1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Gilbert Gonzales Olivas, 

Petitioner, 

v. 

Attorney General of the State of Arizona, et 

al., 

Respondents.

No. CV-16-00061-TUC-RM

ORDER 

On January 20, 2016, Petitioner Gilbert Gonzales Olivas, who is confined in the 

Arizona State Prison Complex-Lewis, filed a pro se Petition for Writ of Habeas Corpus 

pursuant to 28 U.S.C. § 2254. (Doc. 1.) Respondents filed an Answer on July 11, 2016, 

and Petitioner filed a Reply on August 11, 2016. (Docs. 16, 23.) On July 9, 2018, 

Magistrate Judge Bernardo P. Velasco issued a Report and Recommendation, 

recommending that Grounds One through Four be denied, that Ground Five be partially 

denied, and that an evidentiary hearing be held on the remaining part of Ground Five. 

(Doc. 35.) On July 23, 2018, Respondents filed Objections to the Report and 

Recommendation. (Doc. 36.) On August 6, 2018, Petitioner responded to Respondents’ 

Objections and filed his own untimely Objections. (Doc. 37.) Respondents responded to 

Petitioner’s Objections on August 15, 2018. (Doc. 38.) 

I. Factual and Procedural Background 

 A. The Offense 

 Following a jury trial, Petitioner was convicted of two counts of aggravated 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

assault with a deadly weapon, theft of a means of transportation, armed robbery, and 

aggravated robbery. (Doc. 16-1 at 3.)1

 He was sentenced to a combination of concurrent 

and consecutive sentences totaling 35 years.2

 (Doc. 34-2 at 14, 16–17.) The presentence 

report summarizes the offense as follows: 

On July 14, 2010 at 1:03 a.m. a large number of Tucson Police Department 

(TPD) officers arrived at a park located in the 200 block of East Irvington 

Road to investigate an attempted carjacking. Mr. Jose Carmago [sic] and 

his girlfriend Ismar [sic] Aguayo, the victims, told them that three 

individuals had taken their car, one armed with a handgun. The couple had 

been sitting the [sic] park when they were approached by the suspects who 

stopped to talk to them. One, later identified as defendant Peter Flores, 

pulled out a handgun and pointed it at Mr. Carmargo [sic]. Entering the 

stolen vehicle, the three men left the area. 

Using information supplied by the victims, other TPD officers located the 

abandoned vehicle nearby. A canine unit was brought to the scene and two 

suspects, Flores and defendant Gilbert Olivas, were located hiding outside a 

laundry room in the 4800 block of South Cherry Avenue. The third person 

was never identified. Transported to the scene, Ms. Aguayo identified both 

men, but Mr. Carmago [sic] could not make a positive identification. The 

officers also found a handgun in the front yard of a nearby house. 

(Doc. 16-1 at 7.) The TPD interviewed Mr. Camargo on the night of the incident. (Doc. 

1-4 at 5–13.) Mr. Camargo reported that he and Ms. Aguayo were sitting in the park 

when three individuals approached. (Id. at 5.) According to Mr. Camargo, a darkcomplexioned male pulled out a handgun, pointed it at Mr. Camargo, and demanded Mr. 

Camargo’s vehicle, while a second, light-complexioned male stood immediately behind 

the gunman. (Id. at 7–10.) Mr. Camargo stated he ran away to a nearby house (leaving 

Ms. Aguayo) and called 911. (Id. at 10.) The transcript of that call shows that Mr. 

Camargo told the operator he had been pulled out of his car at gunpoint. (Doc. 1-5 at 2.) 

 Mr. Camargo eventually passed the phone to Ms. Aguayo, whom he saw walking 

down the street a short while later. (Id. at 5–6.) Ms. Aguayo told the operator that the 

 1

 All record citations refer to the page numbers generated by the Court’s electronic filing system. 2

 Respondents erroneously state, based on a miscalculation made by the Arizona Court of Appeals, that Petitioner was sentenced to a total of 43 years. The sentencing transcript shows that Petitioner was actually sentenced to 35 years. 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

individuals allowed her to retrieve personal items from the vehicle and let her go because 

the keys were inside. (Id. at 6.) During an interview with TPD later that night, Ms. 

Aguayo told officers that, just prior to Flores pulling the handgun, Petitioner told Flores, 

“just do it, just do it” and “yea, yea, yea.” (Doc. 1-4 at 16.) 

C. Appeal and Post-Conviction Proceedings 

 Petitioner timely appealed his convictions and sentences. (Doc. 16-1 at 3.) 

Petitioner chose to represent himself and waived his right to appellate counsel. (Id.) His 

direct appeal was dismissed on April 12, 2013, after he failed to timely file an opening 

brief despite being granted several extensions of time to do so. (Id.; Doc. 1-3 at 4.)3

 On September 18, 2012, prior to the dismissal of his direct appeal, Petitioner filed 

a pro se notice of post-conviction relief (“PCR”). (Doc 16-1 at 13–16.) The PCR 

proceeding was stayed pending resolution of Petitioner’s direct appeal. (Id. at 18.) 

Following the dismissal of Petitioner’s direct appeal, the PCR court appointed counsel for 

Petitioner, who filed a PCR petition on Petitioner’s behalf. (Id. at 20.) Counsel later 

withdrew upon Petitioner’s request, and on March 17, 2014, Petitioner filed a pro se 

amended PCR petition, advancing his former counsel’s arguments plus new, additional 

claims for relief. (Doc. 1-1 at 12–13; Doc. 1-5 at 9.) The PCR court summarized 

Petitioner’s claims as follows: 

With regard to his trial, he argues that the evidence was insufficient to 

convict him on several counts; that the State withheld clearly exculpatory 

evidence; that he was denied his right to be heard on a Motion to Withdraw 

Counsel; and that evidence from another case was improperly introduced in 

this case. As to his sentencing, he argues that the sentencing on Count Nine 

[aggravated robbery] was improper, because that crime was treated as a 

dangerous nature offense; that his sentences in Counts One [aggravated 

assault with a deadly weapon], Two [same], Eight [armed robbery], and 

Nine were incorrectly enhanced by two prior dangerous convictions when 

he only had one; and that the imposition of a Criminal Restitution Order 

 3

 Petitioner asserts that the extensions were granted to his counsel, not to him, and that his counsel’s requests for extensions evidenced a lack of interest in his case. 

(Doc. 1-1 at 8.) He explains that is why he elected to proceed pro se on his direct appeal. (Id.) Petitioner further asserts that he missed the filing deadline through no fault of his own, because a riot broke out the day before the deadline, and he was placed in lockdown for 30 days and had his brief confiscated. (Id. at 7.) 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

was illegal. Finally, he argues that his trial counsel was ineffective at both 

trial and sentencing and that he was denied his right to a direct appeal. 

(Doc. 16-1 at 25–26.) 

 The PCR court rejected Petitioner’s insufficiency-of-evidence claim, finding that 

Petitioner’s verbal encouragement to Flores met the definition of “accomplice” under 

Ariz. Rev. Stat. § 13-301. (Id. at 27.) The PCR court rejected Petitioner’s claim that his 

counsel was ineffective by stipulating to the admission of Mr. Camargo’s 911 call, since 

Petitioner failed to support his assertion that the 911 call contained false information and, 

even if the call were misleading, that would not establish that counsel was ineffective. 

(Id.) The PCR court also rejected Petitioner’s claim that his sentences for aggravated 

assault, armed robbery, and aggravated robbery were illegally enhanced, since 

Petitioner’s “historical dangerous felonies” stemmed from two incidents, not one; thus, 

the PCR court explained, Petitioner’s counsel was not ineffective by failing to object to 

the enhancement. (Id. at 29–30.) 

 Petitioner did obtain some relief. The PCR court ruled that since the jury did not 

find that Petitioner’s aggravated robbery conviction was “dangerous nature,” Petitioner’s 

sentence as a dangerous offender was illegal. (Id. at 28–29.) The PCR court also found 

that the trial court erred by imposing a criminal restitution order at the sentencing 

hearing. (Id. at 30.) The Court vacated the restitution order and ordered that Petitioner 

be resentenced on the aggravated robbery conviction. (Id. at 29–30.) 

 Petitioner appealed the partial denial of his PCR petition. (Id. at 3.) The Arizona 

Court of Appeals refused to address the merits of several of Petitioner’s claims of trial 

error, finding that Petitioner was precluded from raising the claims in PCR proceedings 

because he failed to raise them on appeal. (Id. at 4.) The appellate court did analyze 

Petitioner’s insufficiency-of-evidence claim, “agree[ing] with the trial court that 

sufficient evidence supported his convictions for the robberies and aggravated assaults.” 

(Id.) The appellate court also found that Petitioner’s counsel was not deficient in 

stipulating to admission of the 911 call, since Petitioner identified no legal basis for 
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

objecting to the call’s admission, nor did Petitioner explain how exclusion of the 

recording would have changed the verdict. (Id.) Petitioner sought review in the Arizona 

Supreme Court, but was denied review on September 16, 2015. (Id. at 35.) 

 At the resentencing hearing, the trial court imposed a presumptive 11.25-year term 

of imprisonment for Petitioner’s aggravated robbery conviction. (Id. at 32.) Petitioner 

appealed his new sentence, where his appointed counsel filed an Anders brief stating that 

a review of the record had revealed no arguable issue for appeal. (Id.) Finding no 

fundamental, reversible error, the Arizona Court of Appeals affirmed the sentence in a 

memorandum decision filed on March 2, 2015. (Id.) 

 On June 10, 2015, Petitioner filed a second PCR notice. (Id. at 41.) In the second 

PCR petition, Petitioner argued both that his trial and PCR counsel were ineffective. (Id.

at 21–22.) The PCR court found that Petitioner had waived his claims regarding trial 

counsel by not raising them in the first PCR proceeding. (Id. at 22.) The PCR court 

found Petitioner’s claim regarding PCR counsel meritless because Petitioner had chosen 

to proceed pro se and thus was not represented. (Id.) Petitioner was denied review in 

both the Arizona Court of Appeals and Arizona Supreme Court. (Doc. 31-1.) 

D. The § 2254 Petition 

 Petitioner filed the Petition on January 20, 2016, raising five grounds for relief. 

(Doc. 1.) In Ground One, he argues he was denied a fair trial in violation of his federal 

due process rights because no reasonable factfinder could have found him guilty of 

accomplice liability on the robbery, aggravated robbery, or aggravated assault charges. 

(Doc. 1-1 at 19.) Pointing to the transcript of TPD’s interview with Mr. Camargo, which 

was not introduced at trial, Petitioner emphasizes that Mr. Camargo did not state that 

Petitioner took any action towards either victim. (Id. at 20.) Petitioner further contends 

that Ms. Aguayo’s statement that he had encouraged Flores was inadmissible hearsay and 

should not have been admitted at trial through the interviewing TPD officer. (Id. at 22.) 

With the benefit of Mr. Camargo’s recollection and the exclusion of Ms. Aguayo’s 

statement, Petitioner argues, there would have been no evidence supporting accomplice 
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

liability, and thus no reasonable jury could have convicted him. (See id. at 22–23.) 

 In Ground Two, Petitioner argues that he was denied a fair trial in violation of his 

federal due process rights because he was convicted of accomplice liability on proof less 

than beyond a reasonable doubt. (Id. at 24.) He bases this claim on the following 

premises: because Ms. Aguayo testified she did not know she was being robbed, 

Petitioner could not have robbed her; Petitioner could not have robbed Mr. Camargo 

because the vehicle keys (not the vehicle itself) were the target of the robbery, and the 

keys were in the vehicle, not on Mr. Camargo’s person; the vehicle transferred from Mr. 

Camargo’s possession to Ms. Aguayo’s when Mr. Camargo fled, and thus Petitioner 

could not have robbed Mr. Camargo; and Petitioner could not have robbed Ms. Aguayo 

because a new “incident” began once Mr. Camargo fled, and there was no threat or use of 

force against Ms. Aguayo during the second incident. (See id. at 27–32.) Under 

Petitioner’s view of the case, no reasonable jury could have found all elements of the 

charged offenses. (Id. at 33.) 

 In Ground Three, Petitioner argues that his trial counsel rendered ineffective 

assistance by stipulating to the admission of the transcript of Mr. Camargo’s 911 call. 

(Id. at 34.) Petitioner contends the prosecution knew it could not establish that Petitioner 

took the vehicle from Mr. Camargo’s possession, since Mr. Camargo had fled, so the 

prosecution relied on Mr. Camargo’s statement to the 911 operator that he had been 

pulled out of the vehicle at gunpoint. (Id. at 34–36.) Thus, Petitioner argues, his counsel 

prejudicially acquiesced in the prosecution’s use of misleading evidence. (Id. at 37.) 

 In Ground Four, Petitioner argues that his trial counsel rendered ineffective 

assistance by failing to introduce exculpatory evidence at trial. (Id. at 37.) He contends 

that the transcript of TPD’s interview with Mr. Camargo directly refutes the 

prosecution’s theory that Petitioner “directly participated” in the robbery, because Mr. 

Camargo told TPD officers only that Flores had pulled a handgun and demanded the 

vehicle. (Id. at 38.) Conspicuously absent from Mr. Camargo’s recollection, Petitioner 

says, is any indication that Petitioner verbally encouraged Flores to commit the crime. 
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

(Id.) Petitioner argues that the transcript could have been used to impeach the officer 

who testified as to Ms. Aguayo’s hearsay statement (that Petitioner encouraged Flores), 

and since Mr. Camargo refused to cooperate at trial, there would have been no evidence 

that Petitioner “directly participated.”4

 (Id. at 38–39.) Thus, he argues, his counsel was 

prejudicially ineffective by not introducing the transcript. (Id. at 41.) 

 In Ground Five, Petitioner argues that his trial counsel rendered ineffective 

assistance by allowing Petitioner to receive illegally enhanced sentences. (Id. at 42.) 

During the pendency of the vehicle-theft case, Petitioner entered into a plea agreement in 

a separate case and pled guilty to resisting arrest. (Id.) Pursuant to the plea agreement, 

Petitioner admitted that certain prior convictions were “dangerous nature” for purposes of 

sentencing in the vehicle-theft case. (Id. at 42–43.) Those prior convictions included 

various dangerous felonies that were treated as a single conviction for sentencing 

purposes, and escape from custody, which is a non-dangerous felony. (Id. at 43–44.)5

 

Pursuant to the plea agreement, the escape conviction was treated as a second “dangerous 

nature” offense, and Petitioner’s sentence was enhanced based on two dangerous felony 

 4

 It appears that Petitioner convinced Mr. Camargo to become uncooperative. At the sentencing hearing, the prosecutor explained: 

I would ask the Court to consider in terms of weighing mitigation the efforts Mr. Olivas made in this case to suppress the testimony of Jose and Isamar. Again the Court having heard the trial, the Court knows that there 

was a very, very drastic change in the stories Jose and Isamar told by the time they got to trial. We presented extensive evidence showing that Mr. Olivas had in essence procured that testimony through his actions from jail. 

. . . . I think certainly influences the amount of mitigation, the fact that Mr. Olivas spent so much time and effort and in fact money trying to change Jose and Isamar from their stories that they had been victimized. 

(See Doc. 34-2 at 6–7.) 5

 Petitioner was convicted of armed robbery, first-degree burglary, aggravated assault, and unlawful use of transportation, stemming from an incident where he carjacked a taxi driver at gunpoint. (Doc. 1-1 at 42–43.) Five hours after the carjacking, Petitioner was arrested when officers saw him walking near the scene of the crime. (Id. at 43.) Petitioner was convicted with escape from custody after he broke free and attempted to flee. (Id. at 42–43.) For sentencing enhancement purposes, the carjacking convictions were treated as a single conviction. See Ariz. Rev. Stat. § 13-

704(J). The escape, having occurred hours later, was committed on a different 

“occasion” and thus could be counted separately. See id. In Ground Five, Petitioner 

alternatively argues that the escape should be counted with the carjacking convictions. (See Doc. 1-1 at 44–45.) This argument is meritless. (See Doc. 16-1 at 29–30.) 
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

convictions. (Id. at 45.) He argues his counsel was ineffective by allowing him to admit 

that the escape was a dangerous felony and by letting the trial court enhance his sentence 

without proof of two predicate convictions. (Id. at 45–46.) 

II. Standard of Review 

 A district judge “may accept, reject, or modify, in whole or in part, the findings or 

recommendations” made by a magistrate judge. 28 U.S.C. § 636(b)(1). The district 

judge must “make a de novo determination of those portions” of the magistrate judge’s 

“report or specified proposed findings or recommendations to which objection is made.” 

Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure 

state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there 

is no clear error on the face of the record in order to accept the recommendation” of a 

magistrate judge. Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 addition; see 

also Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (“If no objection or 

only partial objection is made, the district court judge reviews those unobjected portions 

for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286, at *1 (D. 

Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and 

Recommendation). 

Because Petitioner’s § 2254 Petition was filed after April 24, 1996, the effective 

date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this case 

is governed by AEDPA. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). 

III. Discussion6

 A. Grounds Three, Four, and Five 

 Judge Velasco recommended that Grounds Three and Four be denied in their 

entirety, and that Ground Five be denied to the extent Petitioner alleges ineffective 

assistance of counsel during sentencing for his aggravated robbery conviction. (Doc. 35 

 6

 With one exception, Respondents do not dispute that Petitioner’s claims are 

cognizable, timely, and not procedurally defaulted. (See Doc. 16 at 3; Doc. 26 at 3.) 

Respondents argue that Ground Five is procedurally defaulted as it pertains to sentencing on Petitioner’s aggravated robbery conviction. (Doc. 26 at 3.) That claim will be 

dismissed on different grounds. 
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

at 22.) Judge Velasco reasoned that the state court resolution of Petitioner’s claims was 

neither contrary to clearly established federal law nor based on an unreasonable 

determination of the facts. (Id. at 17–19.) Neither party objected to Judge Velasco’s 

recommendation concerning these Grounds. The Court has reviewed Judge Velasco’s 

reasoning, the parties’ briefs, and the record for clear error and has found none. This part 

of Judge Velasco’s recommendation will be fully adopted. 

B. Grounds One and Two 

 1. Standard of Review 

 “The starting point for cases subject to § 2254(d)(1) is to identify the ‘clearly 

established Federal law, as determined by the Supreme Court of the United States’ that 

governs the habeas petitioner’s claims.” Marshall v. Rodgers, 569 U.S. 58, 61 (2013) 

(per curiam) (quoting § 2254(d)(1)). In Ground One, Petitioner alleges he was denied a 

fair trial in violation of his federal due process rights because there was insufficient 

evidence to establish his guilt as an accomplice beyond a reasonable doubt. In Ground 

Two, Petitioner alleges he was denied a fair trial in violation of his federal due process 

rights because the jury convicted him as an accomplice on proof less than beyond a 

reasonable doubt. Both Grounds are insufficiency-of-evidence claims; the “clearly 

established Federal law” governing such claims is set forth in Jackson v. Virginia, 443 

U.S. 307 (1979). See Garcia v. Carey, 395 F.3d 1099, 1102 (9th Cir. 2005). “Jackson

says that evidence is sufficient to support a conviction so long as ‘after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt.’” Cavazos v. 

Smith, 565 U.S. 1, 7 (2011) (per curiam) (emphasis in original) (quoting Jackson, 443 

U.S. at 319). 

 For purposes of review under § 2254(d), the district court looks to the “state 

court’s last reasoned decision,” applying “AEDPA deference [only] to claims that were 

‘adjudicated on the merits in State court proceedings.’” Echavarria v. Filson, 896 F.3d 

1118, 1129 (9th Cir. 2018) (quoting § 2254(d)). District courts owe two layers of 
- 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

deference when a state court adjudicates a petitioner’s Jackson claim on the merits: first, 

under Jackson, which requires deference to a guilty verdict unless “no rational trier of 

fact” could reach the same verdict; and second, under AEDPA, which requires deference 

to the state court adjudication unless it is “objectively unreasonable.” Coleman v. 

Johnson, 566 U.S. 650, 651 (2012) (per curiam) (citations omitted); see Boyer v. 

Chappell, 793 F.3d 1092, 1101 (9th Cir. 2015). 

Here, the Arizona Court of Appeals adopted the PCR court’s reasoning without 

additional analysis or comment; thus, the PCR court issued the last reasoned decision on 

Petitioner’s Jackson claims. (See Doc. 16-1 at 4.) The PCR court rejected Petitioner’s 

claims on the merits, explaining that “the evidence proved that [Petitioner] was at the 

scene with a co-defendant and . . . verbally encouraged the co-defendant to commit 

various criminal actions,” and that such conduct falls within the definition of 

“accomplice” under Arizona law. (Doc. 16-1 at 27 (citing Ariz. Rev. Stat. § 13-301(1)–

(2)).) Because Petitioner’s claims were adjudicated on the merits, the Court owes the 

state court finding “double deference . . . under Jackson and AEDPA.” Ngo v. Giurbino, 

651 F.3d 1112, 1115 (9th Cir. 2011). 

2. Analysis 

“Under Jackson, federal courts must look to state law for the substantive elements 

of the criminal offense, but the minimum amount of evidence that the Due Process 

Clause requires to prove the offense is purely a matter of law.” Coleman, 566 U.S. at 655 

(internal citation and quotation marks omitted). Petitioner claims there was insufficient 

evidence to convict him as an accomplice. Under Arizona law, an accomplice is 

someone who “[s]olicits or commands another person to commit the offense” or “[a]ids, 

counsels, agrees to aid or attempts to aid another person in planning or committing an

offense.” Ariz. Rev. Stat. § 13-301(1)–(2). Furthermore, “[a] person is criminally 

accountable for the conduct of another if . . . [t]he person is an accomplice of such other 

person in the commission of an offense including any offense that is a natural and 

probable or reasonably foreseeable consequence of the offense for which the person was 
- 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

an accomplice.” Id. § 13-303(A)(3). Because the evidence was sufficient to convict 

Petitioner as an accomplice, the PCR court’s decision was neither contrary to nor an 

objectively unreasonable application of clearly established federal law as set forth in 

Jackson. 

The relevant evidence presented at trial consisted of the testimony of a TPD 

officer who responded to the scene and interviewed Mr. Camargo, Ms. Aguayo, Flores, 

and Petitioner. (See Doc. 1-4 at 17.) The officer testified to the following statements 

made during those interviews: just prior to Flores pulling a handgun, Petitioner said “just 

do it, just do it” and “yea, yea, yea”; Flores pulled a handgun, loaded a bullet into the 

chamber, pointed it at Mr. Camargo, and demanded the vehicle keys; Petitioner also 

demanded the vehicle keys; both victims tried to run, but Ms. Aguayo returned when 

Petitioner yelled to stop and return; the three individuals drove off in Mr. Camargo’s 

vehicle; Petitioner was apprehended with Flores a short while later, after abandoning the 

vehicle; and the handgun was found just outside the abandoned vehicle. (Id. at 16–17.) 

There was also “extensive evidence” that Petitioner went to great lengths to influence the 

victims’ testimony in his favor. (See Doc. 34-2 at 6–7.) 

The foregoing evidence convinced Petitioner’s jury of his guilt; thus, “the only 

question under Jackson is whether that finding was so insupportable as to fall below the 

threshold of bare rationality.” Coleman, 566 U.S. at 656. Viewing the evidence in the 

light most favorable to the prosecution, the jury’s verdict is plainly rational and therefore 

is entitled to deference under Jackson. Id. at 651. Based on the evidence presented at 

trial, a rational factfinder could infer that Petitioner knew Flores was armed and intended 

to steal Mr. Camargo’s vehicle, that Petitioner intended to assist Flores in that offense—

and, accordingly, that Petitioner was an accomplice. See id. at 656–57 (finding evidence 

sufficient to convict petitioner as accomplice). 

 The PCR court agreed with the jury’s verdict, “and that determination in turn is 

entitled to considerable deference under AEDPA.” Id. at 656. The PCR court found that 

Petitioner’s verbal encouragement to Flores was conduct falling within the definition of 
- 12 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

accomplice. (Doc. 16-1 at 27 (citing Ariz. Rev. Stat. § 13-301(1)–(2)).) Petitioner does 

not explain why that determination is objectively unreasonable. He thus has not 

overcome the deference owed under AEDPA. 

Judge Velasco found that the adjudication of Petitioner’s claims was not 

unreasonable because there was evidence supporting accomplice liability beyond Ms. 

Aguayo’s statement that Petitioner encouraged Flores. Petitioner objects to that finding, 

arguing that Arizona’s accomplice statute requires the alleged accomplice to “aid . . . 

another person in planning or committing the offense,” as opposed to “an offense.” Use 

of the word “the,” Petitioner argues, means that the prosecution was required to prove he 

intended to aid Flores in each individually charged crime. He asserts the prosecution 

failed to do so and instead relied improperly on an “overarching scheme” theory to secure 

the accomplice convictions. 

 Petitioner’s objection is without merit, namely because it is based on outdated law. 

The principles of accomplice liability in Arizona, as they are now and were at the time of 

Petitioner’s offense, are accurately stated above. Petitioner, however, relies on versions 

of the statutes and case law that were superseded in 2008 by statutory amendment. The 

Arizona Supreme Court concluded that, under the former statutes, an accomplice could 

not be convicted for offenses other than the one intended by the accomplice, even if the 

other offenses were a reasonably foreseeable result of the intended offense. See State v. 

Phillips, 46 P.3d 1048, 1056 (Ariz. 2002), superseded by statute, Ariz. Rev. Stat. §§ 13-

301 (2008), 13-303 (2008). At the time of Petitioner’s offense, though, Arizona law 

clearly contemplated that, if the alleged accomplice had the requisite intent for an offense 

(e.g., armed robbery), then the accomplice may be criminally liable for all offenses that 

reasonably flow from that offense (e.g., aggravated assault). As explained above, a 

rational jury could conclude that Petitioner was an accomplice, and the PCR court’s 

decision that sufficient evidence supports the jury verdict was not objectively 

unreasonable. 

 Petitioner advances a few other meritless arguments. First, he contends that Ms. 
- 13 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Aguayo’s statement that he encouraged Flores was inadmissible hearsay. However, 

“[f]ederal habeas courts do not review questions of state evidentiary law,” Briceno v. 

Scribner, 555 F.3d 1069, 1077 (9th Cir. 2009) (citation omitted), and “[e]rrors of state 

evidentiary law do not entitle one to federal habeas relief unless the alleged error so 

fatally infected the proceedings as to render them fundamentally unfair.” Gonzalez v. 

Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008) (citation and internal quotation marks 

omitted). Petitioner offers no argument that the admission of hearsay rendered his trial 

fundamentally unfair, and, moreover, it is not clear from the record whether admission of 

the statement was error at all. 

Second, he argues that the transcript of TPD’s interview with Mr. Camargo was 

exculpatory evidence because Mr. Camargo did not state that Petitioner did any 

affirmative act in furtherance of the crime. That is one view of the evidence. A rational 

factfinder could also infer that the omission of Petitioner’s statement was unintentional, 

which is perhaps a more reasonable view of the transcript in light of the fact that Mr. 

Camargo had a loaded firearm pointed at his head and his vehicle stolen only a short 

while before. Furthermore, other evidence presented at trial, such as Petitioner’s attempts 

to influence the victims’ testimony, could lead a rational factfinder to give less weight to 

the transcript than Petitioner does. 

 Third, Petitioner offers a series of assertions as to why he could not be convicted 

of various crimes (e.g., he could not have robbed Mr. Camargo of the vehicle because 

Mr. Camargo surrendered possession of the vehicle to Ms. Aguayo by fleeing). 

However, Petitioner is merely pressing his own view of the evidence without regard to 

what any other rational factfinder might conclude. All of his viewpoints are subject to 

“fairminded disagreement” and thus fail under § 2254. Davis v. Ayala, 135 S. Ct. 2187, 

2199 (2015) (citing Harrington v. Richter, 562 U.S. 86, 101, 103 (2011)). 

 Finally, Petitioner argues that he could be convicted of armed robbery under Ariz. 

Rev. Stat. § 13-1904 only if the prosecution proved he was armed with or used a deadly 

weapon. His argument rests on a misreading of the statute, however, and is therefore 
- 14 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

unpersuasive. 

 The Court agrees with the Report and Recommendation that Petitioner has failed 

to make the substantial showing required to overturn the PCR court’s decision on his 

Jackson claims. Therefore, Petitioner’s objections will be overruled, and this part of the 

Report and Recommendation will be adopted. 

C. Ground Five

 1. Standard of Review 

The clearly established federal law that governs Petitioner’s ineffective-assistanceof-counsel claim in Ground Five is set forth in Strickland v. Washington, 466 U.S. 668 

(1984). Under Strickland, a convicted defendant asserting a claim of ineffective 

assistance of counsel must show both deficient performance and prejudice. Id. at 687. 

To establish deficient performance, the defendant “must show that counsel’s 

representation fell below an objective standard of reasonableness.” Id. at 688. When 

reviewing a state court’s adjudication of a Strickland claim, a federal habeas court’s 

review is “doubly deferential” because “Strickland instructs courts to review a defense 

counsel’s effectiveness with great deference, and AEDPA requires federal courts to defer 

to the state court’s decision unless its application of Supreme Court precedent was 

objectively unreasonable[.]” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) 

(internal citations omitted). This doubly deferential standard is applied to the “last 

reasoned decision” by the state court. Id.

 2. Background 

While Petitioner’s vehicle-theft case was ongoing, Petitioner was a defendant in a 

separate criminal proceeding in which he was charged with theft of means of 

transportation, fleeing from law enforcement, endangerment, and resisting arrest (the 

“2008 case”). (Doc. 40-1.) Petitioner resolved the 2008 case by entering into a plea 

agreement. (Doc. 40-2.) The plea agreement provided: 

The defendant also admits he has previously been convicted of ARMED 

ROBBERY, BURGLARY FIRST DEGREE NON-RESIDENCE, 

AGGRAVATED ASSAULT, DEADLY WEAPON/DANGEROUS 
- 15 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

INSTRUMENT, ESCAPE FROM CUSTODY, UNLAWFUL USE OF 

TRANSPORTATION . . . . Defendant further admits that the prior 

convictions . . . are Dangerous Nature priors for the purposes of 

enhancement. 

. . . . 

5. Defendant agrees that his admission as to prior convictions in this 

case can be used in [the vehicle-theft case] as if the same priors had 

been proven to the Court. 

(Id. at 1–2.) 

The armed robbery, first-degree burglary, aggravated assault, and unlawful use of 

transportation convictions occurred on the same “occasion” and thus, under Arizona law, 

could be treated only as a single conviction for sentencing purposes. (See Doc. 16-1 at 

29–30); Ariz. Rev. Stat. § 13-704(J) (2010). Although the escape conviction could be 

counted separately because it occurred several hours later on a separate “occasion,” that 

offense is still a non-dangerous felony. (See Doc. 16-1 at 30; Doc. 34-5 at 6.) Thus, for 

sentencing enhancement purposes, Petitioner had only one dangerous felony conviction. 

 In the vehicle-theft case, the trial court found, based on Petitioner’s admission, 

that Petitioner was previously convicted of two or more prior dangerous felonies. (See 

Doc. 34-3 at 3.) Petitioner’s sentences in the vehicle-theft case were enhanced pursuant 

to Ariz. Rev. Stat. § 13-704(E) (2010) based on that finding. He received a total sentence 

of 35 years.7

 Had Petitioner received the same combination of consecutive and 

concurrent sentences with the same minimum and presumptive terms, but with only one

dangerous felony, he would have been sentenced to 21.25 years. See Ariz. Rev. Stat. § 

13-704(D) (2010). Petitioner’s counsel did not raise any objection during Petitioner’s 

sentencing hearing; rather, he argued for the minimum sentence of 21 years on 

Petitioner’s armed robbery conviction, evidencing his belief that Petitioner was subject to 

 7

 Petitioner received the presumptive term of 20 years for one aggravated assault charge. (Doc. 34-3 at 3.) Petitioner received a consecutive minimum term of 15 

years on the second aggravated assault charge. (Id. at 4.) His longest sentence, 28 years for armed robbery, was eclipsed by the shorter consecutive sentences. (See id. at 5.) 
- 16 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

an enhanced sentence based on two dangerous felony convictions. (See Doc. 34-2 at 11–

13); Ariz. Rev. Stat. § 13-704(E) (2010). 

 3. Analysis 

 Petitioner argues that, although he admitted to having multiple dangerous nature 

convictions in his plea agreement, he never agreed that the trial court could treat those 

convictions separately for enhancement purposes. Furthermore, he argues, since his 

dangerous nature convictions occurred on the same “occasion,” the trial court should not 

have enhanced his sentence based on two dangerous felonies, and his counsel was 

deficient by allowing the trial court to do so without objection. 

 The last reasoned decision was issued by the PCR court, which rejected 

Petitioner’s claim because “this sentencing scheme was discussed and agreed upon by all 

counsel and the Petitioner at trial.” (Doc. 16-1 at 29.) The PCR court then found that 

Petitioner’s escape conviction occurred on a separate “occasion” and thus was properly 

treated as a separate conviction for sentencing purposes. (Id. at 30.) The PCR court did 

not analyze why it was proper to treat the escape conviction as a dangerous felony. (See 

id. at 29–30.) 

Judge Velasco found that an evidentiary hearing is warranted because Petitioner 

has a colorable Strickland claim. Judge Velasco analyzed the plea agreement and the 

transcript of the change-of-plea hearing in the 2008 case and agreed that, while Plaintiff 

admitted the existence of multiple dangerous felonies, Plaintiff did not affirmatively 

agree that those dangerous felonies could be separated for enhancement purposes. Judge 

Velasco also found that the trial court did not inform Plaintiff that the effect of the plea 

agreement was to subject Petitioner to an enhancement for two dangerous felonies. Thus, 

Judge Velasco reasoned, Petitioner’s claim may have merit because an unlawfully 

enhanced sentence constitutes sufficient prejudice under Strickland, and, if the sentence 

is illegal, the silence of Petitioner’s counsel at sentencing was objectively unreasonable 

since it resulted in the illegal sentence. 

Respondents object, arguing that the PCR court’s determination rests entirely on a 
- 17 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

determination of a state-law sentencing issue, and that the Report and Recommendation 

inappropriately undertook a review of that determination. They further contend that the 

result should not change merely because Petitioner frames the issue in terms of 

effectiveness of counsel. 

The Court disagrees with Respondents’ characterization of the Report and 

Recommendation. In rejecting Petitioner’s claim, the PCR court relied on the parties’ 

purported agreement to the sentencing scheme, not on a determination of an issue of state 

sentencing law. Determining whether Petitioner may have been prejudiced by his 

counsel’s failure to object at the sentencing hearing required an examination of not only 

the record, but the Arizona sentencing statutes in order to determine how they might have 

applied were there a proper objection. That examination does not turn the Report and 

Recommendation into an improper inquiry into state-law issues. Respondents’ objection 

will be overruled. 

4. Evidentiary Hearing 

The Court agrees with Judge Velasco that Petitioner has raised a colorable 

Strickland claim. A Rule 32 petitioner “is entitled to an evidentiary hearing when he 

presents a colorable claim.” State v. Watton, 793 P.2d 80, 85 (Ariz. 1990). Ineffectiveassistance-of-counsel claims in particular typically “cannot be advanced without 

development of facts outside the record.” United States v. Hanoum, 33 F.3d 1128, 1131 

(9th Cir. 1994). Although Petitioner presented a colorable claim for ineffectiveassistance-of-counsel, the PCR court rejected his claim without allowing evidentiary 

development. (See Doc. 16-1 at 24 (finding that Petitioner “failed to raise a material 

issue of fact or law which would entitle him to a hearing”).)

“[W]here a state court makes factual findings without an evidentiary hearing or 

other opportunity for the petitioner to present evidence, ‘the fact-finding process itself is 

deficient’ and not entitled to deference” under AEDPA. Hurles v. Ryan, 752 F.3d 768, 

790 (9th Cir. 2014) (internal quotation omitted); see also Nunes v. Mueller, 350 F.3d 

1045, 1055 (9th Cir. 2003). In light of the record that was before the state court, it was 
- 18 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

objectively unreasonable under 28 U.S.C. § 2254(d)(2) for the state court to reject 

Petitioner’s Strickland claim as factually unsupported without holding an evidentiary 

hearing. 

If a federal habeas court determines, considering only the evidence that was before 

the state court, that the state court’s decision was unreasonable under 28 U.S.C. § 

2254(d)(1) or (d)(2), the court “evaluate[s] the claim de novo” and “may consider 

evidence properly presented for the first time in federal court.” Hurles, 752 F.3d at 778. 

In such a scenario, the Court is no longer limited to consideration of the evidence in the 

state-court record. Johnson v. Finn, 665 F.3d 1063, 1069 n.1 (9th Cir. 2011). 

 AEDPA limits district courts’ authority to hold evidentiary hearings in § 2254 

cases where the petitioner “has failed to develop the factual basis of a claim in State court 

proceedings.” 28 U.S.C. § 2254(e)(2). However, in cases where the petitioner has not

failed to develop the factual basis of the claim in state court, the restrictions of Section 

2254(e)(2) are inapplicable. See Hurles, 752 F.3d at 791. “A petitioner who has 

previously sought and been denied an evidentiary hearing has not failed to develop the 

factual basis of his claim.” Id. 

 When Section 2254(e)(2) is inapplicable, an evidentiary hearing is required if (1) 

the petitioner has shown his entitlement to an evidentiary hearing pursuant to Townsend 

v. Sain, 372 U.S. 293, 313 . . . (1963), and (2) the allegations, if true, would entitle him to 

relief.” Hurles, 752 F.3d at 791. A petitioner is entitled to an evidentiary hearing under 

Townsend when “(1) the state court’s factual determinations are not fairly supported by 

the record as a whole, and (2) the fact-finding procedure employed by the state court was 

not adequate to afford a full and fair hearing.” Hurles, 752 F.3d at 791. 

 Section 2254(e)(2) is inapplicable in this case because Petitioner has not failed to 

develop the factual basis of his claims in state court; Petitioner requested an evidentiary 

hearing in state court, and his request was denied. (Doc. 1-5 at 68); see Hurles, 752 F.3d 

at 791. Petitioner’s allegations in Ground Five of the § 2254 Petition, if true, would 

entitle Petitioner to habeas relief. Hurles, 752 F.3d at 791. Because the state court made 
- 19 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

factual determinations that are not supported by the record as a whole and it failed to 

afford a full and fair hearing on Petitioner’s colorable constitutional claim, Petitioner is 

entitled to a hearing under the Townsend factors. 

IT IS ORDERED: 

1. Respondents’ Objections (Doc. 36) are overruled. Petitioner’s Objections 

(Doc. 37) are overruled. The Report and Recommendation (Doc. 35) is accepted and 

adopted in full. 

2. This matter is referred to Magistrate Judge Bernardo P. Velasco pursuant to 

Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for an evidentiary hearing and 

a report and recommendation. 

3. The Federal Public Defender is appointed pursuant to 28 U.S.C. § 

1915(e)(1) and 18 U.S.C. § 3006A(a)(2) to represent Petitioner in this matter. The Clerk 

of Court is directed to send a Notice of Electronic Filing of this Order to Keith 

Hilzendeger at Keith_Hilzendeger@fd.org. 

 Dated this 16th day of November, 2018.