Petition for Writ of Certiorari — Dayomashell David Aguilar, Petitioner v. William Gittere, Warden, et al.

No. ____________

October Term, 2018

In the

Supreme Court of the United States

Dayomashell David Aguilar,

Petitioner,

v.

Warden Timothy Filson, et al.

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

Petition for Writ of Certiorari

Rene Valladares

Federal Public Defender,

District of Nevada

*JONATHAN M. KIRSHBAUM

Assistant Federal Public Defenders

411 E. Bonneville Ave., Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

Jonathan_Kirshbaum@fd.org

*Counsel for Aguilar

QUESTIONS PRESENTED

1. Whether the Ninth Circuit erred in denying a certificate of

appealability on Aguilar’s claim that the jury instructions relieved the

State of the burden to prove the relevant mens rea element for aiding

and abetting and conspiracy to commit first-degree murder beyond a

reasonable doubt and Aguilar could overcome any procedural bar due

to a miscarriage of justice?

2. Whether the Ninth Circuit erred in denying a certificate of

appealability on Aguilar’s claims that he received the ineffective

assistance of counsel?

i

LIST OF PARTIES

The only parties to this proceeding are those listed in the caption.

ii

TABLE OF CONTENTS

Questions Presented ....................................................................................................... i

List of Parties ................................................................................................................. ii

Table of Authorities ...................................................................................................... iii

Petition for Writ of Certiorari ....................................................................................... 1

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Statement of the Case ................................................................................................... 2

Reasons for Granting the Petition ................................................................................ 4

I.

The Ninth Circuit erred in denying a certificate of appealability on

Aguilar’s claim that the jury instructions relieved the State of the burden

to prove the relevant mens rea element for aiding and abetting and

conspiracy to commit first-degree murder beyond a reasonable doubt and

Aguilar could overcome any procedural bar due to a miscarriage of justice .... 6

II.

The Ninth Circuit erred in denying a certificate of appealability on

Aguilar’s claims that he received the ineffective assistance of counsel .......... 13

A.

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 ........... 13

B.

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 .............. 18

Conclusion .................................................................................................................... 25

Certificate of Service.................................................................................................... 26

Index of appendix......................................................................................................... 27

iii

TABLE OF AUTHORITIES

Federal Cases

Barefoot v. Estelle, 463 U.S. 880 (1983) ...................................................................... 4

Bousley v. United States, 523 U.S. 614 (1998) .......................................................... 11

Buck v. Davis, 137 S. Ct. 759 (2017) ........................................................................... 4

Bumper v. North Carolina, 391 U.S. 543 (1968) ................................................ 18, 19

Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523

(1967) .......................................................................................................................... 19

Chambers v. Maroney, 399 U.S. 42 (1970) ................................................................ 18

Miller-El v. Cockrell, 537 U.S. 322 (2003) .................................................................. 4

Espinosa v. City and County of San Francisco, 598 F.3d 528 (9th Cir. 2010) ........ 23

In Re Winship, 397 U.S. 358 (1970) ............................................................................ 6

Kimmelman v. Morrison, 477 U.S. 365 (1986) ......................................................... 14

Kyllo v. United States, 533 U.S. 27 (2001) ................................................................ 19

McDonald v. United States, 335 U.S. 451 (1948) ..................................................... 18

McQuiggin v. Perkins, 133 S.Ct. 1924 (2013) ........................................................... 10

Minnesota v. Olson, 495 U.S. 91 (1990) .................................................................... 23

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) ...................................................... 10

Murray v. Carrier, 477 U.S. 478 (1986) .................................................................... 10

Payton v. New York, 445 U.S. 573 (1980) ........................................................... 19, 22

Porter v. McCollum, 558 U.S. 30 (2009) .............................................................. 17, 24

Sandstrom v. Montana, 442 U.S. 510 (1979) .............................................................. 6

Schlup v. Delo, 513 U.S. 298 (1995) .......................................................................... 10

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ..................................................... 19

Slack v. McDaniel, 529 U.S. 473 (2000) .................................................................. 4, 5

Strickland v. Washington, 466 U.S. 668 (1984) ........................................................ 14

U.S. v. Lanier, 636 F.3d 228 (6th Cir. 2011) ....................................................... 23, 24

United States v. Hamilton, 538 F.3d 162 (2d Cir. 2008) .......................................... 23

Welch v. United States, 136 S. Ct. 1257 (2016) ......................................................... 10

Federal Statutes

28 U.S.C. § 2253 ............................................................................................................ 4

iv

State Cases

Bolden v. State, 124 P.3d 191 (Nev. 2005) ............................................................ 6, 10

Mitchell v. State, 149 P.3d 33 (Nev. 2006) ............................................................ 6, 10

Sharma v. State, 56 P.3d 868 (Nev. 2002) ........................................................ 6, 8, 10

v

In The

Supreme Court of the United States

October Term, 2018

__________________________

Dayomashell David Aguilar,

Petitioner,

v.

Warden Timothy Filson, et al.,

Respondents.

___________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

____________________________

PETITION FOR WRIT OF CERTIORARI

Petitioner Dayomashell David Aguilar respectfully prays that a writ of

certiorari issue to review the order of the United States Court of Appeals for the Ninth

Circuit denying Aguilar’s application for a certificate of appealability. See Appendix

A.

OPINIONS BELOW

The panel decision of the United States Court of Appeals for the Ninth Circuit,

denying Aguilar’s application for a certificate of appealability, issued on December 4,

2018, is unpublished. See Appendix A.

JURISDICTION

The United States District Court for the District of Nevada had original

jurisdiction over this case, pursuant to 28 U.S.C. § 2254. The district court denied a

Certificate of Appealability. See Appendix C. The Ninth Circuit denied Aguilar’s

1

application for a certificate of appealability on December 4, 2018. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254. See also Sup. Ct. R. 13(1).

STATEMENT OF THE CASE

Aguilar was charged with the first-degree murder of Mark Emerson under

three theories: (1) he shot the victim as part of 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.

Because there were no allegations that Aguilar was the shooter, only the second two

theories applied to him.

Under Nevada law, in order for a defendant to be found guilty of the specific

intent crime of first-degree murder as an aider and abettor or a co-conspirator, it

must be shown that the defendant possessed the specific intent to commit a firstdegree murder. The jury instructions for aiding and abetting and conspiracy in

Aguilar’s case did not include this necessary specific intent element.

This was critically important. The evidence at trial did not establish that

Aguilar harbored the specific intent to kill the victim. To the contrary, the evidence

showed that Aguilar was not anywhere near the shooting and was actually running

away from the scene when it occurred.

Prior to trial, counsel had been provided evidence that a gun involved in the

shooting actually belonged to a police officer. Counsel conducted no investigation into

this issue.

Counsel also failed to challenge the warrantless search of Aguilar’s

residence, during which the police recovered firearm evidence alleged to be connected

2

to the incident.

In his federal petition, Aguilar argued that (1) the jury instructions defining

aiding and abetting and conspiracy relieved the State of the burden to prove every

element of the crime; and (2) ineffective assistance of counsel based upon his

attorney’s failure to investigate the origin of the firearm and his attorney’s failure to

challenge the warrantless search of Aguilar’s residence. See Appendix E.

The district court concluded that the jury instruction issues were untimely and

procedurally defaulted and Aguilar could not overcome those defaults based on actual

innocence. See Appendix D. The court rejected the ineffective assistance of counsel

claims on the merits. See Appendix C. The court denied a certificate of appealability

on all grounds. Id.

Aguilar sought a certificate of appealability from the Ninth Circuit on these

issues. See Appendix B. In an unpublished order, the Ninth Circuit denied the

application. See Appendix A.

3

REASONS FOR GRANTING THE PETITION

In Slack v. McDaniel this Court had occasion to construe the language of 28

U.S.C. § 2253 through a post-AEDPA lens and concluded that Congress intended to

employ the same test that was used in Barefoot v. Estelle, 463 U.S. 880 (1983). 529

U.S. 473, 483-84 (2000).

The Slack court concluded to obtain a certificate of

appealability (“COA”) under § 2253(c), a habeas prisoner must make “a substantial

showing of the denial of a constitutional right,” which was equivalent to “showing

that reasonable jurists could debate” whether the petition “should have been resolved

in a different manner” or that the issues presented were “adequate to deserve

encouragement to proceed further.” Id. (internal citation omitted).

Several years later the Court, in Miller-El v. Cockrell, 537 U.S. 322 (2003),

provided additional guidance to the lower federal courts concerning the proper

standards to be applied when reviewing a COA application. A petitioner does not

need to show “the appeal will succeed.” Id. at 338. Nor should a court decline a COA

“merely because it believes the applicant will not demonstrate an entitlement to

relief.” Id. The Court emphasized, “It is consistent with § 2253 that a COA will issue

in some instances where there is no certainty of ultimate relief.” Id. At the COA

stage, a court of appeals should “limit its examination to a threshold inquiry into the

underlying merits of the claims” and ask only if the District Court decision was

debatable. Id. at 327; accord Buck v. Davis, 137 S. Ct. 759, 774 (2017).

When a petitioner seeks a certificate of appealability on a procedural ground,

the request should be granted if the petitioner shows that jurists of reason would find

4

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).

This Court’s precedent establishes a COA request does not require the

applicant to demonstrate a winning case. In fact, the bar is set much lower than that.

A petitioner need only present good reasons for allowing him to continue his challenge

to an appellate court.

Aguilar easily meets this standard. He stated a valid claim for a denial of his

constitutional rights as a result of the improper jury instructions.

Further,

reasonable jurists could debate whether he could establish actual innocence to

overcome the procedural hurdles. Further, reasonable jurists could debate whether

his counsel was ineffective for failing to investigate the origin of the firearm and to

challenge the search of his residence. This Court should grant the petition, vacate

the order denying a COA, and remand to the Court of Appeals with an order to grant

a COA.

5

I.

The Ninth Circuit erred in denying a certificate of appealability on

Aguilar’s claim that the jury instructions relieved the State of the

burden to prove the relevant mens rea element for aiding and abetting

and conspiracy to commit first-degree murder beyond a reasonable

doubt and Aguilar could overcome any procedural bar 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.

In Nevada, 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. State, 56 P.3d 868

(Nev. 2002); see also Mitchell v. State, 149 P.3d 33, 38 (Nev. 2006) (holding Sharma

applies retroactively). Similarly, a defendant 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). Just as with 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.

6

Because Aguilar was not the actual shooter, the only two theories of firstdegree murder available to the State were aiding and abetting and conspiracy.

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.

As for aiding and abetting, there were four relevant instructions.

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.” Instruction 10 defined aiding and abetting as “help, assist or

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

Finally, 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.”

7

Aguilar’s attorney specifically objected to Instruction 12.

The trial court

acknowledged that the “sticking point were the words ‘reasonable foreseeable’. But I

think that is an accurate statement of the law, so I’ll give it.”

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.”

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. However,

the indictment 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.

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.” 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.”

8

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.”

Jury instruction 8 stated, “Where several parties join together in a common

design to commit any unlawful act, each is criminally 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).

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 the underlying crimes. To the contrary, they

specifically allowed a conviction without a showing that Aguilar himself harbored the

specific intent to murder the victim.

The prosecutor took advantage of these instructions. He argued to the jury

that Aguilar could be found guilty for murder as a co-conspirator based on whether

an action of a co-conspirator was “reasonably foreseeable.” The prosecutor argued,

“And so when two people are involved in an agreement to commit a crime, no matter

what actions are taken as long as they are reasonably foreseeable, each is - - they’re

equally responsible.” 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.” 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.”

9

Even though Sharma and Bolden were decided after Aguilar’s conviction

became final in March 2000, the instructions in Aguilar’s case still must be considered

defective. The rules in Sharma and Bolden are substantive as they narrow the

meaning of elements of a crime 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).

The district court concluded that this ground was both untimely and

procedurally defaulted. See Appendix D. However, Aguilar can overcome these

procedural hurdles based on a miscarriage of justice.

A petitioner can obtain a merits review of a procedurally defaulted or untimely

claim 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 non-harmless

constitutional error.” Schlup v. Delo, 513 U.S. 298, 316 (1995). One way a petitioner

10

can demonstrate actual innocence is to show in light of subsequent case law

narrowing the meaning of the elements of a criminal statute he did not commit the

alleged crime. Bousley v. United States, 523 U.S. 614 (1998).

Aguilar can establish actual innocence on the first-degree murder conviction

under this standard. There was no evidence to establish 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 gunshots 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.

She believed that this man continued to move to the west away from her apartment

after she first saw him. Maldonado’s testimony established that Aguilar was not

shooting towards Emerson’s apartment and was actually walking away from the

apartment.

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. She did not

see either of them moving towards the apartment. She saw lights from police cars

and, in response, began running back to her apartment at 840 Mantis Way through

11

the grassy area. While she was running, Aguilar ran past her towards the apartment

and arrived at the apartment before she did. 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.”

It was clear from the evidence at trial that the shooting of Emerson occurred

in the interval in between when O’Neal and Aguilar ran away from the grassy area

and Gilbert returning 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. A

man holding a rifle was standing behind her husband. She identified Gilbert as this

man. Emerson ran back inside and the police arrived on foot soon afterwards.

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. 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.

Brown told the man to drop the gun and the man pointed the gun at Brown and fired.

Brown returned fire. Two bullets fired from Brown’s gun were recovered inside a wall

to the east of the patio door of Emerson’s apartment. The man ran north down Mantis

into an apartment at 840 Matis. Brown later identified Gilbert as this man from a

surveillance video taken from a 7-Eleven store.

12

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.

Thus, there was no evidence that Aguilar was anywhere near Emerson’s

apartment at the time that the victim 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. Under these

facts there was no evidence that Aguilar harbored the specific intent to commit a firstdegree murder of Emerson.

Accordingly, under the new standards for each of these theories, Aguilar is

actually innocent. The evidence at trial was more than sufficient to allow Aguilar to

go through the actual innocence gateway to obtain a merits review of his valid

constitutional claims.

Accordingly, reasonable jurists could debate the merits of the procedural

ground and the underlying constitutional claim was valid. The Ninth Circuit erred

in failing to grant a COA on this claim.

II.

The Ninth Circuit erred in denying a certificate of appealability on

Aguilar’s claims that he received the ineffective assistance of counsel

A.

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

13

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 defense

counsel has done some 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.

14

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. It was the prosecution’s theory at trial

that Gilbert Aguilar had been firing the B-West rifle during the incident.

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 Debecker

owned one of the weapons involved in the crime. 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.

This knowledge would have made any reasonable trial attorney dig deeper to

explore possible defenses. While counsel spoke with an investigator, he did not even

attempt to speak to Debecker about the gun ownership.

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 victim. Debecker’s possession of the rifle was not an issue

that was even raised at trial.

15

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.

Gilbert’s trial attorney even admitted that it was not often where a weapon owned by

a police officer was involved in a murder.

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 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. See Appendix E. 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 defendants had prior convictions or arrests for dealing in

stolen weapons and did not want the jury to make a connection that appellants stole

16

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 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 gun owned

by a police officer.

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

17

the crime was consistent with Aguilar’s proposed defense theory. As shown above,

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. Had counsel presented evidence that the gun involved in the shooting

actually belonged to someone else, there is a reasonable probability the outcome at

trial would have been different.

Accordingly, reasonable jurists could debate the merits of this claim. The

Ninth Circuit erred in failing to grant a COA.

B.

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 search warrant 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

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,

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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). This 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

residence. In a search of the apartment of Aguilar’s girlfriend, Gloria Olivares, the

police recovered two guns. This was the 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.

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. The officers’ suspicions were

aroused since Aguilar’s clothes were wet, he had a bruise on his shoulder, and he

appeared nervous. They separated Olivares and Aguilar and spoke to them

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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.”

Olivares “wavered back and forth several times.” On two separate occasions,

Dwiggins filled out consent to search cards for Olivares to sign, but she refused to

sign them. Each time, Dwiggins ripped up the card. Aguilar became agitated and

began fighting with the officers. Officers placed Aguilar in a “position of

disadvantage,” angering Olivares. She began crying out that the police were beating

Aguilar, so Dwiggins removed her from the scene.

In response, Dwiggins took Olivares to his command post so that she could not

see what was happening with Aguilar. 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. A copy of the card was

admitted into evidence. Despite obtaining consent, a SWAT team of officers forcibly

entered the apartment. 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.

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. The apartment was right across a walkway from 840 Mantis apartment

2. She said that Olivares, Aguilar, and Arlene Nelson lived in the apartment. She

would see Aguilar working on his car outside the apartment and estimated that she

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saw him every day to every other day.

Annette O’Neal was married to Gilbert. She said that, at some point prior to

August 7, 1996, she and Gilbert moved into the apartment, and identified Aguilar as

one of the residents.

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. However, Hillman did not

file the motion based on his belief that there was a lack of standing to litigate the

issue. He did not do any investigation into whether Aguilar lived at the apartment.

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 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.

Further, there is reason to believe that the search occurred before the officers

obtained the consent. The evidence shows that the officers forced their way into the

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apartment, breaking down the door and throwing tear gas through a closed window.

If they had consent to search, neither of those steps would have been necessary.

This warrantless, forced entry was far from reasonable, and this type of

reckless police behavior offends the very core of what the Fourth Amendment is

designed to protect. Payton, 445 U.S. at 585 (forced physical entries of the home are

the “chief evil” targeted by Fourth Amendment).

The trial evidence clearly raised

questions about the validity of the search. Under these circumstances, Aguilar’s

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. 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.

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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. 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 Fourth Amendment. Minnesota v. Olson, 495

U.S. 91, 99 (1990). This Court has 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,

even “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).

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

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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 a privacy right exists is a factual inquiry.

There was 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 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.

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

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

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Accordingly, reasonable jurists could debate the merits of this claim. The

Ninth Circuit erred in failing to grant a COA.

CONCLUSION

The petition for a writ of certiorari should be granted, the order denying a COA

should be vacated, and the case remanded to the Court of Appeals with an order to

grant a COA.

Dated March 4, 2019.

Respectfully submitted,

Rene L. Valladares

Federal Public Defender

/s/ Jonathan M. Kirshbaum

JONATHAN M. KIRSHBAUM

Assistant Federal Public Defender

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