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May v. Ryan

United States District Court, D. Arizona

March 28, 2017

Stephen Edward May, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          Neil V. Wake Senior United States District Judge

         TABLE OF CONTENTS

         INTRODUCTION ............................................................................................................... 1

         BACKGROUND AND PROCEDURAL HISTORY ......................................................... 3

         LEGAL STANDARDS ON FEDERAL HABEAS REVIEW ........................................... 5

         ANALYSIS ......................................................................................................................... 7

         I. History of Arizona's Child Molestation Law .......................................................... 7

         II. Arizona Deprived May of Due Process of Law and of the Right to Be Found Guilty Only by Proof Beyond a Reasonable Doubt .................................. 12

         A. Due Process Limits States in Placing Burdens of Proof on Defendants .......... 13

         B. The Arizona Law Fails Under the Typical Supreme Court Criteria for Rejecting Unconstitutional Burden-Shifting .................................................... 16

1. Sexual Intent Has Always Been Essential to the Crime of Child Molestation ..................................................................................................... 17
2. Arizona's “Freakish Definition of the Elements” without Any “Sinister Significance” ................................................................................... 19
3. Arizona Repudiated Its Own History When It Shifted the Burden of Disproving Sexual Intent to Defendants ........................................................ 21

         C. Application of Due Process Analysis to the Arizona Burden-Shifting Scheme .............................................................................................................. 21

         III. Cause and Prejudice: Ineffective Assistance of Counsel ...................................... 25

         A. Prejudice ........................................................................................................... 25

1. The State Courts Unreasonably Applied Federal Law .................................. 26
2. It Is Likely May Would Have Obtained a Different Outcome ...................... 29

         B. Deficient Performance ...................................................................................... 32

         IV. Constitutional Challenge ....................................................................................... 35

         V. Harmless Error ....................................................................................................... 36

         INTRODUCTION

         Petitioner Stephen May was convicted under Arizona's child molestation law, which does not require the state to prove the defendant acted with sexual intent. Rather, once the state proves the defendant knowingly touched the private parts of a child under the age of fifteen, to be acquitted the defendant must prove his lack of sexual intent by a preponderance of the evidence. Arizona stands alone among all United States jurisdictions in allocating the burden of proof this way. Arizona is the only jurisdiction ever to uphold the constitutionality of putting the burden of disproving sexual intent on the accused.

         Pending before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge Michelle H. Burns (Doc. 35) regarding May's Petition for Writ of Habeas Corpus filed pursuant to Title 28, United States Code, section 2254 (Doc. 1). The R&R recommends that the Petition be dismissed with prejudice. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (Doc. 35 at 118 (citing Rule 72(b), Federal Rules of Civil Procedure; Rule 8(b), Rules Governing Section 2254 Proceedings).) May filed objections on October 20, 2015. (Doc. 38.) Defendants Charles Ryan and Thomas Horne (“the State”) filed a response on November 23, 2015. (Doc. 45.) May filed a reply on December 22, 2015. (Doc. 48.)

         The parties also submitted supplemental briefing on two cases decided since then. On June 29, 2016, May submitted a supplemental brief in light of the United States Supreme Court's decision in Dietz v. Bouldin, - U.S. -, 136 S.Ct. 1885 (2016). (Doc. 54.) The State responded. (Doc. 55.) May then submitted supplemental briefing on the Arizona Supreme Court's decision in State v. Holle, 240 Ariz. 300, 379 P.3d 197 (2016), on October 21, 2016. (Doc. 59.) A response and a reply were filed. (Docs. 60, 63.)

         The Court has considered all the briefing and reviewed the R&R de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo determination of those portions of the Report and Recommendation to which specific objections are made). May raised numerous claims in his petition, and for the most part the Court agrees with the Magistrate Judge's determinations, accepts the recommended decision within the meaning of Rule 72(b), and overrules May's objections. See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge”). May also raised concern that the R&R appeared to copy large volumes of text “virtually verbatim” from the State's briefing, including several background facts that were incorrect. (Doc. 38 at 13.) While this is concerning, none of the affected portions, including factual errors, make a material difference.

         This Court does reject the R&R's conclusions as to two of May's claims and its ultimate recommendation to dismiss his petition with prejudice. The R&R did not entertain May's claim that the burden-shifting statute and jury instructions are unconstitutional. The reason given is that May did not raise the claim at trial and did not show cause and prejudice for defaulting. But May has in fact shown cause and prejudice for the default based on ineffective assistance of his trial counsel.

         The state courts on collateral review also disavowed making any ruling on the merits of May's constitutional claim. Because no state court adjudicated the merits of May's constitutional claim, the question must be considered de novo here. But even if measured under the deferential standard of 28 U.S.C. § 2254(d)(1), an adjudication against May would be contrary to, or involve an unreasonable application of, clearly established Federal law, as decided by the Supreme Court of the United States.

         The State deprived May of his constitutional right to due process of law and proof of guilt beyond a reasonable doubt. By crafting its child molestation law as it did, Arizona spared itself from proving sexual intent and instead burdened May with disproving it. Absent sexual intent, however, all the conduct within the sweep of the statute is benign, and much of it is constitutionally protected. Nothing in the revised elements of the crime distinguishes wrongful from benign from constitutionally protected conduct. One must look to the defendant's burden of proof to see what this statute is really about, which is the same thing it has always been about: the defendant's sexual intent. This shifting to the accused of the burden of disproving everything wrongful (here the only thing wrongful) about the prohibited conduct cannot stand unless there are no constitutional boundaries on a state's ability to define elements, transubstantiate denials into affirmative defenses, and be master of all burdens of proof. The State argues precisely that in defense of May's conviction, that element-defining and burden-shifting are no longer part of justiciable constitutional law. But there are boundaries, some well-settled boundaries, and this statute crosses them at a brisk sprint.

         BACKGROUND AND PROCEDURAL HISTORY

         The R&R recites the detailed history of this case. (Doc. 35 at 2-40.) To provide context for the discussion below, the following summary may be helpful.

         On January 16, 2007, Stephen May was convicted in Arizona superior court on five counts of child molestation under sections 13-1410(A) and 13-1407(E) of the Arizona Revised Statutes. He was also acquitted on two counts. Section 13-1410 criminalizes “molestation of a child, ” which consists of “intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age.” Ariz. Rev. Stat. § 13-1410(A) (2009). “Sexual contact” is defined as “any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact.” Ariz. Rev. Stat. § 13-1401(3) (2015). The prohibition does not require that the intentional touching have a sexual intent, though section 13-1407(E) provides that as an “affirmative” defense, a defendant may assert “that the defendant was not motivated by a sexual interest.” Ariz. Rev. Stat. § 13-1407(E) (2008). Arizona law also places the burden on the defendant to prove the affirmative defense-that is, to disprove that he had a sexual intent-by a preponderance of the evidence. Ariz. Rev. Stat. § 13-205(A) (2006).

         May, a former school teacher and swim instructor, lived in a Mesa, Arizona apartment complex where he often taught children how to swim and played with them at the community pool. The charges against him arose from accounts by four children who said he touched them inappropriately. May's trial attorney, Joel Thompson, made no motion to dismiss the charges before trial. He did request a jury instruction that as a matter of statutory construction under section 13-1410(A) the state bears the burden of proving beyond a reasonable doubt that May touched the children with sexual intent. Thompson did not assert that the law would be unconstitutional if it placed the burden of disproving that on May. The State argued that because sexual intent is not a stated element under section 13-1410(A), the defendant has the burden of proving his own lack of sexual intent by a preponderance of the evidence. Accepting the State's position, the trial judge instructed the jury that the State must prove beyond a reasonable doubt only the described touching and the victim's age but that they must acquit if May proved by a preponderance of the evidence that the touching was not motivated by sexual interest.

         After several days of trial, the jury deliberated for two days but could not reach a verdict. (Doc. 35 at 21-22.) They gave the judge several notes indicating they were deadlocked, and the judge accordingly declared a mistrial and dismissed them. But just minutes after the proceedings were adjourned, the bailiff delivered a note stating that the jurors, who were still in the jury room gathering their things, wished to resume deliberations. (Doc. 35 at 22.) Neither side objected, and the jury reconvened. After nearly a full day of additional deliberation, the jury convicted May on five counts and acquitted him on two. (Doc. 35 at 23.) (An eighth count was previously severed and eventually dismissed.) May's attorney moved for new trial, arguing that the final jury instructions misstated Arizona law by requiring May to prove a lack of sexual intent. (Doc. 35 at 23.) Once again, Thompson did not assert the law or the jury instructions were unconstitutional. The judge denied the motion and later sentenced May to 75 years in prison, 15 years for each count. (Doc. 35 at 24.)

         After an unsuccessful direct appeal, May sought post-conviction relief in Arizona superior court. This collateral review proceeding was his first chance under Arizona procedure to raise a claim of ineffective assistance of counsel. See State v. Spreitz, 202 Ariz. 1, 3, 39 P.3d 525, 527 (2002) (holding that ineffective assistance of counsel may not be presented until post-conviction review). May argued that Thompson provided ineffective assistance at trial by not challenging the constitutionality of placing the burden on him to disprove sexual intent. The superior court denied relief because of procedural default without deciding the merits of the constitutional claim (Docs. 1-11; 1-13), and the state appellate court affirmed on the decision below (Doc. 1-17). The Arizona Supreme Court summarily denied review. (Doc. 1-20.)

         LEGAL STANDARDS ON FEDERAL HABEAS REVIEW

         A federal habeas court cannot review a state court's denial of relief based on adequate and independent state law grounds. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Thus, a defendant defaults on any claim not presented to state courts in accordance with the state's procedural rules, generally barring federal habeas review. Id. at 731-32. Exceptions apply where the defendant shows cause and prejudice for the default or a miscarriage of justice would result from upholding the default. See Schlup v. Delo, 513 U.S. 298, 314-15 (1995). One way a petitioner can establish cause is by showing the default resulted from ineffective assistance of counsel. Murray v. Carrier, 477 U.S. 478, 488 (1986).

         May did not challenge the constitutionality of Arizona's child molestation statute at trial, raising it for the first time in collateral proceedings. Since Arizona law required him to raise it at trial, May cannot raise the claim here absent a showing of cause and prejudice for his default.[1] See Ariz. R. Crim. P. 32.2(a)(3) (precluding post-conviction review of any claim that could have been raised at trial or on direct appeal). However, May contends his trial attorney was ineffective in not challenging the constitutionality of Arizona's child molestation law.[2]

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), federal habeas will not lie on claims decided on the merits by a state court unless the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A state court unreasonably applies federal law by “unreasonably extend[ing] a legal principle from [Supreme Court] precedent to a new context where it should not apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). The legal principles applied “must be found in the holdings, as opposed to the dicta, of [the Supreme] Court's decisions.” Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002) (citation and internal quotation marks omitted). To meet this standard an application of federal law cannot be merely erroneous; it “must have been objectively unreasonable.” Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks omitted).

         While federal courts may consider both the decision and the reasoning of the state courts, the Supreme Court has specified:

Under § 2254(d), a habeas court must determine what arguments or theories supported or . . . could have supported[] the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.

Harrington v. Richter, 562 U.S. 86, 102 (2011).

         This Court must therefore assess at the threshold whether the Arizona state courts committed either of the errors enumerated in section 2254 in rejecting May's contention of ineffectiveness of counsel to excuse his procedural default on his constitutional claim. Ineffective assistance of counsel is measured by the two-prong test in Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel must have performed deficiently, and this performance must have prejudiced the defendant. Id.

         ANALYSIS

         I. History of Arizona's Child Molestation Law

         Discussion of May's ineffectiveness and merits claims first requires an overview of the history and current state of Arizona's child molestation statutes.

         Separate from laws against sexual misconduct generally, Arizona's first prohibition specifically addressing child molestation appeared in the 1913 penal code:

Any person who shall wilfully and lewdly commit any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child under the age of fourteen years, with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison not less than one year.

Rev. Stat. of Ariz. (Penal Code) § 282 (1913).[3] That law had dropped out of the code by 1928, and not until 1965 did the state legislature pass a new law prohibiting sexual conduct with children in particular.[4] That year the legislature enacted section 13-653 of the Arizona Revised Statutes, providing:

A person who molests a child under the age of fifteen years by fondling, playing with, or touching the private parts of such child or who causes a child under the age of fifteen years to fondle, play with, or touch the private parts of such person shall be guilty of a felony . . . .

1965 Ariz. Sess. Laws, ch. 20, § 3. (The statute was renumbered to section 13-1410 in 1977. See 1977 Ariz. Sess. Laws, ch. 142, § 66.) While this prohibition did not expressly recite a sexual intent requirement, the Arizona Supreme Court took it to be implied, reasoning:

[F]rom both the word “molest” itself and the general intent of the Legislature as may be grasped from a reading of the statute as a whole, a scienter requirement is apparent. As we have said before, where a penal statute fails to expressly state a necessary element of intent or scienter, it may be implied. . . . [T]herefore, it is certainly possible for a doctor or parent to touch the private parts of ...

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