United States District Court, D. Rhode Island
J. McConnell, Jr., United States District Judge
Chum is serving a state prison sentence after a Rhode Island
Superior Court jury convicted him in 2012 of two counts of
felony assault and one count of using a firearm when
committing a crime of violence. He is here seeking habeas
relief under 28 U.S.C. § 2254, contending that his
constitutional rights were violated; specifically, that he
received ineffective assistance of counsel in violation of
Sixth Amendment. For the reasons below, the Court DENIES
FACTS AND PROCEDURAL BACKGROUND
men watched from the front porch of a house in Providence
while two cars slowly drove by. Emerging from one of the cars,
Mr. Chum along with some associates approached the house
looking for retribution because a resident of that address
had thrown a brick and a tire iron through one of the
associate's windows after an attempted drug transaction.
Mr. Chum told the associate to shoot the men on the porch.
The associate fired one shot, which hit the porch railing,
and he and Mr. Chum fled.
Police detectives arrested Mr. Chum, and read him his
Miranda rights. Mr. Chum agreed to talk to the
police and admitted his role in the shooting. The State charged
him with two counts of felony assault with a dangerous
weapon, one count of conspiracy to commit assault with a
dangerous weapon, one count of carrying a firearm while
committing a crime of violence, and one count of discharging
a firearm while committing a crime of violence.
Chum's case went to trial. Before opening statements, the
court instructed the jury, "statements of lawyers are
not evidence. The only evidence you consider is that which
comes in from the witness stand or any exhibits that may be
marked as full exhibits." ECF No. 8-3 at 196. During his
opening statement, the prosecutor told the jury that he would
prove the State's case
with the defendant's words himself, because, when the
detectives came to the Cranston Police Department, they read
him his rights and sat down and talked to him. And the
defendant told him that he was contacted by [an associate]
and told that she needed him to take care of something; that
she wanted them to take care of some kid * * * for smashing
her windows! that he drove down to [ ] Avenue with [two
associates] so that they could point out the house; that he
approached the house with a friend, * * *; that he approached
some guys on the porch; that he ordered [an associate] to
shoot the guys; that [three other associates] were in a
different car waiting around the corner; and that he and [the
other associate] fled in separate cars, one red, and one
white. You'll hear that. You'll hear about the
defendant giving that statement to the Providence Police.
Id. at 204-205; see also Chum v. State, No.
PM131919, 2014 WL 6855341, at *2 (R.I. Super. Dec. 1, 2014).
case proceeded through trial and the prosecutor rested
without producing any evidence of the confession he promised
in his opening statement. The trial court instructed the jury
three additional times during the trial that the lawyer's
statements and arguments are not evidence. The court entered
judgment of acquittal on the conspiracy count and the State
dismissed the charge of carrying a firearm while committing a
crime of violence. The jury convicted Mr. Chum on the three
the Rhode Island Supreme Court affirmed Mr. Chum's
conviction, he filed for post-conviction relief in the Rhode
Island Superior Court for ineffective assistance of counsel
because his lawyer did not move for a mistrial at the close
of the State's case when the State failed to produce
evidence of his confession. The trial court rejected his
arguments in Chum v. State, No. PM131919, 2014 WL
6855341, which the Rhode Island Supreme Court affirmed.
Chum v. State, 160 A.3d 295, 299-300 (R.I. 2017).
Mr. Chum then filed the instant Petition for a Writ of Habeas
Corpus setting forth a single claim of ineffective assistance
of counsel under 28 U.S.C. § 2254. ECF No. 1. The State
moved to dismiss the Petition, which the Court denied.
See Text Order, Apr. 2, 2018. The parties later
submitted the trial transcript and further briefing, making
the Petition ready for this Court's consideration.
STANDARD OF REVIEW
Court knows that its review of Mr. Chum's case is
limited. Both United States Supreme Court precedent, see
e.g., Cavazos v. Smith, 565 U.S. 1 (2011), and the
Congressional mandate in the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), Pub. L. No.
104-132, 110 Stat. 1214, restrict federal court review of
state court convictions and sentences. The AEDPA
"reflects the view that habeas corpus is a 'guard
against extreme malfunctions in the state criminal justice
systems,' not a substitute for ordinary error correction
through appeal." Harrington v. Richter, 562
U.S. 86 (2011) (quoting Jackson v. Virginia, 443
U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in
the AEDPA, a state prisoner is entitled to relief where a
state court adjudication
(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 ...