“a district court has discretion, but is not 27 required, to consider evidence presented for the first time in a party’s objection to a magistrate judge’s recommendation”
How later courts described this case
- “a district court has discretion, but is not 27 required, to consider evidence presented for the first time in a party’s objection to a magistrate judge’s recommendation”
- habeas petitioners “must fairly present their federal claims to the 13 highest state court” before bringing those claims in federal court
- noting that presentation 6 of an issue to a lower court but not the highest court does not exhaust the claim
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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HUNG DUONG NGUON, Case No.: 22cv181-JO-JLB
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ORDER ADOPTING REPORT
12 AND RECOMMENDATION
Petitioner,
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v.
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RAYMOND MADDEN, Warden,
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Respondent.
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18 Pro se Petitioner Hung Duong Nguon filed a habeas corpus petition under 28
19 U.S.C. § 2254 on February 6, 2022. Dkt. 1. On April 20, 2022, Respondent Raymond
20 Madden, Warden at Richard J. Donovan Correction Facility, filed a motion to dismiss the
21 petition. Dkt. 12 (“MTD”). On February 7, 2023, Magistrate Judge Burkhardt issued a
22 Report and Recommendation (the “R&R”) recommending that the petition be dismissed.
23 Dkt. 18. On February 24, 2023, Petitioner Nguon filed an objection to the R&R, primarily
24 on the grounds of judicial bias. Dkt. 20 (“Objection”). For the reasons set for below, the
25 Court adopts the R&R in its entirety.
26 I. BACKGROUND
27 In 1997, Nguon was sentenced to a term of life plus three years after being convicted
28 of kidnapping during the commission of a carjacking and use of a firearm in the
1 commission of a felony. See Dkt. 13-2 at 1; see also Cal. Penal Code §§ 209.5(a), 12022.5.
2 While incarcerated, Nguon was granted several parole hearings before the California Board
3 of Parole Hearings (the “Board”) in 2005, 2007, 2009, 2010, 2017, and 2021. See Dkts. 1
4 at 4; 1-13 at 4–5. At each of these hearings, the Board denied Nguon parole.1
5 On February 7, 2022, Nguon filed a habeas petition in this Court challenging his
6 most recent parole denial in 2021. Nguon alleges in his petition that the 2021 parole denial
7 violated his constitutional rights under the Ex Post Facto Clause, and under the Six, Eighth,
8 and Fourteenth Amendments. See generally Dkt. 1.2 After Respondent moved to dismiss
9 Nguon’s petition, see Dkt. 12, Magistrate Judge Burkhardt issued an R&R on February 7,
10 2023, recommending that Respondent’s motion to dismiss be granted. See R&R. Nguon
11 timely filed an objection to the R&R on February 24, 2023. See Objection.
12 Nguon’s Objection raises three arguments. First, Nguon primarily argues that the
13 magistrate was biased against him. See Objection ¶¶ 6, 11–12, 15, 18–19. Second, Nguon
14 also objects to the magistrate’s recommendations that his Ex Post Facto claim is
15 unexhausted and should be dismissed as barred by Ninth Circuit precedent. See id. ¶¶ 13,
16 20–21. Third, Nguon raises new arguments in the Objection that are not in his petition
17 regarding the validity of his underlying sentence and the California state superior court’s
18 alleged bias against him. See id. ¶¶ 15–17, 23–28.
19 A. Nguon’s Arguments Regarding Judicial Bias
20 Nguon’s primary objection to the R&R is that the magistrate was biased against him.
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1 Nguon has filed various state and federal habeas petitions challenging his parole denials, all of
23 which have been dismissed. See Dkt. 1-12 at 2; 13-1 at 1–6; Dkt. 13-2 at 1–2; Dkt. 13-3 at 1, 3–4, 7–9;
Dkt. 13-4 at 1; Dkt. 13-5; Dkt. 13-6; see also Hung Duong Nguon v. Dickinson, 2010 WL 3825496 (E.D.
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Cal. Sept. 28, 2010; Hung Duong Nguon v. Dickinson, 2011 WL 283866 (E.D. Cal. Jan. 25, 2011); Hung
25 Duong Nguon v. Virga, 2014 WL 996215 (E.D. Cal. Mar. 13, 2014); Hung Duong Nguon v. Baughman,
2019 WL 2994500 (E.D. Cal. July 9, 2019).
26 2 Nguon also alleges that the 2021 parole denial was unsupported by the facts and thus violated
California law, which is not at issue in this order. See Swarthout v. Cooke, 562 U.S. 216, 220–22 (2011)
27 (holding that parole board’s failure to apply “some evidence” standard was “a mere error of state law” and
not a denial of federal due process cognizable on habeas review).
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1 Because Nguon alleges this bias violated his due process rights, he asks that the R&R “be
2 disregarded,” and that Magistrate Judge Burkhardt be recused. See Objection ¶¶ 6, 11–12,
3 15, 18–19. Nguon presents three arguments to support his allegations of bias, each of
4 which is summarized below.
5 First, Nguon claims that Respondent committed perjury and that the magistrate’s
6 failure to punish Respondent for that perjury is evidence of bias. Nguon argues that
7 Respondent’s counsel committed perjury when she raised a statute of limitations defense
8 in the motion to dismiss. See id. ¶¶ 2, 5, 7–12. In the motion to dismiss, Respondent’s
9 counsel noted that Nguon appeared to be challenging parole denials in 2005, 2007, 2009,
10 2010, 2017, and 2021. See MTD at 10–11 & n.4. Respondent argued that, while Nguon’s
11 challenge to the 2021 parole denial was timely, the statute of limitations barred the
12 challenges to the older denials.3 See id. In the R&R, the magistrate concluded that Nguon
13 was not challenging the parole denials prior to 2021 and, thus, Respondent’s statute-of-
14 limitations arguments were irrelevant. See R&R at 6 & n.2. Even though the magistrate
15 ultimately disregarded Respondent’s statute of limitations defense, Nguon argues that the
16 magistrate’s failure to punish Respondent for raising the statute of limitations defense is
17 evidence of the court’s bias. See Objection ¶¶ 2, 5, 7–10.
18 Second, Nguon argues that the magistrate’s citation to the underlying state court’s
19 denial of his habeas petition also exhibits bias. Nguon emphasizes that superior state court
20 Judge Juan Carlos Dominguez––the judge who denied Nguon’s state court petition
21 regarding his 2021 parole denial––noted in his order that, “[a]t the time of sentencing the
22 trial judge commented that but for the fact that the victim was able to escape, the matter
23 would have had, potentially, a more dire consequence for the victim.” See Dkt. 13-2 at 1.
24 According to Nguon, this comment shows that Judge Dominguez was also biased against
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3 The Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations
27 applies to all federal habeas petitions filed by persons in custody pursuant to the judgment of a state court,
including those challenging parole denial. See, e.g., Redd v. McGrath, 343 F.3d 1077, 1080 (9th Cir.
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1 him. See Objection ¶¶ 15–17. Nguon further argues that the magistrate “quote[d]
2 Dominguez’s disparaging comments,” and thus was similarly biased against him when she
3 recommended dismissal of his petition. See id. ¶¶ 15, 17; see also R&R at 2.
4 Third, Nguon argues that the magistrate failed to address the invalidity of his original
5 sentence in 1997, which further demonstrates her bias against him. In his Objection to the
6 R&R, Nguon raises new arguments that his 1997 sentence for robbery and kidnapping is
7 invalid. See id. ¶¶ 23–28. Nguon appears to argue that his original sentence was an
8 improper consecutive sentence that resulted in “double punishment.” See id. Nguon
9 admits that those arguments were “not raised by Petitioner on appeal or Writs from a
10 judgment of conviction,” but argues that the magistrate had an obligation to “correct this
11 wrong,” and that her failure to do so is evidence of bias. See id.
12 B. Nguon’s Objections Regarding his Ex Post Facto Claim
13 Next, Nguon objects to the magistrate’s conclusions and recommendations with
14 respect to his Ex Post Facto claim. Nguon argues that that his incarceration was
15 unconstitutionally prolonged after his conviction due to the subsequent passage of
16 “Marsy’s Law.” See Dkt. 1 at 14; see also R&R at 6. Marsy’s Law was passed by
17 California voters in 2008 and increased the time periods between parole hearings. See
18 Gilman v. Schwarzenegger, 638 F.3d 1101, 1103–04 (9th Cir. 2011); see also Cal. Penal
19 Code § 3041.5(b)(3).4 Because Marsy’s Law increased the time periods between Nguon’s
20 parole hearings, he argues that the law “mak[es] parole hearings less accessible[,]
21 effectively increase[ing his] sentence.” See Dkt. 1 at 14. The magistrate concluded that
22 Nguon’s Ex Post Facto claim was invalid because it was barred by the Ninth Circuit’s
23 decision in Gilman v. Brown, 814 F.3d 1007 (9th Cir. 2016) (“Gilman II”), cert. denied
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4 Marsy’s Law significantly changed the law governing parole hearing deferral periods by:
27 (1) increasing the minimum deferral period from one years to three years; (2) increasing the maximum
deferral period from five years to fifteen years; and (3) increasing the default deferral period from one
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1 137 S. Ct. 650 (2017). A class of prisoners previously raised the same Ex Post Facto
2 challenge to Marsy’s Law in Gilman v. Brown, 110 F. Supp. 3d 989, 990 (E.D. Cal. 2014),
3 rev’d and remanded on other grounds, Gilman II, 814 F.3d 1007 (9th Cir. 2016). The
4 district court certified the class, and, on appeal, the Ninth Circuit held that Marsy’s Law
5 did not violate the Ex Post Facto rights of the class members because “a decrease in the
6 frequency of parole hearings—without more—is not sufficient to prove a significant risk
7 of lengthened incarceration.” Gilman II, 814 F.3d at 1016. In his Objection, Nguon argues
8 that he did exhaust his Ex Post Facto claim and that the claim is not barred by Gilman II.
9 See Objection ¶¶ 13, 20–22.
10 C. Nguon’s New Arguments in the Objection Not Raised in the Petition
11 In addition to objecting to the magistrate’s R&R as described above, Nguon also
12 appears to raise new arguments regarding the validity of his 1997 sentence and the alleged
13 bias of the state court judge that denied his habeas petition in the California superior court.
14 See Objection ¶¶ 15–17, 23–28. First, Nguon argues that his original sentence was an
15 improper, consecutive sentence that resulted in “double punishment.” See id. at ¶¶ 23–28.
16 Second, Nguon argues that Judge Dominguez––the judge that denied his most recent
17 habeas petition in state court––was biased, as evidenced by the judge’s negative comments
18 on the circumstances of Nguon’s crime. See id. ¶¶ 15–17. Nguon requests that “his
19 sentence [] be vacated due to its invalidity,” and that this Court find that Judge
20 Dominguez’s order “constituted judicial bias and prejudice.” See id. at 16–17 (“Prayer For
21 Relief”).
22 II. LEGAL STANDARD
23 The Court reviews de novo the portions of the R&R to which objections are made.
24 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the
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5 The magistrate also concluded that Nguon had not exhausted his Ex Post Facto claim, but
27 nonetheless considered Nguon’s claim and concluded that it was barred by Gilman II. See R&R at 8–10;
Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (noting that a court may dismiss an unexhausted
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1 findings or recommendations made by the magistrate judge.” Id. “The statute makes it
2 clear that the district judge must review the magistrate judge’s findings and
3 recommendations de novo if objection is made, but not otherwise.” United States v. Reyna–
4 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (emphasis in original). “Neither the
5 Constitution nor the statute requires a district judge to review, de novo, findings and
6 recommendations that the parties themselves accept as correct.” Id.
7 III. DISCUSSION
8 Below, the Court first addresses Nguon’s objections based on judicial bias and then
9 turns to Nguon’s objections regarding his Ex Post Facto claim. Lastly, the Court addresses
10 Nguon’s new arguments regarding his underlying sentence and the alleged bias of the state
11 court judge.
12 A. The Court Overrules Nguon’s Objections Based on Judicial Bias
13 The Court rejects Nguon’s allegations of judicial bias as wholly unsupported by the
14 record. When considering a judicial bias claim, there is “a presumption of honesty and
15 integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47 (1975);
16 Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008). Unless a judge’s comments
17 “reveal such a high degree of favoritism or antagonism as to make fair judgment
18 impossible,” the basis for recusal must be “something other than rulings, opinions formed
19 or statements made by the judge during the course of a [case].” See Liteky v. United States,
20 510 U.S. 540, 555 (1994); United States v. Holland, 519 F.3d 909, 913–14 (9th Cir. 2008).6
21 “[V]ague accusations and convoluted demands” are not evidence of judicial bias or
22 misconduct. See In re Complaint of Judicial Misconduct, 584 F.3d 1230, 1231 (9th Cir.
23 2009); § 2254, Rule 2(c) (petitioner “shall specify all the grounds for relief which are
24 available”). Here, the magistrate judge’s R&R––the sole basis of Nguon’s bias
25 allegations––does not reveal any degree of favoritism or antagonism. See Liteky, 510 U.S.
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6 Extrajudicial evidence is “something other than rulings, opinions formed or statements made by
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1 at 555. First, the magistrate did not show bias by failing to “admonish” Respondent for
2 noting that Nguon’s challenges to the older parole denials were barred by the statute of
3 limitations. It appears that Respondent mistakenly believed that Nguon was challenging
4 his parole denials prior to 2021, due to Nguon’s arguments that all the Board’s parole
5 denials were improper. See, e.g., Dkt. 1 ¶¶ 14, 23. Respondent’s attempt to defend against
6 these claims is not perjury, and it follows that the magistrate did not have any obligation to
7 admonish Respondent. Second, while Petitioner argues that the magistrate showed bias by
8 quoting state court Judge Dominguez’s disparaging comments, the Court finds that the
9 magistrate was merely citing to the relevant portions of the record in the case. Finally, the
10 magistrate’s failure to sua sponte address the validity of Nguon’s underlying sentence––an
11 issue that Nguon did not raise in his petition––is also not evidence of bias. See Larson,
12 515 F.3d at 1067. The court had no obligation to address claims that Nguon did not raise.
13 See § 2254, Rule 2(c). Overall, the record shows that the magistrate conducted a careful
14 review of Nguon’s petition and the record and issued recommendations in a fair and
15 impartial manner. Therefore, Nguon’s objection based on judicial bias is overruled.
16 B. The Court Overrules Nguon’s Objections Regarding his Ex Post Facto Claim
17 Next, Nguon objects to the magistrate’s conclusions and recommendations
18 regarding his Ex Post Facto claim. Nguon first argues that he exhausted his Ex Post Facto
19 claim when he raised an Eighth Amendment claim with the California Supreme Court. See
20 Objection ¶ 13. Nguon further argues that his Ex Post Facto claim is not barred by Gilman
21 II because he is not a proper member of the Gilman class. See id. ¶¶ 20–21. Nguon argues
22 that he was not “asked . . . to be part of [the Gilman] class action,” did not agree to
23 participate, and therefore cannot be bound by Gilman II.7 See id. The Court conducts a de
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7 The Court notes that Nguon’s Ex Post Facto objections are not proper objections to the R&R.
26 See, e.g., Fed. R. Civ. P. 72(b)(2) (objections must be specific); 28 U.S.C. § 636(b)(1)(C) (same); see also
United States v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000) (“a district court has discretion, but is not
27 required, to consider evidence presented for the first time in a party’s objection to a magistrate judge’s
recommendation”). Nevertheless, due to Nguon’s pro se status, the Court considers Nguon’s objections
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1 novo review of each of Nguon’s objections regarding the Ex Post Facto claim in turn.
2 First, the Court finds that Nguon’s Ex Post Facto claim fails because it has not been
3 exhausted. To satisfy exhaustion requirements, “[p]etitioners must fairly present their
4 federal claims to the highest state court.” Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir.
5 2002); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008) (noting that presentation
6 of an issue to a lower court but not the highest court does not exhaust the claim). Here,
7 Nguon bases his Ex Post Facto claim on the argument that his incarceration was prolonged
8 after his conviction because Marsy’s Law implemented longer time periods between parole
9 hearings. The Court has reviewed Nguon’s petition before the California Supreme Court
10 and that petition does not include anything related to his Ex Post Facto claim: there is no
11 mention of the Ex Post Facto Clause, Marsy’s Law, nor the length of time between parole
12 hearings. See Dkt. 13-3. In fact, the only grounds for relief alleged before the California
13 Supreme Court were that the parole Board violated Nguon’s constitutional rights by relying
14 on improper evidence during the parole hearing and by ultimately denying him parole. See
15 id.
16 Nguon does not argue that he brought his Ex Post Facto claim before the California
17 Supreme Court but, rather, argues that the Eighth Amendment claim he did bring before
18 the California Supreme Court covers his Ex Post Facto claim. See Objection ¶ 13. The
19 Court disagrees because Nguon’s Eighth Amendment claim was based solely on his
20 allegation that the Board improperly relied on “misinformation” when denying him parole,
21 amounting to cruel and unusual punishment. See Dkt. 13-3 at 4, 6; see also Wooten, 540
22 F.3d at 1025. Nguon’s Eighth Amendment claim before the California Supreme Court,
23 therefore, is unrelated to his current Ex Post Facto claim. Accordingly, because Nguon
24 did not fairly present his Ex Post Facto claim before the highest state court, he did not
25 exhaust the claim.
26 Second, the Court finds that Nguon is a member of the Gilman class and bound by
27 the judgment in that case; thus, he cannot bring an independent Ex Post Facto claim in this
28 Court. See Cooper v. Fed. Rsrv. Bank of Richmond, 467 U.S. 867, 874 (1984) (“a judgment
1 in a properly entertained class action is binding on class members in any subsequent
2 litigation.”); see also Rios v. Warden, 854 F. App’x 129, 129 (9th Cir. 2021) (finding that
3 the district court properly dismissed the petitioner’s claim that Marsy’s Law violates the
4 Ex Post Facto Clause because it is foreclosed by Gilman II). In Gilman v. Brown, the
5 district court certified a class of all California state prisoners under Rule 23(b)(2) regarding
6 the claim that Marsy’s Law violated the Ex Post Facto rights of the class members. 110 F.
7 Supp. 3d 989, 990 (E.D. Cal. 2014), rev’d and remanded on other grounds, Gilman II, 814
8 F.3d 1007 (9th Cir. 2016). On appeal, the Ninth Circuit held that Marsy’s Law did not
9 violate the Ex Post Facto rights of the class members because “a decrease in the frequency
10 of parole hearings—without more—is not sufficient to prove a significant risk of
11 lengthened incarceration.” Gilman II, 814 F.3d at 1016. Nguon does not argue in his
12 Objection that he does not fit the class definition in Gilman but argues that he should not
13 be considered a class member because he did not have notice of the class or agree to be a
14 class member. See Objection ¶¶ 20–22.
15 Nguon’s argument fails because he was not entitled to notice or an opportunity to
16 opt out of the Gilman class. The Gilman class was certified under Federal Rule of Civil
17 Procedure Rule 23(b)(2), which does not require that potential class members be given
18 notice or an opportunity to opt out. See, e.g., Equal Emp. Opportunity Comm’n v. Gen.
19 Tel. Co. of Nw., 599 F.2d 322, 334 (9th Cir. 1979) (cleaned up) (noting that under Rule
20 23(b)(2), “absent class members are not required to receive notice or to have the
21 opportunity to opt-out of the suit.”); see also Gilman v. Brown, 2013 WL 1904424, at *1
22 n.1 (E.D. Cal. May 7, 2013) (noting the court’s discretion to grant opt-out requests filed on
23 the docket). Thus, all prisoners who fit the class definition in Gilman became class
24 members unless they filed requests to opt out that the district court granted in its discretion.
25 See Fed. R. Civ. P. 23(b)(2); Paul Madden, et al., v. Fisher, et al., No. 05-cv-00830-MCE-
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1 CKD (E.D. Cal.). As was judicially noticed by the magistrate in the R&R, Nguon did not
2 request to opt out of the Gilman class. See id.; see also R&R at 10. Thus, having
3 considered Nguon’s new argument in this regard, the Court concludes that Nguon is a
4 member of the Gilman class and cannot maintain an independent Ex Post Facto claim in
5 this Court based on Marsy’s Law. Accordingly, Nguon’s Ex Post Facto claim is barred by
6 Gilman II and must be dismissed.
7 C. Nguon’s New Arguments Raised in the Objection are Unexhausted
8 Nguon appears to raise new arguments regarding the validity of his underlying
9 sentence and the alleged bias of the state court for the first time in his Objection. The Court
10 therefore considers whether those claims have been properly exhausted. See Akhtar, 698
11 F.3d at 1208–09 (holding district court has discretion to consider new arguments); see also
12 Beaty, 303 F.3d at 987 (habeas petitioners “must fairly present their federal claims to the
13 highest state court” before bringing those claims in federal court); Cartwright v. Cupp, 650
14 F.2d 1103, 1104 (9th Cir. 1981) (the petitioner bears the burden of showing that he has
15 exhausted state remedies). Nguon bears the burden to show that he has exhausted these
16 new grounds for relief, but he points to no evidence of exhaustion. See generally Objection.
17 In fact, Nguon appears to admit that his arguments regarding his underlying sentence were
18 “not raised by Petitioner on appeal or Writs from a judgment of conviction.” See id. ¶ 24.
19 The Court has also reviewed Nguon’s underlying state court petitions and confirms that
20 Nguon did not present these issues to the state superior, appellate, nor supreme court.
21 Accordingly, Nguon’s new claims regarding the validity of his underlying sentence and the
22 alleged bias of the state court judge are unexhausted and cannot be considered by this
23 Court.
24 ///
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8 The Court takes judicial notice of the docket in Gilman. See U.S. ex rel. Robinson Rancheria
27 Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (explaining that a court “may take
[judicial] notice of proceedings in other courts, both within and without the federal judicial system, if
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l IV. CONCLUSION
2 For the reasons discussed above, the Court ADOPTS the R&R in its entirety [Dkt.
3 The Court GRANTS Respondent’s motion to dismiss Nguon’s petition [Dkt. 12] and
4 || DISMISSES the petition.
5 IT IS SO ORDERED.
6 || Dated: March 20, 2023
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? “Tinsook Ohta
10 United States District Judge
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