FILED

NOT FOR PUBLICATION

JAN 25 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOANG TUONG NGUYEN, No. 17-15139

Petitioner-Appellant, D.C. No. 3:13-cv-01963-JST

v.

MEMORANDUM*

ROSEMARY NDOH,

Respondent-Appellee.

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

* 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. 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)).

2

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

3 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.

4