United States District Court, D. Arizona
Murray Snow Chief United States District Judge
before the Court is Magistrate Judge Deborah M. Fine's
Report and Recommendation (“R&R”), (Doc. 20),
which recommends that the Petitioner Norman Shigeru
Shinsako's Petition for the Writ of Habeas Corpus (Doc.
1) be denied. For the following reasons, the Court will adopt
the R&R and deny the petition.
no party has objected to the procedural background as set
forth in the R&R, the Court adopts the background set
forth therein. (Doc. 20 at 1-3).
Judge Fine recommends that Shinsako's Petition be denied
and dismissed with prejudice. Shinsako timely objects to the
Magistrate Judge's conclusion that his petition is
procedurally defaulted. Shinsako argues (1) that his petition
is not procedurally defaulted, (2) that the Yavapai Superior
Court lacked subject matter jurisdiction over him so his
conviction is void and (3) that his counsel was ineffective
in communicating the terms of his plea agreement.
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). “[T]he
district judge must review the magistrate judge's
findings and recommendations de novo if objection is
made, but not otherwise. United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (emphasis in original). District courts are not
required to conduct “any review at all . . . of any
issue that is not the subject of an objection.”
Thomas v. Arn, 474 U.S. 140, 149 (1985).
Procedural Bar and Exhaustion of State Remedies
first argues that the Magistrate Judge incorrectly determined
that his entire petition was unexhausted and procedurally
defaulted. (Doc. 21 at 2).
writ of habeas corpus affords relief to persons in custody in
violation of the Constitution, laws, or treaties of the
United States. 28 U.S.C. § 2241(c)(3). Review of
Petitions for Habeas Corpus is governed by the Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”). 28 U.S.C. § 2244 et seq.
For a state prisoner to obtain review of his federal claims
in federal court, he must first exhaust all available state
remedies. 28 U.S.C. § 2254(b)(1)(A).
exhaust state remedies, a prisoner must “fairly
present” his claims to the appropriate state court.
See Coleman v. Thompson, 501 U.S. 722, 731 (1991)
(holding that “a state prisoner's federal habeas
petition should be dismissed if the prisoner has not
exhausted available state remedies as to any of his federal
claims.”). A prisoner must describe “both the
operative facts and the federal legal theory on which his
claim is based so that the state courts have a fair
opportunity to apply controlling legal principles to the
facts bearing upon his constitutional claim.”
Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir.
2004) (citations omitted). In Arizona, for non-capital cases,
a petitioner does not exhaust a claim for purposes of federal
review unless he has presented it to the Arizona Court of
Appeals. Id. at 998.
default occurs when a petitioner has not exhausted his
federal habeas claim by first presenting the claim in state
court and is now barred from doing so by the state's
procedural rules (including rules regarding waiver and
preclusion). Castille v. Peoples, 489 U.S. 346, 351
event of procedural default, habeas review is foreclosed
absent a showing of “cause and prejudice.”
Reed v. Ross, 468 U.S. 1, 11 (1984). To demonstrate
cause, a petitioner must show that “some objective
factor external to the defense” impeded his efforts to
raise the claim in state court. Davila v. Davis, 137
S.Ct. at 2065 (internal citations and quotations omitted);
McCleskey v. Zant, 499 U.S. 467, 493 (1991).
“Prejudice is actual harm resulting from the alleged
constitutional violation.” Thomas v. Lewis,
945 F.2d 1119, 1123 (9th Cir. 1992) (internal quotation
Shinsako's Petition is ...