Curtis 260104 v. Shinn

Opinion

1 WO 2 3 4 5

9 David W. Curtis, Jr., No. CV-19-04374-PHX-DGC (JZB)

10 Petitioner, ORDER

11 v.

12 David Shinn, Director of the Arizona Department of Corrections; and Attorney 13 General of the State of Arizona,

14 Respondents. 15 16 17 Petitioner David Curtis is serving time in Arizona state prison for sexually 18 exploiting and molesting children. He commenced this federal action by filing a 19 petition for a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1; see Docs. 12, 40, 47. 20 Magistrate Judge John Boyle has issued a thorough and thoughtful report recommending 21 that the Court deny the petition and a certificate of appealability (“R&R”). Doc. 56. Curtis 22 has filed an objection, to which Respondents have replied. Docs. 62, 63. The Court will 23 accept the R&R and deny the petition and a certificate of appealability.1 24 I. Background. 25 In May 2009, Dwayne Benallie found a computer flash drive in the parking lot at 26 Tempe Marketplace. Benallie discovered photos of nude children on the flash drive and

27 1 The Court previously accepted the R&R in part (Doc. 56 at 53-56) and denied 28 Curtis’s motion to require the State to provide the Court with additional exhibits related to the state proceedings (Doc. 52). See Doc. 64. 1 promptly turned it over to the Tempe Police Department. A forensic exam of the flash 2 drive suggested that Curtis was its owner. 3 Curtis was arrested at Tempe Marketplace when he went there to retrieve the flash 4 drive during an undercover operation by Tempe police. During searches of Curtis’s 5 residence and vehicles, police seized additional flash drives, external hard drives, floppy 6 and compact discs, computers, a digital camera, and other electronic media containing child 7 pornography. See Docs. 25 at 6-23, 56 at 2-5. 8 In February 2010, the State charged Curtis with fifteen counts of sexual exploitation 9 of a minor in violation of A.R.S. § 13-3553 (Counts 1-10, 12, 14, 16, 18, and 20) and five 10 counts of molestation of a child in violation of A.R.S. § 13-1410 (Counts 11, 13, 15, 17, 11 and 19). The indictment identified Curtis’s infant granddaughter, “Jessica,” as the victim 12 of the molestation charges and the child depicted in the last five charged visual depictions 13 of child pornography. The State dismissed the molestation charge in Count 13 because the 14 image supporting the charge may not have fit the legal definition for molestation. See 15 Docs. 25 at 4, 56 at 2-8. 16 The remaining charges were tried to a jury in December 2010. Jason and Caroline 17 Curtis, Jessica’s parents and Curtis’s son and daughter-in-law, testified that Jason and his 18 father were the only men who ever had unsupervised access to Jessica, and that Curtis had 19 babysat Jessica when certain charged photos were taken. Curtis admitted that he had taken 20 photos of himself and Jessica in the nude, including the charged photo of Jessica exposing 21 her genitals. Curtis further admitted that one of the charged photos depicted Jessica holding 22 Curtis’s penis in her hands. Curtis denied having any sexual intent in taking and possessing 23 such photos. See Docs. 25 at 17-26, 56 at 8-9. 24 The jury convicted Curtis on each of the nineteen counts. He was sentenced to 25 consecutive terms of ten years in prison for a total of 190 years. The Arizona Court of 26 Appeals affirmed the convictions and sentences, and the Arizona Supreme Court denied 27 review. Curtis’s petitions for post-conviction relief (“PCR”) under Arizona Rule of 28 Criminal Procedure 32 were denied. See Docs. 25 at 27-28, 56 at 10-11. 1 II. Federal Habeas Standards. 2 A. Exhaustion and Procedural Default. 3 Federal habeas petitions are governed by the Antiterrorism and Effective Death 4 Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq. The AEDPA prohibits a federal 5 court from granting habeas relief unless the petitioner has “exhausted the remedies 6 available in the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A); see O’Sullivan v. 7 Boerckel, 526 U.S. 838, 842 (1999); Kyzar v. Ryan, 780 F.3d 940, 946 (9th Cir. 2015). 8 “[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to 9 resolve federal constitutional claims before those claims are presented to the federal 10 courts[.]” O’Sullivan, 526 U.S. at 845. To “fairly present” a federal claim in state court, 11 the petitioner must provide the factual and legal basis for the claim. Scott v. Schriro, 567 12 F.3d 573, 582 (9th Cir. 2009). He must “make the federal basis of the claim explicit either 13 by specifying particular provisions of the federal Constitution or statutes, or by citing to 14 federal case law.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005); see 15 Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state 16 court to the fact that he is raising a federal constitutional claim, his federal claim is 17 unexhausted regardless of its similarity to the issues raised in state court.”). 18 An unexhausted claim is procedurally defaulted where state procedural rules make 19 a return to state court futile. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) 20 (claims are barred from habeas review when not first raised before state courts and those 21 courts “would now find the claims procedurally barred”). A federal court may not consider 22 the merits of a procedurally defaulted claim unless the petitioner establishes cause for the 23 default and actual prejudice, or shows that a miscarriage of justice would result. See 24 Coleman, 501 U.S. at 750-51; Schlup v. Delo, 513 U.S. 298, 321 (1995). Under the cause 25 and prejudice test, the petitioner must show that some external cause prevented him from 26 following the procedural rules of the state court and fairly presenting his claim. See 27 Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (“A showing of cause must 28 ordinarily turn on whether the prisoner can show that some objective factor external to the 1 defense impeded [the prisoner’s] efforts to comply with the State’s procedural rule. Thus, 2 cause is an external impediment such as government interference or reasonable 3 unavailability of a claim’s factual basis.”) (citations omitted). A fundamental miscarriage 4 of justice exists when a constitutional violation has resulted in the conviction of one who 5 is “actually innocent.” Schlup, 513 U.S. at 327. “Actual innocence,” for purposes of 6 Schlup, “means factual innocence, not mere legal insufficiency.” Bousley v. United States, 7 523 U.S. 614, 623 (1998); see House v. Bell, 547 U.S. 518, 538 (2006) (emphasizing that 8 “the Schlup standard is demanding and permits review only in the ‘extraordinary’ case”). 9 Where the petitioner attempts to exhaust a federal claim in state court and the claim 10 is deemed waived for “noncompliance with a state procedural rule, the federal claim is 11 procedurally defaulted[.]” Smith v. Or. Bd. of Parole & Post-Prison Supervision, 736 F.3d 12 857, 862 (9th Cir. 2013) (citing Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977)). This 13 procedural default rule applies where “the state procedural rule . . . provide[s] an adequate 14 and independent state law basis on which the state court can deny relief.” Hurles v. Ryan, 15 752 F.3d 768, 780 (9th Cir. 2014) (quoting Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 16 2003)).2 17 B. Merits. 18 “In conducting habeas review, a federal court is limited to deciding whether a 19 conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. 20 McGuire, 502 U.S. 62, 68 (1991). A state prisoner, therefore, may not obtain federal 21 habeas relief for errors of state law. See id. at 67-68 (“[W]e reemphasize that it is not the 22 province of a federal habeas court to reexamine state-court determinations on state-law 23 questions.”); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times 24 that federal habeas corpus relief does not lie for errors of state law.”) (citations omitted);

25 2 “Arizona’s waiver rules are independent and adequate bases for denying relief.” 26 Id. (citing Stewart v. Smith, 536 U.S. 856, 859-60 (2002) (denials pursuant to Arizona waiver rules are independent of federal law); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th 27 Cir. 1998) (Arizona’s waiver rules are consistently and regularly applied)); see Ariz. Rs. Crim. P. 32.2(a) (precluding claims not raised on appeal or in prior PCR petitions); 28 32.4(b)(3) (time limits for filing PCR petitions); 32.16(a)(1) (petitions for direct review must be filed within 30 days of the trial court’s decision). 1 Little v. Crawford, 449 F.3d 1075, 1083 (9th Cir. 2006) (“A violation of state law standing 2 alone is not cognizable in federal court on habeas.”) (citations omitted). 3 With respect to the merits of exhausted and cognizable federal claims, the AEDPA 4 requires federal courts to defer to the last reasoned state court decision. See Murray v. 5 Schriro, 882 F.3d 778, 801 (9th Cir. 2018). Habeas relief is not warranted unless the 6 petitioner shows that the state court’s decision was (1) contrary to, or an unreasonable 7 application of, clearly established federal law as determined by the United States Supreme 8 Court, or (2) based on an unreasonable determination of the facts in light of the evidence 9 presented in state court. 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 412-13 10 (2000). 11 This highly deferential standard “demands that state court decisions be given the 12 benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Indeed, the AEDPA 13 “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state 14 criminal justice systems,’ not a substitute for ordinary error correction through appeal.” 15 Harrington v. Richter, 562 U.S. 86, 102 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 16 332 n.5 (1979)). A federal court therefore must “avoid applying [the] AEDPA in a manner 17 that displays ‘a lack of deference to the state court’s determination and an improper 18 intervention in state criminal processes.’” John-Charles v. California, 646 F.3d 1243, 1253 19 (9th Cir. 2011) (quoting Harrington, 562 U.S. at 104); see also Christian v. Frank, 595 20 F.3d 1076, 1081 (9th Cir. 2010) (“A federal court may second-guess a state court decision 21 only if it determines that ‘the state court was not merely wrong, but actually 22 unreasonable.’”) (quoting Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004)). 23 In a recent decision, the Supreme Court reaffirmed the deferential habeas standard 24 and explained why the standard is “difficult to meet”: 25 The term “unreasonable” [in § 2254(d)] refers not to “ordinary error” or even to circumstances where the petitioner offers “a strong case for relief,” but 26 rather to “extreme malfunctions in the state criminal justice system.” In other 27 words, a federal court may intrude on a State’s “sovereign power to punish offenders” only when a decision “was so lacking in justification beyond any 28 possibility for fairminded disagreement.” 1 Mays v. Hines, 141 S. Ct. 1145, 1149 (2021) (quoting Harrington, 562 U.S. at 102-03; 2 alterations omitted). 3 III. Curtis’s Habeas Petition and Judge Boyle’s R&R. 4 Curtis asserts fourteen grounds for relief in his habeas petition, with subclaims 5 alleged in some of the grounds. Doc. 1 at 6-69. As summarized in the Court’s service 6 order: 7 In Ground One, Petitioner alleges that his statutes of conviction are 8 unconstitutional. In Ground Two, he alleges the indictment was duplicative and failed to set forth the acts alleged to have violated the state statutes. In 9 Ground Three, he alleges violation of his Sixth Amendment rights. In 10 Ground Four, he alleges that exclusion of his computer expert at trial violated his Sixth and Fourteenth Amendment right to represent himself and 11 to due process. In Ground Five, Petitioner alleges violations of his First, 12 Sixth, and Fourteenth Amendment rights. In Ground Six, he appears to allege the State failed to offer separate admissible evidence to support each 13 of the molestation charges. In Ground Seven, he alleges that the trial court issued jury instructions that required Petitioner to prove that he was in 14 possession of images in an active case of one of his clients in violation of the 15 First Amendment. In Ground Eight, he alleges that he had to testify in order to present an affirmative defense under the state statute, since repealed, in 16 violation of his Eighth Amendment rights. In Ground Nine, Petitioner 17 alleges prosecutorial misconduct. In Ground Ten, Petitioner alleges “false reporting” by a Tempe detective on the search warrant. In Ground Eleven, 18 Plaintiff appears to allege that bank records were illicitly obtained or 19 disclosed to police. In Ground Twelve, Petitioner alleges insufficient evidence to sustain his convictions. In Ground Thirteen, Petitioner seeks 20 relief concerning jury instructions given regarding his affirmative defense. 21 In Ground Fourteen, he challenges the denial of his suppression motions. 22 Doc. 13 at 2-3 (emphasis added); see also Doc. 21 (Curtis’s list of claims and issues). 23 Respondents filed an answer opposing the petition, to which Curtis replied. Docs. 25, 24 26, 40. 25 Judge Boyle issued his R&R in June 2021. Doc. 56. The R&R describes the facts 26 and procedural history for the state proceedings (id. at 2-11), identifies each claim asserted 27 in the petition (id. at 12), sets forth the standards for federal habeas relief and relevant state 28 law (id. at 12-17), and analyzes each claim based on the material facts and applicable law 1 (id. at 17-53). Judge Boyle finds that some of Curtis’s claims are procedurally defaulted 2 under the AEDPA because (1) he failed to present them to the Arizona Court of Appeals, 3 (2) the state courts invoked an independent and adequate state procedural rule in denying 4 the claims – Curtis could have raised the claims on direct review but failed to do so, see 5 Ariz. R. Crim. P. 32(a), or (3) he failed to fairly present the federal bases for the claims to 6 the state courts.3 Judge Boyle further finds that Curtis has established no exception to the 7 procedural default because he has not shown cause and prejudice or a fundamental 8 miscarriage of justice. With respect to Curtis’s other claims (and a few defaulted claims), 9 Judge Boyle finds that they are not cognizable under federal habeas law or otherwise lack 10 merit. See id. at 1-2, 17-53. 11 IV. R&R Standard of Review. 12 This Court “may accept, reject, or modify, in whole or in part, the findings or 13 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court “must 14 review the magistrate judge’s findings and recommendations de novo if objection is made, 15 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 16 (en banc). The Court is not required to conduct “any review at all . . . of any issue that is 17 not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 18 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). 19 V. Curtis’s Objection. 20 Curtis filed his objection to the R&R on September 8, 2021. Doc. 62. Respondents 21 argue that Curtis’s rehashing of arguments made in his habeas briefing is not a proper or 22 effective objection to Judge Boyle’s findings and recommendations, and that the few 23 specific objections Curtis asserts lack merit. Doc. 63. The Court agrees. 24 Although Curtis is a former attorney, his objection is not easy to follow. He spends 25 much of his objection discussing his health and personal history, recounting the procedural 26 history and evidence presented in the state proceedings, setting forth certain aspects of

27 3 These include grounds one (a) and (b)(2), two, three, five (Sixth and Fourteenth 28 Amendment claims), eight, nine (c)-(e) and (h), ten, eleven (prosecutorial misconduct), twelve, and thirteen. 1 federal habeas law and state procedural rules, and describing generally some of the alleged 2 injustices of his convictions. Doc. 62 at 2-22; see Doc. 63 at 2 & n.1. It is not easy to 3 determine which of Judge Boyle’s specific conclusions Curtis objects to, or precisely why. 4 Having carefully considered the objection, the Court concludes that it should accept the 5 R&R and deny the habeas petition. 6 A. General Objections, Repetitive Arguments, and Matters Not Specific to the R&R. 7 8 To the extent Curtis objects to the R&R generally, this is an improper objection. 9 Rule 72 requires that objections be “specific” to the findings and recommendations of the 10 magistrate judge. Fed. R. Civ. P. 72(b)(2); see 28 U.S.C. § 636(b)(1). An obvious purpose 11 of this requirement is judicial economy – to permit magistrate judges to resolve matters not 12 objectionable to the parties. See Thomas, 474 U.S. at 149. Because de novo review of the 13 entire R&R would defeat the efficiencies intended by Congress, a general objection “has 14 the same effect as would a failure to object.” Warling v. Ryan, No. CV 12-01396-PHX- 15 DGC, 2013 WL 5276367, at *2 (D. Ariz. Sept. 19, 2013). 16 In portions of his objection, Curtis repeats arguments previously made in his 17 petition. See Docs. 1, 12, 40. But “merely reasserting the grounds of the petition as an 18 objection provides this Court with no guidance as to what portions of the R&R [Curtis] 19 considers to be incorrect.” McDowell v. Richardson, No. CV-11-0716-PHX-DGC, 2012 20 WL 393462, at *2 (D. Ariz. Feb. 7, 2012). As noted, Rule 72 requires objections specific 21 to Judge Boyle’s findings and recommendations. This specificity requirement is 22 particularly important in this case given that Curtis asserts more than a dozen claims and 23 Judge Boyle’s R&R spans more than 50 pages. Because “the purpose of the magistrate is 24 to promote efficient use of judicial resources, there is no benefit if the [C]ourt is required 25 to review the entire matter de novo because [Curtis] merely repeats the arguments rejected 26 by [Judge Boyle].” Quigg v. Salmonsen, No. CV 18-77-H-DLC-JTJ, 2019 WL 1244989, 27 at *1 (D. Mont. Mar. 18, 2019); see Eagleman v. Shinn, No. CV-18-2708-PHX-RM (DTF), 28 2019 WL 7019414, at *4 (D. Ariz. Dec. 20, 2019) (“[O]bjections that merely repeat or 1 rehash claims asserted in the Petition, which the magistrate judge has already addressed in 2 the R&R, are not sufficient under [Rule] 72.”). 3 Curtis specifically addresses the R&R at page fifteen and in the last several pages 4 of his objection, and the Court will address those issues below. Before doing so, however, 5 the Court will summarize the other portions of Curtis’s objection that set forth matters not 6 specific to the R&R: 7 • The objection describes a personal health matter and related symptoms 8 (Doc. 62 at 2); 9 • discusses Curtis’s motion to exceed page limits, which was granted (id. at 3); 10

11 • provides an “outline of Curtis’s case,” including his personal life and good character (id. at 4-5); 12

13 • sets forth a “short version of this case” – asserting that only foundational 14 testimony by police officers was presented at trial, that the hearsay rule’s purpose is to protect certain constitutional rights, that uncharged images were 15 admitted at trial and resulted in prejudice, that the state disclosures were not 16 complete, and that possession of child pornography was not proven (id. 17 at 6-12);

18 • cites case law, including cases listed in an appendix (id. at 13); 19 • notes that the transcript of the first day of trial is not complete (id. at 14); 20

21 • alleges instances of prosecutorial misconduct, including suborned perjury 22 (at 16);

23 • discusses the trial court’s denial of Curtis’s PCR petition and Arizona’s 24 “longstanding and consistently enforced procedural rule” (at 17-19); and 25 • alleges a “constructive denial (or obstruction) of right to self-counsel” and 26 disclosure violations under Brady and Ariz. R. Crim. P. 15.1 (at 20-22). 27 Some of these matters are general complaints Curtis has about the state proceedings, 28 but they are “devoid of any reference to specific findings or recommendations” of Judge 1 Boyle. Kempker v. United States, No. 1:19-CV-198, 2021 WL 4059458, at *3 (N.D. W. 2 Va. Sept. 7, 2021). The Court has no obligation under Rule 72 to consider Curtis’s 3 arguments that are repetitive or general and non-specific to the R&R, and declines to do 4 so. See Kempker, 2021 WL 4059458, at *3 (“general grievances and repeated conclusory 5 allegations do not merit a de novo review . . . [or] preserve a claim for review by [the] 6 Court”); Williams v. United States, No. CR-09-01492-PHX-ROS, 2020 WL 2303139, at *3 7 (D. Ariz. May 8, 2020) (because petitioner’s “general complaints about the criminal 8 proceedings and [his] alleged innocence . . . cannot plausibly be viewed as specific 9 objections, the Court need not provide any additional analysis”); Panasewicz v. Hacker- 10 Agnew, No. CV-19-00401-PHX-ROS, 2020 WL 2615995, at *1 (D. Ariz. May 22, 2020) 11 (“general and non-specific objections . . . do not require the Court to independently review 12 the R&R”); Quinn v. Hacker-Agnew, No. CV-19-08152-PCT-DGC (CDB), 2020 WL 13 6680401, at *2 (D. Ariz. Nov. 12, 2020) (“Because Petitioner presents no specific objection 14 to Judge Bibles’ review of the sentencing claims and procedural bar analysis, the Court 15 will adopt the R&R without further discussion.”). 16 B. Curtis’s Specific Objections. 17 1. Respondents’ Alleged Recasting of Curtis’s Claims. 18 In November 2019, Respondents moved for an extension of time to prepare and file 19 an answer to Curtis’s habeas petition and related briefing, stating that it would “require 20 considerable time, as each pleading must be reviewed before undersigned counsel can 21 itemize the claims that Petitioner raised, restate the arguments presented, and relate the 22 pertinent court’s ruling.” Doc. 18 at 3 n.2. This statement concerned Curtis because he 23 did not want the State recasting his claims. Doc. 62 at 15. Curtis remembered the Court’s 24 service order that had summarized his fourteen grounds for relief (see Doc. 13 at 2), and 25 filed a motion to correct the record (Doc. 21). Judge Boyle made clear that “[t]he Court 26 will consider the arguments presented in each of [Curtis’s] grounds[.]” Doc. 24 at 1. 27 Because there was no need to “correct the record[,]” Curtis’s motion was denied as moot. 28 Id. 1 Curtis asserts that Judge Boyle “resurrects” this issue on page twelve of the R&R 2 by quoting the service order’s summary of Curtis’s claims. Doc. 62 at 15. Curtis states 3 that Judge Boyle apparently was “misled by the State’s recast[ed] issues, not by Curtis’s 4 pleadings.” Id. In support, Curtis references Respondents’ characterization of ground nine 5 (prosecutorial misconduct). Id. But instead of explaining why he believes Respondents 6 mischaracterized ground nine, Curtis abruptly pivots to a discussion of ground two. Id. at 7 15-16. 8 Respondents note that their characterization of the numerous claims alleged in 9 grounds two and nine are based on, and pin-cited to, Curtis’s petition. Doc. 63 at 4 10 (comparing Docs. 1 and 25). Moreover, Judge Boyle thoroughly addresses in his R&R 11 Curtis’s challenges to the indictment in ground two and each of the “numerous instances 12 of prosecutorial misconduct” alleged in ground nine. Doc. 62 at 24-26, 44-49 (quoting 13 Doc. 1 at 50). Curtis has not shown that Judge Boyle was misled by Respondents’ alleged 14 recasting of Curtis’s claims. 15 2. Ground One (a) – Arizona’s Molestation Statutes. 16 Curtis claims in ground one (a) that Arizona’s child molestation statutes, A.R.S. 17 § 13-1410(A) and former § 13-1407(E), are unconstitutional. Doc. 1 at 6-10 (citing May 18 v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017)). He specifically argues that § 13-1410(A) 19 “criminalizes normal and necessary physical contact even without any evidence of an intent 20 to receive sexual or other deviant gratification from such contact, and then requires that the 21 defendant prove that the contact was innocent.” Id. at 6. 22 Judge Boyle finds that this ground is unexhausted because Curtis did not present it 23 to the Arizona Court of Appeals. Doc. 56 at 18 (citing appellate and PCR briefing). Judge 24 Boyle further finds that ground one (a) is now procedurally defaulted because Rule 32.2(a) 25 precludes subsequent litigation of the claim in state court, and that the default is not excused 26 as Curtis provides no adequate reason as to why he was unable to timely raise the claim, 27 particularly given that he is a former attorney and served as his own trial counsel. Id. 28 1 Curtis does not specifically object to Judge Boyle’s finding that ground one (a) is 2 procedurally defaulted without excuse. He instead contends that ground one (a) is not 3 subject to procedural default because the claim challenges the constitutionality of the state 4 statutes under which he was convicted. Doc. 60 at 26-27. But Curtis cites no legal 5 authority suggesting that such habeas claims are not subject to the AEDPA’s exhaustion 6 requirement and the Supreme Court’s procedural default doctrine. See Doc. 63 at 6. The 7 Supreme Court has made clear that, because the purposes behind the procedural default 8 doctrine “do not depend on the type of claim the prisoner raised,” a “state procedural 9 default of any federal claim will bar federal habeas unless the petitioner demonstrates cause 10 and actual prejudice” or “a fundamental miscarriage of justice.” Coleman, 501 U.S. at 748 11 (emphasis added); see also Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A] federal court will 12 not review the merits of claims, including constitutional claims, that a state court declined 13 to hear because the prisoner failed to abide by a state procedural rule[.]”) (emphasis added); 14 Gray v. Ryan, No. CV-17-00963-PHX-GMS, 2019 WL 5959674, at *3 (D. Ariz. Nov. 12, 15 2019) (“[Petitioner] argues that the procedural default doctrine should not apply when the 16 petitioner is challenging the constitutionality of the underlying state statute, as opposed to 17 a trial error or defect. Nevertheless, the law is clear that Petitioner must establish an excuse 18 for procedural default in order for a federal habeas court to review the merits of a 19 procedurally defaulted claim.”) (citing Coleman, 501 U.S. at 748); Troy v. Sec’y of Dep’t 20 of Corr., No. 8:11-CV-796-T30-AEP, 2013 WL 24212, at *46 (M.D. Fla. Jan. 2, 2013) 21 (“Because Troy fails to proffer specific facts showing an exception to procedural default, 22 his constitutional challenge to the state statute . . . [is] procedurally barred from federal 23 review.”). 24 Curtis’s reliance on Class v. United States, 138 S. Ct. 798 (2018), is misplaced. See 25 Doc. 62 at 26. Class held that a guilty plea, by itself, does not “bar[] a federal criminal 26 defendant from challenging the constitutionality of the statute of conviction on direct 27 appeal.” 138 S. Ct. at 803. Class is not a habeas case and therefore has no application to 28 1 federal habeas law, the AEDPA’s exhaustion requirement, or the procedural default 2 doctrine. 3 Curtis asserts that May v. Ryan, 245 F. Supp. 3d 1145 (D. Ariz. 2017) – which found 4 that Arizona’s child molestation statutes unconstitutionally shift the burden of proof to 5 defendants – “is still good law[.]” Doc. 62 at 27. But the district court’s decision in May 6 has been reversed by the Ninth Circuit. See May v. Shinn, 954 F.3d 1194 (9th Cir. 2020); 7 May v. Ryan, 807 Fed. App’x 632 (9th Cir. 2020). This Court is bound by Ninth Circuit 8 decisions. 9 Respondents note, correctly, that much of Curtis’s objection regarding ground 10 one (a) simply reasserts his earlier arguments that the child molestation statutes are 11 unconstitutional. Doc. 63 at 5. Curtis contends that the statutes “made it a crime to change 12 a diaper,” that he had the burden of proving he “is not a sex offender,” and that as a 13 “grandfather/babysitter [he] would not have been easy to convict with no evidence of 14 molestation except . . . police manufactured evidence.” Doc. 62 at 25. But simply 15 repeating arguments made in the petition is not a proper objection under Rule 72. See 16 Eagleman, 2019 WL 7019414, at *4. Moreover, Judge Boyle finds, and the Court agrees, 17 that Curtis’s claims regarding the constitutionality of the child molestation statutes are 18 procedurally defaulted without excuse. See Doc. 56 at 18. 19 VI. Certificate of Appealability. 20 Judge Boyle recommends that a certificate of appealability be denied. Doc. 56 at 55. 21 Curtis contends the appealability issue needs further briefing, but does not explain why this 22 is so. Doc. 62 at 3. The Court concludes that Curtis has made no showing of the denial of 23 a constitutional right, and that no reasonable jurist would find that his claims warrant 24 federal habeas relief. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 25 (2000). The Court accordingly will deny a certificate of appealability. 26 IT IS ORDERED: 27 1. Judge Boyle’s R&R (Doc. 56) is accepted. 28 2. Curtis’s habeas petition (Doc. 1) and a certificate of appealability are denied. 1 3. The Clerk of Court is directed to enter judgment accordingly and terminate this action. 3 Dated this 6th day of October, 2021. 4 Saul 6 Cou 4 David G. Campbell Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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