Aguilar v. Shinn

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Michael Edward Aguilar, No. CV-19-00359-TUC-JGZ

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Defendants. 14 15 Pending before the Court is a Report and Recommendation issued by Magistrate 16 Judge Jaqueline M. Rateau. (Doc. 68.) Magistrate Judge Rateau recommends dismissing 17 Petitioner Michael Aguilar’s § 2254 Petition for Writ of Habeas Corpus by a Person in 18 State Custody. (Id.) Aguilar filed an Objection, and Defendants responded. (Docs. 75, 19 76.) 20 Also pending before the Court is Aguilar’s Motion for Leave in Allowing Reply to 21 Response to Petitioner’s Objection to Report and Recommendation. (Doc. 77.) 22 Defendants responded to the motion. (Doc. 78.) 23 Having reviewed the record, the Court will deny Aguilar’s request to file a reply 24 and adopt the Report and Recommendation. 25 STANDARD OF REVIEW 26 When reviewing a Magistrate Judge’s report and recommendation, this Court “may 27 accept, reject, or modify, in whole or in part, the findings or recommendations made by the 28 Magistrate Judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the 1 Magistrate Judge’s findings and recommendations de novo if objection is made, but not 2 otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 3 (emphasis in original). District courts are not required to conduct “any review at all . . . of 4 any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); 5 see also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Further, a party is not entitled as of 6 right to de novo review of evidence or arguments which are raised for the first time in an 7 objection to the report and recommendation, and the Court’s decision to consider newly 8 raised arguments is discretionary. Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002); United 9 States v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000). 10 BACKGROUND 11 The Court will adopt the Factual and Procedural Background of the Report and 12 Recommendation. (Doc. 68 at 1–4.) The Magistrate Judge cited the Arizona Court of 13 Appeals’ summary of the facts as follows: 14 In March 2012, S.B. and his girlfriend, J.M., heard a car horn honking repeatedly outside the house in which they were staying. J.M. went outside 15 to investigate the cause of the noise. When S.B. heard a man screaming that 16 he was owed money, he followed J.M. outside. He then saw J.M talking to Aguilar, who was in a car. 17 S.B. asked Aguilar “what the problem was,” and Aguilar replied that 18 J.M owed him money. When S.B. told Aguilar the he didn’t have any money, 19 Aguilar displayed what appeared to be a pistol and pointed it at both S.B. and J.M. Aguilar stated, “I’m not leaving until I get my money and I will light 20 this bitch up . . . if I don’t.” 21 J.M. retreated into the house and called 9-1-1. She informed the operator that a man outside the house had a gun. When the police arrived, 22 they located Aguilar hiding nearby and found a BB gun in “the middle of the 23 roadway close by. [FN1: The weapon was referred to as both a “BB gun” and a “pellet gun.” Any distinction between the two terms is not relevant to the 24 issues in this appeal.] S.B. identified the BB gun as the weapon Aguilar had 25 used. 26 (Id. at 1–2 (quoting State v. Aguilar, No. 2 CA-CR 2014-0067, 2014 WL 7344041 (Ariz. 27 App. Dec. 24, 2014))). 28 // 1 DISCUSSION 2 I. Motion for Leave to File a Reply 3 Federal Rule of Civil Procedure 72(b)(2) does not permit the filing of a reply to a 4 response to an objection, and Aguilar’s request for leave to file a reply (Doc. 77) does not 5 present good cause or other legal basis for granting his request. Moreover, Defendants’ 6 response does not raise new issues or evidence that would warrant further reply from 7 Aguilar. Accordingly, the Court will deny Aguilar’s request. See ML Liquidating Tr. v. 8 Mayer Hoffman McCann P.C., 2011 WL 10451619 (D. Ariz. Mar. 11, 2011) (noting no 9 additional briefing is necessary because the last brief raised “responsive argument[s]” as 10 opposed to “entirely new issues”); cf. J.G. v. Douglas Cnty. Sch. Dist., 552 F.3d 786, 803 11 n.14 (9th Cir. 2008) (noting additional briefing is appropriate when new evidence is 12 presented). 13 II. Objections 14 Aguilar raises several objections to the Report and Recommendation. (Doc. 75.) 15 The Court will address each argument in turn. 16 A. Factual and Evidentiary Objections 17 1. Magistrate Judge’s Consideration of the Record (Objection One) 18 Aguilar argues that the Magistrate Judge “refused” to incorporate the entire record 19 into the Report and Recommendation. (Doc. 75 at 1–2.) He suggests that the Magistrate 20 Judge only considered the pending petition, response, and reply, and did not consider other 21 filings in this federal action or the state record. (Id. at 2.) 22 Aguilar misconstrues the Magistrate Judge’s reference to the filings at issue as 23 limiting the Magistrate Judge’s consideration of the record. As demonstrated by the R&R, 24 the Magistrate Judge did not limit her review to the petition, response, and reply. The R&R 25 cites to Aguilar’s state court filings, the state court record, and state court rulings. (Doc. 26 68.) Notably, the federal record includes more than 250 pages of the state court record. 27 As to Aguilar’s other filings in the pending action, Aguilar fails to demonstrate how any 28 of his previous filings are relevant to the issues addressed in the R&R. Regardless, those 1 filings are part of the record and available for review by this Court and the Ninth Circuit 2 Court of Appeals. 3 Aguilar also argues that the habeas petition he filed in case 15-cv-00286-LCK, in 4 2015, should have been included in the record, and he points to the actual innocence claim 5 raised in that petition. (Id.) But Aguilar was required to raise in his pending petition for 6 writ of habeas corpus “all the grounds for relief.” Rule 2(c)(1), Rules Governing Section 7 2254 Cases. The Court dismissed the 2015 petition as premature in November 2016. (15- 8 cv-00286-LCK, Doc. 25 at 2–3.) In a subsequent order, the Court informed Aguilar that 9 when he “complete[d] PCR proceedings in state court, he should file a NEW case with a 10 petition that includes all the habeas claims he wishes to raise in federal court.” (15-cv- 11 00286-LCK, Doc. 43 at 3.) In addition, in the present case, the Court issued an Order 12 stating that it would allow Aguilar to file an amended petition presenting “all his claims 13 for relief.” (Doc. 10 at 3 (emphasis in original).) 14 Finally, even if Aguilar did not include an actual innocence claim in his petition, the 15 Magistrate Judge nevertheless considered actual innocence in determining whether there 16 was cause to excuse Aguilar’s procedural default of his claims. (Doc. 68 at 9–11.) 17 2. Presumption of Correctness of Facts in State Court Decision 18 (Objection Two) 19 Aguilar argues that the Magistrate Judge erred in giving the facts, as summarized 20 by the Arizona Court of Appeals in its decision, a presumption of correctness. (Id. at 3– 21 4.) Aguilar argues that the presumption of correctness for factual findings applies to 22 Arizona Supreme Court decisions, and not Arizona Court of Appeals decisions. (Id. at 3.) 23 Aguilar also argues that he should have been afforded an evidentiary hearing in place of 24 the presumption of correctness. (Id.) Aguilar points to conflicting evidence and states 25 “until it is determined on what basis the jury supported their verdict, there exists no 26 presumption of correctness.” (Id. at 3–4.) 27 Aguilar is incorrect as to the law. The presumption of correctness applies in habeas 28 relief and it “applies even if the finding was made by the state court of appeals[.]” Pollard 1 v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002) (citing 28 U.S.C. § 2254(e)(1)). 2 Aguilar’s challenges to the applicability of the presumption are unpersuasive. A 3 petitioner may rebut the presumption of correctness only “with clear and convincing 4 evidence.” Id. The Magistrate Judge thoroughly discusses Aguilar’s challenges to the 5 evidence. (Doc. 68 at 13–14.) Aguilar’s challenges do not establish by clear and 6 convincing evidence that any particular finding by the Arizona Court of Appeals is 7 erroneous. (Doc. 75 at 3–4.) Aguilar’s description of the evidence is selective. Viewed 8 as a whole, the record does not support his assertion that “his conviction is predicated solely 9 upon [a witness’s statement that] ‘I assumed that what was in his hand was a pistol.’” (Doc. 10 75 at 3.) 11 3. Denial of Evidentiary Hearing (Objection Three) 12 Aguilar argues that Magistrate Judge erred in denying him an evidentiary hearing. 13 (Doc. 75 at 4.) Aguilar points to a presentence report in an unrelated case, that states 14 witness S.B had used heroin since he was 22 years old. (Id. at 4–6.) Aguilar argues that 15 this information goes to S.B.’s credibility and it could not have been previously discovered 16 with due diligence, because the presentence report was created after his trial. (Id. at 6.) 17 Aguilar further argues the presentence report clearly established that S.B. was using heroin 18 the night Aguilar committed the crime and, therefore, Aguilar is innocent.1 (Id.) 19 Aguilar failed to present this arguments in his Motion for an Evidentiary Hearing. 20 (See Doc. 37.) Thus, the Court will not consider it. See Brown, 279 F.3d at 744. Moreover, 21 the Court notes that Aguilar’s contentions would not entitled him to an evidentiary hearing 22 on this issue. S.B.’s report of heroin addiction would not establish that S.B. was high on 23 the night in question or during his testimony at Aguilar’s trial, and Aguilar’s counsel 24 impeached S.B. with his prior felony conviction involving the sale of heroin as well as 25 S.B.’s inconsistent statements related to the incident. (Doc. 68 at 19–20.) S.B.’s 26 presentence report does not provide a basis to conclude that no reasonable factfinder would 27 1 Aguilar points to two other pieces of evidence he wishes to introduce at an 28 evidentiary hearing. But he only argues that the presentence investigation report entitles him to an evidentiary hearing because it is newly discovered evidence. 1 have found Aguilar innocent. Id. Section 2254(e)(2)(B) (requiring, in addition to new 2 evidence, that the evidence be “clear and convincing” to establish that “no reasonable 3 factfinder would have found the applicant guilty”). 4 B. Objections to Magistrate Judge’s Analysis of Grounds for Relief 5 1. Ground Two (Objection Four) 6 In Ground Two, Aguilar argues that the admission of the 911 recording into 7 evidence at his trial violated his Sixth Amendment right to confront witnesses and his 8 Fourteenth Amendment right to a fair trial. (Doc. 1 at 12.) On direct appeal, the Arizona 9 Court of Appeals rejected this ground, citing the invited error doctrine. The court reasoned 10 that Aguilar did not object to the State’s introduction of the 911 recording into evidence, 11 and Aguilar was the first to request that the recording be played to the jury. (Doc. 1-4 at 12 8.) In rejecting Ground Two, the Magistrate Judge concluded that Aguilar fairly presented 13 the claim to the state court, but the state court’s clear and express rejection of the claim 14 under the invited error doctrine constituted an independent and adequate state law ground 15 that serves as a procedural bar to habeas corpus relief on the claim. (Doc. 68 at 8–9.) 16 In his Objection, Aguilar does not challenge the state court’s finding that he failed 17 to object to admission of the recording in the first instance. He argues that the state court’s 18 invited error analysis is misguided because once the 911 recording was admitted, the 19 playing of the recording was inevitable. (Doc. 75 at 6.) 20 Aguilar’s argument is not persuasive. As explained by the Magistrate Judge, the 21 Court of Appeals’ conclusion is an independent and adequate state court ground, and 22 “Aguilar failed to meet his burden . . . [to] challeng[e] the independence or adequacy of 23 the invited error doctrine.” (Doc. 68 at 9.) “For a state procedural rule to be ‘independent,’ 24 the state law basis for the decision must not be interwoven with federal law.” Bennett v. 25 Mueller, 322 F.3d 573, 581 (9th Cir. 2003). “To be deemed adequate, the state law ground 26 for decision must be well-established and consistently applied.” Id. at 583. Aguilar does 27 not address either prong.2

28 2 Also in Ground Two, Aguilar asserts a claim of insufficient evidence. (Doc. 1 at 12.) The Magistrate Judge found that Aguilar procedurally defaulted this claim because he 1 Aguilar objects to the Magistrate Judge’s conclusion that he failed to show actual 2 innocence and thus could not overcome the procedural default and procedural bar of his 3 Ground Two claims. (See Doc. 68 at 9–10.) He asserts that the Magistrate Judge’s analysis 4 is based on irrelevant distractions, record manipulation, and ignoring of Aguilar’s proffered 5 facts. (Doc. 75 at 7, 9–10.) Aguilar further argues that he need not explain these 6 contentions as the facts and evidence in Ground Three prove the Magistrate Judge’s and 7 PCR state court’s evaluations of the claim were unreasonable. (Id.) 8 The Court has reviewed the R&R and the Magistrate Judge’s citation of the 9 governing law and application of the law to the facts. The Court discerns no error in that 10 analysis. 11 2. Ground One (Objection Five) 12 In Ground One, Aguilar asserts that the BB gun was allowed into evidence without 13 sufficient foundation, depriving him of his Sixth Amendment right to confront witnesses 14 and his Fourteenth Amendment right to a fair trial. (Doc. 1 at 6.) In evaluating this same 15 claim, the Arizona Court of Appeals held that an officer’s testimony about the location of 16 the BB gun was hearsay and that the trial court erred in admitting it, but any error was 17 harmless because the fact supported by the inadmissible testimony was “otherwise 18 established” by untainted evidence. (Doc. 68 at 12–14.) The Magistrate Judge concluded 19 that Arizona Court of Appeals applied the correct legal standard—“that the error must be 20 found harmless beyond a reasonable doubt.” (Id. at 13.) The Magistrate Judge rejected as 21 “not supported by the record” Aguilar’s contention that the court of appeals’ factual 22 determination was unreasonable because it failed to “refer to where in the record S.B. 23 identified the weapon collected by [RG] as the weapon used.” (Id.) 24 Aguilar objects to the Magistrate Judge’s conclusion that the Arizona Court of 25 Appeals applied the correct legal standard—“harmless beyond a reasonable doubt.” (Doc. 26 75 at 8.) Aguilar argues that the court applied an “otherwise established” standard, citing 27 failed to fairly present this claim, as a federal claim, to the state court. (Doc. 68 at 7–8.) 28 As the Magistrate Judge noted, Aguilar argued insufficiency based entirely on Rule 20 of the Arizona Rules of Criminal Procedure. (Id.) 1 the court’s inclusion of that phrase in its decision. (Id.) In addition, Aguilar argues that 2 the court erred in applying the correct standard, because the “otherwise established 3 evidence” amounted to an assumption from a witness who was high on illegal substances. 4 (Id.) As to each of his arguments, Aguilar misconstrues the Court of Appeals’ decision. 5 As set forth in the R&R, the Court of Appeals reviewed the evidence presented as 6 to the BB gun and determined that, even without the erroneously admitted testimony, the 7 officer’s other testimony established that the gun was present at the scene of the incident: 8 the officer testified that he collected the gun at that location and victim S.B. identified the 9 weapon that was collected as the weapon used in the robbery. (Id. at 13.) Because the 10 presence of the gun was “otherwise established” by untainted testimony, admission of the 11 tainted testimony could not have undermined the jury’s finding of guilt beyond a 12 reasonable doubt. 13 3. Ground Three (Objection Six) 14 In Ground Three, Aguilar asserts a claim of ineffective assistance of counsel. (Doc. 15 1 at 17.) Aguilar argues that his counsel should have used evidence of communications in 16 his cell phone to impeach S.B.’s testimony that S.B. did not know Aguilar. (Id.) The 17 Magistrate Judge concluded that the PCR state court’s decision was not unreasonable when 18 it found (1) counsel’s performance was not deficient and (2) Aguilar did not suffer 19 prejudice. (Doc. 68 at 14–21.) 20 As thoroughly explained by the Magistrate Judge and PCR state court, Aguilar’s 21 counsel was not ineffective. (Id.) Aguilar’s conclusory arguments to the contrary do not 22 undermine that conclusion. 23 4. Ground Four (Objection Seven) 24 In Ground Four, Aguilar asserts that his trial counsel was ineffective in plea 25 negotiations. (Doc. 1 at 29–30.) Aguilar argues that but for his counsel’s conduct, he 26 would have accepted a probation-available plea agreement. (Id.) The Magistrate Judge 27 rejected Aguilar’s claim and thoroughly explained her reasoning. (Doc. 68 at 21–25.) In 28 particular, the Magistrate Judge found that state court reasonably concluded that a 1 probation-available plea was not offered and that Aguilar fails to overcome the doubly 2 deferential standard to the state court’s decision that Aguilar’s counsel was not ineffective. 3 (Id. at 24–25.) 4 Aguilar does not object to the Magistrate Judge’s conclusion or reasoning with 5 respect to this claim. (Doc. 75 at 10.) Instead, Aguilar raises an entirely new claim that is 6 not in the petition. He asserts that counsel was ineffective in rejecting a separate “CES 7 plea,” not the probation-available plea alleged in the petition. (Compare Doc. 1 at 29–30 8 with Doc. 75 at 10.) Because all claims for relief must be in the petition, the Court declines 9 to consider Aguilar’s newly raised claim. See Rule 2(c)(1), Rules Governing Section 2254 10 Cases (mandating that all grounds for relief must be in the petition). To the extent Aguilar’s 11 Objection is not a newly raised claim, the Court declines to consider the new argument. 12 See Brown, 279 F.3d at 744. In any event, Aguilar does not show that his counsel was 13 ineffective in stating that Aguilar does want the CES plea, when Aguilar previously 14 rejected the CES plea. 15 III. Certificate of Appealability 16 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, this Court must 17 issue or deny a certificate of appealability (COA) at the time it issues a final order adverse 18 to the applicant. See United States v. Winkles, 795 F.3d 1134, 1142 (9th Cir. 2015) 19 (requiring a COA to appeal the denial of a Rule 60(b) motion in a § 2255 case); Payton v. 20 Davis, 906 F.3d 812, 818 & n.8 (9th Cir. 2018) (applying Winkles to a case brought under 21 § 2254). A court may issue a COA only when the petitioner “has made a substantial 22 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This showing can 23 be established by demonstrating that “reasonable jurists could debate whether (or, for that 24 matter, agree that) the petition should have been resolved in a different manner” or that the 25 issues were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 26 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For 27 procedural rulings, a court may issue a COA only if reasonable jurists could debate (1) 28 whether the petition states a valid claim of the denial of a constitutional right, and (2) 1 || whether the court’s procedural ruling was correct. Jd. The Court finds that reasonable 2|| jurists would not find this Court’s ruling debatable. Therefore, the Court will not issue a || COA. 4 CONCLUSION 5 For the foregoing reasons, 6 IT IS ORDERED that Aguilar’s Motion for Leave in Allowing Reply to Response to Petitioner’s Objections to Report and Recommendation (Doc. 77) is DENIED. 8 IT IS FURTHER ORDERED that the Report and Recommendation (Doc. 68) is ADOPTED. 10 IT IS FURTHER ORDERED that Aguilar’s Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED. 12 IT IS FURTHER ORDERED that, pursuant to Rule 11 of the Rules Governing 13 || Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a certificate of appealability. 15 IT IS FURTHER ORDERED that the Clerk of Court must enter judgment || accordingly, and close its file in this action. 17 Dated this 30th day of August, 2022. 18 19 □ 20 pote Soipe ; Honorable Jennife ve Zfpps United States District Judge 22 23 24 25 26 27 28

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