Bieganski v. Shinn
| Docket Number | CV-21-01684-PHX-DWL |
| Decision Date | 31 July 2023 |
| Parties | Bradley Bieganski, Petitioner, v. David Shinn, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
Dominic W. Lanza United States District Judge On September 30, 2021, Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) On November 14, 2022, Magistrate Judge Morrissey issued a report and recommendation (“R&R”) concluding that the petition should be denied and dismissed with prejudice. (Doc. 19.) Afterward, Petitioner filed objections to the R&R (Doc. 22), Respondents filed a response (Doc. 25) and Petitioner filed a reply (Doc. 30).
As explained below, Petitioner's objections largely lack merit. The only exception is that Petitioner should, contrary to the recommendation in the R&R, be granted a certificate of appealability (“COA”). Otherwise the Court agrees with the conclusions set forth in the R&R, including that Petitioner is not entitled to habeas relief.
From 2011 until his arrest in 2013, Petitioner operated a girls-only private Christian home-school called “Kingdom Flight” along with his wife and son. (Doc. 19 at 2.) The arrest occurred after three girls attending Kingdom Flight (A.G., Y.L., and J.C.) accused Petitioner of touching their genitals when they were between the ages of 6 and 9. (Id.) Most of the allegations arose from a Sunday morning bathing practice that Petitioner referred to as an “assembly line,” in which he would hurriedly bathe six to eight Kingdom Flight girls in pairs within 30 minutes before departing for a church service. (Id.) The alleged genital contact during that process involved Petitioner touching and manually washing the girls' vaginas with his bare hand. (Id.) Additionally, Y.L. accused Petitioner of touching her genitals on two other occasions: once when she was getting dressed after swimming and another time when she was in the Kingdom Flight girls' room. (Id.) Based on these allegations, Petitioner was charged in 2013 with various counts of child molestation in violation of Arizona law. (Id.)
In July 2016, Petitioner's first trial began. (Doc. 11-1 at 12.) Petitioner contends, and Respondents do not seem to dispute, that the prosecution “assumed the burden of establishing sexual interest” during the first trial. (Doc. 22 at 7.) The first trial “ended without verdicts because J.C. triggered a mistrial by testifying that [Petitioner] had not touched her vagina just once, as the indictment alleged, but rather three times between her sixth and ninth birthdays.” (Doc. 11-1 at 12-13.)
In September 2016, while the charges against Petitioner were still pending, the Arizona Supreme Court decided State v. Holle, 379 P.3d 197 (Ariz. 2016). The disputed issue in Holle was whether a lack of sexual motivation is an element of the crimes of sexual abuse and child molestation under Arizona law (as the defendant argued) or whether a lack of sexual motivation is an affirmative defense to those crimes (as the government argued). In a 3-2 decision, the Arizona Supreme Court ruled in the government's favor, holding that “lack of such motivation is an affirmative defense that a defendant must prove, and thus the state need not prove as an element of those crimes that a defendant's conduct was motivated by a sexual interest.” Id. at 198. The defendant in Holle also argued, in the alternative, that “shifting the burden to defendants by making the lack of such motivation an affirmative defense . . . violates due process,” but the court rejected that argument, too. Id. at 205-06.
In June 2017, Petitioner filed a motion to dismiss the charges against him, raising the same due process argument the Arizona Supreme Court had rejected in Holle. (Doc. 1-8.) The trial court denied the motion. (Doc. 1-9 [ ].)
In December 2017, Petitioner's retrial began. (Doc. 11 at 9.) Petitioner testified and sought to raise the affirmative defense of lack of sexual interest. (Doc. 19 at 2.) Specifically, Petitioner admitted that he had washed the girls' genitals with soap and his bare hand but denied that he had any sexual interest in doing so. (Id.) The trial court, in turn, instructed the jury that Petitioner had to prove lack of sexual interest by a preponderance of the evidence. (Id.) The jury ultimately convicted Petitioner of three counts of child molestation involving victims A.G. and J.C. but returned not-guilty verdicts for the charges involving Y.L. (Id.)
On January 23, 2018, sentencing took place. (Doc. 11 at 9.) Petitioner was sentenced to concurrent 17-year prison terms, followed by another 17-year term, for a total of 34 years. (Doc. 19 at 2-3.)
As Petitioner's case was unfolding, two additional developments (the potential significance of which is discussed in later portions of this order) occurred.
The first development occurred in March 2017, when another judge of this Court decided May v. Ryan, 245 F.Supp. 1145 (D. Ariz. 2017). May involved a petition for habeas corpus filed by an Arizona prisoner who had been convicted of child molestation in 2007 following a trial in which the jury was instructed that “the defendant has the burden of proving his own lack of sexual intent by a preponderance of the evidence.” Id. at 115051. Unlike here, the petitioner in May did not raise any constitutional challenges to this instruction at trial or during his direct appeal. Id. at 1151-52. Instead, the petitioner first argued in a petition for post-conviction relief (“PCR”) that his trial counsel had been ineffective by failing to raise a constitutional challenge. Id. “The superior court denied relief because of procedural default without deciding the merits of the constitutional claim and the state appellate court affirmed.” Id.
In May, the district court acknowledged that “[b]ecause May failed to preserve the constitutional question at trial, this Court can reach the merits only if there was cause and prejudice for his default.” Id. at 1156. However, the court did not begin its analysis by addressing those issues-instead, it explained that because the resolution of the resulting prejudice inquiries would “depend[] largely on the strength of the defaulted federal constitutional objection,” “[i]t therefore makes sense to discuss the law's constitutionality at the outset.” Id. at 1156-57. Turning to the merits of the constitutional claim, the district court provided an exhaustive analysis before concluding that “the burden-shifting scheme of Arizona's child molestation law violates the Fourteenth Amendment's guarantees of due process and of proof of guilt beyond a reasonable doubt.” Id. at 1157-65. In part, this analysis turned on the court's observation that only one other state followed Arizona's approach. Id. at 1160 (). Next, the district court addressed whether the petitioner was prejudiced by his counsel's failure to raise a constitutional challenge, concluding for various reasons that prejudice existed. Id. at 116569. Finally, the district court addressed whether the petitioner's trial counsel engaged in deficient performance by failing to raise the constitutional challenge, concluding that counsel had because Id. at 1169-71. Thus, the district court held that the petitioner was entitled to habeas relief. Id. at 1171-72.
In March 2020, the Ninth Circuit issued a memorandum decision reversing the district court's grant of habeas relief. May v. Ryan, 807 Fed.Appx. 632 (9th Cir. 2020). The Ninth Circuit only addressed, on the merits, the district court's analysis with respect to deficient performance, concluding Id. at 634-35 (citations omitted). The court also went out of its way to “vacate” the portion of the district court's decision analyzing the constitutionality of Arizona's child molestation statute: “Because we do not reach the constitutionality of the Arizona child molestation statute, we vacate the district court's judgment in that respect.” Id. at 635.
The other development occurred in August 2018, when the Arizona legislature “amended the child molestation statutes.” State v. Bieganski, 2019 WL 4159822, *1 n.1 (Ariz.Ct.App. 2019). Among other things ...
To continue reading
Request your trial