Opinion
No. CV-18-08193-PHX-DWL (JZB)
09-03-2019
Douglas E. Fuqua, Petitioner, v. Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
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 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.)
F. Second PCR Proceeding and Third Direct Appeal.
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.)
G. Petitioner's Federal Habeas Petition.
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:
(1) the state court violated the Fourteenth Amendment by affirming the Superior Court's vacatur of presentence credit as to certain counts where the State had not challenged Petitioner receiving the credit;(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.)
(2) his Fifth Amendment right not to be subjected to double jeopardy was violated;
(3) his Fifth, Sixth, and Fourteenth Amendment rights to a fair trial were violated based upon the admission of expert testimony over his objections; and
(4) his Sixth Amendment right to the effective assistance of appellate counsel was violated.
III. Bypass of Time Calculation.
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). Neither party has briefed this issue, so the interests of justice are again better served by reviewing the merits of Petitioner's claims.
Whether a mandate must issue when the Arizona Court of Appeals denies a petition for review is arguable. Arizona Rule of Criminal Procedure 32.4(a)(2)(C) provides that a successive PCR petition is due "thirty days after the issuance of the final order or mandate by the appellate court in the petitioner's first petition." This language suggests that some PCR proceedings may end with either a "final order" or "mandate." If no mandate issues in some cases, then a question of indefinite tolling for some defendants would be presented. Again, the Court does not need to resolve this issue.
IV. Procedural Default.
A. Exhaustion.
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).
B. Merits.
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)).
Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions. And an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice. Rather, as a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.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).
V. Ground One.
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 and 24.3 of the Arizona Rules of Criminal Procedure and could not be altered in a subsequent proceeding. (Id.)
Ariz. R. Crim. P. 26.16(a) provides that "[t]he judgment of conviction and sentencing on the judgment are complete and valid at the time the court orally pronounces them in open court."
Ariz. R. Crim P. 24.3(a) provides that
No later than 60 days of the entry of judgment and sentence or, if a notice of appeal has already been filed under Rule 31, no later than 15 days after the appellate clerk distributes a notice under Rule 31.9(e) that the record on appeal has been filed, the court may correct any unlawful sentence or one imposed in an unlawful manner.
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.").
V. Ground Two.
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." (Doc. 16-2, Ex. Z, at 171.) Petitioner made no other reference to the Double Jeopardy Clause and did not argue or cite to federal law in his argument. Petitioner asserts the same claim now.
Ariz. Rev. Stat. § 13-116 provides that
An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other, to the extent the Constitution of the United States or of this state require.
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 did not argue before, and does not argue now, that his underlying convictions fail the same-elements test. See Blockburger v. United States, 284 U.S. 299, 304 (1932) ("The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."); United States v. Dixon, 509 U.S. 688, 696 (1993) (the same-elements test "inquires whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution"). Certainly, Aggravated Assault, Kidnapping, and Criminal Damage contain distinct elements.
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").
VI. Ground Three.
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.
[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state remedies only if he characterized the claims he raised in state proceedings specifically as federal claims. In short, the petitioner must have either referenced specific provisions of the federal constitution or statutes or cited to federal case law.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.
VII. Ground Four.
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:
Fuqua also argues that the trial court abused its discretion by summarily dismissing his claims that his appellate counsel was ineffective for (1) failing to litigate the admissibility of testimony of the domestic violence expert; (2) failing to argue that the finding of dangerousness as to two counts was void; and (3) failing to challenge his consecutive prison sentences.
Again, to state a colorable claim of ineffective assistance of counsel, a defendant must show not only that counsel's performance fell below objectively reasonable standards, but that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. A strong presumption exists that appellate counsel provided effective assistance. State v. Febles, 210 Ariz. 589, 596 ¶ 20 (App. 2005). Appellate counsel is responsible for reviewing the record and selecting the most promising issues to raise on appeal. Id. at ¶ 19. As a general rule, appellate counsel is not ineffective for selecting some issues and rejecting others. State v. Bennett, 213 Ariz. 562, 567 ¶ 22 (2006). We view the matter from counsel's perspective at the time, and recognize that "a strategic decision to winnow out weaker arguments on appeal and focus on those more likely to prevail is an acceptable exercise of professional judgment." Febles, 210 Ariz. at 596 ¶ 20.
Under this standard, appellate counsel was not ineffective for failing to challenge the admissibility of the expert's testimony on appeal. After reviewing briefing and hearing argument, the trial court confirmed with the prosecutor that his purpose in calling this witness is "to explain to the jury why the heck a woman would stay in this relationship," and 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. This evidentiary ruling was subject to reversal only for an abuse of discretion. Appellate counsel was thus not ineffective for winnowing it out as a "weaker argument on appeal." See Febles, 210 Ariz. at 596 ¶ 20. The court accordingly did not abuse its discretion by dismissing this claim.(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").
VIII. Conclusion.
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.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 6) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
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.
Dated this 3rd day of September, 2019.
/s/_________
Honorable John Z. Boyle
United States Magistrate Judge