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Shatzer v. Ryan

United States District Court, D. Arizona

November 5, 2014

CHARLES L. RYAN, et al., Respondents.


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.[1] On May 17, 2013, Respondents filed their Answer.[2] 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.[3] On May 2, 2014, Mr. Shatzer filed objections in the form of a Reply to the Report and Recommendation.[4]

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.


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.[5] 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.[6]

Mr. Shatzer filed a Notice of Post-Conviction Relief in the Arizona Superior Court on August 19, 2009.[7] After appointed counsel filed a notice to the Superior Court that he found no issues upon which to base a claim for relief, [8] 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";[9] and
2. That the trial court imposed an "excessive punishment when it enhanced his sentence 15 years above the statutory maximum."[10]

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.[11]

On January 22, 2010, the Superior Court issued an order dismissing Mr. Shatzer's Petition for Post-Conviction relief.[12] Mr. Shatzer petitioned for review to the Arizona Court of Appeals, and again raised the federal constitutional arguments.[13] On July 8, 2011, that court summarily denied review.[14] Mr. Shatzer then filed a Petition for Review with the Arizona Supreme Court, [15] which was summarily denied on January 4, 2012.[16]

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";[17]
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";[18] 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 court's failure to comply with Rule 17.2.a."[19]

Respondents filed an Answer on May 17, 2013, asserting that Mr. Shatzer had failed to exhaust his claims such that they are procedurally barred from review. Respondents also asserted, alternatively, that Grounds One and Three fail on the merits.[20]

On April 17, 2014, the Magistrate Judge issued the Report and Recommendation.[21] The R&R concluded that Mr. Shatzer had not exhausted his state court remedies on any of his claims and, because he could no longer do so, the claims were procedurally defaulted.[22] In the alternative, the R&R analyzed each of Mr. Shatzer's three grounds for relief on the merits, and concluded that they each failed.[23]

Mr. Shatzer's Reply objecting to the R&R was filed on May 2, 2014.[24] There, Mr. Shatzer stated that he "retract[s] the unexhausted claims, " but continues to pursue his arguments as to the illegality of his sentence.[25]


In accordance with the provisions of 28 U.S.C. § 636(b)(1), a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."[26] However, a district court must "make a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made."[27] But "[n]either the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct."[28] Additionally, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings."[29]


The Magistrate Judge found that Mr. Shatzer's federal constitutional arguments regarding ineffective assistance of counsel that were raised in Ground 2 and his arguments regarding the plea colloquy raised in Ground 1 were not exhausted, were procedurally defaulted, and failed on the merits.[30] Mr. Shatzer has not objected to these portions of the R&R's determination, and upon review, this Court accepts and adopts the Magistrate Judge's analysis on each of these topics.

Although the R&R concludes that none of Mr. Shatzer's claims had been properly exhausted, Mr. Shatzer nonetheless briefs certain claims in the Reply. Based upon that briefing, the Court will assume that, despite his stated retraction of unexhausted claims, Mr. Shatzer does not intend to withdraw Ground 3 of his Petition, which asserts that his constitutional rights under the Eighth Amendment were violated by the length of his sentence, or the portion of Ground 1 asserting violations of the Sixth and Fourteenth Amendments based on his assertion that the trial court enhanced his sentence absent a finding of the necessary elements.

Reading Mr. Shatzer's habeas petition and state court petition for post-conviction relief liberally, [31] the Court finds that these federal constitutional claims were adequately exhausted in the Arizona Superior Court and the Arizona Court of Appeals post-conviction proceedings, where Mr. Shatzer raised both his improper enhancement and excessive punishment claims, citing to the Fifth, Sixth, Fourteenth, and Eighth Amendments of the Constitution.[32] Upon review of the briefing to the state courts, and contrary to the Magistrate Judge's determination, the Court finds that these specific claims are more than similar, albeit not identical, to those raised in the Petition before this Court.[33] And because the Court finds that these claims were presented to the state courts, there is a presumption that they were adjudicated on the merits in those courts.[34]

The Court will therefore review de novo the merits of Mr. Shatzer's assertion under federal constitutional law regarding the enhanced sentencing elements and assertion that the sentence violates the Eighth Amendment.

Mr. Shatzer asserts that the trial court "assumed critical elements of the crime... even though the elements were absent and where no factual basis existed" in violation of his due process rights under the Fifth and Fourteenth Amendments of the U.S. Constitution.[35] His Reply to the R&R further refines this argument.

Many of Mr. Shatzer's arguments rely on Arizona statutes and the interpretation of Arizona precedent. Specifically, Mr. Shatzer asserts that his sentence was improperly enhanced because the trial court did not correctly apply the Arizona statute under which he was sentenced. He asserts that Arizona courts have interpreted A.R.S. § 13-705 (then § 13-604.01) to require an additional "triggering" element not present in his case without the additional elements required by Arizona precedents.[36] However, federal habeas relief is not available for errors of state law. Moreover, federal courts accept a state court's interpretation of state law. See Wilson v. Corcoran, 562 U.S. 1, 131 S.Ct. 13, 16 (2010) ("[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts." (emphasis in original)); Estelle v. McGuire, 502 U.S. 62, 67-668 (1991).[37] And a petitioner cannot "transform a state-law issue into a federal one merely by asserting a violation of due process." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). The Court, therefore, will not consider Mr. Shatzer's claims regarding the sentencing court's improper application of Arizona state court precedent.

With regard to Mr. Shatzer's assertion that his punishment is excessive, the Court acknowledges both Mr. Shatzer's and the trial court's conclusion that the sentencing statute at issue here is "[d]raconian."[38] Mr. Shatzer's objection to the R&R's analysis on this ground, however, is limited to his assertion that his sentence is excessive because the trial court misapplied Arizona precedents.[39] As noted above, these arguments are not cognizable in a federal habeas action.


1. The Report and Recommendation filed April 17, 2014 is accepted to the extent it finds that Ground Two and the Sixth Amendment violation alleged in Ground One of Mr. Shatzer's Petition were not exhausted.
2. For the reasons expressed herein, Mr. Shatzer's claim of excessive punishment under the Eighth Amendment and due process violations in connection with his plea and sentence were adequately presented to the state court. However, on the merits Mr. Shatzer has failed to demonstrate violations of the U.S. Constitution.
3. For the foregoing reasons, the Petition for Habeas Corpus is DENIED and DISMISSED with prejudice.
4. The Clerk of Court shall enter a final judgment accordingly.

IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because Mr. Shatzer has not "made a substantial showing of the denial of a constitutional right" as required by 28 U.S.C. § 2253(c)(2)[40] and any appeal would not be taken in good faith.[41] Any request for a Certificate of Appealability must be addressed to the Court of Appeals.[42]

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