United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
action is a petition for writ of habeas corpus, pursuant to
28 U.S.C. § 2254, by Gilbert Demetrius Aguilar, a Nevada
prisoner. The action is before the Court with respect to the
merits of the claims remaining in Aguilar's second
amended habeas petition (“Petition”). The Court
will deny the Petition.
opinion on Aguilar's direct appeal, the Nevada Supreme
Court described the factual background of this case as
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 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
was found guilty of conspiracy to commit murder, murder with
the use of a deadly weapon, possession of a firearm by an
ex-felon, two counts of discharging a firearm at or into a
structure, and discharging a firearm at or into a vehicle.
The State sought the death penalty on the murder conviction.
The jury, however, set Aguilar's penalty, for the murder,
at life imprisonment without the possibility of parole. The
State sought adjudication of Aguilar as a habitual criminal.
The trial court ultimately sentenced Aguilar to the following
prison sentences, all to run consecutively: for the
conspiracy to commit murder, eight to twenty years; for the
murder, two consecutive terms of life without the possibility
of parole; for possession of a firearm by an ex-felon, eight
to twenty years; for each of the two counts of discharging a
firearm at or into a structure, eight to twenty years; and
for discharging a firearm at or into a vehicle, eight to
twenty years. (See Judgment of Conviction, Exh. 2
(ECF No. 30-2).) David was convicted of the same crimes,
except for being an ex-felon in possession of a firearm, but
was sentenced differently.
and his brother both appealed; the Nevada Supreme Court
consolidated their appeals, and on December 20, 1999, ruling
on the merits of their claims, dismissed the appeal.
(See Order Dismissing Appeals, Exh. 5 (ECF No.
filed his first state-court habeas corpus petition on
September 8, 2000. (See Petition for Writ of Habeas
Corpus (Post-Conviction), Exh. 7 (ECF No. 30-7).) The state
district court held an evidentiary hearing, and then denied
the petition in a written order filed on February 8, 2008.
(See Findings of Fact, Conclusions of Law and Order,
Exh. 14 (ECF No. 32).) Aguilar appealed, and the Nevada
Supreme Court reversed and remanded on September 5, 2008,
directing the district court to appoint counsel.
(See Order of Reversal and Remand, Exh. 16 (ECF No.
32-2).) On remand, the state district court appointed counsel
for Aguilar, held a further evidentiary hearing, and again
denied Aguilar's petition in a written order filed on
March 1, 2011. (See Findings of Fact, Conclusions of
Law and Order, Exh. 18 (ECF No. 32-4).) Aguilar appealed, and
the Nevada Supreme Court affirmed on March 9, 2012.
(See Order of Affirmance, Exh. 21 (ECF No. 32-7).)
initiated this federal habeas corpus action on July 27, 2012.
(See Petition for Writ of Habeas Corpus (ECF No.
8).) The Court appointed counsel for Aguilar (ECF Nos. 18,
20), and, with counsel, Aguilar filed a first amended habeas
petition on December 11, 2013 (ECF No. 30). Respondents filed
a motion to dismiss the first amended petition. (ECF No. 54.)
On September 19, 2014, the Court granted that motion in part
and denied it in part; the Court found two claims to be
unexhausted in state court, and granted Aguilar an
opportunity to make an election regarding those claims. (ECF
No. 56.) Aguilar filed a motion for a stay, to allow him to
exhaust his unexhausted claims (ECF No. 57), as well as a
motion for leave of court to file a second amended petition
(ECF No. 58). On May 19, 2015, the Court granted both
motions. (ECF No. 60.) The case was then stayed, and Aguilar
filed his second amended petition, which is now the operative
petition, on June 12, 2015. (ECF No. 62.)
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
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.
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
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
6H. “Trial counsel was ineffective for failing to
prevent Annette Aguilar from testifying.”
(Second Amended Petition (ECF No. 62), at 9-44.)
2, 2015, Aguilar commenced a second state habeas action.
(See Petition for Writ of Habeas Corpus
(Post-Conviction), Exh. 1 to Motion to Lift Stay (ECF No.
64-1).) In an order filed September 14, 2015, the state
district court denied Aguilar's petition, finding that it
was untimely and successive. (See Findings of Fact,
Conclusions of Law and Order, Exh. 2 to Motion to Lift Stay
(ECF No. 64-2).) Aguilar appealed, and the Nevada Supreme
Court affirmed on April 14, 2016. (See Order of
Affirmance, Exh. 5 to Motion to Lift Stay (ECF No. 64-5).)
The stay of this action was then lifted, on a motion by
Aguilar, on June 6, 2016. (See Order entered June 6,
2016 (ECF No. 65).)
filed a motion to dismiss Aguilar's second amended
petition on September 20, 2016. (ECF No. 68.) In that motion,
Respondents asserted that Grounds 1 and 3 of the Petition are
barred by the doctrine of procedural default, and should be
dismissed. On November 29, 2016, the Court granted the motion
to dismiss in part and denied it in part. (ECF No. 70.) The
Court granted the motion with respect to Ground 1, and
dismissed that claim as procedurally defaulted; regarding
Ground 3, the Court denied the motion to dismiss, without
prejudice to Respondents asserting the cause and prejudice
defense to that claim in their answer. (Id.)
filed an answer on April 27, 2017. (ECF No. 76.) Aguilar
filed a reply on June 7, 2017. (ECF No. 77.)
brother and codefendant, David Aguilar, also pursued a
federal habeas corpus action in this Court, and the Court
denied relief in that case. (See Case No.
3:12-cv-00315-MMD-VPC.) The Court takes judicial notice of
the proceedings in that case.
Standard of Review
U.S.C. § 2254(d) sets forth the standard of review
applicable in this case under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”):
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 --
(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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
court decision is contrary to clearly established Supreme
Court precedent, within the meaning of 28 U.S.C. § 2254,
“if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court's]
cases” or “if the state court confronts a set of
facts that are materially indistinguishable from a decision
of [the Supreme Court] and nevertheless arrives at a result
different from [the Supreme Court's] precedent.”
Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (first
quoting Williams v. Taylor, 529 U.S. 362, 405-06
(2000); then citing Bell v. Cone, 535 U.S. 685, 694
court decision is an unreasonable application of clearly
established Supreme Court precedent, within the meaning of 28
U.S.C. § 2254(d), “if the state court identifies
the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case.”
Lockyer, 538 U.S. at 75 (quoting Williams,
529 U.S. at 413). The “unreasonable application”
clause requires the state court decision to be more than
incorrect or erroneous; the state court's application of
clearly established law must be objectively unreasonable.
Id. (quoting Williams, 529 U.S. at 409).
Supreme Court has instructed that “[a] state
court's determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists
could disagree' on the correctness of the state
court's decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
has stated “that even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Id. at 102 (citing
Lockyer, 538 U.S. at 75); see also Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (internal quotation
marks and citations omitted) (describing standard as “a
difficult to meet” and “highly deferential
standard for evaluating state-court rulings, which demands
that state-court decisions be given the benefit of the
Ground 2 of his Petition, Aguilar claims that his federal
constitutional rights were violated because the trial court
admitted “totally irrelevant evidence of a bayonet and
machete being found in defendant's apartment.”
(Second Amended Petition (ECF No. 62), at 11-13.) The
evidence at issue in this claim consisted of a machete and a
bayonet found in the apartment that was apparently rented by
David Aguilar's girlfriend, Gloria. Those items were
found by the apartment manager, who turned them over to the
police. (See Transcript of Trial, October 8, 1997,
Exh. 29 at 2-7 (ECF No. 42 at 3-8) (testimony of George
Trombley); id. at 10-13 (ECF No. 42 at 11-14)
(testimony of Howard Hall).)
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
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 ...