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