United States District Court, D. Arizona
ORDER DISMISSING PETITION FOR HABEAS CORPUS
SHARON L. GLEASON, District Judge.
Before the Court is the Petition for Writ of Habeas Corpus ("Petition") filed on January 2, 2013 pursuant to 28 U.S.C. § 2254 by Petitioner Kenneth Eugene Shatzer. On May 17, 2013, Respondents filed their Answer. On April 17, 2014, Magistrate Judge Steven P. Logan issued a Report and Recommendation ("R&R") recommending that the Petition be denied and dismissed with prejudice and that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied. On May 2, 2014, Mr. Shatzer filed objections in the form of a Reply to the Report and Recommendation.
For the reasons set forth herein, the Court accepts the Magistrate Judge's recommendation to deny the Petition and accordingly will dismiss the Petition with prejudice and deny a certificate of appealability and leave to proceed in forma pauperis.
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2009, Mr. Shatzer pleaded guilty to one count of child molestation, one count of sexual exploitation of a minor, two counts of attempted exploitation of a minor, and one count of misconduct involving weapons. On July 6, 2009, the Yavapai County Superior Court sentenced Mr. Shatzer to a 10-year term of imprisonment on the child molestation count and a 10-year term of imprisonment on the sexual exploitation of a minor count, to be served consecutively. Mr. Shatzer was sentenced to lifetime probation with sex offender conditions on the remaining counts.
Mr. Shatzer filed a Notice of Post-Conviction Relief in the Arizona Superior Court on August 19, 2009. After appointed counsel filed a notice to the Superior Court that he found no issues upon which to base a claim for relief,  Mr. Shatzer filed a Pro Per Petition for Post-Conviction Relief on January 14, 2010, asserting the following errors:
1. That the trial court imposed "an illegal sentence, tantamount to five consecutive sentences, contrary to law, on [Petitioner], when it enhanced his sentence [pursuant] to A.R.S. § 13.604.01 absent elements or allegations as required by statute and state and federal constitutions"; and
2. That the trial court imposed an "excessive punishment when it enhanced his sentence 15 years above the statutory maximum."
In his briefing, Mr. Shatzer cited to the Fifth, Sixth, and Fourteenth Amendments with respect to the sentencing enhancement, as well as the Eighth Amendment with respect to his excessive punishment argument.
On January 22, 2010, the Superior Court issued an order dismissing Mr. Shatzer's Petition for Post-Conviction relief. Mr. Shatzer petitioned for review to the Arizona Court of Appeals, and again raised the federal constitutional arguments. On July 8, 2011, that court summarily denied review. Mr. Shatzer then filed a Petition for Review with the Arizona Supreme Court,  which was summarily denied on January 4, 2012.
On January 2, 2013, Mr. Shatzer, appearing pro se, initiated this habeas action. In his Petition, Mr. Shatzer asserts three grounds for relief:
1. That his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments were violated because the trial court "failed to recognize that the Petitioner did not understand the nature of the accusation against him, " and "assumed critical elements of the crime (intentional and knowing conduct), even though the elements were absent and where no factual basis existed";
2. That he received ineffective assistance of trial counsel because counsel failed to object when the trial court "failed to comply with Ariz. R. Crim. P., Rule 17.2.a. by not advising the Petitioner of the elements of his charge and when the court imposed an enhanced sentencing statute" in violation of Mr. Shatzer's constitutional rights under the Fifth, Sixth, and Fourteenth Amendments"; and
3. That his constitutional rights under the Eighth Amendment were violated when the trial court sentenced him "in excess of the maximum allowed by law due to the ...