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-ROS
10 Petitioner, ORDER
11 v.
12 Unknown Party, et al.,
13 Respondents. 14 15 Magistrate Judge James F. Metcalf issued a Report and Recommendation (“R&R”) 16 analyzing Petitioner Michal Fuqua’s petition for writ of habeas corpus. The R&R 17 recommends the petition be denied. (Doc. 34). Petitioner filed objections. (Doc. 35). 18 Based on those objections, the Court reviewed do novo the portions of the R&R Petitioner 19 argues are incorrect. Having done so, the R&R will be adopted in full. 20 BACKGROUND 21 In 2005, Petitioner was charged with various crimes related to the sale of dangerous 22 drugs. That same year, in a separate case, Petitioner was charged with conspiracy to 23 commit murder. That second case stemmed from Petitioner’s plan to arrange for the 24 murder of the informant in the drug-related case. (Doc. 20-10 at 22). The cases had 25 separate case numbers and were treated as separate matters from the beginning. However, 26 the prosecutor and Petitioner engaged in plea negotiations where both cases would be 27 resolved in a package deal. Petitioner rejected the offered plea and both cases proceeded 28 to separate trials. 1 Petitioner was convicted in both cases. The two cases have complicated post- 2 conviction histories, but the present case involves only the convictions on the drug-related 3 offenses. For purposes of understanding the history of the drug-related offenses, the 4 conspiracy conviction can be ignored. On March 7, 2007, Petitioner was sentenced for the 5 drugs-related offenses to numerous concurrent prison terms with the longest term being 6 19.75 years. On direct appeal, the Arizona Court of Appeals affirmed the convictions and 7 sentences. (Doc. 20-5 at 374). After the court of appeals’ decision Petitioner was granted 8 an extension of time through November 10, 2008, to seek review by the Arizona Supreme 9 Court. Petitioner did not file for such review. 10 A few weeks after the Arizona Court of Appeals’ decision on his direct appeal, 11 Petitioner commenced his first post-conviction relief proceeding in the state trial court. 12 (Doc. 20-5 at 376). Over the following months, that proceeding saw the appointment of 13 three different attorneys for Petitioner. Once the petition was fully briefed, the trial court 14 conducted multiple evidentiary hearings. Eventually, in January 2011, the trial court ruled 15 Petitioner had received ineffective assistance of trial counsel. (Doc. 20-8 at 2). The court 16 vacated the convictions and sentences. On April 9, 2013, the Arizona Court of Appeals 17 reversed that ruling. The appellate court found Petitioner had not established he suffered 18 prejudice because of his counsel’s allegedly deficient performance. Petitioner sought 19 review by the Arizona Supreme Court but, on November 26, 2013, the supreme court 20 denied review. To be clear, Petitioner’s first post-conviction relief proceedings terminated 21 in November 2013. 22 In December 2013, Petitioner filed a second petition for post-conviction relief in 23 state court. (Doc. 20-8 at 78). The second petition focused on alleged ineffective assistance 24 of counsel in Petitioner’s first post-conviction relief proceeding. The trial court denied all 25 relief. Petitioner sought review by the Arizona Court of Appeals, but that court summarily 26 affirmed stating there had been no abuse of discretion. (Doc. 20-11 at 117). The Arizona 27 Supreme Court denied review on November 8, 2021. (Doc. 20-11 at 119). Petitioner filed 28 his federal habeas petition on February 2, 2022. The petition was interpreted as asserting 1 four claims: 2 (1) Petitioner received ineffective assistance of trial counsel;
3 (2) Petitioner received ineffective assistance of appellate and post-conviction 4 relief counsel;
5 (3) Petitioner received ineffective assistance of counsel for his second petition 6 for post-conviction relief; and
7 (4) The Arizona Court of Appeals and Arizona Supreme Court erred in denying 8 Petitioner post-conviction relief.
9 (Doc. 14 at 2). 10 In answering the petition, Respondents conceded the petition is timely. (Doc. 20 at 11 5). But Respondents argued some of the asserted claims were not cognizable, some claims 12 were procedurally defaulted, and the claims that can be reached on the merits do not entitle 13 Petitioner to relief. 14 ANALYSIS 15 The R&R’s analysis can be divided into two parts. The R&R first analyzes those 16 claims that do not allege violations of federal law, i.e., claims not “cognizable” in a federal 17 habeas petition. The R&R then analyzes the claims that are “cognizable.” In the latter 18 group, the R&R concludes some of the claims cannot be reached because they were not 19 presented in state court. For those claims that were presented in state court and can be 20 reached in this proceeding, they fail on their merits. Petitioner filed objections to the R&R 21 but most of the objections are not to specific aspects of the R&R. 22 Petitioner’s objections include general arguments regarding the law that applies to 23 habeas proceedings. On the first page of his objections Petitioner seems to argue all the 24 statutes and caselaw that apply to petitions for writs of habeas corpus should be rejected. 25 According to Petitioner, “anti-defendant-prisoner legislation and cases . . . undermine the 26 Country’s trust in the U.S. Government” and violate Petitioner’s “fundamental right to 27 defend himself.” (Doc. 35 at 2). Petitioner references the Second Amendment as 28 establishing a right of self-defense. Petitioner concedes he is not entitled to “arms” in 1 prison, but he argues the right of self-defense means “anti-defendant-prisoner legislation 2 and cases” are unconstitutional because they deprive him of his right to self-defense. 3 Contrary to Petitioner’s request, however, the Court cannot reject all “anti-defendant- 4 prisoner” legal authority. Instead, the Court must apply currently applicable statutes and 5 caselaw when evaluating his petition. 6 Despite beginning his objections with general statements, Petitioner does make 7 specific objections to portions of the R&R. Where the Court can understand the specific 8 objections Petitioner is making, the Court has reviewed the relevant portion of the R&R de 9 novo. 10 I. Claims Two, Three, and Four 11 The R&R sets forth in considerable detail why the second, third, and fourth claims 12 are not cognizable in federal habeas. (Doc. 34 at 15-19). In brief, those claims present 13 various arguments regarding the failure of Petitioner’s counsel during his post-conviction 14 relief proceedings in state court. As explained by the R&R, there is no federal claim when 15 counsel is ineffective in the type of post-conviction relief proceedings at issue in this case. 16 As stated by the Ninth Circuit, “a person cannot raise a claim of ineffective assistance of 17 post-conviction relief counsel because he is not entitled to post-conviction relief counsel.” 18 Hunton v. Sinclair, 732 F.3d 1124, 1126 (9th Cir. 2013). 19 Petitioner’s objections do not make any clear argument regarding this conclusion. 20 He argues he was never “advised that . . . he did not have a right to effective counsel past 21 a certain point.” (Doc. 35 at 5). Assuming that is true, it does not change the fact that 22 Petitioner was not entitled to counsel in his post-conviction relief proceedings and, because 23 he was not entitled to counsel, Petitioner could not have received ineffective assistance of 24 counsel. Petitioner also argues it violates the Equal Protection Clause for Arizona to 25 provide counsel to individuals sentenced to death but not to criminal defendants not 26 sentenced to death.
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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-ROS
10 Petitioner, ORDER
11 v.
12 Unknown Party, et al.,
13 Respondents. 14 15 Magistrate Judge James F. Metcalf issued a Report and Recommendation (“R&R”) 16 analyzing Petitioner Michal Fuqua’s petition for writ of habeas corpus. The R&R 17 recommends the petition be denied. (Doc. 34). Petitioner filed objections. (Doc. 35). 18 Based on those objections, the Court reviewed do novo the portions of the R&R Petitioner 19 argues are incorrect. Having done so, the R&R will be adopted in full. 20 BACKGROUND 21 In 2005, Petitioner was charged with various crimes related to the sale of dangerous 22 drugs. That same year, in a separate case, Petitioner was charged with conspiracy to 23 commit murder. That second case stemmed from Petitioner’s plan to arrange for the 24 murder of the informant in the drug-related case. (Doc. 20-10 at 22). The cases had 25 separate case numbers and were treated as separate matters from the beginning. However, 26 the prosecutor and Petitioner engaged in plea negotiations where both cases would be 27 resolved in a package deal. Petitioner rejected the offered plea and both cases proceeded 28 to separate trials. 1 Petitioner was convicted in both cases. The two cases have complicated post- 2 conviction histories, but the present case involves only the convictions on the drug-related 3 offenses. For purposes of understanding the history of the drug-related offenses, the 4 conspiracy conviction can be ignored. On March 7, 2007, Petitioner was sentenced for the 5 drugs-related offenses to numerous concurrent prison terms with the longest term being 6 19.75 years. On direct appeal, the Arizona Court of Appeals affirmed the convictions and 7 sentences. (Doc. 20-5 at 374). After the court of appeals’ decision Petitioner was granted 8 an extension of time through November 10, 2008, to seek review by the Arizona Supreme 9 Court. Petitioner did not file for such review. 10 A few weeks after the Arizona Court of Appeals’ decision on his direct appeal, 11 Petitioner commenced his first post-conviction relief proceeding in the state trial court. 12 (Doc. 20-5 at 376). Over the following months, that proceeding saw the appointment of 13 three different attorneys for Petitioner. Once the petition was fully briefed, the trial court 14 conducted multiple evidentiary hearings. Eventually, in January 2011, the trial court ruled 15 Petitioner had received ineffective assistance of trial counsel. (Doc. 20-8 at 2). The court 16 vacated the convictions and sentences. On April 9, 2013, the Arizona Court of Appeals 17 reversed that ruling. The appellate court found Petitioner had not established he suffered 18 prejudice because of his counsel’s allegedly deficient performance. Petitioner sought 19 review by the Arizona Supreme Court but, on November 26, 2013, the supreme court 20 denied review. To be clear, Petitioner’s first post-conviction relief proceedings terminated 21 in November 2013. 22 In December 2013, Petitioner filed a second petition for post-conviction relief in 23 state court. (Doc. 20-8 at 78). The second petition focused on alleged ineffective assistance 24 of counsel in Petitioner’s first post-conviction relief proceeding. The trial court denied all 25 relief. Petitioner sought review by the Arizona Court of Appeals, but that court summarily 26 affirmed stating there had been no abuse of discretion. (Doc. 20-11 at 117). The Arizona 27 Supreme Court denied review on November 8, 2021. (Doc. 20-11 at 119). Petitioner filed 28 his federal habeas petition on February 2, 2022. The petition was interpreted as asserting 1 four claims: 2 (1) Petitioner received ineffective assistance of trial counsel;
3 (2) Petitioner received ineffective assistance of appellate and post-conviction 4 relief counsel;
5 (3) Petitioner received ineffective assistance of counsel for his second petition 6 for post-conviction relief; and
7 (4) The Arizona Court of Appeals and Arizona Supreme Court erred in denying 8 Petitioner post-conviction relief.
9 (Doc. 14 at 2). 10 In answering the petition, Respondents conceded the petition is timely. (Doc. 20 at 11 5). But Respondents argued some of the asserted claims were not cognizable, some claims 12 were procedurally defaulted, and the claims that can be reached on the merits do not entitle 13 Petitioner to relief. 14 ANALYSIS 15 The R&R’s analysis can be divided into two parts. The R&R first analyzes those 16 claims that do not allege violations of federal law, i.e., claims not “cognizable” in a federal 17 habeas petition. The R&R then analyzes the claims that are “cognizable.” In the latter 18 group, the R&R concludes some of the claims cannot be reached because they were not 19 presented in state court. For those claims that were presented in state court and can be 20 reached in this proceeding, they fail on their merits. Petitioner filed objections to the R&R 21 but most of the objections are not to specific aspects of the R&R. 22 Petitioner’s objections include general arguments regarding the law that applies to 23 habeas proceedings. On the first page of his objections Petitioner seems to argue all the 24 statutes and caselaw that apply to petitions for writs of habeas corpus should be rejected. 25 According to Petitioner, “anti-defendant-prisoner legislation and cases . . . undermine the 26 Country’s trust in the U.S. Government” and violate Petitioner’s “fundamental right to 27 defend himself.” (Doc. 35 at 2). Petitioner references the Second Amendment as 28 establishing a right of self-defense. Petitioner concedes he is not entitled to “arms” in 1 prison, but he argues the right of self-defense means “anti-defendant-prisoner legislation 2 and cases” are unconstitutional because they deprive him of his right to self-defense. 3 Contrary to Petitioner’s request, however, the Court cannot reject all “anti-defendant- 4 prisoner” legal authority. Instead, the Court must apply currently applicable statutes and 5 caselaw when evaluating his petition. 6 Despite beginning his objections with general statements, Petitioner does make 7 specific objections to portions of the R&R. Where the Court can understand the specific 8 objections Petitioner is making, the Court has reviewed the relevant portion of the R&R de 9 novo. 10 I. Claims Two, Three, and Four 11 The R&R sets forth in considerable detail why the second, third, and fourth claims 12 are not cognizable in federal habeas. (Doc. 34 at 15-19). In brief, those claims present 13 various arguments regarding the failure of Petitioner’s counsel during his post-conviction 14 relief proceedings in state court. As explained by the R&R, there is no federal claim when 15 counsel is ineffective in the type of post-conviction relief proceedings at issue in this case. 16 As stated by the Ninth Circuit, “a person cannot raise a claim of ineffective assistance of 17 post-conviction relief counsel because he is not entitled to post-conviction relief counsel.” 18 Hunton v. Sinclair, 732 F.3d 1124, 1126 (9th Cir. 2013). 19 Petitioner’s objections do not make any clear argument regarding this conclusion. 20 He argues he was never “advised that . . . he did not have a right to effective counsel past 21 a certain point.” (Doc. 35 at 5). Assuming that is true, it does not change the fact that 22 Petitioner was not entitled to counsel in his post-conviction relief proceedings and, because 23 he was not entitled to counsel, Petitioner could not have received ineffective assistance of 24 counsel. Petitioner also argues it violates the Equal Protection Clause for Arizona to 25 provide counsel to individuals sentenced to death but not to criminal defendants not 26 sentenced to death. According to Petitioner, “prison in Arizona is a harsher sentence than 27 death.” (Doc. 35 at 7). It does not violate the Equal Protection clause for the government 28 to subject differently situated individuals to different treatment. See, e.g., City of Cleburne, 1 Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (explaining Equal Protection Clause 2 “is essentially a direction that all persons similarly situated should be treated alike”). In 3 other words, Petitioner was not facing the death penalty and Arizona was free to treat him 4 differently than individuals facing the death penalty. 5 Despite Petitioner’s objection, the R&R is correct that claims two, three, and four 6 are not cognizable in a federal habeas proceeding. 7 II. Claim One 8 The R&R divides Petitioner’s first claim involving ineffective assistance of trial 9 counsel into five subparts, with one subpart containing ten discrete instances of ineffective 10 assistance. (Doc. 34 at 6-7). The R&R describes why some of the five subparts should be 11 deemed procedurally defaulted without excuse. Despite reviewing Petitioner’s objections, 12 it is not clear which aspects of the R&R’s analysis Petitioner believes is incorrect. Even 13 had Petitioner objected, however, de novo review establishes the R&R is correct because 14 Petitioner did not present the ineffective assistance of counsel arguments to each required 15 Arizona court. In fact, some arguments were not presented at all. The R&R concludes 16 there is no basis to excuse that failure and Petitioner’s objections do not provide any reason 17 to question the R&R’s conclusion. 18 The R&R also analyzes the alleged instances of ineffective assistance of counsel 19 Petitioner presented to the state courts and that must be resolved on their merits in this 20 proceeding. Because the state courts issued rulings rejecting Petitioner’s arguments, the 21 question is whether the state courts’ rulings were not just incorrect but “unreasonable.” 22 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). This is a particularly difficult standard 23 to meet in the context of claims alleging ineffective assistance of counsel. The state courts 24 were required to apply a deferential standard when determining the effectiveness of trial 25 counsel and a federal court must apply a deferential standard to the state courts’ decisions. 26 Thus, the state courts’ rejection of his various arguments regarding ineffective assistance 27 of counsel must be reviewed under a “doubly deferential” standard. Id. 28 The R&R analyzes the alleged instances of ineffectiveness of trial counsel and || concludes the state courts’ rulings regarding these instances were not objectively 2|| unreasonable. (Doc. 34 at 44) (listing instances of alleged ineffective assistance). || Petitioner’s objections seem to reargue the same points in his original petition that the R&R analyzes and rejects. The objections do not clearly identify any error in the R&R’s 5 || analysis. And even assuming Petitioner’s objections were appropriately specific regarding 6 || the R&R’s analysis on the exhausted claims, the state court’s rejections of Petitioner’s various theories were not objectively unreasonable.! 8 Accordingly, 9 IT IS ORDERED the Report and Recommendation (Doc. 34) is ADOPTED IN 10 || FULL with the additional analysis above. The Motions to Expand Record (Doc. 25, 32) 11 || are DENIED. The petition for writ of habeas corpus (Doc. 13) is DISMISSED WITH 12 || PREJUDICE. The Clerk of Court shall enter judgment and close this case. 13 IT IS FURTHER ORDERED the Motion for Certificate of Appealability (Doc. 39)is DENIED. Leave to proceed in forma pauperis and a certificate of appealability are 15 || DENIED because dismissal of the petition is justified by a plain procedural bar and 16 || reasonable jurists would not find the ruling debatable, and because Petitioner has not made || asubstantial showing of the denial of a constitutional right. 18 Dated this 15th day of September, 2023. 19 fo = 20 C | . ES . 21 Honorable slyn ©. Silver 02 Senior United States District Judge 23 24 25 26 27 1 The R&R recommends the Court deny Petitioner’s motions to expand the record. (Doc. 25, 32). Upon de novo review, the R&R is correct that expanding the record is not merited.
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