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Aguirre v. Ryan

United States District Court, D. Arizona

March 20, 2018

Rey David Aguirre, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE

         Pending before the Court is Petitioner Rey David Aguirre's Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1). Respondents filed a Limited Answer to the Petition (Doc. 15) and Petitioner filed a Response to the Limited Answer (Doc. 16). The Court will deny the Petition and dismiss this action with prejudice.

         I. Background

         Petitioner was convicted in the Pima County Superior Court following a 2013 jury trial of one count of conspiracy, one count of illegally conducting an enterprise, one count of transporting more than two pounds of marijuana for sale, two counts of transporting less than two pounds of marijuana for sale, two counts of money laundering, and thirty-three counts of use of a wire or electronic communication in drug-related transactions. (Doc. 1 at 1-2[1]; Doc. 15 at 2; Doc. 15-1 at 25-33, 36-56; Doc. 16 at 5-6.[2])

         Petitioner was sentenced on these counts to consecutive and concurrent terms totaling 10.5 years in state custody followed by 7 years of probation. (Doc. 1 at 2; Doc. 15-1 at 36-57, 68; Doc. 15-2 at 5; Doc. 15-5 at 28.)

         Petitioner's appellate counsel filed a brief with the Arizona Court of Appeals in compliance with Anders v. California, 386 U.S. 738 (1967), averring that, having reviewed the record, he found no arguable question of law. (See Doc. 15-1 at 84.) Petitioner was granted additional time to file a supplemental brief pro se, but he never filed one. (Doc. 15-2 at 2, 5.) In a memorandum decision affirming Petitioner's convictions and sentences, the Arizona Court of Appeals stated that it reviewed the record and “found no reversible error and no arguable issue warranting further appellate review.” (Id. at 6.) Petitioner did not file a motion for reconsideration or petition for review of the Court of Appeals' memorandum decision. (Doc. 15-2 at 8.)

         Petitioner subsequently filed a Rule 32 Petition for Post-Conviction Relief alleging only ineffective assistance of his trial counsel. (See Doc. 15-3 at 2-21.) The Rule 32 Petition alleged that trial counsel was ineffective when he (1) filed a motion to withdraw about 20 days before trial, cited no basis for the motion, and permitted the hearing on the motion to be held off the record (id. at 10); (2) entered into prejudicial stipulations on behalf of Defendant with no record of Defendant's consent to enter into such stipulations (id. at 13); and (3) entered into stipulations detrimental to the Defendant without any apparent benefit (id. at 15). The Pima County Superior Court determined, without holding an evidentiary hearing, that Petitioner had “failed to state a colorable claim for post-conviction relief.” (Doc. 15-5 at 6.) The Arizona Court of Appeals granted review but denied relief, finding that Petitioner had failed to establish deficient performance and prejudice. (Id. at 28-31.) Petitioner failed to timely file a motion for reconsideration or a petition for review of the Court of Appeals' decision. (See Id. at 33.)

         II. The Petition

         In his § 2254 Petition, Petitioner raises four grounds for relief: (1) Petitioner was indicted under false pretenses; (2) the state's witness gave hearsay testimony at Petitioner's trial; (3) prosecutorial misconduct; and (4) the presiding judge at Petitioner's trial lacked jurisdiction. (Doc. 1 at 6-9.) Petitioner indicates that he did not present any of these grounds to the Arizona Court of Appeals, with the explanation that only ineffective assistance of counsel was raised. (Id.) In the section of the Petition entitled “Timeliness of Petition” Petitioner provides a prayer for relief; he does not address the timeliness of his Petition. (Id. at 11.)

         In support of Ground One, Petitioner alleges that the evidence presented to the grand jury was “taken from another file” as to one count of his indictment. (Id. at 6.) As to another count, Petitioner claims that no evidence was presented to the grand jury to support an indictment. (Id.) Additionally, Petitioner calls into question the factual foundation of various counts of his indictment based on when certain information was made part of Petitioner's file relative to when his indictment issued. (Id.) In essence, Petitioner seems to be claiming that his indictment was issued without the requisite level of proof. Exhibits One through Four (id. at 12-19) to the Petition are records and record requests that purportedly support Petitioner's claim that there was insufficient evidence presented or available to be presented to the grand jury at the time of his indictment.

         Ground Two alleges violations of “federal and state rules of ‘hearsay'” by a state's witness when, in anticipation of sworn testimony at trial, that witness “very frequently read [] text messages and listened to [] phone recordings.” (Id. at 7.) Additionally, Petitioner claims that the “state witness violated his oath of office when presenting ‘hearsay' testimony. . . .” (Id.)

         In support of the prosecutorial misconduct allegation raised in Ground Three, Petitioner states that the “prosecutor engaged in conduct she knew to be dishonest, fraudulent, and deceitful” and that the “improper conduct permeated the entire atmosphere of the trial.” (Id. at 8.) Specifically, Petitioner claims that the prosecutor wrongly “vouched for the credibility of State and Federal witnesses.” (Id.) Petitioner claims that, as a result, his Sixth and Fourteenth Amendment rights were violated. In support of this claim, he attaches a transcript, presumably of testimony given in relation to his criminal trial. (Id. at 22-23.)

         In Ground Four, Petitioner alleges that the Pima County Superior Court judge lacked “jurisdiction” to preside over his case because “he had not taken a timely oath of office” in violation of Article 6, Section 3 of the United States Constitution and A.R.S. §§ 38-231, 38-232, 38-361, and 38-291(a). (Id. at 9.) Petitioner states that “[t]he Judge in [Petitioner's criminal case] did usurp into the office he occupied unlawfully.” (Id.) Exhibit Six is a list of the filing dates of oaths of office for some Pima County Superior Court judges. (Id. at 24.) The Honorable Christopher Browning presided over Petitioner's trial (see Doc. 15-1 at 20), and according to Exhibit 6, his oath of office was filed on September 22, 1998. (Doc. 1 at 24.)

         Respondents filed a Limited Answer to the petition addressing only affirmative defenses. (Doc. 15.) Respondents argue that all four grounds of the petition are “procedurally defaulted because [Petitioner] failed to properly exhaust them in the Arizona Court of Appeals.” (Id. at 4; see also id. at 8-11.) Respondents argue that a return to state court to attempt to exhaust the claims would be futile in light of state procedural rules, and that Petitioner has failed to show cause and prejudice or actual innocence to excuse his failure to ...


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