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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Stephen Edward May,
Petitioner,

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v.

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Charles L. Ryan, et al.,

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Respondents.

No. CV-14-00409-PHX-NVW
ORDER

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TABLE OF CONTENTS

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

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

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

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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

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A.

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

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B.

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

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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

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C.

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

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

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A.

Prejudice ........................................................................................................... 25

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The State Courts Unreasonably Applied Federal Law .................................. 26

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2.

It Is Likely May Would Have Obtained a Different Outcome ...................... 29

B.

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

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

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

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INTRODUCTION

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Petitioner Stephen May was convicted under Arizona’s child molestation law,

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which does not require the state to prove the defendant acted with sexual intent. Rather,

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once the state proves the defendant knowingly touched the private parts of a child under

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the age of fifteen, to be acquitted the defendant must prove his lack of sexual intent by a

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preponderance of the evidence.

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jurisdictions in allocating the burden of proof this way. Arizona is the only jurisdiction

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ever to uphold the constitutionality of putting the burden of disproving sexual intent on

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the accused.

Arizona stands alone among all United States

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Pending before the Court is the Report and Recommendation (“R&R”) of

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Magistrate Judge Michelle H. Burns (Doc. 35) regarding May's Petition for Writ of

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Habeas Corpus filed pursuant to Title 28, United States Code, section 2254 (Doc. 1). The

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R&R recommends that the Petition be dismissed with prejudice. The Magistrate Judge

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advised the parties that they had fourteen days to file objections to the R&R. (Doc. 35 at

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118 (citing Rule 72(b), Federal Rules of Civil Procedure; Rule 8(b), Rules Governing

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Section 2254 Proceedings).) May filed objections on October 20, 2015. (Doc. 38.)

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Defendants Charles Ryan and Thomas Horne (“the State”) filed a response on November

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23, 2015. (Doc. 45.) May filed a reply on December 22, 2015. (Doc. 48.)

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The parties also submitted supplemental briefing on two cases decided since then.

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On June 29, 2016, May submitted a supplemental brief in light of the United States

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Supreme Court’s decision in Dietz v. Bouldin, — U.S. —, 136 S. Ct. 1885 (2016). (Doc.

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54.) The State responded. (Doc. 55.) May then submitted supplemental briefing on the

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Arizona Supreme Court’s decision in State v. Holle, 240 Ariz. 300, 379 P.3d 197 (2016),

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on October 21, 2016. (Doc. 59.) A response and a reply were filed. (Docs. 60, 63.)

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The Court has considered all the briefing and reviewed the R&R de novo. See

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Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo

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determination of those portions of the Report and Recommendation to which specific

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objections are made). May raised numerous claims in his petition, and for the most part

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the Court agrees with the Magistrate Judge's determinations, accepts the recommended

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decision within the meaning of Rule 72(b), and overrules May's objections. See 28

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U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate judge”). May also

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raised concern that the R&R appeared to copy large volumes of text “virtually verbatim”

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from the State’s briefing, including several background facts that were incorrect. (Doc.

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38 at 13.) While this is concerning, none of the affected portions, including factual

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errors, make a material difference.

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This Court does reject the R&R’s conclusions as to two of May’s claims and its

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ultimate recommendation to dismiss his petition with prejudice. The R&R did not

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entertain May’s claim that the burden-shifting statute and jury instructions are

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unconstitutional. The reason given is that May did not raise the claim at trial and did not

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show cause and prejudice for defaulting. But May has in fact shown cause and prejudice

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for the default based on ineffective assistance of his trial counsel.

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The state courts on collateral review also disavowed making any ruling on the

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merits of May’s constitutional claim. Because no state court adjudicated the merits of

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May’s constitutional claim, the question must be considered de novo here. But even if

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measured under the deferential standard of 28 U.S.C. § 2254(d)(1), an adjudication

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against May would be contrary to, or involve an unreasonable application of, clearly

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established Federal law, as decided by the Supreme Court of the United States.

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The State deprived May of his constitutional right to due process of law and proof

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of guilt beyond a reasonable doubt. By crafting its child molestation law as it did,

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Arizona spared itself from proving sexual intent and instead burdened May with

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disproving it. Absent sexual intent, however, all the conduct within the sweep of the

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statute is benign, and much of it is constitutionally protected. Nothing in the revised

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elements of the crime distinguishes wrongful from benign from constitutionally protected

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conduct. One must look to the defendant’s burden of proof to see what this statute is

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really about, which is the same thing it has always been about: the defendant’s sexual

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intent. This shifting to the accused of the burden of disproving everything wrongful (here

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the only thing wrongful) about the prohibited conduct cannot stand unless there are no

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constitutional boundaries on a state’s ability to define elements, transubstantiate denials

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into affirmative defenses, and be master of all burdens of proof. The State argues

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precisely that in defense of May’s conviction, that element-defining and burden-shifting

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are no longer part of justiciable constitutional law. But there are boundaries, some well-

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settled boundaries, and this statute crosses them at a brisk sprint.

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BACKGROUND AND PROCEDURAL HISTORY

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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.

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On January 16, 2007, Stephen May was convicted in Arizona superior court on

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five counts of child molestation under sections 13-1410(A) and 13-1407(E) of the

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Arizona Revised Statutes. He was also acquitted on two counts. Section 13-1410

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criminalizes “molestation of a child,” which consists of “intentionally or knowingly

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engaging in or causing a person to engage in sexual contact, except sexual contact with

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the female breast, with a child who is under fifteen years of age.” Ariz. Rev. Stat. § 13-

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1410(A) (2009). “Sexual contact” is defined as “any direct or indirect touching, fondling

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or manipulating of any part of the genitals, anus or female breast by any part of the body

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or by any object or causing a person to engage in such contact.” Ariz. Rev. Stat. § 13-

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1401(3) (2015). The prohibition does not require that the intentional touching have a

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sexual intent, though section 13-1407(E) provides that as an “affirmative” defense, a

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defendant may assert “that the defendant was not motivated by a sexual interest.” Ariz.

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Rev. Stat. § 13-1407(E) (2008). Arizona law also places the burden on the defendant to

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prove the affirmative defense—that is, to disprove that he had a sexual intent—by a

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preponderance of the evidence. Ariz. Rev. Stat. § 13-205(A) (2006).

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May, a former school teacher and swim instructor, lived in a Mesa, Arizona

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apartment complex where he often taught children how to swim and played with them at

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the community pool. The charges against him arose from accounts by four children who

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said he touched them inappropriately. May’s trial attorney, Joel Thompson, made no

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motion to dismiss the charges before trial. He did request a jury instruction that as a

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matter of statutory construction under section 13-1410(A) the state bears the burden of

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proving beyond a reasonable doubt that May touched the children with sexual intent.

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Thompson did not assert that the law would be unconstitutional if it placed the burden of

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disproving that on May. The State argued that because sexual intent is not a stated

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element under section 13-1410(A), the defendant has the burden of proving his own lack

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of sexual intent by a preponderance of the evidence. Accepting the State’s position, the

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trial judge instructed the jury that the State must prove beyond a reasonable doubt only

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the described touching and the victim’s age but that they must acquit if May proved by a

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preponderance of the evidence that the touching was not motivated by sexual interest.

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After several days of trial, the jury deliberated for two days but could not reach a

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verdict. (Doc. 35 at 21-22.) They gave the judge several notes indicating they were

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deadlocked, and the judge accordingly declared a mistrial and dismissed them. But just

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minutes after the proceedings were adjourned, the bailiff delivered a note stating that the

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jurors, who were still in the jury room gathering their things, wished to resume

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deliberations. (Doc. 35 at 22.) Neither side objected, and the jury reconvened. After

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nearly a full day of additional deliberation, the jury convicted May on five counts and

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acquitted him on two. (Doc. 35 at 23.) (An eighth count was previously severed and

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eventually dismissed.) May’s attorney moved for new trial, arguing that the final jury

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instructions misstated Arizona law by requiring May to prove a lack of sexual intent.

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(Doc. 35 at 23.) Once again, Thompson did not assert the law or the jury instructions

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were unconstitutional. The judge denied the motion and later sentenced May to 75 years

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in prison, 15 years for each count. (Doc. 35 at 24.)

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After an unsuccessful direct appeal, May sought post-conviction relief in Arizona

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superior court. This collateral review proceeding was his first chance under Arizona

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procedure to raise a claim of ineffective assistance of counsel. See State v. Spreitz, 202

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Ariz. 1, 3, 39 P.3d 525, 527 (2002) (holding that ineffective assistance of counsel may

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not be presented until post-conviction review). May argued that Thompson provided

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ineffective assistance at trial by not challenging the constitutionality of placing the

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burden on him to disprove sexual intent. The superior court denied relief because of

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procedural default without deciding the merits of the constitutional claim (Docs. 1-11; 1-

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13), and the state appellate court affirmed on the decision below (Doc. 1-17). The

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Arizona Supreme Court summarily denied review. (Doc. 1-20.)

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LEGAL STANDARDS ON FEDERAL HABEAS REVIEW

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A federal habeas court cannot review a state court’s denial of relief based on

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adequate and independent state law grounds. Coleman v. Thompson, 501 U.S. 722, 731-

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32 (1991). Thus, a defendant defaults on any claim not presented to state courts in

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accordance with the state’s procedural rules, generally barring federal habeas review. Id.

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at 731-32. Exceptions apply where the defendant shows cause and prejudice for the

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default or a miscarriage of justice would result from upholding the default. See Schlup v.

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Delo, 513 U.S. 298, 314-15 (1995). One way a petitioner can establish cause is by

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showing the default resulted from ineffective assistance of counsel. Murray v. Carrier,

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477 U.S. 478, 488 (1986).

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May did not challenge the constitutionality of Arizona’s child molestation statute

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at trial, raising it for the first time in collateral proceedings. Since Arizona law required

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him to raise it at trial, May cannot raise the claim here absent a showing of cause and

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prejudice for his default.1 See Ariz. R. Crim. P. 32.2(a)(3) (precluding post-conviction

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review of any claim that could have been raised at trial or on direct appeal). However,

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May contends his trial attorney was ineffective in not challenging the constitutionality of

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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.
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Arizona’s child molestation law.2

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Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), federal

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habeas will not lie on claims decided on the merits by a state court unless the state court

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decision was “contrary to, or involved an unreasonable application of, clearly established

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Federal law, as determined by the Supreme Court of the United States” or was “based on

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an unreasonable determination of the facts in light of the evidence presented in the State

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court proceeding.” 28 U.S.C. § 2254(d). A state court unreasonably applies federal law

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by “unreasonably extend[ing] a legal principle from [Supreme Court] precedent to a new

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context where it should not apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). The

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legal principles applied “must be found in the holdings, as opposed to the dicta, of [the

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Supreme] Court’s decisions.” Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002)

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(citation and internal quotation marks omitted). To meet this standard an application of

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federal law cannot be merely erroneous; it “must have been objectively unreasonable.”

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Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks omitted).

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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).

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This Court must therefore assess at the threshold whether the Arizona state courts

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committed either of the errors enumerated in section 2254 in rejecting May’s contention

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of ineffectiveness of counsel to excuse his procedural default on his constitutional claim.

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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.
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Ineffective assistance of counsel is measured by the two-prong test in Strickland v.

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Washington, 466 U.S. 668, 687 (1984). Counsel must have performed deficiently, and

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this performance must have prejudiced the defendant. Id.

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ANALYSIS

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I.

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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.

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Rev. Stat. of Ariz. (Penal Code) § 282 (1913).3 That law had dropped out of the code by

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1928, and not until 1965 did the state legislature pass a new law prohibiting sexual

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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”).
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conduct with children in particular.4 That year the legislature enacted section 13-653 of

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the Arizona Revised Statutes, providing:

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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 . . . .

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1965 Ariz. Sess. Laws, ch. 20, § 3. (The statute was renumbered to section 13-1410 in

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1977. See 1977 Ariz. Sess. Laws, ch. 142, § 66.) While this prohibition did not

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expressly recite a sexual intent requirement, the Arizona Supreme Court took it to be

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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
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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.
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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.

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State v. Berry, 101 Ariz. 310, 313, 419 P.2d 337, 340 (1966) (citation omitted). This

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remained the law for several decades.

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Over the next twenty years, the legislature tweaked section 13-1410 in various

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ways, but “[Arizona] courts continued to treat sexual interest as an ‘essential element’ of

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the offense.” State v. Holle (Holle I), 238 Ariz. 218, 223-24, 358 P.3d 639, 644-45 (Ariz.

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Ct. App. 2015), vacated by State v. Holle (Holle II), 240 Ariz. 300, 379 P.3d 197 (2016).

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See, e.g., State v. Brooks, 120 Ariz. 458, 460, 586 P.2d 1270, 1272 (1978); State v.

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Madsen, 137 Ariz. 16, 18, 667 P.2d 1342, 1344 (Ariz. Ct. App. 1983); State v. Anderson,

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128 Ariz. 91, 92, 623 P.2d 1247, 1248 (Ariz. Ct. App. 1980). In 1983, the legislature

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enacted section 13-1407(E) of the Arizona Revised Statutes, making lack of sexual

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interest an affirmative defense to child molestation. See 1983 Ariz. Sess. Laws, ch. 202 §

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10. But at that time, Arizona law on proving affirmative defenses generally was that

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upon the defendant raising an affirmative defense, the burden shifted to the state to refute

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it beyond a reasonable doubt. See, e.g., State v. Duarte, 165 Ariz. 230, 231, 798 P.2d

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368, 369 (1990) (“[O]nce evidence of self-defense is presented, the burden is on the state

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to prove beyond a reasonable doubt that the conduct was unjustified.”). Thus in practice,

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prosecutors had to prove sexual intent beyond a reasonable doubt. See Holle I, 238 Ariz.

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at 224, 358 P.3d at 645 (collecting authorities and noting, “For practical purposes . . . the

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enactment of § 13-407(E) did not significantly change the way courts treated sexual

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interest.”).

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Not until 1993 did the legislature amend sections 13-1410 and 13-1407(E) to their

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current forms. See Holle I, 238 Ariz. at 225, 358 P.3d at 646. Before then, the text of

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section 13-1410 began with the words “[a] person who knowingly molests a child . . .”

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before reciting the precise actions that were prohibited. See 1965 Ariz. Sess. Laws, ch.

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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.

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1993 Ariz. Sess. Laws, ch. 255 § 29. The Arizona court of appeals held that the new

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language, which omitted the verb “molests,” eliminated sexual intent as an element of the

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crime. State v. Sanderson, 182 Ariz. 534, 542, 898 P.2d 483, 491 (Ariz. Ct. App. 1995).

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But the court of appeals upheld the statute on the understanding that it shifted only the

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burden of production to the defendant—not the burden of proof or persuasion. While it

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was the defendant’s burden to assert lack of sexual intent as an affirmative defense, the

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state then bore the burden of proving sexual intent beyond a reasonable doubt. See id.;

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Holle I, 238 Ariz. at 225, 358 P.3d at 646. Thus, even under the Sanderson court’s

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quibble on changing a verb (“molests”) to a noun (“molestation”), whether a fact was

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treated as an element or the absence thereof as an affirmative defense had no practical

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consequence. Either way the state had the burden of proof beyond a reasonable doubt.

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In 1997, the Arizona legislature intervened again, not by changing anything in the

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child molestation statute, but by changing the burden of proof for all affirmative defenses

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across the board. (Subsequent legislation excluded justification defenses, but that does

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not affect this case. See Holle I, 238 Ariz. at 226 n.7, 358 P.3d at 647 n.7; 2006 Ariz.

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Sess. Laws, ch. 199, § 1-2.) The new enactment of general application required that “a

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defendant shall prove any affirmative defense raised by a preponderance of the

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evidence . . . .” 1997 Ariz. Sess. Laws, ch. 136, § 4; Ariz. Rev. Stat. § 13-205(A) (2006).

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The 1997 amendments were the governing statutes when May stood trial in January 2007.

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(Doc. 22 at 163-64.)

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The Sanderson precedent was grounded on Arizona’s prior approach in which the

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State must disprove affirmative defenses. Not until several weeks after May’s conviction

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did an appellate court address child molestation in light of the 1997 legislation. The court

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of appeals held that sexual intent continued not to be an element of child molestation

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under Arizona law, but that section 13-205(A) now placed the burden on the defendant to

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prove by a preponderance of the evidence that he lacked sexual motivation. State v.

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Simpson, 217 Ariz. 326, 329, 173 P.3d 1027, 1030 (Ariz. Ct. App. 2007).

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In 2015, a different panel of the court of appeals disagreed with Simpson, holding

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that lack of sexual intent is not an “affirmative defense” to child molestation under state

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law but just a “defense.” Holle I, 238 Ariz. at 226, 358 P.3d at 647. See Ariz. Rev. Stat.

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§ 13-103 (2006). The Holle I court held that for this reason the state still must prove

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sexual intent beyond a reasonable doubt. Holle I, 238 Ariz. at 226, 358 P.3d at 647. But

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the Arizona Supreme Court vacated that ruling in 2016, holding that lack of sexual intent

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is in fact an affirmative defense, which a defendant must prove by a preponderance of the

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evidence. Holle II, 240 Ariz. at 305, 379 P.3d at 202.

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There is no indication the drafters of the 1997 amendment surveyed all affirmative

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defenses in Arizona law and reflected on the constitutionality of shifting the burden of

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proof on each one.

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formality of labeling something an affirmative defense, which did not matter before,

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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

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merits through the lens of finding no prejudice from defaulting on the constitutional

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challenge.

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constitutionality. But even if the superior court’s findings were to count as a ruling on

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the constitutional merits, this Court has already concluded in Section III(A)(1) above that

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applying Patterson to uphold the Arizona law would have been an unreasonable

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application of Patterson.

Technically, that was a finding on likely prejudice, not a finding of

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More likely, this Court is charged with de novo review because the state court’s

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assessment of the constitutional question was not on the merits. The superior court

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specifically declined to review the merits of May’s constitutional claim since he had

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defaulted on it by failing to raise it at trial. (Doc. 1-11 at 3.) The court of appeals did the

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same. (Doc. 1-17 at 6.) The state courts did not “decide[] the petitioner’s right to post

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conviction relief on the basis of the substance of the constitutional claim advanced,” but

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rather “den[ied] the claim on the basis of a procedural or other rule precluding state court

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review of the merits.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004). Since no

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state court addressed the merits, this Court must decide the constitutional question de

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novo. See Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005).

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Whether under de novo review or deferential review, the burden-shifting scheme

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of sections 13-1410 and 13-1407(E) of the Arizona Revised Statutes as applied in this

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case violates the Constitution’s guarantee of due process of law—specifically, May’s

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right to be convicted of a crime only if the state proves each element beyond a reasonable

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doubt and to have the jury so instructed. See Section II, supra.
V.

Harmless Error

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“[Habeas] relief is proper only if the federal court has ‘grave doubt whether a trial

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error of federal law had substantial and injurious effect or influence in determining the

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jury’s verdict.’” Davis v. Ayala, — U.S. —, 135 S. Ct. 2187, 2197-98 (2015) (quoting

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O’Neal v. McAninch, 513 U.S. 432, 436 (1995)) (internal quotation marks omitted). The

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likelihood of a different outcome has been discussed thoroughly above. See § III(A)(2),

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supra. It is reasonably probable that the jury instruction as given had “substantial and

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injurious effect or influence” over May’s verdict. There is a significant likelihood May

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would not have been convicted had constitutional instructions been given.

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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.

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IT IS FURTHER ORDERED that the Clerk of the Court enter judgment in favor

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of Petitioner Stephen Edward May against Respondent Charles L. Ryan that Respondent

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release Petitioner from custody forthwith.

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IT IS FURTHER ORDERED that Respondent Attorney General Thomas Horne

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and successors of office, who do not have custody of Petitioner, are DISMISSED as

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improper parties respondent in a federal habeas corpus proceeding.

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The Clerk shall terminate this case.

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Dated: March 28, 2017.

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Neil V. Wake
Senior United States District Judge

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