Hai Nguyen v. Attorney General New Jersey , 832 F.3d 455 ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-3902
______________
HAI KIM NGUYEN,
Appellant
v.
ATTORNEY GENERAL OF NEW JERSEY;
SUPERINTENDENT ATTICA CORRECTIONAL
FACILITY
______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 3-13-cv-06845)
Honorable Michael A. Shipp, District Judge
______________
Argued June 14, 2016
BEFORE: AMBRO, JORDAN, and GREENBERG,
Circuit Judges
(Filed: August 10, 2016)
______________
Michael J. Confusione
Hegge & Confusione
P.O. Box 366
Mulica Hill, NJ 08062
Jonathan I. Edelstein (argued)
Edelstein & Grossman
501 Fifth Avenue, Suite 514
New York, NY 10017
Attorneys for Appellant
John R. Ascione
Somerset County Office of Prosecutor
James L. McConnell (argued)
Somerset County Prosecutor’s Office
Administration Building
P.O. Box 3000
Somerville, N.J. 08876
Attorneys for Appellees
______________
OPINION
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
2
This matter comes on before this Court on an appeal from
an order entered in the District Court on November 19, 2015,
denying Hai Kim Nguyen’s petition for a writ of habeas corpus.
See Nguyen v. Hoffman, Civ. Act. No. 13-6845, 2015 U.S.
Dist. LEXIS 156677 (D.N.J. Nov. 19, 2015). Though the order
denied Nguyen’s petition, it granted him a certificate of
appealability on one of the grounds that he asserted in his
petition—namely, that his trial counsel had been ineffective for
failing to raise a Sixth Amendment speedy trial claim. We
review the denial of his petition based on ineffective-assistance-
of-counsel grounds through a “doubly deferential” lens. See
Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct. 1411,
1420 (2009). Thus, the question before us is whether Nguyen’s
trial counsel’s representation met an objective standard of
reasonableness or, if he did not meet that standard, his
representation did not prejudice Nguyen. See Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). In light of
the fact that Nguyen’s trial counsel did raise a Sixth Amendment
speedy trial claim before trial on a motion to dismiss the
indictment in the state trial court, we conclude that he cannot be
deemed to have been ineffective for failing to raise the claim.
Accordingly, without reaching the issue of prejudice, we will
affirm the District Court’s denial of Nguyen’s petition.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The State-Court Charges and Guilty Plea
On March 24, 2002, while attending a wedding reception
in Green Brook Township, New Jersey, Nguyen shot another
wedding guest, Tuan Thieu, eight times, fatally wounding him.
At that time, Nguyen also shot at another wedding guest, but he
3
missed his target, and the bullet lodged in the wall of the
wedding facility. When the police arrived shortly after the
shooting, several eye witnesses, each of whom knew Nguyen,
identified him to the police as the shooter. Witnesses also
informed the police that Nguyen fled the scene in a 1996 Honda
with Alabama license plates. Moreover, witnesses provided the
police with Nguyen’s address in Brooklyn.
On the day following the homicide, detectives from the
Somerset County Prosecutor’s Office, accompanied by New
York City Police Department officers, went to the Brooklyn
address that the witnesses provided intending to arrest Nguyen.
When the officers knocked on the door of the residence, Nguyen
barricaded himself inside with his two-year-old son, and
informed the officers that he would shoot his son and the
officers if they attempted to enter. After a four-hour standoff in
which a New York Police Department hostage team
participated, Nguyen agreed to be taken into custody, and the
New York authorities arrested him on the evening of March 25,
2002.1
While Nguyen was in custody in New York, a New York
grand jury returned several indictments against him. Nguyen
pleaded guilty to the New York indictments on April 30, 2003,
13 months after his arrest. A New York court imposed
concurrent sentences on Nguyen for these convictions, the
longest of which was a five-to-fifteen year sentence on a bribery
charge.
1
A subsequent police search uncovered physical evidence,
including a gun found in a hidden compartment in Nguyen’s car.
Forensic testing confirmed the weapon to have been used in the
wedding reception shootings.
4
Prior to his guilty pleas to the New York indictments, at a
time that he was still in custody in New York, a New Jersey
grand jury in Somerset County returned an indictment on April
24, 2002, relating to the March 24, 2002 shootings at the
wedding reception. That indictment charged Nguyen with first-
degree murder and other offenses as a result of his crimes at the
wedding reception. On May 13, 2003—shortly after he entered
guilty pleas to the New York indictments—Nguyen waived
extradition, and on November 7, 2003, he was extradited to New
Jersey so that New Jersey authorities took custody of him. After
protracted pretrial proceedings, Nguyen pleaded guilty on
September 23, 2009, to one count of aggravated manslaughter
and one count of attempted murder. He was sentenced on
December 11, 2009, to a 20-year term of imprisonment to run
concurrently with his New York sentence starting from the date
of his New Jersey guilty pleas. Nguyen’s habeas corpus
petition, from the denial of which he appeals, turns on the events
that occurred between his extradition in November 2003 and his
entry of his guilty plea in September 2009.
B. The Pretrial Proceedings
On September 2, 2004, Nguyen’s trial counsel in
Somerset County filed an omnibus motion, which included
motions to suppress physical evidence, to suppress statements,
for a Sands-Brunson hearing,2 to preclude evidence of his other
bad acts, and to conduct a hearing regarding the admissibility of
statements made to non-police witnesses. The trial court held a
2
A State v. Brunson, 625 A.2d 1085 (N.J. 1993), and State v.
Sands, 386 A.2d 378 (N.J. 1978), hearing would have involved
evidence issues not material in this case.
5
hearing over two days in September 2005 to address the motion
to suppress the homicide weapon and Nguyen’s statements made
to non-police witnesses. After the hearing, the parties filed
briefs between October 2005 and February 2006. The trial court
heard oral argument on the motions to suppress on April 27,
2006, and denied the motions. The court subsequently denied
the remainder of Nguyen’s pretrial motions in a written decision
on February 11, 2009.
From August 2006 to June 2008, Nguyen pursued an
insanity defense. He filed his notice of insanity defense and
lack of requisite state of mind as required by New Jersey court
procedures on August 30, 2006. The trial court entered a
consent order on January 4, 2007, which provided for the release
of medical records from the New York City Department of
Health and Mental Hygiene Correctional Health Services. (A6).
On January 17, 2007, Nguyen’s counsel produced Nguyen’s
medical and psychiatric record. Subsequently, the State’s expert
examined Nguyen in March 2007 and on October 5, 2007.
Ultimately, the trial court held a competency hearing on
December 13, 2007, at which both the State and defense counsel
presented expert witnesses. At that hearing, defense counsel
stated that the defense expert would conduct a further
examination of Nguyen in January 2008 and thereafter file an
additional report. It appears, however, that the expert did not
make a further examination, and on June 26, 2008, the trial court
determined that Nguyen was competent to proceed to trial.
Following this resolution of all outstanding motions, the
court set a trial date for June 2009. The State requested an
adjournment and proposed a September 29, 2009 trial date, to
which there was no objection. Notably, the record reflects that
while the case was pending in New Jersey, 12 conferences
6
scheduled in the case were adjourned, at least ten of them at the
request of defense counsel.
C. The Motion to Dismiss the Indictment
On July 1, 2009, defense counsel filed a Motion to
Dismiss the Indictment for Violation of the Interstate Agreement
on Detainers (“IAD”), N.J. Stat. Ann. § 2A:159A-1 et seq., a
statute that sets forth a procedure for the transfer of prisoners
between jurisdictions for trial in the receiving jurisdiction.
Defense counsel filed a letter brief supporting the motion on
September 21, 2009, seeking an order dismissing the indictment.
In making his IAD argument, defense counsel cited Barker v.
Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), for the proposition
that “‘a [d]efendant has no duty to bring himself to trial. The
State has that duty, as well as the duty of insuring that the trial is
consistent with Due Process.’” (A36 (quoting Barker, 407 U.S.
at 527, 92 S.Ct. at 2190)). In his brief defense counsel included
the following nine paragraphs in a footnote:
The Sixth Amendment to the
United States Constitution
guarantees an accused the right to a
speedy trial. An accused’s right to
a speedy trial ripens after the filing
of a formal criminal complaint.
State v. LeVien, 44 N.J. 323
(1965). This fundamental right
applies against the State through
the Due Process [Clause] of the
Fourteenth Amendment, see
Klopfer v. North Carolina, 386 U.S.
213 (1967), and the New Jersey
7
Constitution, Article I, Paragraph
10 (1947).
In Barker v. Wingo, 407
U.S. 514, 530 (1972), the United
States Supreme Court established a
balancing test to be used in
determining whether a defendant’s
right to a speedy trial has been
violated. The Court noted that the
duty to bring a defendant to trial ‘as
well as the duty of insuring that the
trial is consistent with due process .
. .’ rests entirely with the State. Id.
at 527. See also State v. Smith, 70
N.J. 214, 217 (1976) (applying the
Barker v. Wingo balancing test).
The balancing test ‘compels
Courts to approach speedy trial
cases on an ad hoc basis.’ Barker
v. Wingo, supra at 530. It requires
considering and weighing four
factors: (1) the length of delay; (2)
the reason for the delay; (3) the
defendant’s assertion of his right;
and (4) prejudice to the defendant.
Applying these factors to the
case at hand, it is clear that Mr.
Nguyen’s right to a speedy trial has
been denied. Mr. Nguyen was
indicted in 2003 — six years ago.
8
Moreover, it has been six years
since the Prosecutor’s Office filed
to bring Mr. Nguyen to New Jersey
under the Interstate Agreement on
Detainers. This is clearly long
enough to trigger a speedy trial
analysis. Barker v. Wingo, supra at
530.
The second factor, the
reason for the delay, must also be
weighed against the State and not
against Mr. Nguyen. As the
Supreme Court noted in Barker v.
Wingo, ‘a [d]efendant has no duty
to bring himself to trial. The State
has that duty, as well as the duty of
insuring that the trial is consistent
with Due Process.’ Id. at 527. In
this instance, the Prosecutor’s
Office attempted in 2003 to bring
Mr. Nguyen to New Jersey under
the Interstate Agreement on
Detainers.
The third Barker v. Wingo
factor addresses the defendant’s
assertion of his right to a speedy
trial. As noted above, Mr. Nguyen
waived extradition and has
repeatedly requested a trial.
Therefore he has no reason to seek
to delay disposition of the New
9
Jersey charges.
The fourth and final factor
to be considered is the prejudice
resulting to Mr. Nguyen from this
extraordinary delay. ‘[I]mpairment
of defense is considered the most
serious factor since it . . . [goes] to
the question of fundamental
fairness,[’] State v. Szima, 70 N.J.
196, 201 (1976). Prejudice is not
confined to the defendant’s
inability or lessened ability to
defend on the merits. Prejudice can
also be found from employment
interruptions, public obloquy,
anxieties concerning continued and
unresolved prosecution, the drain
on finances, and the like. Moore v.
Arizona, 414 U.S. 25 (1973).
As noted above, any hope
that Mr. Nguyen may have of
serving any sentence on these
charges concurrent to his New
York sentence fades with the
passage of time. Moreover, Mr.
Nguyen certainly has had the
‘[a]nxiety and concern’ of this
matter hanging over him for six
long years. Barker v. Wingo, supra
at 532. There is also actual
prejudice to the defendant
10
considering the impact of such a
lengthy delay on the memory of
critical witnesses.
In sum, since all four factors
set out in Barker v. Wingo must be
weighed against the State, Mr.
Nguyen’s right to a speedy trial has
clearly been violated.
(A36-37 n.1).
The trial court heard oral argument on Nguyen’s motion
on September 23, 2009, and issued an oral decision rejecting the
motion to dismiss the indictment. The court then entered an
order to that effect.
Following this oral decision and a short recess to discuss
his options with trial counsel, Nguyen pleaded guilty to one
count of aggravated manslaughter and one count of attempted
murder. Nguyen’s plea preserved both the right to appeal from
the denial of his Motion to Dismiss the Indictment by reason of
a violation of the IAD and the right to appeal from the
disposition of all pretrial motions. On December 11, 2009, the
trial court imposed a 20-year sentence on Nguyen to run
concurrently from the date of the entry of his guilty plea with the
New York sentence that he already was serving.
D. The Direct Appeal and Subsequent Motion for
Post-Conviction Relief
Nguyen appealed from his conviction based on his guilty
plea on several grounds. Relevant for our purposes, he argued
11
“that the trial court should have dismissed the indictment
because the State did not bring him to trial within 120 days after
his arrival in New Jersey, as required by the Interstate
Agreement on Detainers . . . .” State v. Nguyen, 17 A.3d 256,
258 (N.J. Super. Ct. App. Div. 2011).3 The Appellate Division
of the Superior Court rejected this argument because it found
that “New York transferred custody of defendant under the
Extradition Clause of the United States Constitution and the
Uniform Criminal Extradition Act”—not the IAD, a
determination that Nguyen does not challenge in these
proceedings. Id. The Appellate Division reasoned that “the
transfer of a defendant from one jurisdiction to another under
legal authority other than the IAD . . . provides an alternative
framework by which a state may secure custody of a prisoner
confined in another state without being required to comply with
the procedures of the IAD.” Id. at 263. Thus, the State was not
bound by the requirements of the IAD, and therefore there could
not have been an IAD violation. Id. Notably, the court stated in
a footnote that a defendant who is transferred pursuant to legal
authority other than the IAD—while not entitled to the 120-day
speedy trial provision of the IAD—“may, of course, invoke the
3
Nguyen also argued “that the trial court erred in denying his
motion to suppress evidence of a handgun later identified as the
murder weapon, because it was discovered in the course of a
search by Somerset County Prosecutor’s Office investigators
who were not authorized under the governing New York statute
to conduct a search in New York,” Nguyen, 17 A.3d at 258, and
that he “was entitled to jail credits for the entire time he was
incarcerated in New Jersey awaiting trial,” id. at 266. The
Appellate Division rejected both of these arguments. Id. at 258,
266.
12
speedy trial protections of the federal and state constitutions.”
Id. at 260 n.1. However, the Appellate Division indicated that
Nguyen “ha[d] not asserted a violation of his constitutional right
to a speedy trial.” Id. Nguyen filed a petition for certification
with the New Jersey Supreme Court but it denied his petition.
State v. Nguyen, 27 A.3d 952 (N.J. 2011).
He then filed a petition for post-conviction relief (“PCR”)
in a state trial court. (See A117-22). In that petition, Nguyen
contended that there were three errors that entitled him to relief:
(1) ineffective assistance of trial counsel for failing to raise a
Sixth Amendment speedy trial violation; (2) ineffective
assistance of appellate counsel for failing to challenge the trial
court’s ruling on the admissibility of his post-arrest statements;
and (3) a violation of due process as a result of the denial of his
request for jail credits. The PCR court heard oral argument on
May 29, 2012, and on May 30, 2012, it issued a comprehensive
written opinion denying Nguyen’s petition.
In considering the issue now before us, the PCR court
concluded that trial counsel “did not fall below an objective
standard of reasonableness” and, in fact, “pursue[d] a speedy
trial claim on the eve of trial.” (A156). Moreover, the PCR
court concluded that even if Nguyen’s showing satisfied the first
prong of the Strickland test, i.e., counsel’s deficient
performance, Nguyen nevertheless would not be entitled to
relief on the basis of that claim because he did not demonstrate
that he suffered prejudice from his counsel’s representation.
Specifically, the PCR court held that “the Petitioner was the
cause of the delay as he filed numerous valid pretrial motions in
furtherance of exercising his constitutional rights.” (A158).
Moreover, the PCR court determined that “[e]ach motion was
complex in nature and both counsel and the court properly spent
13
the requisite amount of time in order to fully weigh and resolve
the Petitioner’s contentions.” (A158). Thus, any delay “cannot
be claimed to be a result of the failure of the State to act.”
(A158).
Nguyen then appealed from the order denying his petition
for PCR to the Appellate Division, which affirmed
“substantially for the reasons stated by the PCR court in its
thorough and comprehensive opinion of May 30, 2012.” State
v. Nguyen, No. A-5303-11, 2013 N.J. Super. Unpub. LEXIS
331, at *5 (N.J. Super. Ct. App. Div. Feb. 13, 2013). The court
added “that when the trial court addressed the defendant’s
motion to dismiss the indictment for failing to resolve the
charges in the time required by the IAD,” it also “found that the
delay in the matter did not violate defendant’s constitutional
right to a speedy trial.” Id. at *7. In addition, the Appellate
Division agreed that “even if counsel erred in failing to raise this
specific claim, defendant was not prejudiced by the error
because any such motion would have been denied.” Id. at *8.
On September 10, 2013, the New Jersey Supreme Court denied
Nguyen’s petition for certification seeking further review of his
case. See State v. Nguyen, 73 A.3d 512 (N.J. 2013).
E. The Habeas Petition
Following the exhaustion of his state-court remedies,
Nguyen filed a petition for a writ of habeas corpus in the District
Court. Nguyen’s petition advanced the same three claims for
relief that he had made in his PCR petition—namely: (1) his trial
counsel was ineffective for failing to assert a Sixth Amendment
speedy trial argument; (2) his appellate counsel was ineffective
for failing to raise a Miranda suppression issue; and (3) the state
court’s denial of jail credits deprived him of due process. See
14
Nguyen, 2015 U.S. Dist. LEXIS 156677, at *11.
The District Court rejected all of Nguyen’s arguments but
was troubled by the speedy trial issue. Specifically, it had
concerns about whether trial counsel had, in fact, advanced a
Sixth Amendment argument. However, it determined that the
state courts had made a factual finding that trial counsel raised
the argument—a finding the District Court deemed reasonable
in light of the trial court transcripts—and that it had to defer to
that finding. Id. at *26. As a result, it concluded that Nguyen
could not clear Strickland’s first prong, which requires a
showing of deficient performance. Id. Nevertheless, the Court
addressed the prejudice prong of Strickland in its opinion
because it determined that many of the delays in the prosecution
of the case were not attributable to Nguyen, and thus there may
have been merit to his constitutional speedy trial claim. The
Court concluded that “if this claim had been raised here as an
independent sixth amendment speedy trial claim”—as opposed
to an ineffective-assistance-of-counsel claim—“the Court could
very well find that a constitutional violation had occurred.” Id.
at *44-45. But because the Court determined that the state PCR
court’s determination on the first Strickland prong was “a
reasonable application of clearly established federal law, based
on a reasonable determination of the facts,” it could not
conclude that Nguyen met the two-prong test for demonstrating
that he had received ineffective assistance of counsel. Id. at
*45. Accordingly, it entered an order on November 19, 2015,
denying the petition for habeas corpus. The Court nevertheless
issued a certificate of appealability with respect to the alleged
speedy trial violation.4
4
Pursuant to 28 U.S.C. § 2253(c), an appeal may not be taken
15
III. STATEMENT OF JURISDICTION AND STANDARD
OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 2254, and we have jurisdiction pursuant to 28
U.S.C. §§ 1291 and 2253. We review the District Court’s denial
of the petition for habeas corpus de novo, as the District Court
did not hold an evidentiary hearing. See Thomas v. Horn, 570
F.3d 105, 113 (3d Cir. 2009). Moreover, the state court’s
factual findings are entitled to a presumption of correctness, and
the petitioner bears the burden to rebut that presumption by clear
and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also
Kuhlmann v. Wilson, 477 U.S. 436, 441, 106 S. Ct. 2616, 2620
(1986).
IV. DISCUSSION
A district court has authority to issue a writ of habeas
from a final order in a proceeding under 28 U.S.C. § 2254
unless a circuit justice or judge issues a certificate of
appealability. A justice or judge may issue a certificate of
appealability “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 1034 (2003).
Here, the District Court determined that reasonable jurists could
disagree with its conclusion. Nguyen, 2015 U.S. Dist. LEXIS
156677, at *46-47.
16
corpus to an individual in state custody solely on the ground that
he “is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). The
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), which deals with petitions for habeas corpus,
provides:
An application for a writ of habeas
corpus on behalf of a person in
custody pursuant to the judgment of
a State court shall not be granted
with respect to any claim that was
adjudicated on the merits in State
court proceedings unless the
adjudication of the claim --
(1) resulted in a decision that was
contrary to, or involved an
unreasonable application of, clearly
established Federal law, as
determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was
based on an unreasonable
determination of the facts in light
of the evidence presented in the
State court proceeding.
Id. § 2254(d).
Accordingly, the “AEDPA prohibits federal habeas relief
for any claim adjudicated on the merits in state court, unless one
17
of the exceptions listed in § 2254(d) obtains.” Premo v. Moore,
562 U.S. 115, 121, 131 S. Ct. 733, 739 (2011). The AEDPA in
28 U.S.C. § 2254(d) “‘permit[s] relitigation where the earlier
state decision resulted from “an unreasonable application of”
clearly established federal law.’” Id. (quoting Harrington v.
Richter, 562 U.S. 86, 100, 131 S. Ct. 770, 785 (2011)). The
Supreme Court has explained that “[t]he applicable federal law
consists of the rules for determining when a criminal defendant
has received inadequate representation as defined in Strickland.”
Id.
In accordance with the foregoing rules, Nguyen can
demonstrate ineffective assistance of trial counsel only if he first
demonstrates that his counsel’s performance fell below an
objective standard of reasonableness. Strickland, 466 U.S. at
688, 104 S.Ct. at 2064. Nguyen also must demonstrate that his
trial counsel’s deficient performance was prejudicial, such that
there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694, 104 S.Ct. at 2068. A “reasonable
probability” means a probability “sufficient to undermine
confidence in the outcome.” Id. Importantly, the Supreme
Court has made clear that “there is no reason for a court
deciding an ineffective assistance claim to . . . address both
components of the inquiry if the defendant makes an insufficient
showing on one” of the requisite prongs. Id. at 697, 104 S.Ct. at
2069. Thus, unless there is a finding that counsel acted
unreasonably, there is no need to consider whether there was
prejudice that can be attributed to his representation. Id.
With respect to the first Strickland prong, it is well
established that “‘the Constitution guarantees criminal
defendants only a fair trial and a competent attorney. It does not
18
insure that defense counsel will recognize and raise every
conceivable constitutional claim.’” United States v. Travillion,
759 F.3d 281, 289 (3d Cir. 2014) (quoting Engle v. Isaac, 456
U.S. 107, 134, 102 S. Ct. 1558, 1575 (1982)). On appeal, we
“must indulge a strong presumption that counsel’s conduct falls
within a wide range of reasonable professional assistance.” Id.
(citation and internal quotation marks omitted). In short,
Strickland directs that “[j]udicial scrutiny of counsel’s
performance must be highly deferential” and “every effort
[must] be made to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective
at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
It is equally well established that “habeas corpus is not to
be used as a second criminal trial, and federal courts are not to
run roughshod over the considered findings and judgments of
the state courts that conducted the original trial and heard the
initial appeals.” Williams v. Taylor, 529 U.S. 362, 383, 120
S. Ct. 1495, 1508 (2000). Rather, the Supreme Court has “long
insisted that federal habeas courts attend closely to those
considered decisions, and give them full effect when their
findings and judgments are consistent with federal law.” Id.
The interplay between the highly deferential standard of
habeas review and that of a Strickland analysis is critical. As
the Supreme Court has reiterated, “[s]urmounting Strickland’s
high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371, 130 S. Ct. 1473, 1485 (2010). Because an ineffective-
assistance-of-counsel claim can “function as a way to escape
rules of waiver and forfeiture and raise issues not presented at
trial [or in pretrial proceedings],” courts must apply the
19
Strickland standard “with scrupulous care, lest ‘intrusive post-
trial inquiry’ threaten the integrity of the very adversary process
the right to counsel is meant to serve.” Premo, 562 U.S. at 122,
131 S.Ct. at 739-40 (quoting Strickland, 466 U.S. at 689-90, 104
S.Ct. at 2066). “Establishing that a state court’s application of
Strickland was unreasonable under § 2254(d) is all the more
difficult.” Id. at 122, 131 S.Ct. at 740 (internal citations and
quotation marks omitted). The Supreme Court explained:
The Strickland standard is a general
one, so the range of reasonable
applications is substantial. Federal
habeas courts must guard against
the danger of equating
unreasonableness under Strickland
with unreasonableness under §
2254(d). When § 2254(d) applies,
the question is not whether
counsel’s actions were reasonable.
The question is whether there is any
reasonable argument that counsel
satisfied Strickland’s deferential
standard.
Id. at 122-23, 131 S.Ct. at 740 (internal citation omitted). In
sum, “[t]he standards created by Strickland and § 2254(d) are
both highly deferential, and when the two apply in tandem,
review is doubly so.” Id. at 122, 131 S.Ct. at 740 (internal
citations and quotation marks omitted).
Nguyen filed a petition for a writ of habeas corpus on
several grounds, but, on appeal, we address only his claim that
20
trial counsel was ineffective for failing to raise a Sixth
Amendment speedy trial argument, as he obtained a certificate
of appealability only on that issue. But, of course, if counsel did
assert a speedy trial violation, he cannot be deemed ineffective
for failing to have done so. After our review of the record, we
find that he did seek dismissal of the indictment on speedy trial
grounds, and thus Nguyen premises his argument on a flawed
reading of the record.
As set forth in full above, trial counsel’s September 21,
2009 brief supporting his motion to dismiss the indictment
included a nine-paragraph footnote that set forth and argued the
Barker v. Wingo factors. Trial counsel stated that “[t]he Sixth
Amendment to the United States Constitution guarantees an
accused the right to a speedy trial,” and that “Mr. Nguyen’s right
to a speedy trial has clearly been violated.” (A36-37 n.1).
Nguyen challenges the import of this footnote as demonstrating
that his counsel raised the speedy trial issue in the trial court on
two grounds, neither of which we deem meritorious.
Nguyen claims that the District Court, and this Court, on
habeas corpus review, must give deference to the factual
findings of the Appellate Division on appeal from the denial of
PCR. Specifically, Nguyen contends that we must defer to the
following statement from the Appellate Division’s decision: “In
any event, the PCR court correctly found that defendant was not
denied the effective assistance of counsel because his attorney
did not seek dismissal of the indictment on the ground that the
delay in resolving the charges violated his constitutional right to
a speedy trial under the Sixth Amendment to the United States
Constitution.” Nguyen, 2013 N.J. Super. Unpub. LEXIS 331, at
*7. Nguyen reads this sentence as a determination that
21
counsel did not raise a Sixth Amendment argument. Though the
“because” clause in the quoted sentence is somewhat
ambiguous, the context shows that the Appellate Division was
not taking a position on the issue. The sentence that precedes it
gives a reason why counsel perhaps should be deemed to have
raised the argument—namely, that the trial court, in ruling on
the IAD motion, “also found that the delay in the matter did not
violate defendant’s constitutional right to a speedy trial.” Id.
And the sentence that comes after approves the conclusion that,
“even if” counsel did not raise the claim, Nguyen “was not
prejudiced by the error because any such motion would have
been denied.” Id. at *8. The Appellate Division then goes on to
explain why, in its view, the Sixth Amendment claim lacked
merit. Thus, the better reading of the record is that the District
Court took no position on the first prong of Strickland and
resolved the case entirely on the absence of prejudice.5
5
Nguyen also argues that, regardless of what the Appellate
Division said on PCR review, it determined on direct appeal
from his convictions that trial counsel failed to raise a Sixth
Amendment argument. He bases that contention on the Court’s
statement on direct review that Nguyen “has not asserted a
violation of his constitutional right to a speedy trial.” Nguyen,
17 A.3d at 260 n.1. However, we do not read this statement to
say that Nguyen never asserted such an argument at any level,
either trial or appellate. Rather, we understand it to state the
undisputed fact that, regardless of what happened at the trial
level, Nguyen did not raise a Sixth Amendment argument on
direct appeal. Indeed, appellate courts frequently describe
issues as not being raised in reference to them not being argued
on appeal without implying that they were never presented at
any time.
22
In any event, this is not a case that turns on the
applicability of the presumption that state-court findings are
correct, as the record from the trial level is clear. Specifically, it
is undisputed that counsel included a nine-paragraph footnote in
the brief supporting the motion to dismiss that unequivocally
raised the issue of whether Nguyen’s constitutional right to a
speedy trial had been denied. Thus, the record conclusively
rebuts any statement that counsel did not make a speedy trial
argument in the state trial court.
Nguyen alternatively contends that trial counsel did not
raise a speedy trial argument adequately before the trial court
because he advanced the argument only in a footnote.
(Appellant’s Br. at 32 (citing Ethypharm S.A. Fr. v. Abbott
Labs., 707 F.3d 223, 231 n.13 (3d Cir. 2013))).6 Thus, Nguyen
claims that, because his counsel did not place the nine-paragraph
argument in the main text of the brief, we cannot conclude that
he raised the speedy trial argument in the trial court. But the
cases on which Nguyen relies for this conclusory proposition all
deal with a fundamentally different question—namely, whether
by inclusion in a footnote in an appellate brief an argument was
properly raised on appeal. See Ethypharm, 707 F.3d at 231
6
In Ethypharm we quoted Laborer’s Int’l Union of N. Am.,
AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.
1994), for the point that “a passing reference to an issue . . . will
not suffice to bring that issue before [a] court.” Ethypharm, 707
F.3d at 231 n.13 (internal quotation marks omitted). It seems
clear that Ethypharm can hardly help Nguyen because the nine-
paragraph footnote surely cannot be regarded as having been
inserted in his brief to the trial court in passing.
23
n.13; SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d
1312, 1320 (Fed. Cir. 2006);7 John Wyeth & Bro. Ltd. v.
CIGNA Int’l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997);
State v. Coley, Nos. A-2170-11, A-2171-11, 2014 N.J. Super.
Unpub. LEXIS 1384, at *7 n.2 (N.J. Super. Ct. App. Div. June
12, 2014); Coast Auto. Grp., Ltd. v. Withum Smith & Brown,
995 A.2d 300, 306 n.4 (N.J. Super. Ct. App. Div. 2010);
Muhammad v. Cty. Bank of Rehoboth Beach, 877 A.2d 340,
347 n.3 (N.J. Super. Ct. App. Div. 2005), rev’d on other
grounds, 912 A.2d 88 (N.J. 2006). But none of these cases
addresses the question of whether a trial counsel fails to advance
an argument adequately by advancing it only in a footnote in a
brief. In any event, in view of the highly comprehensive
exposition of the speedy trial issue in the footnote that we have
quoted in full, we simply cannot conclude that Nguyen’s
attorney did not raise the issue in the trial court.
We also point out that we are quite familiar with
procedures followed in New Jersey state courts and we have no
doubt that those courts, which favor reaching the merits of a
case, would regard the footnote that we have quoted as having
adequately raised a constitutional speedy trial issue. In this
regard, we note that the question of whether an issue was raised
properly in a state court must be viewed from the perspective of
that court, even if a federal court would not consider the
7
In SmithKline Beecham, 419 F.3d at 1320 n.9, the court said it
had “discretion to consider arguments that are not properly
raised in the opening brief.” Surely the New Jersey trial court at
least had discretion to consider the speedy trial footnote, and so
do we. If we felt a need to exercise discretion on the footnote
issue in order to consider it, we would do so.
24
argument properly raised because it used a more demanding
standard for preserving an issue than the state court.
Because we conclude that trial counsel did, in fact, raise
the argument of petitioner’s constitutional right to a speedy trial
in the trial court, he cannot be deemed to have been ineffective
for failing to do so. Consequently, Nguyen is not entitled to the
grant of a writ of habeas corpus.
V. CONCLUSION
For the foregoing reasons, we will affirm the District
Court’s order of November 19, 2015, denying Nguyen’s petition
for a writ of habeas corpus.
25
Hai Kim Nguyen v. Attorney General et al.
No. 15-3902
_________________________________________________
AMBRO, Circuit Judge, concurring
I join fully Judge Greenberg’s excellent opinion but
write separately to emphasize the importance of the trial
judge’s rejection of Nguyen’s Sixth Amendment speedy trial
defense. As Judge Greenberg notes, Nguyen’s counsel
included in a brief an extensive footnote that argued each of
the factors in the Supreme Court’s seminal speedy trial case,
Barker v. Wingo, 407 U.S. 514 (1972). Equally crucial,
though, is the judge’s reaction to the briefing. Specifically, he
concluded during oral arguments that the delay did not “run
afoul of . . . the standards set forth in Barker versus Wingo.”
In my view, this both reinforces the conclusion that Nguyen
cannot clear the first hurdle of Strickland v. Washington, 466
U.S. 668 (1984), and shows why he also fails the second one.
As Judge Greenberg explains, Nguyen’s first
obligation under Strickland is to show that his counsel’s
performance was constitutionally deficient. Strickland, 466
U.S. at 687. He argues that he can satisfy this requirement
because counsel included the Sixth Amendment defense in a
footnote rather than the main body of the brief. My colleagues
correctly reject this argument under the highly deferential
lens that we must apply when looking at Strickland claims
governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). See Knowles v. Mirzayance, 556
U.S. 111, 123 (2009) (noting that both Strickland and
AEDPA require deference and that when a claim is subject to
both the review is “doubly deferential”). This deference
makes it difficult to conclude, in the absence of contrary
state-court case law, that a New Jersey trial judge could not
have considered a nine-paragraph footnote that fully argued
the relevant factors.
If there were any doubt about this determination, the
judge’s rejection of the Sixth Amendment defense eliminates
it. This is not a case where there is merely no reason to think
the judge was barred from reaching the argument. Rather, we
know that he did decide it. This suggests that, contrary to
Nguyen’s assertions, the argument was properly before the
judge. The combination of these two factors—the lack of case
law preventing the judge from reaching the issue and the
evidence that he actually decided it—is fatal under our
deferential review.
The judge’s rejection of the argument also shows
why, even if Nguyen’s counsel had been deficient, there was
no prejudice. Prejudice requires that it be “reasonably likely
the result would have been different” if counsel had been
effective. Harrington v. Richter, 562 U.S. 86, 111 (2011)
(internal quotation marks omitted). In our case, there is no
need to guess what the outcome would have been if counsel
had included the speedy trial argument in the main body of
the brief rather than the footnote. That is because we know,
based on the judge’s comments during arguments, that he did
not think the delay violated the Sixth Amendment.
Under other circumstances, Nguyen perhaps could
have shown prejudice by establishing a reasonable likelihood
that an appeal would have resulted in a reversal of the judge’s
decision. See Gov’t of Virgin Islands v. Forte, 865 F.2d 59,
64 (3d Cir. 1989). Here, however, Nguyen pled guilty after
the judge rejected the Sixth Amendment argument. He
reserved in his plea the ability to argue on appeal that the
Interstate Agreement on Detainers (“IAD”), N.J. Stat. Ann.
§ 2A:159A-1 et seq., barred his prosecution, but he did not
leave open the option to present the appellate court with a
2
Sixth Amendment speedy trial defense.1 We have held that a
guilty plea that does not reserve the right to make a speedy
trial argument waives that issue for appellate purposes.
Washington v. Sobina, 475 F.3d 162, 166 (3d Cir. 2007).
Nguyen was therefore not entitled to (nor did he) ask the
appellate court to review the Sixth Amendment issue. Id.
The District Court overlooked our decision in
Washington and concluded that Nguyen’s guilty plea did not
waive the defense. Nguyen v. Hoffman, Civ. Action No. 13-
6845, 2015 WL 7306425, at *10 (D.N.J. Nov. 19, 2015). In
light of our binding precedent to the contrary, this was
incorrect. Because Nguyen cannot show that the outcome
might have been different at the trial level or that he could
have secured a reversal on appeal, he cannot demonstrate
prejudice. As a result, even if he could meet Strickland’s first
requirement, the District Court’s judgment should still be
affirmed.
1
Nguyen did reserve, in addition to the ability to contest the
trial judge’s resolution of the IAD issue, the right to appeal
“all his pretrial motions.” However, he has conceded that this
did not include the right to present a Sixth Amendment
argument. See Opening Br. at 12 & n.4; Reply Br. at 5–6.
3