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Nguyen v. Premo

United States District Court, D. Oregon

February 15, 2017

SANG NGUYEN, Petitioner,
v.
JEFF PREMO, Respondent.

          OPINION AND ORDER

          Michael McShane United States District Judge.

         Petitioner 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.

         BACKGROUND

         On 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.

         Phi 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 of officers.

         Petitioner 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.

         Prior 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.

         The 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.

         Petitioner 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).

         On September 19, 2014, petitioner filed the instant petition seeking federal habeas relief under 28 U.S.C. § 2254.

         DISCUSSION

         Petitioner 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. § 2254(d).

         A. Exhaustion and Procedural Default

         Claims 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 agree.

         A state 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.”).

         If a 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 ...


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