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Aguilar v. Filson

United States District Court, D. Nevada

July 10, 2018

GILBERT DEMETRIUS AGUILAR, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This 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.

         II. 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 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).)

         Aguilar 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.

         Aguilar 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. 30-5).)

         Aguilar 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).)

         Aguilar 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.)

         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.
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.)

         On July 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).)

         Respondents 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.)

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

         Aguilar's 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.

         III. DISCUSSION

         A. Standard of Review

         28 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; or
(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).

         A state 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 (2002)).

         A state 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).

         The 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 doubt”).

         B. Ground 2

         In 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).)

         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 ...

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