United States District Court, D. Arizona
Honorable Lynnette C. Kimmins United States Magistrate Judge
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. (Doc. 16.) The Court will
dismiss the Petition as premature.
AND PROCEDURAL BACKGROUND
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.
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.).)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).)
filed his federal habeas Petition in this Court on July 6,
raises seven claims in the Petition. Respondents contend all
of the claims are procedurally defaulted.
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).
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.
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.
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. 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
Aguilar has not properly exhausted any claims and a PCR
proceeding is pending in state court, dismissal of the
Petition as premature is proper.