                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 08 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ANH VU NGUYEN,                                   No. 10-35227

              Petitioner - Appellant,            D.C. No. 2:08-cv-01580-RSL

  v.
                                                 MEMORANDUM *
TIMOTHY WINGLER,

              Respondent - Appellee.



                   Appeal from the United States District Court
                      for the Western District of Washington
                  Robert S. Lasnik, Chief District Judge, Presiding

                        Argued and Submitted June 8, 2011
                               Seattle, Washington

Before: REINHARDT, W. FLETCHER, and RAWLINSON, Circuit Judges.

       Appellant Anh Vu Nguyen (Nguyen) challenges the district court’s denial of

his habeas petition. Nguyen contends that his constitutional rights were violated

when he was excluded from an in-chambers conference discussing a possible

conflict of interest between his attorney and a potential state witness. Nguyen also



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
argues that he was denied due process, a fair trial, and the right to present evidence,

when the trial court did not allow him to call a toxicologist to testify that the victim

was under the influence of drugs and to establish his self-defense claim. In

addition, Nguyen asserts that the trial court erred by not giving a self-defense

instruction. Nguyen further advances an ineffective assistance of counsel claim

based on his attorney’s failure to propose Washington Pattern Instruction, Criminal

(WPIC) 19.01, which describes defenses to felony murder. Finally, Nguyen argues

that the cumulation of errors warrants relief.




1.    The Washington Court of Appeals’ determination that no Sixth Amendment

violation occurred when Nguyen was excluded from an in-chambers conference

was not contrary to, or an unreasonable application of, clearly established federal

law. Because the conference was not a critical stage of the proceedings and

because no actual conflict of interest existed, Nguyen’s absence did not violate his

constitutional rights. See United States v. Gagnon, 470 U.S. 522, 526 (1985); see

also Houston v. Schomig, 637 F.3d 976, 978 (9th Cir. 2011).




2.    The Washington Court of Appeals’ conclusion that no due process violation

occurred when the testimony from a toxicologist was excluded was not contrary to,


                                           2
or an unreasonable application of, federal law. See Holmes v. South Carolina, 547

U.S. 319, 326-27 (2006) (permitting judges to exclude “marginally relevant”

evidence).




3.    The Washington Court of Appeals’ ruling that omission of the self-defense

instruction was harmless error was consistent with Brecht v. Abrahamson, 507 U.S.

619 (1993). Self-defense would apply only to the assault predicate of the burglary

charge, and the defendants were also convicted of kidnapping in the first and

second degree. As only one predicate offense was necessary to support the felony

murder conviction, omission of the self-defense instruction had no “substantial and

injurious effect or influence in determining the jury’s verdict.” Id. at 622.




4.    The Washington State Court of Appeals’ ruling on the ineffective assistance

of counsel claim was not contrary to, or an unreasonable application of, Strickland

v. Washington, 466 U.S. 668, 690 (1984) (noting that the “identified acts [must be]

outside the wide range of professionally competent assistance”). The state court

correctly determined that there was no evidence presented at trial that would have

supported the giving of the WPIC 19.01 instruction. Nguyen’s counsel did not

provide ineffective assistance by failing to propose it. See Gonzalez v. Knowles,


                                           3
515 F.3d 1006, 1017 (9th Cir. 2008) (“[C]ounsel cannot be deemed ineffective for

failing to raise [a] meritless claim.”) (citation omitted).




5.       The Washington State Court of Appeals’ determination that no relief was

available due to cumulative error was not contrary to, or an unreasonable

application of, Supreme Court precedent. Where there was only one harmless

error, as in this case, there was no error to cumulate, and the cumulative error

doctrine did not apply. See United States v. Sager, 227 F.3d 1138, 1149 (9th Cir.

2000).

         AFFIRMED.




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