NOT FOR PUBLICATION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).