Hoang Tuong Nguyen v. Rosemary Ndoh

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOANG TUONG NGUYEN,
Petitioner-Appellant,
v.
ROSEMARY NDOH,
Respondent-Appellee.
No. 17-15139
D.C. No. 3:13-cv-01963-JST
MEMORANDUM*
On Appeal from the Judgment of the
United States District Court for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted January 16, 2019
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and ADELMAN, District
Judge.**
A California jury convicted petitioner-appellant Hoang Tuong Nguyen of
sexually assaulting his former girlfriend’s daughter (“Jane”). After exhausting
state remedies, Nguyen sought habeas corpus relief in federal court, arguing that
FILED
JAN 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Lynn S. Adelman, District Judge for the United States
District Court for the Eastern District of Wisconsin, sitting by designation.

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his trial lawyer provided ineffective assistance of counsel. The district court
denied relief. We affirm.
I.
We review the district court’s denial of Nguyen’s habeas corpus petition de
novo. Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018), cert. denied, 139 S.
Ct. 414 (2018). In order to obtain habeas relief, Nguyen must show that the state
court’s resolution of his constitutional claim was contrary to clearly established
federal law as determined by the Supreme Court, involved an unreasonable
application of such law, or was based on an unreasonable determination of the facts
in light of the record before the state court. Id.; see 28 U.S.C. § 2254(d).
Nguyen alleges ineffective assistance of counsel, which requires him to
show that his counsel’s performance was deficient, and that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). In considering an ineffective assistance claim in a habeas action, “we bear
in mind that the ‘standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so.’” Williams v.
Filson, 908 F.3d 546, 563 (9th Cir. 2018) (quoting Harrington v. Richter, 562 U.S.
86, 105 (2011)).
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II.
The state court reasonably determined that trial counsel’s failure to obtain an
independent translation of Nguyen’s interview with a police detective, conducted
in Vietnamese, caused no prejudice. Nguyen argues that with an accurately
translated and transcribed statement, counsel might have considered pursuing a
fabrication defense. But even assuming that his counsel actually would have
chosen a different strategy had she seen the correct translation, Nguyen does not
demonstrate a reasonable probability that such a defense had a better chance of
success than the misidentification defense counsel presented. Defense counsel
extensively cross-examined Jane regarding her inability to recall certain details
about the assaults (which occurred about ten years earlier), the other men around
her family during the time of the assaults, and her failure to identify Nguyen from
photos shown to her by the police. Nor does Nguyen explain why a jury would
have been more favorably disposed to a defense that called Jane a liar rather than
mistaken. Counsel was also able to put in front of the jury the theory that Jane’s
mother orchestrated Jane’s identification of Nguyen as the molestor because she
had “an axe to grind.”
Nguyen further argues that his statement played a pivotal role at the trial, but
most of the translation’s discrepancies upon which he relies are minor, and the
“correct” version he obtained on habeas review contains the same sorts of troubling
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comments about Jane and her sexual “curiosity” noted by the prosecutor during his
closing argument. The prosecutor did quote Nguyen’s statement—I don’t think
she made it up”—which should have been translated as “I think she made it up.”
However, this was a small part of the argument, and the jury had before it the
transcript in which Nguyen immediately followed up this statement with a denial
that he was the one who molested Jane.
Finally, Nguyen argues that the state court’s denial resulted from an
unreasonable determination of the facts, but he identifies no incorrect factual
determinations made by the state court.
III.
For the foregoing reasons, we affirm the district court’s judgment.
AFFIRMED.
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