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Aguilar v. Ryan

United States District Court, D. Arizona

November 17, 2016

Michael Edward Aguilar, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Honorable Lynnette C. Kimmins United States Magistrate Judge

         Petitioner Michael Aguilar has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before the Court are the Petition (Doc. 1), Respondents' Answer (Doc. 12), and Aguilar's Reply (Doc. 13). The parties have consented to Magistrate Judge jurisdiction.[1] (Doc. 16.) The Court will dismiss the Petition as premature.

         FACTUAL AND PROCEDURAL BACKGROUND

         Aguilar was convicted in the Pima County Superior Court on two counts of attempted armed robbery, and sentenced to 11.25 years imprisonment. (Doc. 12, Exs. A, B.) Aguilar filed a pro se Motion to Vacate Judgment, which the trial court denied. (Id., Exs. E, L.) He appealed that denial to the Arizona Court of Appeals and, over his objection, the appeal was consolidated with his already-filed notice of appeal. (Id., Exs. N, O, P.) The only brief presented to the court of appeals was that filed by appointed counsel. (Id., Doc. Q.) The Arizona Court of Appeals affirmed his convictions and sentences. (Id., Doc. T at 7.) The Arizona Supreme Court denied review. (Id., Exs. U, V.)

         Aguilar filed a Notice of Post-conviction Relief (PCR) on June 26, 2015. (Id., Ex. W.) Counsel was appointed that day and, after two withdrawals of counsel, current PCR counsel was appointed on June 27, 2015; since appointment, counsel has sought numerous extensions. (See State v. Aguilar, No. CR-20121308 (Super. Ct. Pima Cnty.).)[2]On October 31, 2016, the PCR court granted a final two-month extension to file the PCR petition based on counsel's motion stating that she is researching a “vital” piece of evidence she has been unable to locate. (Id., Mtn to Extend Time and Order (Oct. 24 & Oct. 31, 2016).)

         Aguilar filed his federal habeas Petition in this Court on July 6, 2016. (Doc.1.)

         DISCUSSION

         Aguilar raises seven claims in the Petition. Respondents contend all of the claims are procedurally defaulted.

         Before the federal court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion in this case requires fair presentation of the claims to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Castillo v. McFadden, 399 F.3d 993, 998 & n.3 (9th Cir. 2004).

         The Court carefully reviewed the Petition and concluded that none of the seven claims therein were exhausted on direct appeal. (Compare Doc. 1 with Doc. 12, Ex. Q.) Aguilar contends he raised Claims 1 through 5 by way of his Motion to Vacate Judgment; however, as he acknowledges, they were not included in the Opening Brief filed before the Arizona Court of Appeals on the consolidated appeal. (See Doc. 12, Ex. Q.) Aguilar argues that a portion of Claim Four, alleging prosecutorial misconduct for failure to disclose the full criminal history of victim Brady, was raised on appeal. (Doc. 1 at 19.) The Court disagrees. On appeal, Aguilar argued the trial court erred in not precluding Brady from testifying due to the prosecution's failure accurately to disclose his criminal history; he did not allege prosecutorial misconduct. (Doc. 12, Ex. Q at 13-15.) Aguilar also contends that Claim Six, alleging sufficiency of the evidence, was raised on direct appeal. Again, the Court disagrees. Before this Court, Aguilar alleges there was not sufficient evidence to convict him on either charge of attempted armed robbery. (Doc. 1 at 22.) He then sets forth seven factual statements alleging that the BB gun was planted (and had no fingerprint or DNA connection to him); the testifying victim was on heroin and committed perjury; the victim on the 9-1-1 call initially stated she “thinks” he has a gun but then then later answered, yes, he pulled a gun on me; and exculpatory text messages were not admitted. (Id.) In contrast, on appeal, Aguilar alleged that admission of the 9-1-1 call violated his Sixth Amendment right to confrontation (and, absent admission of the call, the trial court should have granted a directed verdict as to one of the victims, Count 2). (Doc. 12, Ex. Q at 18-20.) Aguilar concedes he has never presented Claim 7 to the Arizona Court of Appeals. Thus, the Court concludes none of the claims in the Petition were fairly presented to the Arizona Court of Appeals.

         Review of the state court docket reveals that Aguilar has a PCR proceeding pending in state court. A petitioner has not exhausted state court remedies if he has a state PCR petition pending at the time he files a petition for writ of habeas corpus in federal court. See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (pending appeal); Schnepp v. Oregon, 333 F.2d 288, 288 (9th Cir. 1964) (pending post-conviction proceeding); Qualls v. Ryan, No. CV 13-1288-PHX-JAT (DKD), 2013 WL 3833218, at *1-2 (D. Ariz. Jul. 24, 2013) (denying habeas corpus petition as premature where petitioner presently had a Rule 32 petition pending). The pending PCR proceeding could affect Aguilar's convictions and ultimately these proceedings; therefore, it is inappropriate for this Court to rule on Aguilar's claims at this time. See Sherwood, 716 F.2d at 634.

         The Court's review of the state court proceedings indicates that the one-year statute of limitations applicable to a future petition has not begun to run. The Arizona Supreme Court denied review of Aguilar's direct appeal on June 11, 2015. (Doc. 12, Ex. V.) For purposes of the applicable statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(A), Aguilar's conviction became final on September 9, 2015, when the ninety days to petition for a writ of certiorari from the United States Supreme Court expired, Sup. Ct. R. 13. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (holding that “direct review” includes the period during which a petitioner can petition for writ of certiorari, regardless of whether the petitioner seeks such review); see also Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (finding direct review to include the time up to the expiration of the period to seek review by the Supreme Court). At the time Aguilar's direct review became final, he had already begun his first PCR proceeding by filing a notice on June 24, 2015 (Doc. 12, Ex. W), which immediately tolled the statute of limitations. Isley v. Ariz. Dep't of Corrections, 383 F.3d 1054, 1056 (9th Cir. 2004) (finding that tolling period begins with filing of notice pursuant to Arizona Rule of Criminal Procedure 32.4(a)); 28 U.S.C. § 2244(d)(2) (the federal habeas statute of limitations is tolled during the time a properly filed state PCR petition is pending). Therefore, Aguilar will suffer no prejudice as a result of a dismissal without prejudice.[3] See Slack v. McDaniel, 529 U.S. 473, 487 (2000) (holding that a petition filed after a prior petition has been dismissed for failure to exhaust before the district court adjudicated any claims is not a second or successive petition).

         Because Aguilar has not properly exhausted any claims and a PCR proceeding is pending in state court, dismissal of the Petition as premature is proper.

         MOTION ...


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