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Nguyen v. Uttecht

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

November 2, 2017

HUNG VAN NGUYEN, Petitioner,



         This 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 herein.

         I. BACKGROUND

         Hung 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 Donohue's findings:

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 sentencing.
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.

         The 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.


         A. Standard of Review

         A 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.

         Under 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).

         B. Judge Donohue Sufficiently Reviewed the ...

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