United States District Court, D. Arizona
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 ...