United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Magistrate Judge James P.
Donohue's report and recommendation (Dkt. No. 91) on
Petitioner Hung Van Nguyen's petition for writ of habeas
corpus (Dkt. No. 12), motion to declare AEDPA
unconstitutional as applied to state prisoners (Dkt. No. 58),
motion to stay proceedings (Dkt. No. 76), motion to compel
Respondent to supplement the record (Dkt. No. 78), and motion
for an order to show cause (Dkt. No. 83). Having thoroughly
considered the report and recommendation, Defendant's
objections, and the relevant record, the Court hereby
OVERRULES Nguyen's objections and ADOPTS the report and
recommendation in its entirety for the reasons explained
Van Nguyen seeks federal habeas review of his Washington
state convictions for first degree assault while armed with a
deadly weapon. (See Dkt. No. 12.) Nguyen's
conviction arose out of a 1996 shooting where two cars
blocked in two other vehicles, and two passengers got out of
the cars and started shooting at the blocked-in vehicles.
(Dkt. No. 33-2.) Nguyen was identified as one of two
shooters, was arrested, and was charged with three counts of
first degree assault while armed with a firearm.
(Id.) Nguyen fled the jurisdiction before his guilty
verdict was read, and was sentenced in 2004 when he was found
and arrested in California. (Id.) The court imposed
consecutive sentences and firearm enhancements because the
crimes involved different victims. (Id.) The
Washington Court of Appeals affirmed the conviction, but
remanded to the trial court for a reduction of the firearm
enhancements to deadly weapon enhancements (down to two years
from five) due to a sentencing error. (Dkt. No. 91 at 3.)
Nguyen unsuccessfully appealed this revised judgment and
sentence and denial of his post-judgment motion to the
Washington Court of Appeals and Supreme Court. (Dkt. Nos.
33-23-33-30, 33-44.) The Court of Appeals then considered and
denied several post-appeal collateral challenges consolidated
as a personal restraint petition (“PRP”). (Dkt.
No. 33-35.) The Washington Supreme Court denied discretionary
review. (Dkt. No. 33-37.) In 2016, the Washington Court of
Appeals and Supreme Court denied Nguyen's second PRP as
untimely. (Dkt. Nos. 33-39, 91 at 5.) Nguyen subsequently
filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2254, incorporating claims from his prior direct
appeal and first PRP. (Dkt. No. 12.) On July 21, 2017,
Magistrate Judge James P. Donohue issued a report and
recommendation denying each of Nguyen's grounds for
relief, and denying him a certificate of appealability. (Dkt.
No. 91 at 43.) Nguyen made the following objections to Judge
1. Nguyen argues that Judge Donohue unreasonably disregarded
material portions of the state record.
2. Nguyen claims that the report and recommendation misstates
and misrepresents learly established federal law on
3. Nguyen asserts that the report and recommendation wrongly
relies on the Washington Court of Appeals decision on his
consolidated PRP, which is not an adjudication on the merits.
He objects that because there is no state court adjudication
on the merits for his claims two through eleven, this court
must review these claims de novo.
4. Nguyen raises additional arguments that merely recast
claims in his habeas petition.
Court has reviewed Judge Donohue's report, and, except
for the findings to which Nguyen objects, adopts it without
further discussion. See United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)
(“[T]he district judge must review the magistrate
judge's findings and recommendations de novo if objection
is made, but not otherwise.”). The Court responds to
Nguyen's objections in detail below.
Standard of Review
district judge reviews objections to a magistrate judge's
report and recommendation de novo. Fed.R.Civ.P. 72(b)(3). The
district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions. Id.
the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal habeas court may grant
relief to a prisoner on claims adjudicated on the merits in
state court only if: (1) the state court's decision was
contrary to or involved an unreasonable application of
clearly established federal law as determined by the Supreme
Court, or (2) the decision was based on an unreasonable
determination of the facts in light of the evidence
presented. 28 U.S.C. § 2254(d). A federal habeas court
may overturn a state court's determination only if it is
“objectively unreasonable” and so erroneous that
“there is no possibility fair minded jurists could
disagree that the state court's decision conflicts with
[Supreme Court] precedents.” Lockyer v.
Andrade, 538 U.S. 63, 69 (2003); Harrington v.
Richter, 562 U.S. 86, 101 (2011).
Judge Donohue Sufficiently Reviewed the ...