245 F.Supp.3d 1145 (D.Ariz. 2017), CV-14-00409-PHX-NVW, May v. Ryan

Docket Nº:CV-14-00409-PHX-NVW
Citation:245 F.Supp.3d 1145
Opinion Judge:Neil V. Wake, Senior United States District Judge.
Party Name:Stephen Edward May, Petitioner, v. Charles L. Ryan, et al., Respondents
Attorney:No. CV-14-00409-PHX-NVW For Stephen Edward May, Petitioner: Erica Tamar Dubno, LEAD ATTORNEY, Law Offices of Fahringer & Dubno, New York, NY; Michael D Kimerer, LEAD ATTORNEY, Kimerer & Derrick PC, Phoenix, AZ; Robert James McWhirter, LEAD ATTORNEY, Law Offices of Robert J McWhirter, Tempe, AZ. F...
Case Date:March 28, 2017
Court:United States District Courts, 9th Circuit, District of Arizona

Page 1145

245 F.Supp.3d 1145 (D.Ariz. 2017)

Stephen Edward May, Petitioner,


Charles L. Ryan, et al., Respondents

No. CV-14-00409-PHX-NVW

United States District Court, D. Arizona

March 28, 2017

May v. Ryan, (D. Ariz., Sept. 15, 2015)

For Stephen Edward May, Petitioner: Erica Tamar Dubno, LEAD ATTORNEY, Law Offices of Fahringer & Dubno, New York, NY; Michael D Kimerer, LEAD ATTORNEY, Kimerer & Derrick PC, Phoenix, AZ; Robert James McWhirter, LEAD ATTORNEY, Law Offices of Robert J McWhirter, Tempe, AZ.

For Charles L Ryan, Director, Arizona Department of Corrections, Thomas C Horne, named as: Tom Horne - Attorney General of the State of Arizona, Respondents: Robert Anthony Walsh, LEAD ATTORNEY, Office of the Attorney General, Criminal Appeals Section, Phoenix, AZ.



Neil V. Wake, Senior United States District Judge.


I. History of Arizona's Child Molestation Law
II. Arizona Deprived May of Due Process of Law and of the Right
to Be Found Guilty Only by Proof Beyond a Reasonable Doubt
A. Due Process Limits States in Placing Burdens of Proof on Defendants
B. The Arizona Law Fails Under the Typical Supreme Court Criteria for
Rejecting Unconstitutional Burden-Shifting
1. Sexual Intent Has Always Been Essential to the Crime of
Child Molestation
2. Arizona's " Definition of the Elements" without Any " Significance"
3. Arizona Repudiated Its Own History When It Shifted the Burden
of Disproving Sexual Intent to Defendants
C. Application of Due Process Analysis to the Arizona
Burden-Shifting Scheme
III. Cause and Prejudice: Ineffective Assistance of Counsel
A. Prejudice
1. The State Courts Unreasonably Applied Federal Law
2. It Is Likely May Would Have Obtained a Different Outcome
B. Deficient Performance
IV. Constitutional Challenge
V. Harmless Error
INTRODUCTION Petitioner Stephen May was convicted under Arizona's child molestation law, which does not require the state to prove the defendant acted with sexual intent. Rather, once the state proves the defendant knowingly touched the private parts of a child under the age of fifteen, to be acquitted the defendant must prove his lack of sexual intent by a preponderance of the evidence. Arizona stands alone among all United States jurisdictions in allocating the burden of proof this way. Arizona is the only jurisdiction ever to uphold the constitutionality of putting the burden of disproving sexual intent on the accused. Pending before the Court is the Report and Recommendation (" R& R" ) of Magistrate Judge Michelle H. Burns (Doc. 35) regarding May's Petition for Writ of Habeas Corpus filed pursuant to Title 28, United States Code, section 2254 (Doc. 1). The R& R recommends that the Petition be dismissed with prejudice. The Magistrate Judge advised the parties that they had fourteen days to file objections to the R& R. (Doc. 35 at 118 (citing Rule 72(b), Federal Rules of Civil Procedure; Rule 8(b), Rules Governing Section 2254 Proceedings).) May filed objections on October 20, 2015. (Doc. 38.) Defendants Charles Ryan and Thomas Horne (" the State" ) filed a response on November 23, 2015. (Doc. 45.) May filed a reply on December 22, 2015. (Doc. 48.) The parties also submitted supplemental briefing on two cases decided since then. On June 29, 2016, May submitted a supplemental brief in light of the United States Supreme Court's decision in Dietz v. Bouldin, __ U.S. __, 136 S.Ct. 1885, 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, 240 Ariz. 301, 379 P.3d 197 (2016), on October 21, 2016. (Doc. 59.) A response and a reply were filed. (Docs. 60, 63.) The Court has considered all the briefing and reviewed the R& R de novo. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1) (stating that the court must make a de novo determination of those portions of the Report and Recommendation to which specific objections are made). May raised numerous claims in his petition, and for the most part the Court agrees with the Magistrate Judge's determinations, accepts the recommended decision within the meaning of Rule 72(b), and overrules May's objections. See 28 U.S.C. § 636(b)(1) (stating that the district court " may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge" ). May also raised concern that the R& R appeared to copy large volumes of text " virtually verbatim" from the State's briefing, including several background facts that were incorrect. (Doc. 38 at 13.) While this is concerning, none of the affected portions, including factual errors, make a material difference. This Court does reject the R& R's conclusions as to two of May's claims and its ultimate recommendation to dismiss his petition with prejudice. The R& R did not entertain May's claim that the burden-shifting statute and jury instructions are unconstitutional. The reason given is that May did not raise the claim at trial and did not show cause and prejudice for defaulting. But May has in fact shown cause and prejudice for the default based on ineffective assistance of his trial counsel. The state courts on collateral review also disavowed making any ruling on the merits of May's constitutional claim. Because no state court adjudicated the merits of May's constitutional claim, the question must be considered de novo here. But even if measured under the deferential standard of 28 U.S.C. § 2254(d)(1), an adjudication against May would be contrary to, or involve an unreasonable application of, clearly established Federal law, as decided by the Supreme Court of the United States. The State deprived May of his constitutional right to due process of law and proof of guilt beyond a reasonable doubt. By crafting its child molestation law as it did, Arizona spared itself from proving sexual intent and instead burdened May with disproving it. Absent sexual intent, however, all the conduct within the sweep of the statute is benign, and much of it is constitutionally protected. Nothing in the revised elements of the crime distinguishes wrongful from benign from constitutionally protected conduct. One must look to the defendant's burden of proof to see what this statute is really about, which is the same thing it has always been about: the defendant's sexual intent. This shifting to the accused of the burden of disproving everything wrongful (here the only thing wrongful) about the prohibited conduct cannot stand unless there are no constitutional boundaries on a state's ability to define elements, transubstantiate denials into...

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