Nguyen v. Uttecht

Filing 61

ORDER overruling Nguyen's 56 Objection by U.S. District Judge John C Coughenour.**4 PAGE(S), PRINT ALL**(Hung Nguyen, Prisoner ID: 748016)(RS)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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HUNG VAN NGUYEN,

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Plaintiff,

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v.

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CASE NO. C16-1711-JCC-JPD
ORDER OVERRULING
PETITIONER’S OBJECTION

JEFFREY UTTECHT,

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Defendant.

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This matter comes before the Court on Petitioner Hung Van Nguyen’s objection (Dkt.

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No. 56) to the order by the Honorable James P. Donohue, United States Magistrate Judge (Dkt.

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No. 52) denying Nguyen’s motion to certify questions to the Washington Supreme Court (Dkt.

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No. 49). Having thoroughly considered the parties’ briefing and the relevant record, the Court

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finds oral argument unnecessary and hereby OVERRULES the objection (Dkt. No. 56) for the

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reasons explained herein.

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I.

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BACKGROUND
Petitioner Hung Van Nguyen moved to certify to the Washington Supreme Court two

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questions regarding Washington law: (1) can a single Chief Judge on the Washington Court of

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Appeals “ ‘address the merits’ of a non-frivolous personal restraint petition?” and (2) can the

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Washington Supreme Court Commissioner “ ‘address the merits’ of a Motion for Discretionary

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Review?” (Dkt. No. 49 at 1.) These questions were seemingly motivated by Nguyen’s concern
ORDER OVERRULING PETITIONER’S
OBJECTION
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that such orders were not adjudications “on the merits” and thus did not direct Judge Donohue’s

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eventual ruling on the merits of Nguyen’s habeas petition. (See Dkt. No. 56 at 1–2) (“The

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Magistrates of this Court have been improperly relying on the Orders of the Acting Chief Judge

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of the Washington Court of Appeals.”); see also Barker v. Fleming, 423 F.3d 1085, 1091 (9th

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Cir. 2005) (recognizing that a federal court may not grant habeas relief for “any claim that was

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adjudicated on the merits in State court proceedings . . . .” (emphasis added)). Nguyen appears to

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argue that, under Washington law, a lone judge on the Washington Court of Appeals cannot

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“address the merits” of Nguyen’s claim by issuing a unilateral order. (Dkt. No. 56 at 1.) Thus,

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Nguyen argues that the Court should not consider the order when reviewing the merits of

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Nguyen’s habeas petition. (Id. at 5–6.) Nguyen requested certification to resolve a perceived

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conflict with state precedent. (Id. at 2.)

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On review, Judge Donohue declined to certify the questions, ruling that Nguyen failed to

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meet the requirements for certification under Washington law. (Dkt. No. 52 at 2.) Furthermore,

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Judge Donohue determined that “[t]his Court is able to address the merits of [Nguyen’s] habeas

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petition and does not require the assistance of the Washington Supreme Court.” (Id.) Nguyen

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objects to Judge Donohue’s refusal to certify the questions. (See generally Dkt. No. 56.) Nguyen

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argues that Washington law entitles Nguyen to consideration of his questions for review by the

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Washington Supreme Court. (Id. at 4–5.)

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II.

DISCUSSION

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A.

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A district court judge may designate a magistrate judge to hear and determine a non-

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dispositive pretrial matter. See 28 U.S.C. § 636(b)(1)(A). The district court may reconsider a

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magistrate judge’s decision on a pretrial matter where it has been shown that the decision is

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clearly erroneous or is contrary to law. Id. The Court here considers Judge Donohue’s decision

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declining to certify questions to the Washington Supreme Court.

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Legal Standard

The standard for certification to the Washington Supreme Court is as follows:
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OBJECTION
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When in the opinion of any federal court before whom a proceeding is pending, it
is necessary to ascertain the local law of this state in order to dispose of such
proceeding and the local law has not been clearly determined, such federal court
may certify to the supreme court for answer the question of local law involved and
the supreme court shall render its opinion in answer thereto.

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Wash. Rev. Code § 2.60.020. Federal courts have broad discretion when determining whether it

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is “necessary to ascertain the local law” for certification in Washington. See Thompson v. Paul,

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547 F.3d 1055, 1065 (9th Cir. 2008).

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B.

Washington Law Does Not Require Certification In This Case

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Judge Donohue found that neither requirement for certification had been met and it was

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thus inappropriate to certify Nguyen’s questions to the Washington Supreme Court when “this

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Court . . . [did] not require the assistance of the Washington Supreme Court.” (Dkt. No. 52 at 2.)

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However, Nguyen believes that In re Personal Restraint of Khan, 363 P.3d 577 (Wash. 2015),

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entitles him to certification. (Dkt. No. 56 at 2.)

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In Khan, the Washington Supreme Court read the state appellate procedural rules to

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prohibit a lone appellate judge from dismissing a personal restraint petition without finding

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frivolity. 363 P.3d at 579. When a lone judge dismissed a non-frivolous petition, the Supreme

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Court found the appropriate remedy was “consideration of [the petitioner’s] motion for

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discretionary review.” Id. at 581. Nguyen argues that his petition was non-frivolous and thus

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Khan entitles him to certification to the Supreme Court to prevent “Magistrates of this Court

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[from] improperly relying” on orders by a lone judge. (Dkt. No. 56 at 1–2.)

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However, Khan does not demand this Court certify anything. A motion for discretionary

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review is fundamentally different from certification. A motion for discretionary review remedied

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the error in Khan, because it gave the Washington Supreme Court an opportunity to review the

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claim on the merits. 363 P.3d at 579–81. However, certification addresses what the law is,

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distinct from the merits of a particular petition. See Wash. Rev. Code § 2.60.020 (“When . . . it is

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necessary to ascertain the local law . . . such federal court may certify . . . .”).

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While Nguyen facially asks for a determination of the law, his request amounts to a de

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facto review of the merits of his personal restraint petition in state court. (See Dkt. No. 56 at 1–

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2.) Nguyen apparently believes that his petition was dismissed in error by the state appellate

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court. (See Dkt. No. 56 at 4.) To comply with Nguyen’s request, the Court would first have to

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assume that his petition was in-fact not frivolous, thereby rendering it “necessary” to “ascertain”

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the law in accordance with that assumption. See Wash Rev. Code § 2.60.020; (Dkt. No. 56 at 2–

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3). That is not the Court’s role here. Nguyen has not demonstrated that Judge Donohue’s

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decision not to certify was “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). If

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Nguyen desires review of the merits of his state petition, his remedial vehicle is a motion for

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discretionary review. Khan, 363 P.3d at 581.

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III.

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CONCLUSION
For the foregoing reasons, Nguyen’s objection (Dkt. No. 56) is OVERRULED. The Clerk

is DIRECTED to send a copy of this order to Nguyen and to Judge Donohue.
DATED this 10th day of April, 2017.

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A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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