United States District Court, D. Arizona
HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE
Eduardo Aguilera, has filed a pro se Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
Summary of Conclusion.
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.
Facts of the Crimes.
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
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.
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.)
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.)
Post-Conviction Relief Proceedings.
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
Petitioner's Federal Habeas Petition.
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 ...