Andy Nguyen v. RAYMOND BOOKER, Warden

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0934n.06
No. 11-1478
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANDY NGUYEN,
Petitioner-Appellant,
v.
RAYMOND BOOKER, Warden,
Respondent-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
O P I N I O N
BEFORE: MOORE and COLE, Circuit Judges; ROSE, District Judge*
COLE, Circuit Judge. Andy Nguyen was convicted in Michigan state court of assault with
intent to commit murder and possession of a firearm during the commission of a felony, stemming
from a dispute with his then-wife at her place of employment. Nguyen, as well as many of the
witnesses against him at trial, are not native English speakers, but the trial court did not consistently
provide a translator for either Nguyen or the witnesses. Nguyen argued to the Michigan Court of
Appeals and in his petition for a writ of habeas corpus that the lack of a translator denied him his
constitutional right to a fair trial. Both courts rejected Nguyen’s claim. We AFFIRM the district
court’s denial of the petition for a writ of habeas corpus.
The Honorable Thomas M. Rose, United States District Judge for the Southern District of*
Ohio, sitting by designation.

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I. BACKGROUND
Prior to October 2005, Nguyen was married to, and living with, Nhung Le. After a dispute
between the couple, Le moved out and began working for Golden Nail Salon, owned by Dung Hong
and his wife Ha Thi To. People v. Nguyen, No. 274031, 2008 WL 681131, at *1 (Mich. Ct. App.
Mar. 13, 2008). Apparently, Nguyen did not approve of his wife working at the salon, and on
January 7, 2006, Nguyen came to the salon, and, according to To, told her that “she had two weeks
to fire Le, or else there would be consequences.” Id. Nguyen denies making this threat, and says
that he went to the salon in order to offer Le money in exchange for leaving the state. Id.
On February 25, 2006, Nguyen purchased a firearm. Id. Three days later, after properly
registering the weapon, he took the weapon with him to the Golden Nail Salon. Id. At the salon,
Nguyen asked To of Hong’s whereabouts, and To informed Nguyen that he was in a back room. Id.
At this point, there is conflicting testimony regarding the sequence of events. Hong testified that
Nguyen entered the back room, pointed a gun at him, and said “Today I will kill you.” Hong
testified that Nguyen pulled the trigger, but the gun did not fire. At this point, Hong engaged in a
physical altercation with Nguyen, and as they fought, the gun discharged and grazed Hong in the
head. Hong testified he was able to wrest the gun from Nguyen, who fled out the back of the shop.
Hong retained the weapon until the police arrived.
In Nguyen’s telling, he went to speak to Hong in order to ask permission to talk to Le. Le
was in the back room, and Nguyen had a conversation with her. During the conversation, within
earshot of Hong, Nguyen said of Hong “He just using you because you have no relative here.”
According to Nguyen, Hong then hit him in the back of the head with a blunt object, and a scuffle
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broke out between the two. As Nguyen attempted to crawl away from the fight, he pulled out the
gun and attempted to ward off Hong. Hong then attempted to grab the gun from Nguyen’s hand, and
after a lengthy melee, succeeded and wresting control of the weapon. Hong fired at least two shots
in the direction of Nguyen, but Nguyen was able to successfully deflect Hong’s aim away from his
head. Nguyen then fled out the back door, where he heard additional shots. Nguyen denied ever
firing a shot.
Nguyen was charged with assault with intent to murder, pursuant to Mich. Comp. Laws
§ 750.83, and possession of a firearm during the commission of a felony, pursuant to Mich. Comp.
Laws § 750.227b. At trial, both Hong and Nguyen recounted their versions of the events at Golden
Nail Salon. In addition, Le, To, and other salon employees testified, though none of the witnesses
could say who fired the gun. Nguyen, 2008 WL 681131, at *2. As all of the key witnesses were
native Vietnamese speakers, issues regarding the ability of witnesses to understand and communicate
in English occurred frequently throughout the course of the trial. The trial judge was uniform in his
requirement that witnesses give testimony in English if at all possible. For instance, Hong made a
request at the beginning of his testimony to speak exclusively through an interpreter. The Court
responded “[f]or certain things, you can answer in English and it doesn’t matter, but for things that
you need—you believe you can express better in Vietnamese, please feel free to use that.”1
It is not clear from the transcript when a translator was utilized during the proceedings. It1
is clear, however, that a translator was used for at least part of Hong’s testimony. (See Trial Tr., Vol
II, at 46:2-6, R.9-10, Page ID# 648).
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Nguyen was convicted by the jury on both counts, and was sentenced to 12 and a half to 25
years in prison. Nguyen appealed his conviction and sentence to the Michigan Court of Appeals,
arguing, inter alia, that he was denied his due process right to a fair trial by the intermittent use of
translators during the trial. The Michigan Court of Appeals held that, while “each of the Vietnamese
witnesses does appear to struggle with the English language at times. . . . [a]t no point were the
witnesses unintelligible or incomprehensible.” Nguyen, 2008 WL 681131, at *2. As such, the court
held that the trial judge did not abuse his discretion in failing to require an interpreter at all times.
Id. The Michigan Supreme Court denied leave to appeal. People v. Nguyen, 753 N.W.2d 178
(Mich. 2008). On February 18, 2009, Nguyen filed a petition for a writ of habeas corpus as to,
among other claims, the translation issue. The district court held that the decision of the Michigan
Court of Appeals was not “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility of fairminded disagreement.” Nguyen v.
Ludwick, No. 5:09-CV-10607, 2011 WL 902021, at *6 (E.D. Mich. Mar. 15, 2011) (quoting
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011)). We granted a certificate of appealability as
to the translation issue only.
II. BACKGROUND
“In a habeas proceeding, we review de novo the district court's legal conclusions, including
its ultimate decision to grant or deny the writ, and we review for clear error its factual findings.”
Foster v. Wolfenbarger, ___ F.3d ___, No. 10-2023, 2012 WL 2948523, at * 2 (6th Cir. 2012)
(quoting Satterlee v. Wolfenbarger, 453 F.3d 362, 365 (6th Cir. 2006)) (internal quotation marks
omitted). “A factual finding by the district court is clearly erroneous when although there is
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evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Id. (internal quotation marks omitted).
As Nguyen’s conviction became final after April 24, 1996, his petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA requires that a federal
court may grant a writ of habeas corpus only where the claim “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.” Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009) (quoting 28 U.S.C.
§ 2254(d)(1)) (internal quotation marks omitted). As the Supreme Court has recently emphasized,
only decisions of the Supreme Court may be the basis for “clearly established law,” and thus the
basis for habeas relief. Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012). “A state-court decision
is contrary to clearly established federal law if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court's] cases or if the state court confronts a set of facts
that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives
at a result different from [that] precedent.” Murphy, 551 F.3d at 493-94 (quoting Williams v. Taylor,
529 U.S. 362, 405 (2000)) (alterations in original) (internal quotation marks omitted).
A. Procedural Default
As a threshold matter, the Warden argues that Nguyen’s claim is procedurally defaulted, and
thus we may not consider it on the merits. “For a federal court to reach the merits of a petitioner’s
claims, the petitioner must show he ‘exhausted the remedies available in the courts of the State.’”
Rayner v. Mills, 685 F.3d 631, 2012 WL 2855803, at *8 (6th Cir. 2012) (quoting 28 U.S.C.
§ 2254(b)(1)(A)). Here, the Warden argues that Nguyen’s trial counsel failed to object to the lack
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of an interpreter at trial, and that the lack of such an objection waives the argument in later
proceedings. The contemporaneous objection rule is commonly applied by Michigan courts to limit
consideration of claims on appeal. Taylor v. McKee, 649 F.3d 446, 450-51 (6th Cir. 2011). The
Michigan Court of Appeals did in fact rely on this rule in reviewing Nguyen’s claims. Nguyen, 2008
WL 681131, at *2. The fact that the Michigan Court of Appeals considered whether Nguyen could
meet the highly restrictive plain error standard does not constitute a waiver of procedural default.
See White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005) (“Although the Ohio Supreme Court did
review the claims to ensure that there was no plain error, we have held that the plain error review
by the state court does not constitute a waiver of procedural default rules.”)
While Nguyen concedes that he did not make an explicit objection to the lack of a translator,
he argues that his trial counsel, as well as the prosecutor, raised the translation issue with the trial
court at various points in the proceedings, as well as pointed the court to specific instances of
confusion by witnesses stemming from language barriers. For example, during the direct testimony
of Le, the prosecutor asked her “Were you living with him at the time?” As the court reporter
recounted it, Le responded “I left him before this happened.” However, defense counsel heard “I
lived with him before this happened,” and the prosecutor stated “Judge, I think it’s important that
we understand the answers. That’s why we have a translator here.” The trial court instructed the
lawyers to listen more “tentatively” (presumably, “intently”), as he was able to make out the answers
to the questions. In other words, arguably the prosecutor and defense counsel jointly requested a
translator for Le, which was denied by the trial court.
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The district court construed this and similar incidents during the trial as sufficient to put the
trial court on notice of potential problems with the lack of a translator. Nguyen, 2011 WL 902021,
at *5. “[T]he general principle [is] that an objection which is ample and timely to bring the alleged
federal error to the attention of the trial court and enable it to take appropriate corrective action is
sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review
here.” Osborne v. Ohio, 495 U.S. 103, 125 (1990). While there is no mention in the record that trial
counsel specifically referenced a federal dimension to the translation issue, the trial court was2
clearly aware of counsels’ views on the need for translator services. Furthermore, the district court,
recognizing that this is a close question, noted that “federal courts are not required to address a
procedural-default issue before deciding against the petitioner on the merits.” Nguyen, 2011 WL
902021, at *5 (quoting Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003)). In that light, the district
court found it prudent to assume that the issue was not procedurally-defaulted and consider it on the
merits. As we agree with the district court’s approach, we next consider Nguyen’s claim on the
merits.3
Likely because, as discussed below, there is no federal constitutional right to translator2
services.
Nguyen appears to assert in his appellate brief that he was entitled to the services of a3
translator to understand the proceedings, separate from the lack of translator services provided to the
witnesses. There is nothing in the record to suggest that Nguyen raised this issue at trial, and so to
the extent he frames this as a conceptually distinct claim, it would be procedurally defaulted.
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B. The Lack of a Translator at Nguyen’s Trial
Nguyen asserts that he has a federal due process right to have the testimony of the witnesses
at his trial contemporaneously translated. Translator services are provided as a matter of course in
federal criminal proceedings, pursuant to the Court Interpreters Act. See 28 U.S.C. § 1827(d)(1)
(providing for an interpreter where the judge determines that a party “speaks only or primarily a
language other than the English language . . . so as to inhibit such party's comprehension of the
proceedings or communication with counsel or the presiding judicial officer. . . .”). However, it does
not follow that this creates a constitutional right to an interpreter in state court proceedings. Indeed,
other courts to have considered scenarios similar to Nguyen’s have all noted that the Supreme Court
has not spoken to this issue. See Celebisoy v. Brunson, No. C08-5739-FDB, 2009 WL 2473479, at
*7 (W.D. Wash. Aug. 10, 2009) (“[T]he United States Supreme Court has never explicitly
recognized a constitutional right to a court-appointed interpreter.”); Nguyen v. Tilton, No. 06-01414-
JSW, 2009 WL 839278, at *19 (N.D. Cal. Mar. 30, 2009) (“Petitioner argues that due process
requires the appointment of an interpreter in criminal proceedings where it is necessary . . . .
However, there is no clearly established federal law extending any such right to witnesses.”);. see
also United States v. Johnson, 248 F.3d 655, 663 (7th Cir. 2001) (“The United States Supreme Court
has yet to recognize the right to a court-appointed interpreter as a constitutional one.”) Absent such
controlling authority from the Supreme Court, we may not find that the Michigan Court of Appeals
decision regarding the lack of an interpreter is “contrary to” clearly established federal law, and thus
we may not grant habeas relief.
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Nguyen also argues that the lack of an interpreter denied him his Confrontation Clause rights.
The right to confront witnesses arrayed against a criminal defendant has undoubtedly been fully
established by the Supreme Court. E.g. Delaware v. Van Arsdall, 475 U.S. 673 (1986); Davis v.
Alaska, 415 U.S. 308 (1974). However, the Supreme Court has emphasized that a defendant has the
right to “an opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S.
15, 20 (1985) (emphasis in original). Here, Nguyen’s counsel was able, albeit with difficulty, to
challenge the contentions made by the key prosecution witnesses. Thus it cannot be said that
Nguyen was completely denied the opportunity to cross-examine the witnesses against him.
III. CONCLUSION
We AFFIRM the district court’s denial of the petition for a writ of habeas corpus.
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