Morphis v. Thornell

District Court, D. Arizona·Decided August 28, 2024·No. 2:23-cv-02589·Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 James Morphis, No. CV-23-02589-PHX-KML (DMF)

10 Petitioner,

11 v. REPORT AND RECOMMENDATION

12 Ryan Thornell, et al.,

13 Respondents. 14 15 TO THE HONORABLE KRISSA M. LANHAM, UNITED STATES DISTRICT 16 JUDGE: 17 This matter is on referral to the undersigned for further proceedings and a report and 18 recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. 19 (Doc. 4 at 3)1 20 On December 12, 2023, through retained counsel, Petitioner James Morphis 21 (“Petitioner”), who is confined in the Arizona State Prison Complex in Florence, Arizona, 22 filed a Petition for Writ of Habeas Corpus (28 U.S.C. § 2254) (“Petition”). (Doc. 1) On 23 January 10, 2024, the Court ordered Respondents to answer the Petition. (Doc. 4 at 2) 24 On February 20, 2024, Respondents filed their Answer to the Petition (“Answer”). 25 (Doc. 7) On May 28, 2024, Petitioner filed a “Supplemental Petition for a Writ of Habeas 26 Corpus and Reply to State’s Answer” (Doc. 14) and a motion for leave to amend or 27 1 Citation to the record indicates documents as displayed in the official Court electronic 28 document filing system maintained by the District of Arizona under Case No. CV-23- 02589-PHX-KML (DMF). 1 supplement the Petition, as part of Petitioner’s reply in support of the Petition (Doc. 15). 2 Respondents filed a response to Petitioner’s motion for leave to amend or supplement the 3 Petition. (Doc. 16) Petitioner filed a reply. (Doc. 18) On June 12, 2024, the Court struck 4 Petitioner’s Supplemental Petition for Writ of Habeas Corpus (Doc. 14) for non- 5 compliance with Fed. R. Civ. P. 15, denied Petitioner’s motion for leave to supplement or 6 amend the Petition in Doc. 15 without prejudice for non-compliance with LRCiv 15.1, and 7 stated that Petitioner’s arguments presented as reply in support of the Petition in Doc. 15 8 would be considered when evaluating the Petition claim. (Doc. 19) 9 On June 11, 2024, Petitioner filed a “Motion for Leave to Amend Petition for a 10 Write [sic] of Habeas Corpus” (“motion to amend”), which Petitioner filed as a motion to 11 supplement. (Doc. 17) On July 9, 2024, Respondents filed a response to Petitioner’s motion 12 to amend. (Doc. 22) Petitioner filed a reply. (Doc. 26) Petitioner’s motion to amend was 13 addressed by separate Report and Recommendation recommending denial. (Doc. 27) 14 For the reasons set forth below, it is recommended that these proceedings be denied 15 with prejudice, that the Clerk of Court be directed to terminate this matter, and that a 16 certificate of appealability be denied. 17 I. BACKGROUND 18 A. Charges, Convictions, and Sentences 19 In its memorandum decision affirming Petitioner’s convictions and sentences in 20 Maricopa County Superior Court case number CR2016-126427-001, the Arizona Court of 21 Appeals summarized the events leading to the charges against Petitioner: 22 [Petitioner] lived with his girlfriend and her daughter, M.M. On June 1, 2016, shortly after M.M. turned 12 years old, [Petitioner] picked her up from 23 “summer camp” at a local school and took her to a clothing store. When they arrived home, M.M. locked herself in her room because she was “scared” 24 that something “was going to happen.” She later informed her mother that [Petitioner] had been touching her inappropriately, and her mother called the 25 police. M.M. underwent a forensic interview and medical examination on June 2. 26 During the forensic interview, M.M. stated that she was about nine years old 27 when [Petitioner] started to touch her private parts. He would put his hand up her shirt and touch her “chest.” He would also put his hand in M.M.’s 28 pants and rub “on the outside[] with his hands[,]” but did not “put his finger inside” her vagina. She stated that he “started to do more things” when she 1 turned 11 years old. For example, one night while M.M. was sleeping in her room, [Petitioner] went naked into her room and pulled down her shorts and 2 underwear. He then touched M.M. with his “private area” and then put it “inside” of M.M.’s “private area.” M.M. stated that [Petitioner] “basically” 3 had “sex with [her]” and had done so more than once. The interviewer asked her to elaborate what she meant by “sex.” M.M. replied that [Petitioner] stuck 4 his “private area into [her] pee private” and “then stuff came out, and it was in [her].” She then explained that the “stuff” was “white” and “creamlike.” 5 The interviewer asked M.M. to describe another time that [Petitioner] had sex with her. M.M. did not describe an incident of penile-vaginal intercourse, 6 but instead an incident where [Petitioner] rubbed his penis on her butt. Afterwards, M.M. stated that [Petitioner] “licked” the inside of her “private 7 area” on multiple occasions. She stated that the last time [Petitioner] touched her inappropriately was on May 27, 2016. 8 M.M.’s mother made a “confrontation call” to [Petitioner], which the police 9 recorded. She told [Petitioner] that M.M. had claimed that he “stuck [his] thing in her thing.” [Petitioner] admitted that he had “touched [M.M.] 10 inappropriately” and that he was “very ashamed.” During the course of their conversation, [Petitioner] stated that he had (1) “licked” M.M.; (2) put his 11 fingers inside M.M.; (3) put his penis against M.M.’s vagina about three times, but did not put it in her vagina; (4) laid M.M. down on a bed after a 12 shower and “licked” her; (5) put his finger in M.M.’s butt four to six times; (6) “licked” M.M. less than ten times; (7) put his fingers in M.M.’s butt or 13 vagina eight times; (8) ejaculated one time while he put his penis against M.M.’s vagina, but not in it; (9) made M.M. rub his penis with her hands 14 sometimes; (10) made M.M. “cum,” usually with his tongue; (11) made M.M. “cum” with this tongue about three weeks ago; and (12) had sexual 15 activity with M.M. 18 to 20 times. 16 [Petitioner] stated that he had committed these acts with M.M. because of his “overwhelming desires,” which he described as an addiction. After the 17 confrontation call, [Petitioner] sent M.M. a text stating, “I’m so sorry for everything I’ve done. I love you so much and I promise you, I will never 18 touch you again. I hope some day you will be able to forgive me.” M.M.’s mother sent [Petitioner] a text stating that she loved him, and [Petitioner] 19 responded, “I don’t know how you can. I hate myself.” 20 [Petitioner] was subsequently indicted for two counts of sexual abuse, seven counts of child molestation, and seven counts of sexual conduct with a minor. 21 Under Arizona Rule of Criminal Procedure 15.1 and Arizona Rule of Evidence (“Rule”) 404, the State disclosed that “[a]ny written or 22 electronically recorded statements of any witnesses” and “[a]ny written or electronically recorded statements of the defendant” may be introduced into 23 evidence. 24 [Petitioner] was tried nearly two years later in February 2018. […] 25 During trial, [Petitioner] requested that the court instruct the jury that sexual interest was an element of the charged offenses. The court denied his request. 26 [Petitioner] moved for a judgment of acquittal, and the court granted [Petitioner’s] motion on two charges for sexual conduct with a minor. After 27 trial, the jury convicted [Petitioner] of the remaining charges. 28 1 (Doc. 7-4 at 66-68)2 During pretrial proceedings through sentencing, Petitioner was 2 represented by counsel Omer Ramiro Gurion and Joey Hamby (collectively, “trial 3 counsel”). (Doc.

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 James Morphis, No. CV-23-02589-PHX-KML (DMF)

10 Petitioner,

11 v. REPORT AND RECOMMENDATION

12 Ryan Thornell, et al.,

26 2 The appellate court’s stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas 27 proceedings in federal courts, the factual findings of state courts are presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument 28 that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness). 1 On August 8, 2019, the Arizona Court of Appeals affirmed Petitioner’s convictions 2 and sentences. (Id. at 65-74) In doing so, the court of appeals determined that the trial court 3 had not erred in admitting M.M.’s recorded interview, M.M.’s interview statements, or the 4 confrontation call with M.M.’s mother; sufficient corpus delicti existed to use Petitioner’s 5 statements as a basis for his convictions; the trial court had not erred in instructing the jury 6 on concealment; and the trial court did not unconstitutionally shift the burden of proof 7 regarding sexual interest. (Id.) As for Petitioner’s argument regarding the constitutionality 8 of the trial court’s failure to instruct jurors that sexual interest was an element of the 9 charged offenses, the court of appeals stated: 10 Our supreme court has held that sexual interest is not an element of child molestation or sexual abuse. [State v. Holle, 240 Ariz. 300], 304 ¶ 19 11 [(2016)]. We are bound by that decision. State v. Smyers, 207 Ariz. 314, 318 ¶ 15 (2004). As for the other charges, sexual interest is not an element of 12 sexual conduct with a minor. A.R.S. § 13-1405(A). 13 Even if sexual interest were an element of the charged offenses, no reasonable juror could have concluded that the offenses were not committed 14 with sexual interest. [Petitioner] admitted he sexually touched M.M. numerous times, and he explained that the sexual contact was due to an 15 overwhelming desire that resembled an addiction. Any possible error would have been harmless. 16 (Id. at 73-74) 17 Petitioner filed a petition for review in the Arizona Supreme Court. (Id. at 76) On 18 March 31, 2020, the Arizona Supreme Court denied review. (Id.) On April 28, 2020, the 19 court of appeals issued its mandate. (Id. at 76-77) 20 The record does not reflect that Petitioner filed a petition for a writ of certiorari in 21 the United States Supreme Court. (See also Doc. 1 at 2) 22 C. Petitioner’s Post-Conviction Relief (“PCR”) Proceedings 23 On May 11, 2020, through retained counsel Michael D. Kimerer (“PCR counsel”), 24 Petitioner filed a PCR notice in the superior court. (Id. at 79-85) Petitioner asserted that the 25 sentence imposed was unauthorized; that Petitioner was or would be in custody following 26 the expiration of sentence; that newly discovered material facts existed that probably would 27 have changed the judgment or sentence; that there was a significant change in the law that, 28 if applicable to Petitioner’s case, would probably overturn Petitioner’s conviction or 1 sentence; and that the facts underlying the claim would be sufficient to establish by clear 2 and convincing evidence that no reasonable fact-finder would find Petitioner guilty of the 3 offense beyond a reasonable doubt. (Id. at 83-84) 4 On January 7, 2021, through PCR counsel, Petitioner filed a PCR petition in the 5 superior court. (Id. at 87-94) Petitioner asserted that trial counsel was ineffective for failing 6 to seek dismissal of the indictment based on date ranges in the indictment and that trial as 7 well as appellate counsel provided ineffective assistance by failing to challenge Petitioner’s 8 sentence as to count 9 (molestation of a child) as violative of double jeopardy. (Id. at 128- 9 37; see also id. at 88-89) The state filed a response and conceded that Petitioner’s 10 conviction for count 9 of the indictment violated the Double Jeopardy Clause. (Id. at 96- 11 112) Petitioner filed a reply. (Id. at 114-25) 12 On October 12, 2022,3 following an evidentiary hearing, the superior court granted 13 Petitioner’s PCR petition insofar as Petitioner argued that trial and appellate counsel 14 rendered ineffective assistance by failing to challenge Petitioner’s conviction and sentence 15 as to count 9. (Id. at 137) The superior court dismissed Petitioner’s conviction and sentence 16 in count 9 but denied the remainder of Petitioner’s PCR petition. (Id.) On November 2, 17 2022, the superior court granted Petitioner until December 12, 2022, to file a petition for 18 review. (Id. at 139) The record does not reflect that Petitioner filed a petition for review in 19 the Arizona Court of Appeals.4 20 II. PETITIONER’S HABEAS CLAIM 21 In his December 12, 2023, Petition, Petitioner raises one ground for relief (Ground 22 One). (Doc. 1) Petitioner asserts that A.R.S. § 13-1407(E) placed the burden on Petitioner 23 to show lack of sexual intent as an affirmative defense to the charges of child molestation 24 and to the charges of sexual conduct with a minor in violation of Petitioner’s due process 25 rights under the Sixth and Fourteenth Amendments of the United States Constitution.

26 3 The filing date is the operative date of the superior court’s ruling. See Ariz. R. Crim. P. 1.10(c) (see former Ariz. R. Crim. P. 1.3(c)). 27 4 Further, the electronic court docket system for the Maricopa County Superior Court in 28 case number CR2016-126427-001 does not reflect a petition for review: see https://perma.cc/6G9M-DBLT (last accessed July 30, 2024). 1 Petitioner also asserts that:

2 Presently, an appeal to the Ninth Circuit is pending on this precise issue in 3 Bieganzki v. Shinn, No. CV-21-01684-PHX-DWL, 2023 U.S. Dist. LEXIS 132440, 2023 WL 4862681 (July 31, 2023) (granting certificate of 4 appealability). The court in Bieganski stated that the district court judge in 5 May [v. Ryan, 245 F.Supp.3d 1145 (2017)] conducted the wrong analysis. It appears that the Ninth Circuit will determine whether the statute was 6 unconstitutional before it was changed. 7 It might be appropriate for this Court to stay its decision taking up the sexual 8 intent issue concerning both molestation of a child and sexual conduct with 9 a child pending the Ninth Circuit Court of Appeals’ decision in Bieganski. 10 (Id. at 8)5 11 In their Answer to the Petition, Respondents argue that Ground One of the Petition 12 fails on the merits and request that the Petition be denied. (Doc. 7) Due to the absence of 13 merit to Petitioner’s claim, Respondents also request that the Court decline to stay these 14 proceedings pending appeal in Bieganski v. Shinn, No. CV-21-01684-PHX-DWL, 2023 15 U.S. Dist. LEXIS 132440, 2023 WL 4862681 (July 31, 2023), and that the Court deny a 16 certificate of appealability. (Id.) 17 On May 28, 2024, Petitioner replied in support of his Petition’s claim (Doc. 15), 18 although Petitioner combined the reply with a motion to amend/supplement his Petition 19 (Id.). The Court denied without prejudice the motion to amend/supplement portion of the 20 reply filing as procedurally inappropriate. (Doc. 19) 21 On June 11, 2024, Petitioner filed a “Motion for Leave to Amend Petition for a 22 Write [sic] of Habeas Corpus” (“motion to amend”), which was docketed as a motion to 23 supplement. (Doc. 17) On July 9, 2024, Respondents filed a response to Petitioner’s motion 24 to amend. (Doc. 22) Petitioner filed a reply in support of his motion to amend. (Doc. 26) 25 Petitioner’s motion to amend was addressed by separate Report and Recommendation 26 recommending denial. (Doc. 27) 27

28 5 On March 27, 2020, in May v. Ryan, 807 F.App’x 632 (9th Cir. 2020), the Ninth Circuit reversed May v. Ryan, 245 F.Supp.3d 1145 (2017). 1 III. MERITS 2 A. 28 U.S.C. § 2254 – Legal Standard of Review 3 On habeas review of claims adjudicated on the merits in a state court proceeding, 4 this Court can only grant relief if Petitioner demonstrates that the state court’s adjudication 5 of the claim either “(1) resulted in a decision that was contrary to, or involved an 6 unreasonable application of, clearly established Federal law, as determined by the Supreme 7 Court of the United States; or (2) resulted in a decision that was based on an unreasonable 8 determination of the facts in light of the evidence presented in the State court proceeding.” 9 28 U.S.C. § 2254(d). This is a “‘highly deferential standard for evaluating state-court 10 rulings’ […] which demands that state-court decisions be given the benefit of the doubt.” 11 Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 12 U.S. 320, 333 n.7 (1997)). A federal court “look[s] to the last reasoned state court decision” 13 to make a determination on a claim pursuant to Section 2254(d). White v. Ryan, 895 F.3d 14 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers, 584 U.S. 122, 125-126 (2018)). 15 Under the “unreasonable application” prong of Section 2254(d)(1), a federal habeas 16 court may grant relief where a state court “identifies the correct governing legal rule from 17 [the Supreme] Court’s cases but unreasonably applies it to the facts of the particular ... 18 case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new 19 context where it should not apply or unreasonably refuses to extend that principle to a new 20 context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). For a federal 21 court to find a state court’s application of Supreme Court precedent “unreasonable” under 22 Section 2254(d)(1), the petitioner must show that the state court’s decision was not merely 23 incorrect or erroneous, but “objectively unreasonable.” Id. at 409. 24 To make a determination pursuant to Section 2254(d)(1), the Court first identifies 25 the “clearly established Federal law,” if any, that governs the sufficiency of the claims on 26 habeas review. “Clearly established” federal law consists of the holdings of the United 27 States Supreme Court which existed at the time the petitioner’s state court conviction 28 became final. Id. at 412. The Supreme Court has emphasized that “an unreasonable 1 application of federal law is different from an incorrect or erroneous application of federal 2 law.” Id. (emphasis in original). Under the Anti-Terrorism and Effective Death Penalty Act 3 (“AEDPA”), “[a] state court’s determination that a claim lacks merit precludes federal 4 habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state 5 court’s decision.” Richter, 562 U.S. at 101. Accordingly, to obtain habeas relief from this 6 Court, Petitioner “must show that the state court’s ruling on the claim being presented in 7 federal court was so lacking in justification that there was an error well understood and 8 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 9 103. 10 Regarding Section 2254(d)(2), a state court decision “based on a factual 11 determination will not be overturned on factual grounds unless objectively unreasonable in 12 light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 13 U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable merely 14 because the federal habeas court would have reached a different conclusion in the first 15 instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained, to 16 find that a factual determination is unreasonable under Section 2254(d)(2), the court must 17 be “convinced that an appellate panel, applying the normal standards of appellate review, 18 could not reasonably conclude that the finding is supported by the record.” Taylor v. 19 Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds by Murray v. 20 Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). “This is a daunting standard—one that will 21 be satisfied in relatively few cases.” Id. 22 The petitioner bears the burden of rebutting the state court’s factual findings “by 23 clear and convincing evidence.” Section 2254(e)(1). The Supreme Court has not defined 24 the precise relationship between Section 2254(d)(2) and Section 2254(e)(1) but has 25 clarified “that a state-court factual determination is not unreasonable merely because the 26 federal habeas court would have reached a different conclusion in the first instance.” See 27 Burt v. Titlow, 571 U.S. 12, 18 (2013) (citing Wood, 558 U.S. at 293, 301). 28 / / / 1 B. Ground One Fails on the Merits 2 In Ground One of the Petition, which is the only claim in the Petition, Petitioner 3 asserts that A.R.S. § 13-1407(E) denied Petitioner due process under the Sixth and 4 Fourteenth Amendments by placing the burden on a defendant to show lack of sexual intent 5 as an affirmative defense to the crime of child molestation and the crime of sexual conduct 6 with a minor.6 (Doc. 1 at 5-8) Petitioner asserts that if a statute is unconstitutional, a 7 defendant’s prosecution is void. (Doc. 1 at 6) (citing Ex parte Royall, 117 U.S. 241, 248 8 (1886), and Ex parte Yarbrough, 110 U.S. 651, 654 (1884).) Petitioner also asserts that 9 settled United States Supreme Court law holds that “‘it is normally within the power of the 10 State to regulate procedures under which its laws are carried out, including the burden of 11 producing evidence and the burden of persuasion … unless it offends some principle of 12 justice so rooted in the traditions and conscience of our people as to be ranked as 13 fundamental.’ Patterson v. New York, 432 U.S. 197, 201-02 (1977)[.]” (Id. at 7) (internal 14 citations omitted). Petitioner argues that because lack of sexual motivation was an 15 affirmative defense for child molestation pursuant to A.R.S. § 13-1407(E) at the time of 16 the events, trial, convictions, and sentences imposed upon Petitioner, sexual intent was 17 presumed instead of being an element of proof placed on the prosecution. (Id. at 7) Citing 18 State v. Holle, 240 Ariz. 300 (2016), Petitioner asserts that at the time Petitioner was tried, 19 convicted, and sentenced and before the Arizona legislature removed the affirmative 20 defense in A.R.S. § 13-1407(E), “the Arizona Supreme Court had firmly decided that ‘lack 21 of sexual motivation’ was a Constitutional affirmative defense, and that presuming sexual 22 intent, rather than including it as an element, did not offend the United States Constitution, 23 even though the defendant was required to prove lack of sexual intent by a preponderance 24 of the evidence.” (Id.) Petitioner also asserts that the removal of the affirmative defense by 25 the Arizona legislature, effective August 3, 2018, created a strict liability offense. (Id. at 8) 26 Petitioner represents that an appeal to the Ninth Circuit is pending in Bieganski v. Shinn,

27 6 Petitioner at times asserts in his Petition and supporting reply that A.R.S. § 13-1407(E) placed the burden on a defendant to show an affirmative defense to sexual conduct with a 28 minor. However, A.R.S. § 13-1407(E) (2008) only provided an affirmative defense to child molestation or sexual abuse of a minor. 1 No. CV-21-01684-PHX-DWL, 2023 WL 4862681 (D. Ariz. July 31, 2023), regarding 2 whether A.R.S. § 13-1407(E) was unconstitutional prior to the change in statutory 3 language. (Id.) Petitioner suggests that a stay of these proceedings pending such appeal 4 may be appropriate. (Id.) 5 Respondents assert that in 2016, when Petitioner committed the crimes of 6 conviction, a lack of sexual interest was a defense to A.R.S. § 13-1404 (sexual abuse) and 7 A.R.S. § 13-1410 (child molestation). (Doc. 7 at 10) Respondents assert that Holle, upon 8 which the court of appeals relied in affirming Petitioner’s convictions and sentences, held 9 that “due process did not prohibit the State from requiring a defendant to prove a lack of 10 sexual motivation as an affirmative defense to child molestation and sexual abuse[.]” (Id. 11 at 11-12) Respondents argue that because none of Petitioner’s cited cases provide that a 12 state may not place the burden of proving a defense on a criminal defendant, Petitioner has 13 not met his burden of showing that the court of appeals’ decision was contrary to or an 14 unreasonable application of U.S. Supreme Court precedent. (Id. at 12-13) Further, 15 Respondents argue that the court of appeals’ determination that any possible error was 16 harmless was not unreasonable. (Id. at 13-15) Respondents assert that harmless error 17 analysis applies to burden-shifting issues and that any error in burden-shifting was 18 harmless due to the “overwhelming evidence” establishing that Petitioner’s actions were 19 motivated by sexual interest. (Id. at 14-15) 20 In reply, Petitioner asserts that he “does not dispute that the facts underlying his 21 convictions indicate sexual intent.” (Doc. 15 at 3) Nevertheless, Petitioner argues that 22 A.R.S. § 13-1407(E) and Holle unconstitutionally shifted the burden of proof for an 23 essential element of sexual abuse and molestation of a child to a defendant. (Id. at 11-20) 24 Petitioner asserts that mental state is inherent in the offense of sexual conduct with a minor, 25 yet a defendant was required to negate such a mental state. (Id. at 11-12) Petitioner asserts 26 that at the time of his trial, convictions, and sentencing, A.R.S. § 13-1407(E) provided a 27 defense to prosecution for sexual abuse or molestation, namely that a defendant was not 28 motivated by a sexual interest. (Id. at 13) Petitioner argues that the state must prove beyond 1 a reasonable doubt every fact necessary to constitute the offense with which a defendant is 2 charged, and that a defendant’s intent “is perhaps as close as one might hope to come to a 3 core criminal offense element.” (Id. at 13-15) (citing Apprendi v. New Jersey, 530 U.S. 4 466, 493 (2000), and Smith v. United States, 568 U.S. 101, 110 (2013)). Petitioner argues 5 that a defendant’s intent in committing a crime is “so central to the definition of a crime 6 that the burden of proof as to those elements may not be reallocated to the defendant under 7 the pretense of labeling it an affirmative defense.” (Id. at 14) By shifting the burden of 8 proof regarding lack of sexual motive to Petitioner, Petitioner asserts that Arizona’s statutes 9 denied his due process right to a fair trial. (Id. at 15) Petitioner also asserts that the Arizona 10 Supreme Court’s statement in Holle that “treating lack of sexual motivation under § 13- 11 1407(E) as an affirmative defense which a defendant must prove does not offend due 12 process” was dicta. (Id. at 18-19) Petitioner asserts that Holle is contrary to Mullaney, 421 13 U.S. at 684, and Patterson, 432 U.S. at 215, which held that a state must prove every 14 element of an offense beyond a reasonable doubt and may not shift the burden of proof to 15 the defendant to prove intent or when an affirmative defense negates an element of the 16 crime. (Id. at 18-20) As such, Petitioner argues that the court of appeals’ decision in his 17 direct appeal, which relied on Holle, is not entitled to deference. (Id. at 20) 18 Petitioner argues that the court of appeals did not address the merits of Petitioner’s 19 burden-shifting claim, such that this Court should review his Ground One claim de novo. 20 (Doc. 15 at 18-19) However, the court of appeals made an express ruling on the merits of 21 Petitioner’s burden shifting due process claim rather than rejecting Petitioner’s Ground 22 One claim on a procedural basis. See Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 23 2004) (state court has adjudicated on the merits when it decides constitutional claim on 24 substantive basis, rather than on procedural rule); Delgado v. Lewis, 223 F.3d 976, 982 (9th 25 Cir. 2000) (federal review not de novo even where state court does not provide reasoning). 26 In providing the last reasoned decision on the merits of the Petition’s claim during 27 Petitioner’s direct appeal of his convictions and sentences, the Arizona Court of Appeals 28 stated: 1 Our supreme court has held that sexual interest is not an element of child molestation or sexual abuse. [State v. Holle, 240 Ariz. 300], 304 ¶ 19 2 [(2016)]. We are bound by that decision. State v. Smyers, 207 Ariz. 314, 318 ¶ 15 (2004). As for the other charges, sexual interest is not an element of 3 sexual conduct with a minor. A.R.S. § 13-1405(A). 4 Even if sexual interest were an element of the charged offenses, no reasonable juror could have concluded that the offenses were not committed 5 with sexual interest. [Petitioner] admitted he sexually touched M.M. numerous times, and he explained that the sexual contact was due to an 6 overwhelming desire that resembled an addiction. Any possible error would have been harmless. 7 (Doc. 7-4 at 73-74) 8 To demonstrate that relief is warranted on the merits, Petitioner must demonstrate 9 that the court of appeals’ decision upholding his convictions was an objectively 10 unreasonable application of clearly established federal law or resulted in a decision that 11 was based on an unreasonable determination of the facts in light of the evidence presented 12 in the state court proceeding. Williams, 529 U.S. at 409; 28 U.S.C. § 2254(d). Petitioner 13 has not done so. 14 On February 27, 2018, Petitioner was convicted of crimes pursuant to A.R.S. §§ 13- 15 1404(A) (sexual abuse), 13-1405(A) (sexual conduct with a minor), and 13-1410(A) 16 (molestation of a child) based on 2016 events. (Doc. 7-1 at 3-8, 1060-1078) Petitioner was 17 sentenced on March 19, 2018. (Id. at 1103) At the time of the events, trial, convictions, and 18 sentencing, Section 13-1404(A) of the Arizona Revised Statutes provided that a defendant 19 commits sexual abuse by “intentionally or knowingly engaging in sexual contact with any 20 person who is fifteen or more years of age without consent of that person or with any person 21 who is under fifteen years of age if the sexual contact involves only the female breast.” 22 Further, Section 13-1405(A) provided that a defendant “commits sexual conduct with a 23 minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact 24 with any person who is under eighteen years of age.” In addition, Section 13-1410(A) 25 provided that a defendant commits child molestation by “intentionally or knowingly 26 engaging in or causing a person to engage in sexual contact, except sexual contact with the 27 female breast, with a child who is under fifteen years of age.” 28 At the time of the events at issue, Petitioner’s trial, Petitioner’s convictions, and 1 Petitioner’s sentencing, A.R.S. § 13-1407(E) (2008) provided that “[i]t is a defense to a 2 prosecution pursuant to § 13-1404 or 13-1410 that the defendant was not motivated by a 3 sexual interest.” See also Holle, 240 Ariz. at 301. A.R.S. § 13-1407(E) (2008) did not 4 provide a defense of lack of sexual interest for sexual conduct with a minor pursuant to 5 A.R.S. § 13-1405. 6 In Holle, the Arizona Supreme Court expressly held that the state was not required 7 to prove sexual interest as an element of sexual abuse or child molestation and a defendant 8 was required to prove the affirmative defense of lack of sexual interest by a preponderance 9 of the evidence. 240 Ariz. at 301. In Holle, the Arizona Supreme Court determined that 10 A.R.S. §§ 13-1404 and 13-1410 were clear and unambiguous in that both statutes defined 11 all the elements of sexual abuse and child molestation without mentioning, implying, or 12 requiring sexual motivation. Id. at 303. Instead, each statute required that a defendant 13 “intentionally or knowingly” engaged in sexual contact. Id. at 302-03. Because A.R.S. § 14 13-1407(E) (2008) clearly referred to lack of sexual motivation as a defense and sexual 15 intent was not an element of sexual abuse or child molestation, the state was required to 16 prove that a defendant intentionally or knowingly engaged in sexual contact as defined in 17 A.R.S. § 13-1401(A)(3), but was not required to prove sexual interest or motivation. Id. at 18 303-04. The Arizona Supreme Court concluded in Holle that “it does not offend due 19 process to require the defendant to prove by a preponderance of the evidence that, despite 20 proof of every element of the offense, he is nevertheless blameless because of an 21 affirmative defense” such as lack of sexual motivation under A.R.S. § 13-1407(E) (2008). 22 Id. at 308. 23 Effective August 3, 2018, the Arizona state legislature removed the language in 24 A.R.S. § 13-1407(E) (2008) that provided an affirmative defense to A.R.S. §§ 13-1404 and 25 13-1410 for lack of sexual interest. 2018 Ariz. Legis. Serv. Ch. 266 (H.B. 2283); see also 26 A.R.S. § 13-1407 (2018). At the same time, the Arizona state legislature amended the 27 definition of sexual contact in A.R.S. § 13-1401(A)(3) to exclude “direct or indirect 28 touching or manipulating during caretaking responsibilities or interactions with a minor or 1 vulnerable adult that an objective, reasonable person would recognize as normal and 2 reasonable under the circumstances.” Id. 3 The United States Supreme Court has found that states have wide authority to define 4 an offense and determine the required scienter for that offense. See Martin v. Ohio, 480 5 U.S. 228, 232-33 (1987); Lambert v. California, 355 U.S. 225, 228 (1957). The state must 6 prove beyond a reasonable doubt “every fact necessary to constitute the crime with which 7 [a defendant] is charged[,]” In re Winship, 397 U.S. 358, 364, and is not required to prove 8 “the nonexistence of all affirmative defenses[.]” Patterson, 432 U.S. at 210-11. Where an 9 affirmative defense does not negate an element of the offense, the state may shift the burden 10 of proof to a defendant. Smith, 568 U.S. at 110 (allocating burden to defendant to show 11 affirmative defense of withdrawal did not negate element of crime and did not violate due 12 process). If an affirmative defense “‘excuse[s] conduct that would otherwise be 13 punishable,’ but ‘does not controvert any of the elements of the offense itself,’ the 14 Government has no constitutional duty to overcome the defense beyond a reasonable 15 doubt.” Id. (quoting Dixon v. United States, 548 U.S. 1, 6 (2006)). Moreover, a state court 16 does not unreasonably apply clearly established federal law where the state court 17 “decline[s] to apply a specific legal rule that has not been squarely established by th[e] 18 United States Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 101 (2011). 19 In denying Petitioner’s claim regarding the burden-shifting to prove sexual interest, 20 the Arizona Court of Appeals relied on Holle. The Arizona Court of Appeals was bound to 21 follow the Arizona Supreme Court’s decision in Holle, which found that requiring a 22 defendant to prove a defense of lack of sexual interest did not violate due process. See, e.g., 23 State v. Smyers, 207 Ariz. 314, 318 n.4 (2004) (courts are bound by supreme court decisions 24 and “do not have the authority to modify or disregard [its] rulings”). This Court has 25 consistently determined that the Arizona Court of Appeals was bound by Holle. See, e.g., 26 Bieganski v. Shinn, 2022 WL 20470143, at *3-6 (D. Ariz. Nov. 14, 2022) (report and 27 recommendation adopted in part and overruled on other grounds, 2023 WL 4862681, at 28 *12 (D. Ariz. July 31, 2023)); Wentworth v. Shinn, 2020 WL 7248460 (D. Ariz. Apr. 29, 1 2020) (report and recommendation adopted, 2020 WL 7246436 (D. Ariz. Dec. 9, 2020)). 2 Further, on March 27, 2020, in May v. Ryan, 807 F.App’x 632 (9th Cir. 2020), the Ninth 3 Circuit reversed May v. Ryan, 245 F.Supp.3d 1145 (2017). Even if the Ninth Circuit had 4 not reversed the district court’s May decision, the district court’s May decision was never 5 clearly established federal law that the Arizona state courts were required to follow. See 6 Williams, 529 U.S. at 412 (clearly established federal law is a holding from the U.S. 7 Supreme Court at the time a petitioner’s convictions became final). 8 Since the Ninth Circuit reversed this Court’s decision in May, neither the Ninth 9 Circuit nor the United States Supreme Court has issued a decision finding unconstitutional 10 Arizona’s statutory structure and language at issue here. None of Petitioner’s cited cases 11 in his Petition and reply hold that a state violates a defendant’s due process rights by 12 allocating the burden of proving a defense such as sexual interest to a criminal defendant. 13 See Patterson, 432 U.S. at 206 (no violation of due process where defendant was required 14 to prove affirmative defense of extreme emotional disturbance by preponderance of the 15 evidence); Smith, 568 U.S. at 111 (withdrawal defense to conspiracy did not contradict 16 element of the offense but rather “presupposes” that the defendant committed the offense); 17 Mullaney, 421 U.S. at 686-87 (due process deprived where defendant bore burden to prove 18 heat of passion defense, which would negate malice aforethought, an essential element of 19 murder statute). Moreover, Petitioner does not demonstrate that the United States Supreme 20 Court has established a specific rule that the affirmative defense structure here violates due 21 process. See Harrington, 562 U.S. at 101. 22 Although Petitioner is correct that a state may not shift the burden of proof for intent 23 or where an affirmative defense negates an element of the crime, sexual interest is not the 24 requisite intent for A.R.S. §§ 13-1404, 13-1405, or 13-1410, nor does lack of sexual interest 25 or motivation negate an element of A.R.S. §§ 13-1404, 13-1405, or 13-1410. See Holle, 26 240 Ariz. at 301-04. Petitioner does not demonstrate that sexual interest was an inherent 27 element of sexual abuse or child molestation, nor that the affirmative defense of sexual 28 interest negated any element of any of the crimes of conviction. Petitioner argues that 1 sexual interest is an essential element of child molestation because sexual interest separates 2 innocent conduct from criminalized conduct under A.R.S. § 13-1410(A). (Doc. 15 at 14- 3 15) However, A.R.S. § 13-1410(A) expressly provided that a defendant commits 4 molestation by “intentionally or knowingly engaging in” prohibited sexual conduct. 5 Similarly, A.R.S. §§ 13-1404(A) and 13-1405(A) provided that a defendant commits 6 sexual abuse or sexual conduct with a minor by intentionally or knowingly engaging in the 7 prohibited conduct. Sexual interest was not an element of A.R.S. §§ 13-1404(A), 13- 8 1405(A), or 13-1410(A), and each statute required only knowing or intentional conduct. 9 Arizona had wide latitude to determine the required scienter for A.R.S. §§ 13-1404, 13- 10 1405, and 13-1410. Martin, 480 U.S. at 232-33. In sum, Petitioner has not demonstrated 11 that the Arizona Court of Appeals unreasonably applied United State Supreme Court 12 precedent in relying on Holle and finding that Petitioner’s due process rights were not 13 violated. 14 Further, even if sexual interest was properly an element of the offenses for which 15 Petitioner was convicted, Petitioner has not demonstrated that the Arizona Court of 16 Appeals’ decision regarding harmless error was contrary to or an unreasonable application 17 of clearly established federal law, or that the court of appeals “applied harmless-error 18 review in an objectively unreasonable manner.” Inthavong v. Lamarque, 420 F.3d 1055, 19 1058-59 (9th Cir. 2005); see also Fry v. Pliler, 551 U.S. 112, 119 (2007) (citing Mitchell 20 v. Esparza, 540 U.S. 12 (2003)) (where state court finds constitutional violation was 21 harmless, no habeas relief unless harmlessness determination was unreasonable). As the 22 court of appeals recognized, Petitioner made several admissions as to sexual contact with 23 M.M. during a confrontation call with M.M.’s mother, and Petitioner expressly stated that 24 the sexual contact leading to the charges against him was due to “overwhelming desires” 25 that Petitioner “described as an addiction.” (See Doc. 7-4 at 67) Petitioner “does not dispute 26 that the facts underlying his convictions indicate sexual intent.” (Doc. 15 at 3) The court 27 of appeals’ harmlessness finding was not unreasonable in light of Petitioner’s statements 28 about the events leading to the charges against him. See Rose v. Clark, 478 U.S. 570, 579- 1 82 (1986) (where inference of intent was overpowering, error regarding burden-shifting 2 was harmless); United States v. Cherer, 513 F.3d 1150, 1155 (9th Cir. 2008) (omission of 3 element of the crime—state of mind—was harmless where evidence supported required 4 state of mind). 5 Petitioner has not demonstrated that the court of appeals’ decision regarding his 6 Ground One claim was contrary to or an unreasonable application of clearly established 7 federal law or resulted in a decision that was based on an unreasonable determination of 8 the facts in light of the evidence presented in the state court proceeding. Accordingly, 9 Petitioner’s Ground One claim fails on the merits. Given the state court record and the 10 analysis above, the Court rejects Petitioner’s suggestion that a stay of this matter may be 11 appropriate. 12 IV. CONCLUSION 13 For the reasons set forth above, Petitioner’s Ground One claim fails on the merits. 14 Therefore, it is recommended that the Petition be dismissed with prejudice and that the 15 Clerk of Court be directed to terminate this matter. 16 Assuming the recommendations herein are followed in the District Judge’s 17 judgment, the undersigned recommends that a certificate of appealability be denied 18 because jurists of reason would not find the Court’s rejection on constitutional grounds of 19 Petition Ground One to be “debatable or wrong.” 28 U.S.C. § 2253(c)(2); Slack v. 20 McDaniel, 529 U.S. 473, 484 (2000). Here, Petitioner asked the trial court for an instruction 21 that sexual intent was an element of the offense for the state to prove, but unlike in 22 Bieganski where a certificate of appealability was granted, Petitioner did not raise an 23 affirmative defense at trial of lack of sexual interest. (Doc. 7-1 at 896-898) In addition, the 24 Arizona Court of Appeals found on this record that no reasonable juror could have 25 concluded that the offenses were not committed with sexual interest given the abundant 26 evidence of sexual interest as motivation for Petitioner’s acts underlying the convictions. 27 Further, in these habeas proceedings “Petitioner does not dispute that the facts underlying 28 his convictions indicate sexual intent.” (Doc. 17 at 2; Doc. 15 at 3) Petitioner’s legal 1 || argument supporting his habeas claim plainly fails as set forth above. For the reasons stated 2|| in this Report and Recommendation a certificate of appealability is not appropriate in this || matter regarding the Petition claim. Further, for the reasons stated in the Report and 4|| Recommendation regarding Petitioner’s motion to amend (Doc. 17), a certificate of 5 || appealability is not appropriate in this matter regarding denial of Petitioner’s motion to amend (Doc. 17). 7 Accordingly, 8 IT IS THEREFORE RECOMMENDED that the Petition (Doc. 1) be denied with || prejudice and that the Clerk of Court be directed to terminate this matter. 10 IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied || regarding the Petition’s sole claim (Doc. 1) and regarding denial of Petitioner’s motion to amend (Doc. 17). 13 This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court’s 16 || judgment. The parties shall have fourteen days from the date of service of a copy of this 17 || recommendation within which to file specific written objections with the Court. See 28 || U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate || Judge’s Report and Recommendation may result in the acceptance of the Report and 21 || Recommendation by the District Court without further review. See United States v. Reyna- || Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual 23 || determination of the Magistrate Judge may be considered a waiver of a party’s right to || appellate review of the findings of fact in an order or judgment entered pursuant to the 25 || Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. 26 Dated this 27th day of August, 2024. / 27 Lakirer Ul Ting 28 Honorable Deborah M. Fine United States Magistrate Judge