NOT RECOMMENDED FOR PUBLICATION

File Name: 16a0040n.06

No. 14-5510

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

STEVEN CRAIG FULTS,

Petitioner-Appellant,

v.

ERIC QUALLS,

Respondent-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE MIDDLE 

DISTRICT OF TENNESSEE

BEFORE: KEITH, ROGERS, and GRIFFIN, Circuit Judges.

ROGERS, Circuit Judge. Steven Fults appeals the district court’s judgment denying 

habeas relief in this case concerning a possible Blakely v. Washington error at Fults’ sentencing

for five rape convictions. The sentencing court applied four statutory enhancements to increase

Fults’ sentence for each rape from eight to nine years’ incarceration. This resulted in an 

aggregate sentence of forty-five years. Fults argues that his sentence should be reduced to forty 

years, the presumptive sentence for five rape convictions. Fults is not entitled to a writ of habeas 

corpus under 28 U.S.C. § 2254, as the sentencing error, if any, was harmless.

This case arose from events involving a teenage victim and Fults, a middle school 

teacher. The following facts are taken from the opinion of the Tennessee Court of Criminal 

Appeals in State v. Fults, No. M2004-02092-CCA-R3-CD, 2006 WL 1896356, at *1–3 (Tenn. 

Crim. App. July 7, 2006) (alterations in original):
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The victim in this case, a minor, will be referred to by his initials. M.D. testified 

that he was born in 1986 and was seventeen years old at the time of the trial. He 

attended Barfield Elementary School in Rutherford County, where Defendant 

taught seventh grade social studies. M.D. said his home room was across from 

Defendant’s classroom, and he saw Defendant every day around the school.

Defendant let the students, including M.D., play with his collection of beanie 

babies and use the computer in his classroom.

M.D. said that he graduated from Barfield Elementary School in May 2000, and 

entered Riverdale High School in Rutherford County that fall. M.D. said that 

after he started high school, Defendant contacted him “out of the blue.”

Defendant asked M.D. if he wanted to work for him as an assistant for the 

Barfield Elementary School’s soccer team, which Defendant coached, and to help 

Defendant in his classroom. Defendant asked M.D.’s mother, Linda Devine, if 

her son could work for him, and Ms. Devine agreed. M.D. began working for 

Defendant two or three times a week, including Saturday when the soccer games 

were played. Defendant often picked M.D. up at his house when M.D. was 

scheduled to work for Defendant at the school or at a soccer game. M.D. said 

Defendant paid him “a lot,” sometimes as much as $50.00 to $70.00 for an 

afternoon of work. M.D. said that he and Defendant spent part of his working 

time talking about what was going on in M.D.’s life, including M.D.’s feelings 

about his father and his concerns about fitting into high school. These 

conversations took place in Defendant’s classroom after school was dismissed for 

the day. M.D. worked for Defendant about one year during which time no 

inappropriate conduct occurred.

One afternoon after they had attended a soccer game during M.D.’s sophomore 

year in the fall of 2001, Defendant told M.D. that he needed to drop some 

equipment off in the classroom. M.D. carried a black bag into the school, and 

some items in the bag clattered when he set the bag on the floor. M.D. testified 

that it sounded like video tapes. Defendant asked M.D. to straighten up the 

classroom. While M.D.’s back was turned, Defendant put a “dirty movie” in the 

VCR which depicted a man and woman engaging in sexual acts. Defendant asked 

M.D. what he thought about the movie, and M.D. said that he “started getting 

really freaked out.” Defendant started rubbing M.D.’s back. Defendant touched 

M.D.’s penis over his clothes and then unzipped his pants and performed fellatio 

on M.D. M.D. said that he did not do anything to stop Defendant, stating “I 

didn’t know what to do. I just stood there because I didn’t know what to think 

and I was scared.” M.D. said that Defendant started moaning “like he really liked 

it and started calling me, like, going oh baby, and things like that.”

M.D. testified:

[Defendant] just told me not to say anything and what it would do 

to me and people would think about me if they found out that I was 

doing these kind of things. And how they’d call me gay and 
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[Defendant told] me all the people that he knew and would always 

tell me like stories about how he could get people in trouble. . . . 

[Defendant] took me home, I didn’t talk to my mom, I went in the 

bathroom, and I threw up and my mom asked me what was wrong, 

and I just said it [was] something I ate. And I just stood in the 

shower because I felt dirty. Because that was the first time 

anything ever happened like that at all. I just stood in the shower 

and that was it. And I just went to bed because I just felt ashamed 

and embarrassed.

M.D. said that he trusted Defendant and looked up to him. Defendant told him 

“all the time” that he would take care of M.D. and that M.D. should look to him 

as his father because Defendant had never had a son.

On a second occasion in Defendant’s classroom, Defendant played a video tape of 

two men engaging in sexual activities. M.D. turned the recorder off because it 

“grossed him out.” Defendant told M.D., “you know, it’s not gay, . . . you need it 

just when you need it.” M.D. did not remember any sexual contact on this 

occasion.

M.D. said one sexual encounter occurred near Halloween. M.D. said that he was 

dating a girl from Riverdale High School, and he wanted to buy her a gift for her 

birthday on November 4, 2001. Defendant told M.D. that he could earn some 

money by cleaning Defendant’s classroom. Defendant stopped M.D. while he 

was working and performed fellatio on him. Defendant again told M.D. not to tell 

anyone. Defendant warned M.D. that they “had already done it so who could 

[M.D.] tell without people thinking that [he] was gay.” M.D. said that he was 

scared “and just whenever [Defendant] pretty much wanted to do it [M.D.] let 

him.” M.D. testified that his reputation was very important to him.

M.D. described three separate occasions which involved Defendant performing 

fellatio on him in the classroom around the holidays of Valentine’s Day, Easter, 

and Christmas; in the elementary school’s locker room; and in Defendant’s car in 

Barfield Park after M.D. got his learner’s permit to drive. M.D. said Defendant 

began coming to his house in the morning after his mother left for work. M.D. 

described three separate sexual encounters which occurred in his bedroom, in the 

kitchen, and in the living room. M.D. said that Defendant always touched other 

parts of his body, such as his legs, buttocks, and chest, while he engaged in oral 

sex. M.D. said that Defendant performed fellatio on him over one hundred times 

in Defendant’s classroom, and twenty-five to thirty times in M.D.’s house. M.D. 

said that “[i]t became so often, it was like a routine.” M.D. testified that 

Defendant performed oral sex on him about three times a week from sometime in 

the fall of 2001 until sometime in early 2003.

M.D. said that he was too embarrassed to tell his mother about the encounters. He 

acknowledged that Defendant gave him money, clothes, and a phone card. 
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Defendant started doing M.D.’s homework for him. M.D. saved $2,000, and 

Defendant found him a car to purchase.

M.D. said that he finally “forged up enough courage” and told Defendant he 

“didn’t want to do anything” anymore, and Defendant refrained from sexual 

contact for four or five months. At some point, Defendant told M.D. that he 

wanted to marry him and take care of him. Defendant said that M.D. “wouldn’t 

have to worry about anything.” M.D. told Defendant that he “couldn’t see him 

that way,” and Defendant cried.

In November 2003, a jury convicted Fults of five counts of rape, seven counts of 

statutory rape, and twelve counts of sexual battery by an authority figure. Id. at *1. The rape 

charges were premised on five instances of fellatio in Fults’ classroom and the Barfield 

Elementary School locker room, and the statutory rape charges were based on seven additional 

incidents occurring primarily in Fults’ classroom and the victim’s home. Id. *11–13. The facts 

underlying these two sets of charges also supported the twelve counts of sexual battery. Id. at 

*14. Fults was sentenced in March 2004 to five nine-year terms for the rape convictions, 

resulting in a combined sentence of forty-five years. Id. at *1. The statutory rape and sexual 

battery convictions did not increase Fults’ sentence, as the sentences for those convictions were 

to be served concurrently to the forty-five year sentence.

1

 Id. 

At the time of Fults’ sentencing, a Tennessee statute provided that “[a]bsent enhancing or 

mitigating factors, the presumptive sentence for Class B, C, D, and E felonies [is] the minimum 

in the applicable range.” State v. Gomez, 239 S.W.3d 733, 739 (Tenn. 2007) (Gomez II) (citing 

Tenn. Code Ann. § 40-35-210(c) (Supp. 2001)). Rape is a Class B felony. Because the 

sentencing range for each of Fults’ rape convictions was 8–12 years, the presumptive sentence 

was eight years per conviction. As permitted by the sentencing scheme, however, the sentencing 

court increased the sentence for each of the rape convictions to nine years by applying four 

 

1 On direct appeal, the Tennessee Court of Criminal Appeals merged three of Fults’ sexual battery convictions with 

three rape convictions. Fults, 2006 WL 1896356, at *16. The court also merged the seven statutory rape 

convictions with seven sexual battery convictions. Id. Fults’ effective sentence remained forty-five years.
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enhancements. First, tracking the language of the enhancement listed at Tenn. Code Ann. § 40-

35-114(4), the court found that “the victim of the offense is particularly vulnerable because of 

age or physical or mental disability.” The court reasoned that Fults “took advantage of [the 

victim’s] situation” because Fults “knew that [the victim] was without a father figure, [was] 

struggling financially, [and] had some behavior problems in school.” Second, applying § 40-35-

114(7), the court found that the rapes “w[ere] committed to gratify the defendant’s desire for the 

pleasure or excitement of th[e] act” based on the victim’s testimony that Fults moaned during the 

sexual acts. Third, the court held that in committing the offenses, Fults “abused a position of 

public or private trust” under § 40-35-114(14). This finding was based primarily on Fults’ 

position as a teacher. Lastly, the court applied the enhancement listed at § 40-35-114(15)

because Fults committed the rapes while on school property.

Soon after Fults’ sentencing, the Tennessee courts held that the state sentencing 

scheme—which allowed a court to find facts to enhance a sentence above a presumptive term—

did not contravene the Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 

(2000) and Blakely v. Washington, 542 U.S. 296 (2004). See State v. Gomez, 163 S.W.3d 632, 

657–59 (Tenn. 2005), vacated, 549 U.S. 1190 (2007). In Apprendi, the Court held that “[o]ther 

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable 

doubt.” 530 U.S. at 490. Blakely clarified Apprendi by holding that the “statutory maximum” is 

“the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury 

verdict or admitted by the defendant.” Blakely, 542 U.S. at 303 (citations and emphasis omitted). 

Following the Court’s decision in Cunningham v. California, 549 U.S. 270, 293 (2007), which 

invalidated a sentencing scheme nearly identical to Tennessee’s, “the Tennessee Supreme Court 
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acknowledged that [the state’s scheme] ‘violated the Sixth Amendment as interpreted by the 

Supreme Court in Apprendi, Blakely, and Cunningham.’” Lovins v. Parker, 712 F.3d 283, 289–

90 (6th Cir. 2013) (quoting Gomez II, 239 S.W.3d at 740). In this case, Warden Qualls has not 

contested that the sentencing court violated the Sixth Amendment by increasing Fults’ sentence

for each rape conviction above eight years without submitting the four enhancements to the 

jury.

2

 This judicial fact-finding therefore presumably constitutes a “Blakely error.”

After unsuccessfully appealing his convictions and sentence on multiple grounds in the 

state courts, Fults filed a petition in federal court for habeas relief under 28 U.S.C. § 2254. The 

district court denied the petition. The court dismissed the Blakely claim by conducting a brief 

harmless error analysis:

Based upon the record, the Court concludes that Petitioner clearly 

occupied a position of trust as a teacher. By his repeated sexual acts, petitioner 

abused the minor victim who had mental health issues and did so for a period of 

eighteen months. Many of the facts that were used to enhance the petitioner[’s 

sentence] by one year were already in evidence before the jury and were 

necessary factual predicates for the jury’s verdict. Thus, the clear majority of the 

facts that the state court cited to enhance Petitioner’s sentences by one year above 

the minimum sentence, were found by the jury . . . . In this factual context, the 

Court deems any Blakely violation to be harmless.

Fults was granted a certificate of appealability only as to the Blakely claim.

Fults’ habeas petition must be denied because the Blakely error was harmless. We are 

free of grave doubt that the jury would have found each of the four enhancements if the

sentencing court had properly submitted the enhancements to the jury. Because the error related 

to each enhancement was harmless, this appeal does not require deciding whether a petitioner’s 

Blakely claim may be denied if some but not all of the enhancements found by the sentencing 

 

2

In a case with analogous facts, we held that Blakely and Cunningham applied to a habeas petitioner’s sentencing, 

reasoning that retroactivity principles did not bar the petitioner from bringing a claim based on the holdings in those 

decisions. See Lovins, 712 F.3d at 298–99. Like the petitioner in Lovins, Fults’ conviction became final after

Blakely and Cunningham were decided.
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court are supported by the record. We also decline to reach the question of whether Fults 

procedurally defaulted his Blakely claim by failing to raise it on direct appeal, even though the 

parties briefed and argued that question. “[F]ederal courts are not required to address a 

procedural-default issue before deciding against the petitioner on the merits.” Hudson v. Jones, 

351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). This 

guidance has particular application in this case, where the procedural-default issue would 

potentially involve a complex analysis of state post-conviction judgments. We therefore proceed 

directly to the harmless error analysis.

The sentencing error was harmless because if the court had submitted the four 

enhancements to the jury, the jury would have found that the victim was particularly vulnerable, 

Fults committed the rapes to gratify his desire for pleasure or excitement, Fults abused a position 

of trust, and the rapes occurred on school property. The jury necessarily found the second and 

third enhancements beyond a reasonable doubt by convicting Fults of sexual battery by an 

authority figure, and the record contains sufficient evidence to support the remaining two 

enhancements. Harmless-error review applies because Blakely errors are not structural errors. 

Villagarcia v. Warden, 599 F.3d 529, 536 (6th Cir. 2010) (citation omitted). In cases involving 

collateral review of state decisions, the “state-friendly standard” from Brecht v. Abrahamson, 

507 U.S. 619 (1993) applies. Villagarcia, 599 F.3d at 536 (quoting Hereford v. Warren, 536 

F.3d 523, 532–33 (6th Cir. 2008)). This harmless-error standard asks whether an error “‘had 

substantial and injurious effect or influence’ on the outcome of the case.” Allen v. Parker, 542 F. 

App’x 435, 442 (6th Cir. 2013) (quoting Fry v. Pliler, 551 U.S. 112, 116 (2007)). In other 

words, a Blakely error is harmless unless there is “grave doubt” as to its harmlessness. 

Villagarcia, 599 F.3d at 537 (quoting Hereford, 536 F.3d at 533).
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The first enhancement, “victim vulnerability,” allows for enhancement of a sentence 

where a victim “was particularly vulnerable because of age or physical or mental disability.” 

Tenn. Code Ann. § 40-35-114(4). The record supports this enhancement because the victim had

attention deficit hyperactivity disorder (ADHD), depended on Fults as a father figure, was 

concerned about his reputation, and was threatened by Fults. The district court’s assessment that 

the victim was “an emotionally vulnerable student” with “mental health issues” was accordingly

strongly supported by the record.

The victim’s ADHD—a recognized mental disorder—caused him to forget things, have 

difficulty passing his classes, and lean on Fults for support. The victim’s trial testimony suggests 

that the victim was emotionally insecure, as he often shared with Fults his concerns about his 

reputation and fitting in with peers. These concerns could have rendered especially compelling

Fults’ threat that he would “tell people [the victim] was gay” if the victim exposed Fults’ 

misconduct. In addition, the record indicates that Fults assumed the role of a father with regard 

to the victim. For instance, the victim testified: “I kind of looked up to [Fults] as my dad, 

because I didn’t really have him around.” Similarly, Fults told another teacher that the victim

“d[id] not have much support” and Fults admitted that he “ha[d] been acting in the absence of 

[the victim’s] father for some time.” Also supporting the victim’s vulnerability was his age. 

Even though he was not a young child at the time of the crimes, that he was fifteen or sixteen 

made him more vulnerable than an adult to sexual advances by a teacher. These facts amply 

supported a finding of victim vulnerability.

In addition to vulnerability based on age or physical or mental disability, Tennessee 

requires a nexus between the vulnerability and the completed crime: “[T]he vulnerabilities of the 

victim[] [must have] some bearing on, or some logical connection to, ‘an inability to resist the 
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crime, summon help, or testify at a later date.’” State v. Lewis, 44 S.W.3d 501, 505 (Tenn. 2001)

(quoting State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997)). This aspect of the victim vulnerability 

enhancement, too, is compellingly supported by the record. The victim’s age, emotional 

insecurities, and ADHD, combined with Fults’ father-like role, made the victim less capable of 

resisting Fults’ sexual advances. In sum, the record does not create grave doubt that the jury 

would have found this enhancement to be satisfied beyond a reasonable doubt.

Fults argues that if this enhancement had been submitted to the jury, the jury could have 

accepted the defense’s trial portrait of the victim, which was of a sexually experienced, 

homosexual teenager who manipulated Fults into giving him rides to school and buying him 

things. This argument is unconvincing. In this § 2254 case, the question is not whether some 

evidence in the record supports Fults’ version of the events, but whether we have grave doubt 

that the jury would have found that the victim was particularly vulnerable to Fults’ rapes. As 

explained above, this enhancement has a sound basis in the record. Fults’ argument is further 

undercut by the fact that the jury disagreed with the defense portrait of the victim by convicting 

Fults of rape, statutory rape, and sexual battery by an authority figure, for a total of twenty-four 

convictions. This sentencing error was harmless.

The judicial fact-finding related to the second enhancement—which requires a crime to 

be “committed to gratify the defendant’s desire for pleasure or excitement,” see Tenn. Code Ann. 

§ 40-35-114(7)—was also harmless. This enhancement “requires ‘additional objective evidence 

[beyond the sex act itself] of the defendant’s motivation to seek pleasure or excitement through 

sexual assault.’” Allen, 542 F. App’x at 443 (alteration in original) (quoting State v. Arnett, 

49 S.W.3d 250, 262 (Tenn. 2001)). As an initial matter, the jury in fact found this enhancement 

by convicting Fults of five counts of sexual battery by an authority figure based on the facts 
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underlying the five rape charges. Sexual battery by an authority figure requires unlawful sexual 

contact, which is defined as “touching [that] can be reasonably construed as being for the 

purpose of sexual arousal or gratification.” Tenn. Code Ann. § 39-13-501(6). This definition of 

sexual contact is nearly identical to the text of the enhancement statute. See § 40-35-114(7). 

Because the jury convicted Fults of sexual battery for the same conduct that led to the rape 

convictions, the jury would have found that this enhancement was satisfied.

Even if the sexual battery convictions alone do not prove that the judicial fact-finding 

concerning this enhancement was harmless error, the victim’s testimony closes the matter. 

Words or actions by a defendant may show that a defendant’s motive was pleasure and not 

another motive, such as violence. The court in State v. Clabo, 905 S.W.2d 197, 207 (Tenn. 

Crim. App. 1995), for instance, rejected this enhancement for lack of such words or action. In 

this case, the victim testified that during the sexual activity, Fults “would just make these like 

sounds and just start moaning and stuff like he got something off about it, like he enjoyed it . . . . 

He just started like moaning and stuff like he really liked it and started calling me—going, oh, 

baby, and things like that.” This testimony indicates that Fults’ motive was sexual pleasure. 

Also supporting the sexual gratification enhancement is Fults’ act of showing the victim a 

pornographic video before at least one of the rapes, a fact that the Tennessee courts have 

recognized provides evidence of sexual gratification. See, e.g., State v. Aaron, No. M2002-

02288-CCA-R3-CD, 2004 WL 1533825, at *19 (Tenn. Crim. App. July 8, 2004).

Fults suggests that the record does not show that he demonstrated signs of sexual 

gratification during each rape, but this argument is without merit. When testifying about Fults’

moaning, the victim was referring to all of the instances of fellatio, not one discrete event.
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Nothing in the record suggests that Fults sought sexual gratification from only some of the rapes. 

The error related to this enhancement was harmless.

The victim’s trial testimony and the sexual battery convictions likewise support the third 

enhancement, which applies where a defendant “abused a position of public or private trust.” 

Tenn. Code Ann. § 40-35-114(14). This enhancement has two components: a defendant must 

both occupy and abuse a position of trust. State v. Kissinger, 922 S.W.2d 482, 488 (Tenn. 1996). 

As with the sexual gratification enhancement, the sexual battery convictions support finding the 

error concerning this enhancement to be harmless because one element of sexual battery requires

a defendant to “use[] [a] position of trust or [supervisory or disciplinary] power to accomplish 

the sexual contact.” Tenn. Code Ann. § 39-13-527(a)(3)(A). This element of the crime is nearly 

identical to the “abuse of position” enhancement. Even if the sexual battery convictions did not 

resolve the harmless-error question, Fults occupied a position of trust because he was a teacher, 

employed the victim, and acted as a surrogate father. Fults plainly abused those positions by 

committing multiple rapes. “The position[s] of parent, step-parent, babysitter, teacher, [and] 

coach are but a few obvious examples” of positions of trust. Kissinger, 922 S.W.2d at 488. 

Although Fults was not the victim’s teacher, Fults inherently occupied a position of trust with 

regard to students like the victim. Fults also retained supervisory power over the victim by 

employing him two or three times per week to help with soccer games. Fults did so with the 

permission of the victim’s mother, who “had no problems with [Fults]” in part because he was a 

teacher. Moreover, Fults assumed a father-like role with regard to the victim, telling the victim

to “start looking at me as your dad” and explaining to another teacher that Fults “ha[d] been 

acting in the absence of [the victim’s] father for some time now.” Fults thus occupied a position 

of trust in several capacities.
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The facts on this enhancement mirror the facts in Allen v. Parker, a recent unpublished 

decision that also addressed a state prisoner’s Blakely claim. In that case, we held that the 

putative Blakely error regarding the abuse-of-position enhancement was harmless, reasoning that 

the victim “lacked a male role model in his life,” the “victim’s mother approved of the friendship 

between [the defendant] and [the victim],” and the “victim spent substantial time at [the 

defendant’s] residence under his care and supervision.” Allen, 542 F. App’x at 444. Like Fults, 

the petitioner in Allen abused his position of trust by raping the minor victim. Id. at 437, 444. 

The same result as in Allen obtains in this case.

Lastly, grave doubt does not exist regarding the fourth enhancement, which the 

sentencing court applied on the basis that each of the five rapes occurred on school property. 

The jury was presented with five instances of rape—each occurring, as argued by the state, in 

Fults’ classroom or in the Barfield Elementary School locker room—and convicted Fults of all 

five counts. It is true that the jury was not required to find that the crimes occurred on school 

property to convict Fults of rape. It is also true that Fults only admitted that “[o]ne or two” of 

the fellatio incidents occurred on school property.3 However, nothing in the record suggests that

the jury convicted Fults of rape based on a crime occurring outside school grounds. Nor is it 

likely that the jury would have done so given that every rape charge was premised on conduct 

occurring at the school. Moreover, the victim’s testimony that four of the incidents occurred on 

school property supports the conclusion that this error was harmless. It is not clear whether the 

victim testified that the fifth incident occurred on school property, but he nonetheless stated that 

there was sexual contact in the classroom every time he went there for a period of time, and that 

the incidents in the classroom “were all pretty much the same.” In light of the state’s 

 

3 The sentencing court applied this enhancement by reasoning that it “was admitted” that the rapes occurred on 

school property.
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presentation of the case, we are free of grave doubt that the jury would have found that the five 

rapes occurred on school property.

The judgment of the district court is affirmed.