Nguyen v. Reynolds, 96-5254

• Decision Date: 07 November 1997
• Docket Number: No. 96-5254,96-5254
• Citation: 131 F.3d 1340
• Parties: 97 CJ C.A.R. 2797 Tuan Anh NGUYEN, Petitioner-Appellant, v. Daniel REYNOLDS, Warden, Oklahoma State Penitentiary; Larry Fields, Director, Oklahoma Department of Corrections; Susan B. Loving, sued as: Susan Brimer Loving, Attorney General of the State of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1340

131 F.3d 1340

97 CJ C.A.R. 2797

Tuan Anh NGUYEN, Petitioner-Appellant, v. Daniel REYNOLDS, Warden, Oklahoma State Penitentiary; Larry Fields, Director, Oklahoma Department of Corrections; Susan B. Loving, sued as: Susan Brimer Loving, Attorney General of the State of Oklahoma, Respondents-Appellees.

No. 96-5254.

United States Court of Appeals Tenth Circuit.

Nov. 7, 1997.

Janet G. Chesley, Office of Federal Public Defender (Scott W. Braden, Federal Public Defender, with her on the brief), Oklahoma City, OK, for petitioner-appellant.

Robert Whittaker (Diane Blaylock, with him on the brief), Office of Attorney General, Oklahoma City, OK, for respondents-appellees.

Before BALDOCK, KELLY, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioner Tuan Anh Nguyen was convicted in Tulsa County, Oklahoma, of three counts of first degree murder and was sentenced to death on two of the counts and to life imprisonment on the remaining count. After exhausting his state court remedies, petitioner filed this § 2254 habeas petition challenging his convictions and sentences. The district court denied relief and Nguyen appeals. We affirm.

I.

Nguyen was born and raised in Vietnam. In 1975, at the age of 15, he and other members of his family left Saigon and eventually made their way by boat to a refugee camp in Indian Town Gap, Pennsylvania. A church in Columbus, Indiana, sponsored the family and assisted them in relocating to a house in Columbus.

Nguyen dated Donna Barthlow, a fellow high school student in Columbus. During the summer of 1978 they eloped to Washington state. A short time later they moved to Bartlesville, Oklahoma, where they lived with Nguyen's uncle and attended school. The couple eventually dropped out of school, returned to Columbus for a brief period, and then moved to Tulsa, Oklahoma. While in Tulsa, the couple had a son, Nathaniel. During this time period, the couple argued and Nguyen began to exhibit jealous behavior. Due to limited finances, beginning in March 1982, the family shared a house with Donna's cousin Myra White, Myra's husband Joseph, and the Whites' two young children, Joseph (age 6) and Amanda (age 3). In mid-May 1982, Donna asked Nguyen to move out of the house because she wanted a divorce. He agreed and stayed with a friend, Tony Aguillar, who lived close to the Whites' house.

At approximately 10:50 p.m. on the evening of May 23, 1982, Myra White left her house for work at a nearby gas station. After cleaning up around the house, Joseph White also left the house and joined his wife at work shortly before midnight. At the time Joseph White left the house, his two children were asleep in their upstairs bedroom, and Donna and Nathaniel were downstairs in the living room. The Whites worked through the night and returned home between 7:00 and 8:00 the following morning. Upon arrival at their home, the Whites discovered the front door was unlocked. Inside, they found Donna stabbed to death in the living room; Nathaniel was crying but unharmed in a playpen near Donna's body. Joseph White went upstairs and discovered the bodies of his two children on the floor of their bedroom. Both had been stabbed to death. A bent and bloody kitchen knife was found downstairs near Donna's body.

At approximately 1:00 a.m. on May 24, 1982, Nguyen was seen at a convenience store two miles from the murder scene. Between 1:30 and 2:00 a.m., he visited Rick Brown, an acquaintance who lived in an apartment one-half mile from the murder scene. Nguyen was holding a shirt in his hands when Brown answered the door to his apartment, and Nguyen asked to use the bathroom. He stayed in the bathroom, with the water running, for several minutes. When he came out of the bathroom, Nguyen asked Brown for a ride and a dry shirt. Brown gave him a dry shirt and Nguyen left the apartment on foot, leaving behind his wet shirt. Between 5:00 and 5:30 that same morning, Tony Nguyen and Tien Bach drove Nguyen to a Howard Johnson's restaurant on Highway 44, where they dropped him off and gave him $15. Two days later, on May 26, 1982, Bach received a collect call from Nguyen. Bach asked Nguyen if he had killed his wife and Nguyen admitted that he had. Nguyen was charged with three counts of first degree murder in June 1982.

Nguyen was eventually arrested in Tucson, Arizona, in 1986 following a domestic disturbance between Nguyen and Mychau Truong, a teenage girl with whom he was living. Nguyen had met Truong at a wedding in Milwaukee, Wisconsin, in the summer of 1984. The two moved to Louisiana, where Nguyen regularly beat Truong and kept her a virtual prisoner in their trailer home. They eventually moved to Arizona, where Nguyen continued to beat her. During one of the beatings, while Truong was pregnant with Nguyen's child, Truong shot Nguyen. Nguyen was arrested after this incident and transported to Tulsa on June 30, 1986, to stand trial on the pending murder charges.

A jury convicted Nguyen of three counts of first degree murder. At the conclusion of the sentencing phase of trial, the jury found the existence of three aggravating factors: (1) the murder of the White children was especially heinous, atrocious, or cruel; (2) Nguyen's actions presented a great risk of death to more than one person; and (3) there was a probability that Nguyen constituted a continuing threat to society. Based upon these findings, the jury recommended sentences of death for the murders of the children and a sentence of life imprisonment for the murder of Donna Nguyen. The district court adopted the jury's recommendations and sentenced Nguyen to life imprisonment for the murder of his wife, and death by lethal injection for the murders of the children.

Petitioner filed a direct appeal from his convictions and sentences with the Oklahoma Court of Criminal Appeals. The court found the evidence had been insufficient to support the "heinous, atrocious, or cruel" aggravating factor; however, the remaining aggravating and mitigating circumstances were reweighed and the sentences of death were affirmed. Nguyen v. State, 769 P.2d 167 (Okla.Crim.App.1988), cert. denied 492 U.S. 925, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989).

Nguyen filed an application for post-conviction relief in state district court. An evidentiary hearing was conducted and relief was denied. The denial of relief was affirmed in Nguyen v. State, 844 P.2d 176 (Okla.Crim.App.1992), cert. denied 509 U.S. 908, 113 S.Ct. 3006, 125 L.Ed.2d 697 (1993). On May 4, 1994, the Oklahoma Court of Criminal Appeals ordered a July 19, 1994, execution date. Nguyen filed a second application for post-conviction relief in state district court and that application was denied. The denial of relief was affirmed in Nguyen v. State, 879 P.2d 148 (Okla.Crim.App.1994), and Nguyen's request for stay of execution was denied.

Nguyen filed this § 2254 action and an accompanying application for stay of execution on July 15, 1994. The district court stayed execution that same day. Ultimately, the court entered judgment denying relief on October 28, 1996. Nguyen filed a notice of appeal on November 20, 1996. He also filed an application for a certificate of appealability, which was granted by the district court on November 26, 1996.

II.

Before addressing the issues raised by Nguyen on appeal, we address whether the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to this case. The AEDPA amended chapter 153 of title 28 of the United States Code governing all habeas proceedings in federal courts, and created a new chapter 154 governing state habeas proceedings filed by prisoners subject to capital sentences. See 110 Stat. 1217-26. Although the new provisions of chapter 154 are expressly applicable "to cases pending on or after [April 24, 1996], the date of enactment of [the AEDPA]," 110 Stat. 1226, a state can take advantage of them only if it satisfies the requirements of 28 U.S.C. § 2261(b) and (c). As for the amendments to chapter 153 (which do not contain an effective date), the Supreme Court recently held they are generally not applicable to cases filed before AEDPA's effective date. See Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997), overruling the holding of Lennox v. Evans, 87 F.3d 431 (10th Cir.1996), cert. denied --- U.S. ----, 117 S.Ct. 746, 136 L.Ed.2d 684 (1997), that § 2253(c) applied to cases pending when AEDPA was enacted, even though the habeas petition was filed before AEDPA's effective date.

Because the State of Oklahoma has not yet satisfied, or even argued it can satisfy, the requirements of § 2261(b) and (c), the expedited habeas procedures set forth in chapter 154 are inapplicable to this case. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir.1997) (reaching similar conclusion with respect to habeas action filed by Texas state prisoner facing capital sentence). Further, because the habeas petition in this case was filed prior to AEDPA's effective date, the amendments to chapter 153 (including the requirement that a habeas petitioner obtain a certificate of appealability) are inapplicable as well. ¹ See Lindh, --- U.S. at ----, 117 S.Ct. at 2068.

Under pre-AEDPA standards, a state habeas petitioner cannot appeal a district court's ruling on a habeas petition unless a district or circuit judge issues a certificate of probable cause. 28 U.S.C. § 2253. To obtain a certificate of probable cause, a petitioner must make a "substantial showing of a denial of [a] federal right," Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983), precisely the same showing a petitioner must make under AEDPA standards to obtain a certificate of appealability. See Lennox, 87 F.3d at 434. Because the district court granted Nguyen a certificate of appealability, he has satisfied the standards for a certificate of probable cause as well and is entitled to appeal the district court's denial of his habeas...