Schaffer v. Shinn

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Andrew Paul Schaffer, No. CV-20-08157-PCT-JAT 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. [14] 15 Pending before this Court is Petitioner’s Amended Petition for Writ of Habeas 16 Corpus filed pursuant to 28 U.S.C. § 2254 (“Petition”). The Magistrate Judge to whom 17 this case was assigned issued a Report and Recommendation (“R&R”) recommending that 18 the Petition be denied. (Doc. 11). Petitioner filed objections to the R&R (Doc. 14) and 19 Respondents responded to the objections (Doc. 15). 20 I. Review of R&R 21 This Court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). It is “clear that 23 the district judge must review the magistrate judge’s findings and recommendations de 24 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 25 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 26 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 27 de novo review of factual and legal issues is required if objections are made, ‘but not 28 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 2 [Magistrate Judge’s] recommendations to which the parties object.”). District courts are 3 not required to conduct “any review at all . . . of any issue that is not the subject of an 4 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 5 § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report 6 and recommendation] to which objection is made.”). 7 Accordingly, the Court will review the portions of the R&R to which Petitioner 8 objected de novo. 9 II. Factual and Procedural Background 10 The R&R summarized the factual and procedural background of this case, and 11 neither party objected to that summary. (Doc. 11 at 1-4). The Court accepts this portion 12 of the R&R. In short summary, Petitioner pled guilty to two counts of attempted sexual 13 exploitation of a minor, offenses which are classified as dangerous crimes against children. 14 (Id. at 2). The sentencing range was 10 years to 24 years, and the state court judge 15 sentenced Petitioner to the presumptive sentence of 17 years. (Id.). 16 III. Petition 17 The R&R concludes that the Petition in this case is barred by the Anti-Terrorism 18 and Effective Death Penalty Act’s statute of limitations. (Doc. 11 at 9). Alternatively, the 19 R&R concludes that the claim in the Petition was not exhausted in state court, without 20 excuse, and therefore the Court cannot reach the merits of the claim. (Doc. 11 at 12-15). 21 As a second alternative, the R&R concludes that the claim raised by Petitioner asserts an 22 error of state law and, therefore, is not cognizable as a basis for habeas relief. (Doc. 11 at 23 15-17). 24 A. Statute of Limitations 25 The R&R summarized the law governing the statute of limitations applicable to this 26 case. (Doc. 11 at 4-9). Neither party objected to that recitation of the legal standard. The 27 Court hereby accepts it. 28 Petitioner does not dispute that his Petition in this case is outside the one-year statute 1 of limitations. Thus, the Court accepts that the Petition in this case, after all statutory 2 tolling, was due by August 28, 2014, but not filed until June 29, 2020. (Doc. 11 at 5). 3 Nonetheless, Petition argues that Wright v. Gates, 243 Ariz. 118 (2017) was a 4 change in the law. (Doc. 14 at 4). The R&R notes that 28 U.S.C. § 2244 (d)(1)(D) creates 5 a new one-year statute of limitations for newly discovered factual predicates that form the 6 basis for habeas relief, but this section does not apply to newly discovered legal precedents. 7 (Doc. 11 at 7-8). Petitioner does not object to the R&R’s recommendation that Petitioner 8 is not entitled to relief from the statute of limitations under § 2244(d)(1)(D), and the Court 9 hereby accepts this recommendation. Moreover, even using the 2017 date Wright was 10 decided, Petitioner still filed the Petition in this case over one-year after the decision. 11 Thus, the Court finds that the Petition in this case is barred by the statute of 12 limitations and the Petition will be dismissed on this basis. 13 B. Exhaustion 14 Alternatively, the R&R recommends that this Court find that Petitioner’s claim was 15 not properly exhausted in the state courts. (Doc. 11 at 9-15). In summary, the R&R 16 concludes that Petitioner’s claim was not presented to the state court as a federal claim (id. 17 at 12), that Wright was not a change in the law as Petitioner alleges (id. at 14), that 18 Petitioner makes no actual innocence argument that would excuse him from his failure to 19 exhaust (id. at 15), and that Petitioner cannot make an actual innocence argument because 20 he admitted at the time of his plea that the images were of actual children (id. at 2, 15). 21 Although Petitioner states in his objections “Petitioner did not procedurally default 22 his Federal Habeas claim” (Doc. 14 at 4), Petitioner does not specifically object to any of 23 the conclusions in the R&R summarized above. Instead, Petitioner argues that he did not 24 waive his claims under Wright via his plea agreement because Wright did not exist at the 25 time he pled guilty. (Doc. 14 at 3). This Court agrees with both the state court and the 26 R&R that Wright did not change Arizona law. (Doc. 11 at 12, 14-15). Thus, Petitioner’s 27 argument that he did not waive any changes in the law in his plea agreement, even if 28 correct, would not entitle him to relief because Wright was not a change in the law as it 1 relates to Petitioner’s conviction. 2 Thus, Petitioner’s only objection with respect to the R&R’s conclusions on 3 Petitioner’s failure to exhaust is overruled. Accordingly, the Petition in this case is denied 4 for the alternative reason that the claim in the Petition was not exhausted in state court 5 without excuse to overcome the failure to exhaust and is now procedurally defaulted, and 6 thus, the Court cannot grant relief on the merits of the claim. 7 C. State Law Claim 8 As a second alternative reason the Petition should be denied in this case, the R&R 9 concludes that Petitioner’s claim under Wright is a purely state law claim that is not 10 cognizable on habeas. (Doc. 11 at 15-17). The Court agrees with the R&R that because 11 Petitioner’s only claim in this case is a sentencing error, if any error occurred, it was an 12 error of state law that is not cognizable on habeas. See (Doc. 11 at 16). Petitioner 13 effectively concedes that he is arguing an error of state law in his objections because he 14 argues that the state court erred in its application of Arizona Rule of Criminal Procedure 15 32 when the Court failed to treat Wright as a change in the law that would have permitted 16 Petitioner to bring a second petition for post-conviction relief under the Rule. (Doc. 14 at 17 4). Because Petitioner’s only claim in his Petition is not cognizable on habeas, the Petition 18 is denied for this additional alternative reason. 19 IV. Conclusion 20 Based on the foregoing, 21 IT IS ORDERED that the Report and Recommendation (Doc. 11) is accepted. 22 Petitioner’s objections (Doc. 14) are overruled. The Petition is denied and dismissed with 23 prejudice for all of the foregoing reasons, and the Clerk of the Court shall enter judgment 24 accordingly. 25 IT IS FURTHER ORDERED that pursuant to Rule 11 of the Rules Governing 26 Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of a 27 certificate of appealability because dismissal of the petition is based on several plain 28 procedural bar and jurists of reason would not find this Court’s procedural rulings debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 2 Dated this Ist day of November, 2021. [3] ° James A. Teilborg 6 Senior United States District Judge [28] _5-