                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  March 15, 2010
                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                      Clerk of Court




    THIEN H. NGUYEN,

                Petitioner-Appellant,

    v.                                                   No. 08-1337
                                                (D.C. No. 1:07-cv-00702-WYD)
    LOU ARCHULETA, Warden; JOHN                            (D. Colo.)
    W. SUTHERS, Attorney General of
    the State of Colorado,

                Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before GORSUCH and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



         Thien N. Nguyen, proceeding pro se, appeals from the district court’s

denial of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. In

our order of August 19, 2009, we granted a certificate of appealability (COA) on



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
five claims the district court found to be procedurally barred: (1) whether

Mr. Nguyen’s decision to waive his Fifth Amendment right not to be a witness

against himself was voluntary, knowing, and intelligent; (2) whether the trial

court’s admission of his incriminating statements and confession, without ruling

on whether they were voluntary, violated due process; (3) whether he was denied

due process because the interpreter allegedly failed to provide an exact translation

of witness testimony; (4) whether he was denied effective and meaningful

appellate review because portions of his trial proceedings were not recorded; and

(5) whether he was denied effective assistance of counsel by counsel’s failure to

obtain transcripts from a prior trial of a co-defendant. The grant of a COA was

limited to (1) whether these five claims were procedurally barred for failure to

present them in state court during post-conviction proceedings under

Colo. R. Crim. P. 35(c)(2)(I); and (2) whether the claims are procedurally barred

for failure to present them in state court on direct criminal appeal.

                                  BACKGROUND

      Mr. Nguyen was convicted in Colorado state court in 1992 of first-degree

assault, menacing, reckless endangerment, and twenty-seven counts of aggravated

robbery. He was sentenced to 270 years in prison, consisting of ten-year

consecutive terms of imprisonment for each aggravated robbery count and

concurrent terms of imprisonment for the other offenses. The Colorado Court of




                                          -2-
Appeals affirmed his conviction on direct appeal, and the Colorado Supreme

Court denied certiorari.

      In December 1997, Mr. Nguyen filed, through counsel, in the state trial

court a motion for post-conviction relief under Colo. R. Crim. P. 35(c)(2)(I),

asserting ineffective assistance of trial counsel and denial of due process due to

Mr. Nguyen’s absence during voir dire of two prospective jurors. During a

hearing, post-conviction counsel presented Mr. Nguyen’s pro se “Addendum to

Rule 35(c)(2)(I) Motion to Vacate Conviction and Sentence,” which asserted the

five constitutional claims before us.

             MR. JEFFERS: Mr. Nguyen had the assistance of another
      prisoner at the Limon facility and drafted an addendum that
      Mr. Nguyen wanted me to add to my brief and I exercised what I
      believe is both my discretion and obligation to filter out what I
      thought was a benefit and frankly most of it was not material that I
      felt could be incorporated.

              However, he really does feel important that this become part of
      the record and I think that the only way that it could be evaluated at a
      later time whether I did properly exercise my discretion not to
      include this in my legal pleadings is to have it become a part of the
      record on that basis.

            THE COURT: I believe that is appropriate if he wishes it to
      be part of the record.

             (Exhibit No. 2 was marked).

Tr. of Aug. 6, 1999 at 47. After questioning Mr. Nguyen, counsel offered

Exhibit 2 into the record for the purpose that “the judge read [it] and consider it.”

Id. at 49. The court admitted Exhibit 2. Id.

                                          -3-
       The court did review the pro se filing.

              THE COURT: The record should reflect that during the noon
       recess the Court reviewed the addendum to Rule 35-C, (2)(1), a
       motion to vacate conviction of the sentence, which was a document
       prepared by the defendant without the aid of counsel.

              The Court finds that the document primarily deals with issues
       that were raised on appeal or should have been raised on appeal and
       not issues that affect the purpose of the hearing today except for
       some of the allegations made concerning ineffective assistance of
       counsel. It’s been incorporated in the motion filed by Mr. Jeffers.

Id. at 104. At the end of the proceedings, when orally ruling, the trial court judge

stated that he had considered, among many other things, the pro se addendum. Id.

at 262. The court denied Rule 35(c) relief.

       On appeal, Mr. Nguyen proceeded pro se, raising the claims asserted in his

pro se addendum, among others. The Colorado Court of Appeals affirmed the

denial of Rule 35(c) relief, holding that the claims in the addendum were not

properly before the court because they had not been presented in the trial court

during the post-conviction proceedings. The Colorado Supreme Court denied

certiorari.

       In a second Rule 35(c) motion filed in the trial court in 2003, Mr. Nguyen

alleged, among other things, that his post-conviction counsel was ineffective for

failing to adequately present his claims in his first Rule 35(c) motion. Also, he

reasserted some of the claims he had asserted in the pro se addendum. On appeal,




                                          -4-
the Colorado Court of Appeals affirmed the trial court’s denial of relief,

concluding that these claims were time-barred and successive.

      Thereafter, Mr. Nguyen filed his § 2254 habeas petition in federal district

court. The court decided that the five claims for which we granted a COA were

unexhausted because they were raised for the first time in the Colorado Court of

Appeals. The federal district court also decided that although the claims were

unexhausted, they were procedurally barred because Mr. Nguyen no longer had an

adequate and effective state remedy available to him. The court found that

Colo. R. Crim. P. 35(c)(3)(VII) precluded him from bringing a successive state

post-conviction motion and that any further Rule 35(c) motions would be

time-barred. Finally, the court decided that the unexhausted claims had to be

dismissed as procedurally barred because Mr. Nguyen failed to make any effort to

show cause and prejudice or a fundamental miscarriage of justice.

                                    ANALYSIS

      As indicated by our order granting COA, this case presents complicated

procedural issues. We decline to address them, however, because we can decide

this case more easily and succinctly on its merits. 1 See Romero v. Furlong,


1
       We may consider alternate grounds for affirming that are not encompassed
by our grant of a COA. Cf. Woodward v. Williams, 263 F.3d 1135, 1139 n.2
(10th Cir. 2001) (considering State’s alternative ground for affirming that was not
part of grant of COA because State may defend on any ground supported by
record without appealing and State did not need COA to appeal from district
court’s decision).

                                         -5-
215 F.3d 1107, 1111 (10th Cir. 2000) (declining to decide procedural-bar issue

where it was easier to decide issue on merits). We conclude, as a matter of law,

that all of Mr. Nguyen’s claims lack merit.

                                           I.

      Mr. Nguyen argues that he did not voluntarily, knowingly, and intelligently

waive his Fifth Amendment right to silence when he testified at trial, because the

trial court failed to inform him that if he chose to remain silent the jury would be

instructed not to use his silence against him. Had he known this, he maintains he

would not have testified.

      We disagree that the trial court had an obligation to advise Mr. Nguyen of

his right to maintain silence. “[D]efense counsel, not the court, has the primary

responsibility for advising the defendant of his right to testify and for explaining

the tactical implications of doing so or not.” United States v. Ortiz, 82 F.3d 1066,

1070 (D.C. Cir. 1996); accord Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997);

United States v. Pennycooke, 65 F.3d 9, 11 (3d Cir. 1995). Mr. Nguyen does not

assert that his counsel failed to fully advised him of his right to remain silent, and

we will not presume that counsel failed to do so. Cf. Pennycooke, 65 F.3d at

12-13 (deciding trial court should presume defendant and attorney discussed right

to testify). Mr. Nguyen therefore has failed to show that his decision to testify

was not made knowingly, voluntarily, and intelligently.




                                          -6-
                                          II.

      Mr. Nguyen argues that his constitutional right to due process was violated

when the trial court allowed his incriminating statements to be admitted without

determining whether they were voluntary. The record, however, shows that the

trial court did rule on the voluntariness of his statements, finding them to be

voluntary and therefore admissible at trial. State Ct. R., Vol. 2 at 143, 151-52;

Trial Tr., Vol. IV at 126-29. Upon our review of the state court record, we agree

that the statements were voluntary. 2

                                         III.

      Mr. Nguyen argues that the interpreter’s translations were inaccurate,

thereby denying him due process and a fair trial. Specifically, he faults her for

failing to give a word-for-word translation of testimony and notes that his trial

counsel made several objections to the interpretations and that the trial court

admonished the interpreter several times. We conclude that Mr. Nguyen has

failed to show that his due process rights were violated. See Lucero v. Kerby,

133 F.3d 1299, 1314 (10th Cir. 1998) (“[H]abeas petitioners challenging their


2
       In denying his first Rule 35(c) motion, the Colorado Court of Appeals
addressed Mr. Nguyen’s argument that his trial counsel was ineffective for failing
to present evidence that his statements were involuntary and coerced. The court
rejected the argument, deciding that regardless of the alleged attorney
shortcoming, Mr. Nguyen did not suffer any prejudice because the evidence
against him was overwhelming and he failed to show that the result of the
proceedings would have been different.


                                          -7-
state convictions under this general ‘fairness’ mandate of the due process clause

bear an onerous burden.” (quotation omitted)).

      It is true that counsel did object to the interpretations several times and that

the trial court admonished the interpreter to provide only a word-for-word

translation. But these objections and admonishments occurred only at the

beginning of the trial. As the trial progressed, the objections and admonishing

ceased. Furthermore, early in the trial, when counsel complained about the

interpreter at a conference held outside the presence of the jury, the trial judge

stated that he had heard the testimony of the witnesses as interpreted by the

interpreter in the trials of Mr. Nguyen’s co-defendants, and the testimony given in

Mr. Nguyen’s trial was consistent with the testimony given in the previous trials.

Mr. Nguyen does not dispute this. Additionally, the evidence against him was

substantial, and he has failed to describe any prejudice that occurred to him. 3

                                         IV.

      Mr. Nguyen argues that the lack of a record and the failure to record all of

his trial proceedings deprived him of due process and meaningful review of the

trial proceedings. All of his assertions concern jury selection.




3
      Mr. Nguyen also asserts that the interpreter was unqualified. His assertion
is conclusory. Upon review of the trial transcript, we conclude the trial court
appropriately decided the interpreter, who had served as a courtroom interpreter
twenty times, was qualified.

                                          -8-
      He first contends that the trial court had contact with prospective jurors

before voir dire that was not recorded. The record reflects that the judge stated at

the beginning of voir dire that he had told the prospective jurors previously that

the trial could last for two to three weeks. Nothing suggests that the judge had

further contact. with these prospective jurors. Mr. Nguyen’s allegation of contact

without further specificity is insufficient to meet his onerous burden of showing

that he was denied due process. See id.

      Mr. Nguyen also contends that the trial court excused prospective jurors

without informing his counsel, without allowing objection prior to excusing the

jurors, and without providing reasons on the record for excusing them. The

record page Mr. Nguyen cites for support for his argument indicates that the

court, on the record, noted that it had excused one prospective juror with

non-refundable airline tickets and another prospective juror who was unable to

arrange for a babysitter for her children who were out of school due to a snow

storm. Mr. Nguyen cites no authority, and we have found none, indicating that it

was a violation of due process for the court to excuse these jurors without first

informing counsel or allowing counsel to object to their exclusion. Mr. Nguyen

therefore fails to meet his onerous burden. See id.

      Next, Mr. Nguyen faults the trial court for failing to grant his counsel’s

challenges for cause to two jurors thereby requiring him to use peremptory

challenges to excuse them, and for failing to record sidebar conferences during

                                          -9-
which his counsel objected to the two jurors. Regardless of whether the trial

court should have excused the jurors for cause, Mr. Nguyen has not shown that he

was deprived of a fair trial because he does not argue that he exhausted all of his

peremptory challenges and was forced to accept a biased jury. See Ross v.

Oklahoma, 487 U.S. 81, 83, 85-86, 88 (1988). In other words, he does not assert

that his jury was not fair and impartial. See United States v. Chanthadara,

230 F.3d 1237, 1265 (10th Cir. 2000) (“An impartial jury is central to the right to

a fair trial[.]”). Nor does he assert any prejudice that he suffered as a result of the

failure to record the sidebar conferences. Thus, he fails to show a due process

violation.

                                           V.

      Mr. Nguyen argues that he was denied effective assistance of counsel

because trial counsel failed to obtain transcripts of the testimony from a

co-defendant’s trial in order to impeach inconsistent statements and testimony at

his trial. This argument is conclusory. Mr. Nguyen does not indicate that there

actually were inconsistent statements given or that his counsel could have

impeached the witnesses who testified at his trial. Thus, he fails to show that his

counsel provided constitutionally ineffective assistance. See Strickland v.

Washington, 466 U.S. 668, 687 (1984) (requiring convicted defendant who asserts

ineffective assistance of counsel to show deficient performance and prejudice).




                                          -10-
                                  CONCLUSION

      The judgment of the district court is AFFIRMED. Mr. Nguyen’s motion for

leave to appeal in forma pauperis is DENIED as moot as he has paid his filing fee

in full. Also, his motion for a copy of the transcript of his August 6, 1999,

post-conviction hearing is DENIED. His motion to file his reply brief out of time

is GRANTED.



                                                     Entered for the Court



                                                     Wade Brorby
                                                     Senior Circuit Judge




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