Aguilar v. Ryan et al

Filing 25

ORDER granting 23 Petitioner's Motion for Clarification. IT IS FURTHER ORDERED the Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE as premature. The Clerk of Court should enter judgment and close this case. The Court denies issuance of a certificate of appealability. Signed by Magistrate Judge Lynnette C Kimmins on 11/17/2016. (See Order for details) (DPS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Edward Aguilar,
Petitioner,

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ORDER

v.

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No. CV-15-0286-TUC-LCK

Charles L. Ryan, et al.,

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Respondents.

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Petitioner Michael Aguilar has filed a Petition for Writ of Habeas Corpus pursuant

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to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondents’ Answer

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(Doc. 12), and Aguilar’s Reply (Doc. 13). The parties have consented to Magistrate

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Judge jurisdiction.1 (Doc. 16.) The Court will dismiss the Petition as premature.
FACTUAL AND PROCEDURAL BACKGROUND

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Aguilar was convicted in the Pima County Superior Court on two counts of

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attempted armed robbery, and sentenced to 11.25 years imprisonment. (Doc. 12, Exs. A,

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B.) Aguilar filed a pro se Motion to Vacate Judgment, which the trial court denied. (Id.,

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Exs. E, L.) He appealed that denial to the Arizona Court of Appeals and, over his

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objection, the appeal was consolidated with his already-filed notice of appeal. (Id., Exs.

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N, O, P.) The only brief presented to the court of appeals was that filed by appointed

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counsel. (Id., Doc. Q.) The Arizona Court of Appeals affirmed his convictions and

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sentences. (Id., Doc. T at 7.) The Arizona Supreme Court denied review. (Id., Exs. U, V.)

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This case was reassigned to the current judge on May 10, 2016. (Doc. 20.)

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Aguilar filed a Notice of Post-conviction Relief (PCR) on June 26, 2015. (Id., Ex.
W.) Counsel was appointed that day and, after two withdrawals of counsel, current PCR
counsel was appointed on June 27, 2015; since appointment, counsel has sought
numerous extensions. (See State v. Aguilar, No. CR-20121308 (Super. Ct. Pima Cnty.).)2
On October 31, 2016, the PCR court granted a final two-month extension to file the PCR
petition based on counsel’s motion stating that she is researching a “vital” piece of
evidence she has been unable to locate. (Id., Mtn to Extend Time and Order (Oct. 24 &
Oct. 31, 2016).)
Aguilar filed his federal habeas Petition in this Court on July 6, 2016. (Doc.1.)

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DISCUSSION
Aguilar raises seven claims in the Petition. Respondents contend all of the claims
are procedurally defaulted.
Before the federal court may grant habeas relief to a state prisoner, the prisoner
must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). Exhaustion in this case requires fair presentation of
the claims to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010
(9th Cir. 1999); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2004).
The Court carefully reviewed the Petition and concluded that none of the seven
claims therein were exhausted on direct appeal. (Compare Doc. 1 with Doc. 12, Ex. Q.)
Aguilar contends he raised Claims 1 through 5 by way of his Motion to Vacate Judgment;
however, as he acknowledges, they were not included in the Opening Brief filed before
the Arizona Court of Appeals on the consolidated appeal. (See Doc. 12, Ex. Q.) Aguilar
argues that a portion of Claim Four, alleging prosecutorial misconduct for failure to
disclose the full criminal history of victim Brady, was raised on appeal. (Doc. 1 at 19.)
The Court disagrees. On appeal, Aguilar argued the trial court erred in not precluding

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These documents have not been filed in this case; however, the Court reviewed
them on the superior court website, http://www.agave.cosc.pima.gov/AgavePartners/.
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Brady from testifying due to the prosecution’s failure accurately to disclose his criminal
history; he did not allege prosecutorial misconduct. (Doc. 12, Ex. Q at 13-15.) Aguilar
also contends that Claim Six, alleging sufficiency of the evidence, was raised on direct
appeal. Again, the Court disagrees. Before this Court, Aguilar alleges there was not
sufficient evidence to convict him on either charge of attempted armed robbery. (Doc. 1
at 22.) He then sets forth seven factual statements alleging that the BB gun was planted
(and had no fingerprint or DNA connection to him); the testifying victim was on heroin
and committed perjury; the victim on the 9-1-1 call initially stated she “thinks” he has a
gun but then then later answered, yes, he pulled a gun on me; and exculpatory text
messages were not admitted. (Id.) In contrast, on appeal, Aguilar alleged that admission
of the 9-1-1 call violated his Sixth Amendment right to confrontation (and, absent
admission of the call, the trial court should have granted a directed verdict as to one of
the victims, Count 2). (Doc. 12, Ex. Q at 18-20.) Aguilar concedes he has never presented
Claim 7 to the Arizona Court of Appeals. Thus, the Court concludes none of the claims in
the Petition were fairly presented to the Arizona Court of Appeals.
Review of the state court docket reveals that Aguilar has a PCR proceeding
pending in state court. A petitioner has not exhausted state court remedies if he has a state
PCR petition pending at the time he files a petition for writ of habeas corpus in federal
court. See

Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (pending

appeal);

Schnepp v. Oregon, 333 F.2d 288, 288 (9th Cir. 1964) (pending post-conviction
proceeding); Qualls v. Ryan, No. CV 13-1288-PHX-JAT (DKD), 2013 WL 3833218, at
*1-2 (D. Ariz. Jul. 24, 2013) (denying habeas corpus petition as premature where
petitioner presently had a Rule 32 petition pending). The pending PCR proceeding could
affect Aguilar’s convictions and ultimately these proceedings; therefore, it is
inappropriate for this Court to rule on Aguilar’s claims at this time. See Sherwood, 716
F.2d at 634.

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The Court’s review of the state court proceedings indicates that the one-year
statute of limitations applicable to a future petition has not begun to run. The Arizona
Supreme Court denied review of Aguilar’s direct appeal on June 11, 2015. (Doc. 12, Ex.
V.) For purposes of the applicable statute of limitations set forth in 28 U.S.C.
§ 2244(d)(1)(A), Aguilar’s conviction became final on September 9, 2015, when the
ninety days to petition for a writ of certiorari from the United States Supreme Court
expired, Sup. Ct. R. 13. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (holding
that “direct review” includes the period during which a petitioner can petition for writ of
certiorari, regardless of whether the petitioner seeks such review); see also Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009) (finding direct review to include the time up to
the expiration of the period to seek review by the Supreme Court). At the time Aguilar’s
direct review became final, he had already begun his first PCR proceeding by filing a
notice on June 24, 2015 (Doc. 12, Ex. W), which immediately tolled the statute of
limitations. Isley v. Ariz. Dep’t of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004)
(finding that tolling period begins with filing of notice pursuant to Arizona Rule of
Criminal Procedure 32.4(a)); 28 U.S.C. § 2244(d)(2) (the federal habeas statute of
limitations is tolled during the time a properly filed state PCR petition is pending).
Therefore, Aguilar will suffer no prejudice as a result of a dismissal without
prejudice.3 See Slack v. McDaniel, 529 U.S. 473, 487 (2000) (holding that a petition filed
after a prior petition has been dismissed for failure to exhaust before the district court
adjudicated any claims is not a second or successive petition).

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The Court considered whether a stay of the current petition would be a viable
remedy at this time, in accordance with Rhines v. Weber, 544 U.S. 269, 277-78 (2005)
and Mena v. Long, 813 F.3d 907 (9th Cir. 2016). The Supreme Court recognizes that
petitioners who are “reasonably confused” about timeliness rules may file “protective”
petitions in federal court and ask the court to stay and abey the federal habeas corpus
proceedings under Rhines until the state remedies are exhausted. Pace v. DiGuglielmo,
544 U.S. 408, 416 (2005). By protectively filing a habeas corpus petition, a petitioner
may comply with the one-year statute of limitations applicable to federal habeas corpus
petitions. See 28 U.S.C. 2244(d)(1). Here, the one-year limitations period is tolled by the
pending PCR proceeding; therefore, there is no need to hold this proceeding in abeyance
to prevent a statute of limitations problem. See id. Thus, dismissing the Petition under the
circumstances of this case will not prejudice Aguilar.
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Because Aguilar has not properly exhausted any claims and a PCR proceeding is
pending in state court, dismissal of the Petition as premature is proper.

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MOTION FOR CLARIFICATION

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On November 4, 2016, Aguilar filed a motion seeking clarification of the status of
the case. (Doc. 23.) Aguilar also discussed the evidence in his case and urged his actual
innocence. Finally, he asked that the Court proceed promptly to address his petition.
Nothing in Aguilar’s filing alters this Court’s determination that the Petition is premature.
However, the Court will grant the motion because this order clarifies the status of his
case.

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CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, this Court
must issue or deny a certificate of appealability (COA) at the time it issues a final order
adverse to the applicant. A COA may issue only when the petitioner “has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
showing can be established by demonstrating that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner” or that the issues were “adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463
U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable
jurists could debate (1) whether the petition states a valid claim of the denial of a
constitutional right, and (2) whether the court’s procedural ruling was correct. Id. The
Court finds that reasonable jurists would not find this Court’s procedural ruling
debatable. Therefore, a COA will not issue.
Accordingly,
IT IS ORDERED that Petitioner’s Motion for Clarification (Doc. 23) is
GRANTED.

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IT IS FURTHER ORDERED the Petition for Writ of Habeas Corpus is
DISMISSED WITHOUT PREJUDICE as premature.
IT IS FURTHER ORDERED that the Clerk of Court should enter judgment and
close this case.
IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing
Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a
certificate of appealability.
Dated this 17th day of November, 2016.

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Honorable Lynnette C. Kimmins
United States Magistrate Judge

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