Sutter Nguyen v. T. Felker , 684 F. App'x 654 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SUTTER NGUYEN, No. 14-17198
Petitioner-Appellant, D.C. No. 2:08-cv-02150-TJH
v.
MEMORANDUM*
T. FELKER,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted December 16, 2016
San Francisco, California
Before: HAWKINS, BERZON, and MURGUIA, Circuit Judges.
Sutter Nguyen appeals the denial of his habeas corpus petition. The district
court issued a certificate of appealability on a single issue: whether Nguyen’s
“constitutional rights were violated when his request to sever his trial from his co-
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
defendants was denied.” We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and
we affirm.
1. Nguyen’s 28 U.S.C. § 2254(d)(1) claim fails because there is no clearly
established Supreme Court precedent binding on the states requiring trial severance
under the circumstances of Nguyen’s trial. See Collins v. Runnels, 603 F.3d 1127,
1131-33 (9th Cir. 2010).
2. Nguyen’s 28 U.S.C. § 2254(d)(2) claim fails because Nguyen has not shown
that the California Court of Appeal’s (“CCA”) denial of severance was based on an
unreasonable determination of the facts. Nguyen does not identify any unreasonable
factual determinations the CCA made in denying his severance claim. Rather, Nguyen
argues that the court erred in analyzing the harm that resulted from the failure to sever
his trial. This argument, however, does not address whether the denial of the
severance claim itself was based on an unreasonable determination of the facts. See
Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) (separately evaluating the state
court’s factual determinations under 28 U.S.C. § 2254(d)(2) and the harm suffered by
petitioner).
3. We deny the motion to expand the certificate of appealability as to uncertified
issues discussed in Nguyen’s brief. See 9th Cir. R. 22-1(c)-(e). With respect to the
admission of gang evidence, Nguyen did not argue in his federal habeas petition that
2
the CCA’s decision was based on an unreasonable determination of the facts or that
the trial court’s rulings were the product of a deficient fact-finding process.
Accordingly, Nguyen has waived these claims on appeal. See Robinson v. Kramer,
588 F.3d 1212, 1217 (9th Cir. 2009) (explaining habeas claims not raised before the
district court are not cognizable on appeal). Even assuming Nguyen did not waive
these claims, the CCA’s decision was not based on an unreasonable determination of
the facts and the trial court’s fact-finding process was not deficient.
AFFIRMED.
3
FILED
Nguyen v. Felker, 14-17198
MAR 22 2017
BERZON, Circuit Judge, concurring, in part, and dissenting, in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the memorandum disposition as to parts 1 and 2.
As to part 3, however, I respectfully dissent. I would grant the certificate of
appealability as to whether, with regard to the expert gang evidence, the California
courts unreasonably determined the facts or used a deficient fact-finding process.
See 28 U.S.C. 2254(d)(2).