JOHN Z. BOYLE, Magistrate Judge.
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
Petitioner Douglas E. Fuqua has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 6.)
Petitioner raises four grounds for relief in his Petition. Grounds One and Two are not cognizable claims. Ground Three is procedurally defaulted because it was not fairly presented as a federal claim in the state courts. Ground Four fails on the merits. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.
The Arizona Court of Appeals found:
State v. Fuqua, 2013 WL 1174094, at *2 (Ariz. Ct. App. 2013).
The State charged Petitioner with two counts of misdemeanor assault (Counts 1 and 4); two counts of aggravated assault, each Class 3 dangerous felonies (Counts 2 and 5); one count of kidnapping, a Class 2 felony; and one count of felony criminal damage. (Id.) A jury convicted Petitioner of all offenses.
On January 25, 2012, the court sentenced Petitioner to a total of 35 years of imprisonment, with 34.5 years of the sentences being flat-time sentences. (Doc. 16-1, Ex. E, at 31-36.) The court awarded 277 days of presentence credit. (Id.)
On March 21, 2013, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. Fuqua, 2013 WL 1174094, at *2; (Doc. 16-1, Ex. I, at 132).
On October 29, 2013, the Arizona Supreme Court granted review and reversed the Arizona Court of Appeals' decision regarding "the court's imposition of flat time sentences." (Doc. 16-1, Ex. L, at 171.)
On February 4, 2014, the trial court vacated the flat-time sentence on Counts 2, 3, 5, and 6 and ordered that Petitioner serve no less than 85% of his sentences. (Doc. 16-1, Ex. M, at 176.) The Court also modified Petitioner's presentence credit. (Id.)
On August 28, 2014, Petitioner filed an appeal challenging his resentencing and requested that Petitioner be afforded a "full resentencing" rather than merely a hearing to correct his illegal, flat-time sentence. (Doc. 16-2, Ex. P, at 11.)
On January 27, 2015, the Arizona Court of Appeals affirmed the resentencing. (Doc. 16-2, Ex. S, at 28.)
On September 23, 2015, Petitioner filed a petition for post-conviction relief. (Doc. 16-2, Ex. T, at 54.) On February 23, 2016, the trial court denied relief on several claims but granted relief "on the illegal sentence pursuant to Rule 32.1(H)" and set a resentencing. (Doc. 16-2, Ex. W, at 145.)
On April 1, 2016, the trial court resentenced Petition to 21 years of imprisonment on the four felony counts. (Doc. 16-2, Ex. X, at 147.)
On May 5, 2015, Petitioner filed a Petition for Review regarding the trial court's partial denial of PCR relief. (Doc. 16-3, Ex. AA, at 1.)
On September 21, 2016, Petitioner filed an appeal in the Arizona Court of Appeals challenging his resentencing, and requesting presentence credit for time served and that his sentences run concurrently rather than consecutively. (Doc. 16-2, Ex. Z, at 159.)
On August 22, 2017, after consolidating the PCR denial and sentencing appeal, the Arizona Court of Appeals affirmed Petitioner's sentences, and granted review but denied relief on the petition for review. (Doc. 16-3, Ex. DD, at 107.) On October 16, 2017, the mandate issued. (Doc. 16-3, Ex. GG, at 131, 133.)
On August 16, 2018, Petitioner filed a motion to extend the time to file a habeas petition. (Doc. 1.) On August 29, 2018, the Court denied the motion and ordered that "Petitioner has 30 days from the date of filing of this Order to file a § 2254 petition in compliance with this Order." (Doc. 4 at 5.) On September 19, 2018, the Court noted that "Petitioner may not have timely received the Court's August 29 Order" and ordered that Petitioner "has 30 days from the date of this Order in which to file a complete Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254. . . ." (Doc. 4 at 1.)
On October 11, 2018, Petitioner mailed the habeas Petition (doc. 6 at 31), which was filed on October 12, 2018 (id. at 1). The Court summarized Petitioner's four claims as follows:
(Doc. 9 at 2.) On April 1, 2019, Respondents filed a Limited Response. (Doc. 16.) On April 26, 2019, Petitioner filed a Reply. (Doc. 17.)
The Court will bypass the question of whether the Petition is timely because the administration of justice is better served here by addressing procedural default and merit issues in the case. See Day v. McDonough, 547 U.S. 198, 209-10 (2006) (noting a court has the discretion to decide whether the administration of justice is better served by "addressing the merits or by dismissing the petition as time barred.").
On August 22, 2017, the Arizona Court of Appeals issued a memorandum decision affirming Petitioner's sentences and granting review of his petition for review but denying relief. (Doc. 16-3, Ex. DD, at 108.) Respondents argue that Petitioner's conviction became final 35 days later "because this was the expiration date of his time to file a petition for review in the Arizona Supreme Court from the court of appeals' memorandum decision issued on August 22, 2017." (Doc. 16 at 9.) Respondents correctly cite to Ariz. R. Crim. P. 31.21(b)(2)(A) ("A party must file a petition for review no later than 30 days after the Court of Appeals enters its decision, unless a party files a timely motion for reconsideration in the Court of Appeals and, in that event, a party must file a petition for review no later than 15 days after the motion's final disposition.") and Ariz. R. Crim. P. 1.3(a) (adding "five calendar days . . . to the prescribed period" for mailing). (Id.) Respondents argue the Petition was due by September 26, 2018 but was untimely filed on October 11, 2018. (Id. at 9-10.)
Respondents assert that the Petition is 15 days overdue, but there are two concerns with Respondents' argument. First, on August 16, 2018, Petitioner filed a motion for a 60-day extension to file his Petition. (Doc. 1.) The Court denied the motion finding there "is no provision" under the AEDPA to extend the one-year statute of limitation. (Doc. 4 at 2.) But the Order also stated that "Petitioner has 30 days from the date of filing of this Order to file a § 2254 petition in compliance with this Order." (Id. at 5.) While this language was intended to serve as an administrative deadline to file a Petition (without ruling on any legal issues), Petitioner may have construed it as tolling the time period to file a petition. When the Court further extended the deadline, it noted that if Petitioner failed "to file a complete Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254" then the court would enter "a dismissal of this action without prejudice and deny any pending unrelated motions as moot." (Doc. 2 at 1-2.) In his Reply, Petitioner asserts he construed the Court's Order as a 30-day extension. (Doc. 17 at 4.) In light of Petitioner's pro se status, it was not unreasonable for him to believe the Court granted him an extension. At a minimum, Petitioner presents a compelling argument that he diligently pursued his rights prior to the expiration of his habeas filing deadline.
Second, Respondents calculate Petitioner's deadline from the August 22, 2017 memorandum decision affirming Petitioner's sentences and granting review of his petition for review but denying relief. (Doc. 16-3, Ex. DD, at 107.) But the mandate in Petitioner's cases did not issue until October 16, 2017. (Doc. 16-3, Ex. GG, at 131, 133.) Prior decisions in this Court have found that in Arizona, when the court of appeals grants review of a petition but denies the petition, review is not final until the mandate has issued. See Celaya v. Stewart, 691 F.Supp.2d 1046, 1055, 1074-75, (D. Ariz. 2010) (adopting magistrate judge's conclusion that PCR petition "was pending, as the Supreme Court has defined that term in Carey, until it reached final resolution upon issuance of the court of appeals mandate[,]" and holding that "under Arizona law, the Petitioner is entitled to statutory tolling because an Arizona appellate court decision is not final until the mandate issues"), aff'd, 497 Fed. App'x. 744, 2012 WL 5505735, *1 (9th Cir. 2012) ("Under Arizona law, [petitioner's] post-conviction review . . . petition was `pending' until the Arizona Court of Appeals issued the mandate concluding its review of that petition[.]"); Dixon v. Ryan, 2018 WL 3215655, at *3 (D. Ariz., 2018) (collecting cases).
Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless a petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary `opportunity,' the prisoner must `fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim").
A claim has been fairly presented if the petitioner has described both the operative facts and the federal legal theory on which his claim is based. See id. at 33. A "state prisoner does not `fairly present' a claim to a state court if that court must read beyond a petition or brief . . . that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Id. at 31-32. Thus, "a petitioner fairly and fully presents a claim to the state court for purposes of satisfying the exhaustion requirement if he presents the claim: (1) to the proper forum . . . (2) through the proper vehicle, . . . and (3) by providing the proper factual and legal basis for the claim." Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).
The Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court reached a decision which was contrary to clearly established federal law, or the state court decision was an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d); Davis v. Ayala, 135 S.Ct. 2187, 2198-99 (2015); Musladin v. Lamarque, 555 F.3d 834, 838 (9th Cir. 2009). The AEDPA requires that the habeas court review the "last reasoned decision" from the state court, "which means that when the final state court decision contains no reasoning, we may look to the last decision from the state court that provides a reasoned explanation of the issue." Murray v. Schriro, 746 F.3d 418, 441 (9th Cir. 2014) (quoting Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000)).
White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal citations and quotations omitted). See also Arrendondo v. Neven, 763 F.3d 1122, 1133-34 (9th Cir. 2014).
Factual findings of a state court are presumed to be correct and can be reversed by a federal habeas court only when the federal court is presented with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015). The "presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact." Sumner v. Mata, 455 U.S. 591, 593 (1982). See also Phillips v. Ornoski, 673 F.3d 1168, 1202 n.13 (9th Cir. 2012).
In Ground One, Petitioner argues that the state courts "abused their discretion" in violation of the Fourteenth Amendment when they vacated 277 days of pretrial incarceration credit that was awarded on July 26, 2016. (Doc. 6 at 6.) Petitioner argues that under Arizona law the presentence award was a final decision under Rules 26.16
Petitioner's claim is not cognizable because it challenges Arizona law regarding the finality of its judgments. Whether the Arizona courts violated Rules 26.16 and 24.3 of the Arizona Rules of Criminal Procedure does not present a federal question. See Nunes v. Ramirez-Palmer, 485 F.3d 432, 443 (9th Cir. 2007) ("[I]n federal court, there is no right to bring a habeas petition on the basis of a violation of state law."); Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief."); Lewis v. Cardwell, 609 F.2d 926, 928 (9th Cir. 1979) (citation and quotation omitted) (stating that "[t]he origin of the modern concept of pre-conviction jail time credit upon the term of the ultimate sentence of imprisonment is of legislative grace and not a constitutional guarantee."). Petitioner's assertion of a Fourteenth Amendment violation does not make this claim cognizable. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) ("[A petitioner] may not, however, transform a state-law issue into a federal one merely by asserting a violation of due process.").
Petitioner argues that the state courts "abused their discretion" and violated his "double jeopardy clause" rights "by sentencing this petitioner to all consecutive prison terms for this single incident." (Doc. 6 at 9.) Petitioner asserts that the consecutive sentences for Aggravated Assault, Kidnapping, Assault, and Criminal Damage were improper because they all "derived from the same single on-going continuous act." (Id.) Petitioner requests the Court remand the matter to the trial court "with instructions" to impose concurrent sentences as to Counts 2 and 6, and also Counts 3 and 5. (Id. at 18.)
In his appeal to the Arizona Court of Appeals after his third sentencing, Petitioner argued that the trial court improperly permitted Counts 2 and 6, and Counts 3 and 5, to run consecutively. (Doc. 16-2, Ex. Z, at 173-174.) The Arizona Court of Appeals affirmed the consecutive sentences. The court found that Count 2 (Aggravated Assault) "was based on Fuqua's conduct of using an ATV as a dangerous instrument to intentional place his wife in fear of imminent physical injury," and that Count 6 (Criminal Damage) was "based on Fuqua's conduct of using the ATV to recklessly damage his wife's car as she was fleeing[.]" (Doc. 16-3, Ex. DD, at 115.) The court found that Count 3 (Kidnapping) was committed when Petitioner "forced his wife onto his ATV after she hit the tree, and drove her back to the house where he continued to beat her," and that Count 5 (Aggravated Assault) was committed "by [Petitioner] pressing the muzzle of his rifle to his wife's head and threatening to kill her." (Id.) The court found that Petitioner could have committed Kidnapping "without also committing aggravated assault by pressing the muzzle of the rifle to her head." (Id.) The court found that "aggravated assault with the rifle caused the victim to suffer an additional risk of harm beyond that inherent in the kidnapping charge." (Id.)
Here, Petitioner's claim that there was a violation of state law during sentencing is not subject to federal habeas corpus review. In the caption of his claim in the Arizona Court of Appeals, Petitioner alleged that "trial court abused its discretion by running all sentences consecutively in violation of the Double Jeopardy Clause of the Fifth Amendment and A.R.S. § 13-116."
Regardless of whether Petitioner exhausted his claim below, the state court's decision to impose consecutive sentences is not cognizable. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (finding that petitioner's claim that the state court erred in imposing consecutive sentences was not cognizable in federal habeas); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (holding that "claim regarding merger of convictions for sentencing is exclusively concerned with state law and therefore not cognizable in a federal habeas corpus proceeding."); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (refusing to consider alleged errors in violation of state sentencing law).
Petitioner argues he was denied the "right to a fair trial where the trial court abused its discretion by allowing the state to introduce domestic violence profile testimony" before a jury. (Doc. 6 at 20.) In PCR proceedings, Petitioner requested an "Order vacating his convictions and sentences" under Rule 32.1(g) and State v. Ketchner, 236 Ariz. 262 (Ariz. 2014), which found that "profile evidence is inadmissible in the context of domestic violence[.]" (Doc. 16-2, Ex. T, at 54.) Petitioner argued that Ketchner was a "significant change in the law that is applicable to Petitioner's case that would probably overturn his convictions." (Id.) In his state petition and reply (doc. 16-2, Ex. V, at 120), Petitioner cited only state law and presented no federal argument. Similarly, in his petition for review to the Arizona Court of Appeals, Petitioner presented no federal arguments or citations. (See Doc. 16-3, Ex. AA, at 5-15.)
Petitioner's claim is unexhausted and procedurally defaulted because he did not fairly present Ground Three as a federal claim in the state courts.
Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001).
Petitioner did not assert a federal claim in his state court proceedings on this issue. In his Reply, Petitioner asserts his claim is exhausted because he cited to a state case — State v. Slemmer, 170 Ariz. 174 (1991) — that cites a federal case — Griffith v. Kentucky, 479 U.S. 341 (1987). (Doc. 17 at 8-9.) But these cases both concern whether Petitioner's claim under Ketchner was retroactive and do not relate to Petitioner's substantive claim. The citation to Ketchner is unavailing because the Ketchner decision is based upon Arizona state law. Petitioner does not argue cause and prejudice to excuse the procedural default of his claim. Petitioner's claim is unexhausted and procedurally defaulted.
In Ground Four, Petitioner asserts that appellate counsel provided ineffective assistance by failing to present "Petitioner's Ketchner claim where the trial court over objections and `motion in limine' allowed the state to introduce prejudicial `domestic violence abuse profile testimonial evidence'" during trial. (Doc. 6 at 27.)
Claims of ineffective assistance of counsel are governed by the principles set forth in Strickland v. Washington, 466 U.S. 668, 684 (1984). To prevail under Strickland, a petitioner must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) the deficiency prejudiced the defense. Id. at 687-88. A petitioner must affirmatively prove prejudice by "show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Habeas review of these claims is subject to double deference because the court must give "both the state court and the defense attorney the benefit of the doubt." Burt v. Titlow, 571 U.S. 12, 15 (2013). See also Harrington v. Richter, 562 U.S. 86, 105 (2011) ("When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard."); Murray v. Schriro, 882 F.3d 778, 826 (9th Cir. 2018) (noting "the double deference applicable to AEDPA claims of ineffective assistance of counsel.").
Petitioner presented this claim in PCR proceedings. (Doc. 16-3, Ex. AA, at 5-15.) The Arizona Court of Appeals found:
(Doc. 16-3, Ex. DD, at 119-20.)
Here, the Arizona Court of Appeals could have reasonably concluded that "appellate counsel was not ineffective for failing to challenge the admissibility of the expert's testimony on appeal." (Doc. 16-3, Ex. DD, at 120.) The court noted the testimony was admitted "`to explain to the jury why the heck a woman would stay in this relationship,' and [the trial court] accordingly limited the prosecutor to four questions seeking the expert's opinion, only one of which addressed the behaviors that abusers use to control the victim." (Id.) In Ketchner, the court held that the "[p]rofile evidence tends to show that a defendant possesses one or more . . . characteristics . . . typically displayed by persons engaged in a particular kind of activity." Ketchner, 236 Ariz. at 264 (citation omitted). Because profile evidence "implicitly invit[es] the jury to infer criminal conduct based on the described characteristics," it "may not be used as substantive proof of guilt[.]" Ketchner, 236 Ariz. at 264-65.
Unlike Ketchner, the trial court limited the expert's testimony to four questions, and three of those questions concerned the victim's conduct. Given the limited scope and quantity of the testimony, the Arizona Court of Appeals was not objectively unreasonable when it decided counsel was not ineffective for deciding to bypass a weaker appellate issue. See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (stating "that appellate counsel's failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal").
The record is sufficiently developed and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Based on the above analysis, the Court finds that Petitioner's claims are not cognizable, procedurally defaulted, or fail. The Court will therefore recommend that the Petition for Writ of Habeas Corpus (doc. 6) be denied and dismissed with prejudice.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
Instead, he presents an unreviewable claim that his sentences should run concurrently under A.R.S. § 13-116. (Doc. 6 at 18-19.) See also Hiland v. Ryan, 2015 WL 3953945, at *3 (D. Ariz. 2015) (rejecting petitioner's similar request and finding "the determination of whether consecutive cumulative sentences, as opposed to concurrent cumulative sentences, can be imposed is a question of state law, not federal law."); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (holding that "claim regarding merger of convictions for sentencing is exclusively concerned with state law and therefore not cognizable in a federal habeas corpus proceeding").
