INDEX TO APPENDIX Page No.

A. ORDER; Ninth Circuit Court of Appeals ...... 001 Filed December 4, 2018

B. APPLICATION FOR A CERTIFICATE OF APPEALABILITY; Ninth Circuit Court of Appeals ...... 002 Filed July 23, 2018

C. ORDER; United States District Court ...... 291 Filed June 25, 2018

D. ORDER; United States District Court ...... 360 Filed February 22, 2016

E. PETITION FOR WRIT OF ; United States District Court ...... 374 Filed December 12, 2012

F. ORDER OF AFFIRMANCE; Nevada Supreme Court ...... 418 Filed May 9, 2012

G. JUDGMENT OF CONVICTION; Eighth Judicial District Court ...... 426 Filed January 9, 1998

APP. 001 Case: 18-16256, 12/04/2018, ID: 11108884, DktEntry: 5, Page 1 of 1

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT DEC 4 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS DAYOMASHELL DAVID AGUILAR, No. 18-16256

Petitioner-Appellant, D.C. No. 3:12-cv-00315-MMD District of Nevada, Las Vegas, v. ORDER WARDEN TIMOTHY FILSON, et al.,

Respondents-Appellees.

Before: CALLAHAN and MURGUIA, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 2) is denied because appellant has not shown that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also 28

U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012); Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED. APP. 002 (1 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 1 of 42

Appeal No. 18-16256

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

***

DAYOMASHELL DAVID AGUILAR, D.C. No. 3:12-cv-00315-MMD- Petitioner-Appellant, VPC vs. (District of Nevada, Las Vegas) NEVEN and ATTORNEY APPLICATION FOR A GENERAL FOR THE STATE OF CERTIFICATE OF NEW YORK, APPEALABILITY Respondents-Appellees.

Petitioner-Appellant Dayomashell David Aguilar, through his attorney, Jonathan M. Kirshbaum, Assistant Federal Public Defender, moves this Court, pursuant to 28 U.S.C. §2253(c)(2) and Circuit Rule 22-

1(d), seeks an order granting a Certificate of Appealability from the district court’s June 25, 2018 order denying Aguilar’s 28 U.S.C. §2254 petition. See Ex. H, ECF No. 71. The district court denied McMahon a certificate of appealability. Id. APP. 003 (2 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 2 of 42

Dated this 23rd day of July, 2018.

Respectfully submitted,

RENE VALLADARES, Federal Public Defender

/s/ Jonathan M. Kirshbaum JONATHAN M. KIRSHBAUM Assistant Federal Public Defender 411 E. Bonneville Ave., Suite 250 Las Vegas, Nevada 89101 (702) 388-6577

Attorney for Appellant AGUILAR

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POINTS AND AUTHORITIES I. ISSUES PRESENTED

1. Whether reasonable jurists would find it debatable whether the prosecution was relieved of the burden of establishing the required mens rea element for aiding and abetting and/or conspiracy to commit first-degree murder beyond a reasonable doubt and Aguilar was able to overcome any procedural hurdles on this claim due to a miscarriage of justice?

2. Whether reasonable jurists would find it debatable whether counsel was ineffective for failing to investigate and present at trial regarding Officer Brian Debecker’s connection to the shooting?

3. Whether reasonable jurists would find it debatable whether counsel was ineffective for failing to move to suppress the items found in the warrantless entry and search of petitioner’s residence?

4. Whether reasonable jurists would find it debatable whether counsel was ineffective for failing to challenge introduction of an edited 7-Eleven videotape?

5. Whether reasonable jurists would find it debatable whether counsel was ineffective for failing to investigate and pursue an alternative theory?

II. ARGUMENT A. Applicable legal standards

In order to obtain a certificate of appealability (“COA”), the petitioner must make a “substantial showing of the denial of a constitutional right”. 28 U.S.C. §2253(c)(2). To meet that standard, a

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petitioner must “demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483 (2000).

B. A COA should issue on the question of the prosecution was relieved of the burden of establishing the required mens rea element for aiding and abetting and/or conspiracy to commit first-degree murder beyond a reasonable doubt (Ground 3 of Second Amended Petition) and Aguilar was able to overcome any procedural hurdles on this claim due to a miscarriage of justice

Due process protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In Re Winship, 397 U.S. 358 (1970). A jury instruction that provides a lesser mens rea requirement has the effect of relieving the State of its burden to prove every element of the crime beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510,

521 (1979).

The trial court failed to instruct the jury on the mens rea required to find Aguilar liable as an aider or abettor or a conspirator to murder. A person may be found liable as an aider or abettor to an offense in Nevada only where the State has proven beyond a reasonable doubt that the person had the specific intent to commit the target offense. Sharma v.

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State, 56 P.3d 868 (Nev. 2002); see also Mitchell v. State, 149 P.3d 33, 38

(Nev. 2006) (holding Sharma applies retroactively).

In Nevada, a may not be held criminally liable for the specific intent crime committed by a coconspirator simply because that crime was a natural and probable consequence of the object of the conspiracy. Bolden v. State, 124 P.3d 191, 200 (Nev. 2005). Similar to aiding and abetting, to prove a conspiracy to commit a specific intent crime, the State must show that the defendant actually possessed the requisite statutory intent. Id. at 200-01.

Aguilar was charged under three separate theories of first-degree murder: (1) he was directly involved in the shooting in a premeditated and deliberate act; (2) he aided and abetted his brother Gilbert Aguilar

(“Gilbert”), who was the one who actually shot the victim; and (3) he was vicariously liable as a member of a conspiracy (ECF No. 14, Ex. 42, jury instruction 3).1 There were no allegations that Aguilar was the shooter, so only the second two theories applied to him.

1 “ECF No.” citations are to the ECF No.’s in the district court. The Second Amended Petition, Motion to Dismiss, Opposition to Motion to Dismiss, Reply, Order on the Motion to Dismiss, Answer, Reply, and Order denying the petition are attached as Exhibits A to H, respectively.

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However, the trial court’s instructions on aiding and abetting and conspiracy were defective because those instructions allowed the jury to find Aguilar guilty as an aider or abettor or a conspirator without finding that he had the specific intent to commit the underlying crimes. Rather, the aiding and abetting instructions allowed the jury to find him guilty solely based on acts that were “reasonably foreseeable” (Id.). And the conspiracy instructions allowed the jury to find him guilty solely if he was responsible for any act done in furtherance of the common design.

Jury Instruction 9 grounded liability for an offense in “directly” committing an offense, “aid[ing] or abet[ting]” an offense, and “directly or indirectly, counsel[ing], encourag[ing], hir[ing], command[ing], induc[ing], or otherwise procur[ing] another to commit a crime” (ECF No.

14, Ex. 42, Instruction 9). Instruction 10 defined aiding and abetting as

“help, assist or strengthen” and “encourage, counsel, induce or assist.”

(Id., Instruction 10). While Instruction Eleven instructed that mere presence was not sufficient for a conviction, it also indicated that the jury could infer criminal intent from “presence, companionship, and conduct before, during, and after the offense” (Id., Instruction 11). Instruction 12 stated, “An aider or abeter is guilty not only of the offense he intended to

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facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids or abets” (Id., Instruction 12) (emphasis added).

Aguilar’s attorney specifically objected to Instruction 12 (ECF No.

14, Ex. 40 at 12). The trial court acknowledged that the “sticking point were the words ‘reasonable foreseeable’. But I think that is an accurate statement of the , so I’ll give it” (Id. at 14). The court then provided the above instructions to the jury.

All of these instructions fail to expressly or implicitly state that

Aguilar could be found an aider or abettor only if he had the specific intent to commit these crimes as required under Sharma. To the contrary, they specifically allowed a conviction without a showing that

Aguilar himself harbored the specific intent to murder the victim so long as the murder was “reasonably foreseeable.” These instructions were not cured by other instructions.

The same can be said about the conspiracy instructions. The trial court specifically instructed the jury that one of the theories of first- degree murder was that he was vicariously liable for the acts of other members of a conspiracy (CR 14, Ex. 42, Instruction 3). However, the

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did not limit the conspiracy to just the first-degree murder.

Rather, the indictment alleged that he would be vicariously liable for the murder if he entered into a conspiracy to commit any of the other charged crimes (Id.).

The instructions given to the jury on conspiracy were consistent with the charges in the indictment. Jury instruction 4 stated,

“Conspiracy is an agreement or mutual understanding between two or more persons to commit a crime. To be guilty of conspiracy, a defendant must intend to commit, or to aid in the commission of, the specific crime agreed to” (CR 14, Ex. 42, Instruction 4). This instruction added, “A conspiracy to commit a crime does not end upon the completion of the crime. The conspiracy extends even to affirmative acts of concealment”

(Id.).

Jury instruction 6 stated, “Where the purpose of the conspiracy is to commit a dangerous felony each member runs the risk of having the venture end in homicide, even if he has forbidden the others to make use of deadly force” (Id., Instruction 6).

Jury instruction 8 stated, “Where several parties join together in a common design to commit any unlawful act, each is criminally

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responsible for the acts of his confederates committed in furtherance of the common design. In contemplation of law, the act of one is the act of all” (Id., Instruction 8).

Although not specifically directed at conspiracy, instruction 12 stated, “An aider or abeter is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids or abets” (Id., Instruction 12).

All of these instructions fail to expressly or implicitly state that

Aguilar could be found vicariously liable for the specific-intent crimes of a co-conspirator only if he had the specific intent to commit these crimes.

To the contrary, they specifically allowed a conviction without a showing that Aguilar himself harbored the specific intent to murder the victim.

These instructions were not cured by other instructions. No other guilt- phase instruction addressed the mental state that Aguilar was required to possess to be vicariously liable as a co-conspirator.

In fact, the prosecution specifically argued to the jury that Aguilar could be found guilty for the murder as a co-conspirator based on whether an action of a co-conspirator is “reasonably foreseeable.” The prosecutor argued, “And so when two people are involved in an agreement to commit

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a crime, no matter what actions are taken as long as they are reasonably foreseeable, each is - - they’re equally responsible” (ECF No. 14, Ex. 40 at

20-21). He added, “As long as there is an agreement to commit the crime, each is equally responsible and treated as a principal as if they actually and directly committed the crime” (Id. at 22). He emphasized again that, so long as there is an agreement, any participant is “equally responsible for everything that happened as long as it’s reasonably foreseeable” (Id.).

Even though Sharma and Bolden were decided after Aguilar’s conviction became final, the instructions in Aguilar’s case still must be considered defective. The rules in Sharma and Bolden are substantive and must be applied retroactively. See Welch v. United States, 136 S. Ct.

1257, 1264-65 (2016) (substantive rule is one that “‘alters the range of conduct or the class of persons that the law punishes.’ This includes decisions that narrow the scope of a criminal statute by interpreting its terms . . . that place particular conduct or persons covered by the statute beyond the State’s power to punish.’” (internal citations omitted)); accord

Montgomery v. Louisiana, 136 S. Ct. 718, 731-32 (2016); accord Mitchell,

149 P.3d at 38 (applying Sharma retroactively).

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Further, the error in these instructions cannot be considered harmless. There was little to no evidence that Aguilar aided or abetted or conspired in the shooting of the victim, Mark Emerson, or that Aguilar had the specific intent to commit a first-degree murder of Emerson. The evidence presented at trial was that Aguilar and Gilbert fired their weapons seemingly in a random fashion in the area surrounding their apartment building in a heated response to an incident that had occurred minutes before at a 7-Eleven.

Terry Maldonado testified at trial that, after she heard gun shots outside her apartment, she walked outside and saw a man who fit

Aguilar’s description standing at the western edge of a grassy field and shooting in a westerly direction away from Emerson’s apartment, which was located to the southeast of Maldonado’s apartment (CR 14, Ex. 36 at

16, 32-34). She believed that this man continued to move to the west away from her apartment after she first saw him (Id. at 38-41).

Maldonado’s testimony established that Aguilar was not shooting towards Emerson’s apartment and, during the shooting, was actually walking away from the apartment.

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Gilbert’s wife, Annette O’Neal, testified that she was out in the grassy field with Aguilar and Gilbert, many feet away from Emerson’s apartment (ECF No. 14, Ex. 36 at 72-76). She did not see either of them moving towards the apartment (Id. at 76). She saw lights from police cars and, in response, began running back to her apartment at 840

Mantis Way through the grassy area (Id. at 76-77). While she was running, Petitioner ran past her towards the apartment and arrived at the apartment before her (Id. at 77). She did not see what Gilbert did after she started running and he later arrived at the apartment after what “seemed like a long time” (Id. at 76, 79).

It was clear that the shooting of Emerson occurred in the interval in between when O’Neal and Aguilar ran away from the grassy area and

Gilbert returned to their apartment. Marla Emerson, the victim’s wife, heard a series of gunshots and went to her bedroom with her children.

Her husband, Mark Emerson, grabbed the phone and then went out on their patio. She then heard another series of gunshots, went to her patio, and saw her husband on the ground (ECF No. 14, Ex. 36 at 168-69). A man holding a rifle was standing behind her husband. She identified

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Gilbert as this man (Id. at 169-71). Emerson ran back inside and the police arrived on foot soon afterwards (Id. at 172-77).

Officer Chad Brown testified that, when he arrived at the scene, he engaged in a gun battle with a bald, white man wearing a black tank top

(ECF No.14, Ex. 37 at 87-88). Brown first saw this man as he was standing on a corner just to the east of Emerson’s apartment. At the time, the man was shooting in a westerly direction towards Emerson’s apartment (Id. at 88). Brown told the man to drop the gun and the man pointed the gun at Brown and fired (Id. at 88-89). Brown returned fire

(Id. at 89). Two bullets fired from Brown’s gun were recovered inside a wall to the east of the patio door of Emerson’s apartment (ECF No. 14,

Ex. 38 at 71; ECF No. 14, Ex. 39 at 65-66). The man ran north down

Mantis into an apartment at 840 Matis (ECF No. 14, Ex. 38 at 90). Brown later identified Gilbert as this man from a surveillance video taken from a 7-Eleven store (ECF No. 14, Ex. 37 at 91-92).

Brown’s testimony confirmed that Gilbert was near Emerson’s apartment at the end of the incident, at a time when O’Neal had testified that she and Aguilar had already fled the area.

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Thus, there was no evidence that Aguilar was anywhere near

Emerson’s apartment at the time that he was shot. Indeed, the evidence showed that he fired his weapon away from the apartment, his focus was on something to the west of the grassy area, and he was literally running away from the scene, and was most likely back at the apartment, at the time that the shooting occurred. At bottom, there was little to no evidence that Aguilar harbored the specific intent to commit a first- degree murder of Emerson.

Despite the lack of evidence of a specific intent, the jury could have convicted Aguilar on a theory of accomplice liability or conspiracy based on the murder being “reasonably foreseeable” or Aguilar had committed an act in furtherance of the conspiracy in general without a finding that he had the specific intent to commit the actual murder. Because there is a reasonable likelihood that the jury would have interpreted the instructions as not requiring the specific intent as required by state law, the error was not harmless beyond a reasonable doubt and has a substantial and injurious effect on the verdict.

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The district court concluded that this ground was both untimely and procedurally defaulted. (Ex. E, ECF No. 64.) However, Aguilar can overcome these procedural hurdles based on a miscarriage of justice.

A petitioner can obtain a merits review of procedurally defaulted or untimely claims if he can establish that there has been a “fundamental miscarriage of justice,” in other words, a conviction of one who is actually innocent. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013) Murray v.

Carrier, 477 U.S. 478, 496 (1986). A petitioner can establish actual innocence to overcome a procedural hurdle if he “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Schlup v. Delo, 513 U.S. 298, 316

(1995). One way a petitioner can demonstrate actual innocence is to show in light of subsequent case law that he cannot, as a legal matter, have committed the alleged crime. Vosgien v. Persson, 742 F.3d 1131, 1134

(9th Cir. 2014) (relying upon Bousley v. United States, 523 U.S. 614

(1998)).

Aguilar can establish actual innocence on the first-degree murder conviction under this standard. As discussed before, Aguilar was

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prosecuted for first-degree murder under three theories: (1) direct participant in a premeditated, deliberate, and willful murder; (2) aiding and abetting a first-degree murder; and (3) he was vicariously liable as a member of a conspiracy. However, after the conviction, the Nevada

Supreme Court narrowed the definition of the only two relevant legal theories—aiding and abetting and conspiracy—under which Aguilar could have been convicted. See Sharma, 56 P.3d 868 (change to definition of aiding and abetting); Bolden, 124 P.3d at 200 (change to definition of conspiratorial liability).

Under the new standards for each of these theories, Aguilar is actually innocent. Aguilar has previously explained in great deal why the trial evidence showed that he was actually innocent of first-degree murder under an aiding and abetting or conspiracy theory. It is more than sufficient to go through the gateway to obtain a merits review of his constitutional claims.

Accordingly, a COA should be granted on this ground.

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C. Reasonable jurists would find it debatable whether counsel was ineffective for failing to investigate and present evidence at trial regarding Officer Brian Debecker’s connection to the shooting

To establish ineffective assistance of counsel, a petitioner must show that his counsel’s performance fell below an objective standard of reasonableness; second, a defendant must establish that he was prejudiced by his counsel’s deficient performance. Kimmelman v.

Morrison, 477 U.S. 365, 381 (1986). Specifically, a petitioner establishes prejudice when he demonstrates there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 694

(1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Counsel has a constitutional duty to conduct an adequate pretrial investigation. Kimmelman, 477 U.S. at 386. In making a competency determination, “the court ‘should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case’” but that testing process will generally not function properly “‘unless counsel has done some

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investigation into the prosecution’s case and into various defense strategies.’” Id. at 384 (quoting Strickland, 466 U.S. at 690-91).

Importantly, the Supreme Court has held “‘counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’” Id. (quoting Strickland,

466 U.S. at 691). While counsel’s competence is presumed, “‘a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances,’” and counsel is incompetent if the challenged action was not sound strategy and was unreasonable under “professional norms.” Id. at 381, 384; Strickland, 466 U.S. at 688-89, 691.

Here, the State’s main theory at trial was that a bullet from a B-

West assault rifle killed the victim, Mark Emerson. Although the bullet that struck the victim was never identified as coming from any particular weapon, two bullets that were recovered in the archway of the victim’s patio, where the victim had been shot, were identified as coming from the

B-West rifle (ECF No. 14, Ex. 39 at 69-70). It was the prosecution’s theory at trial that Gilbert Aguilar had been firing the B-West rifle during the incident (ECF No. 14, Ex. 40 at 25).

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Aguilar’s lead trial counsel, Roger Hillman, had the constitutionally imposed duty to investigate Aguilar’s “various defense strategies.” At the evidentiary hearing on Aguilar’s state post-conviction petition, it was established that the B-West rifle was traced back to Officer Brian

Debecker of the Las Vegas Metropolitan Police Department. In fact,

Hillman acknowledged that he knew before trial that Officer Debecker owned one of the weapons involved in the crime (ECF No. 16, Ex. 109 at

56-57). It was Hillman’s understanding that the weapon had been stolen from Debecker, but Debecker had “possibl[y]” not reported it missing or stolen prior to the time of the instant crimes (Id. at 57).

This knowledge would have made any reasonable trial attorney dig deeper to explore possible defenses. Respondent’s Answer argues defense counsel did investigate Officer Debecker’s involvement with the shooting.

While counsel spoke with an investigator, he did not even attempt to speak to Debecker about the gun ownership (Id. at 58-59). This could hardly be considered a reasonable investigation under the circumstances.

Further, William Wolfbrandt, Gilbert’s lead trial attorney, also did not recall doing any investigation into Debecker’s ownership of the B-West rifle or whether there was any connection between Debecker and the

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victim (ECF No. 16, Ex. 110 at 13, 19, 21-22). Debecker’s possession of the rifle was not an issue that was even raised at trial (ECF No. 16, Ex.

109 at 60-61).

This failure certainly falls below professional norms and was not a sound strategy, especially given the fact Aguilar was made aware of the issue and Hillman acknowledged it fit within Aguilar’s proposed defense that he had been set up (Id. at 57-58). Gilbert’s trial attorney even admitted that it was not often where a weapon owned by a police officer was involved in a murder (ECF No. 16, Ex. 110 at 12).

Counsel’s failure to investigate this issue and present this evidence at trial violated Aguilar’s right to the effective assistance of counsel. As

Gilbert’s trial attorney acknowledged, it was highly unusual that a weapon owned by a police officer was connected to a murder. Such an unusual fact demanded that a full investigation be conducted. This is particularly true where—as trial counsel admitted—it was consistent with Aguilar’s proposed defense. If the defense had conducted an adequate investigation as required under the Constitution, it would have potentially revealed a connection between Debecker and the crime.

Further, these facts standing alone should have been presented to the

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trial jury as they would have established a reasonable doubt of Aguilar’s guilt in the crime, changing the outcome at trial. It was also sufficient evidence to present an alternative suspect theory to the jury.

The Nevada Supreme Court rejected this claim, finding that

Aguilar failed to demonstrate trial counsel were deficient (ECF No. 16,

Ex. 126 at 2). In support of its decision, the court relied upon trial counsel’s testimony at the evidentiary hearing that there was a tactical reason for not presenting this evidence, namely, counsel did not want the jury to hear one of the had prior convictions or for dealing in stolen weapons and did not want the jury to make a connection that appellants stole the guns used in the crime (Id.).

This decision was unreasonable. An attorney’s conclusory claim that a certain decision was “tactical” does not make counsel’s assistance automatically effective under the law. That is particularly true when there is no reasonable basis for that “tactical” decision. It is not clear how an attorney can make such a tactical decision without knowing all of the facts. Indeed, his counsel admitted that he was even sure if the officer had reported it missing before the incident occurred. It

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demonstrates that his strategy could not have been formulated after a full investigation.

Moreover, an investigation may have uncovered evidence so compelling that it would have significantly outweighed any prejudice from the mention of the prior convictions. Indeed, the prior convictions themselves would not have had much of an impact here. The issue here was not whether Aguilar owned guns or how they came into his possession. Rather, the critical element here was that someone else owned the gun that shot the victim. Counsel’s strategic explanation does not account for why they failed to undergo a reasonable investigation into this issue, especially under unusual circumstances as these: the bullets from the crime came from a police officer’s gun.

The Nevada Supreme Court did not address the prejudice prong of this claim. Thus, this part of the claim is reviewed de novo. See Porter v.

McCollum, 558 U.S. 30, 39 (2009). The deficient performance prejudiced

Aguilar. The type of gun, bullets used, and owner of the firearm were critically important facts, necessary to Aguilar’s defense in an alleged murder. This is especially so where Debecker’s participation in the crime was consistent with Aguilar’s proposed defense theory. As shown above,

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any reasonable attorney would have undergone reasonable investigation under these circumstances, as doing so would have established reasonable doubt of Aguilar’s guilt. Further, there were no eyewitnesses to the shooting. Critically, the several police officers described the person believed to have killed Emerson as a white man with a shaved head (ECF

No. 14, Ex. 37 at 81; ECF No. 14, Ex. 38 at 23). Had counsel presented evidence that the gun involved in the shooting actually belonged to someone else, the outcome at trial would have been different.

Accordingly, a COA should be granted on this issue.

D. Reasonable jurists would find it debatable whether counsel was ineffective for failing to move to suppress the items found in the warrantless police entry and search of petitioner’s residence

Under the Fourth Amendment, all searches presumptively require a warrant to be valid. The “‘general requirement that a be obtained’ is basic to the Amendment’s protection of privacy, and ‘the burden is on those seeking an exemption . . . to show the need for it.’”

Chambers v. Maroney, 399 U.S. 42, 61 (1970). Further, because “history shows police acting on their own cannot be trusted,” absence of a search warrant cannot be excused without showing exigent circumstances.

McDonald v. United States, 335 U.S. 451, 456 (1948). While one of the

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exceptions to the warrant requirement of the Fourth Amendment is voluntary consent, “the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means.” See Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968); Schneckloth v.

Bustamonte, 412 U.S. 218, 228 (1973).

The home is a particularly sacred place, carrying a heightened expectation of privacy. See Kyllo v. United States, 533 U.S. 27 (2001).

The Supreme Court has drawn a firm, bright line at the entrance to the home, holding that “absent exigent circumstances, that threshold may not be reasonably crossed without a warrant.” Id. at 40; Payton v. New

York, 445 U.S. 573, 590 (1980). In fact, physical entry of the home is the

“chief evil” the wording of the Fourth Amendment aims to target. Payton,

445 U.S.at 585. The Supreme Court has consistently condemned warrantless forced entries into homes as unreasonable and inconsistent with the Fourth Amendment. See Id.; see also Camara v. Municipal

Court of City and County of San Francisco, 387 U.S. 523 (1967).

There was no reasonable justification for the warrantless search of

Aguilar’s place of residence. In a search of the apartment of Aguilar’s girlfriend, Gloria Olivares, the police recovered two guns. This was the

24 APP. 026 (25 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 25 of 42

only physical evidence potentially tying Aguilar and his brother, Gilbert

Aguilar, to the shooting of Mark Emerson. Ballistics testing circumstantially linked the weapons to the shooting, and a police officer testified that a palm print found on one of the guns matched Aguilar

(ECF No. 14, Ex. 36 at 207; Ex. 39 at 66-77).

Police searched Olivares’ residence after ostensibly obtaining her consent. The testimony at trial was that, upon arriving on the scene,

Officers Mark Dwiggins and Stewart Emry observed Aguilar and Gloria

Olivares (ECF No. 14, Ex. 38 at 16, 48). The officers’ suspicions were aroused since Aguilar’s clothes were wet, he had a bruise on his shoulder, and he appeared nervous (Id. at 24, 48-49). They separated Olivares and

Aguilar and spoke to them individually. The stories that they received from them did not match up, so the officers detained Aguilar and asked

Olivares for consent to search her apartment “to rule her out as having any involvement in the incident” (Id. at 25-28, 49-50).

Olivares “wavered back and forth several times” (ECF No. 14, Ex.

38 at 50). On two separate occasions, Dwiggins filled out consent to search cards for Olivares to sign, but she refused to sign them (Id.). Each time, Dwiggins ripped up the card (Id.). Aguilar became agitated and

25 APP. 027 (26 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 26 of 42

began fighting with the officers (Id.). Officers placed Aguilar in a

“position of disadvantage,” angering Olivares (Id. at 51). She began crying out that the police were beating the Petitioner, Aguilar, so

Dwiggins removed her from the scene (Id.).

In response, Dwiggins took Olivares to his command post so that she could not see what was happening with Aguilar (Id.). He continued to talk to Olivares, who was more cooperative once she was outside

Aguilar’s presence, and asked her if she would sign a consent to search card, which she finally agreed to do (Id. at 51, 55). A copy of the card was admitted into evidence (Id. at 52-54). Despite obtaining consent, a

SWAT team of officers forcibly entered the apartment (ECF No. 14, Ex.

38 at 121; ECF No. 14, Ex. 39 at 120-21). George Trombley, the apartment manager, confirmed that the door of the apartment had been forcibly opened, there was a broken window, and a tear gas rocket was found inside the apartment (ECF No. 14, Ex.39 at 2-4).

Two witnesses testified at trial that Aguilar lived at 840 Mantis, apartment 2, the apartment that was searched. Joyce Brown testified that she lived at 848 Mantis, apartment 8 (ECF No. 14, Ex. 35 at 65-66).

The apartment was right across a walkway from 840 Mantis apartment

26 APP. 028 (27 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 27 of 42

2 (Id. at 68). She said that Olivares, Aguilar, and Arlene Nelson lived in the apartment (Id.). She would see Aguilar working on his car outside the apartment and estimated that she saw him every day to every other day (Id. at 69).

Annette O’Neal was married to Gilbert (ECF No. 14, Ex. 36 at 57).

She said that, at some point prior to August 7, 1996, she and Gilbert moved into 840 Matis, apartment 2, the apartment where Aguilar lived with Olivares (Id. at 59-60).

At the evidentiary hearing on Aguilar’s post-conviction petition, his trial attorney, Roger Hillman, testified that there was a potential suppression issue with respect to the search; he acknowledged that

Aguilar asked him to move to suppress based upon the illegality of the search of the apartment (ECF No. 16, Ex. 109 at 45, 91). However,

Hillman did not file the motion based on his belief that there was a lack of standing to litigate the issue (Id.). He did not do any investigation into whether Aguilar lived at the apartment (Id. at 46).

Aguilar’s attorney was constitutionally ineffective for failing to move to suppress the weapons based on the warrantless search of the apartment. A warrant was necessary to conduct a legal search a person’s

27 APP. 029 (28 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 28 of 42

residence. And the purported consent for the search was not valid. There were reasons to believe that Olivares’ consent to search was far from voluntary. She refused consent on multiple occasions and was brought to tears as officers beat Aguilar in front of her. According to the officer, she only granted consent after she became irate with the police and was escorted back to the police station. The whole situation was riddled with both implied and explicit coercion. These circumstances do not support a finding that Olivares voluntarily consented to the search. The officers should have obtained a warrant.

It also seems odd that, despite receiving “consent” to search and with one of the potential in custody, the officers forcibly entered the apartment, going so far as shooting off a tear gas rocket into the apartment. This warrantless, forced entry was far from reasonable, and this type of reckless police behavior offends the very core of what the 4th

Amendment is designed to protect. Accordingly, forced physical entries of the home are the “chief evil” targeted by this Amendment’s wording.

Payton, 445 U.S. at 585. The trial evidence clearly raised questions about the validity of the search. Under these circumstances, Aguilar’s

28 APP. 030 (29 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 29 of 42

attorney should have investigated and pursued the circumstances leading to Olivares’s decision to grant consent to search.

Further, there was significant evidence that Aguilar did live in the apartment and had standing to raise the issue. Testimony by two witnesses at the trial pointed to him living at 840 Mantis, Apartment 2.

Indeed, the prosecutor sought to use the evidence found in the apartment, which included the guns, as well as ammunition and other weapons, against Aguilar precisely on the theory that he was connected to the apartment. Defense counsel’s decision to not file a motion to suppress based on his belief that there was a lack of standing is an unreasonable mistake, pursuant to Kimmelman. This mistaken belief is all the more reprehensible, because he did not do any investigation into whether

Aguilar lived in the apartment. Aguilar’s attorney was deficient in failing to litigate this issue and this unreasonable performance prejudiced

Aguilar. The suppression of the guns would have substantially impacted the State’s case, likely changing the outcome of the trial.

The Nevada Supreme Court rejected this claim, finding that

Aguilar failed to demonstrate trial counsel were deficient, because he failed to demonstrate that they had standing to challenge the search

29 APP. 031 (30 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 30 of 42

(ECF No. 16, Ex. 126 at 3.) The court found Aguilar failed to demonstrate he had a protected privacy interest because the apartment belonged to

Aguilar’s girlfriend and there was a restraining order preventing him from entering the premises (Id.)

This decision was unreasonable. The fact that the apartment was owned by Olivares does not mean that Aguilar could not have a privacy interest in the apartment. Status as an overnight guest in someone’s home has given rise to a protected privacy interest under the 4th

Amendment. Minnesota v. Olson, 495 U.S. 91, 99 (1990). The Supreme

Court of the United States noted that “the guest who has a host who has ultimate control of the house is not inconsistent with the guest having a legitimate expectation of privacy,” and the host—who gives the houseguest permission to stay—is willing to share his house and his privacy right with his guest. Id. at 98. Further, “an overnight guest in a home staying with the permission of the host has a reasonable expectation of privacy under the Fourth Amendment.” Espinosa v. City and County of San Francisco, 598 F.3d 528, 533 (9th Cir. 2010).

30 APP. 032 (31 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 31 of 42

Courts have found a protected privacy interest exists where an individual regularly occupies a home—this is not limited to ownership.

United States v. Hamilton, 538 F.3d 162, 166 (2d Cir. 2008).

Also, acquiescence may give rise to an extension of the scope of a defendant’s reasonable expectation of privacy, even if no legal right exists. See U.S. v. Lanier, 636 F.3d 228 (6th Cir. 2011) (noting that hotel practices and communications with guests—giving permission or generally acquiescing when guests stay later—result in the extension past checkout time of a defendant’s reasonable expectation of privacy).

Trial counsel had a strong argument that Aguilar had standing to challenge the search. Whether or not a privacy right exists is a factual inquiry. There were a significant amount of facts showing that Aguilar lived in the apartment. Two witnesses, including one who was completely objective, testified that Aguilar lived in the apartment.

Despite the order of protection, Olivares clearly acquiesced to his presence, giving him the authority to stay there. Lanier, 636 F.3d 228.

The Nevada Supreme Court did not cite to any authority establishing that an order of protection meant, as a matter of law, that an individual can have no standing under the Fourth Amendment. The

31 APP. 033 (32 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 32 of 42

more important inquiry here was whether he actually did live in the apartment. There was significant evidence showing that he did. For these reasons, the Nevada Supreme Court’s decision involved unreasonable fact-finding and an unreasonable application of law.

Trial counsel was deficient for failing to file a motion to suppress the search of Aguilar’s girlfriend’s house. As shown above, Aguilar’s

Fourth Amendment rights were violated by the warrantless search. A reasonable attorney would have challenged this search in light of the solid evidence on the record proving Aguilar occupied the property. No reasonable attorney would have ignored the issue completely. The

Nevada Supreme Court’s decision that counsel had been effective was unreasonable.

The Nevada Supreme Court did not address the prejudice prong of this claim. Thus, this part of the claim is reviewed de novo. See Porter v.

McCollum, 558 U.S. 30, 39 (2009). This deficient performance prejudiced

Aguilar. The only physical evidence potentially tying Aguilar to the crime were the two guns found at Aguilar’s girlfriend’s house. This was significant and very damaging evidence. If trial counsel had acted reasonably and challenged the warrantless search, the guns would have

32 APP. 034 (33 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 33 of 42

been suppressed, which would have invariably changed the outcome at trial.

Accordingly, a COA should be granted on this issue.

E. Reasonable jurists would find it debatable whether counsel was ineffective for failing to challenge introduction of an edited 7-Eleven videotape

Here, the State was permitted to admit a surveillance videotape from a

7-Eleven store located approximately 200 yards from the murder scene

(ECF No. 14, Ex. 35 at 48-56). The video showed Aguilar and his brother,

Gilbert, gambling at the store and then leaving at 10:43 p.m. according to the tape’s time stamp (Id. at 56). The video established that the brothers had time to leave the store, run to their residence to retrieve weapons, and then return to the area to begin shooting their rifles, which resulted in the murder of Mark Emerson.

At the evidentiary hearing on Aguilar’s post-conviction petition,

Michael Karstedt, a private investigator, testified that the 7-11 videotape provided to the State for the day of the shooting would have been unedited and twenty-four hours long (ECF No. 16, Ex. 109 at 13-17). The video shown to the jury would have been edited by the state into the forty-

33 APP. 035 (34 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 34 of 42

five minute version that was turned over to the defense and shown at trial (Id. at 18).

Trial counsel’s failure to object to the admission of this videotape represented constitutionally deficient performance. Counsel never questioned the authenticity of the tape’s time stamp or the editing techniques utilized. No defense expert witness was utilized to test the reliability of the videotape’s time stamp. Instead, trial counsel allowed the prejudicial videotape to be played to the jury without successful challenge lending evidentiary support to the State’s murder time-line.

The video—with over 23 hours omitted and edited—needed to be scrutinized. Defense counsel could have and should have used an expert witness to discuss these important issues with the jury. Defense counsel’s multiple omissions could hardly be called sound trial strategy and were unreasonable under professional norms. This deficient performance prejudiced Aguilar as the outcome of the trial would have been different had counsel raised the objections to the video.

The Nevada Supreme Court rejected this claim, finding that

Aguilar failed to demonstrate trial counsel were deficient (ECF No. 16,

Ex. 126 at 6). The court pointed out Aguilar failed to demonstrate that

34 APP. 036 (35 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 35 of 42

there was a reason to question the authenticity of the time stamp or editing techniques and that a motion to suppress would have been successful (Id.).

This decision was unreasonable. As shown above, any reasonable attorney would have questioned the authenticity of the video’s time stamp and the editing techniques. The video itself was extremely important to the State’s murder timeline, and such a crucial piece of evidence needed to be evaluated, investigated, or at the very least questioned. And there was good reason for counsel to question these things. The unedited version of the video would have been 24 hours long, while the final version shown to the jury was only 45 minutes long. Over

23 hours were removed by the prosecution. It is the essence of the to question evidence that has been altered in some way by the other side. Trial counsel could have gotten an expert to question the State’s editing protocols, or at a minimum, conducted further investigation. Wiggins, 539 U.S. at 522-34.

The Nevada Supreme Court did not address the prejudice prong of this claim. Thus, this part of the claim is reviewed de novo. See Porter v.

McCollum, 558 U.S. 30, 39 (2009). The deficient performance prejudiced

35 APP. 037 (36 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 36 of 42

Aguilar. As shown above, the video was very important to the State’s case, particularly its timeline. If trial counsel had acted reasonably and raised these objections to the video, they would have casted doubt on the

State’s theory, and the outcome of trial would have been different.

Accordingly, a COA should be granted on this issue.

F. Reasonable jurists would find it debatable whether counsel was ineffective for failing to investigate and pursue an alternative suspect theory

Counsel’s representation of Aguilar fell below the minimum standard of reasonably competent performance when he failed to fully pursue the alternative suspect theory prior to trial. Counsel’s lack of understanding affected his performance at trial and his ability to effectively present

Aguilar’s theory of defense to the jury. Counsel’s decision to disregard other defenses available to Aguilar fell below the minimum standard of reasonably competent counsel and resulted in prejudice to Aguilar.

Aguilar maintained to his attorneys that he and his brother,

Gilbert, were not the ones who fatally wounded Mark Emerson, but were being set up (ECF No. 16, Ex. 109 at 58). At trial, testimony from several police officers established that the description of the person believed to have killed Emerson was a white man with a shaved head (ECF No. 14,

36 APP. 038 (37 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 37 of 42

Ex. 37 at 81; ECF No. 14, Ex. 38 at 23). The defendants did not mean this description. The 7-11 video shows an individual standing over

Aguilar as he gambled and possibly stepping on Aguilar’s right foot before he left (ECF No. 30, Ex. 169). This man left the store right before Aguilar, providing this individual plenty of time to do the shooting (Id.). The existence of another person matching the description of Emerson’s shooter seen in the area causing trouble on the day of the shooting would have been powerful defense evidence to shed doubt on the State’s prosecution theory. This fact is especially persuasive when considering the fact that the bald guy was hovering over Aguilar—as depicted in the

7-11 video—just before the shooting spree. Any reasonable attorney would have introduced this defense or made an attempt to investigate this defense.

But the attorneys did not argue the alternative suspect theory to the jury. Even worse, Petitioner’s trial attorneys did not make any attempt at identifying the man in the video who matched the police’s description of the shooter (ECF No. 16, Ex. 109 at 39, 44). This failure was unreasonable and deprived Aguilar of his constitutional rights. The failure of Aguilar’s trial counsel to investigate and produce such

37 APP. 039 (38 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 38 of 42

potentially exculpatory evidence was deficient performance and clearly prejudiced Aguilar. Had counsel undertaken reasonable investigations and presented this defense, the outcome of the proceedings would have been different.

The Nevada Supreme Court rejected this claim, finding Aguilar failed to demonstrate that trial counsel were deficient. Ex. 126 at 7. In support of its decision, the court relied upon trial counsel’s testimony that they did not pursue the alternative suspect theory, because it was impossible to identify who the man from the video was (ECF No. 16, Ex.

126 at 7.) The court also pointed to trial counsel testimony from the evidentiary hearing that the witness who gave the description of the shooter identified Gilbert as the shooter in court (Id.).

This decision was unreasonable. It was unreasonable for counsel to flatly state that it was impossible to find this person. This person could have been known to the people at the 7-11 or they could have had a receipt with his name on it. This would have been a simple investigation, but Aguilar’s trial attorney did nothing to attempt to identify this potential subject. Worse still, trial counsel did not even argue this

38 APP. 040 (39 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 39 of 42

alternative suspect theory or bring it up to the jury, even though the evidence was there on the video.

The fact that the witness who gave the description of the shooter identified Gilbert as the shooter in court has no bearing on this analysis.

First of all, the initial descriptions did not match Gilbert. Moreover, as discussed under Ground Six, the identification occurred under highly suggestive circumstances, rendering it completely unreliable. In contrast, a man in the video resembled the shooter’s initial description.

Also, Aguilar maintained to his attorneys that he and his brother,

Gilbert, were not the ones who fatally wounded Mark Emerson, but had been set up for this crime. Also, unfortunately and unfairly—and a matter argued in Aguilar’s petition— trial counsel omitted another piece of valuable evidence which tends to suggest Aguilar’s innocence: Officer

Debecker’s connection to the firearm used in the incident. In sum, despite the identification, there were compelling reasons to believe that someone else may have committed the shooting. The fact remains that trial counsel neglected to investigate and failed to even mention this alternative suspect theory to the jury.

39 APP. 041 (40 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 40 of 42

The Nevada Supreme Court did not address the prejudice prong of this claim. Thus, this part of the claim is reviewed de novo. See Porter v.

McCollum, 558 U.S. 30, 39 (2009). The deficient performance prejudiced

Aguilar. The existence of another person matching the description of

Emerson’s shooter, in the location of the shooting, and with plenty of time to accomplish the shooting, would have been powerful evidence to shed doubt on the State’s prosecution theory. These facts are all the more powerful and exculpatory, because this man was seen hovering around

Aguilar just before the shooting spree. If counsel would have investigated, they likely would have found more evidence in furtherance of an alternative suspect theory. More importantly, if counsel would have merely presented the evidence already at its disposal to the jury, arguing or even suggesting an alternative suspect theory, the outcome of the trial would have been different.

Accordingly, a COA should be granted on this issue.

III. CONCLUSION

Aguilar respectfully requests that this Court issue a COA on the following issues:

1. Reasonable jurists would find it debatable whether the prosecution was relieved of the burden of establishing the

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required mens rea element for aiding and abetting and/or conspiracy to commit first-degree murder beyond a reasonable doubt and Aguilar was able to overcome any procedural hurdles on this claim due to a miscarriage of justice.

2. Reasonable jurists would find it debatable whether counsel was ineffective for failing to investigate and present evidence at trial regarding Officer Brian Debecker’s connection to the shooting.

3. Reasonable jurists would find it debatable whether counsel was ineffective for failing to move to suppress the items found in the warrantless police entry and search of petitioner’s residence.

4. Reasonable jurists would find it debatable whether counsel was ineffective for failing to challenge introduction of an edited 7-Eleven videotape.

5. Reasonable jurists would find it debatable whether counsel was ineffective for failing to investigate and pursue an alternative suspect theory.

Dated this 23rd day of July, 2018.

Respectfully submitted,

/s/ Jonathan M. Kirshbaum JONATHAN M. KIRSHBAUM Assistant Federal Public Defender

41 APP. 043 (42 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-1, Page 42 of 42

CERTIFICATE OF SERVICE

I hereby certify that on July 23, 2018, I electronically filed the foregoing with the Clerk of the Court for the United States Court of

Appeals for the Ninth Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing by First-Class

Mail, postage pre-paid, or have dispatched it to a third-party commercial carrier for delivery within three calendar days, to the following non-

CM/ECF participants:

David D. Aguilar #52801 Ely State Prison P.O. Box 1989 Ely, NV 89301

/s/ Adam Dunn An Employee of the Federal Public Defender

42 APP. 044 (43 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-2, Page 1 of 44 EXHIBIT A

EXHIBIT A APP. 045 (44 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 2 of1 of44 43

1 RENE L. VALLADARES Federal Public Defender 2 Nevada State Bar No. 11479 JONATHAN M. KIRSHBAUM 3 Assistant Federal Public Defender New York State Bar No. 2857100 4 411 E. Bonneville Avenue, Suite 250 Las Vegas, Nevada 89101 5 (702) 388-6577 (702) 388-6261 (FAX) 6 Attorneys for Petitioner 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 DAYOMASHELL DAVID AGUILAR, 3:12-cv-0315-MMD-VPC 11 Petitioner, SECOND AMENDED PETITION FOR 12 WRIT OF HABEAS CORPUS BY A vs. PERSON IN STATE CUSTODY 13 PURSUANT TO 28 U.S.C. § 2254 WARDEN BAKER, et al. 14 Respondents. 15 16 Petitioner, Dayomashell David Aguilar, by and through his attorney of record, Jonathan M. 17 Kirshbaum, Assistant Federal Public Defender, files this Second Amended Petition for Writ of Habeas 18 Corpus by a Person in State Custody Pursuant to U.S.C. § 2254.1 19 / / / 20 / / / 21 / / / 22 23 24 25 26 27 1 The Exhibits referenced in this Second Amended Petition refer to Exhibits already on file under Clerk’s Record (CR) 13, (Exhibits 1 - 30); CR 14, (Exhibits 31 - 60); CR 15, (Exhibits 61 - 90); 28 and, CR 16, (Exhibits 91 - 129), and are identified in this petition as “CR 13, Ex. #”; “CR 14, Ex. #”; “CR 15, Ex. #”; and, “CR 16, Ex. #”. Supplemental exhibits 130 through 169 are filed contemporaneously with this petition. Petitioner reserves the right to file additional supplemental exhibits as needed and relevant. APP. 046 (45 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 3 of2 of44 43

1 I. 2 PROCEDURAL BACKGROUND 3 Following a nine-day and a four-day penalty hearing, Petitioner was convicted of the 4 following crimes: Conspiracy to Commit Murder (Count 1), Murder with Use of a Deadly Weapon 5 (Count 2), Discharging Firearm at or into Structure (Counts 5 and 6) and Discharging Firearm at or into 6 Vehicle (Count 9). He was sentenced as follows: Count 1 - to a maximum term of one hundred twenty 7 (120) months with a minimum term of forty-eight (48) months; Count 2 - to life with the possibility of 8 parole with an equal and consecutive term of life with the possibility of parole; and, Counts 5, 6 and 9 - 9 to a maximum term of seventy-two (72) months with a minimum term of twenty-eight (28) months. All 10 counts were ran consecutive. Petitioner was given credit for forty-one (41) days of time served. (CR 11 14, Ex. 60.) Petitioner is currently serving out his sentence at Ely State Prison in Ely, Nevada. 12 The hearing was held on August 29, 1996. (CR 13, Ex. 2.) Following testimony of 13 eye-witnesses and first responders, the Grand Jury issued an Indictment on August 30, 1996, charging 14 Petitioner with Conspiracy to Commit Murder (Count 1), Murder with Use of a Deadly Weapon (Open 15 Murder) (Count 2), Attempt Murder with Use of a Deadly Weapon (Count 3), Discharging Firearm at 16 or into Structure (Counts 5 and 6), Discharging Firearm at or into Vehicle (Counts 7 and 9) and Assault 17 with Use of a Deadly Weapon (Count 8). (CR 13, Ex. 4.) Count 4 pertained only to Petitioner’s co- 18 defendant. (Id.) 19 The trial commenced on September 30, 1997 and continued through October 10, 1997. (CR 14, 20 Exs. 31-32 and 35-41.) Attorneys R. Roger Hillman and Curtis S. Brown represented Petitioner 21 throughout the trial. 22 The penalty hearing commenced on October 15, 1997 and continued through October 20, 1997. 23 (CR 14, Exs. 47, 49-50 and 54-55.) At the conclusion of the penalty hearing, the jury returned a Verdict 24 sentencing Petitioner to life with the possibility of parole on Count 2, Murder of the First Degree with 25 Use of a Deadly Weapon. (CR 14, Ex. 53.) 26 The sentencing hearing took place on December 8, 1997, before the Honorable Gene T. Porter. 27 (CR 14, Ex. 58.) The Judgment of Conviction was filed on January 9, 1998. (CR 14, Ex. 60.) 28 / / /

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1 DIRECT APPEAL 2 A timely Notice of Appeal from the conviction and sentence was filed on February 6, 1990 and 3 was docketed in the Nevada Supreme Court as case number 31811. (CR 15, Ex. 62.) 4 Appellant’s Opening Brief was filed on September 4, 1998. (CR 15, Ex. 65.) Respondent’s 5 Answering Brief was filed on October 6, 1998. (CR 15, Ex. 67.) Appellant’s Reply Brief was filed on 6 January 25, 1999. (CR 15, Ex. 69.) 7 On December 20, 1999, the Nevada Supreme Court filed an Order Dismissing Appeals, denying 8 Petitioner relief on appeal. (CR 15, Ex. 70.) Remittitur issued on January 18, 2000. (CR 15, Ex. 71.) 9 STATE POST-CONVICTION 10 On September 8, 2000, Petitioner, in proper person, filed his Petition for Writ of Habeas Corpus 11 (Post-Conviction) (CR 15, ex. 73) and his Memorandum of Points and Authorities in Support of Petition 12 for Writ of Habeas Corpus (Post-Conviction) (CR 15, ex. 74). 13 On October 17, 2000, the State filed its Opposition to Defendant’s Petition for Writ of Habeas 14 Corpus (Post-Conviction) and Motion for Discovery. (CR 15, Ex. 80.) Petitioner filed a Reply on 15 November 1, 2000. (CR 15, Ex. 82.) 16 WRIT OF MANDAMUS 17 Petitioner’s state post-conviction petition sat pending for over six years and on January 26, 2007, 18 his co-defendant and brother, Gilbert Aguilar, filed a Petition for Writ of Mandamus in the Nevada 19 Supreme Court. (CR 15, Ex. 83.) The Nevada Supreme Court docketed the petition as case number 20 48815. 21 On February 8, 2007, the Nevada Supreme Court filed an Order Directing Response (CR 15, ex. 22 85) and the State filed it’s Response on March 15, 2007 (CR 15, ex. 87). 23 On April 16, 2007, the Nevada Supreme Court granted Gilbert Aguilar’s Petition for Writ of 24 Mandamus and directed the district court to place Petitioner’s post-conviction petition back on calendar. 25 (CR 15, Ex. 88.) Additionally, the Nevada Supreme Court noted that Petitioner’s post-conviction 26 petition was also taken off calendar in December 2000 and directed the district court to place his petition 27 back on calendar as well. (Id.) 28 / / /

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1 STATE POST-CONVICTION (Cont’d) 2 Following the directive from the Nevada Supreme Court, two evidentiary hearings were held 3 before the Honorable Donald M. Mosley on September 7, 2007 and November 30, 2007. (CR 16, Exs. 4 91 and 93.) Petitioner was present throughout these hearings, appearing in proper person. (Id.) 5 The Findings of Fact, Conclusions of Law and Order was filed on February 8, 2008. (CR 16, Ex. 6 96.) Notice of Entry of Decision and Order was mailed to Petitioner on February 11, 2008. (CR 16, Ex. 7 97.) 8 A timely pro se Notice of Appeal from the denial of the post-conviction petition was filed on 9 March 6, 2009. (CR 16, Ex. 99.) The Nevada Supreme Court docketed this appeal as case number 10 50736. 11 On September 5, 2008, the Nevada Supreme Court filed an Order of Reversal and 12 finding that the district court erred in not appointing counsel to represent Petitioner in the post- 13 conviction proceedings and also finding that the two evidentiary hearings held did not fully address 14 Petitioner’s claims. (CR 16, Ex. 100.) Remittitur issued on September 30, 2008. (CR 16, Ex. 101.) 15 Following remand, a hearing was held on September 18, 2008, before the Honorable Donald M. 16 Mosley. (CR 13, Ex. 1.) At the hearing, Attorney Kristina Wildeveld was appointed to represent 17 Petitioner. (Id.) 18 On January 11, 2010, Petitioner filed Supplemental Points and Authorities in Support of Petition 19 for Writ of Habeas Corpus (Post-Conviction), jointly with his co-defendant. (CR 16, Ex. 104.) A 20 Supplement to Petitioner’s Supplement was filed on January 28, 2010, attaching an Affidavit of 21 Dayomashell David Aguilar. (CR 16, Ex. 106.) 22 Evidentiary hearings were held on June 25, 2010 and December 3, 2010, before the Honorable 23 Donald M. Mosley. (CR 16, Exs. 109-110.) Petitioner was present throughout both of these hearings 24 with Attorney Wildeveld. (Id.) 25 Two timely pro se Notices of Appeals were filed on December 9, 2010. (CR 16, Exs. 111-112.) 26 The Nevada Supreme Court docketed this appeal as case number 57356. 27 The Findings of Fact, Conclusions of Law and Order was filed on March 1, 2011. (CR 16, Ex. 28 114.) Notice of Entry of Decision and Order was mailed to Petitioner on March 8, 2011 (CR 16, Ex.

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1 115.) 2 A third timely pro se Notice of Appeal was filed on March 17, 2011. (CR 16, Ex. 119.) 3 On September 20, 2011, Petitioner filed a Motion to Consolidate Appeals and for Extension of 4 Time wherein he sought to consolidate his post-conviction appeal with his co-defendant’s. (CR 16, Ex. 5 121.) On September 22, 2011, the Nevada Supreme Court granted the motion. (CR 16, Ex. 122.) 6 Appellant’s Opening Brief was filed on October 14, 2011. (CR 16, Ex. 123.) 7 On November 2, 2011, Petitioner filed a Supplement to Defendant’s Brief adding the signature 8 of his attorney, Kristina Wildeveld to Appellant’s Opening Brief. (CR 16, Ex. 124.) 9 Respondent’s Answering Brief was filed on November 10, 2011. (CR 16, Ex. 125.) A Reply 10 Brief was not filed by Petitioner or his co-defendant. 11 On May 9, 2012, the Nevada Supreme Court filed an Order of Affirmance, denying Petitioner 12 relief on appeal. (CR 16, Ex. 126.) Remittitur issued on June 4, 2012. (CR 16, Ex. 129.) 13 FEDERAL POST-CONVICTION 14 Petitioner mailed his Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a 15 Person in State Custody in the instant action on June 5, 2012. (CR 9.) 16 Petitioner requested appointment of counsel and an evidentiary hearing on June 20, 2012. (CR 17 3.) 18 Petitioner requested to proceed in forma pauperis on July 16, 2012. (CR 5.) 19 On November 6, 2012, this Court filed an Order granting Petitioner in forma pauperis status and 20 appointment of counsel.2 (CR 8.) 21 On December 12, 2012, petitioner filed a First Amended Petition and exhibits in support of the 22 petition (CR 12, 13-16). Petitioner also moved for leave to file a second amended petition, which was 23 granted (CR 17, 20). 24 On June 6, 2013, Jonathan M. Kirshbaum appeared as substitute counsel. 25 This second amended petition follows. 26 27 2 On May 13, 2013, this Court granted Gilbert’s motion for assignment of counsel and, on 28 May 15, 2013, appointed Mary Lou Wilson as counsel. Aguilar v. Baker, et al., 3:12-cv-00397-MMD- WGC. Counsel in that case had 90 days from the date of assignment to file an amended petition.

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1 II. 2 STATEMENT OF EXHAUSTION 3 Grounds One through Four were presented to, and ruled upon by, the Nevada Supreme Court in 4 the direct appeal from the judgment of conviction. (CR 15, Exs. 64-70.). Grounds Five through Nine 5 and Twelve were presented in the state post-conviction proceedings and were ruled upon by the Nevada 6 Supreme Court (Exs. 73-82; 92-98; 104-14; 123-26). 7 III. 8 GROUNDS FOR RELIEF 9 GROUND ONE 10 PETITIONER WAS DENIED HIS RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION 11 WHEN THE TRIAL COURT IMPROPERLY DENIED THE DEFENSE REQUEST TO CHARGE THE JURY ON ITS THEORY OF THE DEFENSE. 12 13 Federal due process entitles a defendant to an instruction on his theory of defense. U.S. Const. 14 amends. V, VI, XIV. Further, subsection (2) of N.R.S. 175.161 provides, “In charging the jury, the judge 15 shall state to them all such matters of law the judge thinks necessary for their information in giving their 16 verdict.” Subsection (3) of N.R.S. 175.161 provides, “Either party may present to the court any written 17 charge, and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, 18 it must be refused.” 19 Petitioner and his brother Gilbert Aguilar (“Gilbert”) were charged with, inter alia, first-degree 20 murder and were tried together (CR 13, Ex. 4; CR. 14, Exs. 31-41). On the eighth day of trial, after the 21 close of evidence, the parties discussed the jury instructions (CR 14, Ex. 40 at 2). Gilbert’s attorney, 22 William Wolfbrandt, raised several objections to the charges and offered proposed charges; Curtis 23 Brown, Petitioner’s attorney, joined Wolfbrandt’s proposed charges (Id. at 8, 11). 24 Among the charges, Wolfbrandt proposed a charge that took language from Longoria v. State, 25 99 Nev. 754, 670 P.2d 939 (1983). According to that case, there were “three types of evidence [that] 26 bear on the elements of premeditation and deliberation, defendant’s planning activity, their prior 27 relationship with the victim, and the manner of killing as it bears upon a preexisting reflection to take 28 the victim’s life in a particular way” (CR 14, Ex. 40 at 9-10). Wolfbrandt asserted that the proposed

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1 charge, which incorporated this language from Longoria, would provide the jury “a little more guidelines 2 as to what they can consider in arriving at their decision as to whether or not premeditation exists or does 3 not exist in this case” (Id. at 10). He noted that other instructions related to aiding and abetting and 4 conspiracy that had been included in the instructions provide similar guidance to the jury on how to 5 determine those elements (Id. at 10-11). He emphasized that the instruction was not seeking to change 6 the definition of premeditation, only to provide guidance to the jury on how to determine this particular 7 element (Id. at 212). 8 The court rejected the request, saying that the Nevada Supreme Court had never specifically 9 approved this language for inclusion in the premeditation instruction (CR 14, Ex. 40 at 11). 10 The court’s rejection of the proposed charge violated petitioner’s due process right to have an 11 instruction on his theory of the defense. The proposed charge was an accurate statement of the law as 12 set forth in Longoria. See Longoria, 670 P.2d at 940 (“It has been stated that three types of evidence 13 bear on the elements of premeditation and deliberation—defendant's planning activity, his prior 14 relationship with the victim, and the manner of killing as it bears upon a pre-existing reflection to take 15 the victim's life in a particular way.”) (citing People v. Anderson, 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 16 P.2d 942 (1968)). 17 Moreover, this proposed charge was applicable to this case based on the evidence presented at 18 trial. The issue of premeditation was a central issue at trial, resting at the heart of the defense (See, e.g., 19 CR 14, Ex. 40 at 84-85). There was little to no evidence of any planning activity to commit the specific 20 murder. There was no evidence of a prior relationship between the Aguilars and the victim. To the 21 contrary, the evidence presented at trial was that Petitioner and Gilbert fired their weapons seemingly 22 in a random fashion in a heated response to an incident that had occurred minutes before at a 7-Eleven. 23 It is reasonable to infer that this anger was not directed at the victim due to the lack of any prior 24 relationship with him. The victim was hit by only one bullet out of the many that were fired in many 25 directions in a short amount of time prior to the arrival of the police. Thus, because the proposed charge 26 was clearly pertinent to the case, the court had a constitutional obligation to provide it. The Nevada 27 Supreme Court’s decision rejecting this claim was an unreasonable application of clearly established 28 law. Because the evidence of premeditation was weak and this proposed instruction went directly to that

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1 issue, the error cannot be considered harmless. The petition should be granted and the conviction and 2 sentence vacated. 3 GROUND TWO 4 PETITIONER’S RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION 5 WERE VIOLATED BASED ON THE IMPROPER JURY INSTRUCTIONS FOR PREMEDITATION, WILLFULNESS AND DELIBERATION. 6 A. First-Degree Murder Instruction Relieved State of Proving All the Elements of the Crime 7 and Infected the Trial with Unfairness 8 Under Nevada law, the primary definition of first-degree murder is a murder “perpetrated by 9 means of poison, lying in wait or torture, or by any other kind of willful, deliberate, and premeditated 10 killing.” N.R.S. 200.030. This statutory definition of murder – which has remained the same since the 11 time of petitioners’s alleged offense in 1996 – requires proof of three separate elements: the prosecution 12 must prove that the killing was (1) willful, (2) deliberate, and (3) premeditated. Id. Nevada’s caselaw, 13 based on the clear wording of the statute, has recognized that willfulness, deliberateness, and 14 premeditation represent three separate elements. See, e.g., Hern v. State, 97 Nev. 529, 635 P.2d 278, 280 15 (Nev. 1981) (“It is clear from the statute that all three elements, willfulness, deliberateness, and 16 premeditation, must be proven beyond a reasonable doubt before an accused can be convicted of first 17 degree murder.”). 18 Between 1992 and 2000, however, Nevada courts used a jury instruction that essentially 19 eliminated two of these elements. The instruction told the jury that if they found that the killing was 20 “premeditated” then the act constituted a “willful, deliberate and premeditated murder.” The instruction, 21 which was endorsed in a case called Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (Nev. 1992), read: 22 Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or at the time of the killing. 23 Premeditation need not be for a day, an hour, or even a minute. It may be as 24 instantaneous as successive thoughts of the mind. For if the jury believes from the evidence that the act constituting the killing has been preceded by and has been the result 25 of premeditation, no matter how rapidly the premeditation is followed by the act constituting the killing, it is willful, deliberate, and premeditated murder. 26 27 This very same instruction was provided at the 1997 trial in this case as juror instruction number 17 (CR 28 14, Ex. 42, Instruction No. 17).

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1 Petitioner and his brother Gilbert Aguilar (“Gilbert”) were tried jointly for first-degree murder. 2 Prior to the court reading the instructions to the jury, Gilbert’s attorney, William Wolfbrandt, and 3 Petitioner’s attorney, Curtis Brown, jointly objected to the definition of premeditation in instruction 17 4 (CR 14, Ex. 40 at 5-6, 8). Brown submitted a proposed instruction that sought to separately define 5 “premeditation” and “deliberation” (Id. at 6). Wolfbrandt further argued that there are three elements 6 that elevate a killing to a first-degree murder: willful, deliberate, and premeditation (Id. at 8). However, 7 instruction 17 only defined premeditation and indicated that a finding of premeditation presupposes that 8 the killing was willful and deliberate (Id.). He acknowledged that the Nevada Supreme Court had 9 rejected this argument in the “Kedric Powell” case, but the defense wanted to preserve the argument 10 because “the federal system” could “reverse it and allow - - and authorize this instruction” (Id. at 8-9). 11 Brown added that the objection was also under the Sixth, Eighth, and Fourteenth Amendments in order 12 to “federalize” the issue (Id. at 9). The prosecutor pointed out that the Nevada Supreme Court had 13 approved the instruction in Kazalyn, among other cases (Id. at 6-7). The court decided that it was going 14 to keep instruction 17 unaltered because it was the “formally approved” instruction (Id. at 7). Instruction 15 17, the Kazalyn instruction, was then read to the jury (CR 14, 42, Instruction No. 17). 16 This instruction violated petitioner’s due process rights under the Fifth and Fourteenth 17 Amendments. The instruction improperly blurred the line between first and second degree murder. Its 18 failure to distinguish between the three separate elements of first-degree murder relieved the State of the 19 burden of proving every statutory element of first-degree murder beyond a reasonable doubt. See Francis 20 v. Franklin, 471 U.S. 307 (1985), Sandstrom v. Montana, 442 U.S. 510 (1979) and In re Winship, 397 21 U.S. 358 (1970). See also Chambers v. McDaniel, 549 F.3d 1191, 1193-94, 2000 (9th Cir. 2008); Polk 22 v. Sandoval, 503 F.3d 903, 909, 911 (9th Cir. 2007); but see Babb v. Lozowsky, 704 F.3d 1246, 1254-56 23 (9th Cir. 2013). Further, this improper instruction so infected the trial with unfairness that Petitioner was 24 denied due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991). The question of whether or not the 25 shooting in this case was a first-degree, as opposed to a second-degree, murder was one of the central 26 issues at trial. Yet, the State was relieved of its obligation of separately proving two elements that 27 elevated the crime to a first-degree murder. The Nevada Supreme Court’s decision upholding this 28 instruction was both contrary to, and an unreasonable application of, clearly established law. Further,

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1 this error prejudiced petitioner, and had a substantial and injurious effect on the jury’s verdict. The 2 petition must be granted and the conviction and sentence vacated. 3 B. The Nevada Supreme Court Violated Due Process When It Failed to Apply Byford to Petitioner’s Case 4 5 The Nevada Supreme Court itself has recognized that the Kazalyn instruction fails to correctly 6 state the elements established by state law. When the Nevada Supreme Court was asked to consider the 7 propriety of the instruction in Byford v, State, 994 P.2d 700, 712 (Nev. 2000), the Court realized that 8 the instruction “blurs the distinction between first and second degree murder” by failing to provide any 9 independent definition for deliberation or willfulness. Id. at 713. The Court abrogated the instruction, 10 and ordered that future prosecutions be governed by instructions that separately defined all three 11 elements. Id. 12 Whether the ruling in Byford is characterized as either a clarification or a change in state law or 13 as a change in state law that implicated a constitutional right, the Nevada Supreme Court was obligated 14 to apply it to non-final cases such as petitioner’s. Babb v. Lozowsky, 704 F.3d 1246, 1256-59 (9th Cir. 15 2013) (clearly established law dictates that change in law must be applied to non-final cases; clarification 16 in law applies to cases that are both non-final and final). Indeed, the Nevada Supreme Court has 17 acknowledged that, to the extent that Byford concerned a change in state law, it needed to be applied as 18 a matter of due process to all of those cases that were not yet final at the time it was decided. Nika v. 19 State, 124 Nev. 1272, 1287, 198 P.3d 839, 850 (2008). Petitioner’s conviction was not yet final at the 20 time that Byford was decided. The Nevada Supreme Court has specifically held that a conviction does 21 not become final until the time for filing a petition to the United States Supreme Court has expired. See 22 Nika, 124 Nev. at 1284 n.52, 198 P.3d at 848 n.52 (“A conviction becomes final when the judgment of 23 conviction has been entered, the availability of appeal has been exhausted, and a petition for certiorari 24 to the United States Supreme Court has been denied or the time for such a petition has expired.”). 25 Petitioner’s conviction was affirmed by the Nevada Supreme Court on December 20, 1999. The time 26 for seeking certiorari expired on March 19, 2000. Byford was decided on February 28, 2000. Petitioner 27 had presented a challenge to the Kazalyn instruction and the first-degree murder charge on direct appeal. 28 The Nevada Supreme Court was obligated to apply Byford to petitioner’s case.

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1 Thus, the failure of the Nevada Supreme Court to apply Byford, which narrowed the definition 2 of first-degree murder, and find error in the Kazalyn instruction given at petitioner’s trial violated his 3 due process rights. Bunkley v. Florida, 538 U.S. 835 (2003); Fiore v. White, 531 U.S. 225 (2001); 4 Griffith v. Kentucky, 479 U.S. 314, 324 (1987); Nika, 124 Nev. at 1287, 198 P.3d at 850. Further, this 5 error prejudiced Petitioner, and had a substantial and injurious effect on the jury’s verdict. The petition 6 should be granted and the conviction and sentence vacated. 7 GROUND THREE 8 PETITIONER’S CONVICTION IS INVALID UNDER FEDERAL CONSTITUTIONAL GUARANTEES OF DUE PROCESS OF LAW 9 BECAUSE THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY ON THE MENS REA REQUIRED TO 10 FIND PETITIONER LIABLE FOR MURDER. U.S. CONST. AMENDS. V, VIII, XIV. 11 12 Due process protects the accused against conviction except upon proof beyond a reasonable 13 doubt of every fact necessary to constitute the crime with which he is charged. U.S. Const. amends. V 14 and XIV. A jury instruction that provides a lesser mens rea requirement has the effect of relieving the 15 State of its burden to prove every element of the crime beyond a reasonable doubt. 16 A. Aiding and Abetting 17 The trial court failed to instruct the jury of the mens rea required to find Petitioner liable as an 18 aider or abettor to murder. A person may be found liable as an aider or abettor to an offense only where 19 the State has proven beyond a reasonable doubt that the person had the specific intent to commit the 20 target offense. Sharma v. State, 56 P.3d 868 (Nev. 2002). See also Mitchell v. State, 149 P.3d 33, 38 21 (Nev. 2006) (holding Sharma applies retroactively). 22 Petitioner was charged under three separate theories of first-degree murder: (1) he was directly 23 involved in the shooting in a premeditated and deliberate act; (2) he aided and abetted his brother Gilbert 24 Aguilar (“Gilbert”), who was the one who actually shot the victim; and (3) he was vicariously liable as 25 a member of a conspiracy (CR 14, Ex. 42, jury instruction 3). However, the trial court’s instructions on 26 accomplice liability were defective because those instructions charged the jury to find Petitioner guilty 27 as an aider or abettor without finding that he had the specific intent to commit the crimes charged. 28 Rather, they charged the jury that it could find him guilty solely based on acts that were “reasonably

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1 foreseeable” (Id.). 2 Jury Instruction 9 grounded liability for an offense in “directly” committing an offense, “aid[ing] 3 or abet[ting]” an offense, and “directly or indirectly, counsel[ing], encourag[ing], hir[ing], 4 command[ing], induc[ing], or otherwise procur[ing] another to commit a crime” (CR 14, Ex. 42, 5 Instruction 9). Instruction 10 defined aiding and abetting as “help, assist or strengthen” and “encourage, 6 counsel, induce or assist.” (Id., Instruction 10). While Instruction Eleven instructed that mere presence 7 was not sufficient for a conviction, it also indicated that the jury could infer criminal intent from 8 “presence, companionship, and conduct before, during, and after the offense” (Id., Instruction 11). 9 Instruction 12 stated, “An aider or abeter is guilty not only of the offense he intended to facilitate or 10 encourage, but also of any reasonably foreseeable offense committed by the person he aids or abets” (Id., 11 Instruction 12) (emphasis added). 12 Critically, Petitioner’s attorney specifically objected to Instruction 12 (CR 14, Ex. 40 at 12). The 13 court acknowledged that the “sticking point were the words ‘reasonable foreseeable’. But I think that 14 is an accurate statement of the law, so I’ll give it” (Id. at 14). The court then provided the above 15 instructions to the jury. 16 All of these instructions fail to expressly or implicitly state that Petitioner could be found an aider 17 or abettor only if he had the specific intent to commit these crimes. To the contrary, they specifically 18 allowed a conviction without a showing that Petitioner himself harbored the specific intent to murder 19 the victim so long as the murder was “reasonably foreseeable.” These instructions were not cured by 20 other instructions. No other guilt-phase instruction addressed the mental state that Petitioner was 21 required to possess to be liable as an aider or abettor. 22 Even though Sharma was decided after Petitioner’s conviction became final, the instructions in 23 Petitioner’s case still must be considered defective. The Nevada Supreme Court has held that Sharma 24 applies retroactively because it does not announce a new rule of law. Mitchell, 149 P.3d at 38. 25 Further, this error cannot be considered harmless. There was little to no evidence that Petitioner 26 aided or abetted in the shooting of the victim, Mark Emerson, or that Petitioner had the specific intent 27 to commit a first-degree murder of Emerson. Terry Maldonado testified at trial that, after she heard gun 28 shots outside her apartment, she walked outside her apartment and saw a man who fit Petitioner’s

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1 description standing at the western edge of a grassy field and shooting in a westerly direction away from 2 Emerson’s apartment, which was located to the southeast of Maldonado’s apartment (CR 14, Ex. 36 at 3 16, 32-34). She believed that this man continued to move to the west after she first saw him (Id. at 38- 4 41). Maldonado’s testimony established that Petitioner was not shooting towards Emerson’s apartment 5 and, during the shooting, was actually walking away from the apartment. 6 Gilbert’s wife, Annette O’Neal, testified that she was out in the grassy field with Petitioner and 7 Gilbert, many feet away from Emerson’s apartment (CR 14, Ex. 36 at 72-76). She did not see either of 8 them moving towards the apartment (Id. at 76). She saw lights from police cars and, in response, began 9 running back to her apartment at 840 Mantis Way through the grassy area (Id. at 76-77). While she was 10 running, Petitioner ran past her towards the apartment and arrived at the apartment before her (Id. at 77). 11 She did not see what Gilbert did after she started running and he arrived at the apartment after what 12 “seemed like a long time” (Id. at 76, 79). 13 It was clear that the shooting of Emerson occurred in the interval in between when O’Neal and 14 Petitioner ran away from the grassy area and Gilbert returned to their apartment. Marla Emerson, the 15 victim’s wife, heard a series of gunshots and went to her bedroom with her children. Her husband, Mark 16 Emerson, grabbed the phone and then went out on their patio. She then heard another series of gunshots, 17 went to her patio, and saw her husband on the ground (CR 14, Ex. 36 at 168-69). A man holding a rifle 18 was standing behind her husband. She identified Gilbert as this man (Id. at 169-71). Emerson ran back 19 inside and the police arrived on foot soon afterwards (Id. at 172-77). 20 Officer Chad Brown testified that, when he arrived at the scene, he engaged in a gun battle with 21 a bald, white man wearing a black tank top (CR 14, Ex. 37 at 87-88). Brown first saw this man as he 22 was standing on a corner just to the east of Emerson’s apartment. At the time, the man was shooting in 23 a westerly direction towards Emerson’s apartment (Id. at 88). Brown told the man to drop the gun and 24 the man pointed the gun at Brown and fired (Id. at 88-89). Brown returned fire (Id. at 89). Two bullets 25 fired from Brown’s gun were recovered inside a wall to the east of the patio door of Emerson’s 26 apartment (CR 14, Ex. 38 at 71; CR14, Ex. 39 at 65-66). The man ran north down Mantis into an 27 apartment at 840 Matis (CR 14, Ex. 38 at 90). Brown later identified Gilbert as this man from a 28 surveillance video taken from a 7-Eleven store (CR 14, Ex. 37 at 91-92). Brown’s testimony confirmed

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1 that Gilbert was near Emerson’s apartment at the end of the incident, at a time when O’Neal had testified 2 that she and Petitioner had already fled the area. 3 Thus, there was no evidence that Petitioner was anywhere near Emerson’s apartment at the time 4 that he was shot. Indeed, the evidence showed that he fired his weapon away from the apartment, his 5 focus was on something to the west of the grassy area, and he was literally running away from the scene, 6 and was most likely back at the apartment, at the time that the shooting occurred. At bottom, there was 7 little to no evidence that Petitioner harbored the specific intent to commit a first-degree murder of 8 Emerson. 9 Despite the lack of evidence of a specific intent, the jury could have convicted Petitioner on a 10 theory of accomplice liability based on the murder being “reasonably foreseeable” without a finding that 11 he had the specific intent to commit the charged crimes. Because there is a reasonable likelihood that 12 the jury would have interpreted the instructions as not requiring the specific intent as required by state 13 law, the error was not harmless beyond a reasonable doubt and has a substantial and injurious effect on 14 the verdict. The petition should be granted and the conviction and sentence vacated. 15 B. Conspiracy 16 In Nevada, a defendant may not be held criminally liable for the specific intent crime committed 17 by a coconspirator simply because that crime was a natural and probable consequence of the object of 18 the conspiracy. Bolden v. State, 121 Nev. 908, 922, 124 P.3d 191, 200 (2005). To prove a specific 19 intent crime, the State must show that the defendant actually possessed the requisite statutory intent. Id., 20 121 Nev. at 922, 124 P.3d at 200-01. 21 Petitioner was charged under three separate theories of first-degree murder: (1) he was directly 22 involved in the shooting in a premeditated and deliberate act; (2) he aided and abetted his brother Gilbert 23 Aguilar (“Gilbert”), who shot the victim; and (3) he was vicariously liable as a member of a conspiracy 24 (CR 14, Ex. 42, jury instruction 3). However, the trial court’s instructions on conspiratorial liability did 25 not indicate that the jury needed to find that Petitioner harbored the specific intent to commit a first- 26 degree murder. Rather, they charged the jurors that they could find him guilty of any act done in 27 furtherance of the common design. 28 / / /

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1 The trial court specifically instructed the jury that one of the theories of first-degree murder was 2 that he was vicariously liable for the acts of other members of a conspiracy (CR 14, Ex. 42, Instruction 3 3). However, the indictment did not limit the conspiracy to just the first-degree murder. Rather, the 4 indictment alleged that he would be vicariously liable for the murder if he entered into a conspiracy to 5 commit any of the other charged crimes (Id.). 6 The instructions given to the jury on conspiracy were consistent with the charges in the 7 indictment. Jury instruction 4 stated, “Conspiracy is an agreement or mutual understanding between two 8 or more persons to commit a crime. To be guilty of conspiracy, a defendant must intend to commit, or 9 to aid in the commission of, the specific crime agreed to” (CR 14, Ex. 42, Instruction 4). This 10 instruction added, “A conspiracy to commit a crime does not end upon the completion of the crime. The 11 conspiracy extends even to affirmative acts of concealment” (Id.). Jury instruction 6 stated, “Where the 12 purpose of the conspiracy is to commit a dangerous felony each member runs the risk of having the 13 venture end in homicide, even if he has forbidden the others to make use of deadly force” (Id., 14 Instruction 6). Jury instruction 8 stated, “Where several parties join together in a common design to 15 commit any unlawful act, each is criminally responsible for the acts of his confederates committed in 16 furtherance of the common design. In contemplation of law, the act of one is the act of all” (Id., 17 Instruction 8). Although not specifically directed at conspiracy, instruction 12 stated, “An aider or abeter 18 is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably 19 foreseeable offense committed by the person he aids or abets” (Id., Instruction 12). 20 All of these instructions fail to expressly or implicitly state that Petitioner could be found 21 vicariously liable for the specific-intent crimes of a co-conspirator only if he had the specific intent to 22 commit these crimes. To the contrary, they specifically allowed a conviction without a showing that 23 Petitioner himself harbored the specific intent to murder the victim. These instructions were not cured 24 by other instructions. No other guilt-phase instruction addressed the mental state that Petitioner was 25 required to possess to be vicariously liable as a co-conspirator. 26 In fact, the prosecution specifically argued to the jury that Petitioner could be found guilty for 27 the murder as a co-conspirator based on whether an action of a co-conspirator is “reasonably 28 foreseeable.” The prosecutor argued, “And so when two people are involved in an agreement to commit

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1 a crime, no matter what actions are taken as long as they are reasonably foreseeable, each is - - they’re 2 equally responsible” (CR 14, Ex. 40 at 20-21). He added, “As long as there is an agreement to commit 3 the crime, each is equally responsible and treated as a principal as if they actually and directly committed 4 the crime” (Id. at 22). He emphasized again that, so long as there is an agreement, any participant is 5 “equally responsible for everything that happened as long as it’s reasonably foreseeable” (Id.). 6 For these reasons, Petitioner’s due process rights were violated. The evidence that Petitioner had 7 conspired to specifically murder the victim was non-existent. This error prejudiced Petitioner and had 8 a substantial and injurious effect on the jury’s verdict. The petition must be granted and the conviction 9 and sentence vacated. 10 GROUND FOUR 11 PETITIONER’S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION WERE 12 VIOLATED WHEN THE TRIAL COURT ADMITTED HIGHLY PREJUDICIAL AND IRRELEVANT EVIDENCE OF A BAYONET AND MACHETE BEING 13 FOUND IN PETITIONER’S APARTMENT. 14 The improper introduction of evidence violates a defendant’s rights to due process and a fair trial 15 if its admission renders a trial fundamentally unfair. 16 The indictment charged Petitioner and his brother Gilbert Aguilar (“Gilbert”) with exclusively 17 firearm-related crimes (CR 13, Ex. 4). At trial, George Trombley testified that he managed the property 18 in which Petitioner’s girlfriend, Gloria Olivares lived (CR 14, Ex. 39 at 2-3). Oliveres lived at 840 19 Mantis, apartment 2 (Id.). On August 8, 1996, the day after the shooting, Trombley went inside the 20 apartment to assess damage and secure the unit (Id. at 3). He had been told that Metro police had 21 forcibly entered the apartment, including breaking a window and forcing the door open, and had even 22 fired a tear gas rocket into the apartment (Id. at 3-4, 7). Trombley went inside the apartment on that 23 date. Once inside the apartment, Trombley found several rounds of ammunition, a large Bowie knife 24 and a bayonet (Id. at 5). He observed the large knife and bayonet laying next to each other in one of the 25 bedrooms (Id.). Trombley brought these items to the Sergeant at the Metro police Southeast Substation 26 (Id.). The State sought to admit these items into evidence. Attorneys for both Aguilar brothers objected 27 on relevance grounds (Id. at 6). The court overruled the objection and admitted these two weapons into 28 evidence (Id.).

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1 Sergeant Howard Hall testified that, on August 8, 1996, Trombley brought these items to his 2 substation, informing the officer that they were connected to a shooting from the night before (CR 14, 3 Ex. 39 at 10-11). Hall confirmed that Trombely had brought in a “machete with a sheath” and a “metal 4 rifle-mounted bayonet” (Id. at 11). Hall identified the machete and bayonet at trial (Id. at 12-13). Ricky 5 Workman, a senior crime scene analyst, also identified the machete and bayonet in a photo of one of the 6 bedrooms at 840 Mantis, apartment 2 (CR 14, Ex. 38 at 106). 7 The defense made a record of its objection to the admission of the machete and bayonet (CR 14, 8 Ex. 39 at 114). Petitioner’s attorney, Curtis Brown, objected to the relevance and prejudicial impact of 9 the evidence (Id.). He argued that the evidence “demonstrat[es] that there might be a tendency to have 10 weapons or something that might attribute to his character that is not relevant to this case” (Id.). 11 Gilbert’s attorney, William Wolfbrandt, added that the case was about a shooting, not about an attack 12 by any other weapon (Id. at 114-15). The court stated that the jury was allowed to give it whatever 13 weight they wanted to give it (Id. at 115). 14 The admission of the evidence of these other two weapons violated petitioner’s right to due 15 process and a fair trial. All of the charges related exclusively to the use of firearms. There was 16 absolutely no allegation that either a machete or a bayonet had been involved. There were no charges 17 related to the possession of these weapons. The fact that these blades were found in an apartment in 18 which Petitioner had been living had no tendency whatsoever to establish that the crimes of murder, 19 conspiracy or discharging a firearm were committed. Moreover, the State’s attempt to link Petitioner 20 to additional weapons other than those involved in the shooting could only serve to unduly prejudice the 21 jury against him. The admission of these irrelevant weapons undermined the fundamental unfairness 22 of the trial. The petition should be granted and the conviction and sentence vacated. 23 GROUND FIVE 24 PETITIONER WAS DENIED HIS RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO 25 THE UNITED STATES CONSTITUTION WHERE COUNSEL FAILED TO INVESTIGATE AND PRESENT EVIDENCE TO THE JURY REGARDING 26 OFFICER BRIAN DEBECKER’S CONNECTION TO THE SHOOTING. 27 Under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant has 28 the right to the effective assistance of trial counsel. To establish a claim of ineffective assistance of

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1 counsel, a petitioner must show: (1) that the counsel’s performance was professionally unreasonable: 2 and (2) that there “is a reasonable probability that, but for the counsel’s unprofessional errors, the result 3 of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). “A 4 reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Id. The 5 federal constitutional right to the effective assistance of counsel includes the duty of counsel to conduct 6 an adequate pretrial investigation. 7 The State’s main theory at trial was that a bullet from a B-West assault rifle killed the victim, 8 Mark Emerson. Although the bullet that struck the victim was never identified as coming from any 9 particular weapon, two bullets that were recovered in the archway of the victim’s patio, where the victim 10 had been shot, were identified as coming from the B-West rifle (CR 14, Ex. 39 at 69-70). It was the 11 prosecution’s theory at trial that Gilbert Aguilar had been firing the B-West rifle during the incident (CR 12 14, Ex. 40 at 25). 13 At the evidentiary hearing on petitioner’s state post-conviction petition, it was established that 14 the B-West rifle was traced back to Officer Brian Debecker of the Las Vegas Metropolitan Police 15 Department, but counsel did not investigate this information. Petitioner’s lead trial attorney, Roger 16 Hillman acknowledged that he knew before trial that Officer Debecker owned one of the weapons 17 involved in the crime (CR 16, Ex. 109 at 56-57). It was his understanding that the weapon had been 18 stolen from him, but Debecker had “possibl[y]” not reported it missing or stolen prior to the time of the 19 instant crimes (Id. at 57). Hillman told Petitioner this information; Hillman acknowledged that it fit 20 within Petitioner’s proposed defense that he had been set up (Id. at 57-58). Hillman spoke to an 21 investigator about it, but he did not conduct any further investigation, such as attempting to speak to 22 Debecker (Id. at 58-59). Debecker’s possession of the rifle was not an issue that was raised at trial (Id. 23 at 60-61). William Wolfbrandt, Gilbert’s lead trial attorney, did not recall doing any investigation into 24 Debecker’s ownership of the B-West rifle or whether there was any connection between Debecker and 25 the victim (CR 16, Ex. 110 at 13, 19, 21-22). He admitted that it was not often where a weapon owned 26 by a police officer was involved in a murder (Id. at 12). 27 Counsel’s failure to investigate this issue and present this evidence at trial violated petitioner’s 28 right to the effective assistance of counsel. As Gilbert’s trial attorney acknowledged, it was highly

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1 unusual that a weapon owned by a police officer was connected to a murder. Such an unusual fact 2 demanded that a full investigation be conducted. This is particularly true where, as trial counsel 3 admitted, it was consistent with Petitioner’s proposed defense. If the defense had conducted an adequate 4 investigation as required under the constitution, it would have potentially revealed a connection between 5 Debecker and the crime. Further, these facts standing alone should have been presented to the trial jury 6 as they would have established a reasonable doubt of Petitioner’s guilt in the crime. It was sufficient 7 evidence to present an alternative suspect theory to the jury. The petition should be granted and the 8 conviction and sentence vacated. 9 GROUND SIX 10 PETITIONER WAS DENIED HIS RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO 11 THE UNITED STATES CONSTITUTION WHERE COUNSEL FAILED TO PREVENT THE ADMISSION OF THE TAINTED, UNRELIABLE AND 12 SUGGESTIVE EXTRA-JUDICIAL AND IN-COURT PHOTOGRAPHIC LINEUP IDENTIFICATION. 13 14 Under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant has 15 the right to the effective assistance of trial counsel. To establish a claim of ineffective assistance of 16 counsel, a petitioner must show: (1) that the counsel’s performance was professionally unreasonable: 17 and (2) that there “is a reasonable probability that, but for the counsel’s unprofessional errors, the result 18 of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). “A 19 reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Id. 20 The most compelling evidence presented at trial to establish that Gilbert Aguilar had committed 21 the murder was the identification of a trial witness, Joyce Brown, who identified him as the man she had 22 seen walking away from the murder scene shortly after the murder occurred. At trial, Detective James 23 Michael Franks testified that he created a six-pack photograph lineup using booking photos of six 24 individuals, including Gilbert, who was wearing jail or prison clothing (CR 14, Ex. 39 at 131-32). This 25 lineup was admitted into evidence and shown to the jury (Id. at 132). Detective Franks testified that he 26 showed the lineup to Brown, who did not identify anybody when she first looked at the lineup (Id. at 27 133). According to Detective Franks, Brown kept referring to the bald man (Id.). Brown had testified 28 that the man she saw walking away from the scene was bald with a ponytail (CR 14, Ex. 35 at 70, 82,

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1 114). The detective reminded her that the perpetrator’s hair style could have changed. More 2 specifically, he told her that hair grows out everyday and that, unless an individual cuts it, he is not going 3 to be bald everyday (CR 14, Ex. 39 at 133). At that point, Brown picked Gilbert (Id.). Petitioner’s and 4 Gilbert’s trial attorneys made no pre-trial motions to suppress the line-up’s admission into evidence. 5 Petitioner was deprived of the effective assistance of counsel based on the failure of counsel to 6 move to preclude this impermissibly suggestive identification procedure. Detective Franks should not 7 have prompted witnesses to identify Gilbert from the line-up, nor should he have reminded a witness 8 about any potentially changed hairstyles, particularly in the suggestive manner that it was done. The 9 inclusion of a photograph of Gilbert wearing jail or prison clothing was unnecessarily suggestive and 10 highly prejudicial. The prejudice also infected Petitioner’s right to a fair trial because the trials were 11 joined, and other evidence put the brothers together at or near the time of the shooting. His attorney’s 12 performance was clearly deficient in failing to object, and this deficient performance had a direct impact 13 on the outcome of the case. The petition should be granted and the conviction and sentence vacated. 14 GROUND SEVEN 15 PETITIONER WAS DENIED HIS RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO 16 THE UNITED STATES CONSTITUTION WHERE COUNSEL FAILED TO MOVE TO SUPPRESS THE ITEMS FOUND IN THE WARRANTLESS POLICE 17 ENTRY AND SEARCH OF PETITIONER’S RESIDENCE. 18 Under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant has 19 the right to the effective assistance of trial counsel. To establish a claim of ineffective assistance of 20 counsel, a petitioner must show: (1) that the counsel’s performance was professionally unreasonable: 21 and (2) that there “is a reasonable probability that, but for the counsel’s unprofessional errors, the result 22 of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). “A 23 reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Id. 24 The only physical evidence potentially tying Petitioner and his brother Gilbert Aguilar (“Gilbert”) 25 to the shooting of Mark Emerson were two guns found in the apartment of Petitioner’s girlfriend, Gloria 26 Olivares. Ballistics testing circumstantially linked the weapons to the shooting, and a police officer 27 testified that a palm print found on one of the guns matched Petitioner’s palm print (CR 14, Ex. 36 at 28 207; Ex. 39 at 66-77).

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1 Police searched Olivares’ residence after ostensibly obtaining her consent. The testimony at trial 2 was that, upon arriving on the scene, Officers Mark Dwiggins and Stewart Emry observed Petitioner and 3 Gloria Olivares (CR 14, Ex. 38 at 16, 48). The officers’ suspicions were aroused since Petitioner’s 4 clothes were wet, he had a bruise on his shoulder, and he appeared nervous (Id. at 24, 48-49). They 5 separated Olivares and Petitioner and spoke to them individually. The stories that they received from 6 them did not match up, so the officers detained Petitioner and asked Olivares for consent to search her 7 apartment “to rule her out as having any involvement in the incident” (Id. at 25-28, 49-50). However, 8 Olivares “wavered back and forth several times” (Id. at 50). On two separate occasions, Dwiggins filled 9 out consent to search cards for Olivares to sign, but she refused to sign them (Id.). Each time, Dwiggins 10 ripped up the card (Id.). Petitioner became agitated and began fighting with the officers (Id.). Officers 11 placed Petitioner in a “position of disadvantage,” angering Oliveres (CR 14, Ex. 38 at 51). She began 12 crying out that the police were beating Petitioner, so Dwiggins removed her from the scene (Id.). He 13 took her to his command post so that she could not see what was happening with Petitioner (Id.). He 14 continued to talk to Olivares, who was more cooperative once she was outside Petitioner’s presence, and 15 asked her if she would sign a consent to search card, which she finally agreed to do (Id. at 51, 55). A 16 copy of the card was admitted into evidence (CR 14, Ex. 38 at 52-54).3 Despite obtaining consent, a 17 SWAT team of officers forcibly entered the apartment (CR 14, Ex. 38 at 121; CR 14, Ex. 39 at 120-21). 18 George Trombley, the apartment manager, confirmed that the door of the apartment had been forcibly 19 opened, there was a broken window, and a tear gas rocket was found inside the apartment (CR 14, Ex. 20 39 at 2-4). 21 Two witnesses testified at trial that Petitioner lived at 840 Mantis, apartment 2, the apartment 22 that was searched. Joyce Brown testified that she lived at 848 Mantis, apartment 8 (CR 14, Ex. 35 at 23 65-66). The apartment was right across a walkway from 840 Mantis apartment 2 (CR 14, Ex. 35 at 68). 24 She said that Olivares, Petitioner, and Arlene Nelson lived in the apartment (CR 14, Ex. 35 at 68). She 25 would see Petitioner working on his car outside the apartment and estimated that she saw him every day 26 27 3 The only motion to suppress the search of Olivares’ residence was made on the basis of 28 the inadmissibility of a copy of the consent card as violating the “best evidence rule,” not on Fourth Amendment grounds.

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1 to every other day (CR 14, Ex. 35 at 69). Annette O’Neal was married to Gilbert (CR 14, Ex. 36 at 57). 2 She said that, at some point prior to August 7, 1996, she and Gilbert moved into 840 Matis, apartment 3 2, the apartment where Petitioner lived with Olivares (CR 14, Ex. 36 at 59-60). 4 At the evidentiary hearing on Petitioner’s post-conviction petition, his trial attorney, Roger 5 Hillman, testified that there was a potential suppression issue with respect to the search; he 6 acknowledged that Petitioner asked him to move to suppress based upon the illegality of the search of 7 the apartment (CR 16, Ex. 109 at 45, 91). However, Hillman did not file the motion based on his belief 8 that there was a lack of standing to litigate the issue (CR 16, Ex. 109 at 45, 91). He did not do any 9 investigation into whether Petitioner lived at the apartment (CR 16, Ex. 109 at 46). 10 Petitioner’s attorney was constitutionally ineffective for failing to move to suppress the weapons 11 based on the warrantless search of the apartment. Under the Fourth Amendment to the U.S. 12 Constitution, law enforcement generally needs a search warrant to conduct a legal search a person’s 13 residence. One of the exceptions to the warrant requirement of the Fourth Amendment is voluntary 14 consent. See Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968). Here, there were reasons to 15 believe that Olivares’ consent to search was far from voluntary. She refused consent on multiple 16 occasions, and, according to the officer, only granted consent after she became irate with the police and 17 was escorted back to the police station. These circumstances do not support a finding that she 18 voluntarily consented to the search. It also seems odd that, despite receiving consent to search and with 19 one of the potential suspects in custody, the officers forcibly entered the apartment, going so far as 20 shooting off a tear gas rocket into the apartment. The trial evidence clearly raised questions about the 21 validity of the search. Under these circumstances, petitioner’s attorney should have investigated and 22 pursued the circumstances leading to Olivares’ decision to grant consent to search. Further, there was 23 significant evidence that Petitioner did live in the apartment and had standing to raise the issue. Indeed, 24 the prosecutor sought to use the evidence found in the apartment, which included the guns, as well as 25 ammunition and other weapons, against Petitioner precisely on the theory that he was connected to the 26 apartment. Petitioner’s attorney was deficient in failing to litigate this issue and this unreasonable 27 performance prejudiced Petitioner. The suppression of the guns would have substantially impacted the 28 State’s case, likely changing the outcome of the trial. The petition should be granted and the conviction

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1 and sentence vacated. 2 GROUND EIGHT 3 PETITIONER WAS DENIED HIS RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO 4 THE UNITED STATES CONSTITUTION WHERE COUNSEL FAILED TO CHALLENGE INTRODUCTION OF AN EDITED 7-ELEVEN VIDEOTAPE. 5 6 Under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant has 7 the right to the effective assistance of trial counsel. To establish a claim of ineffective assistance of 8 counsel, a petitioner must show: (1) that the counsel’s performance was professionally unreasonable: 9 and (2) that there “is a reasonable probability that, but for the counsel’s unprofessional errors, the result 10 of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). “A 11 reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Id. 12 The State was permitted to admit a surveillance videotape from a 7-Eleven store located 13 approximately 200 yards from the murder scene (CR 14, Ex. 35 at 48-56). The video showed Petitioner 14 and his brother Gilbert Aguilar (“Gilbert”) gambling at the store and then leaving at 10:43 p.m. 15 according to the tape’s time stamp (CR 14, Ex. 35 at 56). The video established that the brothers had 16 time to leave the store, run to their residence to retrieve weapons, and then return to the area to begin 17 shooting their rifles, which resulted in the murder of Mark Emerson. The video shown to the jury began 18 at 10:17 p.m. on August 7, 1996, and ended at 12:40 a.m. on August 8, 1996 (CR 14, Ex. 35 at 48-56; 19 Ex. 169). 20 At the evidentiary hearing on Petitioner’s post-conviction petition, Michael Karstedt, a private 21 investigator, testified that the 7-11 videotape provided to the State for the day of the shooting would have 22 been unedited and twenty-four hours long (CR 16, Ex. 109 at 13-17). The video shown to the jury would 23 have been edited by the State into the forty-five minute version that was turned over to the defense and 24 shown at trial (CR 16, Ex. 109 at 18). 25 Trial counsel’s failure to object to the admission of this videotape represented constitutionally 26 deficient performance. Counsel never questioned the authenticity of the tape’s time stamp or editing 27 techniques utilized. No defense expert witness was utilized to test the reliability of the videotape’s time 28 stamp. Instead, trial counsel allowed the prejudicial videotape to be played to the jury without successful

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1 challenge lending evidentiary support to the State’s murder time-line. This deficient performance clearly 2 prejudiced Petitioner as the outcome of the trial would have been different had counsel raised the proper 3 objections to the video. The petition should be granted and the conviction and sentence vacated. 4 GROUND NINE 5 PETITIONER WAS DENIED HIS RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO 6 THE UNITED STATES CONSTITUTION WHERE COUNSEL FAILED TO INVESTIGATE AND PURSUE AN ALTERNATIVE SUSPECT THEORY. 7 8 Under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant has 9 the right to the effective assistance of trial counsel. To establish a claim of ineffective assistance of 10 counsel, a petitioner must show: (1) that the counsel’s performance was professionally unreasonable: 11 and (2) that there “is a reasonable probability that, but for the counsel’s unprofessional errors, the result 12 of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984). “A 13 reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Id. The 14 federal constitutional right to the effective assistance of counsel includes the duty of counsel to conduct 15 an adequate pretrial investigation. 16 Petitioner maintained to his attorneys that he and his brother Gilbert Aguilar were not the ones 17 who fatally wounded Mark Emerson, but were being set up (CR 16, Ex. 109 at 58). At trial, testimony 18 from several police officers established that the description of the person believed to have killed 19 Emerson was a white man with a shaved head (CR 14, Ex. 37 at 87, 131; CR 14, Ex. 38 at 23). 20 Petitioner clearly did not meet this description (CR 14, Ex. 38 at 23). The 7-11 video shows an 21 individual standing over Petitioner as he gambled and possibly stepping on his foot right before he left 22 (Ex. 169). This individual appeared to be a white man with very short hair (Id.). This man left the store 23 right before Petitioner, providing this individual plenty of time to do the shooting (Id.). 24 Petitioner’s trial attorneys did not make any attempt at identifying the man in the video who 25 matched the police’s description of the shooter (CR 16, Ex. 109 at 39, 44). The attorneys also did not 26 argue the alternative suspect theory to the jury. The existence of another person matching the description 27 of Emerson’s shooter seen in the area causing trouble on the day of the shooting would have been 28 powerful defense evidence to shed doubt on the State’s prosecution theory. This fact is especially

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1 persuasive when considering the fact that the bald guy was hovering over Petitioner as depicted in the 2 7-11 video just before the shooting spree. The failure of Petitioner’s trial counsel to investigate and 3 produce such potentially exculpatory evidence was deficient performance and clearly prejudiced 4 Petitioner. The petition should be granted and the conviction and sentence vacated. 5 GROUND TEN 6 PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH, SIXTH AND 7 FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN HE WAS FORCED TO WEAR A STUN BELT DURING TRIAL. 8 9 The Due Process Clause guarantees that a defendant has a right to remain free of physical 10 restraints that are visible to the jury. 11 On the first day of trial, Gilbert Aguilar’s attorney, William Wolfbrandt, objected to the visible 12 stun belts that the defendants were being forced to wear (CR 14, Ex. 31 at 3). Wolfbrandt stated that, 13 the prior week, the attorneys had met with bailiff and some of the transport officers as to security 14 concerns that court room staff had (CR 14, Ex. 31 at 3). He stated that they came into court that morning 15 and the attorneys saw that the defendants were wearing electronic belts (Id.). He described the belts: 16 “that battery pack is about a foot - - eight inches in each direction and looks like it’s about three to four 17 inches thick, and it’s pretty conspicuous” (Id.). He pointed out that Gilbert Aguilar had always made 18 court appearances and been respectful and police to the court (Id.). The attorneys warned him not to act 19 out in court (Id.). He pointed out that, if there had been outburst, the belt would be justified (CR 14, Ex. 20 31 at 4). But that had not occurred (Id.). He “ought to at least have the opportunity to go through this 21 trial without having that big contraption on the back of his shirt that’s readily seen - - able to be seen by 22 this jury” (Id.). He objected to the use of the belt (Id.). Petitioner’s attorney, Roger Hillman, joined in 23 the objection (Id.). Petitioner spoke to the court directly and stated that he had not done anything in 24 court to justify the use of the belt (CR 14, Ex. 31 at 7). The trial court failed to make any individualized 25 findings as to the need for each of the defendants to wear the belt, and instead noted only “my bailiff is 26 in charge of security in my department. It’s been his recommendation that both your clients be belted. 27 So they are belted.” (CR 14, Ex. 31 at 4). The court did not believe that the jury would see them when 28 the defendants were seated (Id.).

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1 The trial court’s decision to belt Petitioner violated his right to due process, to a fair trial and to 2 communicate with counsel under the Fifth, Sixth and Fourteenth Amendments to the United States 3 Constitution. The trial court made its decision based upon ex parte information presented by his bailiff, 4 failed to consider less restrictive alternatives, and failed to hold a hearing or make any factual findings 5 on the record to determine whether the stun belt was actually necessary. The restriction caused by the 6 stun belt impeded Petitioner’s ability to communicate with counsel. Additionally, where the stun belt 7 was “able to be seen by the jury” at the trial, the belt resulted in prejudice to Petitioner. Under these 8 circumstances, the trial court’s decision to force Petitioner to wear the stun belt violated his 9 constitutional rights. The petition should be granted and his conviction and sentence must be vacated. 10 GROUND ELEVEN 11 PETITIONER’S RIGHTS TO DUE PROCESS, EQUAL PROTECTION AND THE RIGHT TO TRIAL BY AN IMPARTIAL, REPRESENTATIVE JURY 12 UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE VIOLATED BASED ON THE STATE’S USE 13 OF A PEREMPTORY CHALLENGE IN A RACIALLY DISCRIMINATORY MANNER 14 15 Prior to jury selection, prospective jurors filled out a juror questionnaire. The questionnaire 16 asked, among other things, the juror’s feeling about psychology and the death penalty (Exs. 143-68). 17 In addition, the questionnaire’s asked for personal information, such as connections to law enforcement, 18 what they enjoyed reading, and what three Americans the juror most admired (Id.). 19 In her questionnaire, prospective juror Jefferyann Walker answered that she found psychology 20 interesting (Ex. 166). Several white prospective jurors who eventually sat on the jury also indicated that 21 they found it interesting or expressed highly favorable feelings towards it (Exs. 152-54, 162, 164, 167). 22 Walker stated that the death penalty could serve purposes and that child-killers and people who loved 23 to kill other humans should receive the penalty (Ex. 166). She enjoyed reading love stories and most 24 admired Martin Luther King, Mother Theresa, and Oprah Winfrey (Id.). White prospective jurors who 25 eventually sat as jurors indicated that they liked fiction (Exs. 162-64). While most jurors named 26 politicians as those who they most admired, white prospective jurors who eventually sat as jurors 27 indicated that they admired Johnny Unitas, Christopher Columbus, Alexander Bell, the Wright Brothers, 28 and Frank Lloyd Wright (Exs. 154. 158, 165). Walker further indicated that she had applied to be a

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1 police officer in Detroit, but she did not meet the height and weight requirements (Ex. 166). 2 Nevertheless, she provided highly complimentary adjectives to describe police officers (Id.). 3 During voir dire, Walker indicated that just because there had been a murder did not mean that 4 the perpetrator deserved the death penalty (CR 14, Ex. 32 at 81-82). She originally said that giving the 5 death penalty to people who love to kill would not be “doing any justice” (CR 14, Ex. 32 at 82). 6 However, she clarified that people who “overkilled” and “just killed four people for no reason, I’m from 7 Detroit, so that’s how they kill, yes, they deserve to be killed” (CR 14, Ex. 32 at 83). 8 Later, petitioner’s attorney, Curtis Brown, asked prospective juror Norma Bradshaw, “As you 9 heard when the original charges were being read, one of the allegations in this case is attempt murder 10 upon a police officer, that is a charge. How do you feel about that, with your son being a police officer?” 11 She said that her personal opinion was that “[i]n that particular job, that is one of the things that comes 12 with that job” (CR 14, Ex. 32 at 171). No record was made of how anyone physically reacted to her 13 answer. 14 The prosecution used one of its first peremptory challenges to exclude an African-American juror 15 prospective juror, Jeffreyann Walker, from the panel (CR 14, Ex. 32 at 198). Petitioner’s attorney 16 immediately raised a Batson challenge to the use of the peremptory challenge against Ms. Walker, asking 17 that the State provide a race neutral reason under Batson (Id.) Outside the presence of the jury, the 18 prosecution stated its reasons for excusing the juror: 19 Our reasons are multiple. Neither Mr. Schwartz nor I are racist. We are not exercising this challenge because she is an African-American, we are 20 exercising this challenge because of her comments both in the questionnaire and during the questioning of her. 21 She indicated in her questionnaire a couple of things that caused 22 -- caused me some concern. It's important to note, Judge, that we were not the proponents of this questionnaire. This was a questionnaire that was 23 developed by the defense. But when she mentioned who her three great Americans were, she talked about Martin Luther King, Mother Theresa, 24 and Oprah Winfrey. Now Ms. Winfrey is probably a very nice lady, but from our perspective she certainly isn't the type of great American that we 25 normally saw in these questionnaires. And in fact when you talk about Mother Theresa and Oprah Winfrey, coupled with her indication that she 26 loves stories, she seems to be a romanticist, certainly not the type of person that we would expect to be a pro death penalty. And in fact, when 27 she talked about the death penalty she said that she did not believe the death penalty is punishment for a person who enjoys killing. 28

27 APP. 072 (71 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 29 28 of of44 43

1 Now she indicated that she was from Detroit and that murders were normally done in numbers of fours, and that she didn't seem 2 particularly offended by that. That's not the type of a person that we would want for a death penalty juror. We want someone who is incensed 3 by killing. We want someone who is incensed by someone who goes out into a field with an AK-47 and shoots up a neighborhood and shoots an 4 innocent bystander who is calling on 911. 5 She also had a reaction that I -- oh, in addition she indicated that she loved psychology, and what we can glean from the defenses' witness 6 list is that they're going to call a psychologist to say that Mr. Gilbert Aguilar had some mental problems. He may have, but we want someone 7 who is more open minded to the field of psychology and is going to scrutinize this expert's testimony. 8 But what was particularly offensive to me, Judge, was that one of 9 the jurors in the latter portions talked about attempt murder on a police officer and she may not have meant what I inferred from her statement, 10 but she said that that's all part of their job, as if to cast off the seriousness of shooting at a police officer. And in this particular case, there's an 11 allegation that as officer Chad Brown was responding to these shots call and officer Weiss, officer Weiss, as he's pulling into the area received a 12 gunshot wound to his car. He continued on and officer Brown was unable to make the turn. He got out of the car and there were shots fired 13 at him by an AK-47. And he was able to get off four rounds but was unable to hit his assailant. 14 And when this person, this potential juror, made that statement I 15 looked over at Mrs. Walker and she was smiling and nodding her head in agreement and she mouthed, yes, yes, on two occasions. That is not a 16 person that Mr. Schwartz nor myself want on the jury. We want her to understand the serious nature of this case, and when we tell her that 17 police officers were shot at I don't expect that type of reaction from her. And so those are the reasons why we're exercising our peremptory 18 challenge and not because of her race. 19 (Id. at 198-201.) 20 Brown challenged these stated reasons as pretextual. He argued: 21 If I could address the last part first. There was no record made as to the reactions made by Ms. Walker. I understand there might have been some 22 subjective observations by Mr. Roger. But to clarify the circumstances around that, my recollection I was speaking with Norma Bradshaw, 23 whose son is a police officer in New York, and when I asked her that question I was trying to find out if there was anything about the fact that 24 one of the intended victims was a police officer if that would enhance this crime towards the death penalty. She indicated it would not because 25 police officers get shot at because it's part of their job. She recognizes that. If Ms. Walker is agreement with that, that's not saying that it's okay 26 to shoot at a police officer, but however, that they will remain open minded, that just because it's a police officer, I'm not going to give this 27 person the death penalty. 28

28 APP. 073 (72 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 30 29 of of44 43

1 I haven't reviewed Ms. Walker's statement since I reviewed it last night, but my recollection is she applied for the police department in Detroit, 2 was turned down for height and weight. This is a person who sought to be a police officer, recognizes the risks associated with that and that 3 would be an explanation for her nodding in agreement 4 (CR 14, Ex. 32 at 201-02). 5 The court overruled the Batson objection. It stated that, under Batson, a prosecutor’s challenge 6 to a minority juror should be upheld “as long as the prosecutor can point to any, any, race neutral reason 7 for the challenge” (CR 14, Ex. 32 at 202). It found that the prosecutor’s reasons for excusing Ms. 8 Walker were race neutral (Id. at 203). The court did not engage in step three of the required 9 Batson protocol, which asks whether the totality of the record demonstrated that the prosecutor’s race 10 neutral explanation for the strike was merely a pretext for discrimination. 11 The totality of the record showed that the prosecutor’s reasons were merely a pretext for racial 12 discrimination. As defense counsel argued, Ms. Walker was an ideal juror for the prosecution. She 13 wanted to be a police officer and had nothing but nice things to say about them. No factual record was 14 made of any reaction she had to anything other jurors may have stated. But to the extent that Ms. Walker 15 did react to Ms. Bradshaw’s comment in the way that the prosecutor described, her agreement with this 16 other juror’s statement showed that she understood the dangers of being a police officer, not that she 17 wanted to minimize the allegations in this case. She indicated that she was more than comfortable 18 imposing the death penalty. The prosecutor mischaracterized her answers as she made clear that she 19 believed that people who commit multiple murders should be put to death. 20 The prosecutor’s other arguments were patently absurd on their face. The prosecutor did not 21 strike several white jurors who expressed a high regard for psychology. Similarly, the prosecutor did 22 not strike white jurors who indicated that they liked fiction. The prosecutor did not strike white jurors 23 who admired far more atypical people than Oprah Winfrey. In fact, it is quite suspicious that the 24 prosecutor focused so intently on Ms. Walker’s admiration of Oprah, who was one of the few African- 25 Americans named as an admired person. Indeed, there is nothing objectionable about Ms. Walker 26 admiring someone who is arguably the most successful female African-American 27 entertainer/entrepreneur in history. It was only objectionable for the prosecutor to offer this as an 28 allegedly legitimate reason to strike Ms. Walker.

29 APP. 074 (73 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 31 30 of of44 43

1 The State cannot use a peremptory challenge to remove an African-American venire person from 2 a jury because of race. The State’s attempts to exclude an African-American from the jury and the 3 racially neutral reasons stated by the prosecution were a pretext for the otherwise race-based exercise 4 of a peremptory challenge. A pretextual exclusion of an African-American from Petitioner’s jury 5 violates his right to due process, equal protection and right to trial by an impartial, representative jury. 6 The petition should be granted and the conviction and sentence should be vacated. 7 GROUND TWELVE 8 APPELLATE COUNSEL WAS INEFFECTIVE, IN VIOLATION OF PETITIONER’S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL 9 UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 10 11 Petitioner’s conviction is invalid under the federal constitutional guarantees of due process and 12 a fair trial because he was deprived of the effective assistance of appellate counsel. U.S. Const. amends. 13 VI, XIV. The failure of Petitioner’s attorney resulted in a breach of his constitutional right to effective 14 counsel. Counsel had no tactical or strategic justification within the range of reasonable competence for 15 her failure to properly advise and represent Petitioner as further alleged in his claim. The ineffectiveness 16 of his counsel undoubtedly undermines the confidence in the validity of the direct appeal. Petitioner 17 was prejudiced by his lawyer’s performance. A reasonable likelihood exists, that but for his lawyer’s 18 deficient performance, Petitioner would have received a more favorable outcome on appeal. Petitioner 19 hereby incorporates Grounds One, Two, Three, Four, Ten, and Eleven as if fully set forth herein. 20 Counsel’s representation of Petitioner fell below the minimum standard of reasonably competent counsel 21 on the basis of the following interrelated factors: 22 A. Appellate counsel was ineffective when he failed to raise all issues on direct appeal under the federal constitution. 23 24 Petitioner’s rights to due process and effective representation of counsel, as guaranteed 25 by the Sixth and Fourteenth Amendments to the United States Constitution, were violated when 26 appellate counsel failed to adequately federalize and constitutionalize some of the issues raised on direct 27 appeal, thus potentially depriving him of federal review of those issues where appropriate. 28 / / /

30 APP. 075 (74 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 32 31 of of44 43

1 In Issue Two of the Opening Brief, appellate counsel raised an issue concerning the trial court’s 2 error when it admitted irrelevant evidence of a bayonet and machete against Petitioner (CR 15, Ex. 65). 3 Appellate counsel failed to cite any federal constitutional authority in support of this claim. Petitioner 4 was denied his right to due process and to a fair trial as guaranteed by the Fifth, Sixth and Fourteenth 5 Amendments to the United States Constitution when it admitted this irrelevant evidence over objection. 6 Petitioner was further denied his right to the effective assistance of appellate counsel guaranteed by the 7 Sixth and Fourteenth Amendments to the United States constitution when counsel failed to adequately 8 raise this issue on federal constitutional grounds. 9 In Issue Four of the Opening Brief, appellate counsel raised an issue concerning the district 10 court’s failure to properly instruct the jury on the premeditated, deliberate and willful elements of first- 11 degree murder. (CR 15, Ex. 65.) Appellate counsel failed to cite any federal constitutional authority 12 in support of this claim. This was particularly egregious here as trial counsel specifically preserved the 13 claim as a federal constitutional violation (CR 14, Ex. 40 at 9). Petitioner was denied his rights to due 14 process and to a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United 15 States Constitution, when the jury was not adequately instructed on the elements of first-degree murder 16 and therefore did not make a determination on all elements of the offense, nor did it make a reliable 17 distinction between first- and second-degree murder. Petitioner was further denied his right to the 18 effective assistance of appellate counsel guaranteed by the Sixth and Fourteenth Amendments to the 19 United States constitution when counsel failed to adequately raise this issue on federal constitutional 20 grounds. 21 B. Appellate counsel was ineffective for failing to ensure that the Nevada Supreme Court applied the Byford decision to Petitioner’s case before his conviction became 22 final 23 On direct appeal, Petitioner challenged the first-degree instruction, known as the Kazalyn 24 instruction, given to the jury in his case. Before Petitioner’s conviction became final, the Nevada 25 Supreme Court recognized that the Kazalyn instruction failed to correctly state the elements established 26 by state law. When the Nevada Supreme Court was asked to consider the propriety of the instruction 27 in Byford v, State, 994 P.2d 700 at 712 (Nev. 2000), the Court realized that the instruction “blurs the 28 distinction between first and second degree murder” by failing to provide any independent definition for

31 APP. 076 (75 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 33 32 of of44 43

1 deliberation or willfulness. Id at 713. The Court abrogated the instruction, and ordered that future 2 prosecutions be governed by instructions that separately defined all three elements. Id. 3 Whether the ruling in Byford is characterized as either a clarification or a change in state law or 4 as a change in state law that implicated a constitutional right, the Nevada Supreme Court was obligated 5 to apply it to non-final cases such as Petitioner’s. Babb v. Lozowsky, 704 F.3d 1246, 1256-59 (9th Cir. 6 2013) (clearly established law dictates that change in law must be applied to non-final cases; clarification 7 in law applies to cases that are both non-final and final). Indeed, the Nevada Supreme Court has 8 acknowledged that, to the extent that Byford concerned a change in state law, it needed to be applied as 9 a matter of due process to all of those cases that were not yet final at the time it was decided. Nika v. 10 State, 124 Nev. 1272, 1287, 198 P.3d 839, 850 (2008). 11 Petitioner’s conviction was not yet final at the time that Byford was decided. The Nevada 12 Supreme Court has specifically held that a conviction does not become final until the time for filing a 13 petition to the United States Supreme Court has expired. See Nika, 124 Nev. at 1284 n.52, 198 P.3d at 14 848 n.52 (“A conviction becomes final when the judgment of conviction has been entered, the 15 availability of appeal has been exhausted, and a petition for certiorari to the United States Supreme Court 16 has been denied or the time for such a petition has expired.”). Petitioner’s conviction was affirmed by 17 the Nevada Supreme Court on December 20, 1999. The time for seeking certiorari expired on March 18 19, 2000. Byford was decided on February 28, 2000. Petitioner had presented a challenge to the 19 Kazalyn instruction and the first-degree murder charge on direct appeal. The Nevada Supreme Court 20 was obligated to apply Byford to petitioner’s case. 21 However, after the decision in Byford, appellate counsel took no additional steps to ensure that 22 the Nevada Supreme Court applied Byford to Petitioner’s case. As a result, Petitioner was denied his 23 right to the effective assistance of appellate counsel guaranteed by the Sixth and Fourteenth 24 Amendments to the United States constitution when counsel failed to ensure that the decision in Byford 25 was applied to his case before his conviction became final. 26 C. Appellate counsel was ineffective for failing to raise meritorious issues. 27 Appellate counsel failed to raise several meritorious issues on direct appeal. Counsel’s 28 failure was not attributable to a tactical or strategical decision, but was instead based on counsel’s failure

32 APP. 077 (76 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 34 33 of of44 43

1 to recognize the issue. Reversal of the judgment is warranted based upon counsel’s failure. 2 1. Failure to raise an issue concerning Petitioner’s ability to have the jury properly instructed on his theory of defense. 3 4 Petitioner was denied his constitutional rights to due process and a fair trial under 5 the Fifth, Sixth and Fourteenth Amendments when the trial court refused to allow the proposed jury 6 instruction on the theory of defense. Petitioner incorporates Ground One, supra, as if fully set forth 7 herein. 8 The issue of premeditation was a central issue at trial, resting at the heart of the defense (See, 9 e.g., CR 14, Ex. 40 at 84-85). There was little to no evidence of any planning activity to commit the 10 specific murder. There was no evidence of a prior relationship between the Aguilars and the victim. 11 To the contrary, the evidence presented at trial was that the Aguilars fired their weapons seemingly in 12 a random fashion in a heated response to an incident that had occurred minutes before at a 7-Eleven. 13 It is reasonable to infer that this anger was not directed at the victim due to the lack of any prior 14 relationship with him. The victim was hit by only one bullet out of the many that were fired in many 15 directions in a short amount of time prior to the arrival of the police. Thus, because the proposed charge 16 was clearly pertinent to the case, the court had a constitutional obligation to provide it. Because the 17 evidence of premeditation was weak and this proposed instruction went directly to that issue, the error 18 cannot be considered harmless. 19 Although appellate counsel raised a number of issues on appeal, the failure of the trial court to 20 properly instruct the jury was an issue of critical importance, and counsel’s failure to raise this issue on 21 appeal cannot be considered strategic. 22 2. Failure to raise an issue concerning the trial court’s failure to properly charge the jury on a required element of the crime. 23 Petitioner was denied his constitutional rights to due process and a fair trial under 24 the Fifth, Sixth and Fourteenth Amendments when the trial court did not properly instruct the jury on 25 the mens reas required to find Petitioner guilty of murder under an aiding and abetting theory. Petitioner 26 incorporates Ground Three, Part A, supra, as if fully set forth herein. 27 / / / 28

33 APP. 078 (77 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 35 34 of of44 43

1 The instructions given to the jury on accomplice liability fail to expressly or implicitly state that 2 Petitioner could be found an aider or abettor only if he had the specific intent to commit these crimes. 3 To the contrary, they specifically allowed a conviction without a showing that Petitioner himself 4 harbored the specific intent to murder the victim so long as the murder was “reasonably foreseeable.” 5 These instructions were not cured by other instructions. No other guilt-phase instruction addressed the 6 mental state that Petitioner was required to possess to be liable as an aider or abettor. 7 This error cannot be considered harmless. There was little to no evidence that Petitioner aided 8 or abetted in the shooting of the victim, Mark Emerson, or that Petitioner had the specific intent to 9 commit a first-degree murder of Emerson. Terry Maldonado testified at trial that, after she heard gun 10 shots outside her apartment, she walked outside her apartment and saw a man who fit Petitioner’s 11 description standing at the western edge of a grassy field and shooting in a westerly direction away from 12 Emerson’s apartment, which was located to the southeast of Maldonado’s apartment (CR 14, Ex. 36 at 13 16, 32-34). She believed that this man continued to move to the west after she first saw him (Id. at 38- 14 41). Maldonado’s testimony established that Petitioner was not shooting towards Emerson’s apartment 15 and, during the shooting, was actually walking away from the apartment. 16 Gilbert’s wife, Annette O’Neal, testified that she was out in the grassy field with Petitioner and 17 Gilbert, many feet away from Emerson’s apartment (CR 14, Ex. 36 at 72-76). She did not see either of 18 them moving towards the apartment (Id. at 76). She saw lights from police cars and, in response, began 19 running back to her apartment at 840 Mantis Way through the grassy area (Id. at 76-77). While she was 20 running, Petitioner ran past her towards the apartment and arrived at the apartment before her (Id. at 77). 21 She did not see what Gilbert did after she started running and he arrived at the apartment after what 22 “seemed like a long time” (Id. at 76, 79). 23 It was clear that the shooting of Emerson occurred in the interval in between when O’Neal and 24 Petitioner ran away from the grassy area and Gilbert returned to their apartment. Marla Emerson, the 25 victim’s wife, heard a series of gunshots and went to her bedroom with her children. Her husband, Mark 26 Emerson, grabbed the phone and then went out on their patio. She then heard another series of gunshots, 27 went to her patio, and saw her husband on the ground (CR 14, Ex. 36 at 168-69). A man holding a rifle 28 was standing behind her husband. She identified Gilbert as this man (Id. at 169-71). Emerson ran back

34 APP. 079 (78 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 36 35 of of44 43

1 inside and the police arrived on foot soon afterwards (Id. at 172-77). 2 Officer Chad Brown testified that, when he arrived at the scene, he engaged in a gun battle with 3 a bald, white man wearing a black tank top (CR 14, Ex. 37 at 87-88). Brown first saw this man as he 4 was standing on a corner just to the east of Emerson’s apartment. At the time, the man was shooting in 5 a westerly direction towards Emerson’s apartment (Id. at 88). Brown told the man to drop the gun and 6 the man pointed the gun at Brown and fired (Id. at 88-89). Brown returned fire (Id. at 89). Two bullets 7 fired from Brown’s gun were recovered inside a wall to the east of the patio door of Emerson’s 8 apartment (CR 14, Ex. 38 at 71; CR 14, Ex. 39 at 65-66). The man ran north down Mantis into an 9 apartment at 840 Matis (CR 14, Ex. 38 at 90). Brown later identified Gilbert as this man from a 10 surveillance video taken from a 7-Eleven store (CR 14, Ex. 37 at 91-92). Brown’s testimony confirmed 11 that Gilbert was near Emerson’s apartment at the end of the incident, at a time when O’Neal had testified 12 that she and Petitioner had already fled the area. 13 Thus, there was no evidence that Petitioner was anywhere near Emerson’s apartment at the time 14 that he was shot. Indeed, the evidence showed that he fired his weapon away from the apartment, his 15 focus was on something to the west of the grassy area, and he was literally running away from the scene, 16 and was most likely back at the apartment, at the time that the shooting occurred. At bottom, there was 17 little to no evidence that Petitioner harbored the specific intent to commit a first-degree murder of 18 Emerson. 19 Despite the lack of evidence of a specific intent, the jury could have convicted Petitioner on a 20 theory of accomplice liability based on the murder being “reasonably foreseeable” without a finding that 21 he had the specific intent to commit the charged crimes. Because there is a reasonable likelihood that 22 the jury would have interpreted the instructions as not requiring the specific intent as required by state 23 law, the error was not harmless beyond a reasonable doubt and has a substantial and injurious effect on 24 the verdict. 25 Although appellate counsel raised a number of issues on appeal, the failure of the trial court to 26 properly instruct the jury was an issue of critical importance, and counsel’s failure to raise this issue on 27 appeal cannot be considered strategic. 28

35 APP. 080 (79 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 37 36 of of44 43

1 3. Failure to raise an issue concerning the trial court’s failure to properly charge the jury on a required element of the crime. 2 3 Petitioner was denied his constitutional rights to due process and a fair trial under 4 the Fifth, Sixth and Fourteenth Amendments when the trial court did not properly instruct the jury on 5 the mens rea required to find him guilty of murder under a co-conspirator liability theory. Petitioner 6 incorporates Ground Three, Part B, supra, as if fully set forth herein. 7 The court’s instructions related to conspiratorial liability fail to expressly or implicitly state that 8 Petitioner could be found vicariously liable for the specific-intent crimes of a co-conspirator only if he 9 had the specific intent to commit these crimes. To the contrary, they specifically allowed a conviction 10 without a showing that Petitioner himself harbored the specific intent to murder the victim. These 11 instructions were not cured by other instructions. No other guilt-phase instruction addressed the mental 12 state that Petitioner was required to possess to be vicariously liable as a co-conspirator. 13 In fact, the prosecution specifically argued to the jury that Petitioner could be found guilty for 14 the murder as a co-conspirator based on whether an action of a co-conspirator is “reasonably 15 foreseeable.” The prosecutor argued, “And so when two people are involved in an agreement to commit 16 a crime, no matter what actions are taken as long as they are reasonably foreseeable, each is - - they’re 17 equally responsible” (CR 14, Ex. 40 at 20-21). He added, “As long as there is an agreement to commit 18 the crime, each is equally responsible and treated as a principal as if they actually and directly committed 19 the crime” (Id. at 22). He emphasized again that, so long as there is an agreement, any participant is 20 “equally responsible for everything that happened as long as it’s reasonably foreseeable” (Id.). 21 For these reasons, Petitioner’s due process rights were violated. The evidence that Petitioner had 22 conspired to specifically murder the victim was non-existent. This error prejudiced Petitioner, and had 23 a substantial and injurious effect on the jury’s verdict. 24 Although appellate counsel raised a number of issues on appeal, the failure of the court to 25 properly charge the jury was an important issue to be considered on appeal. Counsel’s failure to raise 26 this issue on appeal cannot be considered strategic. 27 / / / 28 / / /

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1 4. Failure to challenge the use of a stun belt. 2 On the first day of trial, Gilbert Aguilar’s attorney, William Wolfbrandt, objected 3 to the visible stun belts that the defendants were being forced to wear (CR 14, Ex. 31 at 3). Wolfbrandt 4 stated that, the prior week, the attorneys had met with bailiff and some of the transport officers as to 5 security concerns that court room staff had (Id.). He stated that they came into court that morning and 6 the attorneys saw that the defendants were wearing electronic belts (Id.). He described the belts: “that 7 battery pack is about a foot - - eight inches in each direction and looks like it’s about three to four inches 8 thick, and it’s pretty conspicuous” (Id.). He pointed out that Gilbert Aguilar had always made court 9 appearances and been respectful and police to the court (Id.). The attorneys warned him not to act out 10 in court (Id.). He pointed out that, if there had been outburst, the belt would be justified (Id. at 4). But 11 that had not occured (Id.). He “ought to at least have the opportunity to go through this trial without 12 having that big contraption on the back of his shirt that’s readily seen - - able to be seen by this jury” 13 (Id.). He objected to the use of the belt (Id.). Petitioner’s attorney, Roger Hillman joined in the 14 objection (Id.). Petitioner spoke to the court directly and stated that he had not done anything in court 15 to justify the use of the belt (Id. at 7). The trial court failed to make any individualized findings as to 16 the need for each of the defendants to wear the belt, and instead noted only “my bailiff is in charge of 17 security in my department. It’s been his recommendation that both your clients be belted. So they are 18 belted.” (Id. at 4). The court did not believe that the jury would see them when the defendants were 19 seated (Id.). 20 The trial court’s decision to belt petitioner violated his right to due process, to a fair trial and to 21 communicate with counsel under the Fifth, Sixth and Fourteenth Amendments to the United States 22 Constitution. The trial court made its decision based upon ex parte information presented by his bailiff, 23 failed to consider less restrictive alternatives, and failed to hold a hearing or make any factual findings 24 on the record to determine whether the stun belt was actually necessary. The restriction caused by the 25 stun belt impeded petitioner’s ability to communicate with counsel. Additionally, where the stun belt 26 was “able to be seen by the jury” at the trial, the belt resulted in prejudice to petitioner. Under these 27 circumstances, the trial court’s decision to force Petitioner to wear the stun belt violated his 28 constitutional rights.

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1 Although appellate counsel raised a number of issues on appeal, the fact that Petitioner was 2 forced to wear a stun belt was an important issue to be considered on appeal. Counsel’s failure to raise 3 this issue on appeal cannot be considered strategic. 4 5. Failure to Raise a Batson Claim 5 Prior to jury selection, prospective jurors filled out a juror questionnaire. The 6 questionnaire asked, among other things, the juror’s feeling about psychology and the death penalty (Exs. 7 143-68). In addition, the questionnaire’s asked for personal information, such as connections to law 8 enforcement, what they enjoyed reading, and what three Americans the juror most admired (Id.). 9 In her questionnaire, prospective juror Jeffreyann Walker answered that she found psychology 10 interesting. Several white prospective jurors who eventually sat on the jury also indicated that they 11 found it interesting or expressed highly favorable feelings towards it (Exs. 152-54, 162, 164, 167). 12 Walker stated that the death penalty could serve purposes and that child-killers and people who loved 13 to kill other humans should receive the penalty (Ex. 166). She enjoyed reading love stories and most 14 admired Martin Luther King, Mother Theresa, and Oprah Winfrey (Id.). White prospective jurors who 15 eventually sat as jurors indicated that they liked fiction (Exs. 162-64). While most jurors named 16 politicians as those who they most admired, white prospective jurors who eventually sat as jurors 17 indicated that they admired Johnny Unitas, Christopher Columbus, Alexander Bell, the Wright Brothers, 18 and Frank Lloyd Wright (Exs. 154, 158, 165). Walker further indicated that she had applied to be a 19 police officer in Detroit, but she did not meet the height and weight requirements (Ex. 166). 20 Nevertheless, she provided highly complimentary adjectives to describe police officers (Id.). 21 During voir dire, Walker indicated that just because there had been a murder did not mean that 22 the perpetrator deserved the death penalty (CR 14, Ex. 32 at 81-82). She originally said that giving the 23 death penalty to people who love to kill would not be “doing any justice” (Id. at 82). However, she 24 clarified that people who “overkilled” and “just killed four people for no reason, I’m from Detroit, so 25 that’s how they kill, yes, they deserve to be killed” (Id. at 83). 26 Later, petitioner’s attorney, Curtis Brown, asked prospective juror Norma Bradshaw, “As you 27 heard when the original charges were being read, one of the allegations in this case is attempt murder 28 upon a police officer, that is a charge. How do you feel about that, with your son being a police officer?”

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1 She said that her personal opinion was that “[i]n that particular job, that is one of the things that comes 2 with that job” (CR 14, Ex. 32 at 171). No record was made of how anyone physically reacted to her 3 answer. 4 The prosecution used one of its first peremptory challenges to exclude an African-American juror 5 prospective juror, Jeffreyann Walker, from the panel (CR 14, Ex. 32 at 198). Petitioner’s attorney 6 immediately raised a Batson challenge to the use of the peremptory challenge against Ms. Walker, asking 7 that the State provide a race neutral reason under Batson (Id.) Outside the presence of the jury, the 8 prosecution stated its reasons for excusing the juror: 9 Our reasons are multiple. Neither Mr. Schwartz nor I are racist. We are not exercising this challenge because she is an African-American, we are 10 exercising this challenge because of her comments both in the questionnaire and during the questioning of her. 11 She indicated in her questionnaire a couple of things that caused 12 -- caused me some concern. It's important to note, Judge, that we were not the proponents of this questionnaire. This was a questionnaire that was 13 developed by the defense. But when she mentioned who her three great Americans were, she talked about Martin Luther King, Mother Theresa, 14 and Oprah Winfrey. Now Me. Winfrey is probably a very nice lady, but from our perspective she certainly isn't the type of great American that we 15 normally saw in these questionnaires. And in fact when you talk about Mother Theresa and Oprah Winfrey, coupled with her indication that she 16 loves stories, she seems to be a romanticist, certainly not the type of person that we would expect to be a pro death penalty. And in fact, when 17 she talked about the death penalty she said that she did not believe the death penalty is punishment for a person who enjoys killing. 18 Now she indicated that she was from Detroit and that murders 19 were normally done in numbers of fours, and that she didn't seem particularly offended by that. That's not the type of a person that we 20 would want for a death penalty juror. We want someone who is incensed by killing. We want someone who is incensed by someone who goes out 21 into a field with an AK-47 and shoots up a neighborhood and shoots an innocent bystander who is calling on 911. 22 She also had a reaction that I -- oh, in addition she indicated that 23 she loved psychology, and what we can glean from the defenses' witness list is that they're going to call a psychologist to say that Mr. Gilbert 24 Aguilar had some mental problems. He may have, but we want someone who is more open minded to the field of psychology and is going to 25 scrutinize this expert's testimony. 26 But what was particularly offensive to me, Judge, was that one of the jurors in the latter portions talked about attempt murder on a police 27 officer and she may not have meant what I inferred from her statement, but she said that that's all part of their job, as if to cast off the seriousness 28 of shooting at a police officer. And in this particular case, there's an

39 APP. 084 (83 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 41 40 of of44 43

1 allegation that as officer Chad Brown was responding to these shots call and officer Weiss, officer Weiss, as he's pulling into the area received a 2 gunshot wound to his car. He continued on and officer Brown was unable to make the turn. He got out of the car and there were shots fired 3 at him by an AK-47. And he was able to get off four rounds but was unable to hit his assailant. 4 And when this person, this potential juror, made that statement I 5 looked over at Mrs. Walker and she was smiling and nodding her head in agreement and she mouthed, yes, yes, on two occasions. That is not a 6 person that Mr. Schwartz nor myself want on the jury. We want her to understand the serious nature of this case, and when we tell her that 7 police officers were shot at I don't expect that type of reaction from her. And so those are the reasons why we're exercising our peremptory 8 challenge and not because of her race. 9 (Id. at 198-201.) 10 Brown challenged these stated reasons as simply pretextual. He argued: 11 If I could address the last part first. There was no record made as to the reactions made by Ms. Walker. I understand there might have been some 12 subjective observations by Mr. Roger. But to clarify the circumstances around that, my recollection I was speaking with Norma Bradshaw, 13 whose son is a police officer in New York, and when I asked her that question I was trying to find out if there was anything about the fact that 14 one of the intended victims was a police officer if that would enhance this crime towards the death penalty. She indicated it would not because 15 police officers get shot at because it's part of their job. She recognizes that. If Ms. Walker is agreement with that, that's not saying that it's okay 16 to shoot at a police officer, but however, that they will remain open minded, that just because it's a police officer, I'm not going to give this 17 person the death penalty. 18 I haven't reviewed Ms. Walker's statement since I reviewed it last night, but my recollection is she applied for the police department in 19 Detroit, was turned down for height and weight. This is a person who sought to be a police officer, recognizes the risks associated with that and 20 that would be an explanation for her nodding in agreement 21 (CR 14, Ex. 32 at 201-02). 22 The court overruled the Batson objection. It stated that, under Batson, a prosecutor’s challenge 23 to a minority juror should be upheld “as long as the prosecutor can point to any, any, race neutral reason 24 for the challenge” (CR 14, Ex. 32 at 202). It found that the prosecutor’s reasons for excusing Ms. 25 Walker were race neutral (Id. at 203). The court did not engage in step three of the required 26 Batson protocol, which asks whether the totality of the record demonstrated that the prosecutor’s race 27 neutral explanation for the strike was merely a pretext for discrimination. 28 / / /

40 APP. 085 (84 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 42 41 of of44 43

1 The totality of the record showed that the prosecutor’s reasons were merely a pretext for racial 2 discrimination. As defense counsel argued, Ms. Walker was an ideal juror for the prosecution. She 3 wanted to be a police officer and had nothing but nice things to say about them. No factual record was 4 made of any reaction she had to anything other jurors may have stated. But to the extent that Ms. Walker 5 did react to Ms. Bradshaw’s comment in the way that the prosecutor described, her agreement with this 6 other juror’s statement showed that she understood the dangers of being a police officer, not that she 7 wanted to minimize the allegations in this case. She indicated that she was more than comfortable 8 imposing the death penalty. The prosecutor mischaracterized her answers as she made clear that she 9 believed that people who commit multiple murders should be put to death. 10 The prosecutor’s other arguments were patently absurd on their face. The prosecutor did not 11 strike several white jurors who expressed a high regard for psychology. Similarly, the prosecutor did 12 not strike white jurors who indicated that they liked fiction. The prosecutor did not strike white jurors 13 who admired far more atypical people than Oprah Winfrey. In fact, it is quite suspicious that the 14 prosecutor focused so intently on Ms. Walker’s admiration of Oprah, who was one of the few African- 15 Americans named as an admired person. Indeed, there is nothing objectionable about Ms. Walker 16 admiring someone who is arguably the most successful female African-American 17 entertainer/entrepreneur in history. It was only objectionable for the prosecutor to offer this as an 18 allegedly legitimate reason to strike Ms. Walker. 19 The State cannot use a peremptory challenge to remove an African-American venire person from 20 a jury because of race. The State’s attempts to exclude an African-American from the jury and the 21 racially neutral reasons stated by the prosecution were a pretext for the otherwise race-based exercise 22 of a peremptory challenge. A pretextual exclusion of an African-American from Petitioner’s jury 23 violates his right to due process, equal protection and right to trial by an impartial, representative jury. 24 Although appellate counsel raised a number of issues on appeal, the prosecutor’s use of 25 peremptory challenges in a racially discriminatory fashion was an important issue to be considered on 26 appeal. Counsel’s failure to raise this issue on appeal cannot be considered strategic. 27 For all of these reasons, petitioner was deprived of the right to the effective assistance of 28 appellate counsel. The petition should be granted and the conviction and sentence vacated.

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1 III. 2 PRAYER FOR RELIEF 3 Accordingly, petitioner respectfully requests that this Court: 4 1. Issue a writ of habeas corpus to have Petitioner brought before the Court so that he may 5 be discharged from his unconstitutional confinement; 6 2. Conduct an evidentiary hearing at which proof may be offered concerning the allegations 7 in this amended petition and any defenses that may be raised by respondents; an 8 3. Grant such other and further relief as, in the interests of justice, may be appropriate. 9 DATED this 3rd day of July 2013. 10 Respectfully submitted, 11 LAW OFFICES OF THE FEDERAL PUBLIC DEFENDER 12 13 By: /s/ Jonathan M. Kirshbaum JONATHAN M. KIRSHBAUM 14 Assistant Federal Public Defender 15 16 17 18 19 20 21 22 23 24 25 26 27 28

42 APP. 087 (86 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 28 DktEntry: Filed 07/02/13 2-2, Page Page 44 43 of of44 43

1 CERTIFICATE OF SERVICE 2 The undersigned hereby certifies that she is an employee in the office of the Federal Public 3 Defender for the District of Nevada and is a person of such age and discretion as to be competent to 4 serve papers. 5 That on July 3, 2013, she served a true and accurate copy of the foregoing to the United States 6 District Court, who will e-serve the following addressee: 7 Michael Bongard Deputy Attorney General 8 1539 Avenue F Ely, Nevada 89301 9 10 /s/ Susan Kline An Employee of the 11 Federal Public Defender’s Office 12 13 14 15 16 17 18 19 20 21 22 23 24 25

26 O:\00 NCH\cases-open\Aguilar, David\Pleadings\2nd AP.wpd 27 28

43 APP. 088 (87 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-3, Page 1 of 29 EXHIBIT B

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 APP. 117 (116 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-4, Page 1 of 21 EXHIBIT C

EXHIBIT C APP. 118 (117 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 61 DktEntry: Filed 09/14/15 2-4, Page Page 2 of1 of21 20

1 RENE L. VALLADARES Federal Public Defender 2 Nevada State Bar No. 011479 JONATHAN M. KIRSHBAUM 3 Assistant Federal Public Defender New York State Bar No. 2857100 4 411 E. Bonneville Ave., Suite 250 Las Vegas, Nevada 89101 5 (702) 388-6577 (702) 388-6261 (FAX) 6 7 Attorneys for Petitioner 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 DAYOMASHELL DAVID AGUILAR, Case No.: 3:12-cv-0315-MMD-VPC 11 Petitioner, RESPONSE IN OPPOSITION TO 12 MOTION TO DISMISS (CR 59) vs. 13 WARDEN BAKER, et al. 14 Respondents. 15 16 Petitioner, Dayomashell David Aguilar (“Aguilar”), by and through his attorney of record, 17 Jonathan M. Kirshbaum, Assistant Federal Public Defender, hereby files this Response in Opposition 18 to Respondent’s Motion to Dismiss Petitioner’s First Amended Petition for a Writ of Habeas Corpus, 19 Clerk’s Record (“CR”) 59. This filing is based on all relevant pleadings and papers previously filed 20 herein, as well as the following Points and Authorities. 21 DATED this 14th day of September, 2015. 22 23 LAW OFFICES OF THE FEDERAL PUBLIC DEFENDER 24 25 26 By: /s/ Jonathan M. Kirshbaum JONATHAN M. KIRSHBUAM 27 Assistant Federal Public Defender 28 APP. 119 (118 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 61 DktEntry: Filed 09/14/15 2-4, Page Page 3 of2 of21 20

1 I. 2 INTRODUCTION 3 Respondents have filed a Motion to Dismiss, CR 59, arguing that claims presented in Aguilar’s 4 Second Amended Petition are untimely and procedurally defaulted. They further argue that Ground 7 5 should be dismissed under Stone v. Powell, 428 U.S. 465 (1976), and that certain exhibits should be 6 struck. The motion should be denied in its entirety. The grounds in Aguilar’s Second Amended Petition 7 are not untimely because they relate back to his timely First Amended Petition, which was filed before 8 the AEDPA one-year time period ran on December 14, 2012. To the extent that any claims are untimely, 9 Aguilar can overcome the time bar because he is actually innocent under the standards set forth in Schlup 10 v. Delo, 513 U.S. 298 (1995); and Bousley v. United States, 523 U.S. 614 (1998). Two of the grounds 11 that Respondents claim were procedurally defaulted were actually fairly presented on direct appeal, so 12 they are not procedurally barred. While certain grounds in the Second Amended Petition were found 13 to be procedurally defaulted in state court, Aguilar can either establish cause to overcome the procedural 14 default under Martinez v. Ryan, 132 S. Ct. 1309 (2012), or can establish that a miscarriage of justice 15 would occur if those claims are not addressed on the merits. Ground Seven is not barred under Stone 16 v. Powell because it is a Sixth Amendment claim, not a Fourth Amendment claim. Finally, there is no 17 basis on which to strike any of the exhibits. For the following reasons, Respondents’ motion to dismiss 18 should be denied in its entirety. 19 II. 20 ARGUMENT 21 A. THE GROUNDS IN AGUILAR’S SECOND AMENDED PETITION ARE TIMELY AS THEY PROPERLY RELATE BACK TO THE FIRST AMENDED PETITION 22 Respondents argue that Grounds 1, 2, 3, 11, 12(B), 12(C)(1), 12(C)(2), 12(C)(3), and 12(C)(5) 23 of the Second Amended Petition are untimely because they fail to relate back to the timely First 24 Amended Petition. However, apart from Grounds 11 and 12(C)(5), it is clear that these remaining 25 grounds are the same as, or relate back to, grounds in the First Amended Petition. With respect to 26 Grounds 11 and 12(C)(5), and any other grounds that do not relate back, the untimeliness of those 27 grounds should be excused because Aguilar can show that he is actually innocent. 28

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1 1. Aguilar’s First Amended Petition Is Timely 2 Respondents acknowledged that Aguilar’s First Amended Petition was timely filed. Aguilar’s 3 one-year AEDPA time limit expired on December 14, 2012. The Nevada Supreme Court dismissed 4 Aguilar’s direct appeal on December 20, 1999. CR 15, Ex. 70. For AEDPA purposes, the conviction 5 became final when the time for filing a writ of certiorari expired. Jimenez v. Quarterman, 555 U.S. 113, 6 119 (2009); Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). Ninety days after December 20, 1999, was 7 Sunday, March 19, 2000. Thus, Aguilar’s conviction became final on Monday, March 20, 2000. See 8 Supreme Court Rule 30(1). 9 Aguilar timely filed his state post-conviction petition 172 days later, on September 8, 2000. CR 10 15, Ex. 73. Aguilar’s AEDPA time was then tolled under 28 U.S.C. § 2244(d)(2). The Nevada Supreme 11 Court affirmed the denial of Aguilar’s post-conviction petition on May 9, 2012. CR 16, Ex. 126. 12 Remittitur issued on June 4, 2012. CR 16, Ex. 129. At that point, Aguilar had 193 days remaining on 13 his one-year time period (365 – 172 = 193). Thus, his AEDPA time expired on Friday, December 14, 14 2012, which was 193 days after June 4, 2012. The First Amended Petition was timely filed on 15 Wednesday, December 12, 2012. The Second Amended Petition was filed beyond the one-year time 16 period. 17 Thus, the relation back analysis here will focus on whether grounds in the Second Amended 18 Petition are the same as, or relate back, to the timely First Amended Petition. 19 2. Legal Standard For Relation-Back 20 The standard for relation back is set forth in Mayle v. Felix, 545 U.S. 644, 657 (2005). Mayle 21 applies Federal Rule of Civil Procedure 15(c) to federal habeas corpus proceedings. Id. at 649. Under 22 that rule, “[a]n amendment of a pleading relates back to the date of the original pleading when... the 23 claim... asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth 24 or attempted to be set forth in the original pleading.” See Federal Rule of Civil Procedure 15(c)(1)(B); 25 Mayle at 649.1 Mayle held that an amended habeas petition does not meet this relation-back standard 26 27 1 28 At the time of Mayle, the relevant provision of the rule was at Fed. Rule of Proc. 15(c)(2). Mayle, 545 U.S. at 649. The relevant text of the rule remains identical.

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1 “when it asserts a new ground for relief supported by facts that differ in both time and type from those 2 the original pleading set forth.” Mayle, 545 U.S. at 650. 3 Mayle thus establishes a two-part analysis for determining whether a claim in an amended 4 petition is untimely. First, the court must determine whether the claim in the amended petition is a “new 5 ground for relief.” Only after a court determines that the amended petition asserts a “new ground for 6 relief” must it consider whether that ground is “supported by facts that differ in time and type from those 7 the original pleading set forth.” Mayle, 545 U.S. at 650. If a claim does not assert a new ground for 8 relief, it is timely. If the claim does assert a new ground, it is still timely so long as it does not rely on 9 facts that differ in time and type from those set forth in the original pleading. 10 Mayle does not purport to set a particularly onerous standard for “relation back.” While rejecting 11 a view that claims relate back simply because they relate to the same “trial, conviction or sentence,” the 12 Supreme Court emphasized that “[s]o long as the original and amended petitions state claims that are 13 tied to a common core of operative facts, relation back will be in order.” Mayle 545 U.S. at 664; compare 14 Hebner v. McGrath, 543 F.3d 1133, 1138-39 (9th Cir. 2008)(finding that new ground for relief based on 15 jury instructions did not relate back to original petition, which raised claims concerning the admission 16 of testimony at trial). 17 3. Ground One Of The Second Amended Petition Is the Same As, or Relates Back To, Claims in The First Amended Petition 18 In Ground One of the Second Amended Petition, Aguilar argued: 19 PETITIONER WAS DENIED HIS RIGHTS UNDER THE FIFTH, 20 SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN THE TRIAL COURT 21 IMPROPERLY DENIED THE DEFENSE REQUEST TO CHARGE THE JURY ON ITS THEORY OF THE DEFENSE. 22 CR 28 at 6. 23 In Claim One of the First Amended Petition, Aguilar argued: 24 N.R.S. 175.161 REQUIRES DEFENDANTS BE GIVEN EQUAL 25 OPPORTUNITY TO PROVIDE ACCURATE AND PERTINENT JURY INSTRUCTIONS TO THE JURY VIOLATING THE FIFTH, 26 SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. 27 CR 12 at 6. 28

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1 These two claims are the same. Both grounds argue that Aguilar should have been entitled to a 2 jury instruction on his theory of defense. While the Second Amended Petition may contain more detail 3 than the First Amended Petition, Ground One of the Second Amended Petition is not a new ground for 4 relief, satisfying the Mayle test. At the very least, they clearly rely upon the same core of operative facts, 5 namely the defense’s request to supplement the premeditation instruction. Therefore, Ground One is 6 the same as, or properly relates back to, a claim in the timely First Amended Petition. 7 4. Ground Two Of The Second Amended Petition Is the Same As, or Properly Relates Back To, The First Amended Petition 8 In Ground Two of the Second Amended Petition, Aguilar argued: 9 PETITIONER’S RIGHT TO DUE PROCESS UNDER THE FIFTH 10 AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION WERE VIOLATED BASED ON THE 11 IMPROPER JURY INSTRUCTIONS FOR PREMEDITATION, WILLFULNESS AND DELIBERATION. 12 CR 28 at 8. 13 In Claim Five of the First Amended Petition, Aguilar argued: 14 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY 15 FAILING TO GIVE JURY INSTRUCTIONS WHICH ADEQUATELY DISTINGUISHED THE ELEMENTS OF MALICE 16 AFORETHOUGHT AND PREMEDITATION / DELIBERATION. 17 CR 12 at 13. 18 These two grounds are the same. Both argue that the trial court failed to distinguish the elements 19 of malice aforethought, premeditation and deliberation. Compare CR 28 at 8-11 with CR 12 at 13-15. 20 Thus, Ground Two in the Second Amended Petition is not a new ground for relief, satisfying the Mayle 21 test. At the very least, they rely upon the same core of operative facts, namely the use of the Kazlyn 22 instruction and the failure to correct that error on appeal. Therefore, Ground Two is the same as, or 23 relates back to, claims in the First Amended Petition. 24 5. Ground 3 of the Second Amended Petition Relates Back To Claims in the First Amended Petition 25 In Ground 3 of the Second Amended Petition, Aguilar argued: 26 PETITIONER’S CONVICTION IS INVALID UNDER FEDERAL 27 CONSTITUTIONAL GUARANTEES OF DUE PROCESS OF LAW BECAUSE THE TRIAL COURT FAILED TO PROPERLY 28 INSTRUCT THE JURY ON THE MENS REA REQUIRED TO

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1 FIND PETITIONER LIABLE FOR MURDER. U.S. CONST. AMENDS. V, VIII, XIV. 2 CR 28 at 11. 3 In Claim Sixteen of the First Amended Petition, Aguilar alleged, “Appellate counsel Morgan D. 4 Harris failed to raise meritorious claims before the Nevada Supreme Court, so as to establish every 5 element of the case and issues on David's direct appeal and failed to put on a zealous and loyal 6 representation on behalf of David.” CR 12 at 38. 7 These arguments are sufficiently similar to allow for relation back. They both challenge the 8 failure to establish every element of the case, which includes the mens rea element. Further, the factual 9 allegations set forth under Claim 16 generally challenge whether Aguilar was involved in any way in the 10 shooting of the victim and whether there was a conspiracy between them to kill the victim. See CR 12 11 at 26-29. While the First Amended Petition argument is framed as an ineffective assistance of appellate 12 counsel claim, it is based on a similar substantive error as alleged in the Second Amended Petition. That 13 is sufficient for relation back purposes. Cf. Nguyen v. Curry, 736 F.3d 1287, 1296-97 (9th Cir. 2013) 14 (appellate counsel ineffectiveness claim raised in untimely amended petition related back to timely 15 petition raising underlying substantive error). As such, Ground Three relates back to claims in the First 16 Amended Petition. 17 6. Subparts of Ground Twelve Of The Second Amended Petition Are the Same as, or 18 Relate Back to, The First Amended Petition 19 a. Ground 12(C)(1) 20 Respondents’ untimeliness argument as to Ground 12(C)(1) of the Second Amended Petition 21 rests on an erroneous argument that the first amended petition was untimely. CR 59 at 23. However, 22 Respondents have conceded elsewhere in their motion that the first amended petition was timely. CR 23 59 at 17. As shown above, the first Amended Petition was timely filed. This ground is identical to 24 Claim 18(B)(1) of the First Amended Petition. Compare CR 28 at 30 with CR 12 at 40. Thus, Ground 25 12(C)(1) of the Second Amended Petition is timely. 26 b. Ground 12(B) 27 In Ground 12(B) of the Second Amended Petition, Aguilar argued: 28

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1 Appellate counsel was ineffective for failing to ensure that the Nevada Supreme Court applied the Byford decision to Petitioner’s 2 case before his conviction became final 3 CR 28 at 31. 4 This issue relies upon the same core of operative facts as Grounds 5 and 18(A) in the First 5 Amended Petition. CR 12 at 13-15, 41. The operative facts of the claims in the First Amended Petition 6 rely upon the erroneous Kazlyn instruction and the efforts to present this issue to the Nevada Supreme 7 Court for that court to provide appropriate relief on appeal due to that improper instruction. At its core, 8 Ground 12(B) also relies upon these same facts. Accordingly, Ground 12(B) is the same as, or relates 9 back to, claims in the First Amended Petition. 10 c. Grounds 12(C)(2) and 12(C)(3) of the Second Amended Petition Properly Relate Back To The First Amended Petition 11 Grounds 12(C)(2) and 12(C)(3) of the Second Amended Petition argue that appellate counsel was 12 ineffective for failing to properly charge the jury on a required element of the crime. CR 28 at 33-36. 13 In Claim Sixteen of the First Amended Petition, Aguilar alleged, “Appellate counsel Morgan D. Harris 14 failed to raise meritorious claims before the Nevada Supreme Court, so as to establish every element of 15 the case and issues on David's direct appeal and failed to put on a zealous and loyal representation on 16 behalf of David.” CR 12 at 38. These arguments are sufficiently similar to allow for relation back. 17 They both challenge the failure to establish every element of the case, which includes the mens rea 18 element. Further, the factual allegations set forth under Claim 16 generally challenge whether Aguilar 19 was involved in any way in the shooting of the victim and whether there was a conspiracy between them 20 to kill the victim. See CR 12 at 26-29. Therefore, Grounds 12(C)(2) and 12(C)(3) of the Second 21 Amended Petition are timely filed. 22 B. BECAUSE AGUILAR IS ACTUALLY INNOCENT OF FIRST-DEGREE MURDER, HIS 23 UNTIMELY CLAIMS SHOULD BE HEARD BY THIS COURT. 24 Aguilar acknowledges that Grounds 11 and 12(B)(5) of the Second Amended Petition are 25 untimely. However, Aguilar can overcome the timeliness bar as to these grounds, and any other grounds 26 that this Court determines are untimely, because he is actually innocent of First-Degree Murder. 27 The Supreme Court has recently held that actual innocence, if proven under the Schlup standard, 28 can serve as a gateway through which a petitioner may pass to overcome the expiration of the statute of

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1 limitations. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013). A petitioner carries his burden under 2 Schlup if he “presents evidence of innocence so strong that a court cannot have confidence in the 3 outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional 4 error.” Schlup, 513 U.S. at 316. One way a petitioner can demonstrate actual innocence is to show in 5 light of subsequent case law that he cannot, as a legal matter, have committed the alleged crime. 6 Vosgien v. Persson, 742 F.3d 1131, 1134 (9th Cir. 2014) (relying upon Bousley). 7 Aguilar can establish actual innocence on the first-degree murder conviction under this standard. 8 Aguilar was prosecuted for first-degree murder under three theories: (1) direct participant in a 9 premeditated, deliberate, and willful murder; (2) aiding and abetting a first-degree murder; and (3) he 10 was vicariously liable as a member of a conspiracy. However, after the conviction, the Nevada Supreme 11 Court invalidated all three of these legal theories on which the State sought to hold Aguilar responsible 12 for first-degree murder. Byford v. State, 994 P.2d 700, 712-14 (Nev. 2000) (change to definition of 13 premeditated/deliberate murder); Sharma v. State, 56 P.3d 868 (Nev. 2002) (change to definition of 14 aiding and abetting); Bolden v. State, 922, 124 P.3d 191, 200 (Nev. 2005) (change to definition of 15 conspiratorial liability). 16 Under the new standards for each of these theories, Aguilar is actually innocent. With respect 17 to the first theory, the Nevada Supreme Court changed the law to separately define premeditation and 18 deliberation. Byford, 994 P.2d at 712-14. That change rendered Aguilar innocent under this theory. 19 The State claimed that Gilbert shot the victim. There was no evidence that Aguilar was anywhere near 20 the shooting when it occurred. In fact, he was shooting his weapon off into the distance in an entirely 21 different direction and was actually fleeing the scene at the time of the shooting of the victim.2 Thus, 22 there was no evidence that Aguilar himself engaged in any deliberation prior to the shooting. The 23 evidence presented at trial was that Aguilar and Gilbert fired their weapons seemingly in a random 24 fashion in a heated response to an incident that had occurred minutes before at a 7-Eleven. It is 25 reasonable to infer that this anger was not directed at the victim due to the lack of any prior relationship 26 27 2 To note, under the Bousley standard, it is irrelevant whether Aguilar’s conduct was 28 otherwise illegal. Vosgien, 742 F.3d at 1135. The question is whether Aguilar was actually innocent of the counts for which he was charged and convicted. Id.

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1 with him. The victim was hit by only one bullet out of the many that were fired in many directions in 2 a short amount of time prior to the arrival of the police. The evidence showed that Aguilar was not 3 aware of, or involved in, the shooting of the victim. As such, there was no evidence to show that Aguilar 4 was guilty of a premeditated/deliberate murder. 5 With respect to the second theory, the Nevada Supreme Court changed the definition of aiding 6 and abetting to preclude a conviction solely on the basis that an act of an accomplice was reasonably 7 foreseeable. Rather, a person may be found liable as an aider or abettor to an offense only where the 8 State has proven beyond a reasonable doubt that the person had the specific intent to commit the target 9 offense. Sharma, 56 P.3d at 872. That change rendered Aguilar innocent under this theory. 10 There was little to no evidence that Aguilar aided or abetted in the shooting of the victim, Mark 11 Emerson, or that Aguilar had the specific intent to commit a first-degree murder of Emerson. Terry 12 Maldonado testified at trial that, after she heard gun shots outside her apartment, she walked outside her 13 apartment and saw a man who fit Aguilar’s description standing at the western edge of a grassy field and 14 shooting in a westerly direction away from Emerson’s apartment, which was located to the southeast of 15 Maldonado’s apartment (CR 14, Ex. 36 at 16, 32-34). She believed that this man continued to move to 16 the west after she first saw him (Id. at 38-41). Maldonado’s testimony established that Aguilar was not 17 shooting towards Emerson’s apartment and, during the shooting, was actually walking away from the 18 apartment. 19 Gilbert’s wife, Annette O’Neal, testified that she was out in the grassy field with Aguilar and 20 Gilbert, many feet away from Emerson’s apartment (CR 14, Ex. 36 at 72-76). She did not see either of 21 them moving towards the apartment (Id. at 76). She saw lights from police cars and, in response, began 22 running back to her apartment at 840 Mantis Way through the grassy area (Id. at 76-77). While she was 23 running, Aguilar ran past her towards the apartment and arrived at the apartment before her (Id. at 77). 24 She did not see what Gilbert did after she started running and he arrived at the apartment after what 25 “seemed like a long time” (Id. at 76, 79). 26 It was clear that the shooting of Emerson occurred in the interval in between when O’Neal and 27 Aguilar ran away from the grassy area and Gilbert returned to their apartment. Marla Emerson, the 28 victim’s wife, heard a series of gunshots and went to her bedroom with her children. Her husband, Mark

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1 Emerson, grabbed the phone and then went out on their patio. She then heard another series of gunshots, 2 went to her patio, and saw her husband on the ground (CR 14, Ex. 36 at 168-69). A man holding a rifle 3 was standing behind her husband. She identified Gilbert as this man (Id. at 169-71). Emerson ran back 4 inside and the police arrived on foot soon afterwards (Id. at 172-77). 5 Officer Chad Brown testified that, when he arrived at the scene, he engaged in a gun battle with 6 a bald, white man wearing a black tank top (CR 14, Ex. 37 at 87-88). Brown first saw this man as he 7 was standing on a corner just to the east of Emerson’s apartment. At the time, the man was shooting in 8 a westerly direction towards Emerson’s apartment (Id. at 88). Brown told the man to drop the gun and 9 the man pointed the gun at Brown and fired (Id. at 88-89). Brown returned fire (Id. at 89). Two bullets 10 fired from Brown’s gun were recovered inside a wall to the east of the patio door of Emerson’s 11 apartment (CR 14, Ex. 38 at 71; CR14, Ex. 39 at 65-66). The man ran north down Mantis into an 12 apartment at 840 Matis (CR 14, Ex. 38 at 90). Brown later identified Gilbert as this man from a 13 surveillance video taken from a 7-Eleven store (CR 14, Ex. 37 at 91-92). Brown’s testimony confirmed 14 that Gilbert was near Emerson’s apartment at the end of the incident, at a time when O’Neal had testified 15 that she and Aguilar had already fled the area. 16 Thus, there was no evidence that Aguilar was anywhere near Emerson’s apartment at the time 17 that he was shot. Indeed, the evidence showed that he fired his weapon away from the apartment, his 18 focus was on something to the west of the grassy area, and he was literally running away from the scene, 19 and was most likely back at the apartment, at the time that the shooting occurred. At bottom, there was 20 little to no evidence that Aguilar harbored the specific intent to commit a first-degree murder of 21 Emerson. 22 With respect to the third theory, the Nevada Supreme Court subsequently held after Aguilar’s 23 trial that a defendant may not be held criminally liable for the specific intent crime committed by a 24 coconspirator simply because that crime was a natural and probable consequence of the object of the 25 conspiracy. Bolden, 124 P.3d at 200. To prove a specific intent crime, the State must show that the 26 defendant actually possessed the requisite statutory intent. Id. That change rendered Aguilar innocent 27 under this theory. For the same reasons discussed above, there simply was no evidence to establish that 28 Aguilar had the specific intent to shoot the victim. The State claimed it was Gilbert who shot the victim

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1 and the evidence showed that Aguilar was nowhere near the shooting and was actually running away 2 from the scene when it happened. There was no evidence that the shooting of the victim was part of a 3 pre-planned conspiracy as they had no prior relationship with the victim. 4 Thus, under the changes to the , Aguilar is actually innocent of first-degree murder. To the 5 extent that this Court concludes that issues in the Second Amended Petition are untimely, Aguilar can 6 overcome this procedural obstacle based on his sufficient showing of actual innocence.3 7 C. GROUNDS OF AGUILAR’S SECOND AMENDED PETITION ARE NOT BARRED FROM REVIEW UNDER THE PROCEDURAL DEFAULT DOCTRINE BECAUSE 8 (1) THEY WERE FAIRLY PRESENTED ON DIRECT APPEAL; (2) AGUILAR CAN SHOW CAUSE AND PREJUDICE TO OVERCOME THE DEFAULT; AND (3) A 9 MISCARRIAGE OF JUSTICE WOULD OCCUR IF THE CLAIMS WERE NOT REVIEWED ON THE MERITS 10 Respondents argue that seven grounds in the Second Amended Petition are procedurally 11 defaulted: Grounds One, Two, Three, Four, Ten, Eleven, and Twelve. CR 59 at 25-26. However, 12 Grounds One and Two were fairly presented to the Nevada Supreme Court as constitutional claims on 13 direct appeal. Therefore, they are not procedurally defaulted. While the remaining claims were rejected 14 in state court on a procedural ground, Aguilar can show cause and prejudice to overcome the default on 15 Ground 12 under Martinez v. Ryan, 132 S. Ct. 1309 (2012). Further, Aguilar can show that a 16 miscarriage of justice would occur if all of the procedural defaulted claims were not heard on the merits 17 under Schlup and Bousley. 18 1. Grounds One And Two Of Aguilar’s Second Amended Petition Are Not 19 Procedurally Defaulted Because They Were Fairly Presented to the Nevada Supreme Court on Direct Appeal 20 Grounds One and Two of Aguilar’s Second Amended Petition were fairly presented as 21 constitutional claims on direct appeal and the Nevada Supreme Court decided these claims on their 22 merits. Thus, these claims are not procedurally defaulted. 23 24 25 3 It is not clear whether “new evidence” is necessary to establish actual innocence under 26 Bousley. However, to the extent that it is necessary, Aguilar does have new evidence to establish his innocence. Namely, the evidence that the gun that killed the victim can be traced back to Officer Brian 27 Debecker. Cr 28 at 18-19. This is critical as Debecker is notorious for the high number of shootings that he has been involved in. See Exs. 179, 180 (indicating that, as of November 2011, Debecker had 28 been involved in five shootings since 1998, the second most of any active officer). Based on this information, a strong inference can be drawn that Debecker was involved in the shooting.

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1 With respect to Ground One, this claim was presented to the Nevada Supreme Court as Ground 2 One in the opening brief in Gilbert’s appeal. CR 15, Ex. 64 at 11. Further, it was presented as a 3 constitutional claim because Gilbert argued that the error should be reviewed under the harmless error 4 standard for constitutional violations. Id. at 8-9 (citing Chapman v. California, 386 U.S. 18 (1967)). 5 More important, the Nevada Supreme Court specifically decided the merits of this issue and then applied 6 its decision on this issue to Aguilar, not just Gilbert. CR 15, Ex. 70 at 6 n. 6. The court stated, “David 7 Aguilar does not seek review of this issue on appeal. Again, because of our consolidation of these 8 appeals, our ruling on the issue applies with equal force to him.” Id. Because the Nevada Supreme 9 Court specifically decided the issue and applied it to Aguilar, the ground was exhausted on direct appeal. 10 See Casey v. Moore, 386 F.3d 896, 916 at n. 18 (9th Cir. 2004) (“[A] claim is exhausted if the state’s 11 highest court expressly addresses the claim, whether or not it was fairly presented.”); Sandgathe, 314 12 F.3d at 376-77. 13 With respect to Ground Two, both parts of the ground were exhausted on direct appeal. First, 14 with regard to Part(A), Aguilar argued on appeal the following: 15 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO GIVE JURY INSTRUCTIONS WHICH 16 ADEQUATELY DISTINGUISHED THE ELEMENTS OF MALICE AFORETHOUGHT AND PREMEDITATION / DELIBERATION 17 CR 15, Ex. 65 at 22. Although no federal constitutional provisions were specifically cited in the point, 18 Aguilar did advise the state court of the constitutional nature of the claim. For example, he argued 19 “[f]undamental fairness requires that jury instructions must be stated in language such that a jury will 20 understand [the distinction between wilful, deliberate, and premeditated]. The trial court failed to 21 accomplish this in the case at bar.” CR 15, Ex. 65 at 23. Fundamental fairness implicates constitutional 22 concerns. See generally Schriro v. Summerlin, 542 U.S. 348 (2004); Lisenba v. People of State of 23 California, 314 U.S. 219, 236 (1941) (As applied to a criminal trial, denial of due process is the failure 24 to observe that fundamental fairness essential to the very concept of justice). Furthermore, in the 25 conclusion of his direct appeal, Aguilar wrote, “Based upon the prejudicial errors committed by the trial 26 court in the trial of the present case, the demands of justice and constitutional guarantee of a fair trial 27 require that the judgment of conviction be reversed and that a new trial be ordered.” CR 15, Ex. 65 at 28

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1 25-26 (emphasis added). While his statement in the conclusion, standing alone, would be insufficient 2 to fairly present the constitutional nature of the claim, it does meet the exhaustion requirement when 3 paired with the fundamental fairness language set forth in the body of the point. It should also be noted 4 that this claim was specifically presented to the trial court as a constitutional violation. CR 14, Ex. 40 5 at 9. Clearly, Aguilar was asking the court to review this preserved issue on appeal. Because Aguilar 6 fairly presented the constitutional nature of this claim on direct appeal and the claim was not 7 procedurally defaulted in that proceeding, this ground is not procedurally defaulted. Cone v. Bell, 556 8 U.S. 449, 469 (2009) (“Cone properly preserved and exhausted his Brady claim in state court; therefore, 9 it is not defaulted.”). 10 With regard to Ground Two(B), this claim was also fairly presented on direct appeal. Ground 11 Two(B) of the Second Amended Petition argues that the Nevada Supreme Court violated due process 12 when it did not apply the change in law with respect to the first-degree instruction to Aguilar’s case on 13 appeal. Aguilar exhausted this claim because he challenged the first-degree instruction on appeal, which 14 gave the Nevada Supreme Court the opportunity to apply the change in law to his case before it became 15 final. There was nothing else that Aguilar could have done to present this issue to the Nevada Supreme 16 Court. The constitutional issue did not become ripe until Byford was decided. But when it was decided, 17 the Nevada Supreme Court was constitutionally required to apply the decision to Aguilar’s case. Aguilar 18 did not need to take any further steps to have that done. The court was obligated to apply the decision 19 because the conviction was not final and Aguilar had asked for relief on the error with respect to the 20 first-degree murder charge. As such, he clearly gave the Nevada Supreme Court a full and fair 21 opportunity to decide upon this constitutional issue. Simply because the Nevada Supreme Court did not 22 address the claim on direct appeal does not mean that the claim is procedurally defaulted. The court 23 simply overlooked the claim. As such, Aguilar retains the opportunity to seek habeas review on this 24 claim. Cf. Johnson v. Williams, 133 S. Ct. 1088 (2013) (habeas petitioner can obtain receive de novo 25 review of constitutional claim where evidence in record demonstrates that state court overlooked fairly 26 presented constitutional claim). 27 To be sure, Aguilar presented Grounds One and Two a second time in his second state post- 28 conviction petition (Ex. 170), and, in that proceeding, the Nevada Supreme Court concluded that they

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1 were procedurally defaulted (Ex. 183). However, once a petitioner has fairly presented a constitutional 2 claim to the state court in an appropriate proceeding, a later procedural default ruling does not bar habeas 3 review under the procedural default doctrine. See Cone, 556 U.S. at 467 (“A claim is procedurally 4 barred when it has not been fairly presented to the state courts for their initial consideration – not when 5 the claim has been presented more than once.”). 6 2. Aguilar Can Establish Cause to Overcome the Procedural Default on Ground Twelve Of Aguilar’s Second Amended Petition under Martinez v. Ryan 7 Under Ground Twelve of the Amended Petition, Aguilar argued that his appellate counsel was 8 ineffective on various grounds. Aguilar’s post-conviction counsel did not raise any of these claims 9 during the first state post-conviction petition proceedings (Exs. 73, 104-06). Rather, they were not raised 10 until his second state court petition filed in 2013 (Ex. 170). The Nevada Supreme Court concluded that 11 this ground was procedurally defaulted (Ex. 183). Under Martinez v. Ryan, 132 S.Ct. 1309 (2012), 12 Aguilar can establish cause for the procedural default. He can also show prejudice. 13 In Martinez, the United States Supreme Court held that the failure to appoint counsel, or the 14 ineffective assistance of such counsel in a state post-conviction proceeding, may establish cause to 15 overcome a procedural default. Martinez, 132 S.Ct. at 1315, 1318-19. It stated: 16 Allowing a federal habeas court to hear a claim of ineffective assistance 17 of trial counsel when an attorney's errors (or the absence of an attorney) caused a procedural default in an initial-review collateral proceeding 18 acknowledges, as an equitable matter, that the initial-review collateral proceeding, if undertaken without counsel or with ineffective counsel, 19 may not have been sufficient to ensure that proper consideration was given to a substantial claim. From this it follows that, when a State 20 requires a prisoner to raise an ineffective-assistance-of trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of 21 an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral 22 proceeding for a claim of ineffective assistance of counsel. The second is where appointed counsel in the initial review collateral proceeding, 23 where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984.) 24 Id. at 1317-8. 25 The Court reaffirmed and expanded the rule in Trevino v. Thaler, 133 S. Ct. 1911 (2013). In 26 Trevino, the Supreme Court extended Martinez's application to situations where the "state procedural 27 framework, by reason of its design and operation, makes it highly unlikely in a typical case that a 28

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1 defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel 2 on direct appeal." Id. at 1921. 3 The Ninth Circuit has extended the Martinez/ Trevino rule to include claims that post-conviction 4 counsel was ineffective for failing to raise ineffective assistance of appellate counsel claims. Nguyen 5 v. Curry, 736 F.3d 1287 (9th Cir. 2013). 6 To establish cause under Martinez/Trevino, a petitioner must show: (1) the underlying ineffective 7 assistance of appellate counsel claim is “substantial”; (2) the petitioner was not represented or had 8 ineffective counsel during the post-conviction review proceeding; (3) the state post-conviction review 9 proceeding was the initial review proceeding; and (4) state law required (or forced as a practical matter) 10 the petitioner to bring the claim in the initial review collateral proceeding. Dickens v. Ryan, 740 F.3d 11 1302, 1319 (9th Cir. 2014) (en banc) (citing Trevino). 12 Preliminarily, there really can be no dispute as to Elements 3, and 4. Aguilar is claiming that he 13 received ineffective assistance of post-conviction counsel during the post-conviction review on his first 14 state petition. Further, this petition was the first available opportunity that Aguilar had to raise a 15 challenge to the effectiveness of his appellate counsel. 16 Further, Aguilar can show that the underlying ineffectiveness claims are substantial and that post- 17 conviction counsel was ineffective for failing to raise them. Aguilar has provided extensive allegations 18 in the Second Amended Petition as to why the claims raised in Ground 12 are substantial. The 19 allegations set forth under Ground 12 of the Second Amended Petition (CR 28 pages 30 to 41) are 20 incorporated and adopted herein. See Fed. R. Civ. P. 10(c) (“A statement in a pleading may be adopted 21 by reference elsewhere in the same pleading or in any other pleading or motion.”). In particular, 22 Grounds 12(C)(2) and (3) present the substantial issue concerning appellate counsel’s failure to raise 23 issues with respect to the proper mens rea element on the first-degree murder charge. As discussed in 24 subsection II.B of the instant pleading, the evidence at trial showed that, under the correct legal standard, 25 Aguilar did not possess the required specific intent to be convicted of first-degree murder. The 26 allegations set forth in subsection II.B are incorporated and adopted herein. 27 Ground 12(C)(5) is also a substantial claim. The factual record established that the prosecution 28 exercised its peremptory challenges in a racially discriminatory fashion. The prosecutor’s reasons for

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1 striking several African-American jurors were obviously pretextual. A comparative analysis 2 demonstrates that this is the case. Just as important, it was clear that the trial court did not engage in the 3 proper three step inquiry, stopping its analysis at step two without allowing the defense to establish that 4 the proferred reasons were simply a pretext for discrimination. There was no reasonable justification 5 for failing to raise this claim on appeal. Trial counsel preserved the Batson issue in the trial court. A 6 full factual record was made establishing the prosecutor’s discriminatory use of the peremptories. 7 Further, any competent appellate attorney would see that the court’s legal analysis did not properly 8 follow the Batson three-step protocol. The trial court never provided the defense with an opportunity 9 to prove purposeful discrimination – the whole purpose of the Batson inquiry. It demanded further 10 review from an appellate court. Had appellate counsel raised the claim, Aguilar would have been 11 entitled to, at the very least, a remand for a hearing on step three of the Batson protocol. And, based on 12 the full factual record, he would have been able to establish that the prosecutor’s proffered reasons at 13 step two of the Batson inquiry were nothing more than a pretext for discrimination. 14 For similar reasons, post-conviction counsel was ineffective for failing to raise these claims. The 15 underlying ineffective assistance of appellate counsel claims were substantial. It was unreasonable for 16 post-conviction counsel to fail to raise them. Further, had post-conviction counsel raised these claims, 17 and in particular the Batson-related claim, the outcome of the post-conviction proceedings would have 18 been different. 19 Accordingly, Aguilar can establish cause to overcome the procedural default on Ground 12 of 20 the Second Amended Petition. 21 3. All of the Procedurally Defaulted Claims Should be Reviewed on the Merits Because Aguilar Can Establish that He Is Actually Innocent 22 Once again, Respondents argue that Grounds One, Two, Three, Four, Ten, Eleven, and Twelve 23 are procedurally defaulted. Aguilar acknowledges that Grounds Three, Four, Ten, and Eleven are 24 procedurally defaulted (See Ex. 183). However, these claims, as well as any other claims that this Court 25 determines are procedurally defaulted, should be reviewed on the merits because Aguilar can establish 26 that he is actually innocent under Schlup and Bousley. 27 28

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1 A petitioner can obtain a merits review of a procedurally defaulted claim if he can establish that 2 there has been a “fundamental miscarriage of justice,” in other words, a conviction of one who is actually 3 innocent. Murray v. Carrier, 477 U.S. 478, 496 (1986). As discussed previously under subsection II.B, 4 a petitioner carries his burden under Schlup if he “presents evidence of innocence so strong that a court 5 cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free 6 of nonharmless constitutional error.” Schlup, 513 U.S. at 316. One way a petitioner can demonstrate 7 actual innocence is to show in light of subsequent case law that he cannot, as a legal matter, have 8 committed the alleged crime. Vosgien, 742 F.3d at 1134 (relying upon Bousley). 9 Aguilar can establish actual innocence on the first-degree murder conviction under this standard. 10 Aguilar was prosecuted for first-degree murder under three theories: (1) direct participant in a 11 premeditated, deliberate, and willful murder; (2) aiding and abetting a first-degree murder; and (3) he 12 was vicariously liable as a member of a conspiracy. However, after the conviction, the Nevada Supreme 13 Court invalidated all three of these legal theories on which the State sought to hold Aguilar responsible 14 for first-degree murder. Byford, 994 P.2d at 712-14 (change to definition of premeditated/deliberate 15 murder); Sharma, 56 P.3d 868 (change to definition of aiding and abetting); Bolden v. State, 124 P.3d 16 at 200 (change to definition of conspiratorial liability). 17 Under the new standards for each of these theories, Aguilar is actually innocent. Under 18 subsection II.B of this pleading, Aguilar explained in great deal why the trial evidence showed that he 19 was actually innocent of first-degree murder. Those allegations are incorporated and adopted herein. 20 See Fed. R. Civ. P. 10(c). 21 Accordingly, to the extent that claims in the Second Amended Petition are procedurally 22 defaulted, this Court should review the merits of the claims based on Aguilar’s actual innocence of first- 23 degree murder. 24 D. GROUND SEVEN IS NOT BARRED BY STONE V. POWELL 25 Respondents argue that Ground Seven is barred under Stone v. Powell, 428 U.S. 465 (1976). 26 This argument has no merit. In Stone, the Supreme Court concluded that a habeas petitioner cannot 27 obtain habeas relief on the ground that his Fourth Amendment rights were violated. Id. at 486. 28 However, Ground Seven is not seeking relief strictly on the basis of a Fourth Amendment violation.

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1 Rather, it is alleging a Sixth Amendment violation. Specifically, Ground Seven alleges an ineffective 2 assistance of counsel claim based on counsel’s failure to file a motion to suppress based on a Fourth 3 Amendment violation. The Supreme Court has specifically held that this type of claim is cognizable in 4 a § 2254 petition. See Kimmelman v. Morrison, 477 U.S. 365 (1986) (restriction on federal habeas 5 review of Fourth Amendment claims announced in Stone does not extend to Sixth Amendment 6 ineffective assistance of counsel claims which are founded primarily on incompetent representation with 7 respect to a Fourth Amendment issue). 8 E. MOTION TO STRIKE EXHIBITS 143 TO 168 AND 179 TO 180 9 Respondents argue that this Court should strike exhibits 143 to 168 and 179 to 180. There is no 10 basis to strike any of these exhibits. First, with respect to Exhibits 143 to 168, these are the juror 11 questionnaires that were used in support of the claims related to Batson (Ground 11 and 12(C)(5) of the 12 Second Amended Petition). These documents are part of the state court record as they were presented 13 to the Nevada Supreme Court in the appeal of the second state petition. So there is really no conceivable 14 basis to strike them. More important, if this Court concludes that the Batson-related claims should be 15 reviewed on the merits, then this Court would be reviewing them de novo. These two claims (Grounds 16 11 and 12(C)(5)) were procedurally defaulted. If this Court concludes that Aguilar can overcome the 17 procedural default on the claims, the standard of review under § 2254(d) would not apply as there was 18 no adjudication on the merits in state court. As a judge of this Court recently stated, “if the court 19 determines that § 2254(d)(1) does not apply, then there is no such limitation [to reviewing exhibits that 20 were not before the state court]. At this stage of the proceeding, the court cannot determine whether 21 § 2254(d)(1) applies. The court will not strike the exhibits. The parties may argue in the answer and 22 the reply whether the court may consider those exhibits in its evaluation of the merits of the amended 23 petition.” Clark v. Neven, No. 2:11-cv-00585-KJD-PAL, 2014 WL 1304332 at *2 (D. Nev. March 31, 24 2014). This Court should take the same approach and deny the request as to these exhibits. 25 With respect to Exhibits 179 and 180, these exhibits are newly discovered evidence concerning 26 misconduct involving one of the officers involved in this case. As discussed infra note 3, should this 27 Court determine that Aguilar needs to present newly discovered evidence to establish his actual 28 innocence argument, this evidence can be used as part of that analysis as it shows that the officer whose

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1 gun was responsible for the shooting had been involved in numerous officer-involved shootings. It was 2 consistent with a defense theory that someone else committed the shooting. At bottom, whether there 3 has been a miscarriage of justice is a federal question and Aguilar is entitled to present whatever 4 evidence relevant to that determination. 5 III. 6 CONCLUSION 7 Aguilar’s Second Amended Petition properly relates back to the First Amended Petition and is 8 timely. To the extent that any ground is untimely, Aguilar can overcome untimeliness because he is 9 actually innocent. Further, Grounds One and Two are not procedurally defaulted. Aguilar can overcome 10 the procedural default on Ground 12 under Martinez. Aguilar can also overcome any procedural default 11 because he is actually innocent. Ground Seven is not barred under Stone v. Powell. There is no basis 12 on which to strike any exhibit. Aguilar respectfully requests that this Court deny Respondents’ Motion 13 to Dismiss in its entirety and order the Respondents to answer the Second Amended Petition. 14 Alternatively, a hearing should be ordered. 15 DATED this 14th day of September, 2015. 16 LAW OFFICES OF THE FEDERAL PUBLIC DEFENDER 17 18 /s/ Jonathan M. Kirshbaum 19 By: JONATHAN M. KIRSHBAUM, Assistant Federal Public Defender 20 21 22 23 24 25 26 27 28

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1 CERTIFICATE OF SERVICE 2 The undersigned hereby certifies that she is an employee in the office of the Federal Public 3 Defender for the District of Nevada and is a person of such age and discretion as to be competent to 4 serve papers. 5 That on September 14, 2015, she served a true and accurate copy of the foregoing to the 6 United States District Court, who will e-serve the following addressee: 7 Michael Bongard Deputy Attorney General 8 1539 Avenue F Ely, Nevada 89301 9 10

11 /s/ Jineen DeAngelis Susan Kline, an Employee of the 12 Federal Public Defender’s Office 13 14 15 16 17 18 19 20 21 22 23 24 25 26 O:\00 NCH\cases-open\Aguilar, David\Pleadings\OPP_2015.wpd 27 28

20 APP. 138 (137 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-5, Page 1 of 13 EXHIBIT D

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 APP. 151 (150 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-6, Page 1 of 15 EXHIBIT E

EXHIBIT E APP. 152 (151 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 2 of1 of15 14 APP. 153 (152 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 3 of2 of15 14 APP. 154 (153 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 4 of3 of15 14 APP. 155 (154 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 5 of4 of15 14 APP. 156 (155 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 6 of5 of15 14 APP. 157 (156 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 7 of6 of15 14 APP. 158 (157 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 8 of7 of15 14 APP. 159 (158 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 9 of8 of15 14 APP. 160 (159 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID: Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 10 9of of 15 14 APP. 161 (160 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 11 10 of of15 14 APP. 162 (161 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 12 11 of of15 14 APP. 163 (162 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 13 12 of of15 14 APP. 164 (163 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 14 13 of of15 14 APP. 165 (164 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 64 DktEntry: Filed 02/22/16 2-6, Page Page 15 14 of of15 14 APP. 166 (165 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-7, Page 1 of 23 EXHIBIT F

EXHIBIT F APP. 167 (166 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 2 of1 of23 22

1 ADAM PAUL LAXALT Attorney General 2 MICHAEL J. BONGARD Nevada Bar No. 007997 3 Deputy Attorney General Criminal Justice Division 4 1539 Avenue F, Suite 2 Ely, Nevada 89301 5 Telephone: (775) 289-1630 [email protected] 6 Attorney for Respondent 7 8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE DISTRICT OF NEVADA 10 ) 11 DAYOMASHELL DAVID AGUILAR, ) Case No. 3:12-cv-0315-MMD-VPC ) 12 ) ANSWER TO REMAINING GROUNDS Petitioner, ) SECOND AMENDED PETITIONFOR 13 ) WRIT OF HABEAS CORPUS ) 14 vs. ) WARDEN BAKER, et al. ) 15 ) ) 16 Respondents. ) ) 17 18 Respondents, by and through counsel, ADAM PAUL LAXALT, Attorney General of The State 19 of Nevada, and MICHAEL J. BONGARD, Deputy Attorney General, hereby respond to Petitioner 20 DAYOMASHELL DAVID AGUILAR’s (AGUILAR) Second Amended Petition for Writ of Habeas 21 Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254. This motion is based upon the 22 following points and authorities, the exhibits filed in this matter, and all the documents and pleading on 23 file in this case. 24 . . . 25 . . . 26 . . . 27 . . .

2IILFHRIWKH28 . . . $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 1 APP. 168 (167 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 3 of2 of23 22

1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. PROCEDURAL HISTORY 3 A. Trial Court Proceedings. 4 On August 29, 1996, a Clark County grand jury returned a true bill against AGUILAR for the 5 charges of: conspiracy to commit murder; murder with the use of a deadly weapon; attempted murder 6 with the use of a deadly weapon; possession of a firearm by an ex-felon; two counts of discharging a 7 weapon at or into a structure; and two counts of discharging a firearm into a vehicle. Exh. 2 (ECF 13- 8 2). The clerk filed the indictment on August 30, 1996. Exh. 4 (ECF 13-4). On September 4, 1996, the 9 was continued. Exh. 1 (ECF 13-1at 3).1 On September 11, 1996, the State filed a notice of 10 intent to seek the death penalty. Exh. 5 (ECF 13-5). At his arraignment on September 11, 1996, 11 AGUILAR entered not guilty to the charges and invoked his right to a speedy trial. Exh. 6 (ECF 12 13-6). 13 On September 25, 1996, the parties appeared to discuss the trial date, which had previously been 14 set for October 21, 1996. Exh. 7 (ECF 13-7). Because AGUILAR invoked his right to speedy trial and 15 would not waive, the trial court rejected moving the trial to a later date. Id., (at 8). 16 On October 7, 1996, AGUILAR filed a motion to extend time in which to file a pre-trial habeas 17 corpus petition. Exh. 11 (ECF 13-11). AGUILAR filed a pre-trial petition for writ of habeas corpus on 18 October 9, 1996. Exh. 13 (ECF 13-13). The State filed supplemental notices of intent to seek the death 19 penalty on October 9 and 10, 1996. Exhs. 14-15 (ECF 13-14 and 13-15). 20 At a pre-trial hearing on October 11, 1996, the trial was continued to February 18, 1997. Exh. 21 16 (ECF 13-16). The trial court found the continuance necessary “in order to promote justice in this 22 case and an adequate defense for the defendants.” Id., (at 8). 23 On October 16, 1996, the trial court issued the pre-trial writ of habeas corpus for AGUILAR. 24 Exhs. 18, 20 (ECF 13-18 and 13-20). The State filed a return for the writ on October 16, 1996. Exh. 19 25 (ECF 13-19). On October 28, 1996, the trial court held a hearing on the pending motions. Exh. 21 26 . . . 27 . . .

2IILFHRIWKH28 $WWRUQH\*HQHUDO $YHQXH) 1 Page references refer to the pagination provided by the ECF filing. (O\1HYDGD 2 APP. 169 (168 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 4 of3 of23 22

1 (ECF 13-21). The co-defendant’s motion for disclosure of pre-sentence reports was continued, while 2 AGUILAR’s pre-trial habeas corpus petition was submitted. Id., (at 7, 15). The order granting the 3 motions for disclosure of uncharged acts and to disclose informants was filed on October 30, 1996. 4 Exh. 22 (ECF 13-22). 5 On January 14, 1997, during a pre-trial hearing, the court denied the motion for inspection of 6 pre-sentence reports and granted the motion to permit the co-defendant’s counsel to review his NCIC 7 report. Exh. 23 (ECF 13-23). 8 On January 17, 1997 AGUILAR filed a motion for a psychological examination. Exh. 24 (ECF 9 13-24). On January 24, 1997, the State filed a motion for psychiatric examination of the defendants. 10 Exh. 25 (ECF 13-25). 11 On August 25, 1997, the trial court held a hearing on the State’s motion for psychiatric 12 evaluation of the defendants. Exh. 28 (ECF 13-28). The matter was continued because the defense had 13 yet to determine if they were going to put their respective clients’ mental states at issue. Id., (at 3-4). 14 At the continued hearing on September 9, 1997, counsel for AGUILAR’s co-defendant announced they 15 would place his client’s mental health at issue. Exh. 29 (ECF 13-29 at 3). AUGILAR’s counsel 16 announced they would not be using an expert in the case-in-chief. Id. On September 18, 1997, the trial 17 court signed an order to transport AGUILAR to the public defender’s officer for the purposes of 18 conducting a polygraph examination. Exh. 30 (ECF 13-30). 19 The guilt phase of the trial began on September 30. 1997. Exh. 31 (ECF 14). On October 10, 20 1997, the jury found AGUILAR guilty of Counts 1, 2, 5, 6 and 9, and not guilty of Counts 3, 7 and 8. 21 Exh. 41 (ECF 14-12 at 5-7).2 On October 15, 1997, AGUILAR filed a motion requiring judicial review 22 of all victim impact evidence. Exh. 45 (ECF 14-16). The same date, AGUILAR filed a motion to bar 23 the admission of victim impact evidence. Exh. 46 (14-17). 24 . . . 25 . . . 26 . . . 27 . . .

2IILFHRIWKH28 $WWRUQH\*HQHUDO $YHQXH) 2 Only co-defendant Gilbert Aguilar was charged with Count 4, possession of a firearm by a felon. Exh. 43 (ECF 14-14 at 5). (O\1HYDGD 3 APP. 170 (169 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 5 of4 of23 22

1 The penalty phase began on October 15, 1997. Exh. 47 (ECF 14-18). On October 16, 1997, 2 AGUILAR filed a motion to limit the State’s penalty phase closing argument. Exh. 48 (ECF 14-19). 3 At the conclusion of the penalty hearing, the jury sentenced AGUILAR to life with the possibility of 4 parole. Exh. 53 (ECF 14-24). The State filed a notice to seek habitual criminal enhancement against 5 AGUILAR on October 29, 1997. Exh. 56 (ECF 14-27). 6 On December 8, 1997, AGUILAR appeared before the district court for sentencing. Exh. 58 7 (ECF 14-29). The court sentenced AGUILAR to: Count I, 120 months in the Department of 8 Corrections with parole eligibility after 48 months; Count II, life with the possibility of parole after 20 9 years consecutive to life with the possibility of parole for the use of a deadly weapon consecutive to 10 Count I; Count V, VI, VII and IX, 72 months with parole eligibility after 28 months consecutive to 11 Counts I and II and to each other. Id., (at 19-20). The clerk filed the judgment of conviction on January 12 9, 1998. Exh. 60 (ECF 14-31). AGUILAR filed his notice of appeal on February 6, 1998. Exh. 62 13 (ECF 15-1). 14 B. Appellate Proceedings, Nevada Supreme Court 15 In his opening brief on appeal, AGUILAR raised the following claims: 16 1.) The trial court committed prejudicial error by denying Defendant’s motion to suppress 17 evidence obtained during an illegal search of his person; 18 2.) The trial court committed prejudicial error by admitting totally irrelevant evidence of a 19 bayonet and machete being found in Defendant’s apartment; 20 3.) The trial court committed prejudicial error by admitting highly prejudicial evidence of 21 other wrongs; 22 4.) The trial court committed prejudicial error by failing to give jury instructions which 23 adequately distinguished between the elements of malice aforethought and premeditation/deliberation; 24 Exh. 65 (ECF 15-4 at 5). 25 The State filed its answer brief on October 6, 1998. Exh. 67 (ECF 15-6). AGUILAR filed a 26 reply brief. Exh. 69 (ECF 15-8). On December 20, 1999, the Nevada Supreme Court affirmed 27 AGUILAR’s convictions. Exh. 70 (ECF 15-9). Remittitur issued on January 18, 2000. Exh. 71 (ECF

2IILFHRIWKH28 15-10). $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 4 APP. 171 (170 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 6 of5 of23 22

1 C. State Habeas Corpus Proceedings, Eighth Judicial District Court. 2 On September 8, 2000, AGUILAR filed his state habeas corpus petition and memorandum of 3 authorities. Exhs. 73-74 (ECF 15-12 through 15-14). In his petition, AGUILAR raises the following 4 claims: Ground One: Ineffective assistance of trial counsel; 5 Ground Two: Ineffective assistance of trial counsel where trial counsel 6 failed to conduct adequate investigations uncovering evidence that Officer Bebecker fired the fatal shot; 7 Ground Three: Ineffective assistance of trial counsel where trial counsel 8 failed to conduct adequate investigations uncovering evidence that Officer Bebecker fired the fatal shot; 9 Ground Four: Ineffective assistance of appellate counsel; 10 Ground Five: Petitioner was denied a prompt judicial determination of 11 required under the Fourth and Fourteenth Amendments; 12 Ground Six: Illegal of Gloria Jean Olivare’s (Aguilar’s) residence violated the Fourth, Fifth and Fourteenth 13 Amendments; 14 Ground Seven: The trial court erroneously admitted tainted suggestive and unreliable line-up identification and in courtroom identification in 15 violation of the Sixth and Fourteenth Amendments; 16 Ground Eight: The trial court erred in allowing the prosecution to present prior bad act evidence through the use of prison pictures and a mug shot 17 line-up violating the Sixth and Fourteenth Amendments; 18 Ground Nine: Annette O’Neal Aguilar’s statements and testimony should have been suppressed due to coercive tactics used to obtain them; 19 Ground Ten: The palm print was erroneously admitted violating the 20 Fourteenth Amendment; Ground Eleven: The State introduced an erroneous diagram into evidence, 21 violating the Sixth and Fourteenth Amendments; 22 Ground Twelve: The 7-11 videotape was erroneously admitted into evidence due to a break in the chain of custody, in violation of the Sixth 23 and Fourteenth Amendments; 24 Ground Thirteen: The State failed to disclose, preserve and mishandled exculpatory evidence; 25 Ground Fourteen: The State violated Brady by failing to turn over police 26 reports of Officer Brian Debecker’s ownership of the murder weapon and failure to disclose police reports dispatch reports of the hit and run 27 incident at the 7-11 in violation of the Fifth and Fourteenth Amendments;

2IILFHRIWKH28 $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 5 APP. 172 (171 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 7 of6 of23 22

1 Ground Fifteen: Jury’s finding of guilt of murder due to extreme emotional distress is contradictory and ambiguous, in violation of the 2 Sixth and Fourteenth Amendments; 3 Ground Sixteen: Denial of due process and fair trial and reliable sentencing in violation of the Fifth, Eighth and Fourteenth Amendments. 4

5 Exh. 73 (ECF 15-12 at 12-16). 6 On September 14, 2000, the district court ordered Respondent to file a response to the petition. 7 Exh. 77 (18). The State filed the response on October 17, 2000. Exh. 80 (ECF 15-21). AGUILAR 8 filed a reply on November 1, 2000. Exh. 82 (ECF 15-23). 9 On January 29, 2007, AGUILAR filed a petition for writ of mandamus in the Nevada Supreme 10 Court requesting that court issued a writ to have his habeas corpus case set for a hearing. Exh. 84 (ECF 11 15-25). The Nevada Supreme Court issued a writ placing the matter back on the district court’s 12 calendar. Exh. 88 (ECF 15-29).3 13 On September 7, 2007, the district court held a hearing on the state habeas corpus petition, 14 which continued through November 30, 2007. Exhs. 91-93 (ECF 16 through ECF 16-3). At the 15 conclusion of the hearing, the district court denied AGUILAR’s petition. Exh. 93 (ECF 16-3 at 87-89). 16 The court’s written order was filed on February 8, 2008. Exh. 96 (Exh. 16-6). AGUILAR filed his 17 notices of appeal on December 14, 2007 and March 6, 2008. Exhs. 95, 99 (ECF 16-5, 16-9). 18 D. State Habeas Corpus Appellate Proceedings, Nevada Supreme Court. 19 On September 5, 2008, the Nevada Supreme Court reversed the denial of the petition and 20 remanded the matter back to district court for the purpose of appointing counsel and a new evidentiary 21 hearing, finding that the district court abused its discretion by failing to appoint counsel. Exh. 100 22 (ECF 16-10 at 4). 23 E. Remanded State Habeas Corpus Proceedings, Eighth Judicial District Court. 24 On October 8, 2008, the district court appointed Kristina Wildeveld to represent AGUILAR. 25 Exh. 103 (ECF 16-13). On January 11, 2010, AGUILAR and his co-defendant submitted supplemental 26 points and authorities. Exh. 104 (ECF 16-14). Claims raised in the supplemental pleading not raised in 27 AGUILAR’s original state petition are:

2IILFHRIWKH28 3 $WWRUQH\*HQHUDO The Nevada Supreme Court adjudicated the co-defendant’s petition and placed both cases on the district court’s calendar, $YHQXH) rather than adjudicating AGUILAR’s petition. (O\1HYDGD 6 APP. 173 (172 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 8 of7 of23 22

1 Gilbert and David were prejudiced by the State reading a multiple count indictment in open court exposing the jury to evidence of prior felony 2 conviction-ex-felon in possession of firearm in violation of the Sixth and Fourteenth Amendments; 3 The trial court committed reversible error in allowing Annette O’Neal to 4 testify against her spouse Gilbert Aguilar after their marriage had been consummated in May of 1997 in violation of the Sixth and Fourteenth 5 Amendments to the United States Constitution; 6 Id., (at 12). 7 On January 28, 2010, AGUILAR filed an additional supplement. Exh. 106 (ECF 16-16). The 8 State filed an opposition to the supplemental petition on March 4, 2010. Exh. 107 (ECF 16-17). On 9 March 29, 2010, the district court entered a written order denying a motion to sever the cases for 10 evidentiary hearing purposes. Exh. 108 (ECF 16-18). 11 The district court conducted a new evidentiary hearing on June 25, 2010. Exh. 109 (ECF 16- 12 19). The hearing concluded on December 3, 2010. Exh. 110 (ECF 16-20). The district court entered its 13 written order denying the petition on March 1, 2011. Exh. 114 (ECF 16-24). AGUILAR filed his 14 notice of appeal on December 9, 2010. Exh. 111 (ECF 16-21). 15 F. State Habeas Corpus Appellate Proceedings, Nevada Supreme Court. 16 On March 14, 2011, the Nevada Supreme Court remanded the matter for the appointment of 17 counsel. Exh. 117 (ECF 16-27). Counsel from the district court proceedings were appointed and filed 18 a joint motion to consolidate the cases for appeal. Exh. 121 (ECF 16-31). The court granted the motion 19 on September 22, 2011. Exh. 122 (ECF 16-32). The opening brief was filed on October 14, 2011. 20 Exh. 123 (ECF 16-33). The State filed its answer brief on November 10, 2011. Exh. 125 (ECF 16-35). 21 The Nevada Supreme Court affirmed the denial of AGUILAR’s state habeas corpus petition on 22 May 19, 2012. Exh. 126 (ECF 16-36). Remittitur issued on June 4, 2012. Exh. 129 (ECF 16-39). 23 G. Federal Habeas Corpus Proceedings. 24 AGUILAR mailed his original federal habeas corpus petition on June 5, 2012. ECF 9. 25 On December 12, 2012, AGUILAR filed a counseled, amended federal habeas corpus petition. 26 ECF 12. 27 On July 28, 2013, AGUILAR filed a counseled second amended petition. ECF 28. In that

2IILFHRIWKH28 pleading, AGUILAR claims: $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 7 APP. 174 (173 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 9 of8 of23 22

1 Ground One: Petitioner was denied his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution when the trial 2 court improperly denied the defense request to charge the jury on its theory of the defense; 3 Ground Two: Petitioner’s right to due process under the Fifth and 4 Fourteenth Amendments of the United States Constitution were violated based on the improper jury instructions for premeditation, willfulness and 5 deliberation and the Nevada Supreme Court failed to apply its holding in Byford to Petitioner’s case; 6 Ground Three: Petitioner’s conviction is invalid under federal 7 constitutional guarantees of due process of law because the trial court failed to properly instruct the jury on the mens rea required to find 8 petitioner liable for murder; 9 Ground Four: Petitioner’s rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution were violated when the 10 trial court admitted highly prejudicial and irrelevant evidence of a bayonet and machete being found in petitioner’s apartment; 11 Ground Five: Petitioner was denied his rights to the effective assistance of 12 counsel under the Sixth and Fourteenth Amendments to the United States Constitution where counsel failed to investigate and present evidence to 13 the jury regarding Officer Brian Debecker’s connection to the shooting; 14 Ground Six: Petitioner was denied his rights to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States 15 Constitution where counsel failed to prevent the admission of the tainted, unreliable and suggestive extra-judicial and in-court photographic lineup 16 identification; Ground Seven: Petitioner was denied his rights to the effective assistance 17 of counsel under the Sixth and Fourteenth Amendments to the United States Constitution where counsel failed to move to suppress the items 18 found in the warrantless police entry and search of petitioner’s residence; 19 Ground Eight: Petitioner was denied his rights to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United 20 States Constitution where counsel failed to challenge introduction of an edited 7-Eleven videotape; 21 Ground Nine: Petitioner was denied his rights to the effective assistance 22 of counsel under the Sixth and Fourteenth Amendments to the United States Constitution where counsel failed to investigate and pursue an 23 alternative suspect theory; 24 Ground Ten: Petitioner was denied his constitutional right to due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments to the 25 United States Constitution when he was forced to wear a stun belt during trial; 26 Ground Eleven: Petitioner’s rights to due process, equal protection and 27 the right to trial by an impartial, representative jury under the Sixth and Fourteenth Amendments to the United States Constitution were violated 2IILFHRIWKH28 based on the State’s use of a peremptory challenge in a racial $WWRUQH\*HQHUDO discriminatory manner; $YHQXH) (O\1HYDGD 8 APP. 175 (174 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID: Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 10 9of of 23 22

1 Ground Twelve: Appellate counsel was ineffective, in violation of petitioner’s right to the effective assistance of counsel under the Sixth and 2 Fourteenth Amendments to the United States Constitution; 3 (A)Appellate counsel was ineffective when he failed to raise all issues on direct appeal under the federal constitution; 4 (B) Appellate counsel was ineffective for failing to ensure that the 5 Nevada Supreme Court applied the Byford decision to Petitioner’s case before his conviction became final; 6 (C) Appellate counsel was ineffective for failing to raise meritorious 7 issues; 8 (1) Failure to raise an issue concerning petitioner’s ability to have the jury properly instructed on the theory of his case; 9 (2) Failure to raise an issue concerning the trial court’s failure to 10 properly charge the jury on a required element of the crime; (3) Failure to raise an issue concerning the trial court’s failure to 11 properly charge the jury on a required element of the crime; 12 (4) Failure to challenge the use of a stun belt; 13 (5) Failure to raise a Batson Claim; 14 ECF 28. 15 On December 11, 2013, the Court directed Respondents to file an answer or response to the 16 second amended petition. ECF 35. On January 22, 2014, Respondents filed a motion to dismiss the 17 second amended petition. ECF 36. On May 13, 2014, AGUILAR filed an opposition to the motion to 18 dismiss, including exhibits demonstrating that AGUILAR was in the process of exhausting the claims 19 alleged to be unexhausted in the motion to dismiss. ECF 43. On the same date, AGUILAR filed a 20 stipulated motion to stay proceedings, which Respondents did not oppose, with the parties also agreeing 21 that the motion to dismiss should be denied without prejudice. ECF 50. On August 5, 2014, the Court 22 granted the motion to stay. CR 51. 23 H. Second State Habeas Corpus Proceedings, Eighth Judicial District Court. 24 On July 31, 2013, AGUILAR filed his second state habeas corpus petition in the Eighth Judicial 25 district. Exh. 170 (ECF 44-1). That petition appeared to raise the claims presented in Grounds 1-4, and 26 10-12 of AGUILAR’s federal second amended petition. Id. 27 . . .

2IILFHRIWKH28 . . . $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 9 APP. 176 (175 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 11 10 of of23 22

1 On August 28, 2013, the State filed a response and motion to dismiss AGUILAR’s petition. 2 Exh. 172 (ECF 44-3). On September 11, 2013, AGUILAR filed an opposition to the motion to dismiss. 3 Exh. 173 (ECF 44-4). 4 On September 27, 2013, the state district court heard argument on the petition. Exh. 174 (ECF 5 44-5). That court found the petition procedurally defaulted. Id., (at 6). On October 9, 2013, 6 AGUILAR filed opposition/comments to the proposed order of the court. Exh. 175 (ECF 44-6). The 7 district court entered its order dismissing the petition on November 5, 2013. Exh. 176 (ECF 44-7). On 8 December 3, 2013, AGUILAR filed his notice of appeal. Exh. 177 (ECF 44-8). 9 I. Second State Habeas Corpus Appellate Proceedings, Nevada Supreme Court. 10 AGUILAR filed his opening brief on May 8, 2014. Exh 178 (ECF 44-9). On appeal, 11 AGUILAR raised the following claims: 12 1. The district court erred in denying the petition as procedurally barred where AGUILAR 13 had shown good cause and prejudice to overcome the procedural defaults. 14 2. AGUILAR’s demonstration of cause and prejudice establishes that he is entitled to 15 review, and relief, on the merits on all seven claims in the petition. 16 Id. 17 On June 9, 2014, the State filed their answer brief. Exh. 181 (ECF 49-1). AGUILAR waived 18 his reply brief. Exh. 182 (ECF 49-2). 19 On October 16, 2014, the Nevada Supreme Court affirmed the procedural default of 20 AGUILAR’s second state habeas petition. Exh. 183 (ECF 53-1). Remittitur issued on November 13, 21 2014. Exh. 184 (ECF 53-2). 22 J. Re-Opened Federal Habeas Corpus Proceedings. 23 On December 22, 2014, AGUILAR filed his motion to re-open the proceedings. ECF 52. The 24 Court granted the motion to reopen on February 3, 2015. ECF 54. 25 On June 30, 2015, Respondents filed a motion to dismiss the petition. ECF 59. On September 26 14, 2015, AGUILAR filed an opposition to the motion to dismiss. ECF 61. On October 26, 2015, 27 Respondents filed a reply. ECF 63.

2IILFHRIWKH28 . . . $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 10 APP. 177 (176 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 12 11 of of23 22

1 On February 22, 2016, the Court entered an order dismissing Grounds One through Four and 2 Ten through Twelve. ECF. 64. 3 Respondents now file their answer to the remaining grounds of the second amended petition. 4 II. LAW AND ARGUMENT 5 Respondents deny all allegations and facts in the second amended petition with the exception of 6 those facts found to be true by Nevada Courts. Should the Court request any additional exhibits in 7 deciding the claims contained in AGUILAR’s petition, Respondents will provide exhibits upon request. 8 A. Governing Law. 9 This matter is governed by 28 U.S.C. § 2254, a provision of the Anti-terrorism and Effective 10 Death Penalty Act (AEDPA). Williams v. Taylor, 529 U.S. 362, 399 (2000). The relevant portion of 11 the federal statute reads as follows:

12 (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of 13 a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or 14 treaties of the United States.

15 28 U.S.C. § 2254(a). 16 With the passage of AEDPA in 1996, Congress “placed a new restriction on the power of the 17 federal courts to grant writs of habeas corpus to state prisoners.” Williams v. Taylor, 529 U.S. 362, 399 18 (2000). Section 2254(d)(1) defines two categories of cases in which a state prisoner may prevail on his 19 federal habeas claims when the state court has adjudicated those claims on the merits. A federal habeas 20 court may grant relief if the relevant state court decision was either: (1) contrary to clearly established 21 federal law, as determined by the Supreme Court; or (2) involved an unreasonable application of clearly 22 established federal law as determined by the Supreme Court. Id. At 404-05; 28 U.S.C. § 2254(d)(1). 23 In the Williams case, Justice O’Connor further defined these standards:

24 Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this 25 Court on a question of law or if the state court decides a case differently that his Court has on a set of materially indistinguishable facts. Under the 26 ‘unreasonable application’ clause, the federal habeas court may grant the writ if the state court identifies the correct governing legal principle from 27 this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. 2IILFHRIWKH28 $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 11 APP. 178 (177 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 13 12 of of23 22

1 Id., at 412-13. The habeas petitioner has the ultimate burden to show that the state court applied clearly 2 established law to the facts of his case in an objectively unreasonable manner. Woodford v. Viscotti, 3 537 U.S. 19, 24-25, 123 S. Ct. 357, 360 (2002).

4 ‘Under § 2254(d)(1)’s unreasonable application clause, then, a federal habeas court may not issue the writ simply because that court concludes in 5 its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly,’. . . Rather, that 6 application must be objectively unreasonable. 7 Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166, 1175 (2003) (citation omitted) (emphasis added) 8 (citing to Williams, 529 U.S. at 409; Bell v. Cone, 535 U.S. 685, 699 (2002); and Woodford v. Visciotti, 9 537 U.S. 19, 24-25, 123 S. Ct. 357 (2002)). 10 Justice O’Connor also clarified that the phrase in section 2254(d)(1), “clearly established 11 Federal law, as determined by the Supreme Court of the United States,” refers to the holdings of the 12 Supreme Court at the time the state court decision was made. Williams, 529 U.S. at 412. Dicta will not 13 suffice. Id. Moreover, the state court is not required to cite Supreme Court cases or even be aware of 14 them, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” 15 Early v. Packer, 357 U.S. 3, 8, 123 S. Ct. 362, 365 (2002). 16 The Court has repeatedly held that “[C]ircuit precedent does not constitute ‘clearly established 17 Federal law, as determined by the Supreme Court.’” Gelbe v. Frost, 574 U.S. ___, ___, 135 S. Ct. 429, 18 431 (2014) (per curiam), siting § 2254(d)(1); see, e.g., Lopez v. Smith, 574 U.S. ___, ___, 135 S. Ct. 1, 19 4–5 (2014) (per curiam). Nor can circuits rely on pre-AEDPA precedent to “‘help … determine what 20 law is “clearly established,”’” because pre-AEDPA law does not “purpor[t] to reflect the law clearly 21 established by this Court’s holdings.” Id. 22 To determine whether a federal court should grant habeas relief, the provisions under AEDPA 23 require the federal court to give great deference to the state court’s factual findings. 24 State court findings of fact must be given deference unless ‘adjudication of the claim resulted in a decision that was based on an unreasonable 25 determination of the facts in light of the evidence [presented in the State court proceeding].’ . . . A state court’s factual determination is deemed 26 unreasonable if it is ‘so clearly incorrect that it would not be debatable among reasonable jurists.’ 27 Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (citations omitted) quoting Drinkard v. Johnson,

2IILFHRIWKH28 97 F.3d 751, 767, 769 (5th Cir. 1996). $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 12 APP. 179 (178 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 14 13 of of23 22

1 An “open question” in United States Supreme Court is not subject to relief on 2 federal habeas corpus review pursuant to AEDPA. Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 3 2006). 4 Furthermore, re-litigation of claims ‘adjudicated on the merits’ is barred by the terms of § 2254, 5 subject only to the exceptions in the statute. Harrington v. Richter, 131 S. Ct. 770, 784 (2011). Review 6 of claims adjudicated on the merits is limited to the record before the state court that adjudicated the 7 claim on the merits. Cullen v. Pinholster, 131 S .Ct. 1388, 1398 (2011). 8 Based upon the argument and law presented within, the remaining claims in AGUILAR’s 9 petition are without merit and subject to dismissal. 10 B. Ineffective Assistance of Counsel. 11 The remaining claims in AGUILAR’s second amended petition challenge the effectiveness of 12 AGUILAR’s trial counsel. Denying these claims, the Nevada Supreme Court addressed the applicable 13 standard for analysis:

14 To prove ineffective assistance of counsel, a petitioner must demonstrate that counsel’s performance was deficient in that it fell below an objective 15 standard of reasonableness, and resulting prejudice such that there is a reasonable probability that, but for counsel’s errors, the outcome of the 16 proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 17 P.2d 504, 505 (1984) (adopting the test in Strickland). To prove prejudice for ineffective assistance of appellate counsel claims, appellant must 18 demonstrate that the omitted issue would have a reasonable probability of success on appeal. Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 19 1114 (1996). Both components of the inquiry must be shown, Strickland 466 U.S. at 697, and the petitioner must demonstrate the underlying facts 20 by a preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). Further, “[t]actical decisions [of counsel] are 21 virtually unchallengeable absent extraordinary circumstances.” Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989). We give deference to 22 the district court’s factual findings regarding ineffective assistance of counsel but review the court’s application of the law to those facts de 23 novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005).

24 Exh. 126 (ECF 16-36 at 2-3). 25 The Strickland standard is “clearly established” for purposes of AEDPA deference. Williams v. 26 Taylor, 529 U.S. 362, 391 (2000). 27 . . .

2IILFHRIWKH28 . . . $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 13 APP. 180 (179 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 15 14 of of23 22

1 C. Ground Five. 2 In Ground Five of the second amended petition, AGUILAR alleges that counsel was ineffective 3 for failing to investigate and present evidence to the jury regarding Officer Debecker’s involvement in 4 the shooting. ECF 28 at 17. 5 The Nevada Supreme Court rejected this claim, stating:

6 [A]ppellants claim that trial counsel were ineffective for failing to investigate and present evidence that the weapon used to kill the victim 7 belonged to a police officer and that the police officer may have fired the fatal shot. Appellants fail to demonstrate that trial counsel were deficient. 8 Trial counsel testified at the evidentiary hearing that there was a tactical reason for not presenting this evidence: one of the appellants had prior 9 convictions or arrests for dealing in stolen weapons. Trial counsel made a tactical decision that they did not want the jury to hear that evidence and 10 make a connection that appellants stole the guns used in this crime. Therefore, the district court did not err in denying this claim. 11

12 Exh. 126 (ECF 16-36 at 2-3). 13 At the evidentiary hearing, AGUILAR’s attorney testified that the gun belonging to Officer 14 DeBecker was reported stolen about 18 months before the shooting. Exh. 109 (ECF 16-19 at 57-58). 15 Counsel also testified that he talked to his investigator about whether or not Debecker was at the scene 16 and “he followed up on that and didn’t find anything useful for us.” Exh. 109 (ECF 16-19 at 60). 17 When asked why counsel did not pursue the theory at trial, counsel stated: 18 Because it would have opened a door as to an alternate theory, which is 19 that David and/or Gilbert or someone known to them stole the officer, or stole the weapon from Officer Debecker, and that would have opened the door to David’s involvement in those type of weapons in the past in 20 Arizona. 21 If I remember right, David or David’s brother-in-law was involved with the movement of several SKS and Moddi, M-O-D-D-I, AK-47-type 22 weapons down in Arizona before. 23 Id, (62). 24 Also at the evidentiary hearing, Gilbert’s trial counsel testified that a report had been generated 25 at the time of the theft, and that they did an interview with Officer Debecker and “had no reason to 26 investigate him as being possibly involved in this incident.” Exh. 110 (ECF 16-20 at 15-16). Gilbert’s 27 counsel also testified that the defense team learned that the weapon was reported stolen prior to trial.

2IILFHRIWKH28 Id. $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 14 APP. 181 (180 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 16 15 of of23 22

1 The record from the state evidentiary hearing indicates that counsel did investigate possible 2 involvement in the shooting by Officer Debecker. The second amended petition presents no evidence 3 contradicting that fact, or what other investigation should have been undertaken by the defense team.4 4 The record also indicates that counsel had a strategic reason for not presenting the jury with evidence 5 that was uncovered during the investigation. AGUILAR cannot demonstrate that the Nevada Supreme 6 Court’s rejection of this claim was an objectively unreasonable application of Strickland.5 7 D. Ground Six. 8 In Ground Six of the second amended petition, AGUILAR alleges that counsel was ineffective 9 for failing to prevent the admission of the “tainted, unreliable and suggestive extra-judicial and in-court 10 photographic lineup identification.” ECF 28 at 19. 11 The Nevada Supreme Court denied the claim, stating:

12 [A]ppellants claim that trial counsel were ineffective for failing to challenge the photo line-up that was admitted at trial. Specifically, 13 appellants claim that the photo shows appellant Gilbert in his jail clothing. [FN1] Appellants fail to demonstrate that trial counsel were deficient. At 14 the evidentiary hearing, trial counsel testified that they did not believe they had any grounds to challenge the photo line-up because while, to a person 15 familiar with jail clothing, the picture did show appellant Gilbert in his jail clothing, a person unfamiliar with jail clothing would have through he was 16 wearing a t-shirt. Trial counsel is not required to make futile objections. Donovan v. State, 94 Nev. 671, 584 P.2d 708 (1978). 17 [FN1] To the extent that appellant claims that trial counsel should have 18 filed a pretrial motion to suppress the photo line-up because the officers may have prompted the eye witness, appellant failed to demonstrate that 19 this claim had merit. Appellants failed to provide this court with a copy of the trial transcripts. The burden is on appellants to provide an adequate 20 record enabling this court to review assignments of error. See Thomas v. State, 120 Nev. 37, 43 n.4 83 P.3d 818, n.4 (2004); see also Greene v. 21 State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980); Jacobs v. State, 91 Nev. 155, 158, 532 P.2d 1034, 1036 (1975). 22 23 Exh. 126 (ECF 16-36 at 3-4). 24 . . . 25

26 4 The second amended petition claims that a “full” investigation should have been conducted, but fails to define the term or allege the deficiencies in the investigation conducted before trial. Nor does the second amended petition state what fruit 27 such further investigation would have brought and how this evidence would have changed counsel’s strategic decision not to present the evidence obtained as part of the investigation that did take place prior to trial. 5 2IILFHRIWKH28 To the extent AGUILAR presented Exhibits supporting this claim that were not part of the state court record when the $WWRUQH\*HQHUDO claims were adjudicated on the merits, the Court should not consider them. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 $YHQXH) (2011). (O\1HYDGD 15 APP. 182 (181 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 17 16 of of23 22

1 Contrary to the factual allegation in the second amended petition, Detective Franks did not 2 testify that he created the photo lineup using “booking photos.” Cf. ECF 28 at 19, Exh. 39 (ECF 14 at 3 131-32). Rather, the witness testified that “A record is kept of which photograph is used, when that 4 photograph was taken, and what kind of – or which Metro ID number is used on that picture.” While 5 this Court can consult the transcript of the trial to correct the factual allegations in this matter, the Court 6 is prohibited from considering the trial transcript for consideration of the claim because AGUILAR did 7 not provide the Nevada Supreme Court a copy of the trial transcript for consideration of the claim. 8 Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). 9 At the evidentiary hearing, Gilbert’s counsel testified that to his “trained eye,” Gilbert was 10 wearing jail clothing, but that the clothing had no words such as “jail” or “detention” and that there was 11 nothing that would lead a lay person to say that the clothing worn by Gilbert was “prisoner attire.” Exh. 12 110 (ECF 16-20 at 96-99). Additionally, Gilbert’s counsel admitted that the pictures had numbers, but 13 that the same types of numbers would appear on any Metro photograph or a work card. Id. Counsel 14 agreed that Gilbert did not stand out based on clothing. Id (at 100). 15 The Nevada Supreme Court’s factual findings are not belied by the record. Since the person 16 that was depicted in the line-up was not AGUILAR, it is questionable whether his counsel had a right to 17 object to the admission of the photo line-up. Additionally, if the line-up did depict Gilbert in jail 18 clothing, the second amended petition presents no facts as to how this prejudiced AGUILAR or 19 impacted his right to a fair trial. A review of the record in light of the materials that were considered by 20 the Nevada Supreme Court demonstrates that the rejection of this claim was not the result of an 21 objectively unreasonable application of Strickland. 22 E. Ground Seven. 23 In Ground Seven of the second amended petition, AGUILAR alleges that trial counsel was 24 ineffective for failing to file a motion to suppress. ECF 28 at 20. 25 Rejecting the claim, the Nevada Supreme Court stated:

26 [A]ppellants claim that trial counsel were ineffective for failing to file a motion to suppress the search of David’s girlfriend’s apartment. 27 Appellants fail to demonstrate that trial counsel were deficient because they failed to demonstrate that they had standing to challenge the search. 2IILFHRIWKH28 The apartment belonged to David’s girlfriend and there was a restraining $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 16 APP. 183 (182 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 18 17 of of23 22

1 order preventing him from entering the premises. Thus, they did not demonstrate that they had a protected privacy interest in the apartment. 2 Rakas v. Illinois, 439 U.S. 128, 130-31 n.1 (1978) (“The proponent of a motion to suppress has the burden of establishing that his own Fourth 3 Amendment rights were violated by the challenged search.”); Katz v. United States, 389 U.S. 347, 352 (1967) (recognizing that the Fourth 4 Amendment requires an inquiry into whether the person claiming the protection was entitled to assume privacy at the place and under the 5 circumstances concerned);

6 Exh. 126 (ECF 16-36 at 4-5). 7 In Rakas v. Illinois, 439 U.S. 128 (1978), the petitioners asked the United States Supreme Court 8 to adopt a “target” theory, “permit[ting] a defendant to assert that a violation of the Fourth Amendment 9 rights of a third party entitled him to have evidence suppressed at this trial. Id. at 132-33. The Court 10 declined, reinforcing the holding in Alderman v. United States6 that “Fourth Amendment rights are 11 personal rights which, like some other constitutional rights, may not be vicariously asserted.” 439 U.S. 12 at 133-34 (citations omitted). The Court further stated “A person who is aggrieved by an illegal search 13 and seizure only through the introduction of damaging evidence secured by a search of a third person’s 14 premises or property has not had any of his Fourth Amendment rights infringed.” Id., citing Alderman, 15 394 U.S. at 174. 16 A case not cited by the Nevada Supreme Court is United States v. Matlock, 415 U.S. 164 17 (1974). In Matlock, the Court held that consent to search is valid by one who possesses common 18 authority under similar, but not identical facts as in this case. Id at 166. 19 At the evidentiary hearing conducted during state habeas corpus proceedings, AGUILAR’s 20 counsel testified that he thought there was no standing to file a motion to suppress, since the apartment 21 was not in AGUILAR’s name and Olivares had a restraining order against AGUILAR. Exh. 109 (ECF 22 16-19 at 46). At the first evidentiary hearing in this matter, AGUILR admitted to no standing for the 23 search, stating that he did not live at the residence because there was a restraining order against him.7 24 Exh. 91 (ECF 16 at 8, 48). 25 The trial record reveals that testimony at trial was that Gloria Olivares, who consented to the 26 search of her apartment, was less frightened and more cooperative with officers oncen take out of sight 27 of AGUILAR, which would not be unexpected of someone with a restraining order against a party.

2IILFHRIWKH28 6 $WWRUQH\*HQHUDO 394 U.S. 165, 174 (1969). $YHQXH) 7 If AGUILAR has now changed his story, there is nothing in the record demonstrating trial counsel knew of this change. (O\1HYDGD 17 APP. 184 (183 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 19 18 of of23 22

1 Exh. 39 (ECF 14-9 at 56-57). Additionally, one of the criminalists testified that a 7.62 rifle was 2 discovered on the sofa and a rifle that would handle 7.62 ammunition was discovered on the floor in the 3 utility closet. Exh. 39 (ECF 14-9 at 75). 4 Given the facts of this case and the applicable federal law when trial took place in 1997, the 5 Nevada Supreme Court’s rejection of AGUILAR’s Ground Seven claim is not an objectively 6 unreasonable application of Strickland. 7 F. Ground Eight. 8 In Ground Eight of the second amended petition, AGUILAR alleges that trial counsel was 9 ineffective for failing to challenge the introduction of an edited 7-Eleven video tape. ECF 28 at 23. 10 The Nevada Supreme Court rejected the claim, finding:

11 [A]ppellants claim that counsel were ineffective for failing to prevent the video from 7-11 from being admitted at trial. Specifically, they claim that 12 trial counsel failed to question the authenticity of the tape’s time stamp or the editing techniques. Further, trial counsel never filed a motion to 13 suppress the videotape. Appellants fail to demonstrated that trial counsel were deficient. Appellants fail to demonstrate that there was reason to 14 question the authenticity of the time stamp or editing techniques. Further, appellants fail to demonstrate that a motion to suppress would have been 15 successful. 16 Exh. 126 (ECF 16-36 at 7). 17 At the evidentiary hearing, AGUILAR’s counsel testified that his client told him about a 18 possible 7-11 video and alibi, but counsel testified that the tape, the witnesses and the alibi “didn’t 19 match up.” Exh. 39 (ECF 16-19 at 39). Counsel further testified that his investigator reviewed the 20 tape. Id (41). On cross-examination, counsel testified that there was no basis for him to conclude that 21 the video or time stamping of the video was altered, and that if he had a belief that the video would 22 have been altered, he would have hired an expert to investigate the authenticity of the video. Id (86- 23 87). 24 The second amended petition is bereft of facts supporting the fact that the video was altered. 25 Counsel need not engage in fruitless investigations. Strickland v. Washington, 466 U.S. at 691. 26 Counsel had no reason to doubt the authenticity of the video given the fact that “David told me that he 27 and Gilbert were out there shooting across the field at somebody.” Exh. 39 (ECF 16-19 at 82).

2IILFHRIWKH28 . . . $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 18 APP. 185 (184 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 20 19 of of23 22

1 AGUILAR cannot satisfy his burden of demonstrating that the rejection of his Ground Eight 2 claim is an objectively unreasonable application of Strickland. The Nevada Supreme Court’s factual 3 findings concerning this claim are also entitled to deference. 4 G. Ground Nine. 5 In Ground Nine of the second amended petition, AGUILAR alleges that his trial counsel was 6 ineffective for the failure to investigate and pursue an alternative suspect theory. ECF 28 at 24. 7 The Nevada Supreme Court denied AGUILAR’s claim, finding:

8 [A]ppellants claim that trial counsel were ineffective for failing to investigate another defense. [FN 5] Specifically, appellant claims trial 9 counsel should have attempted to identify a man who was at the 7-11 and may have met the description of the shooter. Appellants fail to 10 demonstrate that trial counsel was deficient. Trial counsel testified that they did not pursue this theory because it was impossible to identify who 11 this man was. Further, trial counsel testified at the evidentiary hearing that the witness who gave the description of the shooter identified appellant 12 Gilbert as the shooter in court. Therefore, the district court did not err in denying this claim. 13 [FN 5] To the extent that appellants claim that trial counsel were 14 ineffective for failing to investigate whether the weapon had belonged to a police officer, this claim was discussed and rejected above. 15 16 Exh. 126 (ECF 16-36 at 8). 17 One of Gilbert’s trial attorneys was asked about developing an alternative defendant and 18 responded “We asked Gilbert quite a bit about that, who was this person. He wasn’t cooperative in that 19 regard.” Exh. 110 (ECF 16-20 at 112-13). In response to an additional question about whether Gilbert 20 had pointed out someone else who did it, counsel responded “Actually, I’m not sure he really told us 21 anything about that. I never really got that either.” Id. 22 Gilbert testified that he told his attorney at trial about investigating a person in the 7-11 video. 23 Exh. 110 (ECF 16-20 at 125). Gilbert further stated that this person in the video would have 24 contradicted witnesses who had previously testified. Id (126). Gilbert failed to explain how trial 25 counsel was supposed to investigate or find this person during the course of trial or without a name. 26 Gilbert also failed to explain how his attorneys were supposed to change the theory of the defense in the 27 middle of trial.

2IILFHRIWKH28 . . . $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 19 APP. 186 (185 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 21 20 of of23 22

1 AGUILAR’s attorney also testified at the evidentiary hearing. Exh. 109 (ECF 16-19 at 31-121). 2 Counsel testified that AGUILAR told him the following about the incident: 3 David told me that he had been in prison in the federal system. That he’d been beaten so badly that they cut his sentence short and let him out. That 4 the federal government had a vendetta against him. And that they had been followed for sometime by a secret government organization that David 5 thought was trying to kill him. 6 He told me that the incident at the 7-11 when Gilbert was struck by an automobile that the person driving the automobile was a member of that 7 covert federal team, and that he and Gilbert went back to the apartment, obtained their weapons and they were shooting across the field at the 8 members of that team that they thought were trying to kill them.

9 Exh. 109 (at 75-76). 10 Counsel further testified that based upon his experience trying cases in Clark County, Nevada, 11 that the jury would not have seriously considered David’s theory of defense. Id (at 77). Counsel stated 12 his concern that presentation of that theory would have created an emotional response. Id (at 78). 13 Counsel also raised a concern that he did not want to lose credibility with the jury in this case because 14 the jury could be deliberating whether AGUILAR lived or died. Id (at 78-79). Counsel also expressed 15 his concern that the evidence against his client was strong. Id (at 80). Finally, counsel stated that once 16 AGUILAR told him they were out shooting in the field that he was constrained from presenting false 17 evidence. Id (at 82). 18 The Nevada Supreme Court’s factual findings are supported by the record. They are entitled to 19 deference. 20 The second amended petition cites the testimony at trial identifying the shooter as a man with a 21 shaved head. ECF 24 at 43. Counsel stated that maintaining credibility was a concern. Yet, in the 22 second amended petition, AGUILAR argues that counsel should have jeopardized that credibility by 23 arguing that a person with short hair matched the description of a person with a shaved head. Id. 24 Additionally, the record does not reflect that AGUILAR told his counsel about the “alternative suspect 25 with short hair.” 26 Given the other “strong” evidence presented at trial, AGUILAR has failed to demonstrate that 27 his counsel performance was ineffective and that the Nevada Supreme Court’s rejection of this claim

2IILFHRIWKH28 was an objectively unreasonable application of Strickland. $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 20 APP. 187 (186 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 22 21 of of23 22

1 H. Harmless Error. 2 If the Court finds that the Nevada Supreme Court erred in its analysis of any claim, the Court 3 should find any error harmless pursuant to the United States Supreme Court’s holdings in Brecht v. 4 Abrahamson, 507 U.S. 619 (1993) and Davis v. Ayala, 135 S. Ct. 2187 (2015) (State court harmless 5 error determination receives AEDPA deference). 6 III CONCLUSION 7 AGUILAR failed to satisfy his burden of demonstrating that the Nevada Supreme Court’s 8 rejection of his claims involved an objectively unreasonable application of federal law as determined by 9 the United States Supreme Court. Pursuant to federal habeas statutes and the Supreme Court’s holding 10 in Cullen v. Pinholster, this Court must decide AGUILAR’s claims on the record developed in the state 11 courts. 12 RESPECTFULLY SUBMITTED this 7th day of April, 2016.

13 ADAM PAUL LAXALT Attorney General 14

15 By: /s/ Michael J. Bongard______MICHAEL J. BONGARD 16 Deputy Attorney General Criminal Justice Division 17 1539 Ave F Ely, Nevada 89301 18 19 20 21 22 23 24 25 26 27

2IILFHRIWKH28 $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 21 APP. 188 (187 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 65 DktEntry: Filed 04/07/16 2-7, Page Page 23 22 of of23 22

1 CERTIFICATE OF SERVICE

2 I hereby certify that I am an employee of the Office of the Attorney General, State of Nevada,

3 and that on this 7th day of April, 2016, I served a copy of the foregoing Answer to Remaining Grounds

4 to Second Amended Petition for Writ of Habeas Corpus by U. S. District Court CM/ECF Electronic

5 Filing, to: 6 7 Jonathan Kirshbaum Federal Public Defender 8 411 E. Bonneville Ave Suite 250 9 Las Vegas, Nevada 89101 10 11 /s/S. Summers______12 An Employee of the Office of the Attorney General

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

2IILFHRIWKH28 $WWRUQH\*HQHUDO $YHQXH) (O\1HYDGD 22 APP. 189 (188 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-8, Page 1 of 32 EXHIBIT G

EXHIBIT G APP. 190 (189 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 68 DktEntry: Filed 07/29/16 2-8, Page Page 2 of1 of32 31

1 RENE L. VALLADARES Federal Public Defender 2 Nevada State Bar No. 11479 JONATHAN M. KIRSHBAUM 3 Assistant Federal Public Defender 4 New York State Bar No. 2857100 411 E. Bonneville, Ste. 250 5 Las Vegas, Nevada 89101 (702) 388-6577 6 (702) 388-5819 (fax) 7 Attorneys for Petitioner 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10

11 DAYOMASHELL DAVID AGUILAR, Case No. 3:12-cv-0315-MMD-VPC 12 Petitioner,

13 v. REPLY TO RESPONDENT’S ANSWER TO REMAINING 14 WARDEN BAKER, et al. GROUNDS IN SECOND AMENDED PETITION FOR WRIT OF HABEAS 15 Respondents. CORPUS

16 17 Petitioner, Dayomashell David Aguilar (“Aguilar”). Through his attorney of 18 record, Jonathan M. Kirshbaum, Assistant Federal Public Defender, hereby files this

19 Reply to the Answer to Remaining Grounds in Second Amended Petition for Writ of 20 Habeas Corpus filed by Respondents. This Reply is based upon the attached points 21 and authorities, and all pleadings, documents, and exhibits on file herein.

22 DATED this 29th day of July, 2016.

23 Respectfully submitted, RENE L. VALLADARES 24 Federal Public Defender 25 /s/Jonathan M. Kirshbaum 26 Jonathan M. Kirshbaum Assistant Federal Public Defender APP. 191 (190 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 68 DktEntry: Filed 07/29/16 2-8, Page Page 3 of2 of32 31

1 POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 On June 5, 2012, Aguilar filed his original federal habeas corpus petition and 4 filed an amended, counseled petition on December 12, 2012 (ECF Nos. 9, 12). Aguilar 5 then filed his second amended petition on July 2, 2013, asserting twelve grounds for 6 relief (ECF No. 28). On June 30, 2015, Respondents filed a motion to dismiss the 7 second amended petition, arguing the petition was untimely, the claims contained 8 therein were time barred, and Grounds One through Four and Ten through Twelve 9 were procedurally defaulted (ECF No. 59). On February 22, 2016, this Court granted 10 the motion to dismiss in part, dismissing Grounds One through Four and Ten through 11 Twelve, and ordered the Respondents to file an answer on the remaining grounds, 12 Five through Nine (ECF No. 64). On April 7, 2016, Respondents filed their Answer 13 to Aguilar’s Second Amended Petition, responding to the merits of the remaining 14 grounds (ECF No. 65). This Reply addresses those claims on their merits. 15 II. STANDARD OF REVIEW 16 This case is governed by the Antiterrorism and Effective Death Penalty Act of 17 1996 (“AEDPA”), 28 U.S.C. § 2254(d), which permits a federal court to grant habeas 18 relief affecting a state prisoner if the state court’s ruling: 19 (1) resulted in a decision that was contrary to, or involved an 20 unreasonable application of, clearly established Federal law, as 21 determined by the Supreme Court of the United States; or

22 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 23 State court proceeding. 24 28 U.S.C. § 2254(d). If a claim was not “adjudicated on the merits” in state court, no 25 deference is necessary under § 2254(d) and the review is de novo. Amado v. Gonzalez, 26 734 F.3d 936, 944 (9th Cir. 2013).

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1 III.

2 GROUNDS FOR RELIEF 3 GROUND FIVE 4 PETITIONER WAS DENIED HIS RIGHT TO THE 5 EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 6 SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHERE COUNSEL 7 FAILED TO INVESTIGATE AND PRESENT EVIDENCE TO THE JURY REGARDING OFFICER BRIAN 8 DEBECKER’S CONNECTION TO THE SHOOTING. 9 The proper standard for evaluating a claim that counsel was ineffective is that 10 enumerated in Strickland v. Washington, 466 U.S. 668, 691-92 (1984). In Strickland, 11 the Court held that there are two components to a defendant’s claim that he was 12 13 denied the effective assistance of counsel so as to require reversal of his conviction.

14 First, the defendant must show that his counsel’s performance fell below an objective 15 standard of reasonableness; second, a defendant must establish that he was 16 prejudiced by his counsel’s deficient performance. Kimmelman v. Morrison, 477 U.S. 17 365, 381 (1986). Specifically, a defendant is prejudiced when he demonstrates there 18 19 is a reasonable probability that, but for counsel’s unprofessional errors, the result of

20 the proceedings would have been different. Strickland, 466 U.S. at 694. A reasonable 21 probability is a probability sufficient to undermine confidence in the outcome. Id. 22 The federal constitutional right to the effective assistance of counsel includes 23 the duty of counsel to conduct an adequate pretrial investigation. Kimmelman, 477 24 25 U.S. at 386. In making a competency determination, “the court ‘should keep in mind

26 that counsel’s function, as elaborated in prevailing professional norms, is to make the

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1 adversarial testing process work in the particular case’” but that testing process will

2 generally not function properly “‘unless defense counsel has done some investigation 3 into the prosecution’s case and into various defense strategies.’” Id. at 384 (quoting 4 Strickland, 466 U.S. at 690-91). Importantly, the Supreme Court held “‘counsel has 5 6 a duty to make reasonable investigations or to make a reasonable decision that makes

7 particular investigations unnecessary.’” Id. (quoting Strickland, 466 U.S. at 691).

8 While counsel’s competence is presumed, “‘a particular decision not to investigate 9 must be directly assessed for reasonableness in all the circumstances,’” and counsel 10 is incompetent if the challenged action was not sound strategy and was unreasonable 11

12 under “professional norms.” Id at 381, 384; Strickland, 466 U.S. at 688-89, 691.

13 Here, the State’s main theory at trial was that a bullet from a B-West assault

14 rifle killed the victim, Mark Emerson. Although the bullet that struck the victim was 15 never identified as coming from any particular weapon, two bullets that were 16 recovered in the archway of the victim’s patio, where the victim had been shot, were 17

18 identified as coming from the B-West rifle (ECF No. 14, Ex. 39 at 69-70). It was the

19 prosecution’s theory at trial that Gilbert Aguilar had been firing the B-West rifle

20 during the incident (ECF No. 14, Ex. 40 at 25). 21 Aguilar’s lead trial counsel, Roger Hillman, had the constitutionally imposed 22 duty to investigate Aguilar’s “various defense strategies.” At the evidentiary hearing 23 24 on Aguilar’s state post-conviction petition, it was established that the B-West rifle

25 was traced back to Officer Brian Debecker of the Las Vegas Metropolitan Police

26 Department. In fact, Hillman acknowledged that he knew before trial that Officer

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1 Debecker owned one of the weapons involved in the crime (ECF No. 16, Ex. 109 at 56-

2 57). It was Hillman’s understanding that the weapon had been stolen from Debecker, 3 but Debecker had “possibl[y]” not reported it missing or stolen prior to the time of the 4 instant crimes (Id. at 57). 5 6 This knowledge would have made any reasonable trial attorney dig deeper to

7 explore possible defenses. Respondent’s Answer argues defense counsel did

8 investigate Officer Debecker’s involvement with the shooting. While counsel spoke 9 with an investigator, he did not even attempt to speak to Debecker about the gun 10 ownership (Id. at 58-59). This could hardly be considered a reasonable investigation 11

12 under the circumstances. Further, William Wolfbrandt, Gilbert’s lead trial attorney,

13 also did not recall doing any investigation into Debecker’s ownership of the B-West

14 rifle or whether there was any connection between Debecker and the victim (ECF No. 15 16, Ex. 110 at 13, 19, 21-22). Debecker’s possession of the rifle was not an issue that 16 was even raised at trial (ECF No. 16, Ex. 109 at 60-61). This failure certainly falls 17

18 below professional norms and was not a sound strategy, especially given the fact

19 Aguilar was made aware of the issue and Hillman acknowledged it fit within

20 Aguilar’s proposed defense that he had been set up (Id. at 57-58). Gilbert’s trial 21 attorney even admitted that it was not often where a weapon owned by a police officer 22 was involved in a murder (ECF No. 16, Ex. 110 at 12). 23 24 Counsel’s failure to investigate this issue and present this evidence at trial

25 violated Aguilar’s right to the effective assistance of counsel. As Gilbert’s trial

26 attorney acknowledged, it was highly unusual that a weapon owned by a police officer

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1 was connected to a murder. Such an unusual fact demanded that a full investigation

2 be conducted. This is particularly true where—as trial counsel admitted—it was 3 consistent with Aguilar’s proposed defense. If the defense had conducted an adequate 4 investigation as required under the Constitution, it would have potentially revealed 5 6 a connection between Debecker and the crime. Further, these facts standing alone

7 should have been presented to the trial jury as they would have established a

8 reasonable doubt of Aguilar’s guilt in the crime, changing the outcome at trial. It was 9 also sufficient evidence to present an alternative suspect theory to the jury. 10 The Nevada Supreme Court rejected this claim, finding that Aguilar failed to 11

12 demonstrate trial counsel were deficient (ECF No. 16, Ex. 126 at 2). In support of its

13 decision, the court relied upon trial counsel’s testimony at the evidentiary hearing

14 that there was a tactical reason for not presenting this evidence, namely, counsel did 15 not want the jury to hear one of the defendants had prior convictions or arrests for 16 dealing in stolen weapons and did not want the jury to make a connection that 17

18 appellants stole the guns used in the crime (Id.).

19 This decision was unreasonable. An attorney’s conclusory claim that a certain

20 decision was “tactical” does not make counsel’s assistance automatically effective 21 under the law. That is particularly true when there is no reasonable basis for that 22 “tactical” decision. It is not clear how an attorney can make such a tactical decision 23 24 without knowing all of the facts. Indeed, his counsel admitted that he was even sure

25 if the officer had reported it missing before the incident occurred. It demonstrates

26 that his strategy could not have been formulated after a full investigation. Moreover,

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1 an investigation may have uncovered evidence so compelling that it would have

2 significantly outweighed any prejudice from the mention of the prior convictions. 3 Indeed, the prior convictions themselves would not have had much of an impact here. 4 The issue here was not whether Aguilar owned guns or how they came into his 5 6 possession. Rather, the critical element here was that someone else owned the gun

7 that shot the victim. Counsel’s strategic explanation does not account for why they

8 failed to undergo a reasonable investigation into this issue, especially under unusual 9 circumstances as these: the bullets from the crime came from a police officer’s gun. 10 The Nevada Supreme Court did not address the prejudice prong of this claim. 11

12 Thus, this part of the claim is reviewed de novo. See Porter v. McCollum, 558 U.S.

13 30, 39 (2009). The deficient performance prejudiced Aguilar. The type of gun, bullets

14 used, and owner of the firearm were critically important facts, necessary to Aguilar’s 15 defense in an alleged murder. This is especially so where Debecker’s participation in 16 the crime was consistent with Aguilar’s proposed defense theory. As shown above, 17

18 any reasonable attorney would have undergone reasonable investigation under these

19 circumstances, as doing so would have established reasonable doubt of Aguilar’s guilt.

20 Further, there were no eyewitnesses to the shooting. Critically, the several police 21 officers described the person believed to have killed Emerson as a white man with a 22 shaved head (ECF No. 14, Ex. 37 at 81; ECF No. 14, Ex. 38 at 23). Had counsel 23 24 presented evidence that the gun involved in the shooting actually belonged to

25 someone else, the outcome at trial would have been different.

26 The writ should be granted and the conviction and sentence vacated.

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1 GROUND SIX

2 PETITIONER WAS DENIED HIS RIGHTS TO THE 3 EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE 4 UNITED STATES CONSTITUTION WHERE COUNSEL FAILED TO PREVENT THE ADMISSION OF THE 5 TAINTED, UNRELIABLE AND SUGGESTIVE EXTRA- 6 JUDICIAL AND IN-COURT PHOTOGRAPHIC LINEUP IDENTIFICATION. 7 The proper standard for evaluating a claim that counsel was ineffective is that 8 enumerated in Strickland v. Washington, 466 U.S. 668, 691-92 (1984). In Strickland, 9 10 the Court held that there are two components to a defendant’s claim that he was

11 denied the effective assistance of counsel so as to require reversal of his conviction. 12 First, the defendant must show that his counsel’s performance fell below an objective 13 standard of reasonableness; second, a defendant must establish that he was 14 prejudiced by his counsel’s deficient performance. Kimmelman v. Morrison, 477 U.S. 15 16 365, 381 (1986). Specifically, a defendant is prejudiced when he demonstrates there

17 is a reasonable probability that, but for counsel’s unprofessional errors, the result of 18 the proceedings would have been different. Strickland, 466 U.S. at 694. A reasonable 19 probability is a probability sufficient to undermine confidence in the outcome. Id. 20 Compelling a defendant to wear prison clothes during trial poses an 21 22 unacceptable risk of an impermissible factor coming into play and as such is

23 inherently prejudicial to a criminal defendant. See Estelle v. Williams, 425 U.S. 501 24 (1976). Courts have determined with very few exceptions that “an accused should 25 not be compelled to go to trial in prison or jail clothing because of the possible 26

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1 impairment of the presumption so basic to the adversary system”—the presumption

2 of innocence. Id. at 504. The Supreme Court in Estelle made a striking comparison: 3 The defendants clothing is so likely to be a continuing influence throughout 4 the trial that, not unlike placing a jury in custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of 5 impermissible factors coming into play. 6 Id. at 505 (citing Turner v. Louisia, 379 U.S. 466, 473 (1965)). 7 Additionally, in the context of lineups, suggestive identification procedures by 8

9 police violate Due Process. Suggestive confrontations are disapproved, because they

10 increase the likelihood of misidentification, which provides basis for the exclusion of

11 evidence. Neil v. Biggers, 409 U.S. 188, 198 (1972). Determining the admissibility of 12 testimony regarding an out of court identification and the reliability of the 13 identification itself requires a look to the totality of the circumstances, including the 14

15 level of certainty demonstrated by the witness. Id. at 199.

16 The most compelling evidence at trial to establish that Gilbert Aguilar had

17 committed the murder was the identification of a trial witness, Joyce Brown, who 18 identified him as the man she had seen walking away from the murder scene shortly 19 after the murder occurred. At trial, Detective James Michael Franks testified that he 20

21 created a six-pack photograph lineup using booking photos of six individuals,

22 including Gilbert, who was wearing jail or prison clothing (ECF No. 14, Ex. 39 at 131-

23 32). This lineup was admitted into evidence and shown to the jury (Id. at 132). 24 Detective Franks testified that he showed the lineup to Brown, who did not 25 identify anybody when she first looked at the lineup (Id. at 133). According to 26 Detective Franks, Brown kept referring to the bald man (Id.). Brown had testified

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1 that the man she saw walking away from the scene was bald with a ponytail (ECF

2 No. 14, Ex. 35 at 70, 82, 114). The detective reminded her that the perpetrator’s hair 3 style could have changed. More specifically, he told her that hair grows out every day 4 and that, unless an individual cuts it, he is not going to be bald every day (ECF No. 5 6 14, Ex. 39 at 133). At that point, Brown picked Gilbert (Id.). The defense attorneys

7 made no pre-trial motions to suppress the line-up’s admission.

8 Aguilar was deprived of the effective assistance of counsel based on the failure 9 of counsel to move to preclude this impermissibly suggestive identification procedure. 10 The moment the photo lineup was admitted into evidence and shown to the jury, the 11

12 jurors became poisoned by an impermissible factor—Gilbert’s clothes—and this

13 circumstance was inherently prejudicial. If the jury had even caught a glimpse of a

14 photo of Gilbert in prison clothes, it would have been enormously prejudicial. But this 15 went far beyond just a glimpse: the lineup was admitted into evidence, for the jury 16 to observe, discuss, and analyze. This type of evidence is inappropriate and would 17

18 inflame the jurors, potentially causing a presumption of guilt instead of innocence.

19 The state of the law is clear—when a juror sees a defendant wearing jail or prison

20 clothing it is “inherently prejudicial.” See Estelle v. Williams, 425 U.S. 501 (1976). 21 The introduction of the photo lineup into evidence was a violation of Aguilar’s 22 constitutional rights. 23 24 Also, Detective Franks should not have prompted Brown to identify Gilbert

25 from the line-up, nor should he have reminded Brown about any potentially changed

26 hairstyles, particularly in the suggestive manner that it was done. Not only does this

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1 comment inappropriately suggest to the witness that she should take a second look

2 at the lineup, looking for a person with slightly longer hair, but Franks’ remark 3 implied to the witness that the suspect is definitely in the lineup. To avoid 4 inappropriate suggestiveness, Franks should have informed Brown that it is possible 5 6 the suspect is not even in the lineup. Or at the very least, Franks should have stayed

7 quiet, allowing the witness to make the identification herself, not law enforcement.

8 Police are not supposed to give witnesses hints or clues during lineup identification 9 procedures. The instance here is particularly prejudicial where Brown initially did 10 not identify anybody when she first looked at the lineup. Brown was clearly 11

12 struggling to make an identification, so Franks’ inappropriate comments and his

13 suggestiveness artificially created confidence in her identification. This is the very

14 type of situation which implicates risk for misidentification, providing a basis for 15 exclusion. See Neil v. Biggers, 409 U.S. 188, 198 (1972). 16 To be sure, constitutional rights are personal and the suggestive procedures 17

18 applied to an identification of Gilbert. However, Aguilar was charged as an aider and

19 abettor of Gilbert’s actions. Put simply, the only way Aguilar could have been found

20 guilty of this shooting is if the jury accepted this identification. However, this 21 evidence was tainted and its admission undermined the fairness of Aguilar’s trial. 22 This directly implicated Aguilar’s constitutional rights. The danger of this unfair 23 24 prejudice would have provided a basis for Aguilar to move for its preclusion.

25 The inclusion of a photograph of Gilbert wearing jail or prison clothing was

26 unduly suggestive and highly prejudicial. Franks’ comments regarding the

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1 perpetrator’s changed hairstyle were also suggestive, inappropriate, and prejudicial.

2 The prejudice infected Aguilar’s right to a fair trial, because the trials were joined, 3 and other evidence put the brothers together at or near the time of the shooting. His 4 attorney’s performance was clearly deficient in failing to object, and this deficient 5 6 performance had a direct impact on the outcome of the case.

7 The Nevada Supreme Court rejected this claim, finding that Aguilar failed to

8 demonstrate trial counsel’s performance was deficient (ECF No. 16, Ex. 126 at 3). 9 With respect to the prison clothes issue, the court relied upon trial counsel’s 10 testimony at the evidentiary hearing that they did not believe they had grounds to 11

12 exclude it because the clothing in the photo would only look like jail clothing to

13 someone familiar with jail clothing (ECF No. 16, Ex. 126 at 3).

14 These decisions and findings were unreasonable. Trial counsel’s belief that 15 they had no grounds to challenge the photo lineup was also unreasonable in light of 16 the law; there certainly were grounds to object—compelling grounds. As the United 17

18 States Supreme Court has found, when a juror sees a defendant wearing jail or prison

19 clothes, it is inherently prejudicial. Estelle v. Williams 425 U.S. 501 (1976). As

20 discussed above, each and every juror got to see, analyze, and discuss the photo 21 lineup: it was admitted into evidence. From there, who is to say any one of the jurors 22 is unfamiliar with jail clothing? Perhaps they all were familiar. Any reasonable 23 24 attorney would not have taken that chance—they would not have gambled—on jury

25 familiarity with jail clothing, all at the expense of the client’s life and liberty. Trial

26 counsel should have objected to this photo lineup.

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1 In support of its decision regarding the suggestive identification, the court did

2 not address the argument on the merits. Rather, the rejected the claim on a 3 procedural ground, stating that appellant failed to provide the court with a copy of 4 the trial transcripts. (ECF No. 16, Ex. 126 at 3 n.1.) 5 6 This was not an adequate default. The Nevada Supreme Court does not

7 consistently apply this rule. In fact, that court did not even consistently apply this

8 rule in this very same opinion. For example, the Nevada Supreme Court relied upon 9 evidence submitted during the penalty phase hearing to reject one of Aguilar’s claims. 10 However, neither than evidence nor the penalty phase transcripts were submitted to 11

12 the court. It clearly shows that the Nevada Supreme Court does not consistently

13 apply the rule. Further, the transcript were not necessary for that court to resolve

14 this claim.1 Aguilar’s claims were based on the factual allegations in his state 15 petition and explored at the evidentiary hearing. It is unclear why the Nevada 16 Supreme Court needed the trial transcripts to evaluate Aguilar’s claims. It is clear 17

18 that the Court applied this procedural default inconsistently and unfairly in its

19 decision. Because the state court did not address this claim on the merits, this Court

20 can review the claim de novo. 21 The Nevada Supreme Court also did not address the prejudice prong of this 22 claim. Thus, this part of the claim is reviewed de novo. See Porter v. McCollum, 558 23 24

25 1 This Court can review the transcripts when addressing this claim as they 26 clearly are a part of the state court record. This Court is empowered to consider the entire state court record, not just what was submitted to the state’s appellate court. See McDaniels v. Kirland, 813 F.3d 770, 780 (9th Cir. 2015).

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1 U.S. 30, 39 (2009). The deficient performance prejudiced Aguilar. As discussed

2 above, the most compelling evidence at trial to establish that Gilbert had committed 3 the murder was this witness identification. Such evidence was profoundly damaging 4 to Aguilar’s case and essential for his conviction. For these reasons, counsel’s deficient 5 6 performance—failing to object—had a direct impact on the outcome of the case.

7 The writ should be granted and the conviction and sentence should be vacated.

8 GROUND SEVEN 9 PETITIONER WAS DENIED HIS RIGHTS TO THE 10 EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS 11 TO THE UNITED STATES CONSTITUTION 12 WHERE COUNSEL FAILED TO MOVE TO SUPPRESS THE ITEMS FOUND IN THE 13 WARRANTLESS POLICE ENTRY AND SEARCH OF PETITIONER’S RESIDENCE. 14 The proper standard for evaluating a claim that counsel was ineffective is that 15 16 enumerated in Strickland v. Washington, 466 U.S. 668, 691-92 (1984). In Strickland,

17 the Court held that there are two components to a defendant’s claim that he was 18 denied the effective assistance of counsel so as to require reversal of his conviction. 19 First, the defendant must show that his counsel’s performance fell below an objective 20 standard of reasonableness; second, a defendant must establish that he was 21 22 prejudiced by his counsel’s deficient performance. Kimmelman v. Morrison, 477 U.S.

23 365, 381 (1986). Specifically, a defendant is prejudiced when he demonstrates there 24 is a reasonable probability that, but for counsel’s unprofessional errors, the result of 25 the proceedings would have been different. Strickland, 466 U.S. at 694. A reasonable 26 probability is a probability sufficient to undermine confidence in the outcome. Id.

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1 Under the Fourth Amendment to the United States Constitution, all searches

2 presumptively require a warrant to be valid. The “‘general requirement that a search 3 warrant be obtained’ is basic to the Amendment’s protection of privacy, and ‘the 4 burden is on those seeking an exemption . . . to show the need for it.’” Chambers v. 5 6 Maroney, 399 U.S. 42, 61 (1970). Further, because “history shows police acting on

7 their own cannot be trusted,” absence of a search warrant cannot be excused without

8 showing exigent circumstances. McDonald v. United States, 335 U.S. 451, 456 (1948). 9 While one of the exceptions to the warrant requirement of the Fourth Amendment is 10 voluntary consent, “the Fourth and Fourteenth Amendments require that a consent 11

12 not be coerced, by explicit or implicit means.” See Bumper v. North Carolina, 391

13 U.S. 543, 548-49 (1968); Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973).

14 The law has provided that the home is a particularly sacred place, carrying a 15 heightened expectation of privacy. See Kyllo v. U.S., 533 U.S. 27 (2001). The Supreme 16 Court has drawn a firm, bright line at the entrance to the home, holding that “absent 17

18 exigent circumstances, that threshold may not be reasonably crossed without a

19 warrant.” Id. at 40; Payton v. New York, 445 U.S. 573, 590 (1980). In fact, physical

20 entry of the home is the “chief evil” the wording of the Fourth Amendment aims to 21 target. Payton, 445 U.S.at 585. The Supreme Court has consistently condemned 22 warrantless forced entries into homes as unreasonable and inconsistent with the 23 24 Fourth Amendment. See Id.; See Camara v. Municipal Court of City and County of

25 San Francisco, 387 U.S. 523 (1967). 26

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1 The only physical evidence potentially tying Petitioner and his brother, Gilbert

2 Aguilar, to the shooting of Mark Emerson were two guns found in the apartment of 3 Aguilar’s girlfriend, Gloria Olivares. Ballistics testing circumstantially linked the 4 weapons to the shooting, and a police officer testified that a palm print found on one 5 6 of the guns matched Aguilar (ECF No. 14, Ex. 36 at 207; Ex. 39 at 66-77).

7 Police searched Olivares’ residence after ostensibly obtaining her consent. The

8 testimony at trial was that, upon arriving on the scene, Officers Mark Dwiggins and 9 Stewart Emry observed Aguilar and Gloria Olivares (ECF No. 14, Ex. 38 at 16, 48). 10 The officers’ suspicions were aroused since Aguilar’s clothes were wet, he had a bruise 11

12 on his shoulder, and he appeared nervous (Id. at 24, 48-49). They separated Olivares

13 and Aguilar and spoke to them individually. The stories that they received from them

14 did not match up, so the officers detained Aguilar and asked Olivares for consent to 15 search her apartment “to rule her out as having any involvement in the incident” (Id. 16 at 25-28, 49-50). 17

18 Olivares “wavered back and forth several times” (CR 14, Ex. 38 at 50). On two

19 separate occasions, Dwiggins filled out consent to search cards for Olivares to sign,

20 but she refused to sign them (Id.). Each time, Dwiggins ripped up the card (Id.). 21 Aguilar became agitated and began fighting with the officers (Id.). Officers placed 22 Aguilar in a “position of disadvantage,” angering Olivares (Id. at 51). She began 23 24 crying out that the police were beating the Petitioner, Aguilar, so Dwiggins removed

25 her from the scene (Id.). He took her to his command post so that she could not see

26 what was happening with Aguilar (Id.). He continued to talk to Olivares, who was

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1 more cooperative once she was outside Aguilar’s presence, and asked her if she would

2 sign a consent to search card, which she finally agreed to do (Id. at 51, 55). A copy of 3 the card was admitted into evidence (Id. at 52-54).2 Despite obtaining consent, a 4 SWAT team of officers forcibly entered the apartment (ECF No. 14, Ex. 38 at 121; 5 6 ECF No. 14, Ex. 39 at 120-21). George Trombley, the apartment manager, confirmed

7 that the door of the apartment had been forcibly opened, there was a broken window,

8 and a tear gas rocket was found inside the apartment (ECF No. 14, Ex.39 at 2-4). 9 Two witnesses testified at trial that Aguilar lived at 840 Mantis, apartment 2, 10 the apartment that was searched. Joyce Brown testified that she lived at 848 Mantis, 11

12 apartment 8 (ECF No. 14, Ex. 35 at 65-66). The apartment was right across a

13 walkway from 840 Mantis apartment 2 (Id. at 68). She said that Olivares, Aguilar,

14 and Arlene Nelson lived in the apartment (Id.). She would see Aguilar working on 15 his car outside the apartment and estimated that she saw him every day to every 16 other day (Id. at 69). 17

18 Annette O’Neal was married to Gilbert (ECF No. 14, Ex. 36 at 57). She said

19 that, at some point prior to August 7, 1996, she and Gilbert moved into 840 Matis,

20 apartment 2, the apartment where Aguilar lived with Olivares (Id. at 59-60). 21 At the evidentiary hearing on Aguilar’s post-conviction petition, his trial 22 attorney, Roger Hillman, testified that there was a potential suppression issue with 23 24 respect to the search; he acknowledged that Aguilar asked him to move to suppress

25 2 26 The only motion to suppress the search of Olivares’s residence was made on the basis of the inadmissibility of a copy of the consent card as violating the “best evidence rule,” not on Fourth Amendment grounds.

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1 based upon the illegality of the search of the apartment (ECF No. 16, Ex. 109 at 45,

2 91). However, Hillman did not file the motion based on his belief that there was a 3 lack of standing to litigate the issue (Id.). He did not do any investigation into 4 whether Aguilar lived at the apartment (Id. at 46). 5 6 Aguilar’s attorney was constitutionally ineffective for failing to move to

7 suppress the weapons based on the warrantless search of the apartment. Under the

8 Fourth Amendment to the U.S. Constitution, law enforcement generally needs a 9 search warrant to conduct a legal search a person’s residence. One of the exceptions 10 to the warrant requirement of the Fourth Amendment is voluntary consent. See 11

12 Bumper, 391 U.S. at 543, 548-49. Here, there were reasons to believe that Olivares’

13 consent to search was far from voluntary. She refused consent on multiple occasions

14 and was brought to tears as officers beat Aguilar in front of her. According to the 15 officer, she only granted consent after she became irate with the police and was 16 escorted back to the police station. The whole situation was riddled with both implied 17

18 and explicit coercion. These circumstances do not support a finding that Olivares

19 voluntarily consented to the search. The officers should have obtained a warrant.

20 It also seems odd that, despite receiving “consent” to search and with one of 21 the potential suspects in custody, the officers forcibly entered the apartment, going 22 so far as shooting off a tear gas rocket into the apartment. This warrantless, forced 23 24 entry was far from reasonable, and this type of reckless police behavior offends the

25 very core of what the 4th Amendment is designed to protect. Accordingly, forced

26 physical entries of the home are the “chief evil” targeted by this Amendment’s

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1 wording. Payton, 445 U.S. at 585. The trial evidence clearly raised questions about

2 the validity of the search. Under these circumstances, Aguilar’s attorney should have 3 investigated and pursued the circumstances leading to Olivares’s decision to grant 4 consent to search. 5 6 Further, there was significant evidence that Aguilar did live in the apartment

7 and had standing to raise the issue. Testimony by two witnesses at the trial pointed

8 to him living at 840 Mantis, Apartment 2. Indeed, the prosecutor sought to use the 9 evidence found in the apartment, which included the guns, as well as ammunition 10 and other weapons, against Aguilar precisely on the theory that he was connected to 11

12 the apartment. Defense counsel’s decision to not file a motion to suppress based on

13 his belief that there was a lack of standing is an unreasonable mistake, pursuant to

14 Kimmelman. This mistaken belief is all the more reprehensible, because he did not 15 do any investigation into whether Aguilar lived in the apartment. Aguilar’s attorney 16 was deficient in failing to litigate this issue and this unreasonable performance 17

18 prejudiced Aguilar. The suppression of the guns would have substantially impacted

19 the State’s case, likely changing the outcome of the trial.

20 The Nevada Supreme Court rejected this claim, finding that Aguilar failed to 21 demonstrate trial counsel were deficient, because he failed to demonstrate that they 22 had standing to challenge the search. Ex. 126 at 3. The court found Aguilar failed to 23 24 demonstrate he had a protected privacy interest because the apartment belonged to

25 Aguilar’s girlfriend and there was a restraining order preventing him from entering

26 the premises (ECF No. 16, Ex. 126 at 3.)

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1 This decision was unreasonable. The fact that the apartment was owned by

2 Olivares does not mean that Aguilar could not have a privacy interest in the 3 apartment. Status as an overnight guest in someone’s home has given rise to a 4 protected privacy interest under the 4th Amendment. Minnesota v. Olson, 495 U.S. 5 6 91, 99 (1990). The Supreme Court of the United States noted that “the guest who has

7 a host who has ultimate control of the house is not inconsistent with the guest having

8 a legitimate expectation of privacy,” and the host—who gives the houseguest 9 permission to stay—is willing to share his house and his privacy right with his guest. 10 Id. at 98. Further, “an overnight guest in a home staying with the permission of the 11

12 host has a reasonable expectation of privacy under the Fourth Amendment.”

13 Espinosa v. City and County of San Francisco, 598 F.3d 528, 533 (9th Cir. 2010)

14 Courts have found a protected privacy interest exists where an individual 15 regularly occupies a home—this is not limited to ownership. United States v. 16 Hamilton, 538 F.3d 162, 166 (2d Cir. 2008) citing United States v. Villegas, 899 F.2d 17

18 1324, 1333 (2d Cir. 1990).

19 Also, acquiescence may give rise to an extension of the scope of a defendant’s

20 reasonable expectation of privacy, even if no legal right exists. See U.S. v. Lanier, 636 21 F.3d 228 (6th Cir. 2011) (noting that hotel practices and communications with 22 guests—giving permission or generally acquiescing when guests stay later—result in 23 24 the extension past checkout time of a defendant’s reasonable expectation of privacy).

25 Trial counsel had a strong argument that Aguilar had standing to challenge

26 the search. Whether or not a privacy right exists is a factual inquiry. There were a

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1 significant amount of facts showing that Aguilar lived in the apartment. Two

2 witnesses, including one who was completely objective, testified that Aguilar lived in 3 the apartment. Despite the order of protection, Olivares clearly acquiesced to his 4 presence, giving him the authority to stay there. Lanier, 636 F.3d 228. The Nevada 5 6 Supreme Court did not cite to any authority establishing that an order of protection

7 meant, as a matter of law, that an individual can have no standing under the Fourth

8 Amendment. The more important inquiry here was whether he actually did live in 9 the apartment. There was significant evidence showing that he did. For these 10 reasons, the Nevada Supreme Court’s decision involved unreasonable fact-finding 11

12 and an unreasonable application of law.

13 Trial counsel was deficient for failing to file a motion to suppress the search of

14 Aguilar’s girlfriend’s house. As shown above, Aguilar’s 4th Amendment rights were 15 violated by the warrantless search. A reasonable attorney would have challenged 16 this search in light of the solid evidence on the record proving Aguilar occupied the 17

18 property. No reasonable attorney would have ignored the issue completely. The

19 Nevada Supreme Court’s decision that counsel had been effective was unreasonable.

20 The Nevada Supreme Court did not address the prejudice prong of this claim. 21 Thus, this part of the claim is reviewed de novo. See Porter v. McCollum, 558 U.S. 22 30, 39 (2009). This deficient performance prejudiced Aguilar. The only physical 23 24 evidence potentially tying Aguilar to his brother, Gilbert, are the two guns found at

25 Aguilar’s girlfriend’s house. This was significant and very damaging evidence.

26 Further, Aguilar’s girlfriend, through her acquiescence, extended and solidified

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1 Aguilar’s privacy interest. Lanier, 636 F.3d 228. If trial counsel had acted reasonably

2 and challenged the warrantless search, the guns would have been suppressed, which 3 would have invariably changed the outcome at trial. 4 The writ should be granted and the conviction and sentence vacated. 5 6 GROUND EIGHT

7 PETITIONER WAS DENIED HIS RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 8 SIXTH AND FOURTEENTH AMENDMENTS TO THE 9 UNITED STATES CONSTITUTION WHERE COUNSEL FAILED TO CHALLENGE INTRODUCTION OF AN 10 EDITED 7-ELEVEN VIDEOTAPE.

11 The proper standard for evaluating a claim that counsel was ineffective is that 12 enumerated in Strickland v. Washington, 466 U.S. 668, 691-92 (1984). In Strickland, 13 the Court held that there are two components to a defendant’s claim that he was 14 denied the effective assistance of counsel so as to require reversal of his conviction. 15 16 First, the defendant must show that his counsel’s performance fell below an objective

17 standard of reasonableness; second, a defendant must establish that he was 18 prejudiced by his counsel’s deficient performance. Kimmelman v. Morrison, 477 U.S. 19 365, 381 (1986). Specifically, a defendant is prejudiced when he demonstrates there 20 is a reasonable probability that, but for counsel’s unprofessional errors, the result of 21 22 the proceedings would have been different. Strickland, 466 U.S. at 694. A reasonable

23 probability is a probability sufficient to undermine confidence in the outcome. Id. 24 Counsel is incompetent if a challenged action was not sound strategy and was 25 unreasonable under professional norms.” Kimmelman, 477 U.S. at 381, 384; 26 Strickland, 466 U.S. at 688-89, 691. Where counsel’s omissions are due to

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1 unreasonable mistakes, the Supreme Court has held the performance is

2 constitutionally deficient. Kimmelman, 477 U.S. as 384-86. Trial counsel’s failure to 3 conduct a reasonable investigation can represent deficient performance. Wiggins v. 4 Smith, 539 U.S. 510, 533-34 (2003). 5 6 Here, the State was permitted to admit a surveillance videotape from a 7-

7 Eleven store located approximately 200 yards from the murder scene (ECF No. 14, Ex.

8 35 at 48-56). The video showed Aguilar and his brother, Gilbert, gambling at the store 9 and then leaving at 10:43 p.m. according to the tape’s time stamp (Id. at 56). The video 10 established that the brothers had time to leave the store, run to their residence to 11

12 retrieve weapons, and then return to the area to begin shooting their rifles, which

13 resulted in the murder of Mark Emerson.

14 At the evidentiary hearing on Aguilar’s post-conviction petition, Michael 15 Karstedt, a private investigator, testified that the 7-11 videotape provided to the State 16 for the day of the shooting would have been unedited and twenty-four hours long (ECF 17

18 No. 16, Ex. 109 at 13-17). The video shown to the jury would have been edited by the

19 state into the forty-five minute version that was turned over to the defense and shown

20 at trial (Id. at 18). 21 Trial counsel’s failure to object to the admission of this videotape represented 22 constitutionally deficient performance. Counsel never questioned the authenticity of 23 24 the tape’s time stamp or the editing techniques utilized. No defense expert witness

25 was utilized to test the reliability of the videotape’s time stamp. Instead, trial counsel

26 allowed the prejudicial videotape to be played to the jury without successful challenge

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1 lending evidentiary support to the State’s murder time-line. The video—with over 23

2 hours omitted and edited—needed to be scrutinized. Defense counsel could have and 3 should have used an expert witness to discuss these important issues with the jury. 4 Defense counsel’s multiple omissions could hardly be called sound trial strategy and 5 6 were unreasonable under professional norms. This deficient performance prejudiced

7 Aguilar as the outcome of the trial would have been different had counsel raised the

8 objections to the video. 9 The Nevada Supreme Court rejected this claim, finding that Aguilar failed to 10 demonstrate trial counsel were deficient (ECF No. 16, Ex. 126 at 6). The court pointed 11

12 out Aguilar failed to demonstrate that there was a reason to question the authenticity

13 of the time stamp or editing techniques and that a motion to suppress would have been

14 successful (Id.). 15 This decision was unreasonable. As shown above, any reasonable attorney 16 would have questioned the authenticity of the video’s time stamp and the editing 17

18 techniques. The video itself was extremely important to the State’s murder timeline,

19 and such a crucial piece of evidence needed to be evaluated, investigated, or at the

20 very least questioned. And there was good reason for counsel to question these things. 21 The unedited version of the video would have been 24 hours long, while the final 22 version shown to the jury was only 45 minutes long. Over 23 hours were removed by 23 24 the prosecution. It is the essence of the adversarial system to question evidence that

25 has been altered in some way by the other side. Trial counsel could have gotten an 26

24 APP. 214 (213 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 68 DktEntry: Filed 07/29/16 2-8, Page Page 26 25 of of32 31

1 expert to question the State’s editing protocols, or at a minimum, conducted further

2 investigation. Wiggins, 539 U.S. at 522-34. 3 The Nevada Supreme Court did not address the prejudice prong of this claim. 4 Thus, this part of the claim is reviewed de novo. See Porter v. McCollum, 558 U.S. 5 6 30, 39 (2009). The deficient performance prejudiced Aguilar. As shown above, the

7 video was very important to the State’s case, particularly its timeline. If trial counsel

8 had acted reasonably and raised these objections to the video, they would have casted 9 doubt on the State’s theory, and the outcome of trial would have been different. 10 The writ should be granted and the conviction and sentence vacated. 11

12 GROUND NINE

13 PETITIONER WAS DENIED HIS RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE 14 SIXTH AND FOURTEENTH AMENDMENTS TO THE 15 UNITED STATES CONSTITUTION WHERE COUNSEL FAILED TO INVESTIGATE AND PURSUE AN 16 ALTERNATIVE SUSPECT THEORY.

17 The proper standard for evaluating a claim that counsel was ineffective is that 18 enumerated in Strickland v. Washington, 466 U.S. 668, 691-92 (1984). In Strickland, 19 the Court held that there are two components to a defendant’s claim that he was 20 denied the effective assistance of counsel so as to require reversal of his conviction. 21 22 First, the defendant must show that his counsel’s performance fell below an objective

23 standard of reasonableness; second, a defendant must establish that he was 24 prejudiced by his counsel’s deficient performance. Kimmelman v. Morrison, 477 U.S. 25 365, 381 (1986). Specifically, a defendant is prejudiced when he demonstrates there 26 is a reasonable probability that, but for counsel’s unprofessional errors, the result of

25 APP. 215 (214 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 68 DktEntry: Filed 07/29/16 2-8, Page Page 27 26 of of32 31

1 the proceedings would have been different. Strickland, 466 U.S. at 694. A reasonable

2 probability is a probability sufficient to undermine confidence in the outcome. Id. 3 The federal constitutional right to the effective assistance of counsel includes 4 the duty of counsel to conduct an adequate pretrial investigation. Kimmelman, 477 5 6 U.S. at 386. Trial counsel has a “duty to make reasonable investigations or to make

7 a reasonable decision that makes particular investigations unnecessary.” Strickland,

8 466 U.S. at 691. While counsel’s competence is presumed, “‘a particular decision not 9 to investigate must be directly assessed for reasonableness in all circumstances,’” and 10 counsel is incompetent if the challenged action was not a sound strategy and was 11

12 unreasonable under “professional norms.” Kimmelman, 477 U.S. at 381, 384;

13 Strickland, 466 U.S. at 688-89, 691.

14 Here, counsel’s representation of Aguilar fell below the minimum standard of 15 reasonably competent performance when he failed to fully pursue the alternative 16 suspect theory prior to trial. Counsel’s lack of understanding affected his 17

18 performance at trial and his ability to effectively present Aguilar’s theory of defense

19 to the jury. Counsel’s decision to disregard other defenses available to Aguilar fell

20 below the minimum standard of reasonably competent counsel and resulted in 21 prejudice to Aguilar. 22 Aguilar maintained to his attorneys that he and his brother, Gilbert, were not 23 24 the ones who fatally wounded Mark Emerson, but were being set up (ECF No. 16, Ex.

25 109 at 58). At trial, testimony from several police officers established that the

26 description of the person believed to have killed Emerson was a white man with a

26 APP. 216 (215 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 68 DktEntry: Filed 07/29/16 2-8, Page Page 28 27 of of32 31

1 shaved head (ECF No. 14, Ex. 37 at 81; ECF No. 14, Ex. 38 at 23). The defendants

2 did not mean this description. The 7-11 video shows an individual standing over 3 Aguilar as he gambled and possibly stepping on Aguilar’s right foot before he left 4 (ECF No. 30, Ex. 169). This man left the store right before Aguilar, providing this 5 6 individual plenty of time to do the shooting (Id.). The existence of another person

7 matching the description of Emerson’s shooter seen in the area causing trouble on

8 the day of the shooting would have been powerful defense evidence to shed doubt on 9 the State’s prosecution theory. This fact is especially persuasive when considering 10 the fact that the bald guy was hovering over Aguilar—as depicted in the 7-11 video— 11

12 just before the shooting spree. Any reasonable attorney would have introduced this

13 defense or made an attempt to investigate this defense.

14 But the attorneys did not argue the alternative suspect theory to the jury. Even 15 worse, Petitioner’s trial attorneys did not make any attempt at identifying the man 16 in the video who matched the police’s description of the shooter (ECF No. 16, Ex. 109 17

18 at 39, 44). This failure was unreasonable and deprived Aguilar of his constitutional

19 rights. The failure of Aguilar’s trial counsel to investigate and produce such

20 potentially exculpatory evidence was deficient performance and clearly prejudiced 21 Aguilar. Had counsel undertaken reasonable investigations and presented this 22 defense, the outcome of the proceedings would have been different. 23 24 The Nevada Supreme Court rejected this claim, finding Aguilar failed to

25 demonstrate that trial counsel were deficient. Ex. 126 at 7. In support of its decision,

26 the court relied upon trial counsel’s testimony that they did not pursue the

27 APP. 217 (216 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 68 DktEntry: Filed 07/29/16 2-8, Page Page 29 28 of of32 31

1 alternative suspect theory, because it was impossible to identify who the man from

2 the video was (ECF No. 16, Ex. 126 at 7.) The court also pointed to trial counsel 3 testimony from the evidentiary hearing that the witness who gave the description of 4 the shooter identified Gilbert as the shooter in court (Id.). 5 6 This decision was unreasonable. It was unreasonable for counsel to flatly state

7 that it was impossible to find this person. This person could have been known to the

8 people at the 7-11 or they could have had a receipt with his name on it. This would 9 have been a simple investigation, but Aguilar’s trial attorney did nothing to attempt 10 to identify this potential subject. Worse still, trial counsel did not even argue this 11

12 alternative suspect theory or bring it up to the jury, even though the evidence was

13 there on the video.

14 The fact that the witness who gave the description of the shooter identified 15 Gilbert as the shooter in court has no bearing on this analysis. First of all, the initial 16 descriptions did not match Gilbert. Moreover, as discussed under Ground Six, the 17

18 identification occurred under highly suggestive circumstances, rendering it

19 completely unreliable. In contrast, a man in the video resembled the shooter’s initial

20 description. Also, Aguilar maintained to his attorneys that he and his brother, 21 Gilbert, were not the ones who fatally wounded Mark Emerson, but had been set up 22 for this crime. Also, unfortunately and unfairly—and a matter argued in Aguilar’s 23 24 petition— trial counsel omitted another piece of valuable evidence which tends to

25 suggest Aguilar’s innocence: Officer Debecker’s connection to the firearm used in the

26 incident. In sum, despite the identification, there were compelling reasons to believe

28 APP. 218 (217 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 68 DktEntry: Filed 07/29/16 2-8, Page Page 30 29 of of32 31

1 that someone else may have committed the shooting. The fact remains that trial

2 counsel neglected to investigate and failed to even mention this alternative suspect 3 theory to the jury. 4 The Nevada Supreme Court did not address the prejudice prong of this claim. 5 6 Thus, this part of the claim is reviewed de novo. See Porter v. McCollum, 558 U.S.

7 30, 39 (2009). The deficient performance prejudiced Aguilar. The existence of

8 another person matching the description of Emerson’s shooter, in the location of the 9 shooting, and with plenty of time to accomplish the shooting, would have been 10 powerful evidence to shed doubt on the State’s prosecution theory. These facts are 11

12 all the more powerful and exculpatory, because this man was seen hovering around

13 Aguilar just before the shooting spree. If counsel would have investigated, they likely

14 would have found more evidence in furtherance of an alternative suspect theory. 15 More importantly, if counsel would have merely presented the evidence already at its 16 disposal to the jury, arguing or even suggesting an alternative suspect theory, the 17

18 outcome of the trial would have been different.

19 The writ should be granted and the conviction and sentence vacated.

20 21 22

23 24 25

26

29 APP. 219 (218 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 68 DktEntry: Filed 07/29/16 2-8, Page Page 31 30 of of32 31

1 IV.

2 CONCLUSION 3 For the reasons stated herein and in the Second Amended Petition for Writ of 4 Habeas Corpus, Aguilar respectfully requests that this Court grant the Writ of 5 6 Habeas Corpus, or alternatively, conduct an evidentiary hearing so that his claims

7 may be properly reviewed and determined on their merits.

8 DATED this 29th day of July, 2016.

9 10 Respectfully submitted, 11 RENE L. VALLADARES Federal Public Defender 12 13

14 /s/Jonathan M. Kirshbaum JONATHAN M. KIRSHBAUM 15 Assistant Federal Public Defender 16

17 18

19

20

21

22 23

24

25

26

30 APP. 220 (219 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 68 DktEntry: Filed 07/29/16 2-8, Page Page 32 31 of of32 31

1 CERTIFICATE OF SERVICE 2 In accordance with the Rules of Civil Procedure, the undersigned hereby 3 certifies that on this 29th day of July, 2016, a true and correct copy of the foregoing 4 REPLY TO RESPONDENT’S ANSWER TO REMAINING GROUNDS IN SECOND 5 AMENDED PETITION FOR WRIT OF HABEAS CORPUS, was filed electronically 6 with the United States District Court. Electronic service of the foregoing document 7 shall be made in accordance with the master service list as follows: 8 Michael J. Bongard 9 Deputy Attorney General 1539 Avenue F, Suite 2 10 Ely, NV 89301 11 [email protected]

12 /s/ Jineen DeAngelis 13 An Employee of the 14 Federal Public Defender, District of Nevada 15

16

17

18 19 20

21 22

23 24 25

26

31 APP. 221

(220 of 289) Case: 18-16256, 07/23/2018, ID: 10951230, DktEntry: 2-9, Page 1 of 70

EXHIBIT H

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 APP. 260 (259 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 71 DktEntry: Filed 06/25/18 2-9, Page Page 40 39 of of70 69

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 APP. 261 (260 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 71 DktEntry: Filed 06/25/18 2-9, Page Page 41 40 of of70 69

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 APP. 262 (261 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 71 DktEntry: Filed 06/25/18 2-9, Page Page 42 41 of of70 69

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 APP. 263 (262 of 289) Case Case: 3:12-cv-00315-MMD-VPC 18-16256, 07/23/2018, ID:Document 10951230, 71 DktEntry: Filed 06/25/18 2-9, Page Page 43 42 of of70 69

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 APP. 291 Case 3:12-cv-00315-MMD-VPC Document 71 Filed 06/25/18 Page 1 of 69

1

2 3 4 5

6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * *

9 DAYOMASHELL DAVID AGUILAR, Case No. 3:12-cv-00315-MMD-VPC

10 Petitioner, ORDER v. 11 WARDEN TIMOTHY FILSON, et al., 12 Respondents. 13

14 This habeas matter under 28 U.S.C. § 2254 comes before the Court for a decision

15 on the merits of the remaining grounds, which all present claims of ineffective assistance

16 of trial counsel.

17 I. BACKGROUND

18 Petitioner Dayomashell David Aguilar challenges his 1998 Nevada state judgment

19 of conviction, pursuant to a jury verdict, of conspiracy to commit murder, first-degree

20 murder with the use of a deadly weapon, discharging a firearm at or into a vehicle, and 21 two counts of discharging a firearm at or into a structure. (ECF No. 14-31.) 22 David Aguilar was tried jointly in the capital murder trial with his brother, Gilbert 23 Aguilar, who was represented by different defense counsel.

24 The evidence from the guilt phase tended to establish, inter alia, the following.1 25 1The Court makes no credibility findings or other factual findings regarding the truth 26 or falsity of evidence or statements of fact in the state court. The Court summarizes the same solely as background to the issues presented in this case, and it does not 27 summarize all such material. No assertion of fact made in describing statements, testimony or other evidence in the state court constitutes a finding by this Court. Any 28 APP. 292

Case 3:12-cv-00315-MMD-VPC Document 71 Filed 06/25/18 Page 2 of 69

1 According to the trial testimony of by-then Annette Aguilar, on August 7, 1996, she

2 and Gilbert Aguilar had just moved in with his brother David and his girlfriend Gloria

3 “Jeanie” Olivares and her teenage daughter. They lived in the Olivares’ unit at 840 Mantis

4 Way, No. 2, in Las Vegas, Nevada. The Olivares’ residence was in northeastern Las

5 Vegas, near the intersection of East Washington Avenue and North Pecos Road, south

6 of Washington and east of Pecos. (ECF No. 14-6 at 39; ECF No. 14-7 at 60-62.)

7 On the evening of August 7, 1996, the Aguilar brothers had gone to the nearby 7-

8 Eleven convenience store at the northwest corner of Washington and Pecos. At around

9 approximately 10:40 p.m., a store clerk told them that they either had to stop drinking 10 beer inside the store or leave. They left the store. Out in the parking lot, Gilbert Aguilar 11 walked up to the driver in a parked vehicle and asked him through the open window where 12 he was from. When the driver did not respond verbally after he asked two or three times, 13 Aguilar attacked the driver, punching him twice through the window. The driver started to 14 drive away, but the two brothers then tried to block the vehicle in by standing in front of 15 and behind the vehicle. The driver hit Gilbert Aguilar with the vehicle and pushed him

16 back with the car twenty to twenty-five feet so that he and his female passenger could 17 escape the attack. After the vehicle drove away to the east on Washington, the brothers 18 walked and then ran in the same direction, which also was the direction of the Olivares’ 19 residence. (ECF No. 14-6 at 39, 43-46, 47-58, 60-63; ECF No. 14-8 at 21-39.) 20 According to Annette Aguilar’s testimony, the brothers returned to the Olivares’ 21 residence cursing angrily and loudly about what had happened at the 7-Eleven. The 22 brothers armed themselves with two rifles; and David Aguilar donned a black-and-white 23 poncho, which Annette Aguilar positively identified at trial from a photograph. They left

24 the residence with Gilbert Aguilar telling Annette to go with them. Each man was carrying 25 a rifle as they left the unit, with Gilbert carrying his openly while David’s rifle was not 26

27 absence of mention of a specific piece of evidence or category of evidence in this overview does not signify that the Court has overlooked the evidence in considering 28 Petitioner’s claims.

2 APP. 293

Case 3:12-cv-00315-MMD-VPC Document 71 Filed 06/25/18 Page 3 of 69

1 visible after they went outside, apparently due to the poncho. (ECF No. 14-7 at 64-71, 80-

2 87, 100-03, 127-28, 134-36, 150-51.)

3 Two AK-47-type semiautomatic rifles that fired 7.62 mm caliber rounds later were

4 recovered from the Olivares’ residence. An AK-47-type rifle distributed by B-West in

5 Tucson, Arizona (“B-West AK-47 or rifle”) was found in a utility closet or laundry room.2

6 An Egyptian-made Maadi AK-47-type rifle (“Maadi AK-47 or rifle”) with David Aguilar’s

7 palm print on it was found on a sofa near a poncho. At trial, Annette Aguilar positively

8 identified the B-West AK-47 and the Maadi AK-47 from photographs as the rifles carried

9 by the two men as they left the Olivares’ residence. (ECF No. 14-7 at 80-81, 83, 204-12; 10 ECF No. 14-9 at 75-78, 106-07, 109-11, 117-18, 122-23, 135-37, 143-44; ECF No. 14-10 11 at 60-64, 67-68, 70-71.)3 12 Annette Aguilar testified that, after leaving the Olivares’ residence, she followed 13 the thusly armed Aguilar brothers in the general direction of the 7-Eleven, which was 14 nearby to the west and slightly north on the other side of both Washington and Pecos. 15 (ECF No. 14-7 at 70-71, 103, 128, 131-32, 136.)

16 Joyce Brown lived at 848 Mantis Way, No. 1, a unit in the four-unit building next 17 door and to the north of the Olivares’ residence within the Atrium Gardens subdivision. A 18 walkway separated the two buildings and units. Brown knew both Gloria Olivares and 19 David Aguilar from being neighbors. (ECF No. 14-6 at 66-70, 84-92, 107-09, 111.) 20 At around 11:00 p.m. that evening, Brown was sitting outside on the front porch of 21 her residence, which faced Mantis Way. While out on her porch, Brown saw David Aguilar 22 walk by wearing a poncho with dark and light colors, “like black and white.” He was 23 accompanied by a man and a woman whom she recognized because they recently had

24 been staying at the Olivares’ residence. Brown positively identified the second man at

25 2The B-West rifle is the subject of Ground 5. Petitioner alleges therein that he was denied effective assistance because trial counsel did not investigate the allegedly 26 possible involvement in the offenses of a police officer from whom the rifle previously had been stolen. Ground 9 also alleges a failure to investigate an alternative suspect. 27 3The Court uses a more generic but not fully accurate “AK-47-type” reference to 28 the rifles, corresponding to that used in the state court record.

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1 trial as Gilbert Aguilar. The three apparently were coming from the Olivares’ unit, and they

2 were heading toward Washington, which generally was in the direction of the nearby 7-

3 Eleven. (Id. at 70-76, 79, 92-94, 96-99, 109-10, 114-15.)

4 Gilbert Aguilar was openly carrying a long gun. Brown could not see David

5 Aguilar’s hands under the poncho and thus did not see whether he had anything in his

6 hands. It struck Brown as odd that he was wearing a poncho on the hot August Las Vegas

7 night. She heard him say as they were passing by: “It’s where the light is, Holmes; it’s

8 where the light is.” Frightened after seeing Gilbert Aguilar with a rifle, Brown went inside

9 her home and locked the door. (Id. at 76-80, 99, 104-06, 113-16.) 10 The brothers and Annette Aguilar walked toward the 7-Eleven to what she 11 described as a field. According to her testimony, Annette Aguilar, at that time in 1996, 12 could see the 7-Eleven from there. The brothers still were agitated and talking angrily. 13 Annette Aguilar became frightened and crouched down behind a yellow Volkswagen in 14 an adjacent parking area. (ECF No. 14-7 at 70-73, 92, 103-09, 128-29, 132, 136.) 15 Annette Aguilar heard one of the brothers say “there they go.” Immediately

16 thereafter, Annette Aguilar, who was crouched down crying, then began hearing loud and 17 rapid gunfire, with multiple shots being fired. She did not see anyone else other than the 18 brothers during this time, whether in the field, on Washington, or on Pecos. However, she 19 was very nearsighted; and she was, by her own description, panicked and hysterical at 20 the time. (Id. at 72-74, 106-10, 128, 136-37.) 21 Tim Bradford lived with his family at 3508 Valley Forge Avenue, an east-west 22 residential neighborhood street that parallels Washington immediately to the north. The 23 front of the Bradford home faced Valley Forge, and the backyard was on the Washington

24 side of the property. An approximately six-foot high wall separating the backyard from the 25 street and sidewalk faced Washington. The home was three or four houses from the 26 corner of Washington and Pecos. Bradford’s home thus was to the north across 27 Washington approximately across the street from the general area where the Aguilar 28 brothers were. (ECF No. 14-8 at 161-63, 165-66, 167-68.)

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1 Bradford and his wife’s adult nephew were at home at the time. At approximately

2 11:00 p.m., Bradford was out in front of the house smoking when he heard two loud

3 gunshots, with the sound appearing to come from the back of the house. He went through

4 the house to the backyard to investigate. After Bradford reached the backyard, he heard

5 many more gunshots, now in rapid succession. As he looked over the back wall, he heard

6 sound behind him. When he turned to look back at the house, he saw that the stationary

7 pane in the sliding glass patio door had been shattered “like a spider web,” and there was

8 a second hole just to the left of the patio door. The first apparent gunshot was three feet

9 high on the stationary pane, and the other was six feet from the ground. The next day, 10 Bradford found two more apparent bullet holes in the southeast corner of the house as 11 well as a projectile in a kitchen cupboard inside a can of baking soda. (Id. at 162-168.)

12 Terry Maldonado lived at 3525 Jungle Drive, No. 4, with her two daughters. (ECF 13 No. 14-7 at 13-14, 25-27.) Within the subdivision, the north-south Mantis Way forms a “T” 14 intersection with Washington and then runs south from Washington. Jungle Drive, in turn, 15 is a short east-west street that forms a “T” intersection with Mantis Way and runs west

16 from Mantis Way toward but not all the way to Pecos. The 840 Mantis Way address at 17 which Gloria Olivares resided is the fourth building to the south of the intersection with 18 Jungle Drive, on the west side of Mantis Way. The 848 Mantis Way address at which her 19 neighbor Joyce Brown lived is the next building to the north. The 856 Mantis Way address 20 where the Emersons (discussed further infra) lived then is the next building to the north. 21 The next building to the north—after a small parking area—carries a Jungle Drive address 22 and lies to the south of Jungle Drive. 3525 Jungle Drive then is the next building over 23 immediately to the west. With north oriented at the top of the view, the foregoing

24 properties form an inverted and reversed “L” shape “pointing” to the west, with an open 25 /// 26 /// 27 /// 28 ///

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1 common area within the corner of the L-shape. The nearby 7-Eleven is off to the north

2 and west of that common area.4

3 According to Terry Maldonado’s testimony, at around 11:00 p.m., she and her

4 daughters heard numerous loud gunshots. Maldonado’s front door opened out onto an

5 atrium patio that had a gate that in turn opened out into the common area. She went out

6 her front door to the gate, where she heard more shooting. Maldonado had her phone

7 with her, and she called 911. (Id. at 13-16.)

8 Maldonado saw two people out in the common area. A man wearing a poncho was

9 squatting down shooting a shotgun or long gun toward Pecos Road to the west. She 10 testified that a photo of the poncho found later by the police was consistent with the 11 poncho that she saw that evening. The second person was a couple of feet behind the 12 shooter. Maldonado could not tell whether the second person was a man or a woman. 13 The second person had what Maldonado described as long curly hair and was wearing a 14 light colored top or tank top and a shorts-like outfit. (Id. at 17-18, 22-24, 27, 32-37, 41- 15 42.) That description was not necessarily inconsistent with the description that Annette

16 Aguilar gave of her appearance that evening. (Id. at 65-66.) 17 Maldonado heard what she perceived to be two different voices. The first asked: 18 “Did you get him, did you get him?” Then, after some more gunshots, she heard, by a 19 different voice: “Come out, motherf---er.” She could not tell whether either voice was male 20 or female. She just perceived that there were two different speakers. (Id. at 21-23, 29- 21 33.)

22 4The State used aerial photographs and a diagram of the area during the testimony 23 of the witnesses, providing a continuing context to their testimony that was apparent to the jury at trial. Those materials were not included in the federal record. In order to 24 concisely provide similar context for the witnesses’ trial testimony on federal habeas review, the Court has taken judicial notice of the respective locations of the same streets 25 and residential addresses as reflected by an aerial view on Google Maps. See www.google.com/maps. The Google Maps aerial view, within the subdivision, is 26 consistent with, collectively, the specific location testimony provided by the various witnesses in the trial record, in multiple references spread across the testimony of the 27 respective witnesses. (See, e.g., ECF No. 14-6 at 87-91.) The gas station or convenience store shown now on the southeast corner of Pecos and Washington was not present at 28 the relevant time. (See ECF No. 16-20 at 91.)

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1 As Maldonado was standing at her front gate watching with 911 on the phone, the

2 individual in the poncho stood up and turned toward her. She went back inside, stating at

3 trial that she did so because “I didn’t want to get shot.” The gunfire continued thereafter.

4 (Id. at 16-17, 19-21, 37-38.)

5 Scrirlo Jimenez and Mark Evans shared unit No. 6 in the same six-unit building at

6 3525 Jungle Drive. They were next door neighbors to Terry Maldonado. Her unit was in

7 the middle of the three units that faced south into the common area, and their unit was on

8 the southwest corner of the building, also facing into the common area. (ECF No. 14-6 at

9 117-18, 124-27; ECF No. 14-7 at 25-26, 44, 48-51, 54-55.) 10 At approximately 11:00 p.m. that evening, Jimenez and Evans were in their 11 respective rooms when they both heard continuing gunfire. Jimenez went to the living 12 room window and looked out into the common area for approximately twenty seconds. 13 He saw a man in a poncho facing away from him and to the east, in the direction where 14 the Emersons lived at 856 Mantis Way, No. 4. Evans was more cautious and looked out 15 for only about five seconds. Although he said in his police statement that guns were being

16 fired in the air, he testified that he did not actually see anyone, much less anyone firing a 17 gun, during that brief look. He thus did not see the direction in which gunfire was aimed. 18 (ECF No. 14-6 at 118-35; ECF No. 14-7 at 44-45, 51-53, 55-57.) 19 Both Jimenez and Evans heard a voice saying some variation of: “Come out, 20 motherf---er.” Both testified that it was a male voice. Jimenez testified that “he” said the 21 statement multiple times, apparently referring to the man that he saw in the poncho. (ECF 22 No. 14-6 at 122-24; ECF No. 14-7 at 45-46.) 23 Mark Evans’s Honda Civic was parked, unoccupied, in the parking area

24 immediately to the west of their building. Evans and Jimenez observed afterwards that 25 the vehicle had been struck by multiple apparent gunshots. (ECF No. 14-6 at 131-32; 26 ECF No. 14-7 at 46-48, 52, 56-57.) 27 Mark Emerson lived at 856 Mantis Way, No. 4, with his wife Marla and their son 28 and daughter. 856 Mantis Way was the furthest north of the three Mantis Way addresses

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1 mentioned previously. The Emerson’s unit was on the northwest corner of the four-unit

2 building. The common area referenced by Maldonado, Jimenez, and Evans, who lived on

3 the north side of the common area, was to the west of their unit. On the north side of the

4 Emerson’s unit, a sliding glass door opened from the master bedroom out onto what Marla

5 Emerson referred to as the “back” atrium patio that opened in turn out onto the parking

6 area on that north side of the building. (ECF No. 14-7 at 165-67, 169, 179, 188-94.)

7 At approximately 11:00 p.m. that evening, Marla Emerson heard very loud gunfire.

8 She ran and pulled her children out of their beds and onto the floor to get them away from

9 the walls. Her husband Mark grabbed a remote phone and ran out to the back atrium 10 sliding glass door on the north side of the unit, despite her entreaties that he come back 11 in the house. She testified that “[w]e heard another barrage of shooting, and then I heard 12 a pop-pop-pop, and then I heard my husband scream.” (ECF No. 14-7 at 167-70, 182-84, 13 190-91; see also ECF No. 14-8 at 129-32, 134-36.) 14 Marla Emerson ran to the sliding glass door, with her two children behind her. She 15 saw Mark Emerson lying in the gateway to the atrium, half outside on the grass and half

16 inside the atrium on the patio concrete. Standing three to five feet from her husband with 17 a rifle was a man that she positively identified at trial from a photograph and also live as 18 Gilbert Aguilar. She previously had positively identified him from the 7-Eleven surveillance 19 video. (ECF No. 14-7 at 170-73, 181, 194-95.) 20 Gilbert Aguilar was pointing the rifle toward her, and he said “who’s in there?” in a 21 loud and to Emerson frightening voice. She and the children crouched down behind the 22 curtain and crawled into the master bedroom closet. Emerson covered her children in 23 sleeping bags and other loose items to hide them. She then crawled to what she referred

24 to as the “jack phone” by the bed. Emerson could hear 911 on the line, but she could not 25 talk on the line because the remote phone was turned on. (Id. at 173-77, 183-87, 191- 26 93.) 27 Unable to speak on the jack phone, Emerson peeked around the curtain out the 28 bedroom window to see if the man was still there. When she did not see him, she ran out

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1 through the sliding glass door to grab the remote phone. She stopped briefly and

2 comforted her husband, who was still alive. Emerson then ran back inside behind the

3 curtain, screaming for help from 911 dispatch, who still was on the line. (Id. at 175-78.)

4 Marla Emerson then saw red flashing lights from police vehicles coming from

5 outside. The shooting had stopped by that time. She looked out again to make sure that

6 the man was not outside; and she ran back to the gate again screaming and waving

7 officers down. Officers came to their aid, and thereafter emergency medical personnel.

8 Mark Emerson passed away a short time later. (Id. at 178, 187-88.)

9 At trial, Emerson pointed out a yellow Volkswagen parked close to her unit from a 10 crime scene photograph. (Id. at 178-80; see also ECF No. 14-9 at 95-96.) 11 During the gunfire, Annette Aguilar testified that she had remained crouched down 12 behind the yellow Volkswagen. Gilbert Aguilar eventually called for her, however; and she 13 walked over to where he was. The shooting continued. Annette later heard Gilbert curse 14 and say that his gun was jammed. (ECF No. 14-7 at 74-77, 112-13.) 15 Thereafter, the nearsighted Annette Aguilar saw a light. She thought at the time

16 that it was the spotlight from a police car, but the only thing of which she was certain at 17 trial was that she saw a bright light. She became frightened of being shot by the police, 18 and she ran back to Gloria Olivares’s unit at 840 Mantis Way. David Aguilar passed her 19 on the way back, however; and he already was inside when she reached the closed door. 20 (Id. at 75-79, 110-12, 128-29, 132-33, 137-38.) 21 Annette Aguilar heard gunfire while she was running back to Olivares’ unit. She 22 heard more gunfire after she arrived back at the unit. She did not hear anyone screaming 23 at any point. (Id. at 78-80, 126.)

24 Patrol Officers Brian Wise and Chad Brown of the Las Vegas Metropolitan Police 25 Department (“Metro”) were responding to a nonemergency call at approximately 11:00 26 p.m. when they heard the gunfire start. They were only a short distance away off to the 27 northeast. They began driving to the south and then west in the general direction of the 28 ///

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1 gunfire, with Officer Wise ultimately in the lead in his marked police vehicle and Brown

2 following in his. (ECF No. 14-8 at 39-42, 48-51, 57, 80-84, 103-04.)

3 As they were nearing Pecos westbound on Washington, dispatch informed Officer

4 Wise of 911 calls coming from Mantis Way. He also had seen people popping up above

5 walls pointing to the gunfire, and that direction was consistent with where he and Officer

6 Brown were hearing continuing gunfire. Officer Wise U-turned on Washington to head

7 back toward Mantis Way only a short distance down the street, and Officer Brown did the

8 same and followed Wise back east. At approximately this point in time, the officers put

9 their vehicles in “blacked out,”“dark,” or “tactical” mode—with no flashing warning lights, 10 sirens, or headlights on—so as to not make the officers a target. Neither officer was 11 unequivocally certain at trial that they turned off their respective headlights specifically 12 prior to making their U-turns north of the subdivision on Washington. (Id. at 42-43, 49-50, 13 52-57, 65-66, 71-72, 84-86, 95-96, 104-07, 109, 121.) 14 As Officer Wise approached the intersection at Mantis Way, he believed that his 15 vehicle was taking fire. He aborted the turn onto Mantis Way, crouched down in his vehicle

16 to avoid gunfire, and brought his vehicle to a stop a distance to the east of the intersection. 17 Officer Brown heard Wise’s call that he was “taking rounds,” and he thereafter perceived 18 that gunfire also was hitting near or on his vehicle. He similarly crouched down in the 19 vehicle; but he was unable to stop his turn into the intersection, coming to a stop 20 approximately in the intersection of Mantis and Washington. Brown rolled out of the 21 vehicle and tried to find cover. (Id. at 43-44, 51, 56-59, 66-70, 86-87, 96-98, 100-01, 107- 22 11, 118-19, 121-24.) 23 Officer Brown thus ended up entering the subdivision on foot first, separated from

24 Officer Wise. Brown went down the eastern side of Mantis Way, i.e., on the opposite side 25 of the street from where 856, 848, and 840 Mantis Way were to the south of his position. 26 He made his way down the street using available cover. (Id. at 88.) 27 When he was about forty to fifty feet down Mantis, Officer Brown heard loud 28 screaming, and he saw a man firing what he then perceived to be a shotgun in a westerly

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1 direction. (Id. at 88-89, 111, 113-14, 119.) Brown took cover partially behind an electrical

2 utility box on the east side of Mantis. (Id. at 88, 97-98, 112, 124-25.) Brown estimated that

3 the man was a little over forty yards to the south of him on the west side of Mantis. He

4 was standing in a location that the officer described at trial as “on the southwest corner

5 of a little side street.” (Id. at 88, 98, 111.) Multiple ejected empty cartridge casings later

6 were recovered from the southeast corner of the parking lot on the west side of the street

7 and on the north side of 856 Mantis Way. (ECF No. 14-9 at 66-69.)5 No ejected casings

8 were recovered from any location along the west side of Mantis further to either the south

9 or north of that location, including to the north at the intersection of Jungle Drive and 10 Mantis. Officer Brown thus appears, in the context of the overall trial evidence, to have 11 been referring to the man having been standing at the southwest corner of the entrance 12 to the parking area that was immediately north of 856 Mantis Way. That would put the 13 man near the northeast corner of that building, to the east of the “back” atrium entrance 14 to the Emersons’ unit near the middle of the north side of that building. 15 After taking cover behind the electrical box, Officer Brown drew his service

16 semiautomatic 9 mm pistol and then told the man a variation of: “Drop the gun, drop the 17 gun” or “Put down your gun, put down the gun.” Brown perceived that the man turned 18 toward his voice and fired now at him. Officer Brown fired four shots, and he perceived 19 that the man fired another shot at him. (ECF No. 14-8 at 89-90, 93-95, 98, 112-17.) 20 The man then turned and ran southbound down the sidewalk on Mantis, on the 21 west side of the street, with Officer Brown trailing him on the east side of the street using 22 available cover. Brown was able to track him down the street, but he lost sight of the man 23 when he turned the corner in the darkness and slipped into one of the units at 840 Mantis

24 Way, which was where Gloria Olivares’s unit was. Brown stationed himself to observe the

25 5A “cartridge” refers to a single unfired round of ammunition consisting of a “bullet” 26 or “projectile” seated into a “cartridge casing,” “casing” or “case” that contains the propellant and primer. An unfired cartridge also is referred to as a “live” cartridge. (See, 27 e.g., ECF No. 14-10 at 53, 57-58.) On a semiautomatic gun, the empty casing is ejected from an ejection port by the action of the weapon when firing the bullet. 28

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1 area in case the man reappeared, but he did not see him again prior to being relieved by

2 other responding officers. (Id. at 90-91, 98-99, 115-18.)6

3 Officer Brown initially described the shooter that he observed late that evening as

4 a heavyset white male with a bald head in a black tank top. That description was generally

5 consistent with a photograph of Gilbert Aguilar’s appearance at the time and with

6 descriptions by Annette Aguilar and Joyce Brown of his clothing and appearance that

7 evening, with the principal exception that Aguilar was Hispanic rather than white. After

8 David Aguilar was apprehended later that evening, he was presented to Brown by other

9 officers for possible identification. Officer Brown indicated that he was not the shooter that 10 he observed. Brown later viewed a portion of the surveillance video from the 7-Eleven 11 from the time that the Aguilar brothers were in the store. Officer Brown identified Gilbert 12 Aguilar from the videotape as the shooter that he had observed. He was “absolutely” 13 certain in his identification. (ECF No. 14-6 at 71-76; ECF No. 14-7 at 62-63, 83-87; ECF 14 No. 14-8 at 88-89, 91-93, 99-100, 120-21.) 15 After the gunfire had started that evening, Gloria Olivares’s next-door neighbor,

16 Joyce Brown, had laid down on her floor, fearing that bullets might come through her 17 window. Later, she got up from the floor to answer a phone call from her son, who lived 18 in the same subdivision. After speaking with her son, she heard footsteps running across 19 her yard from the area of Washington toward Olivares’ unit. Thereafter, she heard 20 someone say: “Put your gun down, put your gun down.” She looked out her living room 21 window, which faced onto Mantis Way. She saw Gilbert Aguilar, wearing a black tank top 22 as he had earlier in the evening, running across her yard. She also saw a police officer. 23 A short time later, “Mantis Way was full of policemen;” and she did not see Gilbert Aguilar

24 again. (ECF No. 14-6 at 80-85, 90-91, 95-97, 112-13, 115-16.) 25 ///

26 6Officer Wise had trailed Officer Brown down Mantis, trying to locate and assist him. At some point, Wise crossed over to the west side of the street; and he was the first 27 or one of the first officers to reach Mark Emerson. As other officers appeared, he continued on looking for Brown, until both were relieved separately by other responding 28 officers. (ECF No. 14-8 at 45-48, 50, 53-54, 59-65, 70-74.)

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1 Arlene Nelson lived in the same building as Gloria Olivares, at 840 Mantis Way,

2 No. 4. Her unit was the middle unit on the north side of the building, immediately next

3 door to the west of Olivares’s unit and opening out onto the walkway between 840 and

4 848 Mantis Way. After the gunfire started at approximately 11:00 p.m., she called 911.

5 She later heard footsteps running by followed by loud knocking on the door of Olivares’s

6 unit next door. (ECF No. 14-7 at 154-61.)

7 Annette Aguilar testified that Gilbert Aguilar arrived back at Olivares’s unit shortly

8 after she did. He gave his gun to David Aguilar. Annette Aguilar saw both guns back at

9 Olivares’s residence after all three had returned to the unit. Gilbert Aguilar changed his 10 pants. The Aguilar brothers, Annette, Gloria Olivares, and her daughter then all left the 11 unit together. They left the guns behind. (Id. at 79-82, 87, 129-30.) 12 Collectively, the testimony of Officer Brown, Joyce Brown, Arlene Nelson, and 13 Annette Aguilar thus tended to establish that, after the exchange or possible exchange of 14 gunfire with Officer Brown, Gilbert Aguilar proceeded directly south on Mantis Way until 15 he was back inside the Olivares residence. The testimony therefore tended to establish

16 that Marla Emerson saw Gilbert Aguilar standing with a rifle near her mortally wounded 17 husband necessarily prior to Aguilar’s exchange or possible exchange of gunfire with 18 Officer Brown. That is, after being seen and fired upon by Officer Brown, Gilbert Aguilar 19 ran directly south to the Olivares residence, not west toward the Emerson residence. 20 Annette Aguilar testified that after they left Olivares’ unit, they hopped the fence 21 into the development’s pool area. They then jumped into the pool still wearing their street 22 clothes. They subsequently left the pool area, and Annette and Gilbert thereafter split off 23 from the rest and hid in an unoccupied unit for several days. Annette and Gilbert were

24 apprehended nine days later. (Id. at 87-91, 95-96, 112, 130.)7

25 7Gregorio Urriola testified that he was near the pool area after the shooting had 26 stopped when he heard the sound of five or six people running by the pool area, a sound like someone was throwing something in the bushes between the pool and the tennis 27 court, and then the sound of people going over the fence into the pool area. Thereafter, he saw the Aguilar brothers with three or four females in the pool area. One of the brothers 28

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1 David Aguilar was apprehended later the same evening as the shooting. When

2 Aguilar was apprehended, he and Gloria Olivares were in wet casual clothes; and Aguilar

3 was not wearing a shirt. The investigating officer noted that Aguilar had marks on him

4 consistent with running and jumping over fences as well as bruising on his shoulder

5 consistent, in that officer’s view, with the effect of rifle recoil. After David Aguilar initially

6 was detained in handcuffs, a 9 mm cartridge apparently fell from one of his pockets at his

7 feet. The 9 mm round was not of the same type as that used by Metro patrol officers, as

8 it was a basic ball round rather than a hollow-point round. A search of Aguilar’s person

9 then further led to the recovery of a live 7.62 mm cartridge in a pocket. (ECF No. 14-9 at 10 23-32, 43-47; see also id. at 49-52, 56-59, 103-05.) 11 During their subsequent investigation, the police recovered six live 7.62 mm 12 cartridges in or near the bushes by the tennis court near the pool. The police also 13 recovered a dark tank top from the bushes approximately two doors away from Gloria 14 Olivares’s residence corresponding to the one that Gilbert Aguilar had worn that evening. 15 (Id. at 73, 80-81, 88-89, 101-03, 113-14, 137.)

16 When the police searched Gloria Olivares’s residence, they found: (1) the B-West 17 AK-47 in a utility closet or laundry room near a thirty-round-capacity magazine loaded 18 with twelve 7.62 mm cartridges; (2) in the same utility closet, a stripper clip used for fast 19 loading of a magazine which had an additional ten such cartridges; (3) the Maadi AK-47 20 on a sofa near a black-and-white poncho, with a thirty-round-capacity magazine inserted 21 in the rifle that was loaded with thirteen 7.62 mm cartridges and another single 7.62 mm 22 cartridge nearby; and (4) Gilbert Aguilar’s pants in a bathroom with his wallet, his 23 ///

24 entreated Urriola through the fence to also come into the pool area, but he declined. The 25 Aguilars essentially did not respond when he asked them whether they had heard the gunfire. Later that evening, the police were questioning people in the neighborhood. 26 Gilbert Aguilar was not with David Aguilar and the others by this time. One of the females with David Aguilar indicated that Urriola would back their story that they were in the pool 27 during the shooting; and Aguilar eyed Urriola while he was being questioned. Urriola did not corroborate their story, however; and Aguilar was arrested at approximately that time. 28 (ECF No. 14-8 at 137-52.)

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1 identification, and twenty-three live 7.62 mm cartridges in a pants pocket. (ECF No. 14-9

2 at 74-80, 106-07, 109-12, 114-16, 122, 136-38, 143.)

3 Investigators further recovered over forty ejected 7.62 mm casings along with two

4 live 7.62 mm cartridges in and around the parking area and common area to the north

5 and west respectively of 856 Mantis Way. The ejected casings were identified as falling

6 respectively into one of three categories. First, a number of the casings were ejected from

7 the Maadi AK-47, to the exclusion of all other weapons. Second, other casings were

8 ejected from the B-West AK-47, to the exclusion of all other weapons. Third, the remaining

9 six casings, which were recovered from the same general area with the other casings, 10 were ejected from a B-West AK-47, including possibly the B-West AK-47 recovered from 11 Olivares’s residence, and no other type of weapon. The additional recovery of two live 12 7.62 mm cartridges near other ejected 7.62 mm casings was consistent with a jammed 13 weapon being cleared, although the presence of the live cartridges could be explained by 14 other circumstances as well. A premise that the two live cartridges were expended when 15 the B-West AK-47 was cleared of a jam was consistent with Annette Aguilar’s testimony

16 that Gilbert Aguilar stated that his weapon was jammed at one point during the barrage. 17 (Id. at 66-70, 85-87, 95-100, 108-09, 122-23; ECF No. 14-10 at 68-70, 72-73, 75-80, 86, 18 100-02, 109-11.) 19 Four expended 9 mm casings further were recovered from the general area by the 20 electric utility box where Officer Brown testified that he discharged his service weapon. 21 The four casings all were ejected from Officer Brown’s weapon to the exclusion of all 22 other weapons. (ECF No. 14-9 at 65, 88, 93-94, 108-09, 129-30; ECF No. 14-10 at 67.) 23 The trial record does not reflect that any other expended casings—whether for any

24 other different particular weapons or for any other different caliber weapons—were 25 recovered during the police investigation. 26 The medical examiner testified that Mark Emerson was killed by a single gunshot 27 wound that entered low on his left chest and exited his back. Given that the single, mortal 28 ///

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1 wound was a through-and-through wound, no projectile was recovered from his body

2 during the autopsy. (ECF No. 14-10 at 40-51.)8

3 Two projectiles were recovered from the entrance to the Emersons’ unit in 856

4 Mantis Way, where Mark Emerson was standing when he was fatally shot, with one bullet

5 being recovered from each side of the entrance. Those two bullets were fired from the B-

6 West AK-47. (ECF No. 14-9 at 71-72, 96-98, 108-09, 113-14, 129-30; ECF No. 14-10 at

7 70-71, 96-97.)

8 Two projectiles were recovered from the “extreme east end in the north wall of”

9 856 Mantis Way, at approximately two feet high and one foot, one inch high. (ECF No. 10 14-9 at 72.) This location would correspond to the area where Officer Brown testified that 11 the shooter was standing when he fired his weapon. These two bullets were fired from 12 Officer Brown’s 9 mm service pistol. (Id. at 66-67, 105-06.) 13 A projectile fragment, the exterior metal jacketing from a bullet, was recovered by 14 Tim Bradford from inside his kitchen cabinet at his Valley Forge address across 15 Washington and turned over to a crime scene analyst. The projectile associated with this

16 jacketing was fired from the B-West AK-47. There also was a possible bullet hole to the 17 west or left of the sliding glass door. The analyst did not attempt to retrieve any bullet 18 associated with the possible bullet hole because extensive destructive measures would 19 have been required to do so. (Id. at 5-16, 81, 108, 121-22, 126; ECF No. 14-10 at 74-75, 20 100.) 21 Another projectile fragment, a portion of the jacketing from a round, was recovered 22 in a gutter near a vehicle in a parking area on the west side of Mantis Way close to the 23 intersection of Mantis and Washington. That direction was generally near where the first

24 responding officers attempted to enter the subdivision in their vehicles before abandoning

25 8The Court notes in passing that the firearms expert testified that the muzzle velocity of an AK-47-type rifle round would be in the range of approximately 2200 to 2700 26 feet per second in comparison to approximately 1000 to 1200 feet per second for a 9 mm pistol. The muzzle velocity for a round fired from the AK-47-type rifles thus was 27 approximately twice as much as that for a round fired from the officer’s 9 mm pistol. (ECF No. 14-10 at 80.) The trial testimony further reflected that Metro patrol officers used hollow 28 point ammunition. (See supra at 14.)

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1 the vehicles and coming down Mantis separately on foot. The projectile associated with

2 this fragment was fired from the B-West AK-47. (ECF No. 14-9 at 65-66, 95, 124-25, 131;

3 ECF No. 14-10 at 72, 97-98, 107.)

4 Lastly, another projectile fragment was recovered from Officer Brown’s patrol

5 vehicle. The projectile initially penetrated the plastic brand lettering on the grill, struck the

6 hood latch mechanism, and dropped down onto a brace or support for the radiator. The

7 recovered fragment was only a portion of the metal core of the bullet without the exterior

8 metal jacketing. The firearms expert therefore was not able to match the fragment to any

9 specific weapon. (ECF No. 14-10 at 19-35, 83-84, 94-96, 110.) 10 No other fired bullets were recovered other than the four projectiles that were fired 11 from the B-West AK-47, the two bullets fired by Officer Brown, and the one bullet core 12 fragment recovered from Officer Brown’s vehicle that could not be attributed to a particular 13 weapon. (Id. at 104-06, 110.) Thus, no identifiable fired bullets were recovered that were 14 fired from any weapon other than the B-West rifle and Brown’s service pistol. The four 15 recovered bullets that were fired from the B-West AK-47 includedthe two rifle bullets

16 recovered from the entranceway where Mark Emerson was standing when he was shot 17 and killed by a through-and-through wound. 18 On August 9, 1996, a day and a half after the incident, police recovered a single 19 live .223 caliber cartridge from under the bushes by the tennis court. No fingerprints could 20 be recovered from the unfired cartridge. (ECF No. 14-7 at 197-201.) No expended .223 21 caliber casings, and no fired projectiles identified as .223 caliber projectiles were 22 recovered at any time during the investigation reflected by the trial evidence, including 23 from the area where Mark Emerson was killed well to the north of the tennis court.9

24 /// 25 ///

26 9Investigators also observed multiple apparent bullet holes or strikes in Mark Evans’s Honda Civic. No fired projectiles were recovered from that vehicle. (ECF No. 14- 27 9 at 70-71, 100-101, 132-35, 140-45.) The brothers were acquitted of the charge of discharging a firearm into the Evans vehicle, which was not occupied at the time of the 28 shooting.

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1 The evidence at trial did not reflect that any individual other than Gilbert Aguilar

2 and David Aguilar possessed and/or fired the B-West AK-47 or the Maadi AK-47 at any

3 time that evening, including specifically when Mark Emerson was killed.

4 The evidence at trial did not reflect that any individual was seen with a rifle or firing

5 a rifle who was not either consistent with the description of the poncho-wearing David

6 Aguilar or identified by the witness as Gilbert Aguilar. Officer Brown did initially describe

7 the shooter that he saw in the dark as, inter alia, a white male; but he subsequently

8 positively identified the shooter as Gilbert Aguilar after reviewing a portion of the 7-Eleven

9 surveillance video. (See supra at 12.) 10 The Aguilar brothers were tried as principals, coconspirators, and aiders and 11 abettors, such that if one brother foreseeably pulled the trigger the other also was 12 culpable. Accordingly, under the State’s theory of the case, David Aguilar was culpable 13 as a coconspirator and/or aider and abettor for, inter alia, a murder committed by Gilbert 14 Aguilar. (E.g., ECF No. 14-11 at 21-25.) 15 David Aguilar was convicted specifically of conspiracy to commit murder, the first-

16 degree murder of Mark Emerson with the use of a deadly weapon, discharging a firearm 17 at or into a structure consisting of the Emerson dwelling, discharging a firearm at or into 18 a structure consisting of the Bradford dwelling, and discharging a firearm at or into a 19 vehicle consisting of Officer Brown’s vehicle. He was acquitted of attempted murder of 20 Officer Brown with a deadly weapon, discharging a firearm at or into a vehicle consisting 21 of Mark Evans’s Honda Civic, and assault with the use of a deadly weapon as to Officer 22 Wise. (Compare ECF No. 13-4 with ECF No. 14-15.) 23 Aguilar challenged the judgment of conviction on both direct appeal and state post-

24 conviction review. He ultimately was represented by counsel in the state post-conviction 25 proceedings, and an evidentiary hearing was held with counsel. 26 II. GOVERNING LAW 27 When the state courts have adjudicated a claim on the merits, the Antiterrorism 28 and Effective Death Penalty Act (“AEDPA”) imposes a “highly deferential” standard for

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1 evaluating the state court ruling that is “difficult to meet” and “which demands that state-

2 court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170

3 (2011). Under this highly deferential standard of review, a federal court may not grant

4 habeas relief merely because it might conclude that the state court decision was incorrect.

5 563 U.S. at 202. Instead, under 28 U.S.C. § 2254(d), the court may grant relief only if the

6 state court decision: (1) was either contrary to or involved an unreasonable application of

7 clearly established federal law as determined by the United States Supreme Court; or (2)

8 was based on an unreasonable determination of the facts in light of the evidence

9 presented at the state court proceeding. 563 U.S. at 181-88. 10 A state court decision is “contrary to” law clearly established by the Supreme Court 11 only if it applies a rule that contradicts the governing law set forth in Supreme Court case 12 law or if the decision confronts a set of facts that are materially indistinguishable from a 13 Supreme Court decision and nevertheless arrives at a different result. E.g., Mitchell v. 14 Esparza, 540 U.S. 12, 15-16 (2003). A state court decision is not contrary to established 15 federal law merely because it does not cite the Supreme Court’s opinions. Id. Indeed, the

16 Supreme Court has held that a state court need not even be aware of its precedents, so 17 long as neither the reasoning nor the result of its decision contradicts them. Id. Moreover, 18 “[a] federal court may not overrule a state court for simply holding a view different from its 19 own, when the precedent from [the Supreme] Court is, at best, ambiguous.” 540 U.S. at 20 16. For, at bottom, a decision that does not conflict with the reasoning or holdings of 21 Supreme Court precedent is not contrary to clearly established federal law. 22 A state court decision constitutes an “unreasonable application” of clearly 23 established federal law only if it is demonstrated that the state court’s application of

24 Supreme Court precedent to the facts of the case was not only incorrect but “objectively 25 unreasonable.” E.g., Esparza, 540 U.S. at 18; Davis v. Woodford, 384 F.3d 628, 638 (9th 26 Cir. 2004). 27 To the extent that the state court’s factual findings are challenged, the 28 “unreasonable determination of fact” clause of section 2254(d)(2) controls on federal

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1 habeas review. E.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause

2 requires that the federal courts “must be particularly deferential” to state court factual

3 determinations. Id. The governing standard is not satisfied by a showing merely that the

4 state court finding was “clearly erroneous.” 393 F.3d at 973. Rather, AEDPA requires

5 substantially more deference to the state court factual finding:

6 [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in 7 similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal 8 standards of appellate review, could not reasonably conclude that the finding is supported by the record. 9 10 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972. 11 Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be 12 correct unless rebutted by clear and convincing evidence. 13 On Petitioner’s claims of ineffective assistance of counsel, he must satisfy the two- 14 pronged test of Strickland v. Washington, 466 U.S. 668 (1984). He must demonstrate 15 that: (1) counsel’s performance fell below an objective standard of reasonableness; and

16 (2) counsel’s defective performance caused actual prejudice. On the performance prong, 17 the issue is not what counsel might have done differently but rather is whether counsel’s 18 decisions were reasonable from his perspective at the time. The reviewing court starts 19 from a strong presumption that counsel’s conduct fell within the wide range of reasonable 20 conduct. On the prejudice prong, the petitioner must demonstrate a reasonable probability 21 that, but for counsel’s unprofessional errors, the result of the proceeding would have been 22 different. E.g., Beardslee v. Woodford, 327 F.3d 799, 807-08 (9th Cir. 2003). 23 “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559

24 U.S. 356, 371 (2010). On the performance prong in particular, “[e]ven under a de novo 25 review, the standard for judging counsel’s representation is a most deferential one.” 26 Harrington v. Richter, 562 U.S. 86, 105 (2011). Accordingly,

27 Strickland specifically commands that a court “must indulge [the] strong presumption” that counsel “made all significant decisions in the exercise of 28 reasonable professional judgment.” 466 U.S., at 689–690, 104 S. Ct. 2052.

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The [reviewing court is] required not simply to “give [the] attorneys the 1 benefit of the doubt,” . . . but to affirmatively entertain the range of possible “reasons [defense] counsel may have had for proceeding as they did,” . . . 2 (Kozinski, C.J., dissenting). See also Richter, supra, . . . (“Strickland . . . calls for an inquiry into the objective reasonableness of 3 counsel’s performance, not counsel’s subjective state of mind”). 4 Pinholster, 563 U.S. at 196; see also Richter, 562 U.S. at 109-10.

5 When the deferential review of counsel’s representation under Strickland is

6 coupled with the deferential standard of review of a state court decision under AEDPA,

7 Richter instructs that such review is “doubly” deferential:

8 The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123, 129 S.Ct. at 1420. . . . . When 9 § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that 10 counsel satisfied Strickland’s deferential standard. 11 Richter, 562 U.S. at 105. 12 The petitioner bears the burden of proving by a preponderance of the evidence 13 that he is entitled to habeas relief. Pinholster, 563 U.S. at 569. 14 III. DISCUSSION 15 A. Ground 5: Alleged Theft of the B-West AK-47 from a Police Officer

16 In the first remaining ground, Ground 5, Aguilar alleges that he was denied 17 effective assistance when counsel failed to: (a) present evidence that allegedly the B- 18 West AK-47 had been stolen from a police officer; and (b) investigate the officer’s 19 involvement allegedly indicated by his AK-47 being connected to the murder and his 20 alleged failure to report the theft prior to the murder. (ECF No. 28 at 17-19.) 21 The prior summary of the guilt-phase evidence discusses the roles played 22 respectively by the B-West AK-47 and the Maadi AK-47 in the offenses of which David 23 Aguilar was convicted. The State maintained that Mark Emerson likely was shot and killed

24 with the B-West AK-47 rather than the Maadi AK-47. (See supra at 1-18.) Petitioner 25 maintains, inter alia, that counsel was ineffective for failing to establish at trial that the 26 murder weapon, the B-West AK-47, had been stolen from a police officer. 27 During the penalty phase, Metro Detective Michael Franks testified that the Bureau 28 of Alcohol, Tobacco and Firearms (“ATF”) was able to trace the ownership of one of the

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1 two rifles, referring to the B-West AK-47 and the Maadi AK-47. ATF was able to trace one

2 weapon back to an Officer Debecker. When asked which weapon, he responded: “I

3 believe it was the Egyptian Maadi.” (ECF No. 14-20 at 94-95.)

4 Metro Officer Brian Debecker testified also during the penalty phase, inter alia, that

5 (1) he discovered on January 1, 1995, that, inter alia, three firearms, including an “AK-47

6 assault rifle,” had been stolen from his residence while he was at work; (2) he had

7 purchased the AK-47 from another officer, Kevin Stevens, approximately two years before

8 the burglary; and (3) subsequent to the burglary, he received a call advising him that the

9 AK-47 had been “used in the commission of a murder as well as being fired at police 10 officers,” referring to the incidents in this case. (ECF No. 14-18 at 85-89.) 11 No direct evidence was presented during the penalty phase that the B-West AK- 12 47 that the State maintained killed Mark Emerson was stolen from Officer Debecker. The 13 evidence presented at that time in October 1997 instead tended to reflect that it was the 14 Maadi AK-47 that had been stolen from Debecker. 15 Penalty-phase evidence further reflected that Gilbert Aguilar previously had been

16 charged with federal firearms violations involving forty Norinco MAK-90 AK-47 Sportsters 17 and nine other Norinco AK-47-type rifles. Aguilar was convicted of the charge regarding 18 the nine rifles, but he was acquitted of the charge involving the forty rifles. The forty AK- 19 47-type rifles were never recovered by federal authorities. The testifying ATF agent 20 clarified that B-West was not a manufacturer but instead was an importer, with Norinco 21 being a manufacturer. (Id. at 116-19, 122, 125-26.)10 22 In March of 1984, Gilbert Aguilar, David Aguilar, and another accomplice were 23 arrested for burglarizing a gun store in Arizona and stealing thirty-nine weapons, including

24 rifles, shotguns, and pistols with a total value of over $12,000. Twenty-four of the weapons 25 were recovered from Gilbert Aguilar’s residence. At least David Aguilar was convicted for

26 10The Court notes that, with respect to the penalty-phase evidence surveyed 27 herein, any door that would have been opened to the admission of similar evidence in the guilt phase as to Gilbert Aguilar also would impact David Aguilar given that the State 28 alleged that they were jointly culpable as coconspirators and aiders and abettors.

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1 the offense, which occurred while he was on probation from a prior offense involving

2 assault with a deadly weapon. (Id. at 59-61, 133-34; see also ECF No. 14-21 at 91-93,

3 99.)

4 The State further produced evidence reflecting multiple prior violent offenses by

5 David Aguilar and Gilbert Aguilar, frequently involving weapons generally and firearms in

6 particular.

7 The State presented evidence that Gilbert Aguilar, inter alia, had been convicted

8 of aggravated assault-related offenses after he fired several shots from a shotgun at a

9 crowd of people standing on a corner, with Aguilar thereafter attempting to flee—shotgun 10 in hand—when the vehicle in which he was riding was pulled over by the police. (ECF No. 11 14-18 at 132-33; see also id. at 89-106, 134-37.) 12 The State presented evidence that David Aguilar, inter alia: (1) had been convicted 13 of ex-felon in possession of a firearm following an incident—only five months prior to the 14 August 1996 offenses—where Aguilar was firing an SKS-type rifle with a large capacity 15 magazine in the same Atrium Gardens subdivision, with Aguilar purportedly believing that

16 someone was shooting at him and telling arresting officers that he had a constitutional 17 right to bear arms (Id. at 77-85);11 and (2) had pled guilty in 1982 to aggravated assault 18 with a deadly weapon following a gang conflict where he fired multiple shots with a 19 handgun at rival gang members, claiming that he meant only to scare them, in a situation 20 where multiple innocent bystanders were present at a baseball game in a park (Id. at 50- 21 59, 61-63). (See also id. at 67-76; ECF No. 14-20 at 85-87; ECF No. 14-21 at 71-77, 84- 22 91, 95-96.) 23 Following the penalty phase, Gilbert Aguilar was sentenced for the murder of Mark

24 Emerson to consecutive life sentences without the possibility of parole; and David Aguilar 25 was sentenced for that offense to consecutive sentences of life with the possibility of 26 ///

27 11The Court carries forward the more generic “SKS-type” reference to the rifle in 28 the state court record.

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1 parole. Both brothers thus avoided imposition of the death penalty. (ECF Nos. 14-24, 14-

2 31, 15.)

3 The Aguilar brothers thereafter sought post-conviction relief following the

4 conclusion of direct review. David Aguilar alleged in his pro se petition that trial counsel

5 had been ineffective for failing to investigate Officer Debecker’s alleged involvement in

6 the offenses by virtue of the fact that the Maadi AK-47—not the B-West AK-47—had been

7 stolen from the officer. He did allege further, however, without supporting evidence, that

8 Officer Debecker fired the shot that killed Mark Emerson. (E.g., ECF No. 15-12 at 68-70,

9 72-73.) 10 The state district court initially held a joint evidentiary hearing on the Aguilar 11 brothers’ petitions, without appointing counsel. The state supreme court reversed and 12 remanded, however, for the appointment of counsel. (ECF Nos. 16, 16-1, 16-2, 16-3, 16- 13 7, 16-8, 16-10.) 14 The matter came on for a joint evidentiary hearing, with separate counsel for each 15 brother, first on June 25, 2010, and thereafter on December 3, 2010. (ECF Nos. 16-19,

16 16-20.) The counseled evidentiary hearing therefore was held approximately thirteen 17 years after the October 1997 trial. 18 During the hearing, a criminal defense investigator retained for David Aguilar 19 testified that he subpoenaed records regarding Officer Debecker in December 2009. He 20 was unable to obtain any such records in response to the subpoena. The investigator 21 thus was unable to determine: (1) when Officer Debecker’s AK-47 was reported stolen; 22 and (2) where Officer Debecker was approximately a dozen years earlier on the evening 23 of August 7, 1996. The investigator presented no evidence of any relationship between

24 Officer Debecker and anyone involved in the case or any involvement by Debecker with 25 the case. (ECF No. 16-19 at 19-22, 27-31.) 26 No competent independent evidence was presented at the evidentiary hearing 27 establishing that the rifle stolen from Officer Debecker was the B-West AK-47 that the trial 28 evidence tended to establish was used to kill Mark Emerson. The only competent

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1 evidence in the state court record as a whole tended to establish that the rifle stolen from

2 Debecker instead was the Maadi AK-47. (See supra at 21-22.)

3 No competent, independent evidence was presented at the evidentiary hearing

4 establishing that Officer Debecker did not report his AK-47 stolen until after the August 7,

5 1996 murder of Mark Emerson.

6 As noted above, the defense investigator retained for Aguilar testified at the

7 hearing that he was unable to determine when Officer Debecker reported that the AK-47

8 was stolen. Nevertheless, state post-conviction counsel asserted: “It was reported stolen

9 by Officer Debecker after the crime took place” during his examination of Petitioner’s lead 10 trial counsel. (ECF No. 16-19 at 59.) Given that state post-conviction counsel’s statement 11 did not constitute evidence, the only actual evidence that Petitioner presented showed 12 that Petitioner could not establish when the weapon was stolen. Post-conviction counsel’s 13 statement that the theft was reported only after the murder thus was not supported by the 14 only actual evidence presented at the hearing on that point. 15 Moreover, none of the four trial lawyers for the two defendants recalled specifically,

16 thirteen years after the trial, when Officer Debecker reported his AK-47 stolen. 17 Roger Hillman, lead trial counsel for David Aguilar, stated at the outset of his 18 testimony regarding his general recollection of the case: “It’s been 13 years. I don’t 19 remember a lot of it.” (Id. at 33.) A copy of the original defense file sent to Aguilar had not 20 been retained by his office. (Id. at 73-74.) Thus, Hillman was unable to remember much 21 about the case. (See id. at 33-120.) 22 With particular regard to Officer Debecker’s weapon, the following exchange 23 occurred during Hillman’s testimony:

24 Q. I would like to turn now to Office Debecker. 25 Did you become aware prior to the trial of any special circumstances involving one of the AK-47s allegedly used during the crime? 26 A. Yeah. I don’t remember if it was the SKS [counsel likely confuses the 27 stolen AK-47 with the SKS fired by David Aguilar five months before the murder] or the Moddi [sic], but it was reported stolen from that 28 officer a year or a year and a half before.

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Q. That it was stolen or that it was missing? 1 A. My recollection is stolen, but I don’t know if it was missing. It seems 2 to me that it was stolen. 3 Q. Do you recall at what point it was reported stolen? 4 A. Later on, if I remember right.Itseemed like there was some reason why he reported it stolen later instead of immediately at the time. 5 Q. Do you recall it being reported stolen after the murder took place? 6 A. That’s possible. I don’t remember specifically. 7

8 (Id. at 57-58 (emphasis added).)12

9 The remaining testimony by Hillman as well as the testimony of the other three 10 defense lawyers respectively representing the two brothers similarly failed to establish 11 that Officer Debecker did not report his AK-47 stolen until after the murder. Lead counsel 12 for Gilbert Aguilar, William Wolfbrandt, Jr., testified initially that “[a] report had been 13 generated at the time” of the theft. On further questioning, however, he indicated that he 14 could not state the specific dates that the report was generated or when he saw it. Neither 15 second chair testified to any specific recollection on the point. (See id. at 66, 136-39; ECF

16 No. 16-20 at 12-13, 23, 106, 116.) 17 Furthermore, no competent independent evidence was presented at the 18 evidentiary hearing establishing that Officer Debecker otherwise was involved—in any 19 respect—in the August 7, 1996 murder. The only actual historical facts presented or 20 tendered to any court to date are that: (1) Officer Debecker’s Maadi AK-47 was stolen on 21 or before January 1, 1995; and (2) the Maadi AK-47 was recovered from Gloria Olivares’s 22 residence with David Aguilar’s palm print on it after the August 7, 1996 shooting spree

23 12Petitioner relies upon this particular passage as evidence that Officer Debecker did not report that his AK-47 was stolen until after the murder. (ECF No. 28 at 18; ECF 24 No. 68 at 5.) A witness’s response that something was “possible” but that he did not remember specifically whether or not the alleged fact was true does not establish any 25 fact. On both state and federal post-conviction review, a petitioner has the burden of proving facts by a preponderance of the evidence. If witnesses no longer recall whether 26 or not a specific fact is true, then the petitioner simply has failed to carry his burden of proof. In this instance, Aguilar attempted to develop evidence of when Debecker reported 27 his rifle stolen via a subpoena request, but he was unable to do so. The equivocal testimony of an attorney with no remaining file and scant recollection thirteen years after 28 the fact did not fill in the gap in Petitioner’s evidence.

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1 where the trial evidence tended to establish that the Aguilar brothers collectively had been

2 firing that rifle and the B-West AK-47 during the incident. (E.g., ECF No. 16-20 at 21, 23;

3 see also ECF No. 14-21 at 104.)

4 The evidentiary hearing record tended to establish that defense counsel for the

5 two Aguilar brothers, who were cooperating in the defense of the case, were aware prior

6 to trial that one of the AK-47s had been stolen from Officer Debecker. John Shook, second

7 chair for Gilbert Aguilar, noted in a July 12, 1997 letter report: “Brian Debecker—Reported

8 AK-47 used in crime stolen in 1994.” (ECF No. 15-17 at 39; ECF No. 16-20 at 12-14, 16,

9 18-21, 39, 43.) David Aguilar’s lead counsel Hillman further testified that he thought that 10 he was aware of that particular fact prior to trial. (ECF No. 16-19 at 58.) 11 Hillman testified that he knew he talked to his investigator about investigating 12 whether Officer Debecker was present at the scene of the crime on August 7, 1996. He 13 testified that “the best recollection I have is that he followed up on that and didn’t find 14 anything useful for us.” He had no further recollection as to the specifics of the 15 investigation. (Id. at 60-61; see also id. at 66, 95, 111; ECF 16-20 at 115.)

16 Hillman testified as follows as to why he did not rely upon the fact that one of the 17 weapons was stolen from Officer Debecker in defending Aguilar at trial:

18 Q. And why did you not do that?

19 A. Because it would have opened a door as to an alternate theory, which is that David and/or Gilbert or someone known to them stole 20 the officer—or stole the weapon from Officer Debecker, and that would have opened the door to David’s involvement in those type of 21 weapons in the past in Arizona. 22 If I remember right, David or David’s brother-in-law was involved with the movement of several SKS and Moddi, M-O-D-D-I, [sic] AK-47- 23 type weapons down in Arizona before. 24 (ECF No. 16-19 at 62; see also id. at 63-64, 95-96.) 25 Hillman elaborated further, after his recollection was refreshed from the 26 presentence investigation report as to prior weapons-related offenses:

27 Q. What sort of door do you think would have been opened had you pursued this business about an actual member of the Las Vegas 28 Metropolitan Police Department being a murderer here?

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A. I think that that would have appeared very unreasonable and very 1 paranoid to the jurors. It would have opened the door, again, as to David’s involvement and knowledge of assault rifles, which I needed 2 education on that, even though I had been an attorney for ten years at the time and handled murder cases involving firearms. 3 It also would have raised the issue again of whether David or Gilbert 4 had been involved in the theft of that firearm, if the jury didn’t believe 5 that Debecker had committed the crime and planted it.

6 It also would have caused speculation as to how, if the jurors did not believe that Debecker planted that firearm in Gloria’s apartment, how 7 did David and/or Gilbert get ahold of that weapon. Did they steal it? Did they buy it? Were they trafficking in stolen assault rifles? 8 Q. Would it be reasonable to assume that the prosecution, had that 9 been your defense, would have pursued a bad acts motion and attempted to introduce evidence of the defendant’s prior from 10 Arizona related to this issue? 11 A. Undoubtedly. 12 Q. Based upon your experience as an attorney, would there have been a reasonable chance that such a motion would have been granted? 13 A. I think it would have been granted. 14 Q. And how do you think the defendant would have fared had that been 15 granted?

16 A. It would have diminished our chances in the guilt phase and the penalty phase for a good result. 17

18 (Id. at 97-98; see also id. at 110-11.)

19 Hillman discussed the potential impact upon the penalty phase further when

20 testifying about David Aguilar’s related claim of a general government conspiracy against 21 him. Hillman noted that, because the case was a capital case, the defense had to be 22 concerned also with how a guilt-phase defense might impact the penalty phase. Avoiding 23 possible imposition of the death penalty was a major goal in defending the case, and

24 Hillman regarded the evidence of guilt in the Aguilar case to be “very strong.” He therefore 25 sought to avoid marginal defenses that both might impair the credibility of the defense 26 and might cast Aguilar in an unsympathetic light even before the case possibly reached

27 the penalty phase. (Id. at 78-80; see also ECF No. 16-20 at 20-21.) 28 ///

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1 Hillman explained further:

2 A. And you have to decide if—if what you’re going to present to a jury is something that a jury will believe or not. I felt that the jury would 3 not believe this [referring to Aguilar’s government conspiracy theory]. And that David would come off as being somewhat paranoid, if not 4 delusional, to them. 5 Coupled with the weapons that were involved in Mr. Aguilar’s past, I was concerned that the jury would have fear of Mr. Aguilar and might 6 base their decision upon that emotional response rather than the evidence in the court. 7 . . . . . 8 A. And that is something we thought about and something we styled our 9 defense in the penalty hearing for—excuse me—the guilt phase as well. We did not want to present David as someone who was— 10 someone that would frighten the jurors. 11 (ECF No. 16-19 at 78-79; see also id. at 137-38.) 12 The state district court found, inter alia,as follows:

13 Counsel cannot be deemed ineffective for deciding against presenting a theory that Officer Brian Debecker was the shooter because: (1) there was 14 no evidence to support this theory, which would have appeared unreasonable and paranoid to jurors; (2) there was no evidence that Officer 15 Debecker was anywhere near the 7-Eleven on the night in question; and (3) raising the issue would have allowed for the introduction of Defendants’ 16 prior crimes, including possession of stolen firearms similar to those used in the shooting. . . . . Moreover, there was no evidence to determine that the 17 fatal bullet striking Mr. Emerson was fired by Officer Debecker’s stolen AK- 47. . . . . Based on well-supported strategic reasons, counsel for both 18 Defendants determined in advance of trial not to put forth this theory. 19 (ECF No. 16-24 at 12-13.) 20 The state supreme court rejected the claims on the following basis:

21 [A]ppellants claim that trial counsel were ineffective for failing to investigate and present evidence that the weapon used to kill the victim belonged to a 22 police officer and that the police officer may have fired the fatal shot. Appellants fail to demonstrate that trial counsel were deficient. Trial counsel 23 testified at the evidentiary hearing that there was a tactical reason for not presenting this evidence: one of the appellants had prior convictions or 24 arrests for dealing in stolen weapons. Trial counsel made a tactical decision that they not want the jury to hear that evidence and make a connection that 25 appellants stole the guns used in the crime. Therefore, the district court did not err in denying this claim. 26 27 (ECF No. 16-36 at 3.) 28 ///

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1 The state supreme court’s rejection of the claims presented in Ground 5 was

2 neither contrary to nor an unreasonable application of the clearly established federal law

3 in Strickland and following cases.

4 At the outset, Petitioner’s principal factual allegations in Ground 5 are not

5 supported by competent evidence in the record that was before the state courts when

6 they rejected the claims on the merits. Petitioner urges that the weapon stolen from Officer

7 Debecker was the B-West AK-47 that the State postulated was the likely murder weapon.

8 However, the only available evidence in the state court record tends to establish that the

9 weapon stolen from Debecker instead was the Maadi AK-47. (See supra at 21-22, 24- 10 25.) Petitioner further urges that Officer Debecker did not report that his AK-47 was stolen 11 until after the murder. There was no independent competent evidence in the state court 12 record establishing such a fact. (See supra at 24-25.) Finally, Petitioner refers multiple 13 times to Officer Debecker’s “connection to,”“participation in,” and “involvement with” the 14 murder. Here, twenty-two years after the murder, no competent evidence ever has been 15 presented or tendered, to any court, that Officer Debecker participated in or had any

16 involvement with the murder. (See supra at 24-26.) The only actual historical fact ever 17 established in the state court record was that Officer Debecker’s AK-47 was stolen well 18 prior to the murder—in a context where the trial evidence tended to place Debecker’s 19 previously stolen AK-47 instead in the hands of the Aguilar brothers during the shooting 20 spree and murder. (Supra at 2-18, 25.) 21 Especially against that backdrop, the state supreme court’s rejection of the claims 22 presented in Ground 5 was not an unreasonable application of Strickland. 23 As noted previously, review of a state court’s holding under the performance prong

24 of Strickland is doubly deferential under AEDPA. The question before the court under 25 AEDPA thus becomes one of “whether there is any reasonable argument that counsel 26 satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. 27 Under this doubly deferential standard of review, there certainly was a reasonable 28 argument that counsel satisfied Strickland’s deferential performance standard when

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1 counsel decided to not pursue further investigation regarding Officer Debecker. Strategic

2 choices made after a reasonable investigation are “virtually unchallengeable;” and a

3 decision to not investigate further “must be directly assessed for reasonableness in all of

4 the circumstances, applying a heavy measure of deference to counsel’s judgments.”

5 Strickland, 466 U.S. at 690-91. There is a “strong presumption” that counsel’s attention

6 to certain issues to the exclusion of others reflects trial tactics rather than “sheer neglect.”

7 Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam). In the present case, lead

8 counsel’s best recollection thirteen years after the capital murder trial was that his

9 investigator did not uncover any useful information after investigating whether Officer 10 Debecker was involved in the murder. (See supra at 27.) Based on the record presented 11 to that court, the state supreme court reasonably could conclude that counsel did not 12 render deficient performance by opting to not expend further investigative resources on 13 the issue. 14 The inability of any of the four defense attorneys involved, thirteen years after the 15 fact, to further recall the specifics of what the investigator looked at in his investigation

16 does not rebut the strong presumption of competence and does not establish ineffective 17 assistance of counsel. Rather, it simply reflects that the party with the burden of proof on 18 post-conviction review failed to present competent evidence establishing deficient 19 performance in this regard. Petitioner presented no evidence at the state evidentiary 20 hearing establishing that counsel were on notice of any additional actual specific fact that 21 would prompt further investigation over and above the investigation that counsel testified 22 occurred regarding Officer Debecker. (See, e.g., ECF No. 16-20 at 23.) 23 There further was a reasonable argument that counsel satisfied Strickland’s

24 deferential performance standard when counsel decided to not present evidence at trial 25 that one of the AK-47s had been stolen from Officer Debecker. Strategic choices made 26 after reasonable investigation, again, are “virtually unchallengeable.” Strickland, 466 U.S. 27 at 690-91. Counsel clearly testified as to the strategic reasons why the defense decided 28 to not present evidence that one of the AK-47s used in the shooting spree had been

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1 stolen from Officer Debecker. Counsel was concerned that such a defense effort might

2 be viewed as unreasonable and paranoid by the jury; that the effort further would open

3 the door to admission of the Aguilar brothers’ collective past involvement with weapon

4 offenses, stolen weapons, and assault weapons in particular; and that the defense

5 thereby might lose the jury as to penalty even before the penalty phase might be reached.

6 (See supra at 27-29.) There were substantial prior offenses involving weaponsoffenses,

7 stolen weapons, and/or assault rifles with which to be concerned. (See supra at 22-23.)13

8 The mere fact that one of the AK-47s had been stolen from Officer Debecker was not

9 inherently exculpatory, and any attempt by the defense to bootstrap that fact into 10 something more risked opening the door to far worse prior bad act evidence in the guilt 11 phase. On the record presented to the state supreme court, the court’s holding that 12 counsel’s strategic decision did not constitute deficient performance clearly was not an 13 objectively unreasonable application of Strickland. 14 Ground 5 therefore does not provide a basis for federal habeas relief.14

15 13As noted previously, given that the State was prosecuting the brothers as 16 coconspirators and aiders and abettors as well as principals, opening the door to prior bad acts by Gilbert Aguilar posed a corresponding substantial risk also to David Aguilar. 17 14Even if the Court were to reach the prejudice issue under an assumed de novo 18 standard of review, Petitioner would not be entitled to either relief or an evidentiary hearing on the bare allegations presented in the pleadings as to Officer Debecker’s 19 “involvement.” Conclusory allegations that are not supported by a statement of specific facts do not warrant habeas relief. James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994.) Aguilar 20 presents no specific allegations of actual historical fact—after a state court evidentiary hearing where Petitioner had the benefit of both counsel and an investigator and further 21 opportunity for investigation by federal habeas counsel—that would lead to a conclusion that Petitioner was prejudiced by the failure to investigate further as to Officer Debecker. 22 That is, he presents no specific allegations as to such involvement. 23 In this regard, Petitioner points to an initial description of the shooter radioed by Officer Chad Brown to other officers as a heavy set white male with a shaved head. (See 24 ECF No. 68 at 7 (citing to testimony by Brown and another responding officer).) Notwithstanding this early description, Officer Brown positively identified Gilbert Aguilar, 25 who was bald at the time, as the shooter from the 7-Eleven videotape and also at trial. (See supra at 12-13.) Marla Emerson also positively identified Aguilar. (See supra at 8.) 26 There was no outstanding bald white “mystery man” that was not accounted for by the witnesses’ trial testimony. Nor, critically, has Petitioner ever tendered any evidence that 27 (a) Officer Debecker was a heavy set, bald, white male on August 7, 1996; or (b) any witness in fact ever has positively identified Debecker rather than Gilbert Aguilar as the 28

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1 B. Ground 6: Photographic Lineup

2 In Ground 6, Petitioner alleges that he was denied effective assistance when

3 counsel failed to move to suppress identification evidence wherein neighbor Joyce Brown

4 identified Gilbert Aguilar. Petitioner alleges that Brown presented “the most compelling

5 evidence” at trial when she identified Aguilar as “the man she had seen walking away

6 from the murder scene shortly after the murder occurred.” He maintains that the

7 identification procedure was suggestive because a detective stated to Brown that

8 individuals might have grown their hair out. He further alleges that the evidence was both

9 suggestive and highly prejudicial because Gilbert Aguilar was in jail clothing. Given that 10 the brothers were tried as coconspirators and aider and abettors, Petitioner maintains 11 that he was prejudiced by admission of the evidence. (ECF No. 28 at 19-20.) 12 As summarized previously herein, Joyce Brown testified, inter alia, that: (1) she 13 was a neighbor of Gloria Olivares, David Aguilar’s girlfriend, in the next, four-unit building 14 over across a walkway; (2) before the shooting started on the evening in question, she 15 observed Gilbert Aguilar openly carrying a rifle and David Aguilar with his hands obscured

16 by a poncho walking together in the general direction of the 7-Eleven; and (3) after the 17 shooting had started, she later heard a police officer yelling “put your gun down, put your 18 gun down” before observing through her window Gilbert Aguilar running across her yard 19 and also observing the officer. (See supra at 2-3, 12.) 20 ///

21 shooter. Indeed, David Aguilar’s post-conviction counsel expressly conceded that “neither 22 of the brothers look all that Hispanic.” (ECF No. 16-20 at 137.)

23 Given the disposition in the text, however, the Court has no occasion to reach the prejudice issue on the investigation claim in Ground 5. 24 Petitioner further maintains that Officer Debecker’s alleged possible involvement 25 tied in with David Aguilar’s theory of an alternative suspect and government “set up,” in connection with Ground 9. (ECF No. 68 at 5.) Neither Ground 5 nor Ground 9, discussed 26 infra, have merit separately. They have even less merit when combined, as the adverse risks associated with pursuing the two possible defense theories separately would have 27 been compounded by pursuing them both together. Defense counsel had a much better appreciation than did Aguilar of how such wholly unsupported and paranoid defenses 28 likely would have played out before a jury if raised during the guilt phase.

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1 Specifically relating to her identification of Gilbert Aguilar, including in relation to

2 seeing him together with David Aguilar, Joyce Brown testified as follows. She knew David

3 Aguilar from his being Gloria Olivares’s boyfriend; and she had seen him out “working on

4 his cars” and such “like every day, every other day,” for “maybe about a year.” Prior to

5 August 7, 1996, she had seen Gilbert Aguilar also at the Olivares residence “going and

6 coming, maybe once, twice a day” for “[m]aybe a few days, a week” prior to that evening.

7 She described him, inter alia, as having “a weird haircut, like bald with a ponytail or some

8 hair someplace else with a bald head.” (ECF No. 14-6 at 69-72, 88-90.)

9 When Brown observed the Aguilar brothers walking north that evening with Gilbert 10 Aguilar openly carrying a rifle, David Aguilar was approximately six feet away from her, 11 and Gilbert was approximately ten to twelve feet from her. The area was in Brown’s 12 characterization “lit” by a streetlight. There was enough light to see facial features. 13 Nothing obstructed her line of sight as they walked by her unit on Mantis Way, and she 14 was able to see the two men clearly. She observed them during the time that they walked 15 past her building, walking at “a steady pace, and going somewhere.” (Id. at 75, 77-79, 92-

16 94, 114.) 17 When Brown later saw Gilbert Aguilar running across her yard after the shooting, 18 her view again was not obstructed; and the streetlight on Mantis again provided lighting. 19 He was wearing a black tank top just as he had been wearing on the way out earlier. He 20 was approximately four feet from her window. (Id. at 76, 83, 90-91, 95-97, 112-13, 115.) 21 Joyce Brown testified that she later viewed a photographic lineup with photographs 22 of approximately six males. She initially was unable to identify anyone from the lineup 23 because she “was looking for a bald head with a pony tail.” What the investigating

24 detective then said to her at the lineup was excluded during her testimony on a defense 25 hearsay objection. At the lineup, she thereafter focused on “just the looks and not the hair 26 style;” and she was able to identify Gilbert Aguilar with that focus. (Id. at 97-99.) 27 /// 28 ///

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1 At trial, Joyce Brown positively identified each brother separately, despite

2 intervening changes in appearance. She was unequivocal in her in-trial identification of

3 each brother. (Id. at 70, 73-74, 77, 83-85, 114-16.)

4 Metro Detective Franks testified at trial that he showed the photographic lineup to

5 Joyce Brown at her residence on August 29, 1996, which was just over three weeks after

6 the incident. According to his testimony, Franks was aware at the time that Brown already

7 knew David Aguilar as a neighbor prior to the incident. He showed Brown an array of

8 photographs of six males with similar appearance, including a current photograph of

9 Gilbert Aguilar. (ECF No. 14-10 at 132-34.) 10 Detective Franks testified as follows specifically regarding the identification:

11 Q. Did you suggest to her in any way that Gilbert Aguilar’s picture was in that lineup? 12 A. I did not. 13 Q. Did you attempt to influence her decision at all? 14 A. No, sir. 15 . . . . . 16 Q. When Mrs. Brown viewed the lineup, was she able to identify Gilbert 17 right away?

18 A. No, sir.

19 Q. Did you explain certain things to her after she had some difficulty?

20 A. She kept referring to the bald man, and I re-explained to her that hair grows out, and unless you cut it every day you’re not going to be bald 21 every day. I then asked her to review the lineup, and she picked out Gilbert Aguilar. 22 Q. After she concentrated on the facial features, did she have any 23 difficulty ID’ing Gilbert Aguilar?

24 A. No, sir. 25 (Id. at 134.) 26 /// 27 /// 28 ///

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1 During the second day of the state post-conviction evidentiary hearing, the trial

2 exhibit with the original “six-pack” photographic lineup was retrieved from the evidence

3 vault. (ECF No. 16-20 at 33-34, 88.)

4 As reflected through the hearing testimony of Gilbert Aguilar’s lead trial counsel,

5 William Wolfbrandt, Jr.: (1) while Wolfbrandt recognized the T-shirt that Aguilar was

6 wearing as jail clothes with his twenty-five years of criminal defense experience, the

7 jailhouse nature of the T-shirt would not have been apparent to a lay person who was not

8 similarly familiar with what pretrial detainees wore (Id. at 88-89, 96-98); (2) in particular,

9 nothing on the shirt said “jail,”“detention” or “CCDC;” nor did it have any other indication 10 on it that would indicate to a layperson that it was jail clothing(id. at 97-99); (3) moreover, 11 nothing about the T-shirt singled out Gilbert Aguilar as being in jail clothes in comparison 12 to the other males in the lineup, all but one of whom were attired substantially similarly 13 (id. at 98-99); (4) all six of the photographs had Metro identification numbers, which also 14 were assigned for other purposes, such as photographs for work cards (id. at 99-100); (5) 15 in this regard as well, all six of the photographs had such numbers, so nothing about the

16 presence of the numbers singled out Gilbert Aguilar from the other five males in the 17 photographic array (id.); and (6) while counsel had “seen better lineups” in terms of 18 matching physical build, he testified that Aguilar “doesn’t stand out based on clothing,” 19 and the photographic identification was not subject to suppression in either respect in his 20 opinion (id.).15 21

22 15Petitioner asserts in the reply: “At trial, Detective James Michael Franks testified that he created a six-pack photograph lineup using booking photos of six individuals, 23 including Gilbert, who was wearing jail or prison clothing (ECF No. 14, Ex. 39 at 131-32).” (ECF No. 68 at 9.) Detective Franks did not testify at trial that he used booking photos, 24 and he did not testify that Aguilar was wearing jail or prison clothing. All that he reflected in his actual trial testimony was that the six photographs had Metro ID numbers on them. 25 (ECF No. 14-10 at 132.) The evidentiary hearing testimony referenced in the text further addresses how Gilbert Aguilar—and the other males in the lineup—were dressed. Neither 26 Detective Franks’s trial testimony cited by Petitioner nor the evidentiary hearing testimony referenced in the text reflects that Gilbert Aguilar was presented in the six-pack in a 27 suggestive manner that in any way singled him out from the other five males in the lineup. At least with respect to suggestiveness, that is the key point. Petitioner cites no actual 28

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1 The state district court found, inter alia, as follows, in addressing a claim pertaining

2 to both the photographic identification evidence by Joyce Brown and the admission of

3 other photographs of the Aguilar brothers as well:

4 First, there was nothing about the photographs of Gilbert that would indicate he was in custody because his appearance and attire were consistent with 5 that of a non-detained person. EH Day 2 at 97-97. Moreover, although the inscription “Metropolitan Police Department” appeared on the photographs 6 of Gilbert, those markings and numbers were equally consistent with non- criminal identification cards and paperwork, such as those carried by an 7 individual employed by a gaming establishment. EH Day 2 at 98. Second, the remaining photographs, did not indicate any prior link with the police or 8 suggest Defendant Dayomashell [David Aguilar] had a past criminal record, and the State did not refer to the photos as “mugshots.” . . . . Finally, 9 Defendant Gilbert’s counsel reviewed the photo line-up prior to trial and would have sought its exclusion if it posed some irregularity or prejudice. 10 EH Day 2, at 27-28. Instead, he believed the photographic lineup was nonsuggestive to the extent of not providing a good faith basis for a 11 suppression argument. EH Day 2 at 99. 12 (ECF No. 16-24 at 16.) 13 The Supreme Court of Nevada rejected the claims presented by post-conviction 14 counsel to that court on the following grounds:

15 [A]ppellants claim that trial counsel were ineffective for failing to challenge the photo line-up that was admitted at trial. Specifically, appellants claim 16 that the photo shows appellant Gilbert in his jail clothing.[FN1] Appellants fail to demonstrate that trial counsel were deficient. At the evidentiary 17 hearing, trial counsel testified that they did not believe they had any grounds to challenge the photo line-up because while, to a person familiar with jail 18 clothing, the picture did show Gilbert in his jail clothing, a person unfamiliar with jail clothing would have thought he was wearing a t-shirt. Trial counsel 19 is not required to make futile objections. Donovan v. State, 94 Nev. 671, 584 P.2d 708 (1978). . . . . Therefore, the district court did not err in denying 20 these claims. 21 [FN1] To the extent that appellant claims that trial counsel should have filed a pretrial motion to suppress the photo line-up because the officers may 22 have prompted the eyewitnesses, appellant failed to demonstrate that this claim had merit. Appellants failed to provide this court with a copy of the trial 23 transcripts. The burden is on appellants to provide an adequate record

24 evidence in the state court record that would lead to a contrary conclusion that the array instead singled out Aguilar from the other males. 25 Related testimony by the two lead counsel respectively for the Aguilar brothers that 26 was received before the original six-pack photographic array was retrieved from the evidence vault contained nothing significant. Thirteen years after the trial and without their 27 defense files, neither definitively recalled anything of significance, prompting the retrieval of the six-pack exhibit during the evidentiary hearing. (See ECF No. 16-19 at 67, 93; ECF 28 No. 16-20 at 23-34.)

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enabling this court to review assignments of error. See Thomas v. State, 1 120 Nev. 37, 43 n.4, 83 P.3d 818, 822 n.4 (2004); see also Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980); Jacobs v. State, 91 Nev. 155, 2 158, 532 P.2d 1034, 1036 (1975). 3 (ECF No. 16-36 at 3-4.)

4 The state supreme court’s rejection of a claim based upon Gilbert Aguilar being in

5 jailhouse clothing was neither contrary to nor an objectively unreasonable application of

6 clearly established federal law. At the outset, the state courts found as a fact that Gilbert

7 Aguilar’s appearance in the photograph was consistent with a non-detainee because to

8 a person unfamiliar with the local jail clothing he would appear to be simply wearing a T-

9 shirt. That factual finding was amply supported by the state court record and easily 10 withstands the deferential standard of review of state court factual findings under section 11 2254(d)(2). (See supra at 36-37.) Against that backdrop, the state supreme court’s 12 conclusion that counsel did not provide deficient performance by failing to raise a futile 13 objection on this basis was not an objectively unreasonable application of clearly 14 established federal law under the doubly deferential standard of review applicable under 15 Strickland’s performance prong and AEDPA.

16 Turning to the remainder of Ground 6, based upon Detective Franks’s statement 17 to Joyce Brown during the photo lineup, Respondents contend that Pinholster bars the 18 Court from considering the trial transcript because it was not included by Petitioner in the 19 record before the state supreme court.16 Pinholster does state “that review under 20 § 2254(d)(1) is limited to the record that was before the state court that adjudicated the 21 claim on the merits.” 563 U.S. at 181 (emphasis added); see also id. at 192 n.14 (“Both 22 parties agree that these billing records were before the California Supreme Court.”). The

23 16Petitioner suggests that the state supreme court applies “this procedural default” 24 unfairly and inconsistently. (ECF No. 68 at 13.) However, the state supreme court did not hold that the claim was barred by a procedural default. The state supreme court instead 25 held that Petitioner “failed to demonstrate that this claim has merit.” That would appear to constitute a merits holding, based on a failure of proof on appeal, not the application of a 26 state procedural bar. Moreover, procedural default has not been raised by Respondents as a defense to Ground 5. Cf. McDaniels, 813 F.3d at 775 n.3, 781 n.8 (the State had not 27 argued that the petitioner’s failure to ask the state appellate court to augment the record amounted to a procedural default, and the court of appeals accordingly proceeded to the 28 merits of the claim).

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1 Ninth Circuit has held, however, that federal habeas review under AEDPA is not limited

2 under Pinholster to the record actually before the appellate court that decided a claim on

3 the merits but instead extends to all material in the state court record in the lower court.

4 See McDaniels v. Kirkland, 813 F.3d 770, 780-81 (9th Cir. 2015) (en banc); Jamerson v.

5 Runnels, 713 F.3d 1218, 1226-27 (9th Cir. 2013).

6 The Court therefore refers to the trial transcript in adjudicating the remainder of the

7 claim. The Court further will proceed on the assumption that its review of the remainder

8 of the claim is de novo. Neither McDaniels nor Jamerson in particular compels such an

9 assumption. However, the only pertinent holding made by the state supreme court on this 10 portion of the claim was that Petitioner failed to demonstrate that the claim had merit 11 because Petitioner did not provide a copy of the trial transcript on the post-conviction 12 appeal. When this Court considers the trial transcript in its own review, it necessarily will 13 be considering a basis for decision other than that expressly relied upon by the state 14 supreme court, on this claim, when it rejected this portion of the claim on the merits.17 15 On a de novo review, this Court holds that Petitioner cannot demonstrate either

16 deficient performance or resulting prejudice from trial counsel’s failure to move to 17 suppress Joyce Brown’s identification testimony following the photographic lineup. The 18 trial transcript reflects that counsel had no viable basis to suppress the identification 19 testimony. 20 Petitioner maintains that admissibility of identification evidence is governed by a 21 totality of the circumstances analysis under Neil v. Biggers, 409 U.S. 188, 198 (1972). 22

23 17Petitioner suggests that the trial transcript was not necessary for the state supreme court to adjudicate the claim because his claims “were based on the factual 24 allegations in his state petition and explored at the evidentiary hearing.” (ECF No. 68 at 13.) The factual allegations of a pleading of course are not evidence, and the petitioner 25 has the burden of proof on state and federal post-conviction review. The trial transcripts of the testimony of Joyce Brown and Detective Franks in fact were necessary to review 26 the claim, and Petitioner’s state post-conviction appeal counsel should have made those existing transcripts part of the record on that appeal. Now on federal review, Ninth Circuit 27 law requires that this Court review the pertinent transcripts. It is those transcripts, not the allegations in Petitioner’s pleadings, that determine the outcome on the claim. 28

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1 However, the Biggers analysis applies only if the identification procedure used was

2 suggestive in the first instance. Biggers itself involved an inherently suggestive procedure,

3 a one-on-one showup. Biggers otherwise does not state a general constitutionally-

4 mandated test for admissibility of identification evidence that must be inexorably applied

5 any time that identification evidence is offered.18

6 In the present case, Joyce Brown was not presented with a one-on-one either in-

7 person or photo showup. She instead viewed a six-photo array with males with a similar

8 appearance. As the preceding discussion reflects, there was nothing inherently

9 suggestive about the six-pack photo lineup that singled out Gilbert Aguilar from the other 10 five males. (See supra at 36.) Petitioner maintains that Detective Franks’s statements 11 were improperly suggestive. However, all that the trial transcript reflects is that Franks 12 “re-explained to her that hair grows out, and unless you cut it every day you’re not going 13 to be bald every day.” (See supra at 35.) That statement does not inherently single out 14 any subject, and it is not suggestive of a single subject. 15 The Biggers totality of the circumstances test thus would not even be implicated

16 on a motion to suppress Joyce Brown’s identification testimony. 17 Moreover, even if the Biggers analysis were applied, such a motion to suppress 18 would not present a viable issue. Under that analysis, “reliability is the linchpin in 19 determining the admissibility of identification testimony.” See Manson v. Brathwaite, 432 20 U.S. 98, 114 (1977). Courts considering a claim that admission of the identification 21 testimony violates due process look to the following factors:

22 The factors . . . include the opportunity of the witness to view the criminal at the time of the crime, the witness’[s] degree of attention, the accuracy of his 23 prior description of the criminal, the level of certainty demonstrated at the

24 18See, e.g., Perry v. New Hampshire, 565 U.S. 228, 238-39 (2012) (“The Court [has] emphasized [in prior cases], first, that due process concerns arise only when law 25 enforcement officers use an identification procedure that is both suggestive and unnecessary . . . .”); Manson v. Brathwaite, 432 U.S. 98, 107, 109 (1977) (single photo); 26 Biggers, 409 U.S. at 198 (one-on-one showup); cf. Manta v. Chertoff, 518 F.3d 1134, 1144-45 (9th Cir. 2008) (referencing the Biggers factors in an proceeding 27 where the witness made the identification after being shown “only a single photograph . . . displayed as part of a passport with Manta’s name and other identifying 28 information”).

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confrontation, and the time between the crime and the confrontation. 1 Against these factors is to be weighed the corrupting effect of the suggestive identification itself. 2

3 Id. This same reliability standard governs the admissibility of both the initial identification

4 and any subsequent in-court identification. See, e.g., Biggers, 409 U.S. at 198; see also

5 Manson, 432 U.S. at 110 n.10 (under the totality of the circumstances approach followed

6 by the Supreme Court, “if the challenged identification is reliable, then testimony as to it

7 and any identification in its wake is admissible”).

8 First, the opportunity of Joyce Brown to observe Gilbert Aguilar—both prior to and

9 at the time of the offenses—weighs strongly in favor of reliability of the identification 10 evidence. 11 Notwithstanding Petitioner’s allegations on this claim, Joyce Brown was not a 12 witness who simply saw a bald man that she had never seen before running across her 13 yard for a few seconds. Rather, Joyce Brown was the next-door neighbor of Gloria 14 Olivares, David Aguilar’s girlfriend. She knew Gilbert’s brother David from his being 15 around for approximately a year. And she had seen Gilbert Aguilar at the Olivares

16 residence “maybe once, twice a day” for “maybe a few days, a week” prior to the incident. 17 (See supra at 34.) 18 When Brown first saw Gilbert Aguilar on the evening of August 7, 1996, she saw 19 him walking with David Aguilar, with whom she already was familiar from his being around 20 for a year. The Aguilar brothers were walking at a steady pace—not running—by the 21 porch where she was sitting, with David being about six feet away from her and Gilbert 22 ten to twelve feet away. The area was illuminated by a streetlight, and there was enough 23 light for her to see facial features. Nothing obstructed her view, and she could see the two

24 men clearly. (See supra at 34.) 25 When Brown later saw Gilbert Aguilar running across her yard after the shooting, 26 wearing the same black tank top as earlier, the area outside her front window again was 27 illuminated by the streetlight; nothing obstructed her view; and Gilbert Aguilar was only 28 about four feet from her window. (See supra at 34.)

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1 Joyce Brown thus had a substantial, prolonged, and clear opportunity to observe

2 Gilbert Aguilar, both prior to and at the time of the incidents in question.

3 Second, Brown’s degree of attention at the time also weighs strongly in favor of

4 the reliability of the identification evidence.

5 Joyce Brown’s attention most certainly was focused when she saw Gilbert Aguilar

6 on August 7, 1996. When she saw the Aguilar brothers walking by the first time, Gilbert

7 Aguilar was openly carrying a rifle. Brown not only noticed Aguilar with the rifle, she was

8 so frightened by seeing him with the rifle that she went inside and locked the door. (See

9 supra at 4.) Thereafter, when she later saw Aguilar again running across her front yard, 10 she was not merely casually looking out her window but instead was looking precisely 11 because of all the shooting and the police command that she had just heard. (See supra 12 at 13.) 13 Third, it would appear that Brown’s description of Aguilar was accurate, including 14 as to her description of his, at the time, inter alia, being bald. (See supra at 34-35.) 15 Fourth, the photographic identification took place only three weeks and a day after

16 the incident. (See supra at 35.) 17 Finally, Brown’s initial lack of identification during the lineup does tend to weigh the 18 other way. However, this initial lack of identification itself must be weighed against 19 Aguilar’s change of appearance during the intervening time. When Brown stopped looking 20 for a bald man in the group and focused instead on features rather than hair, she made 21 a positive identification. Her level of certainty then, and later at trial even after further 22 changes in Aguilar’s appearance, weighs in favor of reliability. (See supra at 34-35.) 23 Weighing all of the foregoing Biggers factors together as well as against any

24 argued suggestiveness in Detective Franks’s statement (see ECF No. 68 at 10-11), the 25 Aguilars did not have a viable basis to suppress Joyce Brown’s identification testimony. 26 David Aguilar thus can demonstrate neither deficient performance nor resulting 27 prejudice from trial counsel’s failure to move to suppress the identification evidence. 28 Ground 6 therefore does not provide a basis for federal habeas relief.

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1 C. Ground 7: Search of Gloria Olivares’s Residence

2 In Ground 7, Petitioner alleges that he was denied effective assistance when trial

3 counsel failed to move to suppress the results of the search of Gloria Olivares’s residence

4 on the basis that her consent to the search was not voluntary. (ECF No. 28 at 20-23.) The

5 state post-conviction proceedings focused on the standing issue.

6 The search of Gloria Olivares’s residence resulted in the recovery of, inter alia, the

7 two AK-47s used in the shooting spree. (See supra at 3, 14-17.)

8 When the police first encountered David Aguilar and Gloria Olivares after the

9 shooting on the evening of August 7, 1996, they still were wet from having been in the 10 pool in their street clothes. (See supra at 13 & n.7.) 11 According to their collective testimony during the guilt phase, Metro Officers Mark 12 Dwiggins and Stewart Emry conducted the initial questioning of Aguilar and Olivares, who 13 were questioned separately. Their stories were not consistent with one another, and 14 Aguilar further was “continually trying to come up with a new story.” Officer Dwiggins 15 testified that while Gloria Olivares was within sight of David Aguilar, “[s]he was trying to

16 keep up with his story, was obviously, you know, frightened and evading the questions.” 17 (ECF No. 14-9 at 23-28, 48-52, 56-57.) 18 While Olivares still was within sight of Aguilar, Olivares “wavered back and forth 19 several times” as to granting the police consent to search her residence. Officer Dwiggins 20 filled out consent cards twice only to tear them up after Olivares then refused to sign them. 21 Over the course of this time, Aguilar became more agitated and confrontational; and 22 officers were attempting to put Aguilar in what Dwiggins described as “a position of 23 disadvantage” to maintain their safety. Olivares “became very irate, saying that the police

24 were beating him up.” Officer Dwiggins therefore took Olivares over to the nearby 25 temporary command post, where she would not be able to see what was transpiring with 26 Aguilar. (Id. at 51-52.) 27 At two different points in his direct testimony, Officer Dwiggins testified as follows 28 with regard to Gloria Olivares’s consent to a search thereafter:

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Q. And while you [were] in the company of Gloria, were you able to 1 obtain a consent to search?

2 A. Once we got to the command post, I again was – continued talking to her, just making small talk at that point. And then again asked her 3 if she would sign a consent to search, again to rule her out as having any involvement in it; and she finally agreed to. 4 . . . . . 5 Q. Did Gloria – or did Gloria, the lady who was with David Aguilar, 6 appear to be frightened? 7 A. She became more cooperative when we went away from where David couldn’t see her. When we got back to the command post she 8 became more forthright with the story, and again with the consent to search she had no problem signing it once we got to the command 9 post, where she was out of the sight of David Aguilar. 10 (Id. at 52, 56-57.)19 11 Both a photocopy and the original of the signed consent form were received into 12 evidence in the guilt phase. (Id. at 52-55; ECF No. 14-10 at 120-21.) 13 Before the grand jury, Gloria Olivares testified that she signed the consent form 14 and gave the police consent to search her residence. (ECF No. 13-2 at 98-99.) 15 In regard to standing, the guilt phase evidence tended to establish that David

16 Aguilar had been present at Olivares’s residence. (See supra at 2-4, 33-34.) 17 However, the penalty phase evidence established that Gloria Olivares had 18 obtained two protective orders that legally prohibited David Aguilar from being there. Her 19 supporting allegations reflected a continuing fear of Aguilar. 20 According to the testimony of Gina Sumner, then a Metro patrol officer, she 21 responded to a domestic violence call at the Olivares residence on January 23, 1995. 22 When officers arrived, Olivares was laying on the couch and Aguilar was kneeling over 23 her. While Olivares was uncooperative, her daughter stated that Aguilar had pushed

24 Olivares to the ground and kicked her in the head. Olivares was transported for medical 25 attention, and Aguilar was arrested for domestic violence. (ECF No. 14-18 at 67-71.)

26 19Petitioner states at one point that Olivares was “escorted back to the police station.” (ECF No. 68 at 18.) That was not the testimony at trial. Officer Dwiggins instead 27 testified that he took Olivares to “the command post.” A temporary command post had been set up at the time in the vicinity as officers investigated the incident. (See, e.g., ECF 28 No. 14-8 at 47-48; see also ECF No. 14-9 at 120-21.)

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1 Thereafter, Gloria Olivares obtained a protective order on or about June 22, 1995.

2 Her supporting affidavit attested:

3 David Aguilar or David Chavez has two or more charges against him for domestic violence in North Las Vegas, but the latest incident was in 4 February of 1995. Were [sic] he flipped me over his shoulder, kicked me with his steel-toed boots and knocked me out. He was arrested under David 5 Chavez. I have asked him to leave on his own, but instead of leaving he— treating [sic] to punch my face in or do something to get me kicked out of 6 my apartment or put in jail. This happens every day. I’m scared something bad might happen if he does not leave. He is appearing in court on the 20th 7 of June for battery. . . . . I really need him out of my apartment. I am scared to death of him. 8

9 (Id. at 73-74.) 10 Olivares obtained a second protective order on or about May 2, 1996, only three 11 months before the August 7, 1996 offenses. Her supporting affidavit reflected continued 12 threats and physical abuse by Aguilar. (Id. at 72-73.) 13 When he testified during the penalty phase, David Aguilar initially admitted having 14 battered Olivares, but he then sought to excuse, minimize, and explain away his repeated 15 domestic abuse of Olivares. (See ECF No. 14-21 at 87-91.) Aguilar thereafter referred

16 multiple times to a restraining order. (Id. at 114, 116.) He testified that, on the evening of 17 August 7, 1996, “[t]hat’s what I thought I was being arrested for[,] for breaking the 18 restraining order.” (Id. at 117.) 19 Thereafter, in his pro se state post-conviction petition, David Aguilar specifically 20 alleged that he and Gilbert Aguilar lived at 3505 Strutz Avenue, which was a short 21 distance to the north off of Pecos, rather than Olivares’s residence at 840 Mantis Way, 22 No. 2. (ECF No. 15-12 at 18, 20.) His petition alleged that “David Aguilar made a phone 23 call to Gloria Olivares to see if she would meet him at the pool area, as David had a

24 restraining order against him, and they Gloria and David had been meeting there 25 everynight [sic] for the past week.” (Id. at 18.) 26 State post-conviction counsel made no change to David Aguilar’s factual 27 allegations in the counseled supplemental points and authorities. (ECF Nos. 16-14 to 28 ///

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1 16-16.) Indeed, in an affidavit or declaration submitted by Aguilar in proper person along

2 with the counseled filings, he stated:

3 I have specifically instructed my current attorney who is preparing my Supplemental Points and Authorities in Support of my Petition for Writ of 4 Habeas Corpus that under no circumstances shall he delete or amend any of the issues that I raised in my Amended Petition and Memorandum of 5 Points and Authorities filed previously in this matter. 6 (ECF No. 16-16 at 4.)

7 At the evidentiary hearing, David Aguilar’s lead trial counsel testified that he did

8 not file a motion to suppress the search of Olivares’s residence because Aguilar had no

9 standing to challenge the search given that he was not on the lease and was subject to 10 the restraining order legally barring him from being there. Counsel testified that such a 11 motion to suppress “would have been frivolous.” (ECF No. 16-19 at 46-47, 91-92.) 12 The state district court noted during the evidentiary hearing that the pleadings 13 stated “that the defendant did not live there, neither defendant lived there.” (ECF No. 16- 14 20 at 34.) The district court thereafter found, inter alia, that the Aguilars had no standing 15 to challenge the search of Olivares’s residence and that Olivares in any event voluntarily

16 consented, with the court relying upon her grand jury testimony and the State’s trial 17 evidence. (ECF No. 16-24 at 15-16.) 18 The Supreme Court of Nevada rejected the claims presented to that court on the 19 following grounds:

20 [A]ppellants claim that trial counsel were ineffective for failing to file a motion to suppress the search of David’s girlfriend’s apartment. Appellants fail to 21 demonstrate that trial counsel were deficient because they failed to demonstrate that they had standing to challenge the search. The apartment 22 belonged to David’s girlfriend and there was a restraining order preventing him from entering the premises. Thus, they did not demonstrate that they 23 had a protected privacy interest in the apartment. Rakas v. Illinois, 439 U.S. 128, 130–31 n. 1 (1978) (“The proponent of a motion to suppress has the 24 burden of establishing that his own Fourth Amendment rights were violated by the challenged search.”); Katz v. United States, 389 U.S. 347, 352 (1967) 25 (recognizing that the Fourth Amendment requires an inquiry into whether the person claiming the protection was entitled to assume privacy at the 26 place and under the circumstances concerned); see also State v. Taylor, 114 Nev. 1071, 1077, 968 P.2d 315, 320 (1998) (recognizing that one must 27 have an objective and subjective expectation of privacy in the place to be searched). . . . . Therefore, the district court did not err in denying these 28 claims.

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1 (ECF No. 16-36 at 4-5.)

2 The state supreme court’s rejection of this claim was neither contrary to nor an

3 objectively unreasonable application of clearly established federal law as determined by

4 the United States Supreme Court.

5 With regard to doubly deferential review of counsel’s performance under AEDPA,

6 there clearly was a reasonable argument that counsel satisfied Strickland’s deferential

7 performance standard when counsel declined to pursue a motion to suppress the results

8 of the search of Olivares’s residence due to lack of standing.

9 In Rakas v. Illinois, 439 U.S. 128 (1978), the Supreme Court distinguished between 10 persons legitimately on the premises searched and persons who were wrongfully present:

11 In Jones [v. United States, 362 U.S. 257 (1960)], petitioner was present at the time of the search of an apartment which was owned by a friend. The 12 friend had given Jones permission to use the apartment and a key to it, with which Jones had admitted himself on the day of the search. He had a suit 13 and shirt at the apartment and had slept there “maybe a night,” but his home was elsewhere. At the time of the search, Jones was the only occupant of 14 the apartment because the lessee was away for a period of several days. 362 U.S., at 259, 80 S.Ct., at 730. Under these circumstances, this Court 15 stated that while one wrongfully on the premises could not move to suppress evidence obtained as a result of searching them,[FN9] “anyone 16 legitimately on premises where a search occurs may challenge its legality.” Id., at 267, 80 S.Ct., at 734. 17 [FN9] The Court in Jones was quite careful to note that “wrongful” presence 18 at the scene of a search would not enable a defendant to object to the legality of the search. 362 U.S., at 267, 80 S.Ct., at 734. The Court stated: 19 “No just interest of the Government in the effective and rigorous enforcement of the will be hampered by recognizing that 20 anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be 21 used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises 22 searched.” Ibid. (emphasis added). Despite this clear statement in Jones, several lower courts inexplicably have held that a person present in a stolen 23 automobile at the time of a search may object to the lawfulness of the search of the automobile. See, e. g., Cotton v. United States, 371 F.2d 385 (CA9 24 1967); Simpson v. United States, 346 F.2d 291 (CA10 1965). 25

26 439 U.S. at 140-41 & n.9. 27 Given this clear distinction drawn by the United States Supreme Court in Rakas, 28 the state supreme court’s rejection of the claim in Ground 7 was not an objectively

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1 unreasonable application of Rakas and the performance prong of Strickland.It was not

2 only undisputed, it was affirmatively alleged in David Aguilar’s state petition, that he was

3 prohibited from being at the Olivares residence by a restraining order. Based upon the

4 record, the allegations, and the arguments presented to the state courts on post-

5 conviction review, a conclusion that David Aguilar had no standing to challenge the

6 search of the Olivares residence because he could not lawfully be there was not an

7 objectively unreasonable application of clearly established federal law.20 Moreover, the

8 mere fact that the Aguilar brothers were tried as, inter alia, coconspirators would not allow

9 David Aguilar to rely on any standing argument that Gilbert Aguilar perhaps might have 10 had. E.g., United States v. Padilla, 508 U.S. 77 (1993). 11 Petitioner cites no controlling apposite case law to the contrary, and he in particular 12 cites no apposite law that would have been on the books at the time of defense counsel’s 13 analysis of the case prior to the October 1997 trial. Counsel’s conduct must be evaluated 14 from counsel’s perspective at the time, including the case law existing as of that time. 15 See, e.g., Strickland, 466 U.S. at 689; Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).

16 None of the cases cited by Petitioner involved a situation where it was undisputed that 17 the defendant was barred by a court order from being on the premises searched.21 18 Petitioner in particular likens Olivares’s acquiescence to Aguilar’s presence at her 19 residence to a hotelier acquiescing to a hotel guest remaining past checkout time, as 20 discussed in United States v. Lanier, 636 F.3d 228, 232 (6th Cir. 2011). (ECF No. 68 at

21 20The state court record further strongly supported an inference that any presence by David Aguilar at Olivares’s residence was secured not by permission given freely but 22 instead by compelled permission or acquiescence obtained via continuing intimidation, violence, and fear. Presence secured in such a manner arguably would have constituted 23 presence secured through unlawful conduct even without regard to an extant restraining order. 24 21Petitioner cites to a number of federal appellate decisions involving, e.g., 25 overnight guests and hotel guests that were not published until years after the October 1997 trial. Even if these particular cases were apposite, they were not available at the 26 time of counsel’s analysis of Aguilar’s case prior to October 1997. Nor were federal appellate decisions, of any date, binding on the state supreme court at the time of its May 27 9, 2012 decision on the state post-conviction appeal with respect to the underlying standing issue. In all events, the cases are inapposite because they do not involve a 28 defendant subject to a restraining order.

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1 20-21.) Regardless, neither Lanier nor the other lower court authorities cited in Lanier

2 constituted clearly established federal law as determined by the United States Supreme

3 Court at the time of the state supreme court’s May 9, 2012 decision on Aguilar’s state

4 post-conviction appeal. The state court accordingly was not obligated to follow such

5 decisions, whether directly or by, arguably strained, extension.

6 Petitioner urges in this same vein that “[t]he Nevada Supreme Court did not cite to

7 any authority establishing that an order of protection meant, as a matter of law, that an

8 individual can have no standing under the Fourth Amendment.” (ECF No. 21.) Petitioner

9 misapprehends his burden under AEDPA. It is the petitioner’s burden to demonstrate a 10 lack of congruence with United States Supreme Court precedent, and a state supreme 11 court has no burden to affirmatively demonstrate congruence with the Court’s precedent. 12 The state court need not cite Supreme Court authority directly on point and need not even 13 be aware of the Court’s precedents, so long as neither the reasoning nor the result of its 14 decision contradicts them. Esparza, 540 U.S. at 15-16. 15 No Supreme Court case has addressed the specific question of whether a

16 defendant barred from being present in a residence by a restraining order who 17 nonetheless disregards the order has standing to challenge a search of the residence, 18 especially where the defendant had no other independent lawful possessory interest in 19 the property such as a preexisting owner or lessee. Critically, there further was no such 20 specific case on point in either 1997 or 2012. The state supreme court’s holding on the 21 point therefore cannot be contrary to a holding of the Supreme Court. E.g., Woods v. 22 Donald, 135 S. Ct. 1372, 1377 (2015). 23 To demonstrate that the state supreme court’s holding on the underlying standing

24 issue was an objectively unreasonable application of Supreme Court precedent, 25 Petitioner must “show that the state court’s ruling on the claim being presented in federal 26 court was so lacking in justification that there was an error well understood and 27 comprehended in existing law beyond any possibility for fairminded disagreement.” 28 Richter, 562 U.S. at 103. Petitioner cannot make that demonstration here, as the state

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1 supreme court’s application of Rakas to the facts presented constitutes an entirely

2 plausible application of the general principle in Rakas and prior case law “that ‘wrongful’

3 presence at the scene of a search would not enable a defendant to object to the legality

4 of the search.” 439 U.S. at 141 n.9.

5 The state supreme court’s rejection of the corresponding ineffective-assistance

6 claim accordingly was neither contrary to nor an unreasonable application of clearly

7 established federal law.

8 Ground 7 therefore does not provide a basis for federal habeas relief.22

9 D. Ground 8: 7-Eleven Surveillance Video 10 In Ground 8, Petitioner alleges that he was denied effective assistance when trial 11 counsel failed to challenge the introduction of the 7-Eleven surveillance video. He 12 maintains that counsel should have questioned the reliability of the video’s time stamp 13 and challenged the authenticity of the techniques used to edit the trial exhibit from a much 14 longer surveillance videotape, including by use of an expert witness. Petitioner alleges

15 22Petitioner’s factual allegations in his federal amended petition that he and his 16 brother lived at Olivares’s residence are directly contrary to his allegation on state post- conviction review that they both instead lived on Strutz Avenue at the time of the search. 17 An argument thus could be made that Ground 7 is unexhausted as alleged in federal court because Petitioner thereby fundamentally altered the claim presented to the state courts 18 and sought to put it in a stronger evidentiary posture. See Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014) (en banc) (different factual allegations render a claim 19 unexhausted if the allegations fundamentally alter the legal claim considered by the state courts or place the case in a significantly different and stronger evidentiary posture than 20 when the state courts considered the claim). 21 Given the disposition in the text, this Court, like the state supreme court, has no occasion to reach the prejudice prong of Strickland. 22 Petitioner further takes issue with Metro using a SWAT team to forcibly enter 23 Olivares’s residence after she gave her consent to the search while she was at the temporary command post. (ECF No. 68 at 18-19.) However, at that time, there was at 24 least one suspect still at large potentially armed with a high-powered weapon that he had very recently used; and Officer Chad Brown previously had observed the shooter that he 25 saw go into that building. (ECF No. 14-10 at 121-22; see supra at 12.) There is no issue of substance pertinent to these proceedings with the manner in which Metro entered the 26 unit after Olivares gave her consent to the search. 27 In all events, the state supreme court’s holding on the underlying standing issue was not an objectively unreasonable application of clearly established federal law. That 28 holding is fatal to Aguilar’s ineffective-assistance claim in Ground 7.

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1 that the failure to challenge the introduction of the tape “allowed the prejudicial videotape

2 to be played to the jury without successful challenge lending evidentiary support to the

3 State’s murder time-line.” (ECF No. 28 at 23-24.)

4 As summarized previously, the trial evidence reflected that the Aguilar brothers

5 were in the nearby 7-Eleven when they were asked at about 10:40 p.m. to either stop

6 drinking in the store or leave. They left the store and then were involved in an altercation

7 with the occupants of a vehicle in the parking lot. Afterwards, they left on foot in the

8 general direction of the Atrium Gardens subdivision. Witnesses reported gunfire in that

9 subdivision starting at or after 11:00 p.m. (See supra at 5-10.) 10 Store clerks Ethan Weeks and Fawn Weeks testified that Ethan Weekscame to 11 work at approximately 10:40 p.m. for his 10:45 p.m. to 7:00 a.m. graveyard shift. He was 12 relieving his sister Fawn and two other store clerks who then were finishing up a 3:00 13 p.m. to 11:00 p.m. shift. Ethan Weeks was the one who, shortly after he arrived, told the 14 Aguilar brothers that they would have to either stop drinking inside or leave the store. 15 Weeks also observed the altercation outside. He called 911 after the brothers left the

16 parking lot on foot to report that the vehicle hit Gilbert Aguilar in the parking lot. (ECF No. 17 14-6 at 42-45, 47-48, 57-58, 60-66; ECF No. 14-8 at 21-39.)23 18 Ethan Weeks testified that the interval between the time that the brothers walked 19 out the front door of the store and the time that the car hit Gilbert Aguilar in the parking 20 lot “wasn’t even five minutes . . . it all happened pretty quick.” (ECF No. 14-8 at 35-36.) 21 Significantly for the current claim, Ethan Weeks testified that he first heard gunfire 22 from “the southeast—more east than south” of the store, the direction of the Atrium 23 Gardens subdivision, about twenty minutes after the Aguilar brothers had left the store.

24 23Ethan Weeks testified in two installments. He was not asked during his initial testimony about the altercation in the parking lot per a pretrial ruling in limine. However, 25 the trial court thereafter held that the State could elicit limited testimony regarding the parking lot altercation after Gilbert Aguilar’s defense opened the door to evidence of the 26 altercation pursuant to a tactical decision to do so. Ethan Weeks then was recalled for limited testimony regarding the parking lot altercation. (ECF No. 14-8 at 3-21.) 27 Ethan Weeks referenced the Aguilar brothers by their physical descriptions in his 28 testimony. Their specific identity was established by other evidence in the case.

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1 At that time, there were customers and “off-duty employees” in the store, indicating that

2 Weeks already had relieved the prior 3:00 to 11:00 p.m. shift when the shooting started.

3 Fawn Weeks similarly testified that she first heard the gunfire about fifteen to twenty

4 minutes after the brothers had left the store, after the end of her shift at 11:00 p.m. when

5 she was getting ready to go home. (ECF No. 14-6 at 46-47, 63-64; ECF No. 14-8 at 35-

6 36.)

7 Surveillance video from the 7-Eleven was played during Ethan Weeks’s testimony.

8 The time stamp on the video reflected that the Aguilar brothers walked out the front door

9 of the store at 10:43 p.m. (ECF No. 14-6 at 56-57.) 10 During his testimony in the penalty phase, David Aguilar maintained, inter alia,that 11 “I had just came [sic] from 7-Eleven when somebody started shooting at me.” He testified 12 that after the shooting started he gathered up Gloria Olivares and her daughter from her 13 residence and that they then got into the swimming pool together for their safety. (ECF 14 No. 14-21 at 107-11.) 15 In his state post-conviction petition, David Aguilar alleged that he had left the 7-

16 Eleven, gone with Gilbert Aguilar first to “their residence at 3505 Strutz,” and then was in 17 the Atrium Gardens subdivision on the way to see Gloria Olivares when the gunfire 18 started. His claims in the petition regarding the 7-Eleven surveillance video focused on 19 an incident during trial that he alleged constituted a break in the chain of custody and on 20 alleged withholding of exculpatory evidence. (ECF No. 15-12 at 19-21, 28, 41-43, 115- 21 17.)24 22 No allegations or claims in the pro se petition were changed by appointed counsel. 23 (See supra at 45-46; see also ECF No. 16-14 at 13.)

24 ///

25 24Petitioner alleged in particular with regard to exculpatory evidence that the prosecutor “instructed the Engineer to stop the tape for viewing by the Jury at frame 26 showing 10:43 P.M. deleting the entire Hit and Run issue and confussing [sic] the Jury and withholding Exculpatory Evidence pursuant to Brady v. Maryland . . . .” (ECF No. 15- 27 12 at 116.) What actually happened at trial, however, was not that the State withheld any such information from the defense but instead was that the trial court as of that time had 28 excluded the parking lot altercation evidence in limine. (See supra note 23.)

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1 At the counseled state post-conviction evidentiary hearing, a criminal defense

2 investigator retained for David Aguilar testified. The investigator previously had been an

3 investigator for the district attorney’s office. He testified as to his understanding of what

4 the 7-Eleven store owner said to him in 2009 about, inter alia, the store’s surveillance

5 video procedures back in 1996. The state district court overruled hearsay objections to

6 the testimony, but the court stated that if specifics regarding the particular tape in question

7 became an issue “we may have to have the gentleman here.” (ECF No. 16-19 at 18-19.)

8 The investigator testified that he understood, inter alia, that: (1) the store owner “was

9 somewhat familiar with [the surveillance system] back in 1996, although the system has 10 since been updated;” (2) back in 1996, VHS tapes were changed out every 24 hours and 11 kept for a full week before being reintroduced in the recorder if there were no intervening 12 incidents; (3) however, “[i]t could be 12 hours, but normally it’s a 24-hour tape that’s 13 placed in the recorder;” (4) in a homicide investigation, the regular practice would have 14 been for a detective to recover an entire, unedited tape; and (5) it nonetheless was the 15 investigator’s “understanding,” without explanation as to the source of that understanding

16 or belief, that “about 45 minutes of the tape was turned over.” (Id. at 13-19.) 17 The investigator acknowledged on cross-examination, however, inter alia,that:(1) 18 the owner was not certain “as far as the exact multi-type plex system that was involved” 19 in 1996; (2) the investigator had not viewed the actual videotape that was in the evidence 20 vault at the courthouse to determine what type of tape it was; (3) he was not aware of 21 what foundation had been laid for admission of the tape at trial; (4) he did not know 22 whether the investigating detectives in this case had viewed the tape before it was 23 impounded; (5) given that he had not actually seen the tape, he was not actually

24 personally aware if it was 24 hours or 45 minutes long; and (6) it nonetheless was his 25 “understanding” that the tape was 45 minutes long, without attributing a personal basis 26 for this knowledge as to a tape that he had not viewed. (Id. at 22-27.) 27 When post-conviction counsel examined the Aguilars’ defense counsel regarding 28 the 7-Eleven surveillance video, counsel did not inquire regarding a claim of an alleged

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1 break in the chain of custody. The inquiry focused instead on a different underlying

2 contention that an alleged unedited and unaltered videotape with an accurate time stamp

3 would have supported an alibi defense that the Aguilar brothers were at the 7-Eleven

4 store at the time of the shooting spree. (See id. at 38, 116, 131-36; ECF No. 16-20 at 64-

5 66, 74-75, 91-95, 110-11.)

6 Lead counsel for David Aguilar explained why he did not pursue any such alibi

7 defense based upon the Aguilars instead being at the 7-Eleven during the shooting:

8 Q. We had talked just a little bit about the defendant’s theory of defense in this case. What was your theory of defense in this particular case? 9 A. That David did not shoot Mark Emerson. That he had abandoned 10 whatever he was involved with and went back to the apartment. And after he got back to the apartment, that was when Mark Emerson 11 was shot and killed.

12 Q. Defense counsel asked you about developing an alibi based upon the [7-Eleven surveillance] video, based upon 911 tapes. You 13 indicated that you did that.

14 Do you recall, can you elaborate on—to the extent you recall, what did you do? 15 A. We looked at the videotape. We looked at the witnesses. It would 16 have been very difficult for me to present that testimony. Also in lieu—in view of the fact that David told me that he and Gilbert were 17 out there shooting across the field at somebody.

18 Q. So your own personal ethics play into the defense that you’re able to present during the course of a trial? 19 A. Right. I can’t present evidence if I know it’s not true. 20 Q. So when your client is telling you at one point, “Yeah, I was out there 21 shooting a firearm,” that’s inconsistent with an alibi? 22 A. Yes, it is. 23 Q. And that poses an ethical dilemma for you?

24 A. Yes, it does. 25 Q. So it sounds like you really tried to run the best of both worlds, still effectively defending your client based upon his theory of it wasn’t 26 him, but still being true to your own ethical responsibilities in light of what he told you? 27 A. Yes. 28

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1 (ECF No. 16-19 at 81-83.)

2 When Aguilar’s post-conviction counsel returned again to the point later, lead trial

3 counsel made the point more bluntly:

4 Q. Mr. Hillman, wouldn’t you agree that, considering the time duration when he left the 7/Eleven and the time duration of when the shooting 5 took place, that could constitute reasonable doubt?

6 [Objection and ruling omitted.]

7 THE WITNESS: Since David told me that he had been shooting across that field, that kind of torpedoed that defense. 8

9 (Id. at 116.) 10 The record from the evidentiary hearing further tended to establish, inter alia, that: 11 (1) consistent with Ethan Weeks’ testimony at trial, the parking lot altercation lasted five 12 minutes or less (ECF No. 16-20 at 80.); (2) the 911 calls reporting the shooting started at 13 11:04 or 11:05 p.m. (id. at 94); (3) defense counsel for both brothers had access to, and 14 reviewed, the 911 call recordings and dispatch log, which also had a bearing on the 15 assessment of the timeline (ECF No. 16-19 at 43-45; ECF No. 16-20 at 89-90, 94-95);

16 and (4) nothing about the 7-Eleven surveillance videotape or the 911 recordings 17 suggested to David Aguilar’s counsel that they had been altered (ECF No. 16-19 at 86- 18 87, 114-15). 19 Petitioner presented no expert testimony at the evidentiary hearing in any way 20 tending to establish that either: (1) the actual videotape in the trial evidence in fact had 21 been altered or edited for the relevant time period; or (2) the time stamp applied by the 22 surveillance video system in fact was inaccurate to any degree significant to the timeline 23 presented at trial. Petitioner further has tendered no such evidence on federal habeas

24 review. 25 The Supreme Court of Nevada rejected the claims presented to that court on the 26 state post-conviction appeal on the following grounds:

27 [A]ppellants claim that trial counsel were ineffective for failing to prevent the video from 7-11 from being admitted at trial. Specifically, they claim that trial 28 counsel failed to question the authenticity of the tape’s time stamp or editing

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techniques. Further, trial counsel never filed a motion to suppress the 1 videotape. Appellants fail to demonstrate that trial counsel were deficient. Appellants failed to demonstrate that there was reason to question the 2 authenticity of the time stamp or editing techniques. Further, appellants fail to demonstrate that a motion to suppress would have been 3 successful. . . . . Therefore, the district court did not err in denying these claims. 4

5 (ECF No. 16-36 at 7.)

6 The state supreme court’s rejection of this claim was neither contrary to nor an

7 unreasonable application of the performance prong of Strickland. Petitioner failed to

8 overcome the strong presumption that defense counsel’s attention to certain issues to the

9 exclusion of others reflected trial tactics rather than sheer neglect. Gentry, 540 U.S. at 8. 10 David Aguilar’s defense counsel clearly had no reason to question either the substantial 11 accuracy of the surveillance video time stamp or the authenticity of any edited portion of 12 the video. Counsel had no reason to question the time stamp and the tape because his 13 client already had told him that he and his brother were shooting their weapons at the 14 time. Over and above ethical issues, that acknowledgment by Aguilar told counsel what 15 he needed to know about where expert examination into the accuracy of the time stamp

16 and the authenticity of the tape would lead, i.e., nowhere that would significantly disrupt 17 the timeline reflected by the evidence at trial. That trial evidence in particular included 18 testimony by two 7-Eleven store clerks that the Aguilar brothers left the store fifteen to 19 twenty minutes before the shooting started. (See supra at 51-52.)25 20 Petitioner nonetheless urges that “there was good reason for counsel to question 21 these things” because “the unedited version of the video would have been 24 hours long, 22

23 25Nothing reflected how far the post-conviction post hoc theorizing had strayed from the trial evidence perhaps more so than when state post-conviction counsel asked 24 David Aguilar’s lead counsel whether he ever considered calling the 7-Eleven clerks as alibi witnesses. (See ECF No. 16-19 at 40-41.) The store clerks did in fact testify at trial. 25 The store clerks, Ethan Weeks and Fawn Weeks, clearly did not testify that they heard the shooting while the Aguilar brothers were inside the store. Nor did they testify that the 26 shooting started while the brothers were in the parking lot. They instead testified that the shooting started fifteen to twenty minutes after the Aguilar brothers had left the 7-Eleven. 27 The testimony of the 7-Eleven clerks thus refuted, rather than supported, any alibi defense based upon the timeline at the 7-Eleven store. 28

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1 while the final version shown to the jury was only 45 minutes long.” (ECF No. 68 at 24.)

2 In fact, Petitioner never actually established at the evidentiary hearing, by a percipient

3 witness testifying from an adequate and reliable recollection, that the actual trial exhibit

4 in the evidence vault had been edited by the State. (See supra at 55-56.)26 It is difficult to

5 imagine how 23 hours of surveillance video of, e.g., people doing their shopping, was vital

6 to the defense of the Aguilar brothers in this capital murder case. In all events, defense

7 counsel did not render deficient performance by declining to pursue such a line of inquiry

8 (a) after David Aguilar told counsel that he and his brother were shooting their weapons,

9 and (b) further in the face of testimony by two store clerks that did not place the brothers 10 on the 7-Eleven premises at a time that would rule out their presence at the shooting 11 spree. 12 The state supreme court’s decision rejecting this claim accordingly was not an 13 unreasonable application of the performance prong of Strickland.27 14 Ground 8 does not provide a basis for federal habeas relief. 15 E. Ground 9: Alternative Suspect

16 In Ground 9, Petitioner alleges that he was denied effective assistance when trial 17 counsel failed to investigate and pursue an alternative suspect theory. Petitioner alleges 18 in particular that: (1) he told his counsel that he and his brother were not the ones that 19 fatally shot Mark Emerson but that they instead “were being set up;” (2) the testimony of

20 26The recollection of trial counsel, thirteen years after the fact, was hardly infallible 21 in establishing what the actual video in the evidence vault contained. (See, e.g., ECF No. 16-19 at 37-38.) State post-conviction counsel for Gilbert Aguilar ultimately copied a 22 portion of the video in the evidence vault and played that portion during the examination of Gilbert Aguilar’s lead counsel. Nowhere during that process did state post-conviction 23 counsel present any competent evidence in the evidentiary hearing record as to what was, or was not, included in the evidence vault videotape from which the post-conviction 24 copy was made, which was represented to be the relevant portions of the original. (See, e.g., ECF No. 16-20 at 68-69.) What the original did, or did not, in fact contain thus 25 remains a matter of unsubstantiated speculation.

26 27The Court accordingly has no occasion to reach the prejudice prong. The Court notes, however, that Petitioner never has even tendered to any court any expert evidence 27 that would tend to establish that the time stamp on the surveillance video was inaccurate to any significant degree and/or that there was any substantial authenticity issue as to 28 any redacted copy of the original video.

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1 “several” police officers established that the description of the shooter believed to have

2 killed Emerson was a white man with a shaved head; (3) “Petitioner clearly did not meet

3 this description;” (4) the 7-Eleven surveillance video shows an individual standing over

4 David Aguilar and “possibly” stepping on his foot that Petitioner first describes as a white

5 man “with very short hair” and thereafter as “the bald guy;” and (5) the male allegedly left

6 the store right before Petitioner “providing this individual plenty of time to do the shooting.”

7 (ECF No. 28 at 24-25.)

8 Multiple points warrant mention on this claim at the very outset.

9 First, the State never maintained that David Aguilar was the bald shooter. The 10 State asserted that Gilbert Aguilar, who was bald at the time, was the bald shooter. The 11 brothers were tried as coconspirators and aiders and abettors as well as principals, and 12 under the State’s theory of the case David Aguilar was culpable equally with Gilbert 13 Aguilar for the murder of Mark Emerson during their joint shooting spree. (See supra at 14 18.) It thus is irrelevant that “Petitioner clearly did not meet this description.” 15 Second, the other man in the 7-Eleven surveillance video was not bald. Post-

16 conviction counsel—who of course was not a witness—referred to the man as bald 17 multiple times during the playing of a copy of the surveillance video at the state court 18 evidentiary hearing. These references led to the following exchange:

19 THE COURT: Excuse me counsel. You’ve referred to that gentlemen [sic] twice now as bald. I don’t see that he’s bald. 20 MR. WHIPPLE: Your Honor, I think it’s better to say he’s very close-shaven 21 rather than bald, and I do apologize. 22 (ECF No. 16-20 at 84; see also id. at 102-03.) Repeating a mischaracterization of the 23 record thereafter does not make the mischaracterization correct.

24 Third, only a single police officer witness observed the bald shooter; and it was 25 that single officer who gave the description, referenced by a later responding officer, of 26 the shooter as a bald—not “close-shaven”—white male.28 That percipient witness officer,

27 28Petitioner cites to page 81 of the transcript for Officer Brown’s description, but 28 the description instead is found at page 87 of the transcript. (See ECF No. 14-8 at 88.)

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1 Chad Brown, thereafter identified Gilbert Aguilar in the 7-Eleven surveillance video as the

2 shooter, not a close-shaven white male from the video. Officer Brown further positively

3 identified Gilbert Aguilar at trial as the bald shooter that he saw. (See supra at 12, 18.) As

4 discussed previously regarding another ground, there in truth simply was no bald white

5 male “mystery man” wherein a percipient witness initially described the bald male as white

6 and did not thereafter identify Gilbert Aguilar as the bald male that they saw. (See supra

7 at 32-33 n.14.) All of the witnesses who observed a bald male during the shooting spree

8 identified that bald male as Gilbert Aguilar.

9 Fourth, in the reply, Petitioner urges that “[t]he fact that the witness who gave the 10 description of the shooter identified Gilbert as the shooter in court has no bearing on this 11 analysis” [because, inter alia,] “the identification occurred under highly suggestive 12 circumstances, rendering it completely unreliable.” (ECF No. 68 at 28.) (emphasis added). 13 Petitioner apparently has the witnesses mixed up. Petitioner challenged the 14 identification testimony of Joyce Brown in Ground 6 as having been secured through an 15 allegedly suggestive photographic lineup. Joyce Brown never identified anyone as a

16 shooter. She instead saw Gilbert Aguilar openly carrying a rifle prior to the shooting spree 17 and thereafter saw him running back across her yard afterwards. (See supra at 4, 12, 34.) 18 Nor did she initially identify the individual that she saw as a bald white male rather than a 19 bald Hispanic male. (See ECF No. 15-13 at 19.) 20 Rather, as noted previously, it was Metro Officer Chad Brown who initially 21 described the shooter that he saw as a heavyset bald white male wearing a black tank 22 top. (See supra at 12.) There is no exhausted claim before the Court challenging the 23 identification testimony of Chad Brown due to an allegedly suggestive identification

24 procedure. There further were no factual allegations presented in the Second Amended 25 Petition, in Ground 9 or otherwise, alleging that Officer Brown’s identification testimony 26 had no bearing on the case because of a suggestive identification procedure. A petitioner 27 may not raise claims or material factual allegations for the first time in the reply that were 28 ///

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1 not alleged in the petition. E.g., Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.

2 1994).

3 Nor was Officer Chad Brown the only witness to identify Gilbert Aguilar during the

4 shooting spree. The victim’s wife, Marla Emerson, also positively identified Gilbert Aguilar

5 as the bald male standing with a gun only feet from her mortally wounded husband. (See

6 supra at 8.)

7 Thus, the identification testimony by the witness who initially described the shooter

8 as a bald white male has not been challenged herein as being based on a suggestive

9 identification procedure; the identification testimony that was challenged on that basis 10 was by a witness who instead identified Gilbert Aguilar at other times during the incident 11 and who did not initially describe him as a white male; and more than one witness 12 identified Gilbert Aguilar as the bald male during the shooting spree. Again, there simply 13 was no bald male observed during the shooting spree who was not ultimately identified, 14 by multiple witnesses, as the then-bald Gilbert Aguilar. 15 Ground 9 as alleged and argued on federal habeas review thus is based on

16 multiple fundamental mischaracterizations of the record. The claim is belied by the actual 17 state court record on multiple points that go to the heart of the claim, and the claim is 18 subject to rejection on that basis alone. 19 In David Aguilar’s state post-conviction petition, it does not appear that Petitioner 20 alleged a claim that trial counsel failed to investigate and pursue an alternative suspect 21 theory based upon an allegation that a bald white male in the 7-Eleven surveillance video 22 instead was the shooter. (See ECF No. 15-12 at 2-137.) Nor was any such claim asserted 23 in the counseled supplemental points and authorities. (See ECF No. 16-14 at 11-14.) Nor

24 was any such claim pursued thereafter during the testimony of David Aguilar’s defense 25 counsel when they were questioned on the first day of the state court evidentiary hearing. 26 David Aguilar’s post-conviction counsel did not ask his trial counsel any questions as to 27 why they did not pursue an alternative suspect theory based upon a male with a closely- 28 shaven head in the 7-Eleven surveillance video.

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1 On examination by the State, lead trial counsel did discuss David Aguilar’s overall

2 theory of defense as to the brothers being “set up”:

3 Q. When you began your process of preparing to defend the defendant, Mr. Aguilar, did you ever sit down with him and discern his theory of 4 defense or his story as to what occurred in the case? 5 A. Yes.

6 Q. What did he tell you? 7 A. David told me that he had been in prison in the federal system. That he’d been beaten so badly that they cut his sentence short and let 8 him out. That the federal government had a vendetta against him. And that they had been followed for sometime [sic] by a secret 9 government organization that David thought was trying to kill him.

10 He told me that the incident at the 7/Eleven when Gilbert was struck by an automobile that the person driving the automobile was a 11 member of that covert federal team, and that he and Gilbert went back to the apartment, obtained their weapons and they were 12 shooting across the field at the members of that team that they thought were trying to kill him. 13 . . . . . 14 Q. How well do you think that sort of theory of defense would have flown 15 with a jury in Clark County back in 1997?

16 A. I don’t think they would have considered it seriously at all.

17 Q. Did you make any attempts to verify any of the information that he gave you? 18 A. No we didn’t. 19 20 (ECF No. 16-19 at 81-83.) As discussed previously herein, counsel was concerned that 21 pursuing such a paranoid government “set up” or conspiracy defense would impair the 22 credibility of the defense and further cast Aguilar in an unsympathetic light even before 23 the case possibly reached the penalty phase in the capital murder case. (See also ECF

24 No. 16-20 at 61-62.) 25 An alternative suspect theory based upon a 7-Eleven white male was pursued for 26 the first time when Gilbert Aguilar’s trial counsel were questioned five months later during 27 the continued evidentiary hearing. (See id. at 72-74, 78-79, 83-84, 101-03, 112-16.) 28 ///

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1 The record from the evidentiary hearing reflected on this point, inter alia, that: (1)

2 the ethnicity of the male in the 7-Eleven video was, at best, uncertain, and no actual

3 testimony was presented that the male was white (id. at 78);29 (2) as discussed previously,

4 the male had close-shaven hair rather than being bald (id. at 84); (3) it was, at best,

5 debatable whether the male did or did not have a ponytail as would have been consistent

6 with Joyce Brown’s description (id. at 102-03); (4) Gilbert Aguilar had been either unable

7 or unwilling to provide trial counsel with any information that might have been used to

8 identify the individual or any other alternative suspect, nor did they ever gain any such

9 information (id. at 73-74, 79, 83-84, 112-16); and (5) co-counsel for Gilbert Aguilar 10 testified that “I don’t believe we found anybody that matched the description that would 11 stand up as a reliable alternate perpetrator” (id. at 115). 12 David Aguilar’s counsel, again, never was asked any questions by Petitioner’s 13 counsel about a male at the 7-Eleven possibly being an alternative suspect.

14 The Supreme Court of Nevada rejected the claim presented to that court on the 15 following grounds:

16 [A]ppellants claim that trial counsel were ineffective for failing to investigate another defense.[FN5] Specifically, appellants claim trial counsel should 17 have attempted to identify a man who was at the 7–11 and may have met the description of the shooter. Appellants fail to demonstrate that trial 18 counsel were deficient. Trial counsel testified that they did not pursue this theory because it was impossible to identify who this man was. Further, trial 19 counsel testified at the evidentiary hearing that the witness who gave the description of the shooter identified appellant Gilbert as the shooter in court. 20 Therefore, the district court did not err in denying these claims. 21 [FN5] To the extent that appellants claim that trial counsel were ineffective for failing to investigate whether the weapon had belonged to a police 22 officer, this claim was discussed and rejected above. 23 (ECF No. 16-36 at 3-4.)

24 The state supreme court’s rejection of this claim was neither contrary to nor an 25 objectively unreasonable application of Strickland’s performance prong. Petitioner on this

26 29David Aguilar specifically alleged in his state petition that the individuals that 27 approached the brothers while inside the 7-Eleven instead were Hispanic, not white. (See ECF No. 15-12 at 41.) Store clerk Ethan Weeks testified that the male involved in the 28 parking lot altercation outside the store was black. (ECF No. 14-8 at 22-23.)

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1 claim as well failed to overcome the strong presumption that defense counsel’s attention

2 to certain issues to the exclusion of others reflected trial tactics rather than sheer neglect.

3 Gentry, 540 U.S. at 8. This claim is not supported by the actual evidence in the state court

4 record. Petitioner posits that counsel failed to investigate an unidentified male appearing

5 in the 7-Eleven surveillance video who allegedly matched the description of “several”

6 police officers of one of the shooters as a bald white male. Yet the state court record does

7 not reflect that the 7-Eleven male was bald or even that he was necessarily white. Nor

8 does the state court record affirmatively reflect that the 7-Eleven male was dressed like

9 the bald shooter. (See supra at 62.) Moreover, only one police officer actually observed 10 one of the shooters and gave an initial description, to other officers, of that shooter as a 11 bald white male. That witness ultimately identified the then-bald Gilbert Aguilar as the 12 shooter that he saw, and multiple other witnesses also identified Gilbert Aguilar as being 13 armed with a rifle immediately prior to and/or during the shooting spree. In short, no 14 competent evidence, as opposed to uncorroborated argument, in the state court record 15 actually supports a claim that there was a male at the 7-Eleven who matched the initial

16 description given by the officer. Nor does the state court record support any claim that 17 there was an unaccounted-for bald shooter who was not identified as Gilbert Aguilar by 18 the witness who supplied the initial description. Moreover, David Aguilar’s trial counsel, 19 who was not asked specifically about the 7-Eleven male at the evidentiary hearing, 20 otherwise had sound strategic reasons for not pursuing Aguilar’s paranoid and credulity- 21 straining theory that the brothers were “set up” as part of a government conspiracy. (See 22 supra at 61-62.) On the record presented, the state supreme court clearly did not 23 unreasonably apply Strickland’s performance prong.

24 Ground 9 does not provide a basis for federal habeas relief.30

25 30Petitioner maintains in the reply that “trial counsel omitted another piece of 26 valuable evidence which tends to suggest Aguilar’s innocence: Officer Debecker’s connection to the firearm used in the incident.” (ECF No. 68 at 28.) As discussed as to 27 Ground 5, the state court record reflects that counsel investigated the fact that the officer’s stolen AK-47 had been used in the shooting spree; and that investigation produced no 28

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1 IV. CONSIDERATION OF A CERTIFICATE OF APPEALABILITY

2 Under Rule 11 of the Rules Governing Section 2254 Cases, the district court must

3 issue or deny a certificate of appealability (COA) when it enters a final order adverse to

4 the applicant.

5 As to the claims rejected by the district court on the merits, under 28 U.S.C. §

6 2253(c), a petitioner must make a “substantial showing of the denial of a constitutional

7 right” in order to obtain a certificate of appealability. Slack v. McDaniel, 529 U.S. 473,

8 483-84 (2000); Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999). To satisfy this

9 standard, the petitioner “must demonstrate that reasonable jurists would find the district 10 court’s assessment of the constitutional claim debatable or wrong.” Slack, 529 U.S. at 11 484. 12 As to claims rejected previously in the case on procedural grounds, the petitioner 13 must show: (1) that jurists of reason would find it debatable whether the petition stated a 14 valid claim of a denial of a constitutional right; and (2) that jurists of reason would find it 15 debatable whether the district court was correct in its procedural ruling. Id. at 484. While

16 both such showings must be made to obtain a COA, “a court may find that it can dispose 17 of the application in a fair and prompt manner if it proceeds first to resolve the issue whose 18 answer is more apparent from the record and arguments.” Id. at 485. Where a plain 19 procedural bar is properly invoked, an appeal is not warranted. Id. at 484. 20 The Court denies a certificate of appealability as to all claims, for the reasons 21 outlined below.

22 evidence of involvement by Officer Debecker. (See supra section III(A).) Combining two 23 unsupported arguments—as to alleged involvement by Officer Debecker and alleged involvement by an unidentified male who was at a 7-Eleven—together would not have 24 made either argument stronger, particularly when advanced as part of a strained defense of a government set up. As also discussed as to Ground 5, counsel further had sound 25 strategic reasons for not seeking to introduce evidence that one of the AK-47s had been stolen from Debecker. (See supra section III(A).) Ground 9 represents a post hoc theory 26 developed by post-conviction counsel during the latter part of the state evidentiary hearing that was never supported by the underlying state court record. Ground 9 further is 27 inconsistent with Ground 8. If the “man left the store right before Petitioner, providing this individual plenty of time to do the shooting,” then the Aguilar brothers similarly had plenty 28 of time to do so. (See ECF No. 28 at 24.)

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1 In Ground 5, Petitioner alleges that he was denied effective assistance of trial

2 counsel when counsel failed to: (a) present evidence that the AK-47-type rifle allegedly

3 used in the murder had been stolen from a police officer; and (b) investigate the officer’s

4 alleged involvement in the murder and his alleged failure to report the theft prior to the

5 murder. On the record presented, the state supreme court’s rejection of the claim under

6 the performance prong of Strickland was neither contrary to nor an objectively

7 unreasonable application of clearly established federal law. The state court record tends

8 to establish that the officer’s stolen AK-47 was not the actual murder weapon, although it

9 was used in the overall shooting spree. There further is no competent evidence in the 10 state court record that the officer did not report his AK-47 stolen until after the murder. 11 Lead counsel’s best recollection thirteen years after trial was that the investigator did not 12 uncover any evidence linking the officer to the murder. Petitioner presented no evidence 13 that counsel ever were on notice of any additional actual specific facts—beyond the mere 14 theft of the weapon—that would have prompted further investigation over and above that 15 conducted at the time. Counsel further had valid strategic reasons for not presenting

16 evidence only of the fact that the weapon had been stolen from a police officer, given that: 17 (a) such evidence potentially may have opened the door to introduction of evidence in the 18 guilt phase of one or both brothers’ prior involvement in, inter alia, prior weapons offenses, 19 including offenses involving theft of firearms and possession of large quantities of similar 20 assault rifle type weapons; and (b) attempting to bootstrap the fact that the AK-47 had 21 been stolen from a police officer into an uncorroborated claim that the officer was involved 22 in the murder likely would have been viewed as unreasonable and paranoid by a jury. In 23 the capital murder trial, counsel had to be concerned with how such a defense effort would

24 impact not only the guilt phase but a potential penalty phase as well. Reasonable jurists 25 would not find this Court’s rejection of the claim on the merits to be either debatable or 26 wrong, under the doubly deferential standard of review applicable under Strickland’s 27 performance prong and AEDPA. (See supra section III(A).) 28 ///

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1 In Ground 6, Petitioner alleges that he was denied effective assistance when trial

2 counsel failed to move to suppress identification evidence wherein witness Joyce Brown

3 identified Petitioner’s brother Gilbert Aguilar because he allegedly was in jail clothing in

4 the photographic lineup and a detective stated to the witness that individuals might have

5 grown their hair out. The state supreme court’s rejection of the portion of the claim based

6 on Gilbert Aguilar being in jail clothing was neither contrary to nor an objectively

7 unreasonable application of Strickland’s performance prong. The evidence in the state

8 court record tended to establish that Gilbert Aguilar’s appearance was consistent with a

9 non-detainee because to a person unfamiliar with local jail clothing he would appear to 10 be just wearing a T-shirt. The state supreme court rejected the remainder of the claim 11 because Aguilar did not include the trial transcripts in the appeal record. Applying an 12 assumed de novo review to that portion of the claim, Petitioner cannot demonstrate either 13 deficient performance or resulting prejudice. The detective’s statement did not single out 14 any individual in the photographic lineup and was not suggestive in the first instance. The 15 identification evidence in any event otherwise was reliable under the factors in Neil v.

16 Biggers, 409 U.S. 188 (1972), and Manson v. Braithwaite, 432 U.S. 98 (1977). Inter alia, 17 in contrast to the assertions in Petitioner’s papers, Joyce Brown in fact had observed 18 Gilbert Aguilar “maybe once, twice a day” for a “few days, maybe a week” prior to the 19 incident when he was at her neighbor’s residence with David Aguilar, with whom she 20 already was familiar. Brown’s view at the two points in time that she observed Gilbert 21 Aguilar during the incident was clear and unobstructed, with adequate lighting. The 22 remaining factors, on balance, similarly weigh in favor of reliability of the identification, 23 despite Brown’s initial failure to identify Gilbert Aguilar while looking first for a bald subject.

24 Reasonable jurists would not find this Court’s holding on either portion of the claim to be 25 debatable or wrong. (See supra section III(B).) 26 In Ground 7, Petitioner alleges that he was denied effective assistance when trial 27 counsel failed to move to suppress the results of the search of his girlfriend’s residence 28 on the basis that her consent to the search was not voluntary. The state supreme court

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1 held that counsel did not render deficient performance because Aguilar did not have

2 standing to challenge the search when it was undisputed that he was subject to a

3 restraining order legally barring him from being at the girlfriend’s residence, in which he

4 otherwise had no prior legal possessory interest as an owner or lessee. The court’s 2012

5 holding on the underlying standing issue was neither contrary to nor an objectively

6 unreasonable application of United States Supreme Court pronouncements in Rakas v.

7 Illinois, 439 U.S. 128 (1978), and prior case law that a defendant wrongfully present at a

8 premises cannot invoke the privacy of the premises searched. David Aguilar otherwise

9 could not assert any derivative standing based upon any alleged presence by Gilbert 10 Aguilar at the residence, even as a coconspirator or aider and abettor. E.g., United States 11 v. Padilla, 508 U.S. 77 (1993). The state supreme court’s underlying standing holding is 12 fatal, in all respects, to Petitioner’s claim of ineffective assistance of trial counsel in 13 connection with the October 1997 trial. Reasonable jurists would not find this Court’s 14 rejection of the claim on the merits to be either debatable or wrong with regard to 15 Strickland’s performance prong. (See supra section III(C).)

16 In Ground 8, Petitioner alleges that he was denied effective assistance when trial 17 counsel failed to challenge the introduction of a 7-Eleven surveillance video on the basis 18 that the time stamp was inaccurate and the allegedly redacted portion of the video was 19 not authentic. Petitioner posits that an authentic video with an accurate time stamp 20 instead would have contradicted the State’s timeline by establishing that the Aguilar 21 brothers did not leave the 7-Eleven in time to engage in the shooting spree. On the record 22 presented, the state supreme court’s rejection of the claim under the performance prong 23 of Strickland was neither contrary to nor an objectively unreasonable application of clearly

24 established federal law. Counsel had good reason to believe that expert examination of 25 the accuracy of the time stamp or the authenticity of any redaction of the tape would not 26 lead anywhere useful because David Aguilar told him that he and his brother were 27 shooting their weapons in the subdivision. Further, two 7-Eleven store clerks testified that 28 they heard the shooting from the nearby subdivision fifteen to twenty minutes after the

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1 Aguilar brothers left the store. Reasonable jurists would not find this Court’s rejection of

2 the claim on the merits to be either debatable or wrong, under the doubly deferential

3 standard of review applicable under Strickland’s performance prong and AEDPA. (See

4 supra section III(D).)

5 In Ground 9, Petitioner alleges that he was denied effective assistance when trial

6 counsel failed to investigate an alternative suspect theory in pursuit of David Aguilar’s

7 assertion that the two brothers were “set up” pursuant to a government conspiracy.

8 Petitioner posits that a bald white male in the 7-Eleven surveillance video fit the

9 description of a bald white male shooter reflected in the testimony of “several” police 10 officers. This claim is based upon multiple factual representations that either are belied 11 by or are unsupported by the state court record. Inter alia, the man in the surveillance 12 video was not bald; and the record did not establish his ethnicity. Only a single police 13 officer saw the bald shooter. While that officer initially described the individual that he 14 saw—shooting in the dark and then at him—as a bald white male, that officer positively 15 identified the then-bald Gilbert Aguilar as the bald shooter that he saw. Petitioner urges

16 that the identification of “the witness” has no bearing on the analysis because the 17 identification was obtained through a suggestive procedure. However, he apparently 18 confuses Officer Chad Brown with witness Joyce Brown, the subject of Ground 6; and 19 she in any event described the man that she saw as Hispanic. At bottom, there was no 20 unaccounted-for “mystery shooter” who initially was described as a bald white male by a 21 witness where the witness did not positively identify Gilbert Aguilar as the shooter. 22 Petitioner further urges that the description did not fit him, but he was tried as a jointly 23 culpable coconspirator with and aider and abettor of Gilbert Aguilar. Against the backdrop

24 of such a substantially unsupported claim, the state supreme court’s rejection of this claim 25 clearly was neither contrary to nor an objectively unreasonable application of Strickland’s 26 performance prong. Petitioner did not overcome the strong presumption that counsel’s 27 attention instead to other defenses reflected trial tactics rather than neglect. Moreover, 28 there were sound strategic reasons for not pursuing the paranoid “set up” defense.

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1 Reasonable jurists would not find this Court’s rejection of the claim on the merits to be

2 either debatable or wrong. (See supra section III(D).)

3 Reasonable jurists further would not find this Court’s dismissal of the remaining

4 claims as procedurally defaulted and/or time-barred to be debatable or incorrect, for the

5 reasons previously assigned. (See ECF No. 64.) Following upon now its in-depth review

6 of the full trial record, the Court is even more convinced in particular that it is impossible

7 for Petitioner to pass through the actual innocence gateway of Schlup v. Delo, 513 U.S.

8 298 (1995).

9 A certificate of appealability accordingly will be denied as to all claims. 10 V. CONCLUSION 11 It is therefore ordered that the remaining grounds in the Petition are denied on the 12 merits and that the Petition will be dismissed with prejudice. 13 It is further ordered that a certificate of appealability is denied. 14 The Clerk of Court is instructed to enter final judgment accordingly, in favor of 15 Respondents and against Petitioner, dismissing this action with prejudice.

16 DATED THIS 25th day of June 2018. 17 ______18 MIMMIRANDARANDA MM. DU UNITED STATES DISTRICT JUDGE 19 20 21 22 23

24 25 26 27 28

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1 RENE L. VALLADARES Federal Public Defender 2 Nevada State Bar No. 11479 MEGAN C. HOFFMAN 3 Assistant Federal Public Defender Nevada State Bar No. 09835 4 JONATHAN M. KIRSHBAUM Research & Writing Specialist 5 New York State Bar No. 2857100 411 E. Bonneville Avenue, Suite 250 6 Las Vegas, Nevada 89101 (702) 388-6577 7 (702) 388-6261 (FAX) 8 Attorneys for Petitioner 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 DAYOMASHELL DAVID AGUILAR, 3:12-cv-0315-LRH-VPC 12 Petitioner, FIRST AMENDED PETITION FOR 13 WRIT OF HABEAS CORPUS BY A vs. PERSON IN STATE CUSTODY 14 PURSUANT TO 28 U.S.C. § 2254 WARDEN BAKER, et al. 15 Respondents. 16 17 Petitioner, Dayomashell David Aguilar (“Aguilar”), by and through his attorney of record, Megan 18 C. Hoffman, Assistant Federal Public Defender and Jonathan M. Kirshbaum, Research and Writing 19 Specialist, files this First Amended Petition for Writ of Habeas Corpus by a Person in State Custody 20 Pursuant to U.S.C. § 2254.1 21 / / / 22 / / / 23 / / / 24 25 26 27 28 1 The Exhibits referenced in this First Amended Petition are identified as “Ex.” Petitioner reserves the right to file supplemental exhibits as needed and relevant. APP. 375 Case 3:12-cv-00315-LRH-VPC Document 12 Filed 12/12/12 Page 2 of 44

1 I. 2 PROCEDURAL BACKGROUND 3 Following a nine-day jury trial and a four-day penalty hearing, Mr. Aguilar was convicted of the 4 following crimes: Conspiracy to Commit Murder (Count 1), Murder with Use of a Deadly Weapon 5 (Count 2), Discharging Firearm at or into Structure (Counts 5 and 6) and Discharging Firearm at or into 6 Vehicle (Count 9). He was sentenced as follows: Count 1 - to a maximum term of one hundred twenty 7 (120) months with a minimum term of forty-eight (48) months; Count 2 - to life with the possibility of 8 parole with an equal and consecutive term of life with the possibility of parole; and, Counts 5, 6 and 9 - 9 to a maximum term of seventy-two (72) months with a minimum term of twenty-eight (28) months. All 10 counts were ran consecutive. Mr. Aguilar was given credit for forty-one (41) days of time served. (Ex. 11 60.) Mr. Aguilar is currently serving out his sentence at Ely State Prison in Ely, Nevada. 12 The Grand Jury hearing was held on August 29, 1996. (Ex. 2.) Following testimony of eye- 13 witnesses and first responders, the Grand Jury issued an Indictment on August 30, 1996, charging Mr. 14 Aguilar with Conspiracy to Commit Murder (Count 1), Murder with Use of a Deadly Weapon (Open 15 Murder) (Count 2), Attempt Murder with Use of a Deadly Weapon (Count 3), Discharging Firearm at 16 or into Structure (Counts 5 and 6), Discharging Firearm at or into Vehicle (Counts 7 and 9) and Assault 17 with Use of a Deadly Weapon (Count 8). (Ex. 4.) Count 4 pertained only to Mr. Aguilar’s co-defendant. 18 (Id.) 19 The trial commenced on September 30, 1997 and continued through October 10, 1997. (Exs. 20 31-32 and 35-41.) Attorneys R. Roger Hillman and Curtis S. Brown represented Mr. Aguilar throughout 21 the trial. 22 The penalty hearing commenced on October 15, 1997 and continued through October 20, 1997. 23 (Exs. 47, 49-50 and 54-55.) At the conclusion of the penalty hearing, the jury returned a Verdict 24 sentencing Mr. Aguilar to life with the possibility of parole on Count 2, Murder of the First Degree with 25 Use of a Deadly Weapon. (Ex. 53.) 26 The sentencing hearing took place on December 8, 1997, before the Honorable Gene T. Porter. 27 (Ex. 58.) The Judgment of Conviction was filed on January 9, 1998. (Ex. 60.) 28 / / /

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1 DIRECT APPEAL 2 A timely Notice of Appeal from the conviction and sentence was filed on February 6, 1990 and 3 was docketed in the Nevada Supreme Court as case number 31811. (Ex. 62.) 4 Appellant’s Opening Brief was filed on September 4, 1998. (Ex. 65.) Respondent’s Answering 5 Brief was filed on October 6, 1998. (Ex. 67.) Appellant’s Reply Brief was filed on January 25, 1999. 6 (Ex. 69.) 7 On December 20, 1999, the Nevada Supreme Court filed an Order Dismissing Appeals, denying 8 Mr. Aguilar relief on appeal. (Ex. 70.) Remittitur issued on January 18, 2000. (Ex. 71.) 9 STATE POST-CONVICTION 10 On September 8, 2000, Mr. Aguilar, in proper person, filed his Petition for Writ of Habeas 11 Corpus (Post-Conviction) (ex. 73) and his Memorandum of Points and Authorities in Support of Petition 12 for Writ of Habeas Corpus (Post-Conviction) (ex. 74). 13 On October 17, 2000, the State filed its Opposition to Defendant’s Petition for Writ of Habeas 14 Corpus (Post-Conviction) and Motion for Discovery. (Ex. 80.) Mr. Aguilar filed a Reply on November 15 1, 2000. (Ex. 82.) 16 WRIT OF MANDAMUS 17 Mr. Aguilar’s state post-conviction petition sat pending for over six years and on January 26, 18 2007, his co-defendant and brother, Gilbert Aguilar, filed a Petition for Writ of Mandamus in the Nevada 19 Supreme Court. (Ex. 83.) The Nevada Supreme Court docketed the petition as case number 48815. 20 On February 8, 2007, the Nevada Supreme Court filed an Order Directing Response (ex. 85) and 21 the State filed it’s Response on March 15, 2007 (ex. 87). 22 On April 16, 2007, the Nevada Supreme Court granted Gilbert Aguilar’s Petition for Writ of 23 Mandamus and directed the district court to place Mr. Aguilar’s post-conviction petition back on 24 calendar. (Ex. 88.) Additionally, the Nevada Supreme Court noted that David Aguilar’s post-conviction 25 petition was also taken off calendar in December 2000 and directed the district court to place his petition 26 back on calendar as well. (Id.) 27 / / / 28 / / /

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1 STATE POST-CONVICTION (Cont’d) 2 Following the directive from the Nevada Supreme Court, two evidentiary hearings were held 3 before the Honorable Donald M. Mosley on September 7, 2007 and November 30, 2007. (Exs. 91 and 4 93.) Mr. Aguilar was present throughout these hearings, appearing in proper person. (Id.) 5 The Findings of Fact, Conclusions of Law and Order was filed on February 8, 2008. (Ex. 96.) 6 Notice of Entry of Decision and Order was mailed to Mr. Aguilar on February 11, 2008. (Ex. 97.) 7 A timely pro se Notice of Appeal from the denial of the post-conviction petition was filed on 8 March 6, 2009. (Ex. 99.) The Nevada Supreme Court docketed this appeal as case number 50736. 9 On September 5, 2008, the Nevada Supreme Court filed an Order of Reversal and Remand 10 finding that the district court erred in not appointing counsel to represent Mr. Aguilar in the post- 11 conviction proceedings and also finding that the two evidentiary hearings held did not fully address Mr. 12 Aguilar’s claims. (Ex. 100.) Remittitur issued on September 30, 2008. (Ex. 101.) 13 Following remand, a hearing was held on September 18, 2008, before the Honorable Donald M. 14 Mosley. (Ex. 1.) At the hearing, Attorney Kristina Wildeveld was appointed to represent Mr. Aguilar. 15 (Id.) 16 On January 11, 2010, Mr. Aguilar filed Supplemental Points and Authorities in Support of 17 Petition for Writ of Habeas Corpus (Post-Conviction), jointly with his co-defendant. (Ex. 104.) A 18 Supplement to Mr. Aguilar’s Supplement was filed on January 28, 2010, attaching an Affidavit of 19 Dayomashell David Aguilar. (Ex. 106.) 20 Evidentiary hearings were held on June 25, 2010 and December 3, 2010, before the Honorable 21 Donald M. Mosley. (Exs. 109-110.) Mr. Aguilar was present throughout both of these hearings with 22 Attorney Wildeveld. (Id.) 23 Two timely pro se Notices of Appeals were filed on December 9, 2010. (Exs. 111-112.) The 24 Nevada Supreme Court docketed this appeal as case number 57356. 25 The Findings of Fact, Conclusions of Law and Order was filed on March 1, 2011. (Ex. 114.) 26 Notice of Entry of Decision and Order was mailed to Mr. Aguilar on March 8, 2011 (Ex. 115.) 27 A third timely pro se Notice of Appeal was filed on March 17, 2011. (Ex. 119.) 28 / / /

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1 On September 20, 2011, Mr. Aguilar filed a Motion to Consolidate Appeals and for Extension 2 of Time wherein he sought to consolidate his post-conviction appeal with his co-defendant’s. (Ex. 121.) 3 On September 22, 2011, the Nevada Supreme Court granted the motion. (Ex. 122.) 4 Appellant’s Opening Brief was filed on October 14, 2011. (Ex. 123.) 5 On November 2, 2011, Mr. Aguilar filed a Supplement to Defendant’s Brief adding the signature 6 of his attorney, Kristina Wildeveld to Appellant’s Opening Brief. (Ex. 124.) 7 Respondent’s Answering Brief was filed on November 10, 2011. (Ex. 125.) A Reply Brief was 8 not filed by Mr. Aguilar or his co-defendant. 9 On May 9, 2012, the Nevada Supreme Court filed an Order of Affirmance, denying Mr. Aguilar 10 relief on appeal. (Ex. 126.) Remittitur issued on June 4, 2012. (Ex. 129.) 11 FEDERAL POST-CONVICTION 12 Mr. Aguilar mailed his Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by 13 a Person in State Custody in the instant action on June 5, 2012. (CR 9.) 14 Mr. Aguilar requested appointment of counsel and an evidentiary hearing on June 20, 2012. (CR 15 3.) 16 Mr. Aguilar requested to proceed in forma pauperis on July 16, 2012. (CR 5.) 17 On November 6, 2012, this Court filed an Order granting Mr. Aguilar in forma pauperis status 18 and appointment of counsel. (CR 8.) 19 This amended petition follows. 20 / / / 21 / / / 22 / / / 23 24 25 26 27 28

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1 II. 2 CLAIMS FOR RELIEF 3 A. Direct Appeal Claims 4 CLAIM ONE

5 N.R.S. 175.161 REQUIRES DEFENDANTS BE GIVEN EQUAL OPPORTUNITY TO PROVIDE ACCURATE AND PERTINENT JURY INSTRUCTIONS TO THE JURY VIOLATING THE FIFTH, 6 SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. 7 Statement of Exhaustion: This claim was ruled upon on the merits by the Nevada Supreme 8 Court. (Exs. 64-70.). This ground is exhausted. 9 NRS 175.161 provides: 10 “. . . 2. In charging the jury, the judge shall state to them all such 11 matters of law he thinks necessary for their information in giving their verdict. 12 3. Either party may present to the court any written charge, and request that it be given. If the court thinks it correct and pertinent, it must 13 be given; if not, it must be refused. . . .” 14 Federal due process entitles a defendant to an instruction on his theory of defense. U.S. Const. 15 amends. V, VI, XIV. 16 In Longoria v. State, 99 Nev. 754, 670 P.2d 939 (1983), the defendant was on trial for first degree 17 murder in the stabbing death of a man he had shared a bottle of tequila with earlier that night. Appellant 18 had invited the man to sleep on the floor next to Longoria’s bed only to be awakened in the middle of 19 the night by the man pulling him from the bed and hitting him. Longoria then grabbed a knife and 20 stabbed the victim repeatedly in the chest. At trial, Longoria testified regarding the above facts. On 21 cross examination the prosecutor began questioning Longoria regarding a similar stabbing committed 22 by him approximately one month before the subject incident. Longoria was subsequently convicted of 23 first degree murder. 24 On appeal, the Nevada Supreme Court was asked to consider whether evidence of a similar but 25 unrelated stabbing was relevant to the determination of premeditation. In holding that it was not, the 26 Court cited to Anderson for the proposition that “three types of evidence bear on the elements of 27 premeditation and deliberation - defendant’s planning activity, their prior relationship with the victim, 28 and the manner of killing as it bears upon a pre-existing reflection to take the victim’s life in a particular

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1 way.” Longoria at 940. 2 In Anderson, the California Supreme Court conducted an exhaustive review of California case 3 law to determine what constitutes sufficient evidence of premeditation to overcome the presumption that 4 an unjustified killing of a human being constitutes murder of the second, rather than of the first, degree. 5 According to the Court: 6 “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: 7 (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, 8 and explicable as intended to result in, the killing - what may be characterized as “planning” activity; (2) facts about the defendant’s prior 9 relationship and/or conduct with the victim from which the jury could reasonably infer a “motive” to kill the victim, which inference or motive, 10 together with facts of type (1) or (3), would in turn support an inference that the killing was the result of “a pre-existing reflection” and “careful 11 thought and weighing considerations” rather than “mere unconsidered or rash impulse hastily executed” (People v. Thomas, supra, 25 Cal.2d 880, 12 at pp. 898, 900, 901); (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and 13 exacting that the defendant must have intentionally killed according to a “preconceived design” to take his victim’s life in a particular way for a 14 “reason” which the jury can reasonably infer from facts of type (1) or (2).” 15 16 Turning to the case at bar, the issue of premeditation was hotly contested. There was no evidence 17 of planning activity or of a prior relationship with the victim. According to the prosecution’s closing 18 argument, this crime was the offspring of a lethal combination of guns and anger. It is reasonable to 19 infer that this anger was not directed at the victim due to the lack of any prior relationship with the 20 victim. The victim was hit by only one bullet out of the many that were fired in many directions in a 21 short amount of time prior to the arrival of the police. 22 Because the presence or absence of premeditation was the primary issue in this trial, any 23 instruction regarding premeditation would have been pertinent. As such, under N.R.S. 175.161, it was 24 error for the Court not to provide the requested instruction if it was, in fact, a correct statement of the 25 law. As there was no direct evidence of premeditation presented at the guilt phase, it cannot be found 26 beyond a reasonable doubt that this error did not effect the outcome of the trial. Therefore, a new trial 27 is warranted. See, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). 28 / / /

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1 CLAIM TWO

2 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING DEFENDANT’S MOTION TO SUPPRESS EVIDENCE OBTAINED DURING AN ILLEGAL SEARCH OF HIS 3 PERSON VIOLATING THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION. 4 5 Statement of Exhaustion: This claim was raised on direct appeal and was ruled upon on the 6 merits by the Nevada Supreme Court. (Exs. 64-70.) This ground is exhausted. 7 Defendant David Aguilar was detained by police officers on the night of August 7th. The 8 propriety of the detention itself is not challenged. However, Defendant does contest the legality of the 9 second search of his person conducted during the course of that detention. The state seeks to validate 10 this intrusion upon Defendant’s person as being authorized under NRS 171.1232. That statute reads as 11 follows: 12 (1) If any peace officer reasonably believes that any person whom he has detained or is about to detain pursuant to NRS 171.123 is armed with a 13 dangerous weapon and is a threat to the safety of the peace officer or another, the peace officer may search such person to the extent reasonably 14 necessary to ascertain the presence of such weapon. If the search discloses a weapon or any evidence of a crime, such weapon or evidence 15 may be seized. 16 (2) Nothing seized by a peace officer in any such search is admissible in any proceeding unless the search which disclosed the existence of such 17 evidence is authorized by and conducted in compliance with this section. 18 In testimony given at the evidentiary hearing on Defendant’s motion to suppress, Officer Emry 19 testified that on the night of August 7th, he did not initially Defendant David Aguilar, but rather 20 detained him. David was placed in handcuffs even though this is not standard procedure for a simple 21 detention (A.App. vol. 7, pp. 1419-1420).2 Officer Dwiggins carried out the handcuffing and pat down 22 for weapons (A.App. vol. 7, p. 1421). Regarding this pat down, Officer Emry explained: 23 / / / 24 25 2 Petitioner’s newly-appointed counsel have attempted to include citations to the record 26 when possible. Counsel have requested the appendices prepared by prior counsel on direct appeal and in the post-conviction proceedings to ascertain what documents prior counsel cited to for the various 27 claims raised in their briefing. To date, however, counsel have not received either an appendix or an index of the appendix from any prior counsel. Out of an abundance of caution, Petitioner includes the 28 majority of his trial, appellate and post-conviction record in the appendix filed simultaneously with this petition.

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1 When I observed Officer Dwiggins pat him down, it was real basic, make sure he didn’t have any guns on him and knives. Nothing 2 real big. (A.App. vol. 7, p. 1422). 3 At Emry’s direction, David Aguilar was moved approximately thirty feet away, so that Emry 4 could converse privately with Aguilar’s wife. Subsequently, Officer Schofield summoned Emry to 5 Aguilar’s location and pointed out a 9 mm. bullet lying on the ground next to Aguilar’s feet. According 6 to Schofield, the bullet had not been there when Defendant was initially seated on the curb; and it was 7 Aguilar who had drawn the officer’s attention to the projectile (A.App. vol. 7, pp. 1432 & 1434-1435). 8 Officer Emry then conducted a second pat down search of Defendant and located a 7.62 cartridge in his 9 pocket. Regarding this second search, Emry testified: 10 I patted him down further for - make sure that Officer Dwiggins didn’t miss nothing because I thought that he had missed a bullet, so yes, I did. 11 . . . I patted him down for more than just bullets. I patted him down 12 maybe for a knife or something like that. ‘Cause like I said, Officer Dwiggins did a quick cursory to make sure that he didn’t have no guns in 13 the waistband and stuff like that, and - plus, for bullets. If he had anymore evidence that maybe he will pitch in the dirt later, yes. . . 14 When I patted him down, he didn’t have a shirt, I basically got in each pocket, squeezed it, just like I’m doing now. . . 15 Crumpled it up, squeezed it, and made sure I could feel what was in the pocket. (A.App. vol. 7, p. 1423). 16 17 During this process, Emry felt an object that he believed to be a rifle cartridge. He reached into 18 the pocket and removed the cartridge. At that time he did not know that the incident involved rifle 19 cartridges (A.App. vol. 7, p. 1424). Officer Schofield’s testimony and his written report indicated that 20 the second pat down search was undertaken specifically to search Aguilar’s pockets for any other 21 ammunition that might be connected to the Mantis Way shooting (A.App. vol. 7, pp. 1432-1433). 22 NRS 171.1232 specifically limits the extent of a detention search to “the extent reasonably 23 necessary to ascertain the presence of such weapon”, “such weapon” being a dangerous weapon with 24 which the officer reasonably believes the detained person is armed. The officer must also reasonably 25 believe that the detained person “is a threat to the safety of the peace officer or another”. 26 Application of this standard to the facts of the present case does not justify the second pat down 27 search of Defendant nor the removal of the cartridge from his pocket. Defendant had already been 28 subjected to one pat down search. No dangerous weapons were found. When Emry made the decision

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1 to conduct the second search, David Aguilar was handcuffed and seated on a curb with a one-on-one 2 police guard. Under those circumstances, Emry could not reasonably believe that David constituted a 3 threat to his safety, the safety of other officers or anyone else. Additionally, the statute allows the search 4 to be undertaken only “to the extent reasonably necessary to ascertain the presence of a deadly weapon”. 5 Officer Emry never testified that when he felt the object in Defendant’s pocket he believed it to be a 6 dangerous weapon. Absent indicia of a dangerous weapon on Defendant’s pocket, the policeman was 7 not authorized to go into David Aguilar’s pocket and remove the object. In light of the illegal search of 8 Defendant’s person undertaken by the police, Defendant’s motion to suppress should have been granted 9 and the 7.62 mm. cartridge found in his pocket never should have been introduced into evidence. Given 10 the erroneous ruling of the trial court on Defendant’s motion to suppress, the judgment of conviction 11 must be reversed and the case remanded for conducting a new trial. 12 CLAIM THREE

13 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ADMITTING TOTALLY IRRELEVANT EVIDENCE OF A BAYONET AND MACHETE BEING FOUND IN DEFENDANT’S 14 APARTMENT VIOLATING THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. 15 16 Statement of Exhaustion: This claim was raised on direct appeal and was ruled upon on the 17 merits by the Nevada Supreme Court. (Exs. 64-70.) This ground is exhausted. 18 Evidence was placed before the jury that a machete and bayonet were found inside the apartment 19 where David Aguilar was living. Defendant objected to the introduction of this evidence, arguing that 20 it was totally irrelevant to the issues before the trial court. The district court committed prejudicial error 21 in overruling this objection and in admitting the machete and bayonet as well as testimony regarding 22 their discovery inside the apartment. 23 NRS 48.015 defines relevant evidence as “evidence having any tendency to make the existence 24 of any fact that is of consequence to the determination of the action more or less probable than it would 25 be without the evidence.” The crimes for which Defendant was standing trial centered around the use 26 of firearms. There was absolutely no allegation that either a machete or a bayonet had been involved. 27 The finding of these blades had no tendency whatsoever to establish that the crimes of murder, 28 conspiracy or discharging a firearm were committed.

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1 The error cannot be deemed harmless. Linking Defendant to additional weapons other than those 2 involved in the shooting could only serve to unduly prejudice the jury against David Aguilar. Based on 3 the fundamental unfairness generated by the admission of clearly irrelevant evidence, the judgment of 4 conviction must be reversed and the case remanded for conducting of a new trial. 5 CLAIM FOUR

6 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ADMITTING HIGHLY PREJUDICIAL EVIDENCE OF OTHER WRONGS VIOLATING THE FIFTH, SIXTH, AND 7 FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. 8 Statement of Exhaustion: This claim was raised on direct appeal and was ruled upon on the 9 merits by the Nevada Supreme Court. (Exs. 64-70.) This ground is exhausted. 10 The long-standing and generally accepted rule with respect to the admissibility of evidence of 11 acts other than those constituting the offense with which a defendant is charged was stated by this Court 12 in State v. McFarlin, 41 Nev. 486, 172 P. 371 (1918): 13 It is the general rule that evidence of the perpetration of distinct crimes from those for which a defendant is being tried will not be 14 considered. There are, however, exceptions to the general rule. In the well-known case of People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 15 L.R.A. 193, this question was considered at length, and it was held that, generally speaking, evidence of other crimes might be considered only 16 when it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan, embracing the commission of 17 two or more crimes so related to each other that proof of one tends to establish the others or (5) the identity of the person charged with the 18 commission of the crime for which the defendant is being tried. Such is, we think, the correct rule.” Id., 494. 19 20 This traditional rule of evidence was added to the Nevada statutes in 1976. NRS 48.045(2) 21 provides: 22 Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in 23 conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, 24 knowledge, identity, or absence of mistake or accident. . . 25 In Nester v. State of Nevada, 75 Nev. 41, 334 P.2d 524 (1959), this Court, after setting forth the 26 general rule and accompanying exceptions, concisely stated the rationale for this additional rule of 27 evidence: 28 / / /

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1 . . .the fact that it is much easier for a jury to believe the defendant guilty of the crime charged when it is known or suspected that he has committed 2 a separate and distinct crime, shows the danger of allowing evidence of the other crime. Id. At 46. 3 The Court went on to quote from People v. Molineux, supra, p. 294, on the prejudicial effect of 4 such evidence: 5 Such evidence compels the defendant to meet charges of which 6 the indictment gives him no information, confuses him in defense, raises a variety of issues, and thus diverts the attention of the jury from the one 7 immediately before it, and by showing the defendant to have been a knave on other occasions, creates a prejudice which may cause injustice 8 to be done him. 75 Nev. at 47. 9 The Court then set forth the ultimate criterion for determining whether such evidence is 10 admissible: 11 In order to establish admissibility, then, it is not enough to establish that the evidence of a separate offense is relevant and competent 12 under one of the exceptions to the general rule excluding such evidence. Even where relevancy under an exception to the general rule may be 13 found, fair trial demands that the evidence not be admitted in cases where, by virtue of its prejudicial nature, it is more likely to distract from 14 the essential issue to bear upon it. 75 Nev. at 54 (emphasis added). 15 Thus evidence which is relevant must be excluded when its probative value is outweighed by the 16 prejudicial effect on the jury. This rule of evidence was similarly codified in 1971 by NRS 48.035(1) 17 which provides: 18 Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of 19 confusion of the issues or of misleading the jury. 20 The above-cited authorities support Defendant’s position that the trial court erred in admitting 21 testimony regarding the attack launched by Defendant’s brother at the 7-Eleven store. Evidence of such 22 conduct by Gilbert Aguilar did not constitute proof of any of the elements of the crimes with which 23 David Aguilar was charged. Because of Defendant’s presence at the convenience store with his brother, 24 as well as the testimony that David participated in chasing the vehicle, the jury may well have concluded 25 that Defendant was a party to his brother’s uncharged wrongful acts and that Defendant, himself, had 26 engaged in such other wrongful acts. 27 Since evidence of the 7-Eleven incident was only tangentially related to the crimes with which 28 Defendant David Aguilar was charged, and certainly did not constitute evidence of any of the elements

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1 of those crimes, the trial court erred in admitting this unduly prejudicial testimony. Based upon this 2 error, the judgment of conviction must be reversed and the case remanded for a new trial free from such 3 error. 4 CLAIM FIVE

5 THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO GIVE JURY INSTRUCTIONS WHICH ADEQUATELY DISTINGUISHED THE ELEMENTS OF MALICE 6 AFORETHOUGHT AND PREMEDITATION / DELIBERATION. 7 Statement of Exhaustion: This claim was raised on direct appeal and was ruled upon on the 8 merits by the Nevada Supreme Court. (Exs. 64-70.) This ground is exhausted. 9 Jury Instruction No. 173, given at the guilt phase of trial, was inadequate because it failed to 10 distinguish between the concepts of premeditation/deliberation and malice aforethought. These are 11 distinct elements, delineating the boundary between first and second degree murder; and jury instructions 12 must point out and define that distinction. The separate and distinct nature of these legal concepts has 13 been a part of Nevada’s jurisprudence for at least the last one hundred years. In the 1894 case of State 14 v. Wong Fun, 22 Nev. 336, 40 P. 95 (1894)4, the attorney-general advocated that the term ‘malice 15 aforethought’ was equivalent to the terms ‘willful, deliberate and premeditated’. This Court responded: 16 [W]e cannot agree with that contention. Malice aforethought must exist in both degrees of murder, but if nothing more is shown it is 17 murder of the second degree [citation omitted]. The adjectives ‘willful, deliberate and premeditated,’ as used in the statute, mean something over 18 and above malice aforethought. (People v. Long, 39 Cal. 694; People v. Doyell, 48 Cal. 85.) 22 Nev. at 342. 19 / / / 20 / / / 21 3 22 Jury Instruction No. 17 reads as follows: 23 Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before or at the time of the killing. 24 Premeditation need not be for a day, an hour or even a minute. It may be as instantaneous as successive thoughts of the mind. For if the 25 jury believes from the evidence that the act constituting the killing has been preceded by and has been the result of premeditation, no matter how 26 rapidly the premeditation is followed by the act constituting the killing, it is willful, deliberate and premeditated murder. (A.App. vol. 2, p. 292). 27 4 Although the Wong Fun case is a century old, the statute defining first and second degree 28 murder at that time (Gen. Stats., sec. 4581), in its relevant part, is virtually identical in wording to N.R.S. 200.030(1)(a) and (2).

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1 Even though this Court has ruled that the trilogy of terms, ‘willful, deliberate and premeditated’, 2 are not separate elements and connote the same general idea, i.e. an intention to kill, Powell v. State, 108 3 Nev. 700, 709, 838 P.2d 921 (1992), that trilogy is still a distinct element from malice aforethought. 4 Fundamental fairness requires that jury instructions must be stated in language such that a jury will 5 understand that distinction. The trial court failed to accomplish this in the case at bar. This is made 6 quite clear by reviewing the following sequence of instructions given to the Aguilar jury: 7 “Murder is the unlawful killing of a human being, with malice aforethought, whether express or 8 implied.” (Instruction No. 13, in relevant part, Ex. 51). 9 “Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, 10 . . .” (Instruction No. 15, quoting the language of N.R.S. 200.020(1), Ex. 51). 11 “Murder of the Second Degree is murder with malice aforethought, but without the admixture 12 of premeditation. All murder which is not Murder of the First Degree is Murder of the Second Degree.” 13 (Instruction No. 23, in relevant part, Ex. 51). 14 “Premeditation is a design, a determination to kill, distinctly formed in the mind at the moment 15 before or at the time of the killing.” (Instruction No. 17, Ex. 51). 16 Defendant acknowledges that from the above instructions, the jury should have been able to glean 17 that a finding of malice aforethought, express or implied, was necessary to return a murder verdict in 18 either degree, and that premeditation/deliberation would also be required to find first degree murder. 19 It is here that any semblance of clarity ends. 20 From the instructions given by the trial court, there is absolutely no way that the jury could 21 distinguish between the concepts of express malice and premeditation/deliberation. Express malice was 22 defined as “that deliberate intention unlawfully to take away the life of a fellow creature.” Premeditation 23 was defined as “a design, a determination to kill”. These two definitions are indistinguishable. How 24 is a “deliberate intention. . .to take. . .life” any different from a “design [or] determination to kill”? It 25 isn’t. Given the vagueness, ambiguity and incompleteness of the above instructions, it was impossible 26 for the jury to distinguish malice aforethought from premeditation/deliberation. Where the difference 27 between a first and second degree murder conviction hinges on the jury’s ability to understand and 28 analyze that distinction as it applies to the facts of the case, such flawed jury instructions are the very

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1 antithesis of a fair trial. A conviction and attendant sentence of life imprisonment based on such 2 instructions cannot be allowed to stand. In re Winship, 397 U.S. 358 (1970); Chambers v. McDaniel, 3 549 F.3d 1191 (9th Cir. 2008); Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007) 4 The trial court prejudicially erred in failing to give Defendant’s proposed Instruction “A”, which 5 added the following language to Instruction No. 17 as given: “Deliberate means formed or arrived at or 6 determined upon as a result of careful thought and weighing of considerations for and against the 7 proposed cause [course] of action.” (A.App. vol. 2, p. 320A). 8 The notions of “careful thought” and “weighing of considerations for and against” are found 9 nowhere in the instructions delivered by the court; and yet they are accurate descriptions of 10 premeditation and deliberation. Had Defendant’s proposed instruction been given, the jury would have 11 had some basis for drawing a distinction between the concepts of malice aforethought and 12 premeditation/deliberation. Without this instruction, such analysis was impossible. The trial court 13 committed prejudicial error in failing to give Defendant’s Proposed Instruction “A”. 14 Appellant is aware that this Court has previously addressed this issue in the cases of Witter v. 15 State, 112 Nev. Adv. Op. 119, 921 P.2d 886 (1996) and Williams v. State, 113 Nev. Adv. Op. 113, 945 16 P.2d 438 (1997) and has found the instructions given by the trial courts to be adequate. By raising the 17 issue in the present case, Appellant requests that the Court overrule its decision in the Williams and 18 Witter cases. 19 / / / 20 / / / 21 / / / 22 23 24 25 26 27 28

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1 B. The Post-Conviction Claims 2 CLAIM SIX

3 GILBERT AND DAVID WERE DENIED REASONABLE EFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO TRIAL, DURING TRIAL, AND ON APPEAL IN VIOLATION OF THE SIXTH AND 4 FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. TRIAL COUNSEL FOR GILBERT AND DAVID FAILED TO INVESTIGATE AND PRESENT EVIDENCE TO THE 5 JURY REGARDING OFFICER BRIAN DEBECKER’S CULPABILITY IN THE CRIME AGAINST MARK EMERSON. 6 7 Statement of Exhaustion: This claim was raised in the first state post-conviction proceedings 8 and was ruled upon on the merits by the Nevada Supreme Court. (Exs. 73-82; 92-8; 104-14; 123-6.) This 9 ground is exhausted. 10 Preparing for trial with a reasonable amount of effort is the cornerstone of the trial attorney’s duty 11 of effective assistance under the Sixth Amendment to the U.S. Constitution applicable to the states under 12 the Fourteenth Amendment. Catalan v. Cockrell, 315 F.3d 491 (5th Cir., 2002). 13 There was no direct physical evidence conclusively tying Gilbert and David to the murder of 14 Emerson. In fact, the murder weapon was traced back to Officer Brian Debecker of the Las Vegas 15 Metropolitan Police Department who owned said weapon, and who had not reported it missing or stolen 16 at the time of the instant crimes. Attorneys for Appellants never conducted any investigation into the 17 ownership of the weapon used to kill the decedent before embarking upon trial. AA 0111; 0416-0419. 18 If they had done so, investigation would have revealed the connection between Debecker and the crime. 19 Further, Debecker did not report the weapon stolen until after the instant crime, adding further mystery 20 to Debecker’s potential culpability. AA 0377-0380. 21 Evidence that the owner of the automatic weapon used in Emerson’s murder failed to report the 22 weapon’s whereabouts until after the crime shrouds the officer’s actions in suspicion and would have 23 proven useful in the defense of Appellants who were charged with said crime. Appellants received 24 ineffective assistance of counsel for their attorneys’ failure to present the evidence. 25 / / / 26 / / / 27 / / / 28

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1 CLAIM SEVEN

2 GILBERT AND DAVID WERE DENIED REASONABLE EFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO TRIAL, DURING TRIAL, AND ON APPEAL IN VIOLATION OF THE SIXTH AND 3 FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. TRIAL COUNSEL FOR GILBERT AND DAVID FAILED TO EFFECTIVELY PREVENT THE ADMISSION OF THE 4 TAINTED, UNRELIABLE AND SUGGESTIVE EXTRA-JUDICIAL AND IN-COURT PHOTOGRAPHIC LINEUP IDENTIFICATION IN VIOLATION OF THE SIXTH AND 5 FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 6 Statement of Exhaustion: This claim was raised in the first state post-conviction proceedings 7 and was ruled upon on the merits by the Nevada Supreme Court. (Ex. 73-82; 92-8; 104-14; 123-6.) This 8 ground is exhausted. 9 Preparing for trial with a reasonable amount of effort is the cornerstone of the trial attorney’s duty 10 of effective assistance under the Sixth Amendment to the U.S. Constitution applicable to the states under 11 the Fourteenth Amendment. Catalan v. Cockrell, 315 F.3d 491 (5th Cir., 2002). 12 No physical evidence directly linked either Gilbert or David to the shooting of Mark Emerson. 13 The most compelling trial evidence against them consisted of various identifications of the shooter made 14 by trial witnesses either before or during the trial from a photographic lineup prepared by the 15 Metropolitan Police Department. AA 0179-0181. David was not depicted in the line-up shown to 16 alleged eye-witnesses. A mug-shot (booking photo) of Gilbert wearing jail or prison clothing was 17 utilized in a six-pack photographic line-up and shown to the jury in trial. AA 1083-0184. Officer Emry 18 testified that he prompted witnesses to identify the shooter in the photo array which included Gilbert. 19 The officer also reminded one witness that the perpetrator’s hair style could have changed since the 20 picture was taken (when she initially failed to identify Gilbert). AA 0121-0124. Appellants’ trial 21 attorneys made no pre-trial motions to suppress the line-up’s admission into evidence. 22 Appellants’ right to a fair trial with due process of law under the Fifth, Sixth and Fourteenth 23 Amendments to the U.S. Constitution were violated by the introduction of the unnecessarily suggestive 24 and highly prejudicial identification of Gilbert. The Due Process Clause prohibits identification 25 testimony that derives from impermissibly suggestive procedures that may lead to irreparably mistaken 26 identification. Stovall v. Denno, 388 U.S. 293, 301-02 (1967). “It is the likelihood of the 27 misidentification [that] violates a defendant's right to due process.” Neil v. Biggers, 409 U.S. 188, 198 28 (1972). The applicable test is whether, in light of the totality of the circumstances, the identification was

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1 so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was 2 denied due process of law. Bolin v. State, 114 Nev. 503, 523, 960 P.2d 784, 796-97 (1998). In Bias v. 3 State, 105 Nev. 869, 871, 784 P.2d 963, 964 (1989), this Court explained that the test enunciated in 4 Stovall involved a twofold inquiry: "(1) whether the procedure is unnecessarily suggestive and (2) if so, 5 whether, under all the circumstances, the identification is reliable despite an unnecessarily suggestive 6 identification procedure." (citing Bolin, 114 Nev. at 523, 784 P.2d at 797.) 7 Officer Emry should not have prompted witnesses to identify Gilbert from the line-up, nor should 8 he have reminded a witness about his potentially changed hairstyles. The addition of a photograph of 9 Gilbert wearing jail or prison clothing was unnecessarily suggestive and highly prejudicial. The 10 prejudice also infected David’s right to a fair trial because the trials were joined, and other evidence put 11 the brothers together at or near the time of the shooting. The taint spilled over to David, infecting his 12 right to a fair trial. The failure of Appellants’ attorneys to object to the introduction of the photographic 13 line-up constituted ineffective assistance of counsel. 14 CLAIM EIGHT

15 GILBERT AND DAVID WERE DENIED REASONABLE EFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO TRIAL, DURING TRIAL, AND ON APPEAL IN VIOLATION OF THE SIXTH AND 16 FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. TRIAL COUNSEL FOR GILBERT AND DAVID FAILED TO LITIGATE THE ISSUE OF THE WARRANTLESS 17 POLICE ENTRY AND SEARCH OF GLORIA OLIVARES’ (AGUILAR) RESIDENCE IN VIOLATION OF THE FOURTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED 18 STATES CONSTITUTION. 19 Statement of Exhaustion: This claim was raised in the first state post-conviction proceedings 20 and was ruled upon on the merits by the Nevada Supreme Court. (Ex. 73-82; 92-8; 104-14; 123-6.) This 21 ground is exhausted. 22 Preparing for trial with a reasonable amount of effort is the cornerstone of the trial attorney’s duty 23 of effective assistance under the Sixth Amendment to the U.S. Constitution applicable to the states under 24 the Fourteenth Amendment. Catalan v. Cockrell, 315 F.3d 491 (5th Cir., 2002). 25 Under the Fourth Amendment to the U.S. Constitution, applicable to States under the Fourteenth 26 Amendment, law enforcement generally needs a search warrant to conduct a legal search a person’s 27 residence. As set forth above, one of the exceptions to the warrant requirement of the Fourth 28 Amendment is voluntary consent. See United States v. Lowe, 999 F.2d 448, 451 (10th Cir. 1993), citing

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1 Schneckloth, 412 U.S. at 222. The government's ability to rely upon the consent exception depends on 2 two factors. First, the government must show that the consent was given voluntarily. See Bumper v. 3 North Carolina, 391 U.S. 543, 548-49 (1968). Second, the prosecution must show that either the 4 defendant himself consented to the search or that consent was obtained from a third party that had the 5 ability to furnish valid consent. See United States v. Matlock, 415 U.S. 164, 171 (1974). 6 The only physical evidence potentially tying Gilbert and David to the shooting of Mark Emerson 7 was two guns found in the apartment of David’s girlfriend, Gloria Olivares. Ballistics testing linked the 8 weapons to the shooting, and one gun purportedly contained the palm print of David.5 Police searched 9 Olivares’ residence after ostensibly obtaining her consent. Trial attorneys for Gilbert and David were 10 told that Olivares felt coerced into giving consent by police who threatened her with the murder wrap 11 if she did not. AA 0133. Attorneys for Gilbert and David never investigated the circumstances leading 12 to Ms. Olivares’ decision to grant consent to search. AA 0133. Trial attorneys for Gilbert and David 13 failed to seek suppression of the search based upon illegally obtained consent.6 The suppression of the 14 gun evidence would have substantially impacted the state’s case, likely changing the outcome of the trial. 15 The failure of attorneys to litigate the issue of the illegal search leading to such damaging trial evidence 16 denied Appellants effective assistance of counsel under the Sixth Amendment and Fourteenth 17 Amendment to the U.S. Constitution as well as Federal and State Constitutional provisions. 18 CLAIM NINE

19 TRIAL COUNSEL FOR GILBERT AND DAVID FAILED TO SUFFICIENTLY LITIGATE LEGAL ISSUES WHICH LED TO THE ADMISSION OF MULTIPLE PIECES OF PREJUDICIAL 20 EVIDENCE IN VIOLATION OF APPELLANTS’ FOURTH, FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHT TO FAIR TRIAL. THE ATTORNEYS FOR GILBERT AND DAVID 21 FAILED TO PREVENT THE ADMISSION OF PHOTOS SHOWING APPELLANTS IN PRISON OR JAIL CLOTHING IN APPELLANTS’ TRIAL. 22 23 Statement of Exhaustion: This claim was raised in the first state post-conviction proceedings 24 and was ruled upon on the merits by the Nevada Supreme Court. (Ex. 73-82; 92-8; 104-14; 123-6.) This 25 5 26 Although no ballistics testing linked the guns to the bullet that killed Emerson, experts testified that bullets fired around and into his residence could be tied to one of the weapons. 27 6 The only motion to suppress the search of Olivares’ residence was made on the basis of 28 the inadmissibility of a copy of the consent card as violating the “best evidence rule”, not on Fourth Amendment grounds.

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1 ground is exhausted. 2 Trial counsels’ failure to successfully file and argue substantive motions or to collect favorable 3 evidence from the State violated of the Constitutional standard for effective assistance of counsel. As 4 a result, Appellants suffered an infringement upon their right to due process and effective assistance of 5 counsel under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution as well as 6 State and Federal Constitutional provisions. 7 The cornerstone of our criminal justice system is that a criminal defendant is entitled to the 8 presumption of innocence under State, Federal and United States Constitutions. That presumption 9 means that the jury is not allowed to know that an accused is in custody while in trial. U.S.C.A. Const. 10 Amend. 14. To that end, criminal defendants are dressed in “street” not jail clothing. Shackles and 11 chains are never to be revealed to the jury. Such display is highly unduly prejudicial. NRS 48.035. 12 In this case, attorneys for Appellants allowed the introduction of a photographic array of Gilbert 13 in his jail clothing to be seen by the jury deciding his fate. No motion to suppress was filed, and 14 attorneys were unsuccessful in keeping it out of Appellants’ trial. Trial counsels’ failure to keep such 15 prejudicial evidence out of the trial denied Appellants effective assistance of counsel under the Fifth, 16 Sixth and Fourteenth Amendments to the United States Constitution as well as State and Federal 17 Constitutional principles. 18 CLAIM TEN

19 TRIAL COUNSEL FOR GILBERT AND DAVID FAILED TO SUFFICIENTLY LITIGATE LEGAL ISSUES WHICH LED TO THE ADMISSION OF MULTIPLE PIECES OF PREJUDICIAL 20 EVIDENCE IN VIOLATION OF APPELLANTS’ FOURTH, FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHT TO FAIR TRIAL. THE ATTORNEYS FOR GILBERT AND DAVID 21 FAILED TO PREVENT THE ADMISSION OF EVIDENCE OF APPELLANT’S STATUS AS EX- FELON IN APPELLANTS’ TRIAL. 22 23 Statement of Exhaustion: This claim was raised in the first state post-conviction proceedings 24 and was ruled upon on the merits by the Nevada Supreme Court. (Ex. 73-82; 92-8; 104-14; 123-6.) This 25 ground is exhausted. 26 Trial counsels’ failure to successfully file and argue substantive motions or to collect favorable 27 evidence from the State violated of the Constitutional standard for effective assistance of counsel. As 28 a result, Appellants suffered an infringement upon their right to due process and effective assistance of

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1 counsel under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution as well as 2 State and Federal Constitutional provisions. 3 The law requires that a criminal defendant be judged by the jury solely for the crimes for which 4 he is on trial, not his past crimes or bad acts. "A district court's decision to admit or exclude evidence 5 of prior bad acts rests within its sound discretion and will not be reversed by this court on appeal absent 6 manifest error." Somee v. State, 187 P.3d 152, 160 (Nev. 2008). In this case, the court allowed the 7 reading of an information charging Appellant(s) with Possession of Firearm by Ex-Felon along with the 8 other charges they faced. The jury was allowed to know that Appellant(s) had not only been accused of 9 prior bad acts, but also that they had been previously convicted of felony crimes before any trial evidence 10 was heard. Trial counsel was unsuccessful in preventing this highly prejudicial evidence from infecting 11 Appellants’ trial. The law now recognizes the prejudicial nature of such evidence and requires the trial 12 court to sever out charges of Ex-felon in Possession of Firearm from the crimes for which a criminal 13 defendant faces trial. Brown. v. State, 114 Nev. 1118 (1998). Trial counsels inability to keep such 14 evidence from coming before the jury denied Appellants effective assistance of counsel under the Fifth, 15 Sixth and Fourteenth Amendments to the United States Constitution as well as State and Federal 16 Constitutional principles. 17 CLAIM ELEVEN

18 TRIAL COUNSEL FOR GILBERT AND DAVID FAILED TO SUFFICIENTLY LITIGATE LEGAL ISSUES WHICH LED TO THE ADMISSION OF MULTIPLE PIECES OF PREJUDICIAL 19 EVIDENCE IN VIOLATION OF APPELLANTS’ FOURTH, FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHT TO FAIR TRIAL. THE ATTORNEYS FOR GILBERT AND DAVID 20 FAILED TO PREVENT THE ILLEGALLY OBTAINED AND PRIVILEGED TESTIMONY OF ANNETTE O’NEAL AGUILAR IN APPELLANTS’ TRIAL. 21 22 Statement of Exhaustion: This claim was raised in the first state post-conviction proceedings 23 and was ruled upon on the merits by the Nevada Supreme Court. (Ex. 73-82; 92-8; 104-14; 123-6.) This 24 ground is exhausted. 25 Trial counsels’ failure to successfully file and argue substantive motions or to collect favorable 26 evidence from the State violated of the Constitutional standard for effective assistance of counsel. As 27 a result, Appellants suffered an infringement upon their right to due process and effective assistance of 28 counsel under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution as well as

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1 State and Federal Constitutional provisions. 2 Appellant Gilbert was involved in a relationship with Annette O’Neal Aguilar 3 which was consummated in 1997. AA 0143-0145. Aguilar was purportedly coerced by police to 4 provide damaging information and ultimately trial testimony against Appellants. Her testimony 5 constituted some of the most damaging trial evidence.7 AA 0153. In order to obtain Ms. Aguilar’s 6 statement to police (and her trial testimony), the state threatened her with prosecution of the murder 7 charge as an accessory and eventually granted her immunity from prosecution. AA 0145. Trial counsel 8 for Appellants did not pursue this information as a line of investigation, and were unsuccessful in 9 keeping her damaging statement to police and trial testimony from Appellants’ trial. AA 0459. Trial 10 counsels inability to keep such evidence from coming before the jury denied Appellants effective 11 assistance of counsel under the Fifth, Sixth and Fourteenth Amendments to the United States 12 Constitution as well as State and Federal Constitutional principles. 13 CLAIM TWELVE

14 TRIAL ATTORNEYS FOR GILBERT AND DAVID FAILED TO KEEP UNRELIABLE EVIDENCE OUT OF APPELLANTS’ TRIAL IN VIOLATION OF THEIR RIGHT TO CONFRONTATION, DUE 15 PROCESS, AND A FAIR TRIAL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. ATTORNEYS FOR GILBERT 16 AND DAVID FAILED TO CHALLENGE INTRODUCTION OF THE CLEARLY EDITED 7-11 VIDEOTAPE ADMITTED BY THE STATE IN APPELLANTS’ TRIAL. 17 18 Statement of Exhaustion: This claim was raised in the first state post-conviction proceedings 19 and was ruled upon on the merits by the Nevada Supreme Court. (Ex. 73-82; 92-8; 104-14; 123-6.) This 20 ground is exhausted. 21 The Fifth Amendment to the United States Constitution guarantees a criminal defendant the right 22 to due process and a fair trial. Under the Sixth Amendment, an accused is entitled to effective 23 representation by competent counsel to ensure that appropriate, effectual motions and objections are 24 made to prevent the introduction of improper evidence. Trial counsel for Appellants failed to 25 successfully litigate several issues leading to the introduction of multiple pieces of unreliable and 26 27 7 Ms. Aguilar’s testimony was very damaging to Appellant’s theory of defense because she 28 placed Gilbert and David in the area of the shooting at the time it was alleged to have occurred, and attributed to Gilbert’s statements which could have been interpreted as an admission of guilt.

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1 prejudicial evidence into Appellants’ trial. 2 The state successfully sought admission of a videotape of Gilbert and David gambling at a 7-11 3 located approximately 200 yards from the murder scene and leaving the store at 11:43 p.m. according 4 to the tape’s time stamp. AA 0490-0495. The significance of the video was to illustrate that Appellants 5 had plenty of time to leave the store, run to their residence to retrieve weapons, and then return to begin 6 a gun battle where Emerson was murdered. Investigators for Appellate counsel learned that the 7-11 7 videotape provided to the state for the day of the shooting was originally 24 hours long, edited by the 8 state into the 45 minute version shown at Appellants trial. Trial counsel for Appellants never questioned 9 the authenticity of the tape’s time stamp or editing techniques utilized. No motion to suppress the 10 videotape was made. No defense expert witness was utilized to test the reliability of the videotape’s 11 time stamp. Instead, trial counsel for Appellants allowed the prejudicial videotape to be played to the 12 jury without successful challenge lending evidentiary support to the State’s murder time-line. 13 Appellants were denied effective assistance of counsel for trial counsels’ failure to challenge the 14 authenticity, reliability and admissibility of the damaging 7-11 videotape in violation of the Sixth and 15 Fourteenth Amendments to the United States Constitution as well as State and Federal constitutional 16 principles. 17 CLAIM THIRTEEN

18 TRIAL ATTORNEYS FOR GILBERT AND DAVID FAILED TO KEEP UNRELIABLE EVIDENCE OUT OF APPELLANTS’ TRIAL IN VIOLATION OF THEIR RIGHT TO CONFRONTATION, DUE 19 PROCESS, AND A FAIR TRIAL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. ATTORNEYS FOR GILBERT 20 AND DAVID FAILED TO CHALLENGE THE DAMAGING AND IRRELEVANT EVIDENCE OF DAVID’S PALM PRINT ALLEGEDLY CONTAINED ON THE MAADI WEAPON. 21 22 Statement of Exhaustion: This claim was raised in the first state post-conviction proceedings 23 and was ruled upon on the merits by the Nevada Supreme Court. (Ex. 73-82; 92-8; 104-14; 123-6.) This 24 ground is exhausted. 25 The Fifth Amendment to the United States Constitution guarantees a criminal defendant the right 26 to due process and a fair trial. Under the Sixth Amendment, an accused is entitled to effective 27 representation by competent counsel to ensure that appropriate, effectual motions and objections are 28 made to prevent the introduction of improper evidence. Trial counsel for Appellants failed to

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1 successfully litigate several issues leading to the introduction of multiple pieces of unreliable and 2 prejudicial evidence into Appellants’ trial. 3 Relevant evidence is defined as evidence which tends to make any fact in issue more or less 4 probable than it would be without the evidence. Only relevant evidence is admissible in trial. NRS 5 48.015. Even relevant evidence must be excluded if its probative value is substantially outweighed by 6 the danger of unfair prejudice or confusion of the issues. The State successfully sought admission of 7 evidence that David’s palm print was located on the butt of one weapon (the Maadi rifle) found in Gloria 8 Olivares’ residence and believed involved in the gun battle in which Emerson was murdered. AA 0155. 9 The forensic expert who testified at Appellant’s trial made clear, however, that he could not conclusively 10 tie any bullets from the Maadi weapon to any of the shots fired that day. Additionally, the expert 11 testified that forensic testing could not determine which weapon’s bullet inflicted Emerson’s fatal 12 gunshot. AA 0106-0111. 13 The State had no evidence proving that the Maadi weapon was used in the shooting which 14 resulted in the trial victim’s death, or any of the shots fired in the neighborhood that day. As such, 15 evidence that David’s palm print was found on the butt of the Maadi rifle was irrelevant and highly 16 prejudicial and should not have been admitted in Appellants’ trial. Attorneys for Appellants should have 17 moved to exclude the substantially prejudicial and irrelevant testimony. Instead, trial attorneys for 18 Gilbert and David allowed introduction of the palm-print evidence without challenge, adding credibility 19 to the state’s theory of prosecution. Appellant’s attorneys failure to seek exclusion of such damaging 20 testimony or evidence constituted ineffective assistance of counsel in violation of the Fifth, Sixth and 21 Fourteenth Amendments to the United States Constitution as well as State and Federal constitutional 22 principles. 23 CLAIM FOURTEEN

24 TRIAL COUNSEL FOR GILBERT AND DAVID FAILED TO INVESTIGATE AND PURSUE MULTIPLE LINES OF DEFENSE WHICH COULD HAVE BEEN UTILIZED TO SHED 25 REASONABLE DOUBT ON THE STATE’S THEORY OF PROSECUTION. ATTORNEYS FOR GILBERT AND DAVID FAILED TO PURSUE THE ALTERNATIVE SUSPECT THEORY. 26 27 Statement of Exhaustion: This claim was raised in the first state post-conviction proceedings 28 and was ruled upon on the merits by the Nevada Supreme Court. (Ex. 73-82; 92-8; 104-14; 123-6.) This

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1 ground is exhausted. 2 Appellants maintained to their attorneys that they were not the ones who fatally wounded Mark 3 Emerson. AA 0210. Some witnesses who alleged to have seen the shooter believed to have killed 4 Emerson described him as being a stout white guy with a shaved head and a “tail” in the back of his 5 head. It is apparently undisputed that one man in the 7-11 video seen stepping on David’s toe as he 6 gambled matched that description, and left the store at 11:43 p.m., plenty of time to do the shooting 7 according to the State’s theory of the murder time-line. AA 0206-0208. Trial attorneys for Gilbert and 8 David never bothered to attempt identification of the man in the video matching some witnesses’ 9 description of the shooter. Appellants’ attorneys also did not argue the alternative suspect theory to the 10 jury. AA 0179. 11 The existence of another person matching the description of Emerson’s shooter seen in the area 12 causing trouble on the day of the shooting would have been powerful defense evidence to shed doubt 13 on the State’s prosecution theory. This fact is especially persuasive when considering the fact that the 14 bald guy with the “tail” was clearly up to no good (stepping on David’s toes) as depicted in the 7-11 15 video just before the shooting spree. The failure of Appellants’ trial counsel to investigate and produce 16 such potentially exculpatory evidence denied them a fair trial and amounted to ineffective assistance of 17 counsel in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution 18 as well as State and Federal constitutional principles. 19 CLAIM FIFTEEN

20 TRIAL COUNSEL FOR GILBERT AND DAVID FAILED TO INVESTIGATE AND PURSUE MULTIPLE LINES OF DEFENSE WHICH COULD HAVE BEEN UTILIZED TO SHED 21 REASONABLE DOUBT ON THE STATE’S THEORY OF PROSECUTION. ATTORNEYS FOR GILBERT AND DAVID FAILED TO PURSUE THE POSSIBILITY OF OFFICER DEBECKER’S 22 INVOLVEMENT IN THE SHOOTING. 23 Statement of Exhaustion: This claim was raised in the first state post-conviction proceedings 24 and was ruled upon on the merits by the Nevada Supreme Court. (Ex. 73-82; 92-8; 104-14; 123-6.) This 25 ground is exhausted. 26 The State presented evidence that one of the weapons used in the shooting which led to 27 Emerson’s murder was owned by Metropolitan Police Officer Debecker. That weapon was reported 28 stolen by Debecker, but not until after the murder of Emerson. Attorneys for Appellants failed to

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1 investigate a potential link between the murder victim and Officer Debecker (to show potential motive 2 for the shooting of Emerson). Trial attorneys for Appellants also did not present evidence of this 3 alternative suspect theory in trial. AA 0211-0213. 4 The fact that a weapon found to have been used in the neighborhood shooting which led to 5 Emerson’s murder was owned by someone other than Appellants and not reported missing until after 6 the murder would have provided another alternative suspect theory. The failure of Appellants’ trial 7 counsel to investigate and produce such potentially exculpatory evidence denied them a fair trial and 8 amounted to ineffective assistance of counsel in violation of the Fifth, Sixth, and Fourteenth 9 Amendments to the United States Constitution as well as State and Federal constitutional principles. 10 CLAIM SIXTEEN

11 TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CONDUCT AN INVESTIGATION AND TO FILE RELEVANT PRE-TRIAL MOTIONS ON PETITIONER’S BEHALF IN VIOLATION OF 12 PETITIONER’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL. APPELLATE COUNSEL WAS INEFFECTIVE FOR 13 FAILING TO ZEALOUSLY REPRESENT PETITIONER ON APPEAL, IN VIOLATION OF PETITIONER’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO THE EFFECTIVE 14 ASSISTANCE OF APPELLATE COUNSEL. IN THE ALTERNATIVE, PETITIONER WAS DENIED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH, SIXTH AND 15 FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN THE STATE FAILED TO DISCLOSE MATERIAL EVIDENCE. 16 17 Statement of Exhaustion: This claim was raised in the first state post-conviction proceedings. 18 (Exs. 73-82; 92-8; 104-14; 123-6.) It was not presented to the Nevada Supreme Court. 19 a. Theory of Defense/Statement of the Facts: 20 On the evening of August 7, 1996, between approximately 10:00 and 10:30 p.m., David 21 Aguilar (“David”) and Gilbert Aguilar (“Gilbert”) left their residence, located at 3505 Strutz, Las Vegas, 22 Nevada, leaving Annette O’Neal Aguilar, Gilbert's wife, at the house to get some sleep. They proceeded 23 to the 7-Eleven located on the corner of the 900 block of North Pecos and Washington, approximately 24 one-half mile from 3505 Strutz. (TT Vol. 3 (Exs. 31-32 and 35-41), p. 41 and Ex. E, 1-2 - Map.) 25 First, they stopped at the Point After Lounge and got change for a $100 bill. They ordered two 26 (2) beers and Gilbert started to play poker when Sandra Beverly, the waitress, asked David to leave the 27 lounge because he didn’t have a shirt on. The time was approximately 10:30 p.m. (TT Vol. 3 (Exs. 31- 28 32 and 35-41), pp. 25-26 and Ex. C, pp. 17-18, #12.)

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1 They complied with Ms. Beverly's request to leave and proceeded to the 7-Eleven. Before 2 entering the store, David made a phone call to Gloria Olivares to see if she would meet him at the pool 3 area because David had a restraining order against him and they had been meeting there every night for 4 the past week. (TT Vol. 3 (Exs. 31-32 and 35-41), p. 36, Ex. C, p. 13, #3, p .15, #6, Ex. D, p. 2 and Ex. 5 V.) 6 Upon entering the7-Eleven, David got change from Fawn Weeks, the cashier, for the video poker 7 machines and began playing, along with Gilbert, for approximately forty-five (45) minutes. (TT Vol. 8 3 (Exs. 31-32 and 35-41), pp. 58 and 60, Ex. C, p. 17, #10-11 and Ex. D, pp. 2 and 6.) 9 David went to the cashier, purchased a twelve (12) pack of beer, and proceeded back to the poker 10 machines where David and Gilbert started drinking while continuing to play the machines. 11 At this time, David and Gilbert were approached by two (2) unknown Hispanic males, that lead 12 into a verbal confrontation. (Ex. C, p. 14, #5 and p.21 and Ex. Q.) 13 After a few minutes, Ethan Weeks, Fawn Weeks’ brother, who is also an employee at the 7- 14 Eleven, arrived at work at approximately 10:30 p.m. (TT Vol. 3 (Exs. 31-32 and 35-41), p. 42, lines 15 6-12 (10:40 p.m.), Ex. C, p. 21 and Ex. Q.) 16 Ethan Weeks conversed with his sister and overhearing the altercation between Gilbert, David 17 and the two unknown Hispanic males, Ms. Weeks asked David and Gilbert to leave the premises because 18 they were violating an ordinance of drinking alcoholic beverages inside the convenience store. (TT Vol. 19 3 (Exs. 31-32 and 35-41), p. 42, lines 1-25 and p. 43, line 1 and TT Vol. 3 (Exs. 31-32 and 35-41), p. 20 56, lines 3-4.) 21 After exiting the store Gilbert and David got into a verbal confrontation with a light skinned bald 22 headed Hispanic male with a gray strap t-shirt that lead to a physical altercation. As the unknown 23 Hispanic male entered a red colored Saturn vehicle, that was parked directly outside the front door in 24 the parking lot of the 7-Eleven, David hit him in the face through the open window. (PPT Vol. 3 (Exs. 25 47, 49-50 and 54-55), p. 112.) 26 The driver of the vehicle then circled the 7-Eleven and returned to run over Gilbert with his 27 vehicle throwing him approximately ten (10) to twenty-five (25) feet, into a gas pump. (Ex. C, p. 15, 28 #5 and Ex. Q.)

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1 As the hit and run driver was exiting the premises, David threw a beer bottle at the vehicle, 2 shattering the side window. (Ex. C, p. 14, #5 and Ex. Q.) 3 The vehicle then turned south on Pecos and entered the left turn lane. After hesitating at the stop 4 light at the intersection of North Pecos and Washington, the vehicle proceeded east on Washington, out 5 of view. (Ex. E, p. 1-2, Ex. C, p. 15, #5 and p. 21 and Ex. E-2.) 6 David ran across Pecos to see where the vehicle was headed and the vehicle was nowhere in 7 sight. 8 Gilbert was limping across Pecos and David went to help him across the street. As they got to 9 the bus stop, they entered an alley walkway, which is a shortcut to Strutz and their residence at 3505 10 Strutz. (PPT Vol. 3 (Exs. 47, 49-50 and 54-55), p. 121, lines 14-15 and Ex. E, 1-2.) 11 They took this pathway due to the incident and because they didn't want to be pulled over while 12 walking because Gilbert had an outstanding federal warrant for his arrest for a parole violation. (Ex. E, 13 1-3 and Ex. D, p. 2, ¶ 8.) 14 Upon arrival at the house, David and Gilbert were in the kitchen talking about what had 15 happened to Gilbert. Annette O’Neal Aguilar came out of the bedroom at that time and David, as 16 planed, proceeded to go meet Gloria Olivares, who resides at 840 Mantis Way #2. David never saw 17 Gilbert or Annette again until after arrest. 18 After leaving Gilbert at his residence with his wife (PPT Vol. 3 (Exs. 47, 49-50 and 54-55), p. 19 121, lines 14-15), David proceeded south on Pecos, headed to meet Gloria Olivares. David passed 20 Washington into the field, which is located diagonally across the street from the 7-Eleven and is 21 diagonally in a straight line to Gloria's apartment, through the field. (PPT Vol. 3 (Exs. 47, 49-50 and 22 54-55), p. 106 and Ex. E and E-2.) 23 As David entered the field he noticed it was extremely quiet. As he was walking, he heard 24 someone say “Ready, Ready" and then a bunch of gunfire erupted. (PPT Vol. 3 (Exs. 47, 49-50 and 54- 25 55), p. 106.) 26 David then ran to Gloria's apartment. He knocked on the door and Gloria, her daughter Cathy 27 Trinidad and niece Crystal, all came out and they proceeded to the pool area. They all could still hear 28 gunfire and then they heard a car alarm. (PPT Vol. 3 (Exs. 47, 49-50 and 54-55), p. 110 and Ex. V.)

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1 They all climbed the pool fence because Gloria had left the pool key in her apartment and left 2 her apartment door unlocked. It was quiet for about five (5) minutes and then the gunfire erupted again 3 and they heard sirens blaring. (PPT Vol. 3 (Exs. 47, 49-50 and 54-55), pp. 108-109, Ex. B, p. 2, Ex. C, 4 p. 13, #2, p. 19 and p. 20, #16, Ex. D, p. 2 and Ex. V.) 5 So they all got out of the pool and started walking around; however, police were blocking off the 6 alleged crime scene, so David, Gloria, Cathy and Crystal stood by the pool area. The police arrived and 7 interviewed all of them and later interviewed Elias Gregorio. (PPT Vol. 3 (Exs. 47, 49-50 and 54-55), 8 pp. 109 and 114, Ex. C, p. 15, #6 and p. 20, #16 and Ex. V.) 9 Officer Emry #3758 and Officer Dwiggins #4977 observed these subjects on the south side of 10 824 Mantis Way, standing on the sidewalk. Officer Emry recognized David from a prior altercation and 11 advised Officer Dwiggins to search and arrest him. (PPT Vol. 3 (Exs. 47, 49-50 and 54-55), pp. 113- 12 114.) 13 b. Statement of Facts: 14 Petitioner, David Aguilar (“David”), was arrested on August 7, 1996, in the 800 block 15 of Mantis Way, Las Vegas, Nevada, Clark County and charged with Murder With the Use of a Deadly 16 Weapon in violation of Nevada Revised Statute (“NRS”) 200.030(1). 17 On August 16, 1996, a Criminal Complaint was issued by the Justice Court, Las Vegas 18 Township, Clark County, Nevada charging Conspiracy to Commit Murder (Count 1), Murder With the 19 Use of a Deadly Weapon (Open Murder) (Count 2), Attempted Murder With the Use of a Deadly 20 Weapon (Count 3) and Possession of a Firearm by an Ex-Felon (Count 4). 21 On August 19, 1996, David, was rebooked at the jail, being charged with Conspiracy to Commit 22 Murder. 23 On August 29, 1996, David appeared in the Justice Court, Las Vegas Township, Clark County, 24 Nevada where all the charges were dismissed. David had been held in jail twenty-one (21) days without 25 seeing a magistrate. 26 On August 30, 1996, a Grand Jury Indictment was issued, charging David, in the District Court, 27 Clark County, Nevada with Conspiracy to Commit Murder (Count 1), Murder With the Use of a Deadly 28 Weapon (Open Murder) (Count 2), Attempted Murder With the Use of a Deadly Weapon (Count 3),

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1 Possession of a Firearm by an Ex-Felon (Count 4), Discharging Firearm At or Into Structure (Counts 2 5-6), Discharging Firearm At or Into Vehicle (Counts 7 and 9) and Assault With the Use of a Deadly 3 Weapon (Count 8). 4 On August 30, 1996, David was charged by way of Grand Jury Indictment, Grand Jury Case No. 5 966jo63AB and with Case No. C138024. The case was assigned to Department IV in the Eighth Judicial 6 District Court. 7 On August 30, 1996, David was re-booked at the jail on Conspiracy to Commit Murder (Count 8 1), Murder With the Use of a Deadly Weapon (Count 2), Attempted Murder With the Use of a Deadly 9 Weapon (Count 3), Discharging Firearm At or Into Structure (Counts 5-6) and Discharging Firearm At 10 or Into Vehicle (Counts 7 and 9). 11 The public defenders’ office failed to bring this charging procedure to the attention of the court 12 in a timely and proper manner, prejudicing David. 13 The initial arraignment was set for September 4, 1996, in Department V, visiting judge, James 14 Brennan presiding. The matter was continued to September 11, 1996. David was represented by David 15 T. Wall of the public defenders office. 16 On September 11, 1996, David was arraigned and plead not guilty. He also invoked the sixty 17 (60) day rule. David was represented by Ralph R. Hillman of the public defenders office. Mr. Hillman 18 advised the Court that due to security at the jail, he was not able to confer with David and the Court 19 stated that it had no control over matter. Calendar call was set for October 18, 1996 and jury trial set 20 for October 21, 1996. 21 On September 13, 1996, while Mr. Hillman was not present, Mr. Wolfbrandt brought this matter 22 to the Court’s attention and was directed to prepare an Order for the Court’s signature. Also at this 23 hearing, David advised the Court that he wanted a fast and speedy trial. 24 On September 25, 1996, Mr. Hillman advised the Court that he had spoken to David at length 25 on Friday regarding their inability to be prepared for trial and that he was now willing to waive. 26 However, the Court queried David and he again informed the Court that he wanted a speedy trial. 27 Mr. Hillman failed to file a proper motion to sever the case and to sever Count 4, Possession of 28 a Firearm by an Ex-Felon, to preclude the introduction of prior bad acts to the jury, at the request of

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1 David. 2 David requested to see the evidence in the instant case and requested that Mr. Hillman give him 3 his discovery. Mr. Hillman advised David that he would take care of these matters for him and would 4 get his discovery for him later. 5 Upon David’s arrival at the jail, he was greeted by local Channel 8 News spokeswoman Vickie 6 Bunsey, along with the Channel 3 and Channel 13 News teams, at which time Vickie Bunsey stated to 7 him, "you’re not a bald headed white male and your surely not six feet tall". 8 The tainted identification and suggestive identification procedures were brought to the attention 9 of Mr. Hillman, all to no avail. (Initial conference with counsel on September 23, 1996.) 10 On October 11, 1996, Mr. Hillman, without David’s knowledge or consent, addressed the Court 11 and stated that he had filed a writ on David’s behalf which would waive the sixty (60) day rule. The 12 Court summarized the problem of the defense in proceeding with the speedy trial, stating its findings and 13 ordered the trial date vacated and reset for February 18, 1997, denying David the right to a fast and 14 speedy trial. Judge Carl J. Christensen presided. Mr. Hillman shows his advocacy to the prosecution 15 and the State by forcing David to forfeit his constitutional right to a fast and speedy trial in an arbitrary 16 manner. 17 On October 18, 1996, the time set for motions, the District Attorney’s Office had no deputies 18 available to argue motions. The matter was continued to October 28, 1996. Mr. Hillman failed to file 19 any pertinent pre-trial motions on behalf of David. Only one (1) pending Motion for Writ of Habeas 20 Corpus was taken under advisement by Judge Brennan at the continued hearing on October 28, 1996. 21 On January 14, 1997, Mr. Roger, representing the State, advised the Court that the Writ was 22 denied. Mr. Hillman advised that he thought it was pending The Court directed counsel to check and 23 let the Court know if the Writ was pending or not. (Mr. Hillman showing his loyal and zealous 24 representation on behalf of David.) 25 Mr. Hillman failed to file a timely motion for a competency hearing on behalf of David and failed 26 to bring this issue to the attention of the Court. (Minutes of October 15, 1997.) The Court noted that 27 no issue of competency had ever been raised. (Ex. O, preconceived actions of David Aguilar.) 28 / / /

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1 Mr. Hillman failed to develop and pursue a theory of defense on behalf of David. 2 Mr. Hillman failed to bring to the Court’s attention the tainted identification tactics and 3 suggestive identification procedures. (Ex. B, p.2, 7-Eleven, prior arrest for possession of an AK-47 rifle 4 and excessive force causing bruising on David’s shoulder.) 5 Mr. Hillman failed to bring to the attention of the Court the coerced permission to search and 6 seize evidence of alleged residence of David and Gloria Olivares located at 840 Mantis Way, #2, Las 7 Vegas, Nevada. 8 Mr. Hillman failed to file a motion to suppress the illegally obtained evidence, seized at the 9 residence of Gloria Olivares and the alleged residence of David. 10 Mr. Hillman failed to file a motion in limine to exclude the following evidence: any and all 11 inadmissible evidence, any items observed or seized and obtained, unless justified under constitutional 12 and statutory principles, extra-judicial statements made by anyone, including Gloria Olivares, other than 13 David, who will not be subject to cross-examination, whether or not the statements are the products of 14 law enforcement activity or interrogations, any evidence seized from any room or other location 15 allegedly occupied by David unless his occupying of said residence and his connection with the seized 16 items are established pursuant to the Rules of Evidence and other applicable laws and that the search of 17 said locations was accomplished pursuant to the United States and Nevada Constitutions. 18 Mr. Hillman failed to file a motion to preclude improper comments and argument by the 19 prosecution. 20 Mr. Hillman failed to file a motion in limine to preclude the introduction of prior bad acts 21 pursuant to Petrocelli v. State, 101 Nev. 46, 629 P.2d 503 (1985). 22 Mr. Hillman failed to file a motion to preclude the mention of gang membership, if any, in the 23 State's case-in-chief. 24 Mr. Hillman failed to file a motion to preclude the mention of religious beliefs or opinions. 25 Mr. Hillman failed to file a motion to suppress religious beliefs or opinions pursuant to NRS 26 50.105. 27 Mr. Hillman failed to file a motion to sever the cases. 28 Mr. Hillman failed to file a motion to suppress evidence (bullets) pursuant to NRS

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1 174.125(3)(A). 2 Mr. Hillman failed to file a motion for specific discovery and disclosure of Brady materials not 3 previously disclosed to the defense (Officer Debecker’s investigation and pictures of Officer Brown). 4 Mr. Hillman failed to file a motion to suppress scientific evidence, due to an improper procedure, 5 of a palm print on the stock of a weapon seized at the residence of Gloria Olivares (TT Vol. 3 (Exs. 31- 6 32 and 35-41), p. 13) and alleged residence of David and shotgun wadding (item #75) belonging to 7 police agencies. (Exs. F and M, a TKO cartridge used for entry purposes.) 8 Mr. Hillman failed to file a motion to suppress evidence of a 9 mm RP Luger live cartridge (item 9 #74) located at 816 Mantis Way on the west curb. (Ex. D, p. 1, Ex. F. p. 2-3, Ex. I and Ex. J.) 10 Mr. Hillman failed to file a motion to suppress the diagram (map) of the crime scene area which 11 is inaccurate and deletes a building and the validity of locations of witnesses and forensic testing. (T'I' 12 Vol. 3 (Exs. 31-32 and 35-41), pp. 84-93 and 100-101 and Ex. E, 1-2.) 13 Mr. Hillman failed to file a motion to exclude the testimony of Annette O’Neal Aguilar 14 pertaining to saving newspaper clippings of the incident and alleged crimes charged. 15 Mr. Hillman failed to file a motion to suppress the newspaper clippings of the incident and 16 alleged crimes charged. 17 Mr. Hillman failed to file a motion to suppress the knowingly false testimony and police reports 18 of Officer Chad Brown. 19 Mr. Hillman failed to make a motion to the Court to exclude the 7-Eleven video tape which was 20 removed from its evidence bag during a recess by Mr. Schwartz without the permission or knowledge 21 of the Court thereby breaking the chain of evidence. (TT Vol. 3 (Exs. 31-32 and 35-41), pp. 37-39.) 22 Mr. Hillman failed to file a motion to suppress the evidence of the photo of the black and white 23 poncho as opposed to the multi-colored poncho found by the SWAT Team and Cirrlo Jimenez. (Ex. C, 24 p. 14.) 25 Mr. Hillman failed to file a motion to suppress the coerced testimony of Annette O"Neil Aguilar. 26 Mr. Hillman failed to file a motion to suppress Joyce Brown’s identification of David Aguilar 27 (vision impaired) as suggestive tactics by the prosecution and State Agencies. 28 / / /

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1 Mr. Hillman failed to file a motion to exclude Ms. Emerson's identification of David as 2 suggestive, while under the influence of a psychotropic drug (Prozac) (Id.) (to the culpability and theory 3 of defense) (no rebuttal by Hillman and Brown). (PPT Vol. 2 (Exs. 47, 49-50 and 54-55), p. 90, lines 4 12-13 and p. 92, lines 1-3.) 5 Hillman and Brown failed to file proper pretrial motions, interview and investigate any potential 6 witnesses, including alibi witnesses, failed to investigate any scientific evidence, failed to produce 7 discovery after several requests, failed to use the compulsory process to subpoena witnesses, investigate 8 and prepare potential witnesses on behalf of David, for the trial and penalty phase, should David be 9 found guilty, and failed to rebut the contradictory verdict of the jury. 10 Hillman and Brown failed to provide competent representation to David, in accordance with the 11 Nevada Supreme Court Rules of Professional Conduct, throughout the entire proceedings. 12 Hillman and Brown failed to develop a theory of defense for David in the case at bar. David 13 alleges that Hillman and Brown failed to conduct adequate investigations and pursue the possible 14 defenses, including defective and insufficient consultation with David, and failed to present evidence 15 which was available to cast doubt on the testimony of the identifying witnesses. 16 Hillman and Brown failed to investigate any of the circumstances of the case. 17 Hillman and Brown failed to contact and interview potential alibi witnesses of whom they had 18 been made aware of. 19 Hillman and Brown and the defense investigator failed to interview and investigate Sandra 20 Beverly, an employee of the Point After Lounge, and Ethan Weeks, Fawn Weeks and Odesa (Tracy) 21 Collins, employees of the 7-Eleven, as to the time of the hit and run of Gilbert Aguilar (“Gilbert”), the 22 lapse of time between the hit and run and this incident, the distance to the location of Mark Emerson and 23 the actual time of the shooting of Mark Emerson. The entire record and testimony is devoid of this time 24 frame. Hillman and Brown also failed to subpoena Fawn Weeks. 25 Hillman and Brown and the defense investigator failed to interview or investigate Officer Phil 26 Ramos (or, Unknown Officer) as to the video tape of the two (2) suspects and the video tape taken at the 27 Point After Lounge to show the actual time placing David at the bar and the hit and run incident at the 28 7-Eleven. (TT Vol. 3 (Exs. 31-32 and 35-41), p. 40.)

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1 Hillman and Brown failed to investigate the police dispatch logs as to the time that the 911 call 2 reporting the hit and run of Gilbert was taken. 3 Hillman and Brown failed to interview and investigate Gloria Olivares and her telephone records 4 to show the time that David called Gloria from the 7-Eleven (to the theory of the defense), as to the 5 arrival time at her residence, the circumstances and also failed to call Gloria as an alibi witness. 6 Hillman and Brown failed to interview and investigate alibi witness Cathryn Patricia Trinidad 7 as to the arrival time of David at her residence, the circumstances and failed to subpoena Ms. Trinidad 8 as an alibi witness. (Ex. C, p. 13, #2.) 9 Hillman and Brown failed to interview and investigate Arlene Nelson (840 Mantis Way, #4) as 10 to hearing five (5) gunshots, the time the 911 call was made and to establish the actual arrival time of 11 David as Ms. Nelson is Gloria Olivares’ next door neighbor. (Ex. C, p. 13, #3.) 12 Hillman and Brown failed to interview and investigate Elias Gregorio (881 Mantis Way, #2) as 13 to the actual arrival time of David at the swimming pool and as to his identification of a white American 14 male with tattoos. 15 Hillman and Brown failed to interview Marla Emerson as to her identification of David and 16 present a photo of the persons in the 7-Eleven video other than the David. 17 Hillman and Brown failed to interview Cirrilo Jimenez as to the suspect wearing a multi-colored 18 dress (Voluntary Statement of Detective J. Franks #657, dated August 18, 1996, p. 3), which further 19 states watching TV at 11:00 p.m., one (1) shot heard, then three (3) more simultaneously. (TT Vol. 3 20 (Exs. 31-32 and 35-41), pp. 117-119 and 121, one (1) person not two (2), and Ex. C, p. 14, #4.) 21 Hillman and Brown failed to interview Officer Mark Dwiggins #4977, Officer Mike Franks 22 #657, Officer Stewart Emry #3578, Officer Dave Mesinar #842, Officer Brian Wise #4921 or Officer 23 D. Schofield #4977 as to possible alibi witnesses at the crime scene, in the immediate area of David at 24 the time of his arrest, as to a blood trail of an unknown suspect and as to a prior arrest. (Ex. D, p. 1-2 25 and Ex. O, p. 2.) 26 Hillman and Brown failed to interview and investigate alibi witness Terry Maldonado (3525 27 Jungle Dr.). 28 / / /

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1 Hillman and Brown failed to interview Kevin Stevens of LVMPD, the previous owner of the 2 murder weapon, and failed to subpoena him. 3 Hillman and Brown failed to interview and investigate Officer Brian Debecker #3917, the owner 4 of the weapon that took the life of Mark Emerson, and failed to call this key witness to the stand on 5 behalf of the defense until the penalty phase and failed to rebut. (PPT Vol. 4 (Exs. 47, 49-50 and 54-55), 6 p. 42, lines 23-25 and p. 43, lines 1-4 and Ex. O, p. 2, #35.) 7 Hillman and Brown failed to interview and investigate Officer Chad Brown #4973 as to the 8 validity of the case. 9 Hillman and Brown failed to interview and investigate Officer Brian Wise #4291 as to the 10 validity and credibility of Officer Brown and the color of their handguns. 11 Hillman and Brown failed to interview and investigate James Thomsen (3604 Valley Forge), 12 failed to take his deposition and to subpoena this eyewitness who did not see a suspect running, did not 13 see anyone firing at Officer Brown or an exchange of gunfire. (Voluntary Statement of Mr. Thomsen, 14 taken by Detective Franks #657, dated August 20, 1996.) Through leading questions and answers by 15 Mr. Franks, Mr. Franks changed the locations of Officer Brown, the four (4) spent shell casings and two 16 (2) buildings in this statement. Counsel obviously did not read the disclosure given to them. 17 Hillman and Brown failed to interview and investigate Officer Darren Flatin #3596 and Officer 18 K. Lindsay #3796, the first officer on the scene at the Emerson residence at 856 Mantis Way, #4. Ms. 19 Emerson gave these officers a description of two (2) suspects looking like a white American male with 20 a balding hair style, 6 ft. in height, weighing 260 lbs., with a silver weapon and spoke to her saying "who 21 is in there'' and to get herself and her kids on the floor (emphasis added), obviously for their safety. A 22 review of the entire record would suggest this first impression identification is the true identification and 23 that the suspects in the immediate case are victims of circumstance. (Ex. A, p. 1-3.) Counsel failed to 24 subpoena Officer Lindsay or obtain depositions of both Officer Lindsay and Officer Flatin. 25 Hillman and Brown failed to interview or investigate Officers Hulbert #5123, Detective Mesinar 26 #842 or Detective Bryant. (Ex. A, p. 1-3.) 27 Hillman and Brown failed to interview Officer Emry as to why Officer Brown was found in a 28 state of shock, as stated by James Tufteland, Chief Deputy District Attorney, in Respondents Answering

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1 Brief, Nevada Supreme Court Case No. 31811, p. 8, filed October 5, 1998. (8AA, p. 1463-64.) 2 Hillman and Brown failed to interview the oriental resident (unknown), eyewitness of the 3 immediate crime scene area, who spoke with Officer Emry and observed the SWAT Team members on 4 the roof tops firing their weapons and moving cars around. 5 Hillman and Brown failed to interview Officer Emry as to the flashlight (silver object) that was 6 seen by Marla Emerson, as the only reference to any officer with a flashlight in police reports and 7 investigations is to Officer Emry. 8 Hillman and Brown failed to investigate Officer Dwiggins and Officer Emry as to their 9 descriptions and possible balding hair styles (ex. C, p. 1311 and ex. D) as these officers were ordered 10 to roam the area. 11 Hillman and Brown failed to investigate any of the evidence in the instant case and failed to 12 object to the introduction of inadmissible evidence at the trial. 13 Hillman and Brown failed to investigate any of the following evidence (taking into consideration 14 that no positive results of fingerprints, DNA, powder burns, powder residue, etc. were found): 15 A) One (1) 7.62 cartridge, allegedly taken from David's pocket at the time of his arrest, 16 after he was placed in restraints. This evidence was not fingerprinted nor was any scientific testing for 17 David's DNA conducted (to the theory of defense and planting of evidence by Officer Emry). (Ex. F, 18 p. 2, devoid chlorine test.) 19 B) One (1) 9 mm cartridge, allegedly found at the feet of David upon his arrest and while 20 he was under restraints. This evidence was not fingerprinted nor was any scientific testing for Aguilar's 21 DNA conducted (to the theory of defense and planting of evidence by Officer Emry). (Ex. F, p. 2, 22 devoid chlorine test.) 23 C) One (1) 7.62 cartridge located on the floor in the middle of the living room, in plain 24 site, of Gloria Olivares’ apartment. This evidence was not fingerprinted nor was any scientific testing 25 for David's DNA conducted (to the theory of defense and planting of evidence.) (Ex. F, p. 2.) 26 D) Shotgun wadding found on the living room floor of Gloria Olivares’ apartment (to 27 corroborate Officer Brown’s inconsistent scenario of being shot at with a shotgun). (Ex. F, p. 2, Ex. C, 28 p. 18, #13, Ex. J, p. 5, Ex. M, p. 1 and 8.) The shotgun shell wads in item TS 1 (item 75) are consistent

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1 with being from a TKO frangible type of cartridge which is used for room entry purposes. (Ex. M, p. 2 8.) To the theory of the defense and to the culpability issue. Counsel failed to review the disclosure 3 made available to them by the prosecution. 4 E) An AK-475 7.62 x 39 mm rifle (Serial #BWB103491) located on the floor, in the 5 northwest closet area of Gloria Olivares’ apartment, along with the magazine, loose cartridges, a clip and 6 several 7.62 cartridges. This evidence was not fingerprinted and nor was any scientific testing for DNA 7 done. (Ex. F, p. 3 and Ex. J.) 8 Of all the evidence collected (156 bullets, 5 ammunition magazines, an ammunition clip, 9 weapons, a black tank top, gray pants, belt, wallet, plastic slippers, cellular phone, gates, powder burns, 10 two (2) ponchos), there was only one (1) alleged hand print on one (1) weapon and no fingerprints, 11 DNA, powder residue or burns or positive scientific evidence. David was never identified as a suspect 12 through police reports, witnesses, or even referred to as a suspect throughout all the proceedings and 13 trial. A review of all the evidence gathered and the disclosure by the prosecution will show that 14 something is very wrong in the instant case at bar. 15 All the above evidence was not investigated by Hillman and Brown on behalf of the defense. 16 Police agencies mishandled physical evidence, withheld exculpatory evidence, planted evidence and 17 failed to preserve highly probative evidence on behalf of the defense. Hillman and Brown were 18 ineffective in their assistance as counsel to David and he has been denied his right to competent counsel 19 in this matter and has been greatly prejudiced by their conduct, so egregious, that their representation 20 amounts to no representation at all. 21 Appellate counsel Morgan D. Harris failed to raise meritorious claims before the Nevada 22 Supreme Court, so as to establish every element of the case and issues on David's direct appeal and 23 failed to put on a zealous and loyal representation on behalf of David. 24 In view of the totality of the cumulative circumstances. sub judice, this Honorable Court should 25 vacate the judgment and sentence in this case and this matter should be remanded back to the District 26 Court for a new trial. 27 / / / 28 / / /

38 APP. 412 Case 3:12-cv-00315-LRH-VPC Document 12 Filed 12/12/12 Page 39 of 44

1 CLAIM SEVENTEEN

2 PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL WHEN HE WAS FORCED TO WEAR A STUN BELT DURING TRIAL. 3 4 Statement of Exhaustion: This claim was not raised in the proceedings below. 5 At trial Petitioner and his co-defendant were forced to wear stun belts. (Ex. 31, p. 3-8.). Trial 6 counsel objected to the use of the stun belt and made a record that the belts were “readily seen – able to 7 be seen by this jury.” Id., p. 4. The trial court failed to make any individualized findings as to the need 8 for each of the defendants to wear the belt, and instead noted only “my bailiff is in charge of security in 9 my department. It’s been his recommendation that both your clients be belted. So they are belted.” Id. 10 at 4. 11 The trial court’s decision to belt Petitioner violated Petitioner’s right to due process, to a fair trial 12 and to communicate with counsel under the Fifth, Sixth and Fourteenth Amendments to the United 13 States Constitution. The trial court made its decision based upon ex parte information presented by his 14 bailiff, failed to consider less restrictive alternatives, and failed to hold a hearing or make any factual 15 findings on the record to determine whether the stun belt was actually necessary. The restriction caused 16 by the stun belt impeded Petitioner’s ability to communicate with counsel. Additionally, where the stun 17 belt was “able to be seen by the jury,” the belt resulted in prejudice to Petitioner. Under these 18 circumstances, the trial court’s decision to force the Petitioner to wear the stun belt violated his 19 constitutional rights and his conviction must be vacated. 20 CLAIM EIGHTEEN

21 APPELLATE COUNSEL WAS INEFFECTIVE, IN VIOLATION OF AGUILAR’S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH 22 AMENDMENTS TO THE UNITED STATES CONSTITUTION. 23 Statement of Exhaustion: This claim was not raised in the proceedings below. 24 Petitioner’s conviction is invalid under the federal constitutional guarantees of due process and 25 a fair trial because he was deprived of the effective assistance of appellate counsel. U.S. Const. amends. 26 VI, XIV. The failure of Petitioner’s attorney resulted in a breach of his constitutional right to effective 27 counsel. Counsel had no tactical or strategic justification within the range of reasonable competence for 28 her failure to properly advise and represent Petitioner as further alleged in his claim. The ineffectiveness

39 APP. 413 Case 3:12-cv-00315-LRH-VPC Document 12 Filed 12/12/12 Page 40 of 44

1 of his counsel undoubtedly undermines the confidence in the validity of the direct appeal. Petitioner 2 was prejudiced by his lawyer’s performance. A reasonable likelihood exists, that but for his lawyer’s 3 deficient performance, Petitioner would have received a more favorable outcome on appeal. Petitioner 4 hereby incorporates Grounds One, Two, Three, Four and Five, as if fully set forth herein. Counsel’s 5 representation of Peititioner fell below the minimum standard of reasonably competent counsel on the 6 basis of the following interrelated factors: 7 A. Appellate counsel was ineffective when she failed to raise all issues on direct appeal under the federal constitution. 8 9 Petitioner’s rights to due process and effective representation of counsel, as guaranteed 10 by the Sixth and Fourteenth Amendments to the United States Constitution, were violated when 11 appellate counsel failed to adequately federalize and constitutionalize some of the issues raised on direct 12 appeal, thus potentially depriving him of federal review of those issues where appropriate. 13 In Issue One of the Opening Brief, appellate counsel raised an issue concerning the trial court’s 14 failure to suppress the evidence obtained from an illegal search of Petitioner’s person. (Ex. 65.) 15 Appellate counsel failed to cite any federal constitutional authority in support of this claim. Petitioner 16 was denied his right to due process and to a fair trial as guaranteed by the Fourth Amendment to the 17 United States Constitution when evidence, which was the product of an illegal search, was admitted 18 against him at trial. Petitioner was further denied his right to the effective assistance of appellate counsel 19 guaranteed by the Sixth and Fourteenth Amendments to the United States constitution when counsel 20 failed to adequately raise this issue on federal constitutional grounds. 21 In Issue Two of the Opening Brief, appellate counsel raised an issue concerning the trial court’s 22 error when it admitted irrelevant evidence of a bayonet and machete against Petitioner. (Ex. 65.) 23 Appellate counsel failed to cite any federal constitutional authority in support of this claim. Petitioner 24 was denied his right to due process and to a fair trial as guaranteed by the Fifth, Sixth and Fourteenth 25 Amendments to the United States Constitution when it admitted this irrelevant evidence over objection. 26 Petitioner was further denied his right to the effective assistance of appellate counsel guaranteed by the 27 Sixth and Fourteenth Amendments to the United States constitution when counsel failed to adequately 28 raise this issue on federal constitutional grounds.

40 APP. 414 Case 3:12-cv-00315-LRH-VPC Document 12 Filed 12/12/12 Page 41 of 44

1 In Issue Three of the Opening Brief, appellate counsel raised an issue concerning the trial court’s 2 error in admitting prior bad act evidence. (Ex. 65.) Appellate counsel failed to cite any federal 3 constitutional authority in support of this claim. Petitioner was denied his right to due process and to a 4 fair trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution 5 by the admission of improper prior bad act evidence. Petitioner was further denied his right to the 6 effective assistance of appellate counsel guaranteed by the Sixth and Fourteenth Amendments to the 7 United States constitution when counsel failed to adequately raise this issue on federal constitutional 8 grounds. 9 In Issue Four of the Opening Brief, appellate counsel raised an issue concerning the district 10 court’s failure to properly instruct the jury on the premeditated, deliberate and willful elements of first 11 degree murder. (Ex. 65.) Appellate counsel failed to cite any federal constitutional authority in support 12 of this claim. Petitioner was denied his rights to due process and to a fair trial as guaranteed by the Fifth, 13 Sixth, and Fourteenth Amendments to the United States Constitution, when the jury was not adequately 14 instructed on the elements of first degree murder and therefore did not make a determination on all 15 elements of the offense, nor did it make a reliable distinction between first and second degree murder. 16 Petitioner was further denied her right to equal protection of the laws, as guaranteed by the Fourteenth 17 Amendment to the United States Constitution when he was refused the benefit of adequate instructions 18 on this issue which was afforded to those tried both before and after him, and the effective assistance 19 of appellate counsel guaranteed by the Sixth and Fourteenth Amendments to the United States 20 constitution when counsel failed to adequately raise this issue on federal constitutional grounds. 21 B. Appellate counsel was ineffective for failing to raise meritorious issues. 22 Appellate counsel failed to raise several meritorious issues on direct appeal. Counsel’s 23 failure was not attributable to a tactical or strategical decision, but was instead based on counsel’s failure 24 to recognize the issue. Reversal of the judgment is warranted based upon counsel’s failure. 25 1. Failure to raise an issue concerning Petitioner’s ability to have the jury properly instructed on his theory of defense. 26 27 Petitioner was denied his constitutional rights to due process and a fair trial under 28 the Fifth, Sixth and Fourteenth Amendments when the trial court refused to allow his proposed jury

41 APP. 415 Case 3:12-cv-00315-LRH-VPC Document 12 Filed 12/12/12 Page 42 of 44

1 instruction on his theory of defense. Petitioner incorporates Ground One, supra, as if fully set forth 2 herein. 3 The issue of premeditation was a contested issue at trial. There was no evidence of planning 4 activity or of a prior relationship with the victim. According to the prosecution’s closing argument, this 5 crime was the offspring of a lethal combination of guns and anger. Petitioner and his co-defendant 6 argued it was reasonable to infer that this anger was not directed at the victim due to the lack of any prior 7 relationship with the victim. The victim was hit by only one bullet out of the many that were fired in 8 many directions in a short amount of time prior to the arrival of the police. 9 Because the presence or absence of premeditation was the primary issue in this trial, any 10 instruction regarding premeditation would have been pertinent. As such, under N.R.S. 175.161, it was 11 error for the Court not to provide Petitioner’s and his co-defendant’s requested instruction if it was, in 12 fact, a correct statement of the law. As there was no direct evidence of premeditation presented at the 13 guilt phase, it cannot be found beyond a reasonable doubt that this error did not effect the outcome of 14 the trial. 15 Although appellate counsel raised a number of issues on appeal, the failure of the trial court to 16 properly instruct the jury was an issue of critical importance, and counsel’s failure to raise this issue on 17 appeal cannot be considered strategic. 18 2. Failure to challenge the use of a stun belt. 19 At trial Petitioner and his co-defendant were made to wear a stun belt. (Ex. 31, 20 p. 3-8.) Trial counsel objected to the use of the stun belt and made a record that the belts were “readily 21 seen – able to be seen by this jury.” Id., p. 4. The trial court failed to make any individualized findings 22 as to the need for each of the defendants to wear the belt, and instead noted only “my bailiff is in charge 23 of security in my department. It’s been his recommendation that both your clients be belted. So they are 24 belted.” Id. at 4. 25 The trial court’s decision to belt Petitioner violated Petitioner’s right to due process, to a fair trial 26 and to communicate with counsel under the Fifth, Sixth and Fourteenth Amendments to the United 27 States Constitution. The trial court based its decision upon ex parte information presented by his bailiff, 28 failed to consider less restrictive alternatives, and failed to hold a hearing or make any factual findings

42 APP. 416 Case 3:12-cv-00315-LRH-VPC Document 12 Filed 12/12/12 Page 43 of 44

1 on the record to ascertain whether the stun belt was actually necessary. The restriction caused by the stun 2 belt impeded Petitioner’s ability to communicate with counsel. Additionally, where the stun belt was 3 “able to be seen by the jury,” the belt resulted in prejudice to Petitioner. 4 Although appellate counsel raised a number of issues on appeal, the fact that Petitioner was 5 forced to wear a stun belt “readily ... able to be seen by the jury”, was an important issue to be considered 6 on appeal. Counsel’s failure to raise this issue on appeal cannot be considered strategic. 7 III. 8 PRAYER FOR RELIEF 9 Accordingly, petitioner respectfully requests that this Court: 10 1. Issue a writ of habeas corpus to have Aguilar brought before the Court so that he may be 11 discharged from his unconstitutional confinement; 12 2. Conduct an evidentiary hearing at which proof may be offered concerning the allegations 13 in this amended petition and any defenses that may be raised by respondents; and 14 3. Grant such other and further relief as, in the interests of justice, may be appropriate. 15 DATED this 12th day of December, 2012. 16 Respectfully submitted, 17 LAW OFFICES OF THE FEDERAL PUBLIC DEFENDER 18 19 By: /s/ Megan C. Hoffman /s/ Jonathan M. Kirshbaum MEGAN C. HOFFMAN JONATHAN M. KIRSHBAUM 20 Assistant Federal Public Defender Research & Writing Specialist 21 22 23 24 25 26 27 28

43 APP. 417 Case 3:12-cv-00315-LRH-VPC Document 12 Filed 12/12/12 Page 44 of 44

1 CERTIFICATE OF SERVICE 2 The undersigned hereby certifies that he is an employee in the office of the Federal Public 3 Defender for the District of Nevada and is a person of such age and discretion as to be competent to 4 serve papers. 5 That on December 12, 2012, he served a true and accurate copy of the foregoing to the United 6 States District Court, who will e-serve the following addressee: 7 Michael Bongard 8 Deputy Attorney General 1539 Avenue F 9 Ely, Nevada 89301 10 /s/ Adam Dunn 11 Adam Dunn, An Employee of the Federal Public Defender’s Office 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

28 O:\00 NCH\cases-open\Aguilar, David\Pleadings\AP_final.wpd

44 APP. 418 An unpublis d order shall not be regarded as precedent and shall not be cited as legal authority. SCR 12 .

IN THE SUPREME COURT OF THE STATE OF NEVADA

DAYOlVIASHELL DAVID AGUILAR, No. 57356 Fl LE Q Appellant, vs. THE STATE OF NEVADA, MAY 0 9 2012 Respondent.

GILBERT DEMETRIUS AGUILAR, No. 57357 Appellant, vs. THE STATE OF NEVADA, Respondent.

ORDER OF AFFIRMANCE

These are appeals from an order of the district court denying post-conviction petitions for writs of habeas corpus. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge. Appellants claim that the district court erred in denying their ineffective assistance of trial and appellate counsel claims. To prove ineffective assistance of counsel, a petitioner must demonstrate that counsel's performance was deficient in that it fell below an objective standard of reasonableness, and resulting prejudice such that there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. Strickland v. \Vashington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 100 Nev. 430, 432-33, 683 P.2d 504, 505 (1984) (adopting the test in Strickland). To prove prejudice for ineffective assistance of appellate counsel claims, appellant must demonstrate that the omitted issue would have a reasonable probability of SUPRE:ME COURT OF NEVADA

(U) 1947A ,,_,;~ ll - l~Ld-12.. APP. 419

success on appeal. Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1114 (1996). Both components of the inquiry must be shown, Strickland, 466 UB. at 697, and the petitioner must demonstrate the underlying facts by a preponderance of the evidence, Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). Further, "(t]actical decisions [of counsel] are virtually unchallengeable absent extraordinary circumstances." Ford v. State, 105 Nev. 850, 853, 784 P.2d 951, 953 (1989). We give deference to the district court's factual findings regarding ineffective assistance of counsel but review the court's application of the law to those facts de novo. Laderv. Warden, 121 Nev. 682, 686, 120P.3d1164, 1166 (2005). First, appellants claim that trial counsel were ineffective for failing to investigate and present evidence that the weapon used to kill the victim belonged to a police officer and that the police officer may have fired the fatal shot. Appellants fail to demonstrate that trial counsel were deficient. Trial counsel testified at the evidentiary hearing that there was a tactical reason for not presenting this evidence: one of the appellants had prior convictions or arrests for dealing in stolen weapons. Trial counsel made a tactical decision that they did not want the jury to hear that evidence and make a connection that appellants stole the guns used in the crime. Therefore, the district court did not err in denying this claim. Second, appellants claim that trial counsel were ineffective for failing to challenge the photo line-up that was admitted at trial. Specifically, appellants claim that the photo shows appellant Gilbert in his

SUPREME COURT OF NEVADA 2 (0)1947A ~ APP. 420

jail clothing.1 Appellants fail to demonstrate that trial counsel were deficient. At the evidentiary hearing, trial counsel testified that they did not believe they had any grounds to challenge the photo line-up because while, to a person familiar with jail clothing, the picture did show appellant Gilbert in his jail clothing, a person unfamiliar with jail clothing would have thought he was wearing a t-shirt. Trial counsel is not required to make futile objections. Donovan v. State, 94 Nev. 671, 584 P.2d 708 (1978). Further, to the extent that appellants claim that appellate counsel were ineffective for failing to raise the admissibility of the photo line-up on appeal, appellants fail, for the reasons stated above, to demonstrate that this claim had a reasonable probability of success on appeal. Therefore, the district court did not err in denying these claims. Third, appellants claim that trial counsel were ineffective for failing to file a motion to suppress the search of David's girlfriend's apartment. Appellants fail to demonstrate that trial counsel were deficient because they failed to demonstrate that they had standing to challenge the search. The apartment belonged to David's girlfriend and there was a restraining order preventing him from entering the premises. Thus, they did not demonstrate that they had a protected privacy interest in the apartment. Rakas v. Illinois, 439 U.S. 128, 130-31 n.1 (1978) ("The

1To the extent that appellant claims that trial counsel should have filed a pretrial motion to suppress the photo line-up because the officers may have prompted the eye witnesses, appellant failed to demonstrate that this claim had merit. Appellants failed to provide this court with a copy of the trial transcripts. The burden is on appellants to provide an adequate record enabling this court to review assignments of error. See Thomas v. State, 120 Nev. 37, 43 n.4, 83 P.3d 818, 822 n.4 (2004); see also Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980); Jacobs v. State, 91 Nev. 155, 158, 532 P.2d 1034, 1036 (1975).

SUPREME COURT OF NEVADA 3 (Oj1947A ~ APP. 421

proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search."); Katz v. United States, 389 U.S. 347, 352 (1967) (recognizing that the Fourth Amendment requires an inquiry into whether the person claiming the protection was entitled to assume privacy at the place and under the circumstances concerned); see also State v. Taylor, 114 Nev. 1071, 1077, 968 P.2d 315, 320 (1998) (recognizing that one must have an objective and subjective expectation of privacy in the place to be searched). Further, to the extent that appellants claim that appellate counsel should have argued that the search should have been suppressed, appellants fail to demonstrate that this claim had a reasonable probability of success on appeal. Therefore, the district court did not err in denying these claims. Fourth, appellants claim that trial counsel were ineffective for failing to prevent the admission of evidence that appellant Gilbert had a prior felony conviction. Specifically, appellant Gilbert was also charged with felon in possession of a firearm, and this charge was read to the jury. Appellants fail to demonstrate that trial counsel were deficient. This case was tried prior to this court's decision in Brown v. State, which requires that a felon-in-possession count be bifurcated into a separate trial. 114 Nev. 1118, 1126, 967 P.2d 1126, 1131 (1998). At the evidentiary hearing, trial counsel testified that they did in fact attempt to prevent the admission that appellant Gilbert had a prior felony conviction. This was unsuccessful.2 Further, appellants fail to demonstrate that they were prejudiced by appellate counsels' failure to raise this claim on appeal.

2Trial counsel did keep the nature of the previous conviction from being introduced a trial by stipulating that Gilbert was a felon.

SUPREME COURT OF NEVADA 4 (0)!947A ~ APP. 422

First, appellants failed to provide this court with a copy of the trial transcripts. The burden is on appellants to provide an adequate record enabling this court to review assignments of error. See Thomas, 120 Nev. at 43 n.4, 83 P.3d at 822 n.4; see also Greene, 96 Nev. at 558, 612 P.2d at 688; Jacobs, 91 Nev. at 158, 532 P.2d at 1036. Second, appellants fail to demonstrate that this claim had a reasonable probability success on appeal because the error was harmless. Brown, 114 Nev. at 1126, 967 P.2d at 1131. On direct appeal, this court determined that there was overwhelming evidence of appellants' guilt. Aguilar v. State, Docket Nos. 31595 and 31811 (Order Dismissing Appeals, December 20, 1999). Therefore, the district court did not err in denying these claims. Fifth, appellants claim that counsel were ineffective for failing to prevent a witness, appellant Gilbert's girlfriend, from testifying at trial. Specifically, appellants claim that the girlfriend was coerced and that her testimony should have been inadmissible based on marital privilege. Appellants fail to demonstrate that trial counsel were deficient. First, appellants fail to present any evidence that the girlfriend was coerced into testifying. Second, the marital privilege does not apply to girlfriends.a NRS 49.295. Further, trial counsel testified at the evidentiary hearing that they argued against allowing this witness to testify to the point that the district court threatened to hold them in contempt. Finally, to the extent that appellants claim that appellate counsel should have argued that the district court erred in allowing the girlfriend to testify, appellants

3To the extent that appellant Gilbert appears to claim that he and his girlfriend were in a common-law marriage relationship, NRS 49.295 still would not apply. Nevada does not recognize common-law marriages. NRS 122.010.

SUPREME COURT OF NEVADA 5 (0) 1947A ~ APP. 423

fail to demonstrate that this claim had a reasonable probability of success on appeal. Therefore, the district court did not err in denying these claims. Sixth, appellants claim that counsel were ineffective for failing to prevent the video from 7-11 from being admitted at trial. Specifically, they claim that trial counsel failed to question the authenticity of the tape's time stamp or the editing techniques. Further, trial counsel never filed a motion to suppress the videotape. Appellants fail to demonstrate that trial counsel were deficient. Appellants fail to demonstrate that there was reason to question the authenticity of the time stamp or editing techniques. Further, appellants fail to demonstrate that a motion to suppress would have been successful. Finally, to the extent that appellants claim that appellate counsel should have argued that the videotape should not have been admitted, appellants fail to demonstrate that this claim had a reasonable probability of success on appeal. Therefore, the district court did not err in denying these claims. Seventh, appellants claim that counsel were ineffective for failing to prevent the admission of forensics regarding the gun that was found in appellant's girlfriend's apartment. Appellants claim that the fact that one of the guns had appellant David's palm print on it was irrelevant evidence because it could not be shown that the gun was the murder weapon. This claim lacks merit. This evidence was highly probative because shells found at the scene matched the guns found in the girlfriend's apartment.4 Further, to the extent that appellants claim that

4The victim was killed by a shot that went completely through his body. The bullet was never recovered.

SUPREME COURT OF NEVADA 6 (0)1947A ~ APP. 424

appellate counsel should have argued that the forensics evidence should not have been admitted, appellants fail to demonstrate that this claim had a reasonable probability of success on appeal. Therefore, the district court did not err in denying these claims. Eighth, appellants claim that trial counsel were ineffective for failing to investigate another defense.5 Specifically, appellants claim trial counsel should have attempted to identify a man who was at the 7-11 and may have met the description of the shooter. Appellants fail to demonstrate that trial counsel were deficient. Trial counsel testified that they did not pursue this theory because it was impossible to identify who this man was. Further, trial counsel testified at the evidentiary hearing that the witness who gave the description of the shooter identified appellant Gilbert as the shooter in court. Therefore, the district court did not err in denying this claim. Finally, to the extent that appellants attempt to incorporate by reference other ineffective-assistance-of-counsel claims that were raised in the petition below, this is not permissible under this court's rules, NRAP 28(e)(2), and they failed to present any cogent argument on appeal regarding these claims.6 See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). Therefore, we decline to address these claims. NRAP 28(e)(2).

5To the extent that appellants claim that trial counsel were ineffective for failing to investigate whether the weapon had belonged to a police officer, this claim was discussed and rejected above.

6We note that appellants did not provide this court with a copy of the petition that they were attempting to incorporate.

SUPREME COURT OF NEVADA 7 (0)1947A ~ APP. 425

Having considered appellants' claims and concluded that no relief is warranted, we ORDER the judgment of the district court AFFIRMED.

J.

J.

J.

cc: Hon. Jennifer P. Togliatti, Chief District Judge Justice Law Center Kristina M. Wildevald Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME CoURT OF NEVADA 8 (0)1947A ~ APP. 426 APP. 427