Shinsako v. Ryan

          HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:

          REPORT AND RECOMMENDATION

          Honorable Deborah M. Fine United States Magistrate Judge

         On January 7, 2019, Petitioner Norman Shigeru Shinsako (“Petitioner”), who is confined in the Arizona State Prison Complex-Eyman, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) (Doc. 1)^[1] and paid the filing fee (Doc. 7 at 1). The Court required an answer to the Petition (Doc. 7), which was filed on May 30, 2019 (Doc. 12). No reply was filed. This matter is ripe for decision. This matter is on referral to undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation (Doc. 7 at 4). As set forth below, undersigned recommends that the Petition be dismissed as untimely and a certificate of appealability be denied.

         I. PROCEDURAL HISTORY

         A. Clarifications

         At the outset, clarifications are necessary about the state court case numbers and about Petitioner's previous habeas matter with this Court. The Petition presently before the Court regards only Petitioner's criminal conviction in Yavapai County Superior Court case number CR201480437.

         Petitioner was convicted in two Yavapai County Superior Court cases, not three. Petitioner was convicted in Yavapai County Superior Court, case numbers CR201480437 and CR201580196. Case number CV201880006 was not a criminal prosecution, but a petition for habeas relief Petitioner filed in the Yavapai County Superior Court relating to the criminal conviction in CR201580196 (Doc. 12-2 at 10, 32-34).^[2] The Yavapai County Superior Court construed the habeas petition in CV201880006 as a successive petition for post-conviction relief (“PCR petition”) regarding the conviction in case number CR201580196, dismissed the petition without prejudice for failure to file a preceding PCR notice, and ordered that any successive PCR notice and PCR petition regarding the conviction in case number CR201580196 be filed under case number CR201580196 (Doc. 12-2 at 32-34).

         Petitioner previously filed a § 2254 Petition with this Court challenging his conviction in CR201580196. See Shinsako v. Ryan et al., Case No. CV-18-08007-PCT-GMS (D. Ariz.). In that case, relief was denied and the Clerk's Judgment is final (CV-18-08007-PCT-GMS (D. Ariz.) Docs. 20, 23, 24). Accordingly, any relief Petitioner seeks in this action relating to his conviction in CR201580196 or relating to CV201880006 is duplicitous of relief previously denied in Shinsako v. Ryan et al., CV-18-08007-PCT-GMS (D. Ariz.), and should not be considered. See Doc. 7 at 1, fn. 2.

         Because the sentencing in case number CR201580196 and the sentencing for probation violation in case number CR201480437 occurred on the same date, it is necessary to reference Yavapai County Superior Court case number CR201580196 in the background section below. Nevertheless, to be clear, this Report and Recommendation addresses only requested relief regarding Yavapai County Superior Court case number CR201480437.

         B. Yavapai County Superior Court Case Number CR201480437 Proceedings Relating to Timeliness of the Petition

         In Yavapai County Superior Court case number CR201480437, Petitioner was charged with three counts of luring a minor for sexual exploitation, class 3 felonies (Counts 1-3), and one count of attempted sexual conduct with a minor, a class 3 felony (Count 4) (Doc. 12-1 at 4-5). On January 12, 2015, Petitioner plead guilty to two counts of luring a minor for sexual exploitation, class 3 felonies (Counts 1 and 2) and one count of attempted sexual conduct with a minor, a class 3 felony and dangerous crime against children (Count 4) (Doc. 12-1 at 18). On February 23, 2015, the court suspended Petitioner's sentence and placed him on lifetime standard supervised probation for the Counts 1, 2, and 4 as well as imposed 120 days of incarceration in Yavapai County Jail (Doc. 12-1 at 10-16, 30-32). While the notice itself was not made part of the record by either party in this matter, according to the docket in Yavapai County Superior Court case number CR201480437, Petitioner received a “NOTICE: RIGHT TO REVIEW AFTER CONVICTION” on February 23, 2015 (Doc. 12-1 at 137).

         On November 16, 2015, in conjunction with the sentencing for Petitioner's guilty pleas in case number CR201580196, the Yavapai County Superior Court determined that Petitioner had violated his probation in case number CR201480437, revoked Petitioner's probation in case number CR201480437, and sentenced Petitioner in case number CR201480437 to concurrent terms of 3.5 years' incarceration for Counts 1 and 2, with 16 days of presentence-incarceration credit for each count, and reinstated lifetime probation for Count 4 (Doc. 12-1 at 44-49). On November 16, 2015, the same day as sentencing for the probation violation in case number CR201480437 and for the charges in case number CR201580196, Petitioner received a “NOTICE: RIGHT TO REVIEW AFTER CONVICTION” (Doc. 12-1 at 52, 137). The November 16, 2015, “NOTICE: RIGHT TO REVIEW AFTER CONVICTION” reflected case number CR201480437 and case number CR201580196, was signed by Petitioner, and stated that Petitioner had 90 days after the entry of judgment and sentence to file a PCR notice (Doc. 12-1 at 52). It is a fair inference that this is the same form of notice that Petitioner received on February 23, 2015 regarding case number CR201480437 when Petitioner was initially sentenced in case number CR201480437 (Doc. 12-1 at 137).

         Petitioner filed a timely PCR notice and petition regarding case number CR201580196 (see CV-18-08007-PCT-GMS (D. Ariz.) Doc. 11-1 at 61-63, 83-101, 120-122), but Petitioner did not file a timely PCR notice or petition in case number CR201480437. Petitioner did not file a PCR notice or petition regarding case number CR201480437 within 90 days of the original February 23, 2015 sentencing, and Petitioner did not file a PCR notice or petition regarding case number CR201480437 within 90 days of the November 16, 2015 sentencing for probation violation (Doc. 12-1 at 136-137).

         On September 18, 2017, long after the deadline for filing a PCR notice had passed in case number CR201480437, the superior court issued a “sua sponte” order in case number CR201480437 (Doc. 12-1 at 59). The September 18, 2017 order stated that the court had reviewed case number CR201480437 in view of an order dismissing Petitioner's Rule 32 petition relating to the other conviction [case number CR201580196] (Id.).^[3] The September 18, 2017 order found that in case number CR201480437, Petitioner “did not timely file a Rule 32 Petition” (Id.). Petitioner did not petition for review with the Arizona Court of Appeals or Arizona Supreme Court from the September 18, 2017 court order in case number CR201480437 (Doc. 12-1 at 136). Rather, on November 19, 2017, Petitioner filed an untimely PCR notice in case number CR201480437 (Doc. 12-1 at 61-62, 64, 136). In the untimely notice, Petitioner claimed that his trial counsel was ineffective, the prosecutor filed false charges for dangerous crimes against children, the plea agreement contained fraudulent charges, Petitioner was “duped” into signing the plea agreement, and the court had no jurisdiction (Doc. 12-1 at 61-62).

         II. PETITIONER'S HABEAS CLAIMS

         Petitioner names Charles L. Ryan as Respondent and the Arizona Attorney General as an Additional Respondent. Petitioner raises one ground for relief, alleging that his federal due process rights were violated because the state trial court lacked subject matter jurisdiction (Doc. 1 at 6, 11). Petitioner more specifically asserts that because the state was a party in his criminal case “there was a lack of subject-matter jurisdiction of the Superior Court of Arizona who usurped the power of the Supreme Court of the United States. Article 3, Section 2, that read in part: In all cases in which the state shall be a party, the Supreme Court shall have original jurisdiction” (Doc. 1 at 11).

         Respondents assert that the Petition was untimely filed, the ground therein procedurally defaulted as well as waived, and that the Yavapai County Superior Court did have subject matter jurisdiction over Petitioner's ...