicated
were either located in the court record months prior to trial, known to trial counsel,
and/or known to the petitioner at the time of the shooting.” In light of the fact that
the alleged new evidence is to further an alternate and inconsistent defense that
relator was not the shooter but was present at the shooting, we find this conclusion
an accurate summation. Because relator was present at the shooting, he had
knowledge of the facts that he now seeks to provide evidence to support. The
exception in La. C.Cr.P. art. 930.8(A)(1) applies to “facts upon which the claim is
predicated were not known to the petitioner or his prior attorneys.”

Further, we cannot say the district court erred in finding that none of the
alleged new evidence qualified under La. C.Cr.P. art. 930.8, after we remanded for
further consideration on that issue. The Buras report, Quoc Nguyen’s statement, the
substantive portion of his grand jury testimony, and line-ups were located in the
court record and provided to the defense prior to trial. In his affidavit, relator’s father
acknowledges that the report and statements were found in trial counsel’s files. As
recognized by the district court, newly discovered evidence and late discovered
evidence are not the same. While relator presents evidence pertaining to his false
confessions for pleading guilty for Duy Hoang, committing perjury at trial, or being
coerced by co-defendants to confess, none of these new arguments qualify as “newly
discovered evidence” because relator was present at the time of the shooting and his
obtaining this evidence results from his late decision to try to prove that he was not
the shooter. Given that relator relied on self-defense at trial, it appears unlikely he
would have presented this evidence in light of the fact that it contradicts a defense
based on self-defense.

We also find no error in the district court’s conclusion that relator is not
entitled to application of the exception to the time bar under La. C.Cr.P. art.
930.8(A)(1) because he cannot meet the due diligence requirement.

As to relator’s argument that ineffective assistance of post-conviction
counsels excuses any procedural defects, we find that the district court did not err in
finding that this claim was procedurally barred from review as it is not a claim
cognizable in Louisiana. See La. C.Cr.P. art. 930.3. This Court is bound by the
Louisiana Supreme Court’s ruling in State v. Deloch, 13-1975 (La. 5/16/14), 140
So.3d 1167. In Deloch, the Louisiana Supreme Court held that unlike the rule
allowing federal courts conducting habeas review of final state court convictions to

5

consider the merits of a claim otherwise procedurally defaulted, that decision is not
applicable to post-conviction claims raised in state court. Id. In other words,
relator’s claim that his post-conviction counsels were ineffective does not excuse
procedural defects in Louisiana post-conviction proceedings. Id. See also In re
Sepulvado, 707 F.3d 550, 553 (5th Cir. 2013), which held that the ruling in Martinez
v. Ryan does not confer a constitutional right to effective assistance of post-
conviction counsel nor does it allow a defendant to present an otherwise procedurally
defaulted ineffective assistance of counsel claim. Martinez, 566 U.S. 1, 132 S.Ct.
1309, 182 L.Ed. 2d 272 (2012) (holding that inadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a prisoner’s procedural
default of a claim of ineffective assistance at trial).

After careful review of the instant writ application, the State’s opposition to
the application, and all the documents presented by the parties, we find no error in
the district court’s March 14, 2019 ruling summarily denying the second APCR as
untimely and successive as well as denying the motion to supplement, and the
motion to supplement with newly discovered evidence. Accordingly, we deny this
writ.

Gretna, Louisiana, this 17th day of March, 2020.

SJW
JGG
MEJ

6

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 03/17/2020 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

19-KH-227
E-NOTIFIED
Avery B. Pardee (Relator) Terry M. Boudreaux (Respondent)
Darren A. Allemand (Respondent) Thomas J. Butler (Respondent)

MAILED
Michael W. Magner (Relator) Honorable Paul D. Connick, Jr.
Attorney at Law (Respondent)
201 St. Charles Avenue District Attorney
50th Floor Twenty-Fourth Judicial District
New Orleans, LA 70170 200 Derbigny Street
Gretna, LA 70053