Nguyen v. Uttecht

Filing 65

ORDER directing respondent to submit, by 4/28/2017, copies of the transcript of petitioner's trial and of the trial court's instructions to the jury. Petitioner's federal habeas corpus is RE-NOTED for 4/28/2017. The Court STRIKES respo ndent's 30 Answer to the habeas petition. Respondent shall re-submit the Answer by 4/28/2017, with a more thorough and less conclusory analysis with respect to each of petitioner's habeas claims. Signed by Hon. James P. Donohue. **2 PAGE(S), PRINT ALL**(Hung Nguyen, Prisoner ID: 748016)(PM)

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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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Petitioner,

ORDER STRIKING ANSWER AND
DIRECTING RESPONDENT TO
SUPPLEMENT THE RECORD

v.
JEFFREY UTTECHT,

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Case No. C16-1711-JCC-JPD

Respondent.

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This is a federal habeas action filed under 28 U.S.C. § 2254. Petitioner’s federal habeas

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petition is currently ripe for consideration. This Court has now reviewed all of the briefing of the

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parties as well as the state court record submitted by respondent in conjunction with his answer

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to the petition. Absent from the state court record are copies of the transcript of petitioner’s trial

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and the trial court’s instructions to the jury. It appears that these materials are necessary to this

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Court’s resolution of petitioner’s federal habeas claims. Accordingly, the Court hereby

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ORDERS as follows:

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(1)

Respondent shall submit to the Court, not later than Friday, April 28, 2017,
copies of the transcript of petitioner’s trial and of the trial court’s instructions to

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ORDER - 1

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the jury. Petitioner’s federal habeas petition is RE-NOTED on the Court’s

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calendar for consideration on that date.

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(2)

In addition, the Court STRIKES respondent’s Answer to the habeas petition, Dkt.

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30, as the brief does not cite to the trial transcript and therefore does not sufficiently respond to

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petitioner’s claims. This is particularly true with respect to petitioner’s ineffective assistance of

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counsel claims raised in Grounds 2, 5 and 9, and his prosecutorial misconduct claim raised in

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Ground 3. Respondent shall re-submit the Answer by no later than Friday, April 28, 2017, with

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a more thorough – and less conclusory – analysis with respect to each of petitioner’s habeas

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claims. Respondent’s Answer shall include adequate citations to the trial transcript and other

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relevant exhibits.

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(3)

With respect to petitioner’s final habeas claims (Grounds 6 and 7), respondent’s

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brief does not explain how the sentencing enhancement for a firearm differed from that for use of

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a deadly weapon. Respondent should more thoroughly explain his argument that petitioner was

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not prejudiced by the imposition of a deadly weapon enhancement when petitioner was charged

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with a firearm enhancement. Respondent is also directed to provide the deadly weapon special

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verdict instructions that were submitted to the jury relevant to petitioner’s claims.

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(4)

The Clerk is directed to send copies of this Order to petitioner, to counsel for

respondent, and to the Honorable John C. Coughenour.
DATED this 13th day of April, 2017.

A

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JAMES P. DONOHUE
Chief United States Magistrate Judge

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ORDER - 2