United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge.
brings this petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, alleging the denial of his right to a
fair trial and ineffective assistance of counsel. For the
reasons explained below, the petition is denied.
January 13, 2003, Phi Nguyen was severely beaten, stabbed,
bound with a belt and duct tape, and eventually thrown into
the trunk of a car. His assailant began driving only to pull
over when he realized Phi Nguyen was trying to escape. Nearby
residents saw the driver exit the vehicle and attempt to
strike Phi Nguyen with what appeared to be a metal bar or
pipe. The assailant ran away, and the residents called 911
and rendered aid to Phi Nguyen. After a short period of time,
police officers and medical personnel arrived and transported
Phi Nguyen to a hospital.
Nguyen identified petitioner as the perpetrator of the
assault and kidnapping. Phi Nguyen told police that he had
borrowed money from petitioner and did not have all of the
money to repay him. When Phi Nguyen went to petitioner's
house to repay part of the money he owed, petitioner beat him
with a steel bar, stabbed him in the back, and bound his
legs, arms, and mouth with a belt and duct tape. Petitioner
left Phi Nguyen in an outside shed for 15-20 minutes, where
he drifted in and out of consciousness. Petitioner then took
Phi Nguyen from the shed and placed him the trunk of Phi
Nguyen's car. Petitioner told Phi Nguyen that he was not
“going to live anymore” and, according to police
reports, said he was going to cut Phi Nguyen's throat and
dump his body in the river. Transcript of Trial Proceedings
(Trial Tr.) at 255; Resp. Ex. 128. As petitioner drove, Phi
Nguyen attempted to escape from the trunk by unbinding
himself and pushing down the back seat. Petitioner noticed
the escape attempt, pulled over, and tried to beat Phi Nguyen
with the metal bar, leading to the 911 call and the arrival
was arrested and charged with eight counts of Attempted
Aggravated Murder, two counts of Assault in the First Degree,
two counts of Kidnapping in the First Degree, Robbery in the
First Degree, and Unauthorized Use of a Vehicle. Resp. Ex.
102. With respect to the eight counts of Attempted Aggravated
Murder, the State was required to prove beyond a reasonable
doubt that petitioner “intentionally attempted to cause
the death of Phi Nguyen” in furtherance of the
particular felony alleged in each count. See Resp.
Ex. 102; Or. Rev. Stat. §§ 161.405 (attempt),
163.095 (aggravated murder), 163.115 (murder). Petitioner
pled not guilty to the charges.
to trial, the parties engaged in judicial settlement
discussions resulting in a plea offer of 90 months. The State
also indicated that it would consider a counter offer of 70
months with good time credits. Petitioner rejected the
State's offer, and the case proceeded to trial.
State called Phi Nguyen to testify during its case-in-chief.
Phi Nguyen told the jury he did not want to testify against
petitioner and instead wanted the charges dropped. After
further questioning, Phi Nguyen said he wanted to “take
a Fifth.” Trial Tr. at 238. The trial court removed the
jury until the issue was resolved. Phi Nguyen continued with
his testimony and identified petitioner as the assailant who
beat and kidnapped him and threatened his life. Trial Tr.
247-49, 253-56. During rebuttal closing argument, the State
argued that Phi Nguyen was reluctant to testify because he
was afraid petitioner would retaliate against him or his
family. Petitioner presented no witnesses or evidence in his
defense, and the jury convicted him of all charges. At
sentencing, the trial court imposed a 120-month term of
imprisonment for the attempted aggravated murder convictions,
and two consecutive, 90-month terms of imprisonment for the
remaining convictions. Resp. Ex. 101.
directly appealed his conviction and sentence. The Oregon
Court of Appeals affirmed, and the Oregon Supreme Court
denied review. Resp. Ex. 108, 110; State v. Nguyen,
222 Or.App. 55, 191 P.3d 767 (2008), rev. denied,
345 Or. 690, 201 P.3d 910 (2009). Petitioner also filed a
petition for post-conviction relief (PCR), and the PCR court
denied relief. Resp. Ex. 112-13, 130. The Oregon Court of
Appeals affirmed without opinion, and the Oregon Supreme
Court denied review. Resp. Ex. 134-35; Nguyen v.
Premo, 263 Or.App. 406, 329 P.3d 814, rev.
denied, 335 Or. 879, 333 P.3d 333 (2014).
September 19, 2014, petitioner filed the instant petition
seeking federal habeas relief under 28 U.S.C. § 2254.
asserts four claims of ineffective assistance of counsel and
two claims of trial court error resulting in the denial of
his right to fair trial. Respondent maintains that
petitioner's trial court error claims are procedurally
defaulted. As to petitioner's ineffective assistance of
counsel claims, respondent maintains that the state court
decision is entitled to deference under 28 U.S.C. §
Exhaustion and Procedural Default
Five and Six allege that the trial court violated
petitioner's right to a fair trial by denying two motions
for mistrial: one requested after Phi Nguyen attempted to
“take a Fifth, ” and another requested after the
prosecutor made an improper comment during closing argument.
Respondent argues that petitioner has procedurally defaulted
on these claims, because he failed to present them to the
Oregon Supreme Court as federal constitutional claims. I
habeas petitioner must exhaust all available state court
remedies - either on direct appeal or through collateral
proceedings - before a federal court may consider granting
habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); see
also Baldwin v. Reese, 541 U.S. 27, 29 (2004). To meet
the exhaustion requirement, the petitioner must “fairly
present” a federal claim to the State's highest
court “in order to give the State the opportunity to
pass upon and to correct alleged violations of its
prisoners' federal rights.” Duncan v.
Henry, 513 U.S. 364, 365-66 (1995) (per curiam)
(quotation marks omitted); Cooper v. Neven, 641 F.3d
322, 326 (9th Cir. 2011) (“Exhaustion requires the
petitioner to ‘fairly present' his claims to the
highest court of the state.”).
claim was not fairly presented to the state courts and no
state remedies remain available for the petitioner to do so,
the claim is barred from federal review through procedural
default. See Coleman v. Thompson, 501 U.S. 722, 732,
735 n.1 (1991); Sandgathe v. Maass, 314 F.3d 371,
376 (9th Cir. 2002) (“A procedural default may be
caused by a failure to exhaust federal claims in
state court.”). A federal court may consider
unexhausted and procedurally barred claims only if the
petitioner demonstrates cause for the default and actual
prejudice, or if the lack of ...