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Aguilera v. Ryan

United States District Court, D. Arizona

October 16, 2019

Eduardo Aguilera, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE

         Petitioner Eduardo Aguilera, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)

         I. Summary of Conclusion.

         Petitioner raises four grounds for relief in his Petition. All four grounds are unexhausted and procedurally defaulted without excuse. Petitioner argues that he is actually innocent of his Aggravated DUI offense because his license was not suspended at the time of his arrest. But the arguments he submits now were previously discussed and argued before his trial jury. Petitioner fails to demonstrate he is actually innocent. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         A. Facts of the Crimes.

         The Arizona Court of Appeals found:

In October 2013, a law enforcement officer served Aguilera with an Order of Suspension/Administrative Per Se (“2013 Suspension Order”) and confiscated Aguileras driver's license on suspicion of driving while under the influence (“DUI '). The 2013 Suspension Order stated: “[Y]our Arizona driving privilege is suspended for not less than 90 consecutive days effective 15 days from Date Served . . . . This order is final unless a summary review or hearing is requested . . . and this suspension will not end until all reinstatement requirements are met.” The next day, Aguilera obtained a new driver's license from an MVD office and confirmed his current address. While obtaining the new license, Aguilera discussed his license status with an employee; he testified at trial that he left the MVD with the impression that his license would not be suspended without a hearing. Aguilera, however, did not request a hearing within the 15-day period following service of the 2013 Suspension Order; thus, the order became effective on November 11, 2013.
On November 22, 2013, the MVD mailed an “Order of Suspension Reminder” to Aguilera at his current address on record. The “courtesy notice” stated that even though Aguilera obtained a new license on October 28, 2013, his driver's license was suspended effective November 11, 2013 and it would be eligible for reinstatement in February 2014 if he completed the requirements associated with reinstatement.
Aguilera failed to reinstate his driver's license and in July 2014 he was arrested for suspicion of DUI. The State indicted Aguilera for (1) driving with a suspended license while under the influence of an intoxicating liquor or drug, (2) driving with a blood alcohol concentration of or exceeding .08, and (3) driving while under the influence of an impermissible drug or its metabolite. Because the State alleged that each of the three counts were committed while Aguilera's driving privileges were suspended, each count was charged as an aggravated offense.
Aguilera represented himself at trial with the assistance of advisory counsel. His principal defense was that his license was valid at the time of his arrest because it appeared valid upon initial inquiry by the arresting officer and because Aguilera was led to believe by MVD “that it takes a hearing to suspend [a] driver's license.” Anticipating this defense, the State filed a motion in limine expressing its concern that Aguilera would attempt to offer “misstatements of law” and would refer to hearsay statements made by an unidentified MVD employee. Aguilera urged the trial court to deny the motion “based on the fact that they told me different[ly] at the MVD and I have proof of what they told me to back it up.” To resolve the issue, the court permitted Aguilera to “discuss what occurred at the MVD, except for you telling what other people said to you.” The court informed Aguilera that “you can explain what happened at MVD . . . but you cannot include statements . . . . [A]s long as there's reasonable grounds of relevancy, I'm going to allow you to say, I went to MVD and here's what happened.”
A jury found Aguilera guilty as charged and the trial court imposed concurrent mitigated six-year prison sentences on each of the three counts.

Doc. 31-2, Ex. CC, at 10.

         B. Direct Appeal.

         On March 2, 2016, Petitioner's counsel filed a notice of appeal. (Doc. 31-1, Ex. S, at 87.) On August 26, 2016, Petitioner's counsel filed an opening brief. (Doc. 31-1, Ex. W, at 100.) On February 23, 2017, the Arizona Court of Appeals affirmed Petitioner's conviction. (Doc. 31-2, Ex. CC, at 10.)

         On March 6, 2017, Petitioner filed a motion for review with the Arizona Supreme Court. (Doc. 31-2, Ex. DD, at 17.) On August 17, 2017, the motion was denied. (Doc. 31-2, Ex. FF, at 30.) On September 19, 2017, the mandate issued. (Doc. 31-2, Ex. GG, at 32.)

         C. Post-Conviction Relief Proceedings.

         On May 10, 2016, Petitioner filed a motion for “Evidentiary Hearing, ” which the court construed as a notice of post-conviction relief. (Doc. 31-2, Ex. KK, at 56.) On October 24, 2016, PCR counsel notified the superior court that counsel found no colorable claims for PCR relief. (Doc. 31-2, Ex. LL, at 59.) The court notified Petitioner he had until December 23, 2016 to file a pro per PCR petition. (Doc. 31-2, Ex. MM, at 64.) On February 4, 2017, the court dismissed the proceeding because Petitioner did not file petition by the deadline. (Doc. 31-2, Ex. NN, at 66.)[1]

         D. Petitioner's Federal Habeas Petition.

         On August 22, 2018, Petitioner submitted the habeas Petition for mailing (doc. 1 at 11), and it was mailed on March 12, 2019 (doc. 1-1 at 1). The Petition was filed on March 15, 2019. The Court summarized Petitioner's four claims as follows:

In Ground One, Petitioner alleges that Arizona's “admin per se” proceedings violate the Fifth and Fourteenth Amendments. In Ground Two, Petitioner appears to allege that he is actually innocent, stating that there were “major flaws” with a *stay” that was placed on his “driving record, ” and that, as a result, his driver's license was not suspended on July 20, 2014. In Ground Three, Petitioner alleges that his conviction violates the Double Jeopardy ...

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