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Shinsako v. Ryan

United States District Court, D. Arizona

May 28, 2019

Norman Shigeru Shinsako, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          G. Murray Snow Chief United States District Judge

         Pending 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.

         BACKGROUND

         Because 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).

         Magistrate 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.

         STANDARD OF REVIEW

         This 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).

         I. Procedural Bar and Exhaustion of State Remedies

         Shinsako first argues that the Magistrate Judge incorrectly determined that his entire petition was unexhausted and procedurally defaulted. (Doc. 21 at 2).

         The 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).

         To 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.

         Procedural 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 (1989).

         In the 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 omitted).

         A. Shinsako's Petition is ...


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