Opinion
No. CV-19-8006-PCT-GMS (DMF)
10-07-2019
Norman Shigeru Shinsako, Petitioner, v. Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT 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) 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.
Citations to the record as "Doc. #" without a preceding case number indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona in this case, Case No. CV-19-8006-PCT-GMS (DMF).
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). 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).
The Petition in the habeas matter presently before this Court properly lists the 201880006 Yavapai County Superior Court case number with a preceding "CV" (Doc. 1 at 1), designating a civil case, but the Screening and Service Order (Doc. 7) improperly lists the 201880006 Yavapai County Superior Court case number with a preceding "CR" (Doc. 7 at 1), which designates a criminal case. See Doc. 12-2 at 2 (this is the first page of the petition filed in the state court, which has the proper designation as "CV").
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.). 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).
In the order, the superior court conflates the two state court case numbers CR201580196 and CV201880006, the former being the criminal conviction addressed in Case No. CV-18-08007-PCT-GMS (D. Ariz.) and the latter being the state court habeas petition regarding such conviction, which was construed as a successive PCR petition (Doc. 12-2 at 32-34).
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 case in Yavapai County Superior Court case number CR201480437.
Petitioner raised a subject matter jurisdiction argument in his previous habeas proceeding in this Court (Case No. CV-19-8006-PCT-GMS (DMF)) regarding the conviction in Yavapai County Superior Court case number CR201580196. In the Report and Recommendation (Doc. 20), it was noted that, on the merits, "the Constitution of the State of Arizona vests original jurisdiction in its superior courts for '[c]riminal cases amounting to felony, and cases of misdemeanor not otherwise provided for by law.' Ariz. Const. Art. 6. § 14(4)" (Doc. 20 at 5).
III. LEGAL ANALYSIS
A. AEDPA Statute of Limitations
1. The Petition Was Filed Beyond The One Year Statute Of Limitations
A threshold issue for the Court is whether the habeas petition is time-barred by the statute of limitations. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs Petitioner's habeas petition because he filed it after April 24, 1996, the effective date of AEDPA. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)).
Under AEDPA, a state prisoner seeking federal habeas relief from a state court conviction is required to file the petition within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). If a defendant is convicted pursuant to a guilty or no contest plea in the Arizona state courts, then the first post-conviction proceeding is considered a form of direct review and the conviction becomes "final" for purposes of Section 2244(d)(1)(A) when the Rule 32 of right proceeding concludes or the time for filing such expires. Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) (conviction pursuant to plea agreement is final on expiration of the time for seeking Rule 32 relief).
Petitioner plead guilty, waiving his right to a direct appeal. Petitioner's Rule 32 PCR action in state court, "is a form of 'direct review' within the meaning of 28 U.S.C. § 2244(d)(1)(A)." Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007). As such, "AEDPA's one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or until the expiration of the time for seeking such proceeding or review." Id.
Petitioner's February 23, 2015 convictions in case number CR201480437 became final ninety (90) days after February 23, 2015 because Petitioner did not file a timely PCR notice within the ninety (90) days. Because the ninetieth (90th) day was Sunday, May 24, 2015, the convictions became final on Monday, May 25, 2015, and the statute of limitations began to run the following day, on May 26, 2015. Thus, Petitioner was required to file a federal habeas petition on or before May 25, 2016. See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) ("Excluding the day on which [the prisoner's] petition was denied by the Supreme Court, as required by Rule 6(a)'s 'anniversary method,' [AEDPA's] one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998 ... ."). Petitioner did not file the Petition until January 7, 2019, years beyond AEDPA's statute of limitations period had run (Doc. 1).
Petitioner's probation revocation sentencing on November 16, 2015 did not serve to extend or restart AEDPA's limitations period, because Petitioner's ground for relief herein - a constitutional rights violation based on asserted lack of subject matter jurisdiction for the criminal case - is a challenge to the underlying conviction and the factual predicate for the ground was known at the time of conviction. See Howe v. Ryan, CV 17-04699-PHX-DGC (MHB), 2018 WL 7117919, at *4 (D. Ariz. Dec. 28, 2018) (collecting cases holding that probation revocation does not extend the AEDPA statute of limitations where challenge is to the original conviction and sentencing).
District Judge Campbell adopted the Report and Recommendation in Howe v. Ryan, CV 17-04699-PHX-DGC (MHB), 2018 WL 7117919, at *4 (D. Ariz. Dec. 28, 2018). See CV 17-04699-PHX-DGC (MHB) Doc. 14.
Even if the probation revocation sentencing on November 16, 2015 had begun another AEDPA statute of limitations period, the Petition would still be untimely. Petitioner did not file a PCR notice or petition regarding case number CR201480437 within 90 days after November 16, 2015. Because the ninetieth (90th) day was Sunday, February 14, 2016, the ninety (90) days ran on February 15, 2016. One year later was February 15, 2017, which was still almost two years before the Petition was filed in this matter on January 7, 2019.
Therefore, unless an alternative starting date for the beginning of the limitations period applies, statutory and/or equitable tolling apply to render the Petition timely, or Petitioner has made a credible showing of actual innocence under Schlup v. Delo, 513 U.S. 298, 327 (1995), the Petition is time-barred because it was filed after the 1-year limitations period of 28 U.S.C. § 2244(d)(1)(A) expired.
2. Alternate Starting Date for Limitations Period
Under AEDPA, there are four possible starting dates for the beginning of the limitations period:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;28 U.S.C. § 2244(d)(1).
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
As discussed above, the Petition is untimely under the general starting date that begins the date on which a defendant's conviction became final. 28 U.S.C. § 2244(d)(1)(A). As discussed below, none of the other alternative starting dates in subsections (B), (C), or (D) are applicable.
First, Petitioner cites to no state action created "impediment" to filing a timely habeas petition. See 28 U.S.C. § 2244(d)(1)(B). Second, Petitioner does not attempt to rely on a new constitutional right recently "recognized by the [United States] Supreme Court" and "made retroactively applicable to cases on collateral review." 28 U.S.C. § 2244(d)(1)(C). Finally, Petitioner does not cite to any new "factual predicate" for his claims, that could not have been discovered earlier through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(D).
Therefore, the Petition, which was filed after AEDPA's statute of limitations ran, is time barred unless statutory and/or equitable tolling apply to render such timely or Petitioner has made a credible showing of actual innocence under Schlup v. Delo, 513 U.S. 298, 327 (1995).
3. Statutory Tolling
AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). A state post-conviction relief ('PCR") petition not filed within the state's required time limit, however, is not "properly filed," and the petitioner is not entitled to statutory tolling during those proceedings. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a post-conviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)."); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not "properly filed" under the AEDPA's tolling provision, and reiterating its holding in Pace, 544 U.S. at 414). Once the AEDPA limitations period expires, a subsequently filed state post-conviction proceeding cannot restart the statute of limitations. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (noting that the limitations period is not reinstated by applications for state post-conviction relief filed after expiration of the AEDPA statute of limitations). "A state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled." Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000). Further, a second PCR proceeding that is deemed untimely does not toll the time between the first and second PCR proceedings. Hemmerle v. Schriro, 495 F.3d 1069, 1075 (9th Cir. 2007).
Petitioner's November, 2017, PCR proceeding was not only untimely under state law, but it was initiated after AEDPA's statute of limitations had expired. Thus, the PCR proceeding did not toll, let alone restart, the statute of limitations.
4. Equitable Tolling
The U.S. Supreme Court has held "that § 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). AEDPA's limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. Id. at 645-46. It is Petitioner's burden to establish that equitable tolling is warranted. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) ("Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate.").
The Ninth Circuit Court of Appeals "will permit equitable tolling of AEDPA's limitations period 'only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.'" Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (quoting Calderon v. U.S. Dist. Ct., 163 F.3d 530, 541 (9th Cir. 1998) (en banc), abrogated on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003) (citations omitted)). Put another way, for equitable tolling to apply, Petitioner must show "(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way" to prevent him from timely filing a federal habeas petition. Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). "The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Id. at 653 (internal citations and quotations omitted). Whether to apply the doctrine of equitable tolling "'is highly fact-dependent,' and [the petitioner] 'bears the burden of showing that equitable tolling is appropriate.'" Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted); see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is "unavailable in most cases," and "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations and internal emphasis omitted).
Petitioner does not allege or argue for equitable tolling. After reviewing the record, undersigned concludes that neither the Petition nor the record sets forth grounds that would justify equitable tolling. Because Petitioner has not met his burden of showing that extraordinary circumstances made it impossible for him to file a timely federal habeas petition, equitable tolling is unavailable. Petitioner has also failed to meet his burden of showing reasonable diligence that would justify equitable tolling.
5. Actual Innocence Exception
If a district court finds that a federal habeas petition is untimely, the untimeliness may be excused in rare instances by an equitable exception to AEDPA's statute of limitations. In McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013), the Supreme Court held that the "actual innocence gateway" to federal habeas review that applies to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995), and House v. Bell, 547 U.S. 518 (2006), extends to petitions that are time-barred under AEDPA. See Schlup v. Delo, 513 U.S. 298, 329 (1995) (petitioner must make a credible showing of "actual innocence" by "persuad[ing] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt."). However, Petitioner does not argue, let alone meet, this excuse for untimeliness of the Petition. Given the guilty pleas, it is not surprising that this avenue is not one Petitioner pursued in his Petition.
IV. CONCLUSION
Based on the above analysis, the undersigned finds the Petition is untimely. The undersigned recommends that the Petition for Writ of Habeas Corpus (Doc. 1) be dismissed with prejudice. Assuming the recommendations herein are followed in the District Judge's judgment, the District Judge's decision will be on procedural grounds. Under the reasoning set forth herein, reasonable jurists would not find it debatable whether the District Judge was correct in its procedural ruling. Accordingly, to the extent the District Judge adopts this Report and Recommendation as to the Petition, a certificate of appealability should be denied.
Accordingly,
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 7th day of October, 2019.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge