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Nguyen v. Miller-Stout

United States District Court, W.D. Washington, Tacoma

August 12, 2014

DOANH QUOC NGUYEN, Petitioner,
v.
MAGGIE MILLER-STOUT, Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION TO APPOINT COUNSEL AS MOOT

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 15), Plaintiff Doanh Quoc Nguyen's ("Nguyen") objections to the R&R (Dkt. 16), and his motion to appoint counsel (Dkt. 17).

I. BACKGROUND

On March 10, 2014, Nguyen filed a 28 U.S.C. § 2254 petition for habeas relief. Dkt. 1. He seeks relief from his 2011 convictions by jury verdict of one count of firstdegree identity theft, four counts of first-degree theft, five counts of forgery, and one count of second-degree theft, with aggravating circumstances for each offense (position of trust and vulnerability of victims). Id. at 1. Before Judge Strombom, he raised two grounds for relief, including that the admission of an affidavit of fraud denied him a fair trial and that his defense counsel provided ineffective assistance of counsel by failing to object to the admission of the affidavit of fraud. See Dkt. 1 at 5 and 7.

On June 6, 2014, Judge Strombom issued an R&R recommending that the Court deny Nguyen's petition because he failed to demonstrate that the state court adjudication of his claims was contrary to or an unreasonable application of established federal law, or was an unreasonable determination of the facts in light of the evidence presented pursuant to 28 U.S.C. § 2254(d)(1)-(2). See Dkt. 15. She also recommended denying Nguyen a certificate of appealability. Id.

On June 25, 2014, Nguyen filed objections to the R&R. Dkt. 16. Nguyen essentially reiterates as objections the bases for relief that he sought in his petition. He objects to Judge Strombom's R&R because (1) the admission of the affidavit of fraud denied him a fair trial and the ability to face his accuser, and (2) that his defense counsel provided ineffective assistance of counsel by failing to object to the admission of the affidavit of fraud, which he only now claims resulted in a violation of the confrontation clause. See Dkts. 1 at 5 and 7 and 16 at 1-2.

II. DISCUSSION

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b)(3).

The Court finds that Judge Strombom's report and recommendations is correct as to its analysis and conclusion that overwhelming evidence supports Nguyen's guilt such that the admission of the affidavit of fraud does not rise to the level of a constitutional violation which impacted the outcome of trial. Based on that conclusion, there is no legal support for Nguyen's ineffective counsel claim based on the admission of the same affidavit. Nguyen's objections offer no legal argument that demonstrates Judge Strombom's R&R is in error as to these issues. See Dkt. 16.

A. Affidavit of Fraud

"[A] federal habeas court may not prescribe evidentiary rules for the states." Swan v. Peterson, 6 F.3d 1373, 1382 (9th Cir. 1993). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions." Estelle v. McGuire, 502 U.S. 62, 68 (1991). In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Id. ( citing 28 U.S.C. § 2241). The admission of evidence does not provide a basis for habeas relief unless it renders the trial "fundamentally unfair" in violation of due process. McGuire, 502 U.S. at 67-69. To obtain relief, a petitioner must show that, in light of the entire record, the alleged error rendered the entire trial so fundamentally unfair "that there is a reasonable probability that the error complained of affected the outcome of the trial...." Carter v. Armontrout, 929 F.2d 1294 (8th Cir. 1991).

With regard to the admission of the affidavit of fraud, the Washington State Court of Appeals, Division 2, stated:

We agree with Nguyen that a witness may not give an opinion or state a personal belief that the defendant is guilty. State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008). But here, even assuming without agreeing that Mrs.Griffin's affidavit of fraud was the equivalent of unconstitutional impermissible opinion testimony about Nguyen's guilt, Nguyen fails to show that any potential error "caused actual prejudice or practical and identifiable consequences." Montgomery, 163 Wn.2d at 595 ( citing State v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007)).

Dkt. 13, Exhibit 10 at 8. In arriving at this conclusion, the appellate court thoroughly analyzed the evidence in the record and determined "other strong evidence and the jury's verdict - that Nguyen was also guilty of charges not related to the checks listed Mrs. Griffen's affidavit - show that the affidavit of fraud was not the determinative factor here." See id. at 8 and 9.

In reviewing the appellate court's decision and the remainder of the record, Judge Strombom also found that even if the admission of the affidavit of fraud by one of the victims was a violation of Washington's evidence rules, the trial court's admittance of the affidavit did not rise to the level of a constitutional error because there was overwhelming evidence of his guilt. Id. at 7. Judge Strombom correctly observed the overwhelming evidence of guilt in the record:

Mrs. Griffin's stepdaughter Annette Fender and Mr. Nguyen himself both testified that Mr. Nguyen was not permitted access to the Griffins' bank accounts. Dkt. 13, Exhibit 1, at 58; Exhibit 2, at 208-09. Mr. Nguyen admitted at trial he knew where Mrs. Griffin stored her checkbook, he forged and deposited the checks into his bank account, knowing it was wrongful, and then he fled to Vietnam to cash the checks and never tried to contact the Griffins. Id., Exhibit 2, at 188-89; id. at 209, 211, 216, 236. Mr. Nguyen lied to the Griffins about being a medical student and falsely told them he was going to visit family in Wyoming before he fled to Vietnam. Id., Exhibit 1, at 52; Exhibit 2, at 197-98. Annette Fender and a handwriting expert testified that the disputed checks were not written by Mrs. Griffin. Id., Exhibit 1, at 55; id. at 116-17. Large parts of Mr. Nguyen's testimony were contradicted by the testimony of other witnesses and by Mr. Nguyen's own testimony and bank statements. For example, although he testified the $4, 000 check was a loan from Mrs. Griffin, he admitted he never attempted to contact the Griffins after he left the country. Id., Exhibit 2, at 195, 236. Mr. Nguyen testified that the $2, 600 check was merely reimbursement for purchases he had made at Best Buy for Mrs. Griffin from his personal funds, but his own bank statements did not reflect any actual purchases from Best Buy. Id. at 236.

Dkt. 15 at 7. Judge Strombom's conclusion and analysis that overwhelming evidence guilt exists such that the admission of the affidavit of fraud does not rise to a constitutional error affirms Washington State Court of Appeals' determination that even if the evidence was erroneously admitted, it was not unfairly prejudicial.

The Court conurs with Judge Strombom's analysis and conclusion that the admission of the affidavit of fraud did not rise to the level of constitutional error which impacted the outcome of his trial. The R&R is adopted on this basis.

To the extent that Nguyen attempts to raise a confrontation clause claim on the basis of the admission of the affidavit, that issue was not presented to the state courts and is therefore unexhausted. See 28 U.S.C. § 2254 (b).

B. Ineffective Assistance of Counsel

To support an ineffective assistance of counsel claim, a petitioner must satisfy the two-part Strickland test. Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must show that counsel's performance "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 686. Second, the petitioner must show that the deficient performance prejudiced the defense so "as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. To prove prejudice, petitioner must establish a "reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Woodford v. Visciotti, 537 U.S. 19, 22 (2002) (per curiam). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 668-69.

A court need not address both prongs of the test. Strickland, 466 U.S. at 697. If the petitioner makes an insufficient showing on one prong, the analysis ends there. Id. Federal courts "must indulge a presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. The presumption of competence includes a presumption that challenged actions resulted from a reasonable trial strategy. Strickland, 466 U.S. at 689-90.

The Court concurs with Judge Strombom's analysis and decision on the ineffective assistance of counsel claim. Judge Strombom found "Mr. Nguyen cannot affirmatively demonstrate, as he must, that it was necessarily unreasonable for the Court of Appeals to have rejected his Strickland claim." Dkt. 15 at 10. She correctly observed that when Nguyen presented this claim to the Washington Court of Appeals, he argued that there was "no possible strategic reason for permitting improper opinion evidence showing Frances Griffin believed Nguyen was guilty." Dkt. 15 at 10 ( citing Dkt. 13, Exhibit 7). Additionally, she properly noted that "[t]he Washington Court of Appeals adjudicated the ineffective-assistance claim immediately following the court's discussion and rejection of his evidentiary claim." Id., Exhibit 10, at 9. Ultimately, she concluded that the Washington Court of Appeals properly analyzed the claim under Strickland's prejudice prong only. Id. The appellate court stated:

Nguyen also argues that his trial counsel provided ineffective assistance in failing to object to the admission of Mrs. Griffin's affidavit of fraud. To establish ineffective assistance of counsel, Nguyen must show both deficient performance and prejudice. State v. Grier, 171 Wn.2d 17, 32-33, 249 P.3d 1260 (2011). Based on the facts we discuss above, we hold that Nguyen fails to show that the affidavit's admission was prejudicial.
Accordingly, his ineffective assistance argument also fails.

Dkt. 13, Exhibit 10, at 9-10. Because the Court agrees with Judge Strombom and the Court of Appeals' conclusion that it was it not prejudicial error to admit the affidavit of fraud ( see supra ), the Court finds that Mr. Nguyen cannot affirmatively demonstrate that it was necessarily unreasonable for the appellate court to have rejected his Strickland claim. Thus, the Court agrees with Judge Strombom's recommendation that Nguyen's ineffective assistance of counsel claim be denied.

Although Nguyen for the first time attempts to raise an ineffective assistance of counsel claim on the basis that his counsel permitted a confrontation clause violation by failing to object to the admission of the affidavit, that issue was not presented to the state courts and is therefore unexhausted. See 28 U.S.C. § 2254 (b).

III. ORDER

The Court having considered the R&R, Nguyen's objections, his motion for appointment of counsel and the remaining record, does hereby find and order as follows:

(1) The R&R is ADOPTED for the reasons set forth above;

(2) The motion for appointment of counsel (Dkt 17) is DENIED as moot;

(3) This action is DISMISSED; and

(4) A certificate of appealability is DENIED.


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