Aguilar v. Baker et al

Filing 79

ORDER that the Second Amended Petition for Writ of Habeas Corpus (ECF No. 62 ) is denied; Petitioner is denied a certificate of appealability; Clerk directed to enter judgment accordingly. Signed by Judge Miranda M. Du on 7/10/2018. (Copies have been distributed pursuant to the NEF - LH)

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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,

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

v.
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TIMOTHY FILSON, et al.,

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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, by

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Gilbert Demetrius Aguilar, a Nevada prisoner. The action is before the Court with respect

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to the merits of the claims remaining in Aguilar’s second amended habeas petition

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(“Petition”). The Court will deny the Petition.

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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.
After retrieving rifles from their apartment, the pair returned to the 7-Eleven
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

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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.
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.
(Order Dismissing Appeals, Exh. 5 at 2-3 (ECF No. 30-5 at 4-5).)

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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 firearm

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

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

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murder, at life imprisonment without the possibility of parole. The State sought adjudication

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of Aguilar as a habitual criminal. The trial court ultimately sentenced Aguilar to the

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following prison sentences, all to run consecutively: for the conspiracy to commit murder,

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eight to twenty years; for the murder, two consecutive terms of life without the possibility

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of parole; for possession of a firearm by an ex-felon, eight to twenty years; for each of the

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two counts of discharging a firearm at or into a structure, eight to twenty years; and for

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discharging a firearm at or into a vehicle, eight to twenty years. (See Judgment of

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Conviction, Exh. 2 (ECF No. 30-2).) David was convicted of the same crimes, except for

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being an ex-felon in possession of 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 state-court habeas corpus petition on September 8, 2000. (See

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Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 7 (ECF No. 30-7).) The state

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district court held an evidentiary hearing, and then denied the petition in a written order

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filed on February 8, 2008. (See Findings of Fact, Conclusions of Law and Order, Exh. 14

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(ECF No. 32).) Aguilar appealed, and the Nevada Supreme Court reversed and remanded

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on September 5, 2008, directing the district court to appoint counsel. (See Order of

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Reversal and Remand, Exh. 16 (ECF No. 32-2).) On remand, the state district court
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appointed counsel for Aguilar, held a further evidentiary hearing, and again denied

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

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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).) The Court appointed counsel for Aguilar (ECF

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Nos. 18, 20), and, with counsel, Aguilar filed a first amended habeas petition on December

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11, 2013 (ECF No. 30). Respondents filed a motion to dismiss the first amended petition.

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(ECF No. 54.) On September 19, 2014, the Court granted that motion in part and denied

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it in part; the Court found two claims to be unexhausted in state court, and granted Aguilar

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an opportunity to make an election regarding those claims. (ECF No. 56.) Aguilar filed a

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motion for a stay, to allow him to exhaust his unexhausted claims (ECF No. 57), as well

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as a motion for leave of court to file a second amended petition (ECF No. 58). On May 19,

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2015, the Court granted both motions. (ECF No. 60.) The case was then stayed, and

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Aguilar filed his second amended petition, which is now the operative petition, on June 12,

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2015. (ECF No. 62.)

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Aguilar's second amended petition asserts six grounds for relief, the sixth with eight
sub-claims, as follows:
1.
Aguilar’s federal constitutional rights were violated because the trial
court admitted "highly prejudicial evidence of other wrongs.”
2.
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.”
3.
Aguilar’s federal constitutional rights were violated as a result of
instructions given to the jury regarding the elements of first degree murder.
4.
Aguilar’s federal constitutional rights were violated because the trial
court refused admission of evidence offered by Aguilar regarding parole
eligibility.
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.
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.”
6B. Trial counsel was ineffective for not preventing the admission
of evidence that Aguilar had a prior felony conviction.
6C. “Trial counsel was ineffective for failing to investigate and
present evidence that the weapon used to kill Mark Emerson
belonged to Officer Brian Debecker and that the officer may have
[fired] the fatal shot.”
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 . . . .”
6E. “Trial counsel was ineffective for failing to file a motion to
suppress the search of Gloria Olivares’[s] apartment.”
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.”
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’[s] apartment.”
6H. “Trial counsel was ineffective for failing to prevent Annette
Aguilar from testifying.”
(Second Amended Petition (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 Nevada

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

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

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

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Respondents filed a motion to dismiss Aguilar’s second amended petition on

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September 20, 2016. (ECF No. 68.) In that motion, Respondents asserted that Grounds 1
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and 3 of the Petition are barred by the doctrine of procedural default, and should be

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dismissed. On November 29, 2016, the Court granted the motion to dismiss in part and

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denied it in part. (ECF No. 70.) The Court granted the motion with respect to Ground 1,

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and dismissed that claim as procedurally defaulted; regarding Ground 3, the Court denied

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the motion to dismiss, without prejudice to Respondents asserting the cause and prejudice

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defense to that claim in their answer. (Id.)

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Respondents filed an answer on April 27, 2017. (ECF No. 76.) Aguilar filed a reply
on June 7, 2017. (ECF No. 77.)

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Aguilar’s brother and codefendant, David Aguilar, also pursued a federal habeas

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corpus action in this Court, and the Court denied relief in that case. (See Case No. 3:12-

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cv-00315-MMD-VPC.) The Court takes judicial notice of the proceedings in that case.

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III.

DISCUSSION

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A.

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28 U.S.C. § 2254(d) sets forth the standard of review applicable in this case under

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the Antiterrorism and Effective Death Penalty Act (“AEDPA”):

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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 with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the 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

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(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.

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Standard of Review

28 U.S.C. § 2254(d).

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A state court decision is contrary to clearly established Supreme Court precedent,

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within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts

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the governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts

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a set of facts that are materially indistinguishable from a decision of [the Supreme Court]

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and nevertheless arrives at a result different from [the Supreme Court’s] precedent.”

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Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (first quoting Williams v. Taylor, 529 U.S. 362,

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405-06 (2000); then citing Bell v. Cone, 535 U.S. 685, 694 (2002)).

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A state court decision is an unreasonable application of clearly established

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Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court

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identifies the correct governing legal principle from [the Supreme Court’s] decisions but

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unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538 U.S.

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at 75 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires

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the state court decision to be more than incorrect or erroneous; the state court’s

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application of clearly established law must be objectively unreasonable. Id. (quoting

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Williams, 529 U.S. at 409).

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The Supreme Court has instructed that “[a] state court’s determination that a claim

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lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

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on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101

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(2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court

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has stated “that even a strong case for relief does not mean the state court’s contrary

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conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen

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v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations omitted)

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(describing standard as “a difficult to meet” and “highly deferential standard for evaluating

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state-court rulings, which demands that state-court decisions be given the benefit of the

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doubt”).

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B.

Ground 2

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In Ground 2 of his Petition, Aguilar claims that his federal constitutional rights were

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violated because the trial court admitted “totally irrelevant evidence of a bayonet and

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machete being found in defendant’s apartment.” (Second Amended Petition (ECF No. 62),

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at 11-13.) The evidence at issue in this claim consisted of a machete and a bayonet found

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in the apartment that was apparently rented by David Aguilar’s girlfriend, Gloria. Those

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items were found by the apartment manager, who turned them over to the police. (See

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Transcript of Trial, October 8, 1997, Exh. 29 at 2-7 (ECF No. 42 at 3-8) (testimony of

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George Trombley); id. at 10-13 (ECF No. 42 at 11-14) (testimony of Howard Hall).)

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The Nevada Supreme Court ruled on a related state-law claim, on Aguilar’s direct
appeal, as follows:
On the day following the incident, the manager of the apartment complex in
which Gilbert and David resided found several rounds of ammunition, a
machete, and a bayonet in their apartment. This was accomplished at the
instance [sic] of the apartment owners. These items were all turned over to
the police.
At trial, the machete and bayonet were admitted into evidence over David’s
relevancy objection. David challenges this ruling on appeal. [Footnote:
Gilbert does not seek review of this issue in his appeal. Again, because we
have consolidated these appeals, our ruling on this issue applies equally to
Gilbert.] The State contends that the items were relevant to show that Gilbert
may have returned to the apartment after the police’s departure in order to
dispose of items other than the AK-47 that he might have been carrying on
the night of the shooting.
The determination of whether to admit evidence is within the sound
discretion of the district court, and such determinations will not be disturbed
unless manifestly wrong. See [Petrocelli v. State, 692 P.2d 503, 508 (Nev.
1985)]. NRS 48.015 defines “relevant evidence” as “evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without
the evidence.”
Neither the machete nor the bayonet tended to make the existence of any
fact of consequence regarding the charged offenses more probable than
without the evidence. As such, we conclude that the district court erred in
admitting the two items into evidence. However, we further conclude that the
error was harmless in light of the overwhelming evidence against both of
these appellants. See NRS 178.598 (Any error that does not affect
substantial rights shall be disregarded.); see also Big Pond v. State, 101
Nev. 1, 3, 692 P.2d 1288, 1289 (1985) (Whether error is harmless or
prejudicial depends on whether the issue of innocence or guilt is close,
quantity and character of error, and gravity of crime charged.); Walker v.
State, 113, Nev. 853, 872, 944 P.2d 762, 774 (1997).
(Order Dismissing Appeals, Exh. 5 at 3-4 (ECF No. 30-5 at 5-6).)

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The state trial court’s admission of evidence is not grounds for federal habeas

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corpus relief unless a specific constitutional guarantee is violated, or the error is of such

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magnitude that the result was a denial of the defendant’s right to a fundamentally fair trial

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guaranteed by due process clause of the federal constitution. See Henry v. Kernan, 197

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F.3d 1021, 1031 (9th Cir. 1999). To show that improper admission of evidence violated
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his due process rights, the federal habeas petitioner must demonstrate that the admission

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of the challenged evidence “offends some principle of justice so rooted in the traditions

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and conscience of our people as to be ranked as fundamental.” Patterson v. New York,

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432 U.S. 197, 202 (1977) (internal citations and quotations omitted); see also Montana v.

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Egelhoff, 518 U.S. 37, 43 (1996).

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The United States Supreme Court “has not yet made a clear ruling that admission

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of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to

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warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009)

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(citing Carey v. Musladin, 549 U.S. 70, 77 (2006)). Nor has the Supreme Court held that

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the introduction of evidence of prior bad acts, or other evidence to show propensity to

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commit a crime, violates due process. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (“[W]e

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express no opinion on whether a state law would violate the Due Process Clause if it

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permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged

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crime.”). Citing the Supreme Court’s express reservation of judgment on the issue, the

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Ninth Circuit Court of Appeals has held that federal habeas corpus relief is unavailable

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based on a state court’s admission into evidence of prior bad acts or propensity evidence.

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See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (rejecting habeas petitioner’s

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challenge to introduction of propensity evidence because petitioner could point to no

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Supreme Court precedent establishing that admission of such evidence violated

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Constitution).

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In its ruling on Aguilar’s direct appeal, the Nevada Supreme Court discussed the

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question of the admissibility of the evidence regarding the machete and bayonet only on

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state law grounds. The Nevada Supreme Court’s construction of Nevada law is

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authoritative, and is not subject to review in this federal habeas corpus action. See Estelle,

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502 U.S. at 67-68; Bonin v. Calderon, 59 F.3d 815, 841 (9th Cir. 1995). The Nevada

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Supreme Court did not provide any analysis regarding Aguilar’s federal constitutional

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claim. “Where a state court’s decision is unaccompanied by an explanation, the habeas

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petitioner’s burden still must be met by showing there was no reasonable basis for the

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state court to deny relief.” Harrington, 562 U.S. at 98.

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Aguilar points to no United States Supreme Court precedent that, as a federal

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constitutional matter, precludes the introduction of evidence such as that at issue here,

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and that was unreasonably applied by the Nevada Supreme Court.

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Moreover, the evidence regarding the machete and the bayonet did not render

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Aguilar’s trial fundamentally unfair. There was overwhelming evidence presented at trial

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showing Aguilar’s guilt. The evidence at trial firmly established that Aguilar and his brother

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committed violent crimes—they shot numerous rounds from semi-automatic weapons in

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and around a Las Vegas apartment complex, and, in doing so, killed a person. (See, e.g.,

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Transcript of Trial, October 2, 1997, Exh. 25 at 65-83 (ECF No. 37 at 66-84) (testimony of

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Joyce Marie Brown, a resident of the apartment complex, who, on the night of the shooting,

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saw Aguilar and his brother walk by her residence, with Aguilar carrying a gun); Transcript

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of Trial, October 3, 1997, Exh. 26 at 11-23 (ECF No. 38 at 12-24) (testimony of Terry

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Maldonado, who witnessed the shooting, and heard two different voices exclaim, “Did you

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get him, did you get him?” and “Come out, motherfucker”); Transcript of Trial, October 3,

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1997, Exh. 26 at 43-45 (ECF No. 38 at 44-46) (testimony of Mark Evans, who heard the

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shooting, and also heard an angry voice say “Come out, motherfucker”); Transcript of

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Trial, October 3, 1997, Exh. 26 at 57-97 (ECF No. 38 at 58-98) (testimony of Annette

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Aguilar, Aguilar’s girlfriend (she and Aguilar later married), who was with Aguilar before

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the shooting, during part of the shooting, and after the shooting); Transcript of Trial,

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October 3, 1997, Exh. 26 at 165-80 (ECF No. 38 at 166-81) (testimony of Marla Jean

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Emerson, whose husband was killed, who heard the gunfire and saw her husband go out

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onto their patio, heard her husband scream when he was shot, and saw Aguilar standing

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with a gun near her fatally wounded husband, saying to her, “Who’s in there?”); Transcript

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of Trial, October 6, 1997, Exh. 27 at 74-99 (ECF No. 40 at 75-100) (testimony of Chad

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Brown, a Las Vegas Metropolitan Police Department (“LVMPD”) officer who responded to

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the scene, and observed a person who looked like Aguilar shooting a gun, ordered the
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shooter to put down his gun, was shot at, and exchanged fire with the shooter); Transcript

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of Trial, October 6, 1997, Exh. 28 at 74-79 (ECF No. 41 at 88-93) (testimony of Rickey J.

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Workman, an LVMPD crime scene analyst, who, soon after the shooting, found, in Gloria’s

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apartment, among other items, two AK-47 style semi-automatic rifles, and a pair of pants,

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the pockets of which contained a wallet containing Aguilar’s identification and twenty-three

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live rifle cartridges of a size that could be shot by either of the two guns found in the

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apartment); Transcript of Trial, October 8, 1997, Exh. 29 at 50-83 (ECF No. 42 at 51-84)

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(testimony of Torrey Johnson, an LVMPD firearms examiner, whose testimony linked

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bullet casings found at the scene of the crimes to the two rifles found in the apartment).)

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In short, the evidence regarding the machete and bayonet was insignificant in the context

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of the strong evidence showing Aguilar’s guilt.

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The Nevada Supreme Court reasonably affirmed the denial of relief with respect to

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the claim that Aguilar’s federal constitutional rights were violated by the admission of the

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evidence regarding the machete and bayonet. Whether or not the admission of the

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evidence was error under Nevada law, the admission of that evidence was not contrary

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to, or an unreasonable application of, any clearly established federal law, and it did not

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render Aguilar’s trial unfair. The Court will deny habeas corpus relief on Ground 2.

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C.

Ground 3

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

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

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(Second Amended Petition (ECF No. 62) at 13-19.)

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In the order entered on September 19, 2014, the Court ruled that Ground 3 was, at

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that time, wholly unexhausted. (See Order entered September 19, 2014 (ECF No. 56) at

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4-5.) Then, while this action was stayed, Aguilar asserted this claim in his second state

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habeas action, and the Nevada Supreme Court held that action was procedurally barred,

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as it was untimely and successive, and further held that Aguilar did not show cause and

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prejudice to overcome the procedural bar. (See Order of Affirmance, Exh. 5 to Motion to

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Lift Stay (ECF No. 64-5).) Therefore, Ground 3 is barred by the federal procedural default

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doctrine absent a showing of cause and prejudice or a fundamental miscarriage of justice.

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Aguilar has, in the past, argued that there is cause and prejudice, with respect to

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the procedural default, to the extent that Ground 3 is based on the Ninth Circuit Court of

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Appeals’ decision in Babb v. Lozowsky, 704 F.3d 1246 (9th Cir. 2013), because Babb had

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not yet been decided when his first state habeas action was completed. (See Motion for

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Stay and Abeyance (ECF No. 57) at 4; Opposition to Motion to Dismiss (ECF No. 69) at

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2-3.) However, in his reply to Respondents’ answer, Aguilar does not assert that argument,

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or any other coherent argument that he can show cause and prejudice or a miscarriage of

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justice. (See Reply (ECF No. 77) at 4-5.)

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And, at any rate—perhaps explaining Aguilar’s abandonment of his argument—

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Babb is no longer good law with regard to federal habeas petitioners, such as Aguilar

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claims to be, whose convictions were not yet final when the Nevada Supreme Court

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decided Byford v. State, 994 P.2d 700 (2000). See Moore v. Helling, 763 F.3d 1011, 1015-

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Therefore, Aguilar cannot show prejudice.

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The Court will deny relief on Ground 3 as it is barred by the procedural default

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doctrine.

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D.

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In Ground 4, Aguilar claims that his federal constitutional rights were violated

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because the trial court refused admission of evidence offered by Aguilar regarding parole

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eligibility. (Second Amended Petition (ECF No. 62) at 19-24.) The evidence that Aguilar

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offered, and that was excluded by the trial court, was testimony of the chairman of the

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Nevada State Parole Board, regarding the parole process, Aguilar’s potential eligibility for

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parole, and the factors that might be considered in determining Aguilar’s parole eligibility.

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As this Court understands Aguilar’s position, he sought to introduce such evidence to

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counter the prosecution’s contention that he would pose a danger in the future, by showing

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Ground 4

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that, if sentenced to life with the possibility of parole, his chances of being granted parole

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would be slim.

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Aguilar asserted this claim on his direct appeal, and the Nevada Supreme Court
ruled as follows:
At the penalty phase of the trial, Gilbert attempted to call the chairman of the
Nevada State Parole Board as a witness to testify about the parole process,
Gilbert’s eligibility for parole, and the factors that might be considered in
determining Gilbert’s parole eligibility. The district court refused to allow
Gilbert to call the witness, distinguishing Geary v. State, 112 Nev. 1434, 930
P.2d 719 (1996).
Gilbert contends that the exclusion of this evidence was error, because the
jury instructions provided did not adequately cover the points he was
attempting to establish through the chairman’s testimony. [Footnote:
Specifically, Gilbert argues that the jury instructions did not outline the
factors the parole board considers in making parole determinations.
Because, David Aguilar was given consecutive sentences of life with the
possibility of parole, he is not a party to this issue on appeal.] The State
argues that the testimony Gilbert sought to introduce was unnecessary
because the court adequately instructed the jury on all sentencing options.

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“By statute, questions of admissibility during the penalty phase of a capital
murder trial are largely left to the discretion of the trial judge.” Milligan v.
State, 101 Nev. 627, 636, 708 P.2d 289, 295 (1985) (citing NRS 175.552).
We conclude that the district court did not abuse its discretion.

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Here, the district court instructed the jury in the following manner:

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The jury shall fix the punishment at:

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(1)
Life imprisonment without the possibility of parole, which
means exactly what it says, that the defendant shall not be eligible for
parole;

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(2)
Life imprisonment with the possibility of parole, with eligibility
for parole beginning when a minimum of 40 years has been served;

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(3)
A definite term of 100 years, with eligibility for parole beginning
when a minimum of 40 years has been served; or

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(4)

death

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Life imprisonment with the possibility of parole is a sentence of life
imprisonment which provides that a defendant would be eligible for
parole after a period of forty years. This does not mean that he would
be paroled after forty years, but only that he would be eligible after
that period of time.

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Life imprisonment without the possibility of parole means exactly what
it says, that a defendant shall not be eligible for parole.

2
3
4
5
6
7
8
9
10
11
12

If you sentence a defendant to death, you must assume that the
sentence will be carried out.
Although under certain circumstances and conditions the State Board
of Pardons Commissioners has the power to modify sentences, the
law does not allow the board to change either a death sentence or a
sentence of life without the possibility of parole to any lesser or
different sentence. Therefore, you are instructed that you may not
speculate as to whether the sentence you impose may be changed
at a later date.
The above-quoted jury instruction, in expressly stating to the jury that a
sentence of life without the possibility of parole cannot be commuted,
precluded the jury from having a “false choice” in deciding Gilbert’s
sentence. Accordingly, we conclude that the trial court did not err in refusing
admission of Gilbert’s evidence regarding his parole eligibility. Further, any
evidence regarding Gilbert’s individual parole eligibility would have been
wholly speculative.
(Order Dismissing Appeals, Exh. 5 at 9-11 (ECF No. 30-5 at 11-13).)

13

The Nevada Supreme Court’s analysis addressed only the question whether the

14

exclusion of Aguilar’s evidence violated state law. This ruling, on the state-law claim, is

15

not subject to review here. See Estelle, 502 U.S. at 67-68; Bonin, 59 F.3d at 841. The

16

Nevada Supreme Court did not provide any analysis regarding Aguilar’s claim that the

17

exclusion of the evidence violated his federal constitutional rights, and, again, “[w]here a

18

state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden

19

still must be met by showing there was no reasonable basis for the state court to deny

20

relief.” Harrington, 562 U.S. at 98.

21

Aguilar points to no United States Supreme Court precedent that, as a federal

22

constitutional matter, required the state trial court to allow introduction of evidence such

23

as that at issue here, and that was unreasonably applied by the Nevada Supreme Court.

24

Aguilar cites Simmons v. South Carolina, 512 U.S. 154 (1994). (See Second

25

Amended Petition (ECF No. 62) at 21-22.) In Simmons, the Court held that inaccurate

26

instructions about parole eligibility may deprive a defendant of due process when the

27

defendant’s future dangerousness is at issue in a capital sentencing. Simmons, 512 U.S.

28

at 163-66. In Simmons, the trial court refused the petitioner’s request to instruct the jury

13

1

that a sentence of life imprisonment would include no possibility of parole. Id. at 160.

2

During the sentencing phase of the capital trial, “[t]he State raised the specter of the

3

petitioner’s future dangerousness,” but “[t]he jury was left to speculate about petitioner’s

4

parole eligibility when evaluating petitioner’s future dangerousness, and was denied a

5

straight answer about petitioner’s parole eligibility even when it was requested.” Id. at 165-

6

66. Simmons stands for the proposition that, in a capital sentencing, a jury must be

7

instructed regarding the defendant’s ineligibility for parole if sentenced to life in prison

8

without possibility of parole. The state trial court’s instructions to the jury in this case

9

complied with that requirement. The jury was instructed that, if sentenced to life in prison

10

with the possibility of parole, Aguilar would be eligible for parole, but if sentenced to life in

11

prison without the possibility of parole, he would be ineligible for parole. Simmons did not

12

require the trial court to allow the sort of testimony, of the chairman of the Nevada State

13

Parole Board, proffered by Aguilar. The Nevada Supreme Court did not unreasonably

14

apply Simmons.

15

Aguilar also cites California v. Ramos, 463 U.S. 992 (1983). In Ramos, the Court

16

held that instructions to a capital sentencing jury may include accurate information

17

regarding the Governor’s authority to commute a sentence of life without the possibility of

18

parole to a sentence including the possibility of parole. Ramos, 463 U.S. at 1001. Ramos

19

is plainly inapposite.

20

Aguilar has not shown that, in denying relief on this claim, the Nevada Supreme

21

Court unreasonably applied Simmons or Ramos, or any other Supreme Court precedent.

22

The Nevada Supreme Court reasonably determined that the exclusion of testimony of the

23

chairman of the Nevada State Parole Board was not contrary to, or an unreasonable

24

application of, any clearly established federal law. The Court will deny habeas corpus relief

25

on Ground 4.

26

E.

Ground 5

27

In Ground 5, Aguilar claims that his federal constitutional rights were violated

28

because the trial court allowed the State to file a notice of habitual criminality after the
14

1

jury’s verdicts in both phases of the trial. (Second Amended Petition (ECF No. 62) at 25-

2

28.) Aguilar contends that he was prejudiced by the timing of the notice of habitual

3

criminality, as follows:

4

This practice precluded the defense from using the possibility of an
enhanced sentence to argue in favor of Life With the Possibility of Parole.
Had the jury been aware of the fact that Aguilar may have received a
sentence of 100 years, in addition to two consecutive life sentences, it could
be that Aguilar would have received a sentence of Life Without the Possibility
of Parole.

5
6
7
8

(Id. at 25-26.)

9
10

Aguilar raised this claim on his direct appeal, and the Nevada Supreme Court ruled
as follows:

11

Following the penalty phase of the trial but before formal sentencing, the
State filed a notice that it would seek enhancement of Gilbert’s sentence
under NRS 207.010, the Nevada habitual criminal statute. Gilbert argues
that the post-trial filing, pursuant to NRS 207.016, precluded him from using
the possibility of enhanced sentencing as a habitual criminal in support of a
sentence of life with the possibility of parole during the penalty phase of the
trial. The State argues that the notice was properly filed pursuant to the
statute.

12
13
14
15

NRS 207.016(2) provides, in relevant part, “a count pursuant to NRS
207.010 . . . may be separately filed after conviction of the primary offense,
but if it is so filed, sentence must not be imposed . . . until 15 days after the
separate filing.” [Footnote, setting forth text of NRS 207.010(1), omitted.]
Gilbert contends that the notice was improperly filed because the beginning
of the penalty hearing constituted the commencement of sentencing.

16
17
18
19

We conclude that Gilbert’s contention lacks merit. Although the filing of the
notice of habitual criminality against Gilbert may have added more time to
his sentence, the State acted within the confines of the relevant statute.

20
21

(Order Dismissing Appeals, Exh. 5 at 11-12 (ECF No. 30-5 at 13-14).)

22

Here again, the Nevada Supreme Court discussed only the state-law issue, which

23

is not subject to review in this case (see Estelle, 502 U.S. at 67-68; Bonin, 59 F.3d at 841);

24

the court did not discuss Aguilar’s claim that the timing of the notice violated his federal

25

constitutional rights. “Where a state court’s decision is unaccompanied by an explanation,

26

the habeas petitioner’s burden still must be met by showing there was no reasonable basis

27

for the state court to deny relief.” Harrington, 562 U.S. at 98.

28

///
15

1
2

Aguilar cites Gardner v. Florida, 430 U.S. 349 (1977), in support of his claim, and
argues:

3

Not only was it improper for the state to file a Notice of Habitual Criminality
after the verdict but this practice infringed on the substantial rights of Aguilar.
See Gardner v. Florida, 430 U.S. 349 (1977) (holding that the accused must
be afforded the right to deny or explain evidence presented against him).

4
5
6

(Second Amended Petition (ECF No. 62), at 26.) In Gardner, the Supreme Court held that

7

a death sentence could not constitutionally be based on evidence—in that case,

8

information in a portion of a presentence report not disclosed to the defense—that was

9

not disclosed to the defense and that the defense was precluded from rebutting. Gardner,

10

430 U.S. at 362 (“We conclude that petitioner was denied due process of law when the

11

death sentence was imposed, at least in part, on the basis of information which he had no

12

opportunity to deny or explain.”). Gardner does not support Aguilar’s claim. First, the

13

defendant in Gardner was sentenced to death, and the Supreme Court’s ruling was based

14

in part on the notion that “death is a different kind of punishment from any other which may

15

be imposed in this country.” Id. at 357-58. And, second, the issue in Gardner was the fact

16

that the death sentence was based to some extent on evidence not disclosed to the

17

defense. That is not the case here. The issue in this case is the sufficiency of the notice

18

to Aguilar that the State would seek sentencing under the habitual criminal statute. It was

19

not unreasonable for the Nevada Supreme Court to determine that Gardner did not impose

20

a constitutional requirement of earlier notice that the State would seek sentencing of

21

Aguilar as a habitual criminal.

22

Aguilar also cites Lockett v. Ohio, 428 U.S. 586 (1978). In Lockett, the Supreme

23

Court held that “the Eighth and Fourteenth Amendments require that the sentencer not be

24

precluded from considering any aspect of a defendant’s character or record and any of

25

the circumstances of the offense that the defendant proffers as a basis for a sentence less

26

than death.” Lockett, 428 U.S. at 604. That holding has no bearing on the issue raised by

27

Aguilar in Ground 5.

28

///
16

1

The Nevada Supreme Court did not unreasonably apply Gardner or Lockett, or any

2

other Supreme Court precedent. The Nevada Supreme Court reasonably determined that

3

the Aguilar’s federal constitutional rights were not violated on account of the timing of the

4

notice of his sentencing under Nevada’s habitual criminal statute. The Court will deny

5

habeas corpus relief on Ground 5.

6

F.

7

In Ground 6, Aguilar claims that his federal constitutional rights were violated as a

8

result of ineffective assistance of his trial counsel. (Second Amended Petition (ECF No.

9

62) at 29-44.) Ground 6 includes eight separate claims of ineffective assistance of trial

10

Ground 6

counsel, designated Grounds 6A through 6H.

11

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court propounded

12

a two-prong test for claims of ineffective assistance of counsel: the petitioner must

13

demonstrate (1) that the defense attorney’s representation “fell below an objective

14

standard of reasonableness,” and (2) that the attorney’s deficient performance prejudiced

15

the defendant such that “there is a reasonable probability that, but for counsel’s

16

unprofessional errors, the result of the proceeding would have been different.” Strickland,

17

466 U.S. at 688, 694. A court considering a claim of ineffective assistance of counsel must

18

apply a “strong presumption” that counsel’s representation was within the “wide range” of

19

reasonable professional assistance. Id. at 689. The petitioner’s burden is to show “that

20

counsel made errors so serious that counsel was not functioning as the ‘counsel’

21

guaranteed the defendant by the Sixth Amendment.” Id. at 687. To establish prejudice

22

under Strickland, it is not enough for the habeas petitioner “to show that the errors had

23

some conceivable effect on the outcome of the proceeding.” Id. at 693.

24

Where a state court has adjudicated a claim of ineffective assistance of counsel

25

under Strickland, establishing that the decision was unreasonable under the AEDPA is

26

especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the Supreme Court

27

instructed:

28

///
17

1

6

The standards created by Strickland and § 2254(d) are both highly
deferential, [Strickland, 466 U.S. at 689]; Lindh v. Murphy, 521 U.S. 320,
333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply
in tandem, review is “doubly” so, [Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)]. The Strickland standard is a general one, so the range of reasonable
applications is substantial. 556 U.S., at 123, 129 S.Ct. at 1420. Federal
habeas courts must guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.

7

Harrington, 562 U.S. at 105; see also Cheney v. Washington, 614 F.3d 987, 994-95 (9th

8

Cir. 2010) (acknowledging double deference required for state court adjudications of

9

Strickland claims).

2
3
4
5

10

In Ground 6A, Aguilar claims that his trial counsel “was ineffective for failing to

11

investigate and present evidence that the weapon used to kill the victim belonged to a

12

police officer and that the police officer may have fired the fatal shot.” (Second Amended

13

Petition (ECF No. 62) at 29-30.) And, similarly, in Ground 6C, Aguilar claims that his “[t]rial

14

counsel was ineffective for failing to investigate and present evidence that the weapon

15

used to kill Mark Emerson belonged to Officer Brian Debecker and that the officer may

16

have [fired] the fatal shot.” (Id. at 33-35.)

17
18
19

Aguilar asserted these claims in his first state habeas action, and, after holding an
evidentiary hearing, the state district court ruled:

22

[C]ounsel cannot be deemed ineffective for deciding against presenting a
theory of the case that Officer Brian Debecker could have been the shooter
because (1) there was no evidence to support this theory, (2) there was no
evidence that Officer Debecker was anywhere near the 7-Eleven on the
night in question, and (3) this would [have] allowed for the introduction of
other crimes, namely, that the AK-45 assault rifle had been stolen a year and
a half prior to trial and the thief had never been caught.

23

(Findings of Fact, Conclusions of Law and Order, Exh. 14 at 5 (ECF No. 32 at 7).) And,

24

on the appeal in Aguilar’s first state habeas action, the Nevada Supreme Court ruled as

25

follows:

20
21

26
27
28

[A]ppellants claim that trial counsel were 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.
Appellants fail to demonstrate that trial counsel were deficient. Trial counsel
testified at the evidentiary hearing that there was a tactical reason for not
18

1

3

presenting this evidence: one of the appellants had prior convictions or
arrests for dealing in stolen weapons. Trial counsel made a tactical decision
that they did not want the jury to hear that evidence and make a connection
that appellants stole the guns used in the crime. Therefore, the district court
did not err in denying this claim.

4

(Order of Affirmance, Exh. 21 at 2 (ECF No. 32-7 at 4).) The Nevada Supreme Court’s

5

ruling on this claim was reasonable. Aguilar claims his trial counsel was ineffective for

6

failing to investigate whether Officer Debecker—who had apparently once owned the

7

murder weapon, and from whom it had apparently been stolen some time before the

8

crimes in this case—was at the scene of the crimes. However, Aguilar does not

9

demonstrate what any such investigation would have shown. There has never been any

10

showing that Officer Debecker was anywhere near the scene of the crimes. Furthermore,

11

counsel made a reasonable tactical decision at trial not to raise the issue of the police

12

officer’s prior ownership of the gun, as it would have allowed an inference that Aguilar had

13

stolen the gun.1

2

14

In Ground 6B, Aguilar claims that his trial counsel was ineffective for not preventing

15

the admission of evidence that Aguilar had a prior felony conviction. (Second Amended

16

Petition (ECF No. 62) at 30-33.) On the appeal in his Aguilar’s first state habeas action,

17

the Nevada Supreme Court ruled on this claim as follows:

18

[A]ppellants claim that trial counsel were ineffective for failing to prevent the
admission of evidence that appellant Gilbert had a prior felony conviction.
Specifically, appellant Gilbert was also charged with felon in possession of
a firearm, and this charge was read to the jury. Appellants fail to demonstrate
that trial counsel were deficient. This case was tried prior to this court’s
decision in Brown v. State, which requires that a felon-in-possession count
be bifurcated into a separate trial. 114 Nev. 11118, 1126, 967 P.2d 1126,
1131 (1998). At the evidentiary hearing, trial counsel testified that they did
in fact attempt to prevent the admission that appellant Gilbert had a prior
felony conviction. This was unsuccessful. [Footnote: Trial counsel did keep
the nature of the previous conviction from being introduced [at] trial by
stipulating that Gilbert was a felon.]

19
20
21
22
23
24
25

///

26
27
28

1In

his federal habeas corpus action in this Court, David Aguilar asserted a similar
claim, regarding his counsel’s handling of the issue of the stolen gun; the Court denied
David Aguilar relief on the claim. (See Case No. 3:12-cv-00315-MMD-VPC, ECF No. 71
at 21-32.)
19

1

(Order of Affirmance, Exh. 21 at 4 (ECF No. 32-7 at 6).) The Nevada Supreme Court’s

2

ruling on this claim was reasonable because Aguilar does not make any showing that his

3

counsel could have done anything beyond what was done to attempt to obtain a severance

4

of the ex-felon in possession of a firearm charge. After the evidentiary hearing in Aguilar’s

5

first state habeas action, the state district court found that counsel did in fact move for

6

such a severance before trial, and then again after the trial had commenced. (See Findings

7

of Fact, Conclusions of Law and Order, Exh. 14 at 5-6 (ECF No. 32 at 7-8).) The state

8

district court found that the motions were futile given Nevada law at the time. (See id.)

9

Aguilar does not show these findings to be unreasonable determinations of the facts in

10

light of the evidence presented.

11

In Ground 6D, Aguilar claims that his trial counsel was “ineffective for failing to

12

effectively prevent the admission of the tainted, unreliable and suggestive extra-judicial

13

and in-court photographic lineup identification . . . .” (Second Amended Petition (ECF No.

14

62) at 35-36.) This claim concerns the identification of Aguilar by witness Joyce Marie

15

Brown. On the appeal in Aguilar’s first state habeas action, the Nevada Supreme Court

16

ruled on this claim as follows:

17

[A]ppellants claim that trial counsel were ineffective for failing to challenge
the photo line-up that was admitted at trial. Specifically, appellants claim that
the photo shows appellant Gilbert in his jail clothing. Appellants fail to
demonstrate that trial counsel were deficient. At the evidentiary hearing, trial
counsel testified that they did not believe they had any grounds to challenge
the photo line-up because while, to a person familiar with jail clothing, the
picture did show appellant Gilbert in his jail clothing, a person unfamiliar with
jail clothing would have thought he was wearing a t-shirt. Trial counsel is not
required to make futile objections. Donovan v. State, 94 Nev. 671, 584 P.2d
708 (1978).

18
19
20
21
22
23

(Order of Affirmance, Exh. 21 at 2-3 (ECF No. 32-7 at 4-5).) This part of the Nevada

24

Supreme Court’s ruling was plainly reasonable; Aguilar makes no showing otherwise. To

25

the extent that Aguilar claims that the photographic lineup was presented to the witness

26

in a suggestive manner, in that the police officers allegedly prompted the witness, the

27

Nevada Supreme Court added, in a footnote:

28

///
20

1

5

To the extent that appellant claims that trial counsel should have filed a
pretrial motion to suppress the photo line-up because the officers may have
prompted the eye witnesses, appellant failed to demonstrate that this claim
had merit. Appellants failed to provide this court with a copy of the trial
transcripts. The burden is on appellants to provide an adequate record
enabling this court to review assignments of error. See Thomas v. State, 120
Nev. 37, 43 n.4, 83 P.3d 818, 822 n.4 (2004); see also Greene v. State, 96
Nev. 555, 558, 612 P.2d 686, 688 (1980); Jacobs v. State, 91 Nev. 155, 158,
532 P.2d 1034, 1036 (1975).

6

(Id. at 3 n.1.) This ruling, too, was reasonable, given the record before the Nevada

7

Supreme Court. Aguilar does not show that there was any viable ground upon which his

8

trial counsel could have successfully suppressed Joyce Marie Brown’s identification

9

testimony.2

2
3
4

10

In Ground 6E, Aguilar claims that his “[t]rial counsel was ineffective for failing to file

11

a motion to suppress the search of Gloria Olivares’[s] apartment.” (Second Amended

12

Petition (ECF No. 62) at 36-40.) And, in Ground 6G, Aguilar claims that his “[t]rial counsel

13

was ineffective for failing to move to suppress the evidence of the palm print of David

14

Aguilar found on the Maadi semi-automatic rifle found in Gloria Olivares’[s] apartment.”

15

(Id. at 41-43.) Aguilar raised these claims in his first state habeas action, and the state

16

district court ruled as follows:

21

Defendant’s claim that counsel was ineffective for not challenging the search
of Ms. Olivares’[s] apartment and allowing her to testify as to whether her
consent was voluntary is without merit as neither [of the] Defendants had
standing to object to the search of Ms. Olivares’[s] apartment. Neither
Defendant lived at the apartment or had any possessory interest in the
apartment. However, defense counsel did bring out the fact that the two
assault weapons used in the shooting were found in Ms. Olivares’[s]
apartment rather than Defendants’ apartment and that no weapons were
found in Defendants’ apartment.

22

***

23

The warrantless search of Gloria Jean Olivares’[s] residence was properly
conducted pursuant to voluntary consent. Defendants have no standing to
contest the consensual search of Gloria Olivares’[s] home. Even assuming,
arguendo, that Defendants did have proper standing to challenge the
search, Ms. Olivares voluntarily consented to the search. At the grand jury
hearing, Ms. Olivares testified that she voluntarily signed the consent form.

17
18
19
20

24
25
26
27
28

2This

Court denied David Aguilar relief on a similar claim in his case. (See ECF No.
71 in Case No. 3:12-cv-00315-MMD-VPC, ECF No. 71 at 33-42.)
21

1

Q.

Now sometime later that evening of August 7th, 1996, or going
into the early morning hours of August the 8th, do you recall
the police asking you for a consent to search your apartment?

3

A.

Yes.

4

Q.

And did you, in fact, give them consent to search the
apartment?

A.

Yes.

Q.

And you, in fact, signed the consent to search, is that correct?

A.

Yes.

Q.

Let me just show you this document. Does that appear to be a
copy of the consent to search?

A.

Yes.

2

5
6
7
8
9
10
11

13

Grand Jury Transcript, pp. 97-8. In addition, Officer Mark Dwiggins testified
at trial that although Ms. Olivares wavered several times on whether to give
consent and even refused to sign twice, she ultimately signed a consent form
agreeing to the search to rule her out as having any involvement in the
incident. TT, Vol. VI, pp. 50-1.

14

(Findings of Fact, Conclusions of Law and Order, Exh. 14 at 6-7, 10 (ECF No. 32 at 8-9,

15

12).) Then, on the appeal in Aguilar’s first state habeas action, the Nevada Supreme Court

16

ruled on this claim as follows:

12

17

24

[A]ppellants claim that trial counsel were ineffective for failing to file a motion
to suppress the search of David’s girlfriend’s apartment. Appellants fail to
demonstrate that trial counsel were deficient because they failed to
demonstrate that they had standing to challenge the search. The apartment
belonged to David’s girlfriend and there was a restraining order preventing
him from entering the premises. Thus, they did not demonstrate that they
had a protected privacy interest in the apartment. Rakas v. Illinois, 439 U.S.
128, 130-31 n.1 (1978) (“The proponent of a motion to suppress has the
burden of establishing that his own Fourth Amendment rights were violated
by the challenged search.”); Katz v. United States, 389 U.S. 347, 352 (1967)
(recognizing that the Fourth Amendment requires an inquiry into whether the
person claiming the protection was entitled to assume privacy at the place
and under the circumstances concerned); see also State v. Taylor, 114 Nev.
1071, 1077, 968 P.2d 315, 320 (1998) (recognizing that one must have an
objective and subjective expectation of privacy in the place to be searched).

25

***

26

[A]ppellants claim that counsel were ineffective for failing to prevent the
admission of forensics regarding the gun that was found in appellant’s
girlfriend’s apartment. Appellants claim that the fact that one of the guns had
appellant David’s palm print on it was irrelevant evidence because it could
not be shown that the gun was the murder weapon. This claim lacks merit.

18
19
20
21
22
23

27
28

22

1
2

This evidence was highly probative because shells found at the scene
matched the guns found in the girlfriend’s apartment. [Footnote: The victim
was killed by a shot that went completely through his body. The bullet was
never recovered.]

3
4

(Order of Affirmance, Exh. 21 at 3-4, 6 (ECF No. 32-7 at 5-6, 8).) Aguilar does not make

5

any showing that the state courts’ rulings regarding the search—that Aguilar had no

6

standing to challenge the search, and that Gloria’s consent to the search was valid—were

7

unreasonable in light of the evidence presented. Nor has Aguilar shown that further

8

investigation by his counsel would have had any impact on those determinations. The

9

Nevada Supreme Court’s ruling on this claim was reasonable.3 And, to the extent that the

10

Nevada courts determined that the evidence of David Aguilar’s palm print on one of the

11

guns was relevant evidence, that is a ruling on a matter of state law, beyond the purview

12

of this federal habeas court. See Estelle, 502 U.S. at 67-68; Bonin, 59 F.3d at 841. Aguilar

13

makes no showing that the admission of that evidence violated his federal constitutional

14

rights. The Nevada Supreme Court’s rulings on the claims in Ground 6E and 6G were

15

reasonable in light of the evidence presented.

16

In Ground 6F, Aguilar claims: “Trial counsel was ineffective for failing to prevent the

17

video from the 7-11 from being admitted at trial and for failing to investigate another theory

18

of defense.” (Second Amended Petition (ECF No. 62) at 40-41.) On the appeal in Aguilar’s

19

first state habeas action, the Nevada Supreme Court ruled as follows on such a claim:

20
21
22
23
24

[A]ppellants claim that counsel were ineffective for failing to prevent the
video from 7-11 from being admitted at trial. Specifically, they claim that trial
counsel failed to question the authenticity of the tape’s time stamp or the
editing techniques. Further, trial counsel never filed a motion to suppress the
videotape. Appellants fail to demonstrate that trial counsel were deficient.
Appellants fail to demonstrate that there was reason to question the
authenticity of the time stamp or editing techniques. Further appellants fail
to demonstrate that a motion to suppress would have been successful.
***

25
26
27
28

[A]ppellants claim that trial counsel were ineffective for failing to investigate
another defense. [Footnote omitted.] Specifically, appellants claim trial
counsel should have attempted to identify a man who was at the 7-11 and
3This

Court denied David Aguilar relief on a similar claim in his case. (See Case
No. 3:12-cv-00315-MMD-VPC, ECF No. 71 at 43-50.)
23

1
2
3

may have met the description of the shooter. Appellants fail to demonstrate
that trial counsel were deficient. Trial counsel testified that they did not
pursue this theory because it was impossible to identify who this man was.
Further, trial counsel testified at the evidentiary hearing that the witness who
gave the description of the shooter identified appellant Gilbert as the shooter
in court. Therefore, the district court did not err in denying this claim.

4
5

(Order of Affirmance, Exh. 21 at 6-7 (ECF No. 32-7 at 8-9).) Regarding the first part of

6

Ground 6F—that Aguilar’s trial counsel was ineffective for failing to prevent the admission

7

of the videotape into evidence—the claim is meritless; Aguilar makes no allegation or

8

argument whatsoever in this case as to how his counsel could have prevented the

9

admission of the videotape into evidence.4 (See Second Amended Petition (ECF No. 62)

10

at 40-41.) As for the second part of Ground 6F—that trial counsel was ineffective for not

11

investigating another theory of defense based on the videotape—Aguilar does not show

12

the Nevada Supreme Court’s ruling to be unreasonable. Aguilar has never made any

13

showing that his trial counsel could have identified the person seen on the videotape, or

14

that trial counsel could have done anything further to develop a defense based on that

15

evidence.5

16

Finally, in Ground 6H, Aguilar claims: “Trial counsel was ineffective for failing to

17

prevent Annette Aguilar from testifying.” (Second Amended Petition (ECF No. 62) at

18

43-44.) On the appeal in Aguilar’s first state habeas action, the Nevada Supreme Court

19

ruled on this claim as follows:

20
21
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[A]ppellants claim that counsel were ineffective for failing to prevent a
witness, appellant Gilbert’s girlfriend, from testifying at trial. Specifically,
appellants claim that the girlfriend was coerced and that her testimony
should have been inadmissible based on marital privilege. Appellants fail to
demonstrate that trial counsel were deficient. First, appellants fail to present
any evidence that the girlfriend was coerced into testifying. Second, the
marital privilege does not apply to girlfriends. [Footnote: To the extent that
Gilbert appears to claim that he and his girlfriend were in a common-law
marriage relationship, NRS 49.295 still would not apply. Nevada does not
recognize common-law marriages. NRS 122.010.] NRS 49.295. Further, trial
4This

Court denied David Aguilar relief on a similar claim in his case. (See ECF No.
71 in Case No. 3:12-cv-00315-MMD-VPC, ECF No. 71 at 50-57.)
5Here,

too, this Court denied David Aguilar relief on a similar claim in his case. (See
Case No. 3:12-cv-00315-MMD-VPC, ECF No. 57-63.)
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counsel testified at the evidentiary hearing that they argued against allowing
this witness to testify to the point that the district court threatened to hold
them in contempt.

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(Order of Affirmance, Exh. 21 at 5 (ECF No. 32-7 at 7).) This claim is meritless. The
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Nevada Supreme Court’s application of the marital privilege was a matter of state law, not

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subject to review in this federal habeas action. See Estelle, 502 U.S. at 67-68; Bonin, 59
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F.3d at 841. And, Aguilar’s contention that Annette’s testimony was coerced is conclusory;

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Aguilar does not establish that there was any viable basis for his counsel to have
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prevented her testimony. The Nevada Supreme Court’s ruling on the claims in Ground 6H

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was reasonable in light of the evidence presented, and it was not contrary to, or an
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unreasonable application of, Supreme Court precedent.
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In sum, Aguilar does not show any of the Nevada Supreme Court’s rulings on his

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claims of ineffective assistance of counsel to have been contrary to, or an unreasonable
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application of, Strickland, or any other Supreme Court precedent, and Aguilar does not
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show any of those rulings to have been unreasonable in light of the evidence presented.
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The Court will deny habeas corpus relief on the claims in Ground 6.
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IV.

CERTIFICATE OF APPEALABILITY

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The standard for issuance of a certificate of appealability is governed by 28 U.S.C.
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§ 2253(c). The Supreme Court has interpreted section 2253(c) as follows:
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Where a district court has rejected the constitutional claims on the merits,
the showing required to satisfy § 2253(c) is straightforward: The petitioner
must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.

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Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074,
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1077-79 (9th Cir. 2000). Applying this standard, the Court finds that a certificate of
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appealability is unwarranted.
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V.

CONCLUSION

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It is therefore ordered that the Second Amended Petition for Writ of Habeas Corpus
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(ECF No. 62) is denied.
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It is further ordered that Petitioner is denied a certificate of appealability.

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It is further ordered that the Clerk of the Court is to enter judgment accordingly.

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DATED THIS 10th day of July 2018.

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MIRANDA M. DU,
UNITED STATES DISTRICT JUDGE

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