Aguilar v. Baker et al

Filing 70

ORDER granting in part and denying in part ECF No. 68 Respondents' Motion to Dismiss. Ground 1 of petitioner's second amended petition for writ of habeas corpus is dismissed. In all other respects, the motion to dismiss is denie d, without prejudice to respondents asserting, in their answer, their argument that Ground 3 is barred by the procedural default doctrine. Respondents must, within 90 days from the date of this order, file an answer, responding to the claims remaini ng in petitioners second amended petition for writ of habeas corpus. The schedule for further proceedings set forth in the order entered on June 6, 2016 ECF No. 65 , will remain in effect. Signed by Judge Miranda M. Du on 11/29/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GILBERT DEMETRIUS AGUILAR,

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Petitioner,

ORDER

v.

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Case No. 3:12-cv-00397-MMD-WGC

RENEE BAKER, et al.,
Respondents.

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I.

INTRODUCTION

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This action is a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254,

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by Gilbert Demetrius Aguilar, a Nevada prisoner. The respondents have filed a motion to

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dismiss, arguing that two of the claims in Aguilar's second amended petition are barred

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by the procedural default doctrine. The Court will grant respondents’ motion to dismiss in

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part, and deny it in part, and will dismiss one procedurally defaulted claim. The Court will

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set a deadline for respondents to answer Aguilar's remaining claims.

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II.

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BACKGROUND
In its opinion on Aguilar's direct appeal, the Nevada Supreme Court described the

factual background of this case as follows:
On the evening of August 7, 1996, a store clerk ejected David and
Gilbert Aguilar from a Las Vegas 7-Eleven outlet for drinking alcohol on the
premises. Immediately thereafter, without apparent reason or provocation,
Gilbert attacked a man seated in his automobile in the store's parking lot. In
his attempt to flee, the man struck Gilbert with his automobile. Gilbert was
uninjured.

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After retrieving rifles from their apartment, the pair returned to the 7Eleven parking lot in search of the man. Thinking that they recognized the
driver of a passing automobile, they both commenced firing, striking several
cars and houses in the process. Upon hearing the shooting, Mark Emerson,
a nearby resident, stepped outside onto his patio and telephoned the police.
Unfortunately, he was struck by the rifle fire and expired en route to a local
hospital.

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Police arrested David Aguilar that evening at the scene. Gilbert
Aguilar was not apprehended until nine days later. Both brothers were
charged and convicted as described. They were tried together in a single
proceeding.

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(Order Dismissing Appeals, Exh. 5 (ECF No. 30-5).) (Unless otherwise indicated, the

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exhibits cited in this order were filed by Aguilar and are located in the record at ECF Nos.

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30 through 53.).

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Aguilar was found guilty of conspiracy to commit murder, murder with the use of a

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deadly weapon, possession of a firearm by an ex-felon, two counts of discharging a

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firearm at or into a structure, and discharging a firearm at or into a vehicle. The State

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sought the death penalty on the murder conviction. The jury, however, set Aguilar's

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penalty, for the murder, at life imprisonment without the possibility of parole. The State

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sought adjudication of Aguilar as a habitual criminal. The state district court ultimately

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sentenced Aguilar to the following prison sentences, all to run consecutively: for the

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conspiracy to commit murder, eight to twenty years; for the murder, two consecutive terms

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of life without the possibility of parole; for possession of a firearm by an ex-felon, eight to

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twenty years; for each of the two counts of discharging a firearm at or into a structure,

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eight to twenty years; and for discharging a firearm at or into a vehicle, eight to twenty

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years. (See Judgment of Conviction, entered January 6, 1998, Exh. 2 (ECF No. 30-2).)

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David was convicted of the same charges, except for being an ex-felon in possession of

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a firearm, but was sentenced differently.

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Aguilar and his brother both appealed; the Nevada Supreme Court consolidated

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their appeals, and on December 20, 1999, ruling on the merits of their claims, dismissed

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the appeal. (See Order Dismissing Appeals, Exh. 5 (ECF No. 30-5).)

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Aguilar filed his first habeas corpus petition in the state district court on September

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8, 2000. (See Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 7 (ECF No. 30-

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7).) The state district court held an evidentiary hearing, and then denied the petition in a

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written order filed on February 8, 2008. (See Findings of Fact, Conclusions of Law and

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Order, Exh. 14 (ECF No. 32).) Aguilar appealed, and the Nevada Supreme Court

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reversed and remanded on September 5, 2008, directing the district court to appoint

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counsel. (See Order of Reversal and Remand, Exh. 16 (ECF No. 32-2).) On remand, the

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state district court appointed counsel for Aguilar, held a further evidentiary hearing, and

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again denied Aguilar's petition in a written order filed on March 1, 2011. (See Findings of

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Fact, Conclusions of Law and Order, Exh. 18 (ECF No. 32-4).) Aguilar appealed, and the

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Nevada Supreme Court affirmed on March 9, 2012. (See Order of Affirmance, Exh. 21

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(ECF No. 32-7).)

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Aguilar initiated this federal habeas corpus action on July 27, 2012. (See Petition

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for Writ of Habeas Corpus (ECF No. 8).) Counsel was appointed (ECF Nos. 18, 20), and,

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with counsel, Aguilar filed a first amended habeas petition on December 11, 2013. (ECF

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No. 30.) Respondents filed a motion to dismiss Aguilar's first amended petition. (ECF No.

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54.) On September 19, 2014, the Court granted that motion in part and denied it in part;

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the Court found two claims in the first amended petition to be unexhausted in state court,

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and granted Aguilar an opportunity to make an election regarding those claims. (ECF No.

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56.) Aguilar filed a motion for a stay of this action to allow him to exhaust his unexhausted

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claims (ECF No. 57), as well as a motion for leave to file a second amended petition.

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(ECF No. 58.) On May 19, 2015, the Court granted both motions. (ECF No. 60.) This case

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was then stayed, and Aguilar filed his second amended petition — now the operative

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petition in this case — on June 12, 2015. (ECF No. 62.)

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Aguilar's second amended petition sets forth six grounds for relief, the sixth with
several sub-claims, as follows:
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Aguilar’s federal constitutional rights were violated because the trial
court admitted “highly prejudicial evidence of other wrongs.”

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Aguilar’s federal constitutional rights were violated because the trial
court admitted “totally irrelevant evidence of a bayonet and machete being
found in defendant's apartment.”

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Aguilar’s federal constitutional rights were violated as a result of the
instructions given to the jury regarding the elements of first degree murder.

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Aguilar’s federal constitutional rights were violated because the trial
court refused admission of evidence offered by Aguilar regarding parole
eligibility.

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5.
Aguilar’s federal constitutional rights were violated because the trial
court allowed the State to file a notice of habitual criminality after the jury's
verdicts in both phases of the trial.

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6.
Aguilar’s federal constitutional rights were violated as a result of
ineffective assistance of his trial counsel.

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6A. Trial counsel “was ineffective for failing to investigate
and present evidence that the weapon used to kill the victim
belonged to a police officer and that the police officer may
have fired the fatal shot.”

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6B. Trial counsel was ineffective for preventing the
admission of evidence that Aguilar had a prior felony
conviction.

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6C. “Trial counsel was ineffective for failing to investigate
and present evidence that the weapon used to kill Mark
Emerson belonged to [a police officer] and that the officer may
have [fired] the fatal shot.”

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6D. “Trial counsel was ineffective for failing to effectively
prevent the admission of the tainted, unreliable and
suggestive extra-judicial and in-court photographic lineup
identification….”

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6E. “Trial counsel was ineffective for failing to file a motion
to suppress the search of Gloria Olivares' apartment.”

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6F.
“Trial counsel was ineffective for failing to prevent the
video from the 7-11 from being admitted at trial and for failing
to investigate another theory of defense.”

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6G. “Trial counsel was ineffective for failing to move to
suppress the evidence of the palm print of David Aguilar found
on the Maadi semi-automatic rifle found in Gloria Olivares'
apartment.”

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6H. “Trial counsel was ineffective for failing to prevent
Annette Aguilar from testifying.”

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Second Amended Petition for Writ of Habeas Corpus (ECF No. 62) at 9-44.

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On July 2, 2015, Aguilar commenced a second state habeas action. (See Petition

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for Writ of Habeas Corpus (Post-Conviction), Exh. 1 to Motion to Lift Stay (ECF No. 64-

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1).) In an order filed September 14, 2015, the state district court denied Aguilar's petition,

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finding that it was untimely and successive. (See Findings of Fact, Conclusions of Law

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and Order, Exh. 2 to Motion to Lift Stay (ECF No. 64-2).) Aguilar appealed, and the

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Nevada Supreme Court affirmed on April 14, 2016. (See Order of Affirmance, Exh. 5 to

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Motion to Lift Stay (ECF No. 64-5).) The stay of this action was lifted, on a motion by

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Aguilar, on June 6, 2016. (See Order entered June 6, 2016 (ECF No. 65).)

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Respondents filed their motion to dismiss on September 20, 2016. (ECF No. 68.)

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In that motion, respondents assert that Grounds 1 and 3 of Aguilar's second amended

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habeas petition are barred by the doctrine of procedural default, and should be dismissed.

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Aguilar filed an opposition to the motion on October 7, 2016. (ECF No. 69.) Respondents

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did not reply.

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III.

DISCUSSION

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The Supreme Court has held that a state prisoner who fails to comply with state

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procedural requirements in presenting his claims is barred from obtaining a writ of habeas

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corpus in federal court by the adequate and independent state ground doctrine. Coleman

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v. Thompson, 501 U.S. 722, 731-32 (1991) (“Just as in those cases in which a state

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prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the

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State’s procedural requirements for presenting his federal claims has deprived the state

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courts of an opportunity to address those claims in the first instance.”). Where such a

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procedural default constitutes an adequate and independent state ground for denial of

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habeas corpus, the default may be excused only if “a constitutional violation has probably

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resulted in the conviction of one who is actually innocent,” or if the prisoner demonstrates

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cause for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496

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(1986).

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To demonstrate cause for a procedural default, the petitioner must “show that

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some objective factor external to the defense impeded” his efforts to comply with the state
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procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external impediment

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must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499

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U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears “the burden

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of showing not merely that the errors [complained of] constituted a possibility of prejudice,

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but that they worked to his actual and substantial disadvantage, infecting his entire

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[proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603

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(9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170 (1982).

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Alternatively, a procedural default may be excused if the petitioner can

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

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of justice.” Coleman, 501 U.S. at 750. A “fundamental miscarriage of justice” occurs when

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“a constitutional violation has probably resulted in the conviction of one who is actually

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innocent.” Murray, 477 U.S. at 495-96.

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With respect to Ground 1 — Aguilar's claim that his federal constitutional rights

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were violated because the trial court admitted prejudicial evidence of other wrongs —

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respondents point out that the Court previously held that Aguilar did not present that claim

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in either his direct appeal or his first state habeas action, and that it was therefore

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unexhausted before Aguilar’s return to state court to litigate his second state habeas

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action. (See Order entered September 19, 2014 (ECF No. 56) at 4.) Further, respondents

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point out that the Nevada Supreme Court held that Aguilar's second state habeas action

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was untimely and successive and, thus, procedurally barred, and that Aguilar did not

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show cause and prejudice under state law to overcome the procedural bar. (See Order

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of Affirmance, Exh. 5 to Motion to Lift Stay (ECF No. 64-5).) Therefore, Ground 1 is barred

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in this action by the federal procedural default doctrine, absent a showing of cause and

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prejudice or a fundamental miscarriage of justice. Aguilar makes no allegation or showing

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of cause and prejudice to overcome the procedural default. (See Opposition to Motion to

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Dismiss at 2.) Aguilar does argue, briefly, that failure to consider Ground 1 on its merits

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will result in a fundamental miscarriage of justice. (See id.) His argument, in this regard,

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is as follows:
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[T]he prior bad act evidence was incorrect and therefore, fundamentally
unfair. The men with whom petitioner had an altercation were not African
American but Hispanic and responsible for this murder.

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Id. This conclusory argument falls far short of the showing of a fundamental miscarriage

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of justice necessary to overcome the procedural default. Ground 1 is barred by the

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procedural default doctrine, and will be dismissed.

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In Ground 3, Aguilar asserts that his federal constitutional rights were violated as

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a result of instructions given to the jury regarding the elements of first degree murder.

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Here again, this Court previously held that Aguilar did not present this claim to the Nevada

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Supreme Court on his direct appeal or in his first state habeas action (see Order entered

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September 19, 2014 (ECF No. 56) at 4-5), and the Nevada Supreme Court held that

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Aguilar's second state habeas action was untimely and successive and, thus,

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procedurally barred, and that Aguilar did not show cause and prejudice to overcome the

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procedural bar. (See Order of Affirmance, Exh. 5 to Motion to Lift Stay (ECF No. 64-5).)

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Therefore, Ground 3 is barred by the federal procedural default doctrine absent a showing

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of cause and prejudice or a fundamental miscarriage of justice.

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The Court understands Aguilar to make a cause and prejudice argument regarding

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the procedural default of Ground 3: that because the Ninth Circuit Court of Appeals had

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not yet decided Babb v. Lozowsky, 704 F.3d 1246 (9th Cir. 2013), when his first state

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habeas action was concluded, he could not have raised the claim in that action, and,

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therefore, there was cause for his procedural default. (See Opposition to Motion to

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Dismiss at 2-3; see also Motion for Stay and Abeyance (ECF No. 57) at 4 (“The law that

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supports this ground, [Babb], hadn't yet been published until after Petitioner concluded

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his post-conviction case, and this ground could not have been raised in that state

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appeal.”).) The Court finds this to be a colorable assertion of cause to overcome the

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procedural default of Ground 3. However, the Court finds that the parties have not

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sufficiently briefed the issue with respect to the motion to dismiss, and that, at any rate, it

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appears that the cause and prejudice analysis is intertwined with the merits of Ground 3

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such that the issue of cause and prejudice relative to the procedural default of that claim
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will be better addressed in conjunction with the merits of the claim. The Court will deny

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respondents’ motion to dismiss with respect to Ground 3, without prejudice to

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respondents’ asserting, in their answer, their argument that this claim is barred by the

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procedural default doctrine.

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It is therefore ordered that respondents’ motion to dismiss (ECF No. 68) is granted

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in part and denied in part. Ground 1 of petitioner's second amended petition for writ of

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habeas corpus is dismissed. In all other respects, the motion to dismiss is denied, without

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prejudice to respondents’ asserting, in their answer, their argument that Ground 3 is

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barred by the procedural default doctrine.

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It is further ordered that respondents must, within ninety (90) days from the date

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of this order, file an answer, responding to the claims remaining in petitioner’s second

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amended petition for writ of habeas corpus.

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It is further ordered that, in all other respects, the schedule for further proceedings
set forth in the order entered on June 6, 2016 (ECF No. 65), will remain in effect.

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DATED THIS 29th day of November 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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