May v. Shinn
| Decision Date | 10 June 2022 |
| Docket Number | s. 17-15603,17-15704 |
| Parties | Stephen Edward MAY, Petitioner-Appellee Cross-Appellant, v. David SHINN, Director; Mark Brnovich, Attorney General, Respondents-Appellants Cross-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert A. Walsh (argued), Assistant Attorney General, Criminal Appeals Section; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Respondents-Appellants/Cross-Appellees.
Erica T. Dubno (argued), Fahringer & Dubno Herald Price Fahringer PLLC, New York, New York; Robert J. McWhirter, Law Offices of Robert J. McWhirter, Phoenix, Arizona; Michael D. Kimerer, Kimerer & Derrick P.C., Phoenix, Arizona; for Petitioner-Appellee/Cross-Appellant.
Mikel Patrick Steinfeld, Phoenix, Arizona, for Amicus Curiae Arizona Attorneys for Criminal Justice.
J. Thomas Sullivan, Little Rock, Arkansas, for Amicus Curiae National Association for Rational Sex Offense Laws.
Before: Sandra S. Ikuta and Michelle T. Friedland, Circuit Judges, and Frederic Block,* District Judge.
May's motion to recall the mandate (Dkt. No. 135) is DENIED . "[M]otions that assert a judgment is void because of a jurisdictional defect generally" must show that "the court that rendered judgment lacked even an ‘arguable basis’ for jurisdiction." United Student Aid Funds, Inc. v. Espinosa , 559 U.S. 260, 271, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010) (citations omitted). May has not met that standard in arguing that the statutory "in-custody" requirement was unsatisfied. Maleng v. Cook , 490 U.S. 488, 490–91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam); Carafas v. LaVallee , 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Nor do the additional details provided in the motion and accompanying exhibits demonstrate that this Court's holding on mootness lacked an arguable basis. Kernan v. Cuero , ––– U.S. ––––, 138 S. Ct. 4, 7, 199 L.Ed.2d 236 (2017) (per curiam).
This is another failed attempt by the defendant Stephen May to avoid spending the rest of his life in prison. Although I am constrained by my oath of office to concur in my colleagues' decision rejecting May's latest effort to escape lifetime incarceration, I write separately to reinforce Judge Friedland's conclusion that "this case, and in particular May's sentence, reflects poorly on our legal system," May v. Shinn , 954 F.3d 1194, 1209 (9th Cir. 2020), cert. denied ––– U.S. ––––, 141 S.Ct. 1740, 209 L.Ed.2d 506 (2021), and to urge that justice compels that May's sentence be commuted by the State of Arizona.
As shown by the past decisions of this panel, this is a bizarre case. May stands convicted by an Arizona jury of five of eight counts of child molestation of three children between the ages of six and eight. He was acquitted on two counts with respect to a nine-year-old child. See May v. Ryan , CIV 14-0409-PHX-NVW (MHB), 2015 WL 13188352, at *13 (D. Ariz. Sept. 15, 2015).1
The convictions occurred after the trial judge had declared a mistrial when the jury had announced that it could not reach a verdict. Although the judge had discharged the jury, the judge allowed the jury to recommence its deliberations after the bailiff—as the lawyers were preparing to leave the courtroom—had advised the judge that the jurors wished to continue deliberating, and defense counsel consented. May's conviction was rendered following a weekend break after several more hours of deliberations. At the age of 37, May was sentenced to 75 years of incarceration without parole. Unless he lives to be 112, he will die in jail.
May had served ten years of his term of imprisonment as the case wended its way through the state and federal judicial systems before the district court granted his habeas petition and released him from incarceration. See May v. Ryan , 245 F. Supp. 3d 1145 (D. Ariz. 2017). In a lengthy opinion Judge Wake ruled that May's trial counsel rendered ineffective assistance under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because he did not object to the constitutionality of the Arizona law placing the burden of proving lack of intent on the defendant. May , 245 F. Supp. 3d at 1166.
On appeal, we unanimously disagreed, explaining:
Given the long-standing status of the law in Arizona that the State is not required to prove sexual intent to successfully prosecute a defendant for child molestation, which provided the background for the "prevailing professional practice at the time of trial," we cannot conclude that trial counsel's failure to object to the constitutionality of the statute placing the burden of proving lack of intent on the defendant fell "below an objective standard of reasonableness."
May v. Ryan , 766 F. App'x 505, 507 (9th Cir. 2019) (internal citations omitted).2
Nevertheless, Judge Friedland and I affirmed the district court's grant of habeas on other grounds: We first noted that "the State's case turned entirely on the jury's believing the testimony of several child victims who all had struggled to provide details of the alleged molestation on the stand, including failing to remember whether some of the incidents even took place." Id. at 507. We concluded that, in light of the particular circumstances, "when the trial judge asked if either party objected to the jury resuming deliberations after the court had already declared a mistrial and discharged the jury, competent counsel would have objected." Id at 508. Consequently, we ruled that "[t]he decision not to object was completely unsupportable on this record and, therefore, under the circumstances, could not have been considered a sound trial strategy." Id. (citations and internal quotation marks omitted). We also held that the prejudice prong of Strickland was satisfied.3
However, Judge Friedland changed her vote in response to the State's petition for rehearing, which pointed out that the panel had misunderstood an aspect of the case's procedural history. Writing for what was now a majority of the panel, she reasoned that since the State's case was so weak, "it was reasonable [for trial counsel] to think that the jury might acquit May if it continued deliberating." May , 954 F.3d at 1204. Accordingly, trial counsel could not be faulted for consenting to further deliberations. She explained that the alleged sexual molestation charges were predicated upon the brief touching of the children's genitals by May on the outside of either their clothing or bathing suits, and nothing more. Id. at 1197. As she elaborated:
The fact that the jury was deadlocked meant that at least one juror wanted to acquit May. And both parties agree that the State's evidence against May was far from overwhelming. All four children testified that other people were nearby when May touched their genital areas. Luis and Danielle testified that May touched them when more than twenty people, including other adults, were in the vicinity—but none of those people claimed to see anything. Luis was also unable to identify May in court. Taylor and Danielle testified that they were unable to remember an incident in which May had touched them that they had previously disclosed to police. And Sheldon testified that he thought that May's touching was accidental until Taylor's mother told him otherwise. The State had not offered any expert testimony to try to explain away these discrepancies in the children's accounts. Based on these and other weaknesses in the State's case, it was reasonable to think that the jury might acquit May if it continued deliberating. Indeed, the jury ultimately did acquit May on the counts related to Sheldon.
Id. at 1204. I dissented, concluding that "[b]ecause I would find that May's counsel was objectively deficient in not objecting to resumed jury deliberations, and because there was a reasonable probability that an objection would have been sustained, I would affirm the grant of habeas relief." May , 954 F.3d at 1221.
In a brief concurring opinion, Judge Ikuta reasoned:
It is our duty to impartially follow and apply the law. Here, as required to "reflect our enduring respect for the State's interest in the finality of convictions that have survived direct review withing the state court system," we adhered to the limited scope of federal habeas review. In doing so, we uphold the fundamental principles of our legal system.
Id. at 1208 (internal citations omitted). In a separate concurring opinion, Judge Friedland wrote "to express [her] dismay at the outcome of this case:"
Id. at 1208–09 (emphasis added). After having been at liberty for more than four years May returned to prison.
I have profound respect for my two judicial colleagues who denied May's habeas petition. Judge Ikuta certainly cannot be faulted for her commitment "to follow and apply the law." Id. at 1208. But, as Judge Friedland poignantly comments, we have reached a point in our judicial decision-making that "reflects poorly on our legal system." Id. at 1209.
Judge Friedland's...
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