United States District Court, D. Arizona
Douglas E. Fuqua, Petitioner,
v.
Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States 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.)
I.
Summary of Conclusion.
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.
II.
Background.
A.
Facts of the Crimes.
The
Arizona Court of Appeals found:
The charges in this case arose from a domestic violence
incident that occurred on April 22 and 23, 2011, between
Fuqua and his then wife, Virginia. On April 22, Fuqua
initially became upset when dinner was not ready quickly
enough for them to take a ride before dark on his ATV
(“quad”). His conduct escalated after Virginia
informed him that her son had called to tell her that he
would be coming into town for her birthday. Fuqua began
calling Virginia a “dumb bitch” and
“stupid, ” and repeatedly asked her if she was
“going to leave” or “going to run.”
Virginia continually assured Fuqua that she was not going to
leave and attempted to “diffuse” the situation
and “calm him down, ” but Fuqua's agitation
“progressed into a constant state.”
During the early morning of April 23, while they were in bed,
Fuqua struck Virginia “[n]o less than 15 [times]”
with a large blue coffee mug that Fuqua kept on his
nightstand. Fuqua repeatedly asked her if she “was
going to bring this up the next morning” and
“show [him] these marks.” Virginia promised him
that she would not.
After the two arose the morning of April 23, Fuqua was still
angry, “[the anger] never really left.” Fuqua
told Virginia that he did not like hitting her, but that she
“caused all this.” Fuqua then began drinking
“a lot [of alcohol] quickly.”
Over the course of the morning, Virginia's phone rang
several times. She assumed it was her daughter, Jessica, or
her mother calling because she “had not checked
in” with them. Virginia did not answer her phone
because the fact that it was ringing and it was
“probably” her family calling
“agitated” Fuqua. Things were “not
pleasant, ” and Virginia did not want to “elevate
the situation.” However, when Jessica could not reach
her mother she called Fuqua's phone. At that point Fuqua
told Virginia to take the phone call because Jessica was
“not going to stop [calling].”
Virginia called Jessica and “alerted her to the
situation” without “say[ing] it like that.”
When Jessica asked Virginia if she should “get on a
plane and come right now” and whether Virginia
“need[ed] help, Virginia replied, “yes.”
Fuqua, who was sitting on the couch next to Virginia during
the conversation, began to state, “Go ahead, tell her,
red alert, red alert[, ] [r]ed alert, help, help, Mom needs
you.” Jessica heard Fuqua and told Virginia to
“get out.” So Virginia “just opened the
door” and ran to her car and locked herself inside.
Fuqua followed Virginia to her car, pounded on the window,
and yelled “[d]on't you leave, don't you
go.” When Virginia drove away, he “jump[ed] on
the quad” and followed her. Fuqua began hitting the
back of Virginia's car with his quad as she drove down
the road, causing her to lose control of her car and hit a
tree. After Virginia escaped from her car by exiting through
a window, Fuqua hit her on the head, pulled her hair, and
ordered her to get on the back of his quad. Fuqua kept
hitting Virginia's head with his elbow and yelling at her
during the ride back to his house, stating that her daughter
would call the police and telling Virginia that she
“caused this.”
Once inside the house, Fuqua continued striking and kicking
Virginia's head, face, and back while repeatedly telling
her that he would kill her and that he was “not going
back to prison because of you and you[r] dumb
daughter.” He retrieved a rifle, loaded it, held it so
that the tip of the rifle was touching Virginia's
forehead, and stated that he was going to “blow [her]
brains out ” because he was “not going back to
prison for you or anybody else.” He also began to
strike Virginia with a closed fist as the “situation .
. . elevated.” When sheriff's officers arrived at
the house, Virginia was able to “get their
attention” by mouthing the words “help me”
while pointing to Fuqua, so that the officers eventually
separated the two and she was able to tell the officers what
had happened.
State v. Fuqua, 2013 WL 1174094, at *2 (Ariz.Ct.App.
2013).
B.
Jury Trial and Sentencing.
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.)
C.
First Direct Appeal and Resentencing.
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.)
D.
Petitioner's Second Direct Appeal.
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.)
E.
Petitioner's First PCR Proceeding and
Resentencing.
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 ...