Fuqua v. Ryan

          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 ...