Fuqua 215717 v. Unknown Party

• Court: District Court, D. Arizona
• Decided: March 8, 2023
• Docket: 3:22-cv-08018
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Michael Ray Fuqua, No. CV-22-08018-PCT-DJH

10 Petitioner, ORDER

11 v.

12 David Shinn, et al.,

13 Respondents. 14 15 After filing his Petition for Writ of Habeas Corpus, pro se Petitioner Michael Ray 16 Fuqua (“Petitioner”) sought permission from Magistrate Judge James Metcalf to expand 17 the habeas review record (“Motions to Expand” or “Motions”). (Docs. 25 and 32). In his 18 Report and Recommendation (“R&R”) on the underlying Petition, Magistrate Judge James 19 F. Metcalf recommends denying Petitioner’s Motions. (Doc. 34). Petitioner has since filed 20 a timely Objection to the R&R, in which he objects, in part, to the R&R’s conclusions on 21 his Motions. 22 This Court must “make a de novo determination of those portions of the report or 23 specified proposed findings or recommendations to which” a Petitioner objects. 28 U.S.C. 24 § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de 25 novo any part of the magistrate judge’s disposition that has been properly objected to.”); 26 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (same). After 27 reviewing those portions of the R&R de novo, the Court adopts the recommendations as 28 1 they pertain to Petitioner’s Motions and denies the same.1 2 I. Petitioner’s Motions to Expand (Docs. 25 and 32) 3 Petitioner seeks to add ten records in his first Motion to Expand the Record 4 (Doc. 25), which he filed concurrently with his Reply in support of his Petition. 5 Respondents provided eight of the ten records requested with their Response to the Motion, 6 and thus these documents are no longer at issue. (Doc. 27). However, Respondents 7 objected to Petitioner’s request that the habeas record be expanded to include (1) his state 8 grand jury proceeding transcripts and (2) the summary judgment filings from his prisoner’s 9 conditions lawsuit.2 (Doc. 27). Respondents argue that the grand jury proceeding 10 transcripts are sealed by state law, and that because none of these records were before the 11 state courts, 28 U.S.C. § 2254(e)(2) precludes them for consideration on federal habeas 12 review. Petitioner did not file a reply. 13 In his second Motion to Expand the Record (Doc. 32), Petitioner seeks to add (1) 14 audio recordings of his voice so that the Court can compare and conclude that the State 15 falsified evidence; (2) the State’s disclosure in his state court case; and (3) the state grand 16 jury proceeding transcripts (again). Respondents argue that only one of the audio 17 recordings requested were used in his state court proceeding, and thus there would be no 18 basis for comparison as the remainder were not considered by those courts. They further 19 contend that the requested disclosure of the “State’s Initial Disclosure” has been produced 20 and is complete because the State was not required to file with the state court all the 21 documents that accompanied the Disclosure Statement. Regarding the grand jury 22 proceedings, Respondents reiterate the arguments they made in their Response to the first 23 Motion. Petitioner again did not file a reply. 24 Magistrate Judge Metcalf recommends denying Petitioner’s Motions because the 25 requested files are not relevant to any of the claims or defenses in the Petition, and because 26 the records were not before the state courts. He says Petitioner cannot establish that

27 1 An Order on Petitioner’s Petition for Writ of Habeas Corpus will issue separately.

28 2 See Fuqua v. Butler, CV-07- 8051-PCT-NVW, Docs. 83-84, 86) (challenging his conditions of confinement during Petitioner’s first state PCR proceeding). 1 supplementation on federal habeas review is warranted under 28 U.S.C. § 2254(e)(2). 2 (Doc. 34 at 14). 3 II. Discussion 4 The standard to expand the state court record under the Antiterrorism and Effective 5 Death Penalty Act of 1996 (“AEDPA”) is stringent. 28 U.S.C. § 2254(e)(2) states that 6 If [a habeas] applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on 7 the claim unless the applicant shows that— 8 (A) the claim relies on— (i) a new rule of constitutional law, made retroactive to cases 9 on collateral review by the Supreme Court, that was previously 10 unavailable; or (ii) a factual predicate that could not have been previously 11 discovered through the exercise of due diligence; and 12 (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no 13 reasonable factfinder would have found the applicant guilty of the 14 underlying offense. These restrictions apply equally when a petitioner argues that other forms of new evidence 15 justify habeas relief, even without an evidentiary hearing. Shinn v. Ramirez, 142 S. Ct. 16 1718, 1738 (2022) (rejecting the argument that § 2254(e)(2) bars only “an evidentiary 17 hearing on the claim” and finding that when a habeas court “admits or reviews new 18 evidence for any purpose, it may not consider that evidence on the merits” unless the 19 exceptions in § 2254(e)(2) are satisfied). See also Holland v. Jackson, 542 U.S. 649, 653 20 (2004). 21 Petitioner does not object to the R&R’s factual or legal conclusions that the 22 documents sought in his Motions are not relevant and/or were not before the state courts 23 when they reviewed his claims. Instead, he says his failure to submit a reply to his second 24 Motion was because he never received Respondents’ Response. (Doc. 35 at 3). He also 25 generally argues that any failure to develop facts in the state court should be excused by 26 the unethical behavior of the state prosecutor and judge. (Id. at 4). 27 The Court overrules these objections. Petitioner does not explain what additional 28 1 || information or arguments he would have made in his reply in support of his second Motion 2|| to Expand, even assuming he did not receive Respondents’ Response.? And beyond || Petitioner’s generalized assertions that he was subject to bias and unethical behavior and 4|| rulings from the state prosecutor and judge, nothing supports his position that his failure to 5 || develop the factual record with the documents identified in his Motions should be excused. 6|| The stringent requirements of 28 U.S.C. § 2254(e)(2) preclude a federal court’s review of new evidence except in specific, exceptional circumstances. Petitioner has not shown that 8 || these circumstances exist here. 9 The Court has reviewed the R&R’s extensive findings on the Motions and agrees 10 || with the legal conclusions reached therein. 11 Accordingly, 12 IT IS ORDERED that Petitioner’s Motions to Expand (Doc. 25 and 32) are denied. 13 Dated this 8th day of March, 2023. 14 15 oC. . fe _ \Le 16 norable’ Diang/4. Hunfetewa 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 3 The docket reflects that notice was electronically mailed to Petitioner at Lewis_Rast_scanner@azcorrections.gov on September 23, 3022, at 4:49 p.m. MST.

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