Anh Vu Nguyen v. Timothy Wingler

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANH VU NGUYEN,
Petitioner - Appellant,
v.
TIMOTHY WINGLER,
Respondent - Appellee.
No. 10-35227
D.C. No. 2:08-cv-01580-RSL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Chief District Judge, Presiding
Argued and Submitted June 8, 2011
Seattle, Washington
Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.
Appellant Anh Vu Nguyen (Nguyen) challenges the district court’s denial of
his habeas petition. Nguyen contends that his constitutional rights were violated
when he was excluded from an in-chambers conference discussing a possible
conflict of interest between his attorney and a potential state witness. Nguyen also
FILED
DEC 08 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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argues that he was denied due process, a fair trial, and the right to present evidence,
when the trial court did not allow him to call a toxicologist to testify that the victim
was under the influence of drugs and to establish his self-defense claim. In
addition, Nguyen asserts that the trial court erred by not giving a self-defense
instruction. Nguyen further advances an ineffective assistance of counsel claim
based on his attorney’s failure to propose Washington Pattern Instruction, Criminal
(WPIC) 19.01, which describes defenses to felony murder. Finally, Nguyen argues
that the cumulation of errors warrants relief.
1. The Washington Court of Appeals’ determination that no Sixth Amendment
violation occurred when Nguyen was excluded from an in-chambers conference
was not contrary to, or an unreasonable application of, clearly established federal
law. Because the conference was not a critical stage of the proceedings and
because no actual conflict of interest existed, Nguyen’s absence did not violate his
constitutional rights. See United States v. Gagnon, 470 U.S. 522, 526 (1985); see
also Houston v. Schomig, 637 F.3d 976, 978 (9th Cir. 2011).
2. The Washington Court of Appeals’ conclusion that no due process violation
occurred when the testimony from a toxicologist was excluded was not contrary to,

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or an unreasonable application of, federal law. See Holmes v. South Carolina, 547
U.S. 319, 326-27 (2006) (permitting judges to exclude “marginally relevant”
evidence).
3. The Washington Court of Appeals’ ruling that omission of the self-defense
instruction was harmless error was consistent with Brecht v. Abrahamson, 507 U.S.
619 (1993). Self-defense would apply only to the assault predicate of the burglary
charge, and the defendants were also convicted of kidnapping in the first and
second degree. As only one predicate offense was necessary to support the felony
murder conviction, omission of the self-defense instruction had no “substantial and
injurious effect or influence in determining the jury’s verdict.” Id. at 622.
4. The Washington State Court of Appeals’ ruling on the ineffective assistance
of counsel claim was not contrary to, or an unreasonable application of, Strickland
v. Washington, 466 U.S. 668, 690 (1984) (noting that the “identified acts [must be]
outside the wide range of professionally competent assistance”). The state court
correctly determined that there was no evidence presented at trial that would have
supported the giving of the WPIC 19.01 instruction. Nguyen’s counsel did not
provide ineffective assistance by failing to propose it. See Gonzalez v. Knowles,

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515 F.3d 1006, 1017 (9th Cir. 2008) (“[C]ounsel cannot be deemed ineffective for
failing to raise [a] meritless claim.”) (citation omitted).
5. The Washington State Court of Appeals’ determination that no relief was
available due to cumulative error was not contrary to, or an unreasonable
application of, Supreme Court precedent. Where there was only one harmless
error, as in this case, there was no error to cumulate, and the cumulative error
doctrine did not apply. See United States v. Sager, 227 F.3d 1138, 1149 (9th Cir.
2000).
AFFIRMED.

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