Berger v. Ryan, et al

Filing 26

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus (State/2254), Recommending Petition for Writ of Habeas Corpus (State/2254) be Denied and dismissed with prejudice. That a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made asubstantial showing of the denial of a constitutional right. Signed by Magistrate Judge Michelle H Burns on 7/11/11. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Morton Robert Berger,
Petitioner,

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vs.

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Charles Ryan, et al.,
Respondents.

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CIV 09-2689-PHX-DGC (MHB)
REPORT AND RECOMMENDATION

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TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:

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Petitioner Morton Robert Berger, who is represented by attorneys Herbert L. Ely and

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Daymon B. Ely, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254

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(Doc. 1). Respondents have filed an Answer (Doc. 11), and Petitioner has filed a Reply

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(Doc. 20).
BACKGROUND1

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On August 1, 2002, the Maricopa County Grand Jury returned an indictment charging

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Petitioner with 35 counts of sexual exploitation of a minor, class 2 felonies and dangerous

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crimes against children, in violation of A.R.S. §§ 13-3553, 13-3551, and 13-604.01. (Exh.

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A, Item 1.) The indictment alleged that Petitioner committed these crimes “on or about the

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6th day of June, 2002,” by knowingly receiving, purchasing, or possessing “any visual

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depiction in which a minor under fifteen years of age is engaged in exploitive exhibition or

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other sexual conduct.” (Id.)

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Unless otherwise noted, the following facts are derived from the Exhibits submitted
with Doc. 11 – Respondents’ Answer.

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On January 28, 2003, the first day of Petitioner’s trial, the State moved to dismiss 15

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of the original 35 counts of the indictment (Counts 2, 7, 10-12, 15-17, 24, 26, 28-30, 33, and

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34). (Exh. B, Item 65; Exh. E at 3-5.) The parties stipulated to renumbering the remaining

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charges Counts 1 through 20. (Exh. A, Items 62-63; Exh. B, Item 65; Exh. F at 2-3.) During

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the ensuing 2-day trial, the State presented the following evidence.

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At approximately 8:30 p.m. on June 6, 2002, Phoenix Police Detective Chris Curley

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and FBI Agent Hancock conducted a “knock and talk” at Petitioner’s residence to investigate

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whether Petitioner had downloaded any child pornography from various Internet sites.2 (Exh.

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F at 26, 37-40, 46, 51-53, 55.) The two officers identified themselves, informed Petitioner

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that they were investigating allegations that he possessed child pornography, and asked

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Petitioner for consent to search for contraband inside his residence. (Id. at 37-40, 55-57.)

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Petitioner agreed, admitted Detective Curley and Agent Hancock into his house, and told

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Curley that he had used his computers to access Internet child-porn sites. (Id. at 40, 56-57.)

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Based upon Petitioner’s admissions, Curley obtained a search warrant. (Id. at 40-41, 58-59.)

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While his fellow officers were executing the search warrant, Detective Curley read

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Petitioner his Miranda rights and obtained a waiver thereof. (Id. at 60-65.) Petitioner told

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Curley that he had “downloaded some things that he was not proud of, and was not sure if

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he should have downloaded them or not.” (Id. at 66.) Petitioner identified the two home

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computers that he had used to access child pornography. (Id. at 66-68.)

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Petitioner admitted that he had downloaded images of young girls involved in sexual

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conduct from “all over” the web. (Id. at 72-74.) Petitioner acknowledged downloading

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“questionable material” only a couple days earlier, but could not recall anything about the

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According to the record, another law enforcement agency provided the Phoenix
Police Department with the names, addresses, and credit card numbers of customers from a
list seized from an Internet child pornography ring in Dallas, Texas, during “Operation
Avalanche.” (Exh. A, Items 8, 25, 51.) The trial court did not allow the State to introduce
evidence regarding this investigation, but instead allowed Detective Curley to testify that he
had obtained Petitioner’s name and address from “a list dealing with child pornography.”
(Exh. B, Item 65; Exh. E at 6-8.)
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material. (Id. at 74.) While searching Petitioner’s bedroom closet, the police found a

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newspaper clipping of an article reporting the arrest of a Glendale police officer for

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possessing child pornography. (Id. at 85-89.)

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Besides Petitioner’s computers, floppy disks, and CDR (a device used to record

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images onto computer disks), the police seized three 3-ring binders, which contained

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numerous downloaded and sexually-explicit photographs of children; Petitioner wrote his

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name on the inside cover of one of these three albums, all of which were seized from the

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closet of his computer room. (Id. at 77, 83-85, 89-100.)

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In all, “the trial evidence established that [Petitioner] possessed numerous videos and

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photo images of children, some younger than ten years old, being subjected to sexual acts

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with adults and other children, including images of sexual intercourse and bestiality. The

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jury also heard testimony indicating that, from 1996 to 2002, [Petitioner] had downloaded

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computer files containing child pornography; he had identified several ‘favorite’ websites

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with titles indicating they provided child pornography; he had recently viewed contraband

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material; and he had created both computer and hard copy filing systems to maintain his

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collection.” State v. Berger, 134 P.3d 378, 380 (Ariz. 2006).

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The trial court gave the jury the following instruction defining the elements of his

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charged offenses: “A person commits the crime of Sexual Exploitation of a Minor by

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knowingly receiving and/or possessing any visual depiction in which a minor is engaged in

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exploitative exhibition or other sexual conduct.” (Exh. A, Item 67 at 6; Exh. G at 62.) Based

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on the aforementioned evidence, the jury convicted Petitioner of all 20 counts and issued a

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special verdict finding that the depicted children were less than 15 years old. (Exh. A, Items

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71-90; Exh. B, Item 92.)

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Prior to trial, on October 16, 2002, Petitioner filed with the trial court a pleading
captioned, “Motion to Hold Statute [A.R.S. § 13-3553] Unconstitutional as Cruel and
Unusual Punishment.” (Exh. A, Item 30.) Petitioner based this motion on the Eighth
Amendment to the United States Constitution and Article II, Sections 4 and 15 of the Arizona

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Constitution. (Id.) Petitioner’s motion recited the sentencing ranges for possession of child

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pornography in 50 other state and federal jurisdictions, as well as the sentencing ranges for

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other crimes in Arizona. (Id.) On October 22, 2002, the State filed its response opposing

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Petitioner’s constitutional challenge as both premature and lacking merit. (Exh. A, Item 32.)

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The court heard argument on December 13, 2002, but ultimately decided to defer ruling

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because Petitioner had not been convicted of any of the charged offenses. (Exh. B, Item 50;

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Exh. D at 9-20.)

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Because the guilty verdicts made Petitioner’s pretrial constitutional challenge to

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A.R.S. § 13-3553 ripe, the trial court delayed sentencing until it had ruled on whether the

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statute required the imposition of prison terms violating the Eighth Amendment’s prohibition

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on cruel and unusual punishment. Following the standard set forth in State v. DePiano, 926

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P.2d 494 (Ariz. 1996), the trial court denied Petitioner’s motion because it found no gross

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disproportionality between the prescribed statutory sentencing range and Petitioner’s criminal

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conduct. (Exh. B, Item 94.)

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The trial court subsequently imposed 20 mitigated, 10-year prison terms, and ordered
the terms to run consecutive to each other, as mandated by A.R.S. §§ 13-604(K) and -3553.
(Exh. B, Item 98.)

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On March 7, 2003, Petitioner filed a timely notice of appeal from the trial court’s
judgments and sentences. (Exh. A, Item 99.) On September 3, 2003, Petitioner filed with
the Arizona Court of Appeals an opening brief raising five arguments, including the claim
that he received “a life sentence” in violation of the Eighth Amendment and Arizona’s
corresponding constitutional provisions, as a result of A.R.S. §§ 13-3553 and -604.01’s
provisions mandating that he serve his twenty 10-year prison terms consecutively. (Exh. I
at 1, 4-12.) Petitioner compared the punishment for his crime against the sentences
statutorily available for other crimes in Arizona, and against the sentences that he could have
received in other states for committing the same crime within those jurisdictions. (Id.)
Petitioner appended to his brief photocopies of the child pornography and sentencing statutes

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from all 50 states. (Exh. I, Appendices.) Based upon his intra- and inter-jurisdictional

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comparisons and his self-characterization as a non-recidivist who merely possessed

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contraband images, Petitioner maintained that his sentences constituted cruel and unusual

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punishment. (Exh. I at 4-12.)

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On November 17, 2003, the State filed its answering brief, wherein it argued that: (1)

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Petitioner incorrectly framed the issue by contending that he was given a life sentence,

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because the Eighth Amendment’s analysis focuses upon the sentence a defendant receives

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for each crime, not the aggregate total of his prison terms; (2) Petitioner’s intra- and inter-

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jurisdictional analyses were irrelevant because his 10-year prison term was not grossly

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disproportionate to the serious crime of sexual exploitation of a minor; and (3) alternatively,

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extended Eighth Amendment analysis did not demonstrate that Petitioner’s sentences were

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cruel and unusual punishment. (Exh. J at 11-21.)

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On January 12, 2004, Petitioner filed his reply brief reiterating his prior arguments and
citing the Arizona Supreme Court’s recent decision in State v. Davis, 79 P.3d 64 (Ariz.
2003), which overruled DePiano, the case upon which the trial court relied in rejecting his
Eighth Amendment challenge prior to sentencing. (Exh. B, Item 94; Exh. K at 1-7.)

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On December 14, 2004, a divided panel of the Arizona Court of Appeals issued an
opinion in which the majority found Petitioner’s sentences did not violate the Eighth
Amendment and therefore upheld his consecutive prison terms.3 (State v. Berger (hereinafter
“Berger”), 103 P.3d 298 (Ariz. Ct. App. 2004), vacated in part by State v. Berger (hereinafter
“Berger II”), 134 P.3d 378 (Ariz. 2006)).
On March 11, 2005, Petitioner filed with the Arizona Supreme Court a petition for
review raising only one issue:
Are the cruel and unusual punishment clauses of the Arizona and Federal
constitutions violated when a 52 year old high school teacher with no criminal
record is sentenced to a 200 year flat-time sentence with no possibility of early

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The court unanimously rejected Petitioner’s other claims. See Berger, 103 P.3d at

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release upon his conviction of possession of child pornography and in the
absence of any actual sexual misconduct with children[?]

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(Exh. M at 1.)

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On April 8, 2005, the State filed its opposition to Petitioner’s request for review.

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(Exh. N.) On January 6, 2006, the Arizona Supreme Court granted review and invited

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supplemental briefing. (Exh. O.) On January 26, 2006, Petitioner filed his supplemental

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brief, which was limited to reporting the sentences imposed in 10 other Arizona criminal

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cases for crimes other than child pornography possession, and an appendix of supplemental

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authority containing an “updated survey of state child pornography statutes.” (Exh. P.) On

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the same date, the State filed its supplemental brief. (Exh. Q.) On February 6, 2006, the

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State filed supplemental citations of authority, to report that 14 other states had recently

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enacted legislation increasing the punishment for possessing or receiving child pornography

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images. (Exh. R.)

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On May 10, 2006, in a 4-1 decision, the Arizona Supreme Court held that: (1) the
Eighth Amendment analysis for consecutive prison terms focuses on the sentence imposed
for each specific crime, not the aggregate or cumulative length of the defendant’s sentences;
(2) the 10-year prison term that Petitioner received for each count was not grossly
disproportionate to the crime of sexual exploitation of a minor; and (3) his sentences
therefore did not constitute cruel and unusual punishment. (Berger II, 134 P.3d at 383-88.)

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In its Opinion, the court first examined the legislative history and purpose of A.R.S.
§ 13-3553. See Berger II, 134 P.3d at 382-83. The majority began by noting, “[i]t is evident
beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and
psychological well-being of a minor’ is ‘compelling,’” and that “the use of children as
subjects of pornographic materials is harmful to the physiological, emotional, and mental
health of the child.” Id. at 382 (quoting Osborne v. Ohio, 495 U.S. 103, 109 (1990)). The
majority acknowledged that the victims of child pornography continue to suffer substantial
harm long after the material’s production. See id. (citing United States v. Sherman, 268 F.3d

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539, 547 (7th Cir. 2001), for the proposition that “[t]he possession, receipt and shipping of

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child pornography directly victimizes the children portrayed by violating their right to

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privacy, and in particular violating their individual interest in avoiding the disclosure of

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personal matters”).

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Thus, the court determined that legislation criminalizing the possession of child

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pornography is “tied directly to state efforts to deter its production and distribution,” seeks

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to “stamp out this vice at all levels in the distribution chain,” and encourages the destruction

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of these materials. Id. at 382 (quoting Osborne, 495 U.S. at 110). The court further found

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that “[t]he goal of combating the sexual abuse and exploitation inherent in child pornography

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animates Arizona’s severe penalties for the possession of such material.” Id. The court then

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recounted the historical development of the specific legislation under review stating, in

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pertinent part:

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In 1978, the Arizona legislature determined that existing state laws were
inadequate and enacted legislation specifically aimed at the child pornography
industry. The new law, the predecessor to A.R.S. sections 13-3551 to -3553,
declared its purposes to include protecting children from sexual exploitation
and to “prevent any person from benefiting financially or otherwise from the
sexual exploitation of children.” 1978 Ariz. Sess. Laws, ch. 200, § 2(B)(1),
(3). The legislature specifically identified a series of harms to child victims,
including the use of the material by defendants in luring new victims and the
fact that such materials cause continuing harm to the children depicted. Id. §
2(A)(5)-(6).

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In 1983, lawmakers extended this criminal ban to include possession itself, an
amendment that prosecutors claimed would aid in prosecuting child molesters.
1983 Ariz. Sess. Laws, ch. 93; Hearing on H.B. 2127 Before the H. Comm. on
Judiciary, 36th Legis., 1st Reg. Sess. 2 (Ariz. 1983) (comments of Elizabeth
Peasley, Pima County Attorney’s Office). Such legislation also recognizes the
fact that producers of child pornography exist due to the demand for such
materials. “The consumers of child pornography therefore victimize the
children depicted ... by enabling and supporting the continued production of
child pornography, which entails continuous direct abuse and victimization of
child subjects.” United States v. Norris, 159 F.3d 926, 930 (5th Cir. 1998)
(applying federal sentencing guidelines).
Correspondingly, the legislature soon thereafter included the possession of
child pornography among crimes targeted in § 13-604.01 for enhanced
sentencing as “dangerous crimes against children.” 1985 Ariz. Sess. Laws, ch.
364, § 6. This legislation provides “lengthy periods of incarceration ...
intended to punish and deter” “those predators who pose a direct and
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continuing threat to the children of Arizona.” State v. Williams, 175 Ariz. 98,
102, 854 P.2d 131, 135 (1993) (reviewing the legislative history of § 13604.01).
Id. at 383.

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Thereafter, the court concluded, “[g]iven this history ... the legislature had a
‘reasonable basis for believing’ that mandatory and lengthy prison sentences for the
possession of child pornography would ‘advance [] the goals of [Arizona’s] criminal justice
system in [a] substantial way.’” Id. (quoting Ewing v. California, 538 U.S. 11, 28 (2003)).

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“Against this backdrop,” the court then considered whether Petitioner’s sentences are

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grossly disproportionate to his offenses by comparing the gravity of the offense and the

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severity of the punishment. See id. at 383-84. The court first rejected Petitioner’s contention

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that he had received a “200 year flat-time sentence upon his conviction of possession of child

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pornography.” The court stated that pursuant to statute Petitioner had been “convicted of

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twenty separate counts of possession of child pornography involving minors under fifteen,

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and he was sentenced to a ten-year term for each count ... [to] be served consecutively.” Id.

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at 383.4

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The court provided two additional reasons for focusing its gross disproportionality

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analysis “on whether a ten-year sentence [rather than the aggregate 200-year sentence] is

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disproportionate for a conviction of possessing child pornography involving children under

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fifteen.” Id. at 384. The court stated that “[a] defendant has no constitutional right to

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concurrent sentences for two separate crimes involving separate acts,” and that the “Eighth

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Amendment analysis focuses on the sentence imposed for each specific crime, not on the

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cumulative sentence.” Id. Consequently, the court determined:

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The court noted that Petitioner did not argue in his petition for review – “[n]or could
he” – that the State’s charging him in twenty separate counts based on each image was
improper. Pursuant to statute, the court stated that each count was based on a different video
of photo image, the images involved some 15 different child victims, and Petitioner had
accumulated the images over a 6-year period. See Berger II, 134 P.3d at 383. Similarly,
Petitioner makes no such argument in the instant habeas petition.
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Thus, if the sentence for a particular offense is not disproportionately long, it
does not become so merely because it is consecutive to another sentence for
a separate offense or because the consecutive sentences are lengthy in the
aggregate. See Jonas, 164 Ariz. at 249, 792 P.2d at 712. This proposition
holds true even if a defendant faces a total sentence exceeding a normal life
expectancy as a result of consecutive sentences. See, e.g., Lockyer, 538 U.S.
at 74 n.1 [] (rejecting, in context of federal habeas review, dissent’s argument
that two consecutive sentences of twenty-five years to life for separate
offenses were equivalent, for purposes of Eighth Amendment analysis, to one
sentence of life without parole for thirty-seven-year-old defendant); United
States v. Beverly, 369 F.3d 516, 537 (6th Cir. 2004); Taylor, 160 Ariz. at 422,
773 P.2d at 981.

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Id. at 384.

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Ultimately, having analyzed principles established by prior decisions, the court found

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that a 10-year sentence was not grossly disproportionate to Petitioner’s crime of knowingly

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possessing child pornography depicting children younger than 15. See id. at 384. The court

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further supported its determination by observing that “only once in the past quarter century

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has the Supreme Court sustained an Eighth Amendment challenge to the length of a prison

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sentence.” Id. (citing Solem v. Helm, 463 U.S. 277, 279-82 (1983)). The court distinguished

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Solem from the instant case on two grounds: (1) in Solem, the defendant was sentenced to

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life imprisonment without parole, “the most severe punishment the State could have

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imposed,” for the “quite minor crime” of “uttering a ‘no account’ check,” “one of the most

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passive felonies a person could commit,” id. (quoting Solem, 463 U.S. at 296-97); and (2)

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Solem “did not involve a mandatory sentence, but instead concerned a judge’s discretionary

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decision to impose the maximum authorized sentence [and] [t]hus ... did not implicate the

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‘traditional deference’ that courts must afford to legislative policy choices when reviewing

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statutorily mandated sentences,” id. at 385.

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After reciting the overwhelming evidence of Petitioner’s large-scale, deliberate, and
long-term acquisition and preservation of child pornography, the court concluded that
Petitioner’s sentences were supported by the evidence and were justified by the State’s
interest in deterring the production and possession of child pornography. See id.

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After receiving a stay of the issuance of the mandate in his case, Petitioner filed a

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petition for writ of certiorari with the Supreme Court. (Exh. A, Item 116; Exh. T; Exh. U;

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Exh. V.) The State opposed Petitioner’s petition. (Exh. W.)

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On February 26, 2007, the Supreme Court denied the petition. (Exh. X). On March

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15, 2007, the Arizona Supreme Court issued its order and mandate. (Exh. A, Items 125,

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128.)

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On April 2, 2007, Petitioner filed a pro per notice of post-conviction relief. (Exh. A,
Item 129.) On May 14, 2007, Herbert Ely entered his appearance on Petitioner’s behalf and
replaced the assigned deputy public defender on June 6, 2007. (Exh. A, Items 131, 133.) On
June 26, 2007, Petitioner filed his Rule 32 petition for post-conviction relief. (Exh. A, Item
137.) In his petition, Petitioner renewed his Eighth Amendment challenge to his sentences,
argued that A.R.S. § 13-3553 was unconstitutional because its mandatory consecutive
sentencing provisions violated the separation-of-powers doctrine and produced cruel and
unusual punishments, and alleged that his trial attorney was ineffective for not asking the trial
judge to invoke A.R.S. § 13-603(L)’s executive clemency provision. (Id. at 2-24.) Petitioner
also claimed entitlement “to an evidentiary hearing to show the disparity between his crime
and the sentence, and to an individualized hearing to demonstrate this to the Court.” (Id. at
2.) Besides attaching letters from Petitioner’s friends and family to the Rule 32 petition, his
attorney appended a copy of a psychological evaluation report prepared on December 12,
2002, by Dr. Michael Bayless, who examined Petitioner before his trial, and charts
summarizing the child pornography sentencing statutes in other jurisdictions.

(Id.,

attachments 2, 4.)

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On November 30, 2007, the State filed its response, wherein it argued that: (1) all of
Petitioner’s claims, except his allegations of ineffective assistance of counsel, were precluded
by Arizona Rule of Criminal Procedure 32.2 because they were either previously addressed
on the merits or waived; and (2) Petitioner’s ineffectiveness claim lacked merit. (Exh. A,
Item 153.) Petitioner filed his reply on December 17, 2007. (Exh. A, Item 156.)

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On January 22, 2008, the trial judge denied relief in a minute entry order that reads
as follows:
Defendant has raised a number of issues as follows:

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First, Defendant seeks an Evidentiary Hearing in order to show the disparity
between his crimes and the sentence received in order to show that the
sentencing scheme is unconstitutional. In addition, Defendant urges that his
trial counsel was ineffective for failing to argue that the sentence scheme was
cruel and unusual in violation of the Eighth Amendment.
The Court notes that the issue of the excessive sentencing scheme was raised
at the trial court level in Defendant’s Motion to Dismiss, filed April 23, 2003.
Arguments were made at that time and Defendant’s Motion to Dismiss was
denied.
THE COURT FINDS that the disparity of the sentence to the crimes
committed is precluded based on the decision of the Court of Appeals.
Further, argument regarding the gross disproportionality issue has been raised
previously and was denied. On these grounds,

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IT IS ORDERED denying Defendant’s Petition for Post-Conviction Relief.
In addition, Defendant argues that trial counsel was ineffective for failing to
request relief pursuant to A.R.S. § 13-603(L), allowing for Defendant to seek
commutation of his sentence by the Board of Executive Clemency. However,
this matter was considered independently by this judge, on her own, prior to
the imposition of sentence. Even without the issue having been raised by
defense counsel, this Court again addressed the issue and determined that [ ]
relief under A.R.S. §13-603(L) was not appropriate. Therefore, the outcome
of Defendant’s sentence would not have been different, even if defense
counsel had raised the issue. On this ground,

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IT IS ORDERED denying Defendant’s Petition for Post-Conviction Relief.

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Finally, Defendant argues that the sentencing scheme under which Defendant
was sentenced must be found to be unconstitutional as a violation of the
Separation of Powers Doctrine. This issue was not raised on appeal, and
therefore, is precluded. If not precluded, however, based on a possible claim
of ineffective assistance of appellate counsel, the Court finds no legal support
for this argument. On this basis,

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IT IS ORDERED denying defendant’s Petition for Post- Conviction Relief.
As set forth above,

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THE COURT FINDS that Defendant’s claims in his Petition for PostConviction Relief are either precluded or have no valid legal basis.
Accordingly,
IT IS ORDERED denying all claims raised in Defendant’s Petition for PostConviction Relief.
(Exh. B, Item 159 at 1-2.)

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On February 20, 2008, Petitioner filed with the Arizona Court of Appeals a petition
for review reiterating his claims alleging violations of the Eighth Amendment, the Separation
of Powers Doctrine, and the Sixth Amendment right to effective counsel. (Exhs. X, Y.) On
December 29, 2008, the Arizona Court of Appeals summarily denied review. (Exh. Z.)

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On January 29, 2009, Petitioner filed with the Arizona Supreme Court a petition for

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review that raised the same arguments as below. (Exh. AA.) On September 22, 2009, the

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Arizona Supreme Court summarily denied review. (Exh. BB at 20.)

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On December 28, 2009, Petitioner filed the instant Petition for Writ of Habeas Corpus

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raising one ground for relief – that his sentence violates the Eighth Amendment prohibition

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against cruel and unusual punishment. Specifically, Petitioner asserts that “the 200-year

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sentence imposed on Petitioner for possession of 20 images of child pornography on his

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computer, without the possibility of ‘probation, pardon or release,’” leads to an inference of

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gross disproportionality. Citing United States v. Meiners, 485 F.3d 1211 (9th Cir. 2007),

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Petitioner contends that he was not convicted of distributing or advertising child pornography

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and, therefore, states that there was no evidence that his crimes affected society.

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Petitioner’s argument incorporates two separate ideas. Petitioner, citing State v.

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Davis, references the “cumulative 200-year sentence” and attacks the consecutive nature of

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the sentences imposed, which Petitioner suggests is “the cause of disproportionality.”

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Petitioner also claims that, to the extent the Court focuses on the sentence imposed for each

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specific crime rather the aggregate, a sentence of 10 years is grossly disproportionate to the

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crime of sexual exploitation of a minor. Petitioner requests a hearing so that he may call (1)

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a penologist to give testimony regarding the sentences imposed for other crimes in Arizona
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and the sentences imposed in other jurisdictions for possessing child pornography; and (2)

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other expert and lay witnesses to present testimony regarding Petitioner’s character and lack

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of any predilection to molest or sexually abuse children.

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Respondents have filed an Answer (Doc. 11), and Petitioner has filed a Reply (Doc.
20).

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DISCUSSION

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In their Answer, Respondents contend that this Court should deny habeas relief

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because the Arizona Supreme Court’s opinion upholding Petitioner’s sentences against his
Eighth Amendment challenge was a decision that was neither contrary to, nor an
unreasonable application of, clearly established law.

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Pursuant to the AEDPA5 , a federal court “shall not” grant habeas relief with respect

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to “any claim that was adjudicated on the merits in State court proceedings” unless the state

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court decision was (1) contrary to, or an unreasonable application of, clearly established

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federal law as determined by the United States Supreme Court; or (2) based on an

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unreasonable determination of the facts in light of the evidence presented in the state court

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proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000)

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(O’Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard

19

of review). “When applying these standards, the federal court should review the ‘last

20

reasoned decision’ by a state court ... .” Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.

21

2004).

22

A state court’s decision is “contrary to” clearly established precedent if (1) “the state

23

court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,”or

24

(2) “if the state court confronts a set of facts that are materially indistinguishable from a

25

decision of [the Supreme Court] and nevertheless arrives at a result different from [its]

26

precedent.” Williams, 529 U.S. at 404-05. “A state court’s decision can involve an

27
28

5

Antiterrorism and Effective Death Penalty Act of 1996.
- 13 -

1

‘unreasonable application’ of Federal law if it either 1) correctly identifies the governing rule

2

but then applies it to a new set of facts in a way that is objectively unreasonable, or 2)

3

extends or fails to extend a clearly established legal principle to a new context in a way that

4

is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).

5

A.

6
7
8

Consecutive Nature of the Sentences Imposed
In considering his Eighth Amendment challenge, Petitioner asserts that “this Court

should consider the total 200-year sentence,” and cites State v. Davis to specifically attack
the consecutive nature of the sentences imposed.

9
10
11
12
13
14
15
16
17
18
19

The Eighth Amendment analysis “focuses on the sentence imposed for each specific
crime, not on the cumulative sentence.” United States v. Aiello, 864 F.2d 257, 265 (2nd Cir.
1988). As the Supreme Court has made clear, if the defendant
has subjected himself to a severe penalty, it is simply because he has
committed a great many such offenses. It would scarcely be competent for a
person to assail the constitutionality of the statute prescribing a punishment for
burglary on the ground that he had committed so many burglaries that, if
punishment for each were inflicted on him, he might be kept in prison for life.
O’Neil v. State of Vermont, 144 U.S. 323, 331 (1892).
Nonetheless, Petitioner contends that pursuant to State v. Davis, the consecutive
nature of his sentences should have been considered in the Eighth Amendment analysis. The
Court disagrees. Davis is distinguishable from the instant matter.

20
21
22
23
24
25
26
27

In Davis, the Arizona Supreme Court vacated four consecutive 13-year sentences
imposed on a 20-year-old man of below average intelligence convicted of having uncoerced
sex at different times with two 14-year-old girls. See 79 P.3d at 68. The court “effectively
concluded that it could not reconcile the particular sentences imposed with any reasonable
sentencing policy it could attribute to the legislature.” Berger II, 134 P.3d at 386. The
defendant in Davis, who had no prior criminal record, was caught up in the “broad sweep”
of a statute that made “no distinction between the perpetrators of incest, serial pedophiles,

28
- 14 -

1

and an eighteen-year-old man engaging in sex initiated by a fifteen-year-old girlfriend.”

2

Davis, 79 P.3d at 71-72.

3
4
5
6
7
8
9
10

Analyzing its holding in Davis, the supreme court in Berger II stated:
[O]bjective facts about the offenses indicated that the defendant’s conduct was
at the edge of the statute’s broad sweep of criminal liability. Davis was twenty
years old and his maturity and intelligence fell far below that of a normal adult.
Id. at 384-85, ¶ 36, 79 P.3d at 71-72. The girls involved not only participated
willingly, but they had sought Davis out and gone voluntarily to his home. Id.
If the girls had been fifteen or older and Davis within two years of their age,
he would not have been criminally liable at all. A.R.S. § 13-1407(F). But
because his conduct was “swept up in the broad statutory terms,” Davis, 206
Ariz. at 385, ¶ 37, 79 P.3d at 72, Davis was subject to four consecutive
thirteen-year sentences.

14

Only after concluding that objective factors about Davis’s offense showed he
had been caught up in the expansive reach of the statute did the court
determine that the consecutive nature of his sentences was relevant to the
Eighth Amendment analysis. Id. at 387, ¶ 47, 79 P.3d at 74. In so doing,
however, the court noted that its conclusion rested on the “specific facts and
circumstances of Davis’s offenses,” and reaffirmed that the court “normally
will not consider the imposition of consecutive sentences in a proportionality
inquiry ... .” Id. at 387-88, ¶¶ 47-48, 79 P.3d at 74-75.

15

The Court agrees with the Arizona Supreme Court’s conclusion, finding that, in this

16

case, Petitioner’s “conduct is at the core, not the periphery, of the prohibitions of A.R.S. §

17

13-3553(A)(2)” and that he, unlike the defendant in Davis, cannot be characterized as

18

someone merely “caught up” in a statute’s broad sweep. Nothing in this record suggests that

19

Petitioner’s maturity and intelligence “fell far below that of a normal adult,” or that the

20

victims somehow sought out Petitioner.6 Rather, at the time of his arrest, Petitioner was a

11
12
13

21
22
23
24
25
26
27
28

6

The Court rejects Petitioner claim that his crimes were victimless in that he “never
touched a child” and “never left the privacy of his own home in committing these crimes.”
As the legislative history of the statutes at issue suggest, production of the images possessed
by Petitioner required the abuse of children, and Petitioner’s consumption of such material
cannot be disassociated from that abuse for purposes of the Eighth Amendment
proportionality analysis. See generally Norris, 159 F.3d at 930 (noting, for purposes of
federal sentencing guidelines, that “the victimization of a child depicted in pornographic
materials flows just as directly from the crime of knowingly receiving child pornography as
it does from the arguably more culpable offenses of producing or distributing child
pornography”).
- 15 -

1

52-year-old high school teacher. He did not accidentally or inadvertently encounter child

2

pornography, but instead knowingly sought and possessed numerous items “graphically

3

depicting sordid and perverse sexual conduct with pre-pubescent minors” over an extended

4

period of time. The evidence further suggests that Petitioner knew what he was doing was

5

wrong. When confronted by the police, Petitioner acknowledged that he had “downloaded

6

some things that he was not proud of, and was not sure if he should have downloaded them

7

or not.”

8

downloaded images of people under eighteen and that he believed these people were

9

involved in sexual conduct. He also possessed a news article reporting the arrest of a

10

Glendale police officer for possessing child pornography. Thus, considering “the specific

11

facts and circumstances” of Petitioner’s crimes, the Court finds that the supreme court’s

12

decision to not consider the imposition of consecutive sentences in a proportionality inquiry

13

was not contrary to established federal law or based on an unreasonable determination of the

14

facts.

Additionally, in response to police questions, Petitioner admitted he had

15

In any event, even if this Court did consider Petitioner’s sentence in the aggregate, the

16

result would be the same. As this Court has previously identified in a similar matter (Welch

17

v. Ryan, et al., CV-07-2169), the Ninth Circuit as well as many other circuits courts around

18

the country have found that mandatory consecutive sentences do not violate the Eighth

19

Amendment’s prohibition of cruel and unusual punishment.7

20
21
22
23

7

The circuit courts reviewing a federal statute having a substantial similarity to the
Arizona statute at issue have found no Eighth Amendment violation. The federal statute
provides for penalties related to the use of guns in drug trafficking. The statute provides, in
pertinent part:

24
25
26

[N]o term of imprisonment imposed on a person under this subsection shall run
concurrently with any other term of imprisonment imposed on the person,
including any term of imprisonment imposed for the crime of violence or drug
trafficking crime during which the firearm was used, carried, or possessed.

27
28

18 U.S.C.A. § 924(c)(1)(D)(ii). The Second, Third, Fourth, Sixth, Seventh, and Ninth
Circuits have all upheld the constitutionality of the mandatory consecutive sentences imposed
- 16 -

1

Where the legislature explicitly provides for the punishment, there is no constitutional

2

issue. Indeed, the Supreme Court has held in several contexts that consecutive sentences do

3

not pose a constitutional problem where the legislature has specifically provided for such

4

sentences. See Whalen v. United States, 445 U.S. 684, 689 (1980) (noting that it is fully

5

within the power of Congress to provide cumulative punishments, the only question was

6

whether or not it had done so); Gore v. United States, 357 U.S. 386, 392 (1958) (holding that

7

Congress clearly has the power to determine separate sentences for separate offenses); Carter

8

v. McClaughry, 183 U.S. 365, 394 (1902) (“Cumulative sentences are not cumulative

9

punishments, and a single sentence for several offenses, in excess of that prescribed for one

10

offense, may be authorized by statute.”).

11

In addition, there is no constitutional right to receive sentences concurrently; rather,

12

the “specification of the regime for administering multiple sentences has long been

13

considered the prerogative of state legislatures.” Oregon v. Ice, 555 U.S. 160 (2009). In

14

Arizona, the legislature has mandated consecutive sentences for dangerous crimes against

15
16
17
18
19
20
21
22
23
24
25
26
27
28

by this statute against an attack pursuant to the Eighth Amendment’s prohibition of cruel and
unusual punishment. See, e.g., United States v. Yousef, 327 F.3d 56, 163 (2d Cir. 2003)
(rejecting an Eighth Amendment proportionality challenge to a prison term of 240 years plus
a consecutive term of life imprisonment for offenses related to the 1993 bombing of the
World Trade Center, including two mandatory consecutive 30-year terms); United States v.
Walker, 473 F.3d 71, 82-83 (3d Cir. 2007) (holding 55-year mandatory consecutive sentence
not violative of proportionality principle); United States v. Khan, 461 F.3d 477, 494-95 (4th
Cir. 2006) (rejecting Eighth Amendment challenge to sentences of 120 months, 300 months,
and life imprisonment imposed consecutively pursuant to § 924(c)(1)); United States v.
Beverly, 369 F.3d 516, 536-37 (6th Cir. 2004) (rejecting proportionality challenge to a
sentence of 71.5 years, mostly mandated by violations of § 924(c)(1), even though defendant
had no felony history); United States v. Arrington, 159 F.3d 1069, 1073 (7th Cir. 1998)
(finding Eighth Amendment did not prohibit 65-year mandatory consecutive sentence
imposed for four violations of § 924(c)(1)); United States v. Hungerford, 465 F.3d 1113,
1118 (9th Cir. 2006) (rejecting argument that 155-year cumulative consecutive sentence for
seven violations of § 924(c)(1) violated the Eighth Amendment); United States v. Parker, 241
F.3d 1114 (9th Cir. 2001) (rejecting Eighth Amendment challenge to 888-month sentence that
included 780 months for four violations of § 924(c)(1) charged in the same indictment).
- 17 -

1

children. See A.R.S. § 13-604.01 (2002). In light of the legislature’s determination,

2

Petitioner’s consecutive sentences are constitutional.8

3

B.

Proportionality of the Sentence Imposed

4

The Court next turns to the second idea embodied in Petitioner’s claim – that a

5

sentence of 10 years is grossly disproportionate to the crime of sexual exploitation of a

6

minor.

7

The Eighth Amendment to the United States Constitution bars the infliction of “cruel

8

and unusual punishments.” U.S. Const. amend. VIII. Under the Eighth Amendment, the

9

Supreme Court has noted that noncapital sentences are subject only to a “narrow

10

proportionality principle” that prohibits sentences that are “grossly disproportionate” to the

11

crime. See Ewing, 538 U.S. at 23 (O’Connor, J., concurring in the judgment) (quoting

12

Harmelin v. Michigan, 501 U.S. 957, 996-997 (1991) (Kennedy, J., concurring in part and

13

concurring in judgment)). For a sentence to violate the Eighth Amendment there must be a

14

threshold showing of gross disproportionality through a comparison of “the gravity of the

15
8

16
17
18
19
20
21
22
23
24
25
26
27
28

Subsumed within his argument regarding the consecutive nature of his sentences,
Petitioner appears to adopt portions of Justice Berch’s dissenting view criticizing Arizona’s
sentencing scheme. Petitioner states in his reply that “the statute operates in a manner where
facts regarding the size of his collection or the time spent acquiring the material is not
relevant to guilt or sentencing. If a defendant only possessed twenty images for even one
minute he or she would be subject to the same penalty Petitioner received.” The essence of
Petitioner’s complaint is that the Arizona Legislature unwisely enacted a sentencing scheme
that mandates a separate prison term for each individual visual image possessed, and that the
nature of the offense should have instead prompted the legislature to impose a single prison
term for possession of some unspecified number of images. However, fixing the number of
contraband images that may be punished within a single prison term is a subjective policy
determination that the Supreme Court has found to rest “properly within the province of
legislatures, not courts.” Rummel v. Estelle, 445 U.S. 263, 275-76 (1980) (rejecting
defendant’s challenge to the small amount of stolen money required to trigger application of
Texas’ recidivist statute). See also State v. Jonas, 792 P.2d 705, 711 (Ariz. 1990)
(“However, it is not the function of this court to engage in determining what minimum
amount of marijuana need be involved in a ‘serious’ offense; that linedrawing function is
properly one for the legislature.”). As the Supreme Court previously observed, “[t]his
criticism is appropriately directed at the legislature, which has primary responsibility for
making the difficult policy choices that underlie any criminal sentencing scheme.” Ewing,
538 U.S. at 28.
- 18 -

1

offense [and] the harshness of the penalty.” Id. at 28. If this comparison leads to an

2

inference of gross disproportionality, the court can then conduct a comparative analysis by

3

considering the sentences the state imposes on other crimes and the sentences other

4

jurisdictions impose for the same crime. Id. at 23-24.

5

In comparing the gravity of the offense to the harshness of the penalty, courts grant

6

substantial deference to the legislature and its policy judgments. The threshold inquiry is

7

guided by several principles that include the primacy of the legislature in determining

8

sentencing, the variety of legitimate penological schemes, the nature of the federal system,

9

and the requirement that objective factors guide proportionality review. See id. at 23.

10

The Supreme Court cautions “federal courts should be reluctant to review legislatively

11

mandated terms of imprisonment, and that successful challenges to the proportionality of

12

particular sentences should be exceedingly rare.” Hutto v. Davis, 454 U.S. 370, 374 (1982)

13

(per curiam) (internal citations omitted). If the court finds that the state had a “reasonable

14

basis” for believing that the law would further the goals of its criminal justice system of

15

punishing violators and deterring future crimes, then the statutorily established prison

16

sentence is not grossly disproportionate. See Ewing, 538 U.S. at 22-28.

17

Thus, at the outset the Court determines whether the Arizona legislature had a

18

“reasonable basis” for believing that a 10-year sentence for possession of child pornography

19

“advance[s] the goals of [its] criminal justice system in any substantial way.” Id. at 28. The

20

Supreme Court has specifically considered a state’s interest in criminalizing child

21

pornography stating, in pertinent part:

22
23
24

It is evident beyond the need for elaboration that a State’s interest in
‘safeguarding the physical and psychological well-being of a minor’ is
‘compelling.’ ... The legislative judgment, as well as the judgment found in
relevant literature, is that the use of children as subjects of pornographic
materials is harmful to the physiological, emotional, and mental health of the
child.

25
Osborne, 495 U.S. at 109 (quoting New York v. Ferber, 458 U.S. 747, 756-758 (1982)). The
26
Court further noted that child pornography’s “continued existence causes the child victims
27
continuing harm by haunting the children in years to come” and that “evidence suggests that
28
- 19 -

1

pedophiles use child pornography to seduce other children into sexual activity.” Id. at 111.

2

Thus, the Court found it understandable that a state would try “to stamp out this vice at all

3

levels in the distribution chain,” and that criminalization encourages the destruction of such

4

materials. Id. at 110-11.

5

As illustrated in Berger II, the Arizona legislature had a reasonable basis for enacting

6

A.R.S. § 13-3553. See 134 P.3d at 383. The legislature was concerned with “a series of

7

harms to child victims” and, in 1983, lawmakers included the amendment, which

8

criminalized possession because it would “aid in prosecuting child molesters.” Id. The

9

legislature thereafter included possession of child pornography among one of a number of

10

crimes targeted in A.R.S. § 13-604.01 for enhanced sentencing as “dangerous crimes against

11

children.” Id. The legislation provided for a “lengthy [period] of incarceration ... intended

12

to punish and deter those predators who pose a direct and continuing threat to the children

13

of Arizona.” Id. (quoting Williams, 175 Ariz. at 102) (internal quotation marks omitted).

14

Given the United States Supreme Court’s acknowledgment of a state interest in

15

criminalizing child pornography and the legislative history of the Arizona statutes, this Court

16

concludes that the Arizona legislature had a reasonable basis for believing that a 10-year

17

sentence would advance the goals of Arizona’s criminal justice system.

18

The Court next analyzes the proportionality between Petitioner’s crime and his

19

sentence. In so doing, the Court notes (as other courts taking up this same issue have

20

identified) that there have only been three times in the last century when the Supreme Court

21

has invalidated a sentence. The first was Weems v. United States, 217 U.S. 349, 382 (1910),

22

where the Court invalidated the punishment of cadena temporal9 for the crime of falsifying

23

a public record. Seventy-three years later, in Solem v. Helm, the Court invalidated under the

24

Eighth Amendment a sentence of life imprisonment without the possibility of parole imposed

25
26
27
28

9

Cadena temporal is an old Spanish form of punishment which required “those
sentenced ... [to] labor for the benefit of the state. They shall always carry a chain at the
ankle, hanging from the wrists; they shall be employed at hard and painful labor, and shall
receive no assistance whatsoever from without the institution.” Weems, 217 U.S. at 364.
- 20 -

1

under South Dakota law against a nonviolent recidivist whose crime was writing a “no

2

account” check with the intent to defraud. See 463 U.S. at 281. The Court placed significant

3

weight on the lack of violence in Helm’s criminal history and the relatively minor nature of

4

the crime in deciding that his sentence was grossly disproportionate. See id. at 297. Finally,

5

in May of 2010, the Court invalidated a sentence of life without parole for a recidivist

6

offender who committed a non-homicide crime as a juvenile. See Graham v. Florida, ___

7

U.S. ___, 130 S.Ct. 2011, 2034 (2010).

8

In contrast to these cases, in Rummel v. Estelle, the petitioner sought habeas relief for

9

receiving a life sentence with possibility of parole for a third felony conviction – “obtaining

10

$120.75 by false pretenses.” 445 U.S. at 266. The Supreme Court affirmed his sentence.

11

See id. at 285. In Hutto v. Davis, the petitioner sought habeas relief for receiving

12

consecutive 20-year sentences for possessing nine ounces of marijuana. See 454 U.S. at 371.

13

The Court affirmed his sentences. See id. at 373. In Harmelin v. Michigan, the Court

14

affirmed a sentence of life imprisonment without possibility of parole for a first time offender

15

convicted of possessing 672 grams of cocaine. See 501 U.S. at 961. In reaching this

16

conclusion, the Court noted its concern with the threat posed to individuals as well as society

17

as a result of the escalating use of controlled substances. Id. at 1003 (quoting United States

18

v. Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J., concurring in part and concurring in

19

the judgment)). Finally, in Ewing v. California, the Court affirmed a sentence of 25 years

20

to life pursuant to California’s “three strikes” law for a man who stole three golf clubs valued

21

at just under $1200. See 538 U.S. at 30-31.

22

Here, as with the aforementioned cases, Petitioner’s sentence does not support an

23

inference of gross disproportionality. The record before the Court demonstrates that

24

Petitioner’s sentence is “amply supported” by well-documented evidence (which the Court

25

need not repeat) establishing a “long, serious” pursuit of illegal depictions and is “justified

26

by the State’s public-safety interest” in deterring the production, as well as, the possession

27

of child pornography. Ewing, 538 U.S. at 29-30. Petitioner’s crimes were precisely the type

28

of criminal acts the legislature intended to punish. See Berger II, 79 P.2d at 72.
- 21 -

1

Petitioner, however, cites United States v. Meiners, in an attempt to “highlight” the

2

disproportionality of his sentence. Specifically, he claims that unlike the defendant in

3

Meiners, he did not purchase, distribute, or advertize child pornography. Rather, echoing

4

Justice Berch’s sentiments in her dissent, Petitioner asserts that he merely possessed “the

5

pornography in the privacy of his own home” and, as such, “there is no evidence

6

[Petitioner’s] actions affected society.”10 The Court disagrees.

7

Courts have regularly recognized three distinct harms, although by no means

8

exhaustive, visited upon those who were abused in child pornography as a consequence of

9

the later distribution or possession of such images. See Norris, 159 F.3d at 929-31; see also

10

United States v. Planck, 493 F.3d 501, 505 (5th Cir. 2007) (recognizing that as a consequence

11

of the possession and distribution of child pornography, “a child may be victimized in three

12

distinct ways”). For purposes of this inquiry, the Court focuses on the third form of harm

13

caused by those possessing or distributing child pornography – namely, that “the consumer

14

of child pornography instigates the original production of child pornography by providing

15

an economic motive for creating and distributing the materials.”11 Planck, 493 F.3d at 505.

16

See also United States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005) (quoting the Child

17

Pornography Prevention Act of 1996) (“[P]rohibiting the possession and viewing of child

18

pornography will ... help[ ] to protect the victims of child pornography and to eliminate the

19

market for the exploitative use of children.”) (emphasis in original). Contrary to Petitioner’s

20
21
10

22
23
24
25
26
27
28

In Meiners, the Ninth Circuit upheld a 15-year mandatory minimum sentence
imposed upon a defendant who pled guilty to four counts of advertisement of child
pornography, four counts of distribution of child pornography, and one count of possession
of child pornography against an Eighth Amendment challenge. The Ninth Circuit focused
its analysis on the fact that advertising and distributing child pornography are significant
crimes because they “threaten to cause grave harm to society.” 485 F.3d at 1213.
11

The first two forms of harm suggest that: (1) the simple fact that images have been
disseminated perpetuates the abuse initiated by the producer of the materials – “the materials
produced are a permanent record of the children’s participation and the harm to the child is
exacerbated by their circulation,” Ferber, 458 U.S. at 759, and (2) the mere existence of child
pornography represents an invasion of the privacy of the child depicted.
- 22 -

1

beliefs, the interconnected relationship between the producers of child pornography and its

2

consumers is well-established. In its factual findings underlying the Child Pornography

3

Prevention Act of 1996,

4
5
6
7
8
9

Congress [] described a chicken-and-egg scenario in which it would be
impossible to determine whether child pornographers or consumers of child
pornography were initially responsible for the creation of the child
pornography industry. The underlying point, however, is that there is no sense
in distinguishing ... between the producers and the consumers of child
pornography. Neither could exist without the other. The consumers of child
pornography therefore victimize the children depicted in child pornography by
enabling and supporting the continued production of child pornography, which
entails continuous and direct abuse and victimization of child subjects.
Norris, 159 F.3d at 930.

Thus, the harm to society caused by possessors of child

10

pornography in creating and sustaining a market for such material is clear. See Osborne, 495

11

U.S. at 110 (“[T]he advertising and selling of child pornography provide[s] an economic

12

motive for and are thus an integral part of the production of [child pornography].”).

13

The harm of creating an economic incentive to produce child pornography, however,

14

need not only be societal, and can cause direct injury to the victims of such abuse. For

15

example, it has been established that “[c]hild pornography is often used as part of a method

16

of seducing child victims. A child who is reluctant to engage in sexual activity with an adult

17

or to pose for sexually explicit photos can sometimes be convinced by viewing other children

18

having ‘fun’ participating in the activity.” Osborne, 495 U.S. at 111 (quoting 1 Attorney

19

General’s Commission on Pornography, Final Report 649 (1986)). Further, a consumer of

20

child pornography may encourage a particular (or potential) victim’s sexual abuse by

21

communicating with, and providing an incentive to, the producer of child pornography to

22

commit another act of sexual abuse upon a certain victim. See United States v. Church, 701

23

F.Supp.2d 814, 822 (W.D. Va 2010) (quoting Child Pornography and Sexual Exploitation

24

of Children Online, at 21-22). Lastly, even if an end-user of child pornography was able to

25

somehow acquire such images in a manner that does not encourage production or

26

distribution, the possession of such images would still constitute an invasion of the victim’s

27

right to privacy. Therefore, to the extent Petitioner attempts to minimize the nature of his

28

crimes by contending that his mere possession did not affect society, his argument must fail.
- 23 -

1

In sum, on habeas review, this Court is limited to consideration of whether the state

2

courts have misapplied “clearly established Federal law, as determined by the Supreme

3

Court.” Having examined the intent of the legislature, as well as, and relevant Eighth

4

Amendment jurisprudence, no such finding can be made in this case. As Petitioner notes,

5

the State of Arizona has chosen to implement one of the harshest punishments for possessors

6

of child pornography in the nation. However, the fact that Arizona seeks to severely penalize

7

possessors of child pornography, a category of criminals the Supreme Court has noted are

8

likely to be child molesters themselves, comports with the Federal Constitution. Although

9

his sentence is severe, it fails to give rise to an inference of gross disproportionality.

10

Courts need not consider an intra- or inter-jurisdictional analysis of comparable crimes

11

and punishments unless there has been an initial inference of gross disproportionality. See

12

Harmelin, 501 U.S. at 1005. When the crime in question is a serious one, such an analysis

13

is especially unnecessary. See id. at 1004. Since the Court has not found an inference of

14

gross disproportionality and Petitioner’s crimes are serious, this Court concludes it need not

15

engage in a comparable analysis.

16

Therefore, the Court finds that the Arizona Supreme Court’s determination that

17

Petitioner’s 20 consecutive, 10-year sentences for possessing 20 images of child pornography

18

was constitutional is not contrary to nor an unreasonable application of federal law. The

19

Court will recommend that Petitioner’s Eighth Amendment claim be denied.
CONCLUSION

20
21

Having determined that Ground One as set forth in Petitioner’s Petition for Writ of

22

Habeas Corpus and Memorandum in Support thereof fails on the merits, the Court will

23

recommend that Petitioner’s Petition for Writ of Habeas Corpus be denied and dismissed

24

with prejudice.

25

IT IS THEREFORE RECOMMENDED that Petitioner’s Petition for Writ of

26

Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH

27

PREJUDICE;

28
- 24 -

1

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave

2

to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a

3

substantial showing of the denial of a constitutional right.

4

This recommendation is not an order that is immediately appealable to the Ninth

5

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of

6

Appellate Procedure, should not be filed until entry of the district court’s judgment. The

7

parties shall have fourteen days from the date of service of a copy of this recommendation

8

within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1);

9

Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen

10

days within which to file a response to the objections. Failure timely to file objections to the

11

Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report

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and Recommendation by the district court without further review. See United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any

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factual determinations of the Magistrate Judge will be considered a waiver of a party’s right

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to appellate review of the findings of fact in an order or judgment entered pursuant to the

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Magistrate Judge’s recommendation. See Rule 72, Federal Rules of Civil Procedure.

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DATED this 11th day of July, 2011.

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