May v. Ryan et al

Filing 69

ORDER ADOPTING IN PART AND REJECTING IN PART THE REPORT AND RECOMMENDATION 35 as provided in this order. IT IS FURTHER ORDERED that petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) is GRANTED. IT IS FURTHER ORDERED that the Clerk of the Court enter judgment in favor of Petitioner Stephen Edward May against Respondent Charles L. Ryan that Respondent release Petitioner from custody forthwith. IT IS FURTHER ORDERED that Respondent Attorney General Thomas Horne and successors o f office, who do not have custody of Petitioner, are DISMISSED as improper parties respondent in a federal habeas corpus proceeding. The Clerk shall terminate this case. (See document for further details). Signed by Senior Judge Neil V Wake on 3/28/17. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Stephen Edward May, Petitioner, 10 11 v. 12 Charles L. Ryan, et al., 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents. No. CV-14-00409-PHX-NVW ORDER 1 TABLE OF CONTENTS 2 INTRODUCTION ............................................................................................................... 1 3 BACKGROUND AND PROCEDURAL HISTORY ......................................................... 3 4 LEGAL STANDARDS ON FEDERAL HABEAS REVIEW ........................................... 5 5 6 7 8 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 9 A. Due Process Limits States in Placing Burdens of Proof on Defendants .......... 13 10 B. The Arizona Law Fails Under the Typical Supreme Court Criteria for Rejecting Unconstitutional Burden-Shifting .................................................... 16 11 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 12 13 14 15 C. 16 17 Application of Due Process Analysis to the Arizona Burden-Shifting Scheme .............................................................................................................. 21 III. Cause and Prejudice: Ineffective Assistance of Counsel ...................................... 25 18 A. Prejudice ........................................................................................................... 25 19 1. The State Courts Unreasonably Applied Federal Law .................................. 26 20 2. It Is Likely May Would Have Obtained a Different Outcome ...................... 29 B. 21 22 23 24 25 26 27 28 Deficient Performance ...................................................................................... 32 IV. Constitutional Challenge ....................................................................................... 35 V. Harmless Error....................................................................................................... 36 1 INTRODUCTION 2 Petitioner Stephen May was convicted under Arizona’s child molestation law, 3 which does not require the state to prove the defendant acted with sexual intent. Rather, 4 once the state proves the defendant knowingly touched the private parts of a child under 5 the age of fifteen, to be acquitted the defendant must prove his lack of sexual intent by a 6 preponderance of the evidence. 7 jurisdictions in allocating the burden of proof this way. Arizona is the only jurisdiction 8 ever to uphold the constitutionality of putting the burden of disproving sexual intent on 9 the accused. Arizona stands alone among all United States 10 Pending before the Court is the Report and Recommendation (“R&R”) of 11 Magistrate Judge Michelle H. Burns (Doc. 35) regarding May's Petition for Writ of 12 Habeas Corpus filed pursuant to Title 28, United States Code, section 2254 (Doc. 1). The 13 R&R recommends that the Petition be dismissed with prejudice. The Magistrate Judge 14 advised the parties that they had fourteen days to file objections to the R&R. (Doc. 35 at 15 118 (citing Rule 72(b), Federal Rules of Civil Procedure; Rule 8(b), Rules Governing 16 Section 2254 Proceedings).) May filed objections on October 20, 2015. (Doc. 38.) 17 Defendants Charles Ryan and Thomas Horne (“the State”) filed a response on November 18 23, 2015. (Doc. 45.) May filed a reply on December 22, 2015. (Doc. 48.) 19 The parties also submitted supplemental briefing on two cases decided since then. 20 On June 29, 2016, May submitted a supplemental brief in light of the United States 21 Supreme Court’s decision in Dietz v. Bouldin, — U.S. —, 136 S. Ct. 1885 (2016). (Doc. 22 54.) The State responded. (Doc. 55.) May then submitted supplemental briefing on the 23 Arizona Supreme Court’s decision in State v. Holle, 240 Ariz. 300, 379 P.3d 197 (2016), 24 on October 21, 2016. (Doc. 59.) A response and a reply were filed. (Docs. 60, 63.) 25 The Court has considered all the briefing and reviewed the R&R de novo. See 26 Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo 27 determination of those portions of the Report and Recommendation to which specific 28 objections are made). May raised numerous claims in his petition, and for the most part -1- 1 the Court agrees with the Magistrate Judge's determinations, accepts the recommended 2 decision within the meaning of Rule 72(b), and overrules May's objections. See 28 3 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole 4 or in part, the findings or recommendations made by the magistrate judge”). May also 5 raised concern that the R&R appeared to copy large volumes of text “virtually verbatim” 6 from the State’s briefing, including several background facts that were incorrect. (Doc. 7 38 at 13.) While this is concerning, none of the affected portions, including factual 8 errors, make a material difference. 9 This Court does reject the R&R’s conclusions as to two of May’s claims and its 10 ultimate recommendation to dismiss his petition with prejudice. The R&R did not 11 entertain May’s claim that the burden-shifting statute and jury instructions are 12 unconstitutional. The reason given is that May did not raise the claim at trial and did not 13 show cause and prejudice for defaulting. But May has in fact shown cause and prejudice 14 for the default based on ineffective assistance of his trial counsel. 15 The state courts on collateral review also disavowed making any ruling on the 16 merits of May’s constitutional claim. Because no state court adjudicated the merits of 17 May’s constitutional claim, the question must be considered de novo here. But even if 18 measured under the deferential standard of 28 U.S.C. § 2254(d)(1), an adjudication 19 against May would be contrary to, or involve an unreasonable application of, clearly 20 established Federal law, as decided by the Supreme Court of the United States. 21 The State deprived May of his constitutional right to due process of law and proof 22 of guilt beyond a reasonable doubt. By crafting its child molestation law as it did, 23 Arizona spared itself from proving sexual intent and instead burdened May with 24 disproving it. Absent sexual intent, however, all the conduct within the sweep of the 25 statute is benign, and much of it is constitutionally protected. Nothing in the revised 26 elements of the crime distinguishes wrongful from benign from constitutionally protected 27 conduct. One must look to the defendant’s burden of proof to see what this statute is 28 really about, which is the same thing it has always been about: the defendant’s sexual -2- 1 intent. This shifting to the accused of the burden of disproving everything wrongful (here 2 the only thing wrongful) about the prohibited conduct cannot stand unless there are no 3 constitutional boundaries on a state’s ability to define elements, transubstantiate denials 4 into affirmative defenses, and be master of all burdens of proof. The State argues 5 precisely that in defense of May’s conviction, that element-defining and burden-shifting 6 are no longer part of justiciable constitutional law. But there are boundaries, some well- 7 settled boundaries, and this statute crosses them at a brisk sprint. 8 BACKGROUND AND PROCEDURAL HISTORY 9 10 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. 11 On January 16, 2007, Stephen May was convicted in Arizona superior court on 12 five counts of child molestation under sections 13-1410(A) and 13-1407(E) of the 13 Arizona Revised Statutes. He was also acquitted on two counts. Section 13-1410 14 criminalizes “molestation of a child,” which consists of “intentionally or knowingly 15 engaging in or causing a person to engage in sexual contact, except sexual contact with 16 the female breast, with a child who is under fifteen years of age.” Ariz. Rev. Stat. § 13- 17 1410(A) (2009). “Sexual contact” is defined as “any direct or indirect touching, fondling 18 or manipulating of any part of the genitals, anus or female breast by any part of the body 19 or by any object or causing a person to engage in such contact.” Ariz. Rev. Stat. § 13- 20 1401(3) (2015). The prohibition does not require that the intentional touching have a 21 sexual intent, though section 13-1407(E) provides that as an “affirmative” defense, a 22 defendant may assert “that the defendant was not motivated by a sexual interest.” Ariz. 23 Rev. Stat. § 13-1407(E) (2008). Arizona law also places the burden on the defendant to 24 prove the affirmative defense—that is, to disprove that he had a sexual intent—by a 25 preponderance of the evidence. Ariz. Rev. Stat. § 13-205(A) (2006). 26 May, a former school teacher and swim instructor, lived in a Mesa, Arizona 27 apartment complex where he often taught children how to swim and played with them at 28 the community pool. The charges against him arose from accounts by four children who -3- 1 said he touched them inappropriately. May’s trial attorney, Joel Thompson, made no 2 motion to dismiss the charges before trial. He did request a jury instruction that as a 3 matter of statutory construction under section 13-1410(A) the state bears the burden of 4 proving beyond a reasonable doubt that May touched the children with sexual intent. 5 Thompson did not assert that the law would be unconstitutional if it placed the burden of 6 disproving that on May. The State argued that because sexual intent is not a stated 7 element under section 13-1410(A), the defendant has the burden of proving his own lack 8 of sexual intent by a preponderance of the evidence. Accepting the State’s position, the 9 trial judge instructed the jury that the State must prove beyond a reasonable doubt only 10 the described touching and the victim’s age but that they must acquit if May proved by a 11 preponderance of the evidence that the touching was not motivated by sexual interest. 12 After several days of trial, the jury deliberated for two days but could not reach a 13 verdict. (Doc. 35 at 21-22.) They gave the judge several notes indicating they were 14 deadlocked, and the judge accordingly declared a mistrial and dismissed them. But just 15 minutes after the proceedings were adjourned, the bailiff delivered a note stating that the 16 jurors, who were still in the jury room gathering their things, wished to resume 17 deliberations. (Doc. 35 at 22.) Neither side objected, and the jury reconvened. After 18 nearly a full day of additional deliberation, the jury convicted May on five counts and 19 acquitted him on two. (Doc. 35 at 23.) (An eighth count was previously severed and 20 eventually dismissed.) May’s attorney moved for new trial, arguing that the final jury 21 instructions misstated Arizona law by requiring May to prove a lack of sexual intent. 22 (Doc. 35 at 23.) Once again, Thompson did not assert the law or the jury instructions 23 were unconstitutional. The judge denied the motion and later sentenced May to 75 years 24 in prison, 15 years for each count. (Doc. 35 at 24.) 25 After an unsuccessful direct appeal, May sought post-conviction relief in Arizona 26 superior court. This collateral review proceeding was his first chance under Arizona 27 procedure to raise a claim of ineffective assistance of counsel. See State v. Spreitz, 202 28 Ariz. 1, 3, 39 P.3d 525, 527 (2002) (holding that ineffective assistance of counsel may -4- 1 not be presented until post-conviction review). May argued that Thompson provided 2 ineffective assistance at trial by not challenging the constitutionality of placing the 3 burden on him to disprove sexual intent. The superior court denied relief because of 4 procedural default without deciding the merits of the constitutional claim (Docs. 1-11; 1- 5 13), and the state appellate court affirmed on the decision below (Doc. 1-17). The 6 Arizona Supreme Court summarily denied review. (Doc. 1-20.) 7 LEGAL STANDARDS ON FEDERAL HABEAS REVIEW 8 A federal habeas court cannot review a state court’s denial of relief based on 9 adequate and independent state law grounds. Coleman v. Thompson, 501 U.S. 722, 731- 10 32 (1991). Thus, a defendant defaults on any claim not presented to state courts in 11 accordance with the state’s procedural rules, generally barring federal habeas review. Id. 12 at 731-32. Exceptions apply where the defendant shows cause and prejudice for the 13 default or a miscarriage of justice would result from upholding the default. See Schlup v. 14 Delo, 513 U.S. 298, 314-15 (1995). One way a petitioner can establish cause is by 15 showing the default resulted from ineffective assistance of counsel. Murray v. Carrier, 16 477 U.S. 478, 488 (1986). 17 May did not challenge the constitutionality of Arizona’s child molestation statute 18 at trial, raising it for the first time in collateral proceedings. Since Arizona law required 19 him to raise it at trial, May cannot raise the claim here absent a showing of cause and 20 prejudice for his default.1 See Ariz. R. Crim. P. 32.2(a)(3) (precluding post-conviction 21 review of any claim that could have been raised at trial or on direct appeal). However, 22 May contends his trial attorney was ineffective in not challenging the constitutionality of 23 24 25 26 27 28 1 The Supreme Court has defined the other possibility, a “fundamental miscarriage of justice,” to mean, effectively, actual innocence. See McCleskey v. Zant, 499 U.S. 467, 494 (1991) (limiting “fundamental miscarriage of justice” cases to “extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime”). May has not met the exceedingly high bar for showing actual innocence. -5- 1 Arizona’s child molestation law.2 2 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), federal 3 habeas will not lie on claims decided on the merits by a state court unless the state court 4 decision was “contrary to, or involved an unreasonable application of, clearly established 5 Federal law, as determined by the Supreme Court of the United States” or was “based on 6 an unreasonable determination of the facts in light of the evidence presented in the State 7 court proceeding.” 28 U.S.C. § 2254(d). A state court unreasonably applies federal law 8 by “unreasonably extend[ing] a legal principle from [Supreme Court] precedent to a new 9 context where it should not apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). The 10 legal principles applied “must be found in the holdings, as opposed to the dicta, of [the 11 Supreme] Court’s decisions.” Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002) 12 (citation and internal quotation marks omitted). To meet this standard an application of 13 federal law cannot be merely erroneous; it “must have been objectively unreasonable.” 14 Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks omitted). 15 16 17 18 19 20 21 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). 22 This Court must therefore assess at the threshold whether the Arizona state courts 23 committed either of the errors enumerated in section 2254 in rejecting May’s contention 24 of ineffectiveness of counsel to excuse his procedural default on his constitutional claim. 25 26 27 28 2 May also argues his appellate counsel was ineffective for failing to raise the issue on direct appeal. (Doc. 2 at 80.) But because the constitutionality of Arizona’s child molestation law was never raised at trial, May’s appellate attorney was barred from raising it on appeal. -6- 1 Ineffective assistance of counsel is measured by the two-prong test in Strickland v. 2 Washington, 466 U.S. 668, 687 (1984). Counsel must have performed deficiently, and 3 this performance must have prejudiced the defendant. Id. 4 ANALYSIS 5 I. 6 7 8 9 10 11 12 13 14 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. 15 Rev. Stat. of Ariz. (Penal Code) § 282 (1913).3 That law had dropped out of the code by 16 1928, and not until 1965 did the state legislature pass a new law prohibiting sexual 17 18 19 20 21 22 23 24 25 26 27 28 3 The Arizona courts identify the state’s first child molestation prohibition as a 1939 statute making it a crime to “molest” a child. See State v. Holle (Holle I), 238 Ariz. 218, 223, 358 P.3d 639, 644 (Ariz. Ct. App. 2015) (citing 1939 Ariz. Sess. Laws, ch. 13, § 1), vacated by State v. Holle (Holle II), 240 Ariz. 300, 379 P.3d 197 (2016). The prohibition they cite, while entitled “MOLESTING SCHOOL CHILD,” provides: Any person who annoys or molests a school child, or without legitimate reason therefor loiters on the grounds of any public school at which children are in attendance, or within three hundred feet thereof, shall be deemed a vagrant, and upon conviction fined not more than five hundred dollars, imprisoned in the county jail not more than six months, or both. 1939 Ariz. Sess. Laws, ch. 13, § 1. In addition to coming twenty-six years after the 1913 statute, given the lenient punishment and lack of sexual context, the word “molests” in the 1939 statute likely did not refer to sexual contact but merely to the word’s more traditional definition (operative both then and now): to “annoy” or “disturb.” See, e.g., Molest, Webster’s New International Dictionary of the English Language 1580 (2d ed. 1936) (defining “molest” as “[t]o interfere with or meddle with unwarrantably so as to injure or disturb”). -7- 1 conduct with children in particular.4 That year the legislature enacted section 13-653 of 2 the Arizona Revised Statutes, providing: 3 4 5 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 . . . . 6 7 1965 Ariz. Sess. Laws, ch. 20, § 3. (The statute was renumbered to section 13-1410 in 8 1977. See 1977 Ariz. Sess. Laws, ch. 142, § 66.) While this prohibition did not 9 expressly recite a sexual intent requirement, the Arizona Supreme Court took it to be 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 4 Arizona’s penal code may have still prohibited child molestation in the interim. In 1917, the legislature enacted another law making it a crime to wilfully commit any lewd or lascivious act upon or with the body or any part or member thereof, of any male or female person, with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires of either of such persons, in any unnatural manner . . . . 1917 Ariz. Sess. Laws, ch. 2, § 1. This law was “in addition to, and not in place of, any other provision of law.” Id., § 2. The two key differences between this law and the 1913 molestation law were the former’s application to “any male or female person” and the requirement that the lewd or lascivious act be conducted “in any unnatural manner,” indications that the 1917 enactment likely targeted acts between same-sex partners. See Unnatural Offense, Black’s Law Dictionary (2d ed. 1910) (defining “unnatural offense” as “[t]he infamous crime against nature; i.e., sodomy or buggery”). Perhaps assuming this law also covered child molestation, the 1928 Code reviser deleted the child-specific law, carrying forward only the more general 1917 enactment. Rev. Code of Ariz. § 4651 (1928). In 1965, the legislature amended the law, by then codified as section 13-652 of the Arizona Revised Statutes, providing for additional punishment where the acts in question were committed “upon or with a child under the age of fifteen years.” 1965 Ariz. Sess. Laws, ch. 20, § 2. After renumbering the statute to section 13-1412 in 1977, 1977 Ariz. Sess. Laws, ch. 142, § 68, the legislature amended it in 1985 to limit application only to sexual acts between adults. 1985 Ariz. Sess. Laws, ch. 364, § 23. The statute was fully repealed in 2001. See 2001 Ariz. Sess. Laws, ch. 382, § 1. -8- 1 2 3 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 a child without “molesting” him by doing so, in which case the statute has not been violated. 4 5 State v. Berry, 101 Ariz. 310, 313, 419 P.2d 337, 340 (1966) (citation omitted). This 6 remained the law for several decades. 7 Over the next twenty years, the legislature tweaked section 13-1410 in various 8 ways, but “[Arizona] courts continued to treat sexual interest as an ‘essential element’ of 9 the offense.” State v. Holle (Holle I), 238 Ariz. 218, 223-24, 358 P.3d 639, 644-45 (Ariz. 10 Ct. App. 2015), vacated by State v. Holle (Holle II), 240 Ariz. 300, 379 P.3d 197 (2016). 11 See, e.g., State v. Brooks, 120 Ariz. 458, 460, 586 P.2d 1270, 1272 (1978); State v. 12 Madsen, 137 Ariz. 16, 18, 667 P.2d 1342, 1344 (Ariz. Ct. App. 1983); State v. Anderson, 13 128 Ariz. 91, 92, 623 P.2d 1247, 1248 (Ariz. Ct. App. 1980). In 1983, the legislature 14 enacted section 13-1407(E) of the Arizona Revised Statutes, making lack of sexual 15 interest an affirmative defense to child molestation. See 1983 Ariz. Sess. Laws, ch. 202 § 16 10. But at that time, Arizona law on proving affirmative defenses generally was that 17 upon the defendant raising an affirmative defense, the burden shifted to the state to refute 18 it beyond a reasonable doubt. See, e.g., State v. Duarte, 165 Ariz. 230, 231, 798 P.2d 19 368, 369 (1990) (“[O]nce evidence of self-defense is presented, the burden is on the state 20 to prove beyond a reasonable doubt that the conduct was unjustified.”). Thus in practice, 21 prosecutors had to prove sexual intent beyond a reasonable doubt. See Holle I, 238 Ariz. 22 at 224, 358 P.3d at 645 (collecting authorities and noting, “For practical purposes . . . the 23 enactment of § 13-407(E) did not significantly change the way courts treated sexual 24 interest.”). 25 Not until 1993 did the legislature amend sections 13-1410 and 13-1407(E) to their 26 current forms. See Holle I, 238 Ariz. at 225, 358 P.3d at 646. Before then, the text of 27 section 13-1410 began with the words “[a] person who knowingly molests a child . . .” 28 before reciting the precise actions that were prohibited. See 1965 Ariz. Sess. Laws, ch. -9- 1 2 3 4 20, § 3. The 1993 update revised the language to read: A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child under fifteen years of age. 5 1993 Ariz. Sess. Laws, ch. 255 § 29. The Arizona court of appeals held that the new 6 language, which omitted the verb “molests,” eliminated sexual intent as an element of the 7 crime. State v. Sanderson, 182 Ariz. 534, 542, 898 P.2d 483, 491 (Ariz. Ct. App. 1995). 8 But the court of appeals upheld the statute on the understanding that it shifted only the 9 burden of production to the defendant—not the burden of proof or persuasion. While it 10 was the defendant’s burden to assert lack of sexual intent as an affirmative defense, the 11 state then bore the burden of proving sexual intent beyond a reasonable doubt. See id.; 12 Holle I, 238 Ariz. at 225, 358 P.3d at 646. Thus, even under the Sanderson court’s 13 quibble on changing a verb (“molests”) to a noun (“molestation”), whether a fact was 14 treated as an element or the absence thereof as an affirmative defense had no practical 15 consequence. Either way the state had the burden of proof beyond a reasonable doubt. 16 In 1997, the Arizona legislature intervened again, not by changing anything in the 17 child molestation statute, but by changing the burden of proof for all affirmative defenses 18 across the board. (Subsequent legislation excluded justification defenses, but that does 19 not affect this case. See Holle I, 238 Ariz. at 226 n.7, 358 P.3d at 647 n.7; 2006 Ariz. 20 Sess. Laws, ch. 199, § 1-2.) The new enactment of general application required that “a 21 defendant shall prove any affirmative defense raised by a preponderance of the 22 evidence . . . .” 1997 Ariz. Sess. Laws, ch. 136, § 4; Ariz. Rev. Stat. § 13-205(A) (2006). 23 The 1997 amendments were the governing statutes when May stood trial in January 2007. 24 (Doc. 22 at 163-64.) 25 The Sanderson precedent was grounded on Arizona’s prior approach in which the 26 State must disprove affirmative defenses. Not until several weeks after May’s conviction 27 did an appellate court address child molestation in light of the 1997 legislation. The court 28 of appeals held that sexual intent continued not to be an element of child molestation - 10 - 1 under Arizona law, but that section 13-205(A) now placed the burden on the defendant to 2 prove by a preponderance of the evidence that he lacked sexual motivation. State v. 3 Simpson, 217 Ariz. 326, 329, 173 P.3d 1027, 1030 (Ariz. Ct. App. 2007). 4 In 2015, a different panel of the court of appeals disagreed with Simpson, holding 5 that lack of sexual intent is not an “affirmative defense” to child molestation under state 6 law but just a “defense.” Holle I, 238 Ariz. at 226, 358 P.3d at 647. See Ariz. Rev. Stat. 7 § 13-103 (2006). The Holle I court held that for this reason the state still must prove 8 sexual intent beyond a reasonable doubt. Holle I, 238 Ariz. at 226, 358 P.3d at 647. But 9 the Arizona Supreme Court vacated that ruling in 2016, holding that lack of sexual intent 10 is in fact an affirmative defense, which a defendant must prove by a preponderance of the 11 evidence. Holle II, 240 Ariz. at 305, 379 P.3d at 202. 12 There is no indication the drafters of the 1997 amendment surveyed all affirmative 13 defenses in Arizona law and reflected on the constitutionality of shifting the burden of 14 proof on each one. 15 formality of labeling something an affirmative defense, which did not matter before, 16 could now determine whether fundamental constitutional rights are accorded or denied 17 for some defenses to some crimes. Under the Arizona Supreme Court’s decision in Holle II, the 18 Though no case had so held when May stood trial, as of today, ten years later, 19 prosecutors bear the burden of proving beyond a reasonable doubt that the defendant 20 “intentionally or knowingly” engaged in sexual contact with a child under fifteen, defined 21 as any direct or indirect touching, fondling or manipulating of any part of the genitals or 22 anus by any part of the body or by any object or causing a person to engage in such 23 contact. See Ariz. Rev. Stat. §§ 13-1401(3), 13-1410(A). The defendant then bears the 24 burden of proving by a preponderance of the evidence that such touching was without a 25 sexual interest. The question arises here, as it no doubt will in other cases concerning 26 essential denials relabeled as defenses to be proved, whether it is constitutional to put the 27 burden of disproof on the defendant instead of the burden of proof on the state. 28 Of course, “proving lack of sexual intent” is exactly the same thing as “disproving - 11 - 1 sexual intent.” That same thing is proving a negative. However phrased, it is not proving 2 anything affirmative. Putting the contradictory word “affirmative” in front of proof of a 3 negative does not make it proof of an affirmative, though it may serve to confuse the 4 reader. It is still what it is. This order uses both phrases interchangeably. 5 II. 6 Arizona Deprived May of Due Process of Law and of the Right to Be Found Guilty Only by Proof Beyond a Reasonable Doubt 7 From the passage of section 13-205 until the conclusion of May’s state court 8 proceedings, no Arizona court—including those that reviewed May’s conviction— 9 addressed whether it is constitutional to require a child molestation defendant to disprove 10 his sexual interest. In Holle I in 2015, the Arizona court of appeals avoided the question 11 by distinguishing a “defense” from an “affirmative defense,” and thereby held under state 12 law that the prosecution must still prove sexual intent beyond a reasonable doubt. Holle 13 I, 238 Ariz. at 226, 358 P.3d at 647. In its 3-2 decision vacating Holle I, the Arizona 14 Supreme Court held that state law makes lack of sexual intent an affirmative defense to 15 be proved by the defendant. Holle II, 240 Ariz. at 311, 379 P.3d at 208. The Holle II 16 court also held, for the first time anywhere in the country, that putting such a burden on a 17 child molestation defendant does not violate federal due process of law. Id. That federal 18 law ruling, handed down by the state supreme court nine years after May’s conviction 19 and three years after his state court proceedings ended, is not entitled to deference from 20 this Court. None of the state courts in May’s case decided the federal constitutional 21 question, so this habeas court must decide it as res nova if it reaches the question. 22 Because May failed to preserve the constitutional question at trial, this Court can 23 reach the merits only if there was cause and prejudice for his default. May contends the 24 default was the result of ineffective assistance of his trial counsel. (Doc. 2 at 86.) One 25 prong of ineffective assistance of counsel is prejudice, i.e., that it is reasonably likely 26 May would have obtained a different outcome absent the ineffectiveness, with “a 27 probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 28 687. Prejudice, the likelihood of a different outcome, therefore depends largely on the - 12 - 1 strength of the defaulted federal constitutional objection. 2 It therefore makes sense to discuss the law’s constitutionality at the outset. Merits 3 discussion will do double service, once on the prejudice prong to escape the default and 4 again to decide the constitutional claim itself. 5 A. Due Process Limits States in Placing Burdens of Proof on Defendants 6 The Fourteenth Amendment to the United States Constitution provides that a state 7 shall not “deprive any person of life, liberty, or property, without due process of law.” 8 U.S. Const. amend. XIV, § 1. In criminal proceedings, this requires the state to “pro[ve] 9 beyond a reasonable doubt . . . every fact necessary to constitute the crime with which 10 [the defendant] is charged.” In re Winship, 397 U.S. 358, 364 (1970). States have wide 11 latitude to determine what conduct to make a crime and what defenses to allow. See, e.g., 12 McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986) (“[I]n determining what facts must be 13 proved beyond a reasonable doubt the state legislature’s definition of the elements of the 14 offense is usually dispositive.”). A legislature’s choice in this regard, including how it 15 allocates evidentiary burdens, warrants deference “unless it offends some principle of 16 justice so rooted in the traditions and conscience of our people as to be ranked as 17 fundamental.” Patterson v. New York, 432 U.S. 197, 201-02 (1977) (internal quotation 18 marks omitted). 19 That said, the Supreme Court has repeatedly cautioned legislatures against skirting 20 Winship by simply extracting essential elements from offenses and putting the burden on 21 defendants to disprove them. The Court first addressed this in Mullaney v. Wilbur, 421 22 U.S. 684 (1975), in which it overturned a murder conviction where the jury was 23 instructed it could infer “malice aforethought,” an element of murder under Maine law, 24 from a mere finding that the defendant committed an intentional killing. Id. at 703. 25 While the defendant could downgrade the offense to manslaughter by raising heat of 26 passion as an affirmative defense, he carried the burden of proving heat of passion by a 27 preponderance of the evidence. Id. at 686. The Court concluded that this “affirmatively 28 shifted the burden of proof to the defendant” to disprove malice, an essential element of - 13 - 1 murder, even though the Maine supreme court had upheld the burden shifting scheme as 2 an integral part of the state’s law. Id. at 701. 3 Two years later a similar issue arose in Patterson, where the Supreme Court 4 upheld a second-degree murder conviction under a New York statute that criminalized 5 the intentional killing of another person without proof of malice. 432 U.S. at 198. The 6 statute permitted a defendant to reduce the charge by proving by a preponderance of the 7 evidence that he “acted under the influence of extreme emotional disturbance for which 8 there was a reasonable explanation or excuse.” Id. Malice need not be proved and lack 9 of malice was not a permitted defense or rebuttal. The defendant nonetheless contended 10 the charge-reduction scheme impermissibly shifted the burden of proof by effectively 11 requiring him to disprove malice. 12 distinguishing Mullaney on the grounds that since the New York statute did not expressly 13 recite malice as an element of murder, the heat of passion defense did not negate an 14 essential element. Id. at 208-09. Significantly, neither party in Patterson disputed that 15 “the State may constitutionally criminalize and punish” the intentional killing of another 16 person without more. Id. at 209. But the Court emphasized that while its decision “may 17 seem to permit state legislatures to reallocate burdens of proof by labeling as affirmative 18 defenses at least some elements of the crimes now defined in their statutes[,] . . . there are 19 obviously constitutional limits beyond which the States may not go in this regard.” 20 Patterson, 432 U.S. at 210 (citation and internal quotation marks omitted). Id. at 201. The Patterson Court disagreed, 21 Defying the plain language of Patterson, at oral argument the State defended 22 May’s conviction on the basis that legislatures have complete and unfettered authority to 23 decide both the elements of and “affirmative” defenses to any crime. According to the 24 State, the constitutional limit is entirely a matter of form: lawmakers can force the 25 accused to prove or disprove any fact as long as the legislature is careful to call the 26 arrangement an “affirmative defense.” Or, as in this case, a legislature can take what was 27 for decades an element of the crime (sexual intent) and relabel the denial of it as an 28 affirmative defense, thereby freeing the state from having to prove it and making the - 14 - 1 accused disprove it instead. 2 maintaining that legislatures have unbounded capacity to shift to defendants the burden of 3 disproving anything, subject only to the specific examples listed in Patterson: a 4 legislature “cannot declare an individual guilty or presumptively guilty of a crime”; nor 5 may it “validly command that the filing of an indictment, or mere proof of the identity of 6 the accused, should create a presumption of the existence of all the facts essential to 7 guilt.” Patterson, 432 U.S. at 210. The State declined any more specific constitutional 8 justification for allowing a state to make an accused disprove sexual intent for child 9 molestation.5 At oral argument the State was candidly absolutist in 10 The State’s unified field theory for evading Winship with thaumaturgic words is 11 directly contrary to Patterson’s holding that “there are obviously constitutional limits 12 beyond which the States may not go in this regard.” Patterson, 432 U.S. at 210 (citation 13 and internal quotation marks omitted). The Supreme Court has reiterated this far too 14 frequently to consider the question less than settled. See McMillan, 477 U.S. at 86; 15 Apprendi v. New Jersey, 530 U.S. 466, 486 (2000) (“We did not . . . [in McMillan] budge 16 from the position that . . . constitutional limits exist to States’ authority to define away 17 facts necessary to constitute a criminal offense.”); Jones v. United States, 526 U.S. 227, 18 243 (1999) (“The seriousness of the due process issue is evident from Mullaney’s 19 insistence that a State cannot manipulate its way out of Winship, and from Patterson’s 20 recognition of a limit on state authority to reallocate traditional burdens of proof . . . .”); 21 Schad v. Arizona, 501 U.S. 624, 639 (1991) (citing Patterson for the proposition that 22 “there are obviously constitutional limits beyond which the States may not go” in 23 5 24 25 26 27 At oral argument, the Court tested these limits by hypothesizing a “Felonious Hospital Nursing” offense in which a hospital nurse is guilty of a crime if a patient dies while under the nurse’s watch. As an affirmative defense, the nurse could prove that no act or omission by the nurse caused the death. Counsel for the State argued that even this would be constitutional, as it would come within the State’s no-limits rule. The State’s endorsement of the hypothetical is a reductio ad absurdum of its thesis for upholding May’s conviction. 28 - 15 - 1 defining offenses). The State’s stance is antithetical to the very requirement of proof 2 beyond a reasonable doubt. It is directly contrary to Supreme Court case law on the very 3 level of generality at which the State poses it. 4 5 B. The Arizona Law Fails Under the Typical Supreme Court Criteria for Rejecting Unconstitutional Burden-Shifting 6 Arizona’s child molestation law also falls short on the Supreme Court’s more 7 focused criteria and considerations limiting states’ discretion to shift burdens of proof in 8 criminal cases. 9 At a high level and as has been noted, deference to the legislature’s discretion ends 10 when “it offends some principle of justice so rooted in the traditions and conscience of 11 our people as to be ranked as fundamental.” 12 confirming how traditions and conscience weigh in specific challenges, courts “have 13 often found it useful to refer both to history and to the current practice of other States in 14 determining whether a State has exceeded its discretion in defining offenses.” Schad v. 15 Arizona, 501 U.S. 624, 640 (1991) (plurality opinion). A state may not “shift[] the 16 burden of proof as to what is an inherent element of the offense,” on which long history 17 and widespread use shed light. Id. Of particular importance to this case, “a freakish 18 definition of the elements of a crime that finds no analogue in history or in the criminal 19 law of other jurisdictions” signals possible constitutional infirmity. Id. At the very least, 20 the remaining elements of the stripped-down crime must define something wrongful. See 21 Morrison v. California, 291 U.S. 82, 90 (1934) (“For a transfer of the burden, experience 22 must teach that the evidence held to be inculpatory has at least a sinister 23 significance . . . .”). Additionally, “the shifting of the burden [must] be found to be an aid 24 to the accuser without subjecting the accused to hardship or oppression.” Id. at 89. 25 26 Patterson, 432 U.S. at 201-02. In For the following reasons, Arizona’s burden shifting in child molestation fails readily on all these measures. 27 28 - 16 - 1 2 1. Sexual Intent Has Always Been Essential to the Crime of Child Molestation 3 Examination of both history and practice compels or at least forcefully suggests 4 the conclusion that sexual intent is essential to child molestation. While sexual crimes 5 against children have long been punished in America, specific laws against sexual contact 6 with children are of more recent vintage. Both the British common law and early 7 American jurisdictions typically treated sexual offenses against children under broader 8 categories, such as assault with intent to commit rape, or even rape itself. See Charles A. 9 Phipps, Children, Adults, Sex and the Criminal Law: In Search of Reason, 22 Seton Hall 10 Legis. J. 1, 11-15 (1997). Where such offenses did not involve sexual penetration, a 11 handful of states created separate statutes criminalizing the offense of “taking indecent 12 liberties” with children, though these laws often did not enumerate specific elements. Id. 13 at 17. Arizona’s own 1913 molestation law, discussed above, likewise required that the 14 prohibited acts be carried out “with the intent of arousing, appealing to or gratifying the 15 lust or passions or sexual desires of such person or of such child.” Ariz. Rev. Stat. (Penal 16 Code) § 282 (1913). Other states used the same language before and after Arizona did. 17 See, e.g., People v. Curtis, 1 Cal. App. 1, 1-2, 81 P. 674 (Cal. Ct. App. 1905); Milne v. 18 People, 224 Ill. 125, 126, 79 N.E. 631, 631-32 (1906); State v. Kernan, 154 Iowa 672, 19 673, 135 N.W. 362, 363 (1912); State v. Kocher, 112 Mont. 511, 119 P.2d 35, 37 (1941). 20 Statutes of this sort became the norm across jurisdictions and persisted over time. 21 The Model Penal Code, first published by the American Law Institute in 1962, compiled 22 a single advisory corpus of preferred formulations of criminal statutes. See Markus D. 23 Dubber, Criminal Law: Model Penal Code 7-11 (2002). The Model Penal Code included 24 sexual crimes against children within a broader section on sexual assault, which provided 25 for criminalizing certain kinds of “sexual conduct,” defined as “any touching of the 26 sexual or other intimate parts of the person for the purpose of arousing or gratifying 27 sexual desire.” ALI, Model Penal Code § 213.4 (1962). That language endures to the 28 present. See ALI, Model Penal Code § 213.4 (2015). Today the statutes or case law of - 17 - 1 48 out of 50 states, the District of Columbia, three U.S. territories, and the federal 2 government require some sexual purpose for the crime of child molestation.6 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Currently, the vast majority of jurisdictions define the “sexual contact” requisite for child molestation as intentional touching of specified body parts for sexual arousal or gratification. See Ala. Code § 13A-6-60(3) (1988) (Alabama); Ark. Code Ann. § 5-14101(10) (2009) (Arkansas); Cal. Penal Code § 288(a) (West 2010) (California); Conn. Gen. Stats. § 53a-65(3) (2013) (Connecticut); Colo. Rev. Stat. § 18-3-401(4) (2013) (Colorado); Del. Code Ann. tit. 11, § 761(f) (2015) (Delaware); Ga. Ann. Code § 16-64(a) (2009) (Georgia); 9 Guam Code Ann. § 25.10(8) (1979) (Guam); Idaho Code § 181508 (1992) (Idaho); 720 Ill. Comp. Stat. 5/11-0.1 (2011) (Illinois); Ind. Code § 35-42-44(4) (2016) (Indiana); Iowa Code § 709.12(1) (2013) (Iowa); Kan. Stat. Ann. § 215506(a) (2011) (Kansas); Ky. Rev. Stat. Ann. § 510.010(7) (West 2012) (Kentucky); La. Stat. § 14:81 (2010) (Louisiana); Miss. Code Ann. § 97-5-23(1) (2015) (Mississippi); Neb. Rev. St. § 28-318(5) (2010) (Nebraska); Nev. Rev. Stat. 201.230 (2015) (Nevada); N.H. Rev. Stat. Ann. § 632-A:1(IV) (2009) (New Hampshire); N.Y. Penal Law § 130.00(3) (2010) (New York); N.C. Gen. Stat. § 14-202.1(a) (1994) (North Carolina); Ohio Rev. Code Ann. § 2907.1(B) (2007) (Ohio); Okla. Stat. tit. 21, § 1123(A) (2015) (Oklahoma); Or. Rev. Stat. § 163.305(6) (2010) (Oregon); 18 Pa. Cons. Stat. § 3126(a) (2006) (Pennsylvania); P.R. Laws Ann. tit. 33, § 4772 (Puerto Rico); S.C. Code Ann. § 16-3-655(C) (2012) (South Carolina); S.D. Codified Laws § 22-22-7.1 (2004) (South Dakota); Tenn. Code Ann. § 39-13-501(6) (2013) (Tennessee); Tex. Penal Code Ann. § 21.11(c) (2009) (Texas); Vt. Stat. Ann. tit. 13, § 2821(2) (1999) (Vermont); V.I. Code Ann. tit. 14, § 1699 (2002) (Virgin Islands); Va. Ann. Code § 18.2-67.10(6) (2004) (Virginia); Wash. Rev. Code § 9A.44.010(2) (2007) (Washington); W. Va. Code § 618B-1(6) (2007) (West Virginia). Some jurisdictions also add the purposes of abuse, degradation, or humiliation. See D.C. Code § 22-3001(9) (2009) (District of Columbia); 18 U.S.C. § 2246(3) (Federal); Me. Rev. Stat. Ann. tit. 17-A, § 251(1)(D) (2003) (Maine); Md. Code Ann., Crim. Law § 3-301(e) (2016) (Maryland); Mich. Comp. Laws 750.520a(q) (2015) (Michigan); Minn. Stat. § 609.341(11)(c) (2013) (Minnesota); Mo. Ann. Stat. § 566.010 (West 2016) (Missouri); Mont. Code Ann. § 45-2-101(67) (2016) (Montana); N.J. Stat. Ann. § 2C:14-1(d) (West 2012) (New Jersey); N.D. Cent. Code § 12.1-20-02(5) (2009) (North Dakota); 11 R.I. Gen. Laws § 11-37-1(7) (1999) (Rhode Island); Utah Code Ann. § 76-5-401.1(2) (West 2016) (Utah); Wisc. Stat. 948.01(5) (2015) (Wisconsin); Wy. Stat. Ann. § 6-2-301(a)(vi) (2010) (Wyoming). Alaska does not enumerate a sexual or abusive intent requirement but does provide an enumerated exception—not a defense—for touching carried out under “normal caretaker responsibilities for a child, interactions with a child, or affection for a child.” Alaska Stat. § 11.81.900(59)(B) (2013). Child molestation statutes in Florida, Massachusetts, and New Mexico do not specify intent requirements or enumerate exceptions for, e.g., hygienic touching. See Fla. Stat. § 800.04(5)(a) (2014) (prohibiting certain intentional touching of anyone under 16 years of age “in a lewd or lascivious manner”); Mass. Gen. Laws ch. 265, § 13B (2008) (criminalizing “indecent assault and battery on a child under the age of 14”); N.M. Stat. - 18 - 1 This virtually unanimous practice with consistent historical precedent is strong 2 evidence of the traditions and conscience of our people that count as fundamental to the 3 rights of persons charged with crimes. See Patterson, 432 U.S. at 201-02. They weigh 4 heavily in favor of sexual intent as “an inherent element of the offense” of child 5 molestation, an element in substance that the State must prove and cannot constitutionally 6 put on an accused person to disprove. 7 8 2. Arizona’s “Freakish Definition of the Elements” without Any “Sinister Significance” 9 Arizona certainly has “a freakish definition of the elements” grounded on nothing 10 of “sinister significance.” The language of the elements describes benign and 11 constitutionally protected behavior that could only become wrongful with sexual intent— 12 the very fact the Arizona law forces the defendant to disprove. This is convicting people 13 without proof of wrongdoing because they have not disproved the only thing that could 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ann. § 30-9-13(A) (2003) (criminalizing “the unlawful and intentional touching of or applying force to the intimate parts of a minor or the unlawful and intentional causing of a minor to touch one’s intimate parts”). However, courts in all three states have gleaned requirements of something more than mere touching from the language of their respective statutes. See Andrews v. State, 130 So.3d 788, 789-90 (Fla. App. 2014) (“[T]he Legislature has not defined the terms ‘lewd’ and ‘lascivious.’ But generally speaking, these words . . . usually have the same meaning, that is, an unlawful indulgence in lust, eager for sexual indulgence” (alterations and internal quotation marks omitted)); Commonwealth v. Lavigne, 42 Mass. App. Ct. 313, 314-15, 676 N.E. 2d 1170, 1172 (1997) (defining “indecent” touching as “fundamentally offensive to contemporary moral values…and which the common sense of society would regard as immodest, immoral, and improper” (internal quotation marks omitted)); State v. Pierce, 110 N.M. 76, 83, 792 P.2d 408, 415 (1990) (holding that lawful parenting behaviors are foreclosed from prosecution under § 30-9-13 because only “unlawful” touching is prohibited). Hawaii may be the only jurisdiction other than Arizona that does not require sexual intent for a child molestation offense. The state’s penal code outlaws “knowingly subject[ing] to sexual contact another person who is less than fourteen years old or caus[ing] such a person to have sexual contact with the [offender].” Haw. Rev. Stat. § 707-732(1)(b) (2009). The Hawaii legislature in 1986 rewrote its definition of “sexual contact” specifically to cut out sexual gratification as a requirement. See Haw. Rev. Stat. § 707-700 (2016); State v. Kalani, 108 Hawai’i 279, 285, 118 P.3d 1222, 1228 (2005) (rejecting a constitutional vagueness challenge). No court has addressed whether some sexual intent requirement is implied, which party would have to prove or disprove it, or whether it would be unconstitutional for a defendant to have to disprove it. - 19 - 1 color their conduct as culpable. 2 Indeed, the “affirmative defense” here is not an explanation, avoidance, or 3 justification. Nor is it a diminishment of culpability, offense level, or punishment. The 4 defense is proof of a negative. It is refutation of the entire wrongfulness that may be 5 lurking in any of the extensive prohibited conduct. When a law as written criminalizes 6 entirely benign intentional conduct and has no mental state requirement to separate the 7 bad from the good, making disproof of a state of mind a complete “defense” retains state 8 of mind as central to the crime. 9 There is a grievous threat to due process of law from making defendants disprove 10 their own state of mind for conduct that is not wrongful in any sensible way without a 11 bad mental state. The dissenting Justices in Patterson feared that under the Court’s rule, 12 which they thought overly broad and difficult to apply: 13 14 15 16 17 18 For example, a state statute could pass muster under the only solid standard that appears in the Court’s opinion if it defined murder as mere physical contact between the defendant and the victim leading to the victim’s death, but then set up an affirmative defense leaving it to the defendant to prove that he acted without culpable mens rea. The State, in other words, could be relieved altogether of responsibility for proving anything regarding the defendant’s state of mind, provided only that the fact of the statute meets the Court’s drafting formulas. 19 20 Patterson, 432 U.S. at 224 n.8 (Powell, J., dissenting) (emphasis added). But even the 21 dissenters thought their hypothetical statute so “egregious” that they had “no doubt that 22 the Court would find some way to strike [it] down . . . .” Id. at 225 n.9. The casus 23 terribilis the dissenters posed—no mental state requirement for widely criminalizing 24 benign conduct with the defendant charged to disprove bad mental state—has arrived. It 25 is in Arizona and people are in prison for it, May for the rest of his natural life. 26 These considerations, too, show the Arizona law has gone over the constitutional 27 bounds of legislative discretion in defining crimes and putting burdens of proof on the 28 accused. - 20 - 1 2 3. Arizona Repudiated Its Own History When It Shifted the Burden of Disproving Sexual Intent to Defendants 3 The evolution of Arizona’s child molestation law has an unmistakable trajectory. 4 It expressly required sexual intent when first enacted in 1913. When enacted again in 5 1965, it was judicially construed to require prosecutorial proof of sexual intent beyond a 6 reasonable doubt. Then the legislature only required prosecutors to do so once the 7 defendant denied sexual intent. Now a defendant must disprove sexual intent by a 8 preponderance of the evidence. See Ariz. Rev. Stat. § 13-205(A) (2006); Holle II, 240 9 Ariz. at 308, 377 P.3d at 205. In form, Arizona has written sexual intent out of its child 10 molestation law—but in substance it is still at the center of the crime. All that has 11 changed is who has to prove or disprove it. 12 The fact that a previously required element has been formally transferred to the 13 defense does not automatically defeat the law. A legislature could initially require 14 elements that go beyond any constitutional or common sense minimum of wrongfulness 15 and later opt to remove them. See Patterson, 432 U.S. at 209. But in child molestation, 16 sexual intent is not lagniappe. It is essential to separate wrongful conduct from everyday 17 child touching in parenting, hygiene, medical care, athletics, and other non-culpable acts 18 within the stated elements of the Arizona crime. 19 C. Application of Due Process Analysis to the Arizona Burden-Shifting Scheme 20 Measured against the Supreme Court’s standards and criteria, the burden-shifting 21 scheme in Arizona’s child molestation law violates due process plain and simple. The 22 defendant bears the burden of disproving the very thing that makes child molestation 23 child molestation. There are “obviously constitutional limits beyond which the States 24 may not go” in redefining offenses, Patterson, 432 U.S. at 210, and this is obviously one 25 of the limits. 26 In its recent decision on this same question, the Arizona Supreme Court excused 27 this burden-shifting on the ground that other criminal statutes occasionally sweep 28 innocent conduct within their general language. Holle II, 240 Ariz. at 309, 379 P.3d at - 21 - 1 206.7 From the fact that sometimes happens without constitutional infirmity, the state 2 supreme court implies that any law may intentionally and expansively sweep innocent 3 conduct within its prohibition by omitting traditional and common sense elements of the 4 offense—leaving it to the selected defendants to prove their innocence. The Arizona 5 Supreme Court’s obvious fallacy is that uncertainty about line-drawing does not prove 6 there are no lines. Moreover, language cannot capture perfectly and only the events in 7 the world of interest. But it can try in good faith to do so and come reasonably close. 8 The Arizona statute does neither. 9 Shifting what used to be an element to a defense is not fatal if what remains of the 10 stripped-down crime still may be criminalized and is reasonably what the state set out to 11 punish. See Patterson, 432 U.S. at 209. Here, however, section 13-1410 criminalizes 12 diapering and bathing infants and much other innocent conduct. See Holle II, 240 Ariz. 13 at 308-09, 379 P.3d at 205-06. 14 constitutionally protected. See Troxel v. Granville, 530 U.S. 57, 66 (2000) (“The Due 15 Process Clause of the Fourteenth Amendment protects the fundamental right of parents to 16 make decisions concerning the care, custody, and control of their children.”). See also 17 Santosky v. Kramer, 455 U.S. 745, 753 (1982); Quilloin v. Walcott, 434 U.S. 246, 255 18 (1978); Stanley v. Illinois, 405 U.S. 645, 651 (1972). As May’s attorney pointed out at 19 oral argument, the statute even criminalizes circumcision of babies, a ritual practiced in 20 21 22 23 24 25 26 27 28 More than just innocent, some such conduct is 7 Citing to Arizona’s assault statute, which criminalizes “[i]ntentionally, knowingly or recklessly causing any physical injury to another person,” Ariz. Rev. Stat. § 13-1203 (1978), the court noted that “[a] medical provider arguably commits an assault whenever he or she causes any physical injury to his or her patient, but that doctor can assert the affirmative defense of consent.” Holle II, 240 Ariz. at 309, 379 P.3d at 206 (emphasis in original). That example stands quite apart from child molestation. Arizona’s formulation of assault faithfully tracks the traditional elements. See, e.g., 1 William Hawkins, A Treatise of the Pleas of the Crown 133 (3d ed. 1739) (defining “assault” under English common law as “an Attempt, or Offer, with Force and Violence, to do a corporal Hurt to another”). Consistency with longstanding historical precedent, while not dispositive, carries great weight in establishing comportment with due process. See Schad, 501 U.S. at 650 (Scalia, J., concurring) (“It is precisely the historical practices that define what is ‘due.’”). - 22 - 1 several religious faiths. See generally Geoffrey P. Miller, Circumcision: Cultural-Legal 2 Analysis, 9 Va. J. Soc. Pol’y & L. 497 (2002). 3 Dismissing this problem, the Holle II court assured that “prosecutors are unlikely 4 to charge parents, physicians, and the like when the evidence demonstrates the presence 5 of an affirmative defense under § 13-1407.” Holle II, 240 Ariz. at 308-09, 379 P.3d at 6 205-06. But cases of just this sort have been brought even in jurisdictions that require 7 sexual intent for conviction. 8 Reconstructing Fatherhood in the Shadow of Child Molestation Law, 101 Cal. L. Rev. 9 609, 625 (2013) (citing from multiple jurisdictions cases of “disputes in which a father is 10 [criminally] accused in connection with giving a child a bath; wiping his daughter after 11 going to the bathroom; dealing with incontinence issues; giving kisses in the context of 12 play, after a bath, or diaper change; and even tucking his daughters into bed”). The 13 rehearing papers in Holle II itself recounted a recent prosecution in Pima County, 14 Arizona, where a father was put to his proof through trial for child molestation while 15 bathing his daughter. He was acquitted. (Doc. 59-1 at 1-5.) See Camille Gear Rich, Innocence Interrupted: 16 Our criminal justice system does rely heavily on the sound discretion of 17 prosecutors. But discretionary enforcement assumes laws that by their terms and in good 18 faith distinguish the prohibited wrongful conduct from innocent conduct. Just trusting 19 the government to do the right thing is poor dressing for constitutional wounds. See 20 United States v. Stevens, 559 U.S. 460, 480 (2010) (“We would not uphold an 21 unconstitutional statute merely because the Government promised to use it 22 responsibly.”); cf. McDonnell v. United States, — U.S. —, 136 S. Ct. 2355, 2372-73 23 (2016) (“[W]e cannot construe a criminal statute on the assumption that the Government 24 will ‘use it responsibly.’”). A regime in which everyone starts out guilty and law 25 enforcement decides who has to prove himself innocent is not the rule of law. It is a 26 police state, no matter how much we trust the police. 27 To be clear, this Court concludes only that the burden-shifting scheme of 28 Arizona’s child molestation law violates the Fourteenth Amendment’s guarantees of due - 23 - 1 process and of proof of guilt beyond a reasonable doubt. 2 overbreadth challenge or any other constitutional challenge. 3 whether due process permits Arizona to remove the essential wrongfulness in child 4 molestation and place the burden of disproving it upon people engaged in a wide range of 5 acts, the vast majority of which no one could believe the State meant to punish. Because 6 the resulting nominal offense has no element that distinguishes culpable from innocent or 7 constitutionally protected conduct, the answer is no. 8 constitutional limits identified in Patterson. May has not made an The question here is Arizona’s law exceeds the 9 The Supreme Court has not assayed a single formula to separate all the 10 permissible burden-shifting from all the impermissible, and neither does this Court. But 11 a number of tests mark out some of the permissible and some of the impermissible. They 12 have been discussed above and the Arizona law comes up short on all of them. A most 13 salient test is whether the only quality that separates a small amount of wrongful conduct 14 from a great sweep of prohibited benign conduct is the very factor the accused is charged 15 with disproving. An alternative formulation is this: If the “affirmative” defense is to 16 disprove a positive—and that positive is the only wrongful quality about the conduct as a 17 whole—it is a nearly conclusive sign that the state is unconstitutionally shifting the 18 burden of proof for an essential element of a crime. 19 To think otherwise here, one would have to believe that Arizona really thinks 20 children’s hygienic care, bathing, medical care, athletics, religious circumcision, and all 21 other occasions for touching private parts are wrongful in themselves without more. But 22 they are not inherently wrongful, and the legislature surely did not mean to prohibit all 23 such acts apart from the sexual intent of the actor. If the State says the legislature did so 24 mean, this Court is not fooled. No one will be fooled. The Arizona Supreme Court was 25 not fooled because they excused the law on the initially intuitive but illegitimate basis 26 that the police will know who can prove the defense and not prosecute them. See Holle 27 II, 240 Ariz. at 308-09, 379 P.3d at 205-06. That has nothing to do with whether people 28 who are prosecuted can be made to prove their innocence. - 24 - 1 The state supreme court’s intuition does aid understanding of what this statute 2 really is. The intuition that the State will only charge people who cannot disprove sexual 3 intent may leave some comfortable that the right people are being convicted. But it is the 4 very role of proof beyond a reasonable doubt to sort out who should be convicted from 5 who should not. It is a limitation on the State’s means of convicting, and it does not yield 6 because the State picks the right people to prosecute. Reliance on that intuition reveals 7 again what the State is doing here: freeing itself from proving an essential element of 8 guilt because the prosecution has a pretty good idea who is guilty and the accused 9 probably won’t disprove it. To give that thought any purchase is to repudiate at its core 10 the constitutional mandate that the state prove guilt beyond a reasonable doubt. 11 It is entirely obvious that sexual intent remains at the core of Arizona’s child 12 molestation law, and no amount of oxymoronic labels about affirmative disproof 13 disguises that. Counsel for the State deserves credit for candor in positing his defense on 14 a complete absence of any constitutional limit on a state’s ability to shift burdens of proof 15 on elements of crimes to defendants, as long as it uses the magic words. 16 III. Cause and Prejudice: Ineffective Assistance of Counsel 17 That said, May defaulted on the constitutional claim by not raising it at trial. He 18 contends he has shown cause and prejudice because his trial attorney was ineffective for 19 failing to challenge the constitutionality of Arizona’s statute and the jury instructions 20 given pursuant to it. May raised his claim of ineffective assistance of counsel at the 21 proper time in his post-conviction proceeding and exhausted it in the state courts. 22 Both the state courts and the R&R reject May’s ineffectiveness claim solely on the 23 grounds that he cannot show prejudice under Strickland. The Court thus addresses that 24 prong first. 25 A. Prejudice 26 To prove prejudice, May must show “there is a reasonable probability that, but for 27 counsel’s unprofessional errors, the result of the proceeding would have been different.” 28 Strickland, 466 U.S. at 694. He need not show this with certainty, but merely with “a - 25 - 1 probability sufficient to undermine confidence in the outcome.” Id. 2 This Court rejects the R&R’s conclusion that May cannot show prejudice. Where 3 state courts have reviewed a claim on the merits, a federal habeas court is limited to 4 determining whether the state court’s decision is “contrary to, or involved an 5 unreasonable application of” settled Supreme Court law, or that is “based on an 6 unreasonable determination of the facts.” 28 U.S.C. § 2254(d). 7 1. The State Courts Unreasonably Applied Federal Law 8 On habeas review, a federal court must “determine what arguments or theories 9 supported, or could have supported, the state-court decision . . . .” Harrington, 562 U.S. 10 at 88. The best indication of this is the reasoning of the state courts. And where such 11 reasoning is summarily affirmed (or review denied) by a higher state court, “silence 12 implies consent, not the opposite—and courts generally behave accordingly, affirming 13 without further discussion when they agree, not when they disagree, with the reasons 14 given below.” Kernan v. Hinojosa, — U.S. —, 136 S. Ct. 1603, 1605-06 (2016) (quoting 15 Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991)) (internal quotation marks omitted). 16 The superior court on post-conviction review disavowed making any ruling on the 17 merits of May’s constitutional claim. See Doc. 1-11 at 3 (“Defendant’s claim that the 18 Arizona child molestation statute is unconstitutional is precluded.”). But the court also 19 ruled that May’s trial counsel was not ineffective because the appeal he forfeited would 20 not have succeeded. (Doc. 1-13 at 5-6.) The court of appeals adopted the superior 21 court’s reasoning (Doc. 1-17 at 12) and the Arizona Supreme Court denied review. (Doc. 22 1-20 at 2.) This Court therefore reviews the reasoning and conclusion set forth by the 23 superior court on post-conviction review. 24 25 After a full evidentiary hearing, the superior court judge ruled on May’s ineffectiveness claim as follows: 26 27 28 Defendant claims ineffective assistance of trial and appellate counsel in failing to challenge the constitutionality of the child molestation statute. His expert did not opine on whether such a challenge would have been - 26 - 1 2 3 4 successful. (R.T. of Sept. 7, 2011, at 122-125). Defendant must show a reasonable likelihood that a challenge to the constitutionality of the child molestation statute would have been successful in order to demonstrate prejudice. State v. Berryman, 178 Ariz. 617, 622, 875 P.2d 850, 855. 5 6 7 8 The Arizona Court of Appeals held that sexual interest is not an element of the crime of child molestation and that absence of sexual interest is an affirmative defense regarding motive. State v. Simpson, 217 Ariz. 326, ¶¶ 18-19, 173 P.3d 1027, 1030 (App. 2007). Defendant’s appellate attorney was aware of this opinion. (R.T. of Sept. 7, 2011, at 69-70.) 9 10 11 12 13 14 15 16 Arizona’s child molestation statute is not significantly different that [sic] the murder statutes approved in Patterson v. New York, 432 U.S. 197 (1997). Under Patterson, the Arizona child molestation statute does not violate the constitution of the United States. Defendant has failed to show a reasonable likelihood that either his trial or appellate attorney would have been successful in challenging the constitutionality of the child molestation of the State of Arizona and has failed to establish prejudice. (Doc. 1-13 at 5-6). 17 The superior court found May suffered no prejudice without deciding whether 18 May’s trial counsel performed deficiently. “It is past question that the rule set forth in 19 Strickland qualifies as clearly established Federal law, as determined by the Supreme 20 Court of the United States.” 21 omitted). “That the Strickland test of necessity requires a case-by-case examination of 22 the evidence . . . obviates neither the clarity of the rule nor the extent to which the rule 23 must be seen as ‘established’ by [the Supreme] Court.” 24 quotation marks omitted). Williams, 529 U.S. at 391 (internal quotation marks Id. (citation and internal 25 The superior court’s reasons for finding no prejudice to May are not just erroneous 26 but also unreasonable. First, the court noted that May’s expert did not opine on whether a 27 constitutional challenge would have been successful. But that is a question of law for a 28 judge regardless of expert testimony, which is inadmissible in evidence. It is simply not - 27 - 1 relevant whether May’s expert testified about this. To the extent this led the superior 2 court to find no prejudice, that conclusion was unreasonable. 3 Second, the superior court noted that the state court of appeals in Simpson held 4 sexual intent is not an element of child molestation in Arizona and the absence of sexual 5 interest is an affirmative defense. But Simpson was not decided until after May’s trial. It 6 held only that the child molestation law places the burden on the defendant to disprove 7 sexual interest, not that it is constitutional to do so. The Simpson case has no bearing on 8 whether May’s trial counsel was ineffective for failing to challenge the law’s burden- 9 shifting scheme on constitutional grounds. 10 Third, the superior court said the Arizona statute “is not significantly different 11 than” the statute in Patterson so there was no prejudice from not challenging it. But that 12 is both incorrect and unreasonable. While missing a traditional element of murder, the 13 statute in Patterson required the government to prove beyond a reasonable doubt 14 something the state could make a stand-alone crime: intentional killing. Patterson, 432 15 U.S. at 209. The Patterson Court yielded two holdings: that that burden-shifting scheme 16 did not deprive the defendant of due process, id. at 205-06, and more broadly, that within 17 “constitutional limits,” prosecutors need not “disprove beyond a reasonable doubt every 18 fact constituting any and all affirmative defenses related to the culpability of an accused,” 19 id. at 210. But just as the Constitution does not require prosecutors to disprove every 20 affirmative defense, Patterson is equally clear that the Constitution does not free 21 prosecutors from ever having to prove anything labeled as an affirmative defense. 22 One struggles to reconstruct the omitted reasoning behind the bare assertion that 23 the statute in Patterson and the one at issue here are “not significantly different.” The 24 likeliest candidate is that they share a common form: each omits one element traditionally 25 part of the relevant offense and relabels it an affirmative defense a defendant must prove. 26 These similarities of form do exist. But it is both incorrect and unreasonable to ignore 27 substance altogether. Patterson itself said that while the state need not disprove every 28 affirmative defense, “there are obviously constitutional limits beyond which the States - 28 - 1 may not go in this regard.” 432 U.S. at 210. To conclude that a statutory scheme 2 relabeling anything as an affirmative defense is constitutional per se does violence to that 3 holding. 4 The precise constitutional question here is whether Arizona may burden a 5 defendant with disproving an essential aspect of the wrongfulness of child molestation. 6 The statute does that by criminalizing wide swaths of conduct with no element of the 7 crime to differentiate between culpable, innocent, and constitutionally protected conduct. 8 By prohibiting “touching, fondling or manipulating” of a child’s private areas, Arizona’s 9 child molestation law criminalizes sexual fondling of children, sitting a child down in a 10 chair, diapering and bathing an infant, medical treatment, and religious circumcision 11 alike. See Ariz. Rev. Stat. § 13-1410(A) (2009). While sexual fondling is criminally 12 culpable behavior, the rest of the enumerated conduct is either innocent or even 13 constitutionally protected. A law broadly criminalizing everyday innocent behavior that 14 uses an affirmative defense as the marker for the only subset that is wrongful goes 15 beyond Patterson’s holding and reasoning. Including constitutionally protected behavior 16 within that broad prohibition goes farther yet. 17 In sum, the superior court summarily and “unreasonably extend[ed]” Patterson’s 18 holding “to a new context where it should not apply.” See Williams, 529 U.S. at 407. 19 This is also an objectively unreasonable application of Strickland. 20 2. It Is Likely May Would Have Obtained a Different Outcome 21 The superior court’s application of Strickland was unreasonable for another 22 reason: the conclusion that May suffered no prejudice is refuted on this record. The 23 Strickland measure for prejudice is a “reasonable probability” of a different outcome but 24 for the default. Strickland, 466 U.S. at 694. “A reasonable probability is a probability 25 sufficient to undermine confidence in the outcome.” Id. 26 The R&R concludes that even if relieved of the burden of proving himself 27 innocent, May still would have been convicted unanimously given the volume of 28 evidence against him. (Doc. 35 at 56-57.) That is a remarkable conclusion in light of the - 29 - 1 actual history of this trial. None of the state courts so found. This Court rejects that 2 conclusion. 3 As it was, the jury was deadlocked after two full days of deliberation. On January 4 12, the jury submitted a note to the judge stating: “We are a hung jury because the not 5 guilty side doesn’t believe there is enough evidence and the guilty side believes there is.” 6 (Doc. 22-2 at 71.) The judge called the jury back and gave a supplemental instruction on 7 how they might restructure their discussion. (Doc. 22-5 at 179.) Later, a second note 8 from the jury indicated continuing deadlock and sought clarification of the “reasonable 9 doubt” standard, stating that some jurors believed there was reasonable doubt on the 10 evidence presented while others did not. (Doc. 22-2 at 72.) The trial judge declared a 11 mistrial and discharged the jury but shortly thereafter allowed them to resume when they 12 asked to do so. (Doc. 35 at 21-22.) Only after a weekend recess and an additional full 13 day of deliberation did the jury finally reach a verdict: conviction on five counts and 14 acquittal on two counts. (Doc. 22-5 at 182, 188.) 15 Had the trial judge instructed the jury that the state must prove sexual intent 16 beyond a reasonable doubt, it is reasonably probable that May would not have been 17 convicted. There is certainly “a probability sufficient to undermine confidence in the 18 outcome.” See Strickland, 466 U.S. at 694. Given how close it was under the prejudicial 19 instruction actually given and the two deadlocks on reasonable doubt, the Strickland test 20 for prejudice is readily shown here. In particular, there is a reasonable probability the 21 jury would have remained deadlocked, even if only a single juror harbored reasonable 22 doubt. See Buck v. Davis, — U.S. —, 137 S. Ct. 759, 776 (2017) (formulating district 23 court’s prejudice inquiry as whether habeas petitioner had demonstrated a reasonable 24 probability that in sentencing phase, “at least one juror would have harbored a reasonable 25 doubt” as to defendant’s future dangerousness); Cone v. Bell, 556 U.S. 449, 452 (2009) 26 (remanding petitioner’s habeas claim for district court to determine whether there was a 27 reasonable probability withheld Brady evidence “would have altered at least one juror’s 28 assessment of the appropriate penalty for [petitioner’s] crimes”); Wiggins v. Smith, 539 - 30 - 1 U.S. 510, 537 (2003) (finding that, where jury did not hear mitigating evidence before 2 sentencing defendant to death, “there is a reasonable probability that at least one juror 3 would have struck a different balance” had mitigating evidence been presented). 4 The State argues the jury still would have convicted May because they found he 5 touched the victims “intentionally or knowingly.” The State contends such findings can 6 only be explained as the jury inferring sexual intent beyond a reasonable doubt. (Doc. 22 7 at 189-90.) This is a bold contention. It means that intentional and knowing necessarily 8 subsumes sexual intent, which then can never be disproven. Any instruction on sexual 9 intent becomes a redundancy and might as well be omitted. It is enough to reject this that 10 it is in defiance of the statute as written. 11 In any event, intentional and knowing is not a substitute for sexual intent. One can 12 touch a child intentionally or knowingly without also having a sexual intent. Caregivers 13 diapering children do this all the time, as do all other benign actors within the literal 14 sweep of the stated elements of the Arizona crime. Even if such a connection were 15 inferable, no reviewing court may ordain that the jury did draw that inference. To do so 16 would violate May’s constitutional rights both to proof beyond a reasonable doubt and to 17 jury trial. 18 Moreover, finding prejudice is not limited to predicting what a specific judge or 19 jury would have done. The entire course of proceedings must be considered to determine 20 whether a different result was reasonably likely but for counsel’s missteps. See Roe v. 21 Flores-Ortega, 528 U.S. 470, 484 (2000) (holding that a defendant makes out a claim of 22 ineffectiveness when deficient performance “deprives a defendant of an appeal that he 23 otherwise would have taken”); Burdge v. Belleque, 290 F. App’x 73, 79 (9th Cir. 2008) 24 (attorney’s failure to preserve key issue for appeal sufficed for showing of prejudice 25 under Strickland); Gov’t of Virgin Islands v. Vanterpool, 767 F.3d 157, 168 (3d Cir. 26 2014) (holding that trial counsel’s “failure to preserve a viable First Amendment 27 challenge” to predicate statute constituted prejudice under Strickland); French v. Warden, 28 Wilcox State Prison, 790 F.3d 1259, 1269 (11th Cir. 2015), cert. denied, 136 S. Ct. 815 - 31 - 1 (2016) (reviewing prejudice based on “whether [the defendant] had a reasonable 2 likelihood of securing a new trial if the attorney had properly preserved” the relevant 3 issue for subsequent review); Davis v. Sec’y for Dep’t of Corr., 341 F.3d 1310, 1315 4 (11th Cir. 2003) (“[T]he prejudice showing required by Strickland is not always fastened 5 to the forum in which counsel performs deficiently: even when it is trial counsel who 6 represents a client ineffectively in the trial court, the relevant focus in assessing prejudice 7 may be the client’s appeal.”). It is a question of law, not of psychology, how an appeal 8 should and would have turned out if preserved and taken. 9 There is a reasonable probability that May would have obtained a different 10 outcome had the constitutional challenge to Arizona’s child molestation law been 11 preserved. Certainly there is “a probability sufficient to undermine confidence in the 12 outcome.” 13 Strickland’s prejudice inquiry. 14 B. Deficient Performance To conclude otherwise is an objectively unreasonable application of 15 For an ineffectiveness claim under Strickland, May must also show that his 16 attorney’s performance was deficient. The state courts did not address this, finding 17 instead that May suffered no prejudice either way. 18 deficiency of performance de novo. See Rompilla v. Beard, 545 U.S. 374, 390 (2005) 19 (reviewing de novo element of petitioner’s Strickland claim not reached by state courts). This Court therefore reviews 20 Under Strickland, an attorney’s performance is deficient if it “fell below an 21 objective standard of reasonableness.” Strickland, 466 U.S. at 688. The Supreme Court 22 has declined to articulate more specific guidelines, stating, “The proper measure of 23 attorney performance remains simply reasonableness under prevailing professional 24 norms.” Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 688). A habeas court 25 must make “every effort . . . to eliminate the distorting effects of hindsight . . . and to 26 evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 27 689. The defendant must “overcome the strong presumption that counsel’s performance 28 was within the wide range of reasonable professional assistance and might be considered - 32 - 1 sound trial strategy.” Carrera v. Ayers, 670 F.3d 938, 943 (9th Cir. 2011) (internal 2 quotation marks omitted). But that presumption is based on the need to choose among 3 alternative and sometimes incompatible trial strategies—or at least not to forfeit one’s 4 credibility before the jury with weak strategies that detract from stronger ones. 5 At the hearing on his state post-conviction relief petition in 2011, May called as an 6 expert Michael Piccarreta, a seasoned criminal defense attorney with extensive 7 professional credentials, including previous expert testimony on ineffective assistance of 8 counsel. (Doc. 23-9 at 137-38.) Piccarreta testified that the National Legal Aid and 9 Defenders Association considers it standard criminal defense practice to “review [the 10 statute charged] for constitutional issues.” (Doc. 23-9 at 143.) He said the burden- 11 shifting scheme of Arizona’s child molestation law “jumps out at you that it’s a problem” 12 and that a standard course of action would have been to file a motion to dismiss the 13 charges so that, at the very least, “you have preserved the issue for higher courts.” (Doc. 14 23-9 at 145.) Piccarreta said that “particularly with the circumstances of this case, that 15 failure to raise the constitutionality of the statute and the switching the burden was 16 ineffective assistance of counsel.” (Doc. 23-9 at 123-25.) On cross-examination, when 17 asked whether attorneys who failed to raise constitutional challenges in other child 18 molestation cases were ineffective, Piccarreta stated that in his opinion 19 20 21 if you have a case like this where there’s lack of motivation is an issue [sic], then it should be raised. It’s not a mountain of work to file a motion to dismiss. The judge rules on it, you win, mazeltov [sic]. You lose, you’ve preserved it . . . for future courts. 22 23 (Doc. 23-9 at 169.) This Court understands Piccarretta’s opinion to be that it was 24 ineffective for May’s trial lawyer to fail to raise and preserve the federal constitutional 25 challenge at all. One way to do that would have been to file a motion to dismiss. 26 Another would have been to object on constitutional grounds to the jury instruction. It is 27 not necessary to have done it one way or the other as long as it was done. 28 This Court fully agrees with Piccarretta’s opinion based also on the Court’s own - 33 - 1 knowledge and experience. The Court also concludes Thompson performed deficiently 2 even without relying on expert testimony. It should have been obvious that the burden- 3 shifting scheme presented a serious constitutional question that could have been 4 dispositive for May. 5 constitutionality of Arizona’s 1997 statutory amendment. Even if there had been a case 6 on point, the constitutional question was a matter of federal law amenable to vindication 7 in later federal court review. Thompson performed deficiently by failing to recognize 8 and act on this. See Hinton v. Alabama, — U.S. —, 134 S. Ct. 1081, 1089 (2014) (“An 9 attorney’s ignorance of a point of law that is fundamental to his case combined with his 10 failure to perform basic research on that point is a quintessential example of unreasonable 11 performance under Strickland.”). Minimal competence required preserving the obvious 12 federal issue. See Vanterpool, 767 F.3d at 834 (remanding on performance prong of 13 Strickland where counsel’s failure to raise constitutional challenge raised factual question 14 of whether it was “attributable to an ignorance of the law”). At the time, there was no appellate case assessing the 15 Moreover, in May’s post-conviction proceedings, Thompson admitted to 16 recognizing the unusual makeup of the law despite framing the problem solely as one of 17 interpreting the state statute. (Doc. 23-9 at 40.) Though the trial judge invited briefing 18 on the burden of proof jury instructions, Thompson filed nothing. (Id. at 66.) 19 “When counsel focuses on some issues to the exclusion of others, there is a strong 20 presumption that he did so for tactical reasons rather than through sheer neglect.” 21 Yarborough v. Gentry, 540 U.S. 1, 8 (2003). That usual presumption, however, cannot 22 stand on this record. 23 constitutionality of the burden-shifting scheme, Thompson had no explanation. He did 24 not articulate any reason, strategic or otherwise, for having foregone a constitutional 25 challenge. It is clear beyond question that there was no strategic or other benefit to May 26 in not preserving the constitutional challenge. It would have cost no material time or 27 resources and could not have undercut any other strategy or course of action. There is no 28 reason, tactical or other, for failing to preserve the federal constitutional claim. When questioned about why he did not challenge the - 34 - 1 Piccarreta’s opinion reflected as much. But the undersigned need only rely on 30 years at 2 the trial and appellate bars, occasional expert testimony on standard of care for trial and 3 appellate lawyers, and thirteen years as a judge of this Court presiding over more than 4 3,000 criminal cases. It is plain that May’s trial counsel fell well below an objective 5 standard of reasonableness under prevailing professional norms. 6 performance was constitutionally deficient. The performance and prejudice prongs of 7 Strickland have both been met, and any contrary conclusion would be unreasonable. The 8 ineffective assistance establishes cause and prejudice for May’s default on his 9 constitutional challenge. 10 IV. Trial counsel’s Constitutional Challenge 11 Having established cause and prejudice, May can present here his constitutional 12 challenge to Arizona’s child molestation statute and to the jury instruction given pursuant 13 to it. 14 If the state court had decided the constitutional question on the merits, this Court 15 would be limited to assessing whether the state court’s decision “was contrary to, or 16 involved an unreasonable application of” clearly established federal law. 28 U.S.C. 17 § 2254(d). The superior court on post-conviction review took a one-sentence peek at the 18 merits through the lens of finding no prejudice from defaulting on the constitutional 19 challenge. 20 constitutionality. But even if the superior court’s findings were to count as a ruling on 21 the constitutional merits, this Court has already concluded in Section III(A)(1) above that 22 applying Patterson to uphold the Arizona law would have been an unreasonable 23 application of Patterson. Technically, that was a finding on likely prejudice, not a finding of 24 More likely, this Court is charged with de novo review because the state court’s 25 assessment of the constitutional question was not on the merits. The superior court 26 specifically declined to review the merits of May’s constitutional claim since he had 27 defaulted on it by failing to raise it at trial. (Doc. 1-11 at 3.) The court of appeals did the 28 same. (Doc. 1-17 at 6.) The state courts did not “decide[] the petitioner’s right to post - 35 - 1 conviction relief on the basis of the substance of the constitutional claim advanced,” but 2 rather “den[ied] the claim on the basis of a procedural or other rule precluding state court 3 review of the merits.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). Since no 4 state court addressed the merits, this Court must decide the constitutional question de 5 novo. See Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005). 6 Whether under de novo review or deferential review, the burden-shifting scheme 7 of sections 13-1410 and 13-1407(E) of the Arizona Revised Statutes as applied in this 8 case violates the Constitution’s guarantee of due process of law—specifically, May’s 9 right to be convicted of a crime only if the state proves each element beyond a reasonable 10 11 doubt and to have the jury so instructed. See Section II, supra. V. Harmless Error 12 “[Habeas] relief is proper only if the federal court has ‘grave doubt whether a trial 13 error of federal law had substantial and injurious effect or influence in determining the 14 jury’s verdict.’” Davis v. Ayala, — U.S. —, 135 S. Ct. 2187, 2197-98 (2015) (quoting 15 O’Neal v. McAninch, 513 U.S. 432, 436 (1995)) (internal quotation marks omitted). The 16 likelihood of a different outcome has been discussed thoroughly above. See § III(A)(2), 17 supra. It is reasonably probable that the jury instruction as given had “substantial and 18 injurious effect or influence” over May’s verdict. There is a significant likelihood May 19 would not have been convicted had constitutional instructions been given. 20 21 22 23 24 25 It violated May’s right to due process of law to be assigned the burden of proving his own lack of sexual intent. IT IS THEREFORE ORDERED that the Report and Recommendation (Doc. 35) is ADOPTED IN PART and REJECTED IN PART as provided in this order. IT IS FURTHER ORDERED that petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is GRANTED. 26 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment in favor 27 of Petitioner Stephen Edward May against Respondent Charles L. Ryan that Respondent 28 release Petitioner from custody forthwith. - 36 - 1 IT IS FURTHER ORDERED that Respondent Attorney General Thomas Horne 2 and successors of office, who do not have custody of Petitioner, are DISMISSED as 3 improper parties respondent in a federal habeas corpus proceeding. 4 The Clerk shall terminate this case. 5 Dated: March 28, 2017. 6 7 8 Neil V. Wake Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 37 -

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