Fuqua 166925 v. Ryan ( 2020 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Douglas E Fuqua, No. CV-18-08193-PCT-DWL 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. 14 15 On October 12, 2018, Petitioner filed a petition for writ of habeas corpus under 28 16 U.S.C. § 2254 (“the Petition”). (Doc. 6.) On September 3, 2019, Magistrate Judge Boyle 17 issued a Report and Recommendation (“R&R”) concluding the Petition should be denied 18 and dismissed with prejudice. (Doc. 18.) Afterward, Petitioner filed objections to the 19 R&R. (Doc. 25.) For the following reasons, the Court will overrule Petitioner’s objections 20 to the R&R, deny the Petition, and terminate this action. 21 I. Background 22 The relevant factual and procedural background is set forth in the R&R. In a 23 nutshell, in 2011, Petitioner was convicted at trial of two counts of misdemeanor assault, 24 two counts of aggravated assault, one count of kidnapping, and one count of felony 25 criminal damage. (Doc. 18 at 3.) All of the charges arose “from a domestic violence 26 incident that occurred on April 22 and 23, 2011, between [Petitioner] and his then wife.” 27 (Id. at 1, citation omitted.) In January 2012, the trial court sentenced Petitioner to a total 28 of 35 years’ imprisonment, with 34.5 years of the sentences being flat-time sentences, and 1 awarded Petitioner 277 days of presentence credit. (Id. at 3.) 2 The Arizona Court of Appeals affirmed but the Arizona Supreme Court reversed in 3 part, holding that the imposition of flat-time sentences was improper and that Petitioner 4 should serve no less than 85% of his sentences. (Id.) 5 In August 2014, Petitioner filed an appeal challenging his resentencing. (Id.) The 6 Arizona Court of Appeals affirmed. (Id.) 7 In September 2015, Petitioner filed a petition for post-conviction relief (“PCR”). 8 (Id. at 4.) In February 2016, the trial court granted relief in part, as to “the illegal sentence 9 pursuant to Rule 32.1(H),” and ordered resentencing. (Id.) In April 2016, the trial court 10 resentenced Petitioner to 21 years’ imprisonment on the four felony counts. (Id.) 11 In May 2016,1 Petitioner filed a petition for review regarding the trial court’s partial 12 denial of PCR relief. (Id.) 13 In September 2016, Petitioner filed an appeal in the Arizona Court of Appeals in 14 which he challenged his resentencing, requested presentence credit for time served, and 15 requested that his sentences run concurrently rather than consecutively. (Id.) 16 In August 2017, after consolidating the PCR denial and the sentencing appeal, the 17 Arizona Court of Appeals affirmed Petitioner’s sentences and denied relief on the petition 18 for review. (Id.) 19 In October 2018, Petitioner filed the petition. (Doc. 1.) It asserts four grounds for 20 relief, which the Court previously summarized as follows: “In Ground One, Petitioner 21 alleges the state court violated the Fourteenth Amendment by affirming the Superior 22 Court’s vacatur of presentence credit as to certain counts where the State had not 23 challenged Petitioner receiving the credit. In Ground Two, Petitioner alleges his Fifth 24 Amendment right not to be subjected to double jeopardy was violated. In Ground Three, 25 Petitioner alleges his Fifth, Sixth, and Fourteenth Amendment rights to a fair trial were 26 violated based upon the admission of expert testimony over his objections. In Ground Four, 27 1 The R&R states this petition was filed in May 2015. (Doc. 18 at 4.) Although the 28 underlying petition is dated May 5, 2015 (Doc. 16-3 at 21), this appears to be a typo— other portions of the petition refer to events in April 2016 (Doc. 16-3 at 2 n.1). 1 Petitioner alleges his Sixth Amendment right to the effective assistance of appellate 2 counsel was violated.” (Doc. 9 at 2.) 3 II. The R&R 4 The R&R was issued on November 6, 2019. (Doc. 18.) 5 As an initial matter, the R&R declines to resolve whether the petition was filed 6 within AEPDA’s one-year statute of limitations. (Id. at 5-7.) 7 As for Ground One (challenge to state court’s vacatur of pretrial incarceration 8 credit), the R&R concludes it fails “because it challenges Arizona law regarding the finality 9 of its judgments. Whether the Arizona courts violated Rules 26.16 and 24.3 of the Arizona 10 Rules of Criminal Procedure does not present a federal question. . . . Petitioner’s assertion 11 of a Fourteenth Amendment violation does not make this claim cognizable.” (Id. at 8-9, 12 citations omitted.) 13 As for Ground Two (challenge to the imposition of consecutive sentences arising 14 from a single incident), the R&R concludes it fails for two independent reasons. First, the 15 R&R concludes that Petitioner failed to properly exhaust this claim during the state-court 16 proceedings—when Petitioner presented this challenge during his direct appeal from his 17 third sentencing, he characterized it as a state-law sentencing error and didn’t, aside from 18 a fleeting reference to the Double Jeopardy Clause of the Fifth Amendment in the caption, 19 cite or rely upon federal law. (Id. at 9-11.) Second, the R&R concludes this claim “is not 20 cognizable” regardless of whether it was exhausted and identifies several Ninth Circuit 21 decisions refusing to consider habeas challenges to consecutive sentences. (Id. at 11 & 22 n.5.) Finally, in a footnote, the R&R notes that “Petitioner did not argue before, and does 23 not argue now, that his underlying convictions fail the [Blockburger] same-elements test. 24 Certainly, Aggravated Assault, Kidnapping, and Criminal Damage contain distinct 25 elements.” (Id. at 11 n.5.) 26 As for Ground Three (challenge to trial court’s decision to allow the state to elicit 27 domestic violence “profile” testimony from an expert), the R&R concludes it is 28 “unexhausted and procedurally defaulted” because Petitioner “cited only state law [State 1 v. Ketchner, 339 P.3d 645 (Ariz. 2014)] and presented no federal argument” in his PCR 2 petition, reply, and petition for review to the Arizona Court of Appeals. (Id. at 11-12.) 3 As for Ground Four (ineffective assistance of appellate counsel, premised on 4 counsel’s failure to present a Ketchner claim), the R&R begins by summarizing the 5 Arizona Court of Appeals’ rationale for rejecting this claim. After observing that, “[a]s a 6 general rule, appellate counsel is not ineffective for selecting some issues and rejecting 7 others” and noting that the state presented very little profile evidence at trial (“the trial 8 court . . . limited the prosecutor to four questions seeking the expert’s opinion, only one of 9 which addressed the behaviors that abusers use to control the victim”), the Arizona Court 10 of Appeals concluded that Petitioner’s appellate counsel was not ineffective. (Id. at 13- 11 14.) The R&R concludes that, “[g]iven the limited scope and quantity of the testimony, 12 the Arizona Court of Appeals was not objectively unreasonable when it decided counsel 13 was not ineffective for deciding to bypass a weaker appellate issue.” (Id. at 15.) 14 III. Legal Standard 15 A party may file written objections to an R&R within fourteen days of being served 16 with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254 Rules”). Those 17 objections must be “specific.” See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being 18 served with a copy of the recommended disposition, a party may serve and file specific 19 written objections to the proposed findings and recommendations.”) (emphasis added). 20 District courts are not required to review any portion of an R&R to which no specific 21 objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does 22 not appear that Congress intended to require district court review of a magistrate’s factual 23 or legal conclusions, under a de novo or any other standard, when neither party objects to 24 those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 25 (“[T]he district judge must review the magistrate judge’s findings and recommendations 26 de novo if objection is made, but not otherwise.”). 27 … 28 … 1 IV. The Objections To The R&R 2 Petitioner objects to the R&R’s analysis concerning all four of his grounds for relief. 3 (Doc. 25.) 4 As for Ground One, Petitioner argues that he did “not present Ground One ‘only’ 5 on the basis of a state law violation” because the Arizona Constitution “encompasses the 6 provisions of the ‘Due Process’ Clause of the very 14th Amendment of the U.S. ‘same’ 7 Constitutional guarantee and safeg[u]ard.” (Id. at 3-5.) Petitioner further contends that 8 Ground One raises a “fundamental unfairness” claim that justifies not only federal habeas 9 review, but also federal habeas relief. (Id. at 4.) 10 These objections will be overruled. First, Petitioner is incorrect that his assertion of 11 a state-law claim during the state-court proceedings may be construed, for exhaustion 12 purposes, as the implicit assertion of a federal constitutional claim. As the Ninth Circuit 13 has explained: 14 Fair presentation requires that the petitioner describe in the state proceedings both the operative facts and the federal legal theory on which his claim is 15 based so that the state courts have a fair opportunity to apply controlling legal 16 principles to the facts bearing upon his constitutional claim. Thus, for purposes of exhausting state remedies, a claim for relief in habeas corpus 17 must include reference to a specific federal constitutional guarantee, as well 18 as a statement of the facts that entitle the petitioner to relief. 19 Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (citations and internal quotation marks 20 omitted). Second, putting aside the question of exhaustion, Petitioner doesn’t address (and 21 thus has waived any objection to) the R&R’s citation of cases holding that the specific type 22 of challenge Petitioner seeks to raise here—a challenge to a state court’s failure to confer 23 presentence incarceration credit—simply isn’t cognizable in a habeas proceeding. 24 As for Ground Two, Petitioner offers various reasons why all of the crimes in his 25 case should have been considered “one act” under Arizona law. (Doc. 25 at 5-6, 8.) 26 Petitioner then contends that because “the State of Arizona’s ‘State Constitution’ itself 27 holds provisions adopting and embracing the Constitution of the United States as well as 28 its ‘Bill of Rights’ . . . [t]he Arizona State Constitution ‘by its own language’ . . . subjects 1 itself to the provisions of the United States Constitution.” (Id. at 6-7.) Finally, as for 2 footnote five of the R&R, Petitioner acknowledges that he never specifically raised a 3 Blockburger claim but argues this should be overlooked because (1) pro se pleadings 4 should be construed liberally and (2) the Arizona Department of Corrections didn’t provide 5 him with access to the legal books that were needed to discover this claim. (Id. at 8-9.) 6 These objections will be overruled. First, and as with Ground One, Petitioner 7 misunderstands the legal standards governing exhaustion and fair presentation—a 8 reference to state law or the state constitution is insufficient, even if Petitioner believes 9 these authorities implicitly incorporate federal law. Second, Petitioner doesn’t address 10 (and thus has waived any objection to) the R&R’s citation of cases refusing to consider 11 habeas challenges to consecutive sentences. (Doc. 18 at 11 & n.5.) 12 As for Ground Three, Petitioner disagrees with the R&R’s conclusion that he failed 13 to exhaust his federal constitutional challenge to the trial judge’s decision to admit profile 14 testimony and points to Tart v. Commonwealth of Massachusetts, 949 F.2d 490 (1st Cir. 15 1991), as a case recognizing the propriety of “reliance on state law to exhaust federal 16 claim.” (Doc. 25 at 9-10.) Additionally, Petitioner asks the Court to review Ground Three 17 pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). 18 These objections will be overruled. As noted, the rule in the Ninth Circuit is that 19 “[f]air presentation requires that the petitioner . . . include reference to a specific federal 20 constitutional guarantee, as well as a statement of the facts that entitle the petitioner to 21 relief.” Davis, 511 F.3d at 1009 (citation omitted). Thus, to the extent the First Circuit 22 may have followed a different fair-presentation rule in 1991, it does not help Petitioner 23 here. Finally, Petitioner’s invocation on Martinez is misplaced because Ground Three is 24 not a claim of ineffective assistance of counsel. 25 As for Ground Four, Petitioner argues his appellate counsel was ineffective in 26 failing to present his Ketchner claim because the claim was “a dead-bang winner” and the 27 underlying evidence was clearly “inadmissible.” (Doc. 25 at 12-13.) 28 These objections will be overruled. Petitioner’s narrow focus on whether the trial 1 || court’s decision to admit the profile evidence was erroneous under Ketchner, and whether 2|| his counsel therefore could have raised a meritorious challenge to that evidentiary ruling 3 || on appeal, asks the wrong question. Petitioner doesn’t challenge (and has therefore waived 4|| any objection to) the R&R’s observation that very little profile evidence was admitted at trial. Thus, even assuming arguendo that the admission of this limited evidence was 6|| improper, Petitioner hasn’t argued—much less established—that its admission was also harmful. Indeed, even in Ketchner, where the state presented a significant quantity of 8 || profile evidence and emphasized that evidence during closing argument, the Arizona || Supreme Court concluded that “[t]he error . . . is harmless as to the convictions and 10 || sentences for aggravated assault and attempted first-degree murder.” Ketchner, 339 P.3d at 650. It was thus logical (or, at least, not an unreasonable application of clearly 12 || established federal law) for the Arizona state courts to conclude that Petitioner’s appellate 13} counsel’s tactical decision to focus on other issues didn’t constitute ineffective assistance ofcounsel. Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (“[A]ppellate counsel’s failure to raise issues on direct appeal does not constitute ineffective assistance when 16 || appeal would not have provided grounds for reversal.’’). 17 Accordingly, IT IS ORDERED that: 18 (1) Petitioner’s objections to the R&R (Doc. 25) are overruled. 19 (2) The R&R’s recommended disposition (Doc. 18) is accepted. 20 (3) The Petition (Doc. 6) is denied. 21 (4) A Certificate of Appealability and leave to proceed in forma pauperis on 22 || appeal are denied because denial of the Petition is justified by a plain procedural bar and 23 || reasonable jurists would not find the ruling debatable, and because Petitioner has not made 24 || a substantial showing of the denial of a constitutional right. 25 (5) | The Clerk shall enter judgment accordingly and terminate this action. 26 Dated this 3rd day of February, 2020. _ 28 fi United States District Judge -7-