May v. Ryan
| Decision Date | 28 March 2017 |
| Docket Number | No. CV–14–00409–PHX–NVW,CV–14–00409–PHX–NVW |
| Citation | 245 F.Supp.3d 1145 |
| Parties | Stephen Edward MAY, Petitioner, v. Charles L. RYAN, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
Erica Tamar Dubno, Law Offices of Fahringer & Dubno, New York, NY, Michael D. Kimerer, Kimerer & Derrick PC, Phoenix, AZ, Robert James McWhirter, Law Offices of Robert J. McWhirter, Tempe, AZ, for Petitioner.
Robert Anthony Walsh, Office of the Attorney General Criminal Appeals Section, Phoenix, AZ, for Respondents.
TABLE OF CONTENTS
BACKGROUND AND PROCEDURAL HISTORY...1150
LEGAL STANDARDS ON FEDERAL HABEAS REVIEW...1152
Petitioner Stephen May was convicted under Arizona's child molestation law, which does not require the state to prove the defendant acted with sexual intent. Rather, once the state proves the defendant knowingly touched the private parts of a child under the age of fifteen, to be acquitted the defendant must prove his lack of sexual intent by a preponderance of the evidence. Arizona stands alone among all United States jurisdictions in allocating the burden of proof this way. Arizona is the only jurisdiction ever to uphold the constitutionality of putting the burden of disproving sexual intent on the accused.
Pending before the Court is the Report and Recommendation ("R&R") of Magistrate Judge Michelle H. Burns (Doc. 35) regarding May's Petition for Writ of Habeas Corpus filed pursuant to Title 28, United States Code, section 2254 (Doc. 1). The R&R recommends that the Petition be dismissed with prejudice. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R&R. (Doc. 35 at 118 (citing Rule 72(b), Federal Rules of Civil Procedure ; Rule 8(b), Rules Governing Section 2254 Proceedings).) May filed objections on October 20, 2015. (Doc. 38.) Defendants Charles Ryan and Thomas Horne ("the State") filed a response on November 23, 2015. (Doc. 45.) May filed a reply on December 22, 2015. (Doc. 48.)
The parties also submitted supplemental briefing on two cases decided since then. On June 29, 2016, May submitted a supplemental brief in light of the United States Supreme Court's decision in Dietz v. Bouldin , ––– U.S. ––––, 136 S.Ct. 1885, 195 L.Ed.2d 161 (2016). (Doc. 54.) The State responded. (Doc. 55.) May then submitted supplemental briefing on the Arizona Supreme Court's decision in State v. Holle , 240 Ariz. 300, 379 P.3d 197 (2016), on October 21, 2016. (Doc. 59.) A response and a reply were filed. (Docs. 60, 63.)
The Court has considered all the briefing and reviewed the R&R de novo. See Fed. R. Civ. P. 72(b) ; 28 U.S.C. § 636(b)(1) (). May raised numerous claims in his petition, and for the most part the Court agrees with the Magistrate Judge's determinations, accepts the recommended decision within the meaning of Rule 72(b), and overrules May's objections. See 28 U.S.C. § 636(b)(1) (). May also raised concern that the R&R appeared to copy large volumes of text "virtually verbatim" from the State's briefing, including several background facts that were incorrect. (Doc. 38 at 13.) While this is concerning, none of the affected portions, including factual errors, make a material difference.
This Court does reject the R&R's conclusions as to two of May's claims and its ultimate recommendation to dismiss his petition with prejudice. The R&R did not entertain May's claim that the burden-shifting statute and jury instructions are unconstitutional. The reason given is that May did not raise the claim at trial and did not show cause and prejudice for defaulting. But May has in fact shown cause and prejudice for the default based on ineffective assistance of his trial counsel.
The state courts on collateral review also disavowed making any ruling on the merits of May's constitutional claim. Because no state court adjudicated the merits of May's constitutional claim, the question must be considered de novo here. But even if measured under the deferential standard of 28 U.S.C. § 2254(d)(1), an adjudication against May would be contrary to, or involve an unreasonable application of, clearly established Federal law, as decided by the Supreme Court of the United States.
The State deprived May of his constitutional right to due process of law and proof of guilt beyond a reasonable doubt. By crafting its child molestation law as it did, Arizona spared itself from proving sexual intent and instead burdened May with disproving it. Absent sexual intent, however, all the conduct within the sweep of the statute is benign, and much of it is constitutionally protected. Nothing in the revised elements of the crime distinguishes wrongful from benign from constitutionally protected conduct. One must look to the defendant's burden of proof to see what this statute is really about, which is the same thing it has always been about: the defendant's sexual intent. This shifting to the accused of the burden of disproving everything wrongful (here the only thing wrongful) about the prohibited conduct cannot stand unless there are no constitutional boundaries on a state's ability to define elements, transubstantiate denials into affirmative defenses, and be master of all burdens of proof. The State argues precisely that in defense of May's conviction, that element-defining and burden-shifting are no longer part of justiciable constitutional law. But there are boundaries, some well-settled boundaries, and this statute crosses them at a brisk sprint.
The R&R recites the detailed history of this case. (Doc. 35 at 2–40.) To provide context for the discussion below, the following summary may be helpful.
On January 16, 2007, Stephen May was convicted in Arizona superior court on five counts of child molestation under sections 13–1410(A) and 13–1407(E) of the Arizona Revised Statutes. He was also acquitted on two counts. Section 13–1410 criminalizes "molestation of a child," which consists of "intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age." Ariz. Rev. Stat. § 13–1410(A) (2009). "Sexual contact" is defined as "any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact." Ariz. Rev. Stat. § 13–1401(3) (2015). The prohibition does not require that the intentional touching have a sexual intent, though section 13–1407(E) provides that as an "affirmative" defense, a defendant may assert "that the defendant was not motivated by a sexual interest." Ariz. Rev. Stat. § 13–1407(E) (2008). Arizona law also places the burden on the defendant to prove the affirmative defense—that is, to disprove that he had a sexual intent—by a preponderance of the evidence. Ariz. Rev. Stat. § 13–205(A) (2006).
May, a former school teacher and swim instructor, lived in a Mesa, Arizona apartment complex where he often taught children how to swim and played with them at the community pool. The charges against him arose from accounts by four children who said he touched them inappropriately. May's trial attorney, Joel Thompson, made no motion to dismiss the charges before trial. He did request a jury instruction that as a matter of statutory construction under section 13–1410(A) the state bears the burden of proving beyond a reasonable doubt that May touched the children with sexual intent. Thompson did not assert that the law would be unconstitutional if it placed the burden of disproving that on May. The State argued that because sexual intent is not a stated element under section 13–1410(A), the defendant has the burden of proving his own lack of sexual intent by a preponderance of the evidence. Accepting the State's position, the trial judge instructed the jury that the State must prove beyond a reasonable doubt only the described touching and the victim's age but that they must acquit if May proved by a preponderance of the evidence that the touching was not motivated by sexual interest.
After several days of trial, the jury deliberated for two days but could not reach a verdict. (Doc. 35 at 21–22.) They gave the judge several notes indicating they were deadlocked, and the judge accordingly declared a mistrial and dismissed them. But just minutes after the proceedings were adjourned, the bailiff delivered a note stating that the jurors, who were still in the jury room gathering their things, wished to resume deliberations. (Doc. 35 at 22.) Neither...
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