Opinion
2 CA-HC 2021-0007
01-27-2022
Major T. Kinney, Petitioner/Appellant, v. David Shinn, Director, Arizona Department of Corrections, Respondent/Appellee.
Major T. Kinney, Florence In Propria Persona Laura Conover, Pima County Attorney Myles Braccio, Appellate Division Chief By Maile Belongie, Deputy County Attorney, Tucson Counsel for Respondent/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20213294 The Honorable Gary J. Cohen, Judge
Major T. Kinney, Florence In Propria Persona
Laura Conover, Pima County Attorney Myles Braccio, Appellate Division Chief By Maile Belongie, Deputy County Attorney, Tucson Counsel for Respondent/Appellee
Presiding Judge Eppich authored the decision of the Court, in which Vice Chief Judge Staring and Judge Brearcliffe concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE
¶1 Appellant Major Kinney challenges the trial court's order denying his petition for writ of habeas corpus. We affirm.
¶2 Following a jury trial, Kinney was convicted of three counts of sexual conduct with a minor. The trial court sentenced him to consecutive, presumptive prison terms, the longest of which was life without the possibility of parole for thirty-five years. We affirmed Kinney's convictions and sentences on appeal. State v. Kinney, No. 2 CA-CR 91-0803 (Ariz. App. Dec. 31, 1992) (mem. decision). He has sought and been denied post-conviction relief at least three times.
¶3 In March 2021, Kinney filed a petition for writ of habeas corpus. He argued he had been "illegally restrained/confined" because he had been "charged with being '[i]n violation of A.R.S. § 13-604.01, '" which he asserted had been "recognized as unconstitutional . . . and repealed in 2008." Quoting Ex parte Royall, 117 U.S. 241, 242, 248 (1886), Kinney reasoned that if a statute pursuant to which a defendant is indicted is "repugnant to the constitution," then the court lacked subject matter jurisdiction and the prosecution against him is a "nullity." The trial court denied Kinney's petition, concluding it was "devoid of merit on its face," and noted that this court recently had denied the exact same argument in other cases. The court also noted that Kinney had waived his claim by failing to provide relevant authority to support it. This appeal followed.
Kinney also filed a motion for reconsideration of the trial court's denial of his petition for writ of habeas corpus, which the court denied after Kinney filed his notice of appeal. Because Kinney is not challenging the denial of his motion for reconsideration, a ruling the court lacked jurisdiction to make in any event in light of the filed notice of appeal, we do not address it further. See In re Marriage of Flores and Martinez, 231 Ariz. 18, ¶ 10 (App. 2012) ("[F]iling of a notice of appeal . . . divests the trial court of jurisdiction to proceed other than to issue orders in furtherance of the appeal and to address matters unrelated to the appeal."); see also Ariz. R. Civ. P. 7.1(e)(3) (motion for reconsideration not time-extending motion); Ariz. R. Civ. App. P. 9(e)(1).
¶4 On appeal, Kinney reasserts his claim. He contends that, because the indictment was "unconstitutional and void," the trial court lacked subject matter jurisdiction to try him. He also asserts that, because subject matter jurisdiction cannot be waived, the court erroneously found he had waived his claim.
Kinney also contends the trial court erroneously attempted to "rescue" the appellee from conceded error and asserts we should not consider the state's answering brief. Because he has failed to meaningfully challenge the court's ruling in this regard, we find this claim waived and decline to address it further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (failure to cite relevant authority and develop argument waives claim on review).
¶5 Generally, "[i]n Arizona, the writ of habeas corpus may be used only to review matters affecting a court's jurisdiction." In re Oppenheimer, 95 Ariz. 292, 297 (1964). Even assuming Kinney is correct that his indictment was flawed, however, a deficient charging instrument does not deprive a court of subject matter jurisdiction. See State v. Maldonado, 223 Ariz. 309, ¶ 13 (2010). The trial court therefore did not err in concluding Kinney was not entitled to relief. See State v. Cowles, 207 Ariz. 8, ¶ 3 (App. 2004) (appellate court reviews denial of petition for writ of habeas corpus for abuse of discretion).
¶6 Accordingly, we affirm the trial court's denial of Kinney's petition for writ of habeas corpus.