Aguirre v. Ryan et al

Filing 34

ORDER Petitioner's Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1 ) is denied, and this action is dismissed with prejudice. The Clerk of Court is directed to enter judgment accordingly and close this case. The Court declines to issue a certificate of appealability. Signed by Judge Rosemary Marquez on 3/20/2018. (See attached Order for details) (KEP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Rey David Aguirre,
Petitioner,

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ORDER

v.

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No. CV-15-00258-TUC-RM

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court is Petitioner Rey David Aguirre’s Petition under 28

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U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1). Respondents filed a Limited

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Answer to the Petition (Doc. 15) and Petitioner filed a Response to the Limited Answer

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(Doc. 16). The Court will deny the Petition and dismiss this action with prejudice.

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I.

Background

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Petitioner was convicted in the Pima County Superior Court following a 2013 jury

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trial of one count of conspiracy, one count of illegally conducting an enterprise, one

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count of transporting more than two pounds of marijuana for sale, two counts of

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transporting less than two pounds of marijuana for sale, two counts of money laundering,

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and thirty-three counts of use of a wire or electronic communication in drug-related

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transactions. (Doc. 1 at 1-21; Doc. 15 at 2; Doc. 15-1 at 25-33, 36-56; Doc. 16 at 5-6.2)

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All record citations refer to the page numbers generated by the Court’s electronic
filing system.
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The Petition (Doc. 1 at 2) mistakenly listed 35 counts of use of a wire or
electronic communication in drug-related transactions; Petitioner filed a notice of errata

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Petitioner was sentenced on these counts to consecutive and concurrent terms totaling

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10.5 years in state custody followed by 7 years of probation. (Doc. 1 at 2; Doc. 15-1 at

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36-57, 68; Doc. 15-2 at 5; Doc. 15-5 at 28.)

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Petitioner’s appellate counsel filed a brief with the Arizona Court of Appeals in

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compliance with Anders v. California, 386 U.S. 738 (1967), averring that, having

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reviewed the record, he found no arguable question of law. (See Doc. 15-1 at 84.)

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Petitioner was granted additional time to file a supplemental brief pro se, but he never

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filed one. (Doc. 15-2 at 2, 5.) In a memorandum decision affirming Petitioner’s

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convictions and sentences, the Arizona Court of Appeals stated that it reviewed the

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record and “found no reversible error and no arguable issue warranting further appellate

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review.” (Id. at 6.) Petitioner did not file a motion for reconsideration or petition for

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review of the Court of Appeals’ memorandum decision. (Doc. 15-2 at 8.)

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Petitioner subsequently filed a Rule 32 Petition for Post-Conviction Relief alleging

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only ineffective assistance of his trial counsel. (See Doc. 15-3 at 2-21.) The Rule 32

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Petition alleged that trial counsel was ineffective when he (1) filed a motion to withdraw

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about 20 days before trial, cited no basis for the motion, and permitted the hearing on the

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motion to be held off the record (id. at 10); (2) entered into prejudicial stipulations on

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behalf of Defendant with no record of Defendant’s consent to enter into such stipulations

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(id. at 13); and (3) entered into stipulations detrimental to the Defendant without any

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apparent benefit (id. at 15).

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holding an evidentiary hearing, that Petitioner had “failed to state a colorable claim for

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post-conviction relief.” (Doc. 15-5 at 6.) The Arizona Court of Appeals granted review

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but denied relief, finding that Petitioner had failed to establish deficient performance and

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prejudice. (Id. at 28-31.) Petitioner failed to timely file a motion for reconsideration or a

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petition for review of the Court of Appeals’ decision. (See id. at 33.)

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II.

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The Pima County Superior Court determined, without

The Petition
In his § 2254 Petition, Petitioner raises four grounds for relief: (1) Petitioner was

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in his Response to the Limited Answer (Doc. 16 at 5-6).
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indicted under false pretenses; (2) the state’s witness gave hearsay testimony at

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Petitioner’s trial; (3) prosecutorial misconduct; and (4) the presiding judge at Petitioner’s

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trial lacked jurisdiction. (Doc. 1 at 6-9.) Petitioner indicates that he did not present any of

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these grounds to the Arizona Court of Appeals, with the explanation that only ineffective

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assistance of counsel was raised. (Id.) In the section of the Petition entitled “Timeliness

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of Petition” Petitioner provides a prayer for relief; he does not address the timeliness of

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his Petition. (Id. at 11.)

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In support of Ground One, Petitioner alleges that the evidence presented to the

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grand jury was “taken from another file” as to one count of his indictment. (Id. at 6.) As

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to another count, Petitioner claims that no evidence was presented to the grand jury to

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support an indictment. (Id.) Additionally, Petitioner calls into question the factual

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foundation of various counts of his indictment based on when certain information was

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made part of Petitioner’s file relative to when his indictment issued. (Id.) In essence,

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Petitioner seems to be claiming that his indictment was issued without the requisite level

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of proof. Exhibits One through Four (id. at 12-19) to the Petition are records and record

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requests that purportedly support Petitioner’s claim that there was insufficient evidence

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presented or available to be presented to the grand jury at the time of his indictment.

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Ground Two alleges violations of “federal and state rules of ‘hearsay’” by a state’s

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witness when, in anticipation of sworn testimony at trial, that witness “very frequently

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read [] text messages and listened to [] phone recordings.” (Id. at 7.) Additionally,

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Petitioner claims that the “state witness violated his oath of office when presenting

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‘hearsay’ testimony. . . .” (Id.)

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In support of the prosecutorial misconduct allegation raised in Ground Three,

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Petitioner states that the “prosecutor engaged in conduct she knew to be dishonest,

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fraudulent, and deceitful” and that the “improper conduct permeated the entire

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atmosphere of the trial.” (Id. at 8.) Specifically, Petitioner claims that the prosecutor

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wrongly “vouched for the credibility of State and Federal witnesses.” (Id.) Petitioner

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claims that, as a result, his Sixth and Fourteenth Amendment rights were violated. In

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support of this claim, he attaches a transcript, presumably of testimony given in relation

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to his criminal trial. (Id. at 22-23.)

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In Ground Four, Petitioner alleges that the Pima County Superior Court judge

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lacked “jurisdiction” to preside over his case because “he had not taken a timely oath of

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office” in violation of Article 6, Section 3 of the United States Constitution and A.R.S. §§

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38-231, 38-232, 38-361, and 38-291(a). (Id. at 9.) Petitioner states that “[t]he Judge in

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[Petitioner’s criminal case] did usurp into the office he occupied unlawfully.” (Id.)

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Exhibit Six is a list of the filing dates of oaths of office for some Pima County Superior

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Court judges. (Id. at 24.) The Honorable Christopher Browning presided over Petitioner’s

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trial (see Doc. 15-1 at 20), and according to Exhibit 6, his oath of office was filed on

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September 22, 1998. (Doc. 1 at 24.)

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Respondents filed a Limited Answer to the petition addressing only affirmative

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defenses. (Doc. 15.) Respondents argue that all four grounds of the petition are

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“procedurally defaulted because [Petitioner] failed to properly exhaust them in the

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Arizona Court of Appeals.” (Id. at 4; see also id. at 8-11.) Respondents argue that a return

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to state court to attempt to exhaust the claims would be futile in light of state procedural

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rules, and that Petitioner has failed to show cause and prejudice or actual innocence to

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excuse his failure to exhaust.

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Petitioner’s claims are not cognizable in federal habeas proceedings. (Id. at 8-10.)

(Id. at 8-11.)

Respondents also argue that two of

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Petitioner filed a Response to the Limited Answer. (Doc. 16.) As to each ground,

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Petitioner re-alleges the factual and legal bases for his claims. (Id. at 2-5.) Petitioner also

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argues that he has exhausted his claims based on a filing with, and subsequent order

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issued by, the Arizona Supreme Court. (Id. at 2.) Petitioner attached as exhibits to his

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Response the referenced filing and order. (See Doc. 16-1, 16-2.) The filing, which is

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titled “Motion to Request Investigation into Prosecutor Misconduct[,]” lists the Arizona

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Supreme Court as a Defendant, and appears to be addressed to the Department of Justice

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in Washington, D.C. (See Doc. 16-2.) A stamp indicates the filing was received by the

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Clerk of the Supreme Court on October 31, 2014. (Id. at 2.) In the document, Petitioner

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explains that his Rule 32 petition did not include prosecutorial misconduct as a basis for

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relief. (Id.) He argues that his constitutional rights, as guaranteed by Amendments 4, 5, 6,

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and 14 to the United States Constitution, were violated when “[t]he Pima County

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Prosecutor knowingly submitted false evidence against the p[e]titioner and committed

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p[e]rjury.” (Id. at 3.) In addition to his allegations of prosecutorial misconduct, Petitioner

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asks the Department of Justice “to conduct an investigation” regarding the allegations so

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that Petitioner can incorporate any findings into his Rule 32 petition. (Id. at 3-4.) The

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Arizona Supreme Court issued an order dismissing this motion. (Doc. 16-1 at 2.) In the

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order, the Supreme Court noted that Petitioner’s Rule 32 proceedings were still pending,

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and the Court explained the proper procedure for seeking review in the Arizona Court of

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Appeals and the Arizona Supreme Court of an adverse superior court ruling. (Id.)

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III.

Applicable Law

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A writ of habeas corpus affords relief to persons in custody in violation of the

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Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a). If the

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petitioner is in custody pursuant to the judgment of a state court, the writ will not be

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granted with respect to any claim adjudicated on the merits in state court proceedings

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unless prior adjudication of the claim –

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(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.
28 U.S.C. § 2254(d).

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Federal habeas review is generally limited to those issues that have been fully

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presented to the state court. This so-called “exhaustion rule” reads in pertinent part as

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follows:

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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 unless it
appears that – (A) the applicant has exhausted the remedies available in
the courts of the State. . . .
28 U.S.C. § 2254(b)(1)(A).

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To be properly exhausted, a claim must be “fairly presented” to the state courts in

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a procedurally appropriate manner. Picard v. Connor, 404 U.S. 270, 275 (1971); see also

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O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). In other words, the state courts must

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be apprised of the issue and given the first opportunity to rule on the merits. Picard, 404

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U.S. at 275-76. Accordingly, the petitioner must “present the state courts with the same

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claim he urges upon the federal courts.” Id. at 276. “The state courts have been given a

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sufficient opportunity to hear an issue when the petitioner has presented the state court

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with the issue’s factual and legal basis.” Weaver v. Thompson, 197 F.3d 359, 364 (9th

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Cir. 1999).

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In addition, the petitioner must explicitly alert the state court that he is raising a

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federal constitutional claim. Duncan v. Henry, 513 U.S. 364, 366 (1995); Casey v.

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Moore, 386 F.3d 896, 910-11 (9th Cir. 2004), cert. denied, 545 U.S. 1146 (2005). The

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petitioner must make the federal basis of the claim explicit either by citing specific

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provisions of federal law or federal case law, even if the federal basis of a claim is “self-

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evident,” Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 528 U.S.

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1087 (2000), or by citing state cases that explicitly analyze the same federal

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constitutional claim, Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

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In cases not carrying a life sentence or the death penalty, “claims of Arizona state

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prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals

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has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (per

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curiam), cert. denied, 529 U.S. 1124 (2000). If state remedies have not been properly

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exhausted, the petition may not be granted and ordinarily should be dismissed. See

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Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). In the alternative, the court has the

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authority to deny on the merits rather than dismiss for failure to properly exhaust. 28

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U.S.C. § 2254(b)(2).

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A claim is “procedurally defaulted” if the state court was presented with the claim

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but declined to address it on the merits for procedural reasons. Franklin v. Johnson, 290

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F.3d 1223, 1230 (9th Cir. 2002). Procedural default also occurs if the claim was not

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presented to the state court and it is clear the state court would now find the claim

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procedurally barred. Id. at 1230-31.

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Procedural default may be excused if the petitioner can “‘demonstrate cause for

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the default and actual prejudice as a result of the alleged violation of federal law, or

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demonstrate that failure to consider the claims will result in a fundamental miscarriage of

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justice.’” Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998) (quoting Coleman v.

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Thompson, 501 U.S. 722, 750 (1991)). “To qualify for the ‘fundamental miscarriage of

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justice’ exception to the procedural default rule, however, [the petitioner] must show that

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a constitutional violation has ‘probably resulted’ in the conviction when he was ‘actually

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innocent’ of the offense.” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008) (quoting

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Murray v. Carrier, 477 U.S. 478, 496 (1986)).

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IV.

Discussion

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All four of the grounds for relief Petitioner presented in his Petition are

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procedurally defaulted and Petitioner has not shown cause and prejudice or a miscarriage

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of justice to excuse the procedural default. Accordingly, the § 2254 Petition will be

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denied and this action will be dismissed with prejudice.

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A.

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Petitioner never raised any issues regarding the foundation for his indictment,

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hearsay testimony at trial, or the state criminal court’s lack of jurisdiction in his appeal,

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his Rule 32 petition, or in any other proceeding in state court. Thus, Petitioner did not

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fairly present Grounds One, Two, and Four in state court. A return to state court to

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exhaust the claims would be futile because the state court would now find the claims

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procedurally barred. See Ariz. R. Crim. P. 32.2. Accordingly, the claims are procedurally

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defaulted. Petitioner has not alleged any facts that would support a finding of cause and

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prejudice or a miscarriage of justice to excuse the procedural default. These grounds will

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be denied.

Grounds One, Two, and Four

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B.

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Although Petitioner raised the issue of prosecutorial misconduct in the October 31,

Ground Three

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2014 filing with the Arizona Supreme Court (see Doc. 16-2), this was not a procedurally

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appropriate means of presenting the claim to a state court, and the Arizona Supreme

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Court dismissed it as such (Doc. 16-1). Put differently, the October 31, 2014 filing did

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not give the Arizona Supreme Court, nor any other state court, the opportunity to address

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the merits of Petitioner’s prosecutorial misconduct claim. Prosecutorial misconduct was

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not presented in Petitioner’s appeal or in his Rule 32 petition. Thus, Ground Three was

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not fairly presented in state court. A return to state court to exhaust the claim would be

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futile because the state court would now find the claim procedurally barred. See Ariz. R.

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Crim. P. 32.2. Accordingly, Ground Three is procedurally defaulted. Petitioner has not

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alleged any facts to support a finding of cause and prejudice or a miscarriage of justice to

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excuse the procedural default. This ground will be denied.

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Accordingly,

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IT IS ORDERED Petitioner’s Petition under 28 U.S.C. § 2254 for a Writ of

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Habeas Corpus (Doc. 1) is denied, and this action is dismissed with prejudice. The

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Clerk of Court is directed to enter judgment accordingly and close this case.

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IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing

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Section 2254 Cases, the Court declines to issue a certificate of appealability, because

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reasonable jurists would not find the Court’s ruling debatable. See Slack v. McDaniel,

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529 U.S. 473, 478, 484 (2000).

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Dated this 20th day of March, 2018.

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