1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Paul Fahring, No. CV-25-03810-PHX-JAT (DMF)
10 Petitioner,
11 v. ORDER
12 Ryan Thornell, et al.,
13 Respondents. 14 15 I. SUMMARY 16 In October 2025, Petitioner Paul Fahring (“Petitioner” and/or “Farhing”) filed a 17 Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody 18 (Non-Death Penalty) (“Petition”) (Doc. 1). This matter is on referral to the undersigned 19 for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 20 of the Local Rules of Civil Procedure (Doc. 7 at 4). 21 This matter is presently before the Court on the “Motion for an order from the court 22 requiring the Respondents to correct the record and furnish the missing materials in their 23 possession pertinent to this case, a Failure to comply with Rule 5(c)” (or “Motion”) (Doc. 24 13) filed by Petitioner. Respondents filed a response to the Motion (“Response”) (Doc. 25 14). Thereafter, Petitioner filed a reply in support of the Motion (“Reply”) (Doc. 15). This 26 matter is also before the Court on the Court’s review of the Petition and associated filings, 27 including exhibits thereto (Docs. 1, 1-1, 1-2, 1-3, 1-4, 1-5, 10, 10-1, 10-2, 16). 28 Upon review of the briefing on Petitioner’s Motion and associated exhibits (Docs. 1 13, 13-1, 14, 15), the briefing on Petitioner’s Petition and associated exhibits (Docs. 1, 1- 2 1, 1-2, 1-3, 1-4, 1-5, 10, 10-1, 10-2, 16), the record in this matter, and applicable law, the 3 Court will deny Petitioner’s “Motion for an order from the court requiring the Respondents 4 to correct the record and furnish the missing materials in their possession pertinent to this 5 case, a Failure to comply with Rule 5(c)” (Doc. 13). 6 Nevertheless, the Court will require Respondents to file a supplemental answer 7 addressing (1) whether Petitioner waived a Ground Two constitutional double jeopardy 8 claim in light of Class v. United States, 583 U.S. 174, 178-85 (2018), United States v. 9 Broce, 488 U.S. 563, 574-76 (1989), Blackledge v. Perry, 417 U.S. 21, 30-31 (1974), and 10 Menna v. New York, 423 U.S. 61, 62 n.2 (1975); and (2) regarding the merits of Petitioner’s 11 Ground Two constitutional double jeopardy claim. 12 II. PROCEDURAL POSTURE 13 Petitioner initiated these Section 2254 habeas proceedings in October 2025 14 regarding his convictions and sentences in Pinal County Superior Court case number 15 CR201402338 (Doc. 1). The Court’s Screening and Service Order regarding the Petition 16 recounts:
17 In his Petition, Petitioner names Ryan Thornell as Respondent and the 18 Arizona Attorney General as an Additional Respondent. Petitioner raises two grounds for relief. 19
20 In Ground One, Petitioner claims his Fifth, Sixth, and Fourteenth Amendment rights were violated because his conviction and sentence are 21 illegal, there is no factual basis to support his convictions and sentence, and 22 he is actually innocent. In Ground Two, he asserts his Fifth, Sixth, and Fourteenth Amendment rights were violated because his conviction and 23 sentence are illegally multiplicitous, he is actually innocent, and his 24 conviction violates the prohibition against double jeopardy.
25 Petitioner contends he presented these issues to the Arizona Court of Appeals 26 and Arizona Supreme Court. The Court will require Respondents to answer the Petition. 28 U.S.C. § 2254(a). 27 (Doc. 7 at 1-2). 28 Petitioner submitted numerous attachments with his Petition (see Doc. 1 at 12-37, 1 38; Doc. 1-1 at 2-3): a memorandum in support of his Petition (Doc. 1 at 12-37); a motion 2 requesting an evidentiary hearing (Id. at 38); the September 30, 2014, notice of supervening 3 indictment notifying Petitioner that he had been indicted on ten counts of sexual 4 exploitation of a minor (Doc. 1-1 at 4-6); the signed plea agreement under which Petitioner 5 agreed to plead guilty to one count of sexual exploitation of a minor and two counts of 6 attempted sexual exploitation of a minor (Id. at 7-10); the transcript from Petitioner’s 7 sentencing proceedings in the Pinal County Superior Court (Id. at 11-19); the Pinal County 8 Superior Court’s order extending Petitioner’s time to file a Rule 32 petition to December 9 18, 2023 (Id. at 20-21); Petitioner’s pro per post-conviction relief (“PCR”) petition filed in 10 the Pinal County Superior Court (Id. at 22-44); the state’s response to Petitioner’s PCR 11 petition (Id. at 45-50; Doc. 1-2 at 1-5); Petitioner’s reply in support of his PCR petition 12 (Doc. 1-2 at 6-18); Petitioner’s June 1, 2024, “Motion for Emergency Injunction” filed 13 with the Arizona Supreme Court alleging that the state was withholding documents from 14 Petitioner and asking the supreme court to order state officials to send various documents 15 to Petitioner (Id. at 19-27); the Pinal County Superior Court’s order denying Petitioner’s 16 PCR petition (Id. at 28-29); Petitioner’s amended petition for review filed with the Arizona 17 Court of Appeals on July 15, 2024 (Id. at 30-45); the Arizona Supreme Court’s order 18 directing the Pinal County Clerk of Court to file a certificate of service affirming that 19 pertinent documents were sent to Petitioner and denying as moot Petitioner’s “Motion for 20 Emergency Injunction” (Id. at 46-49); Petitioner’s “Request for Findings of Fact and 21 Conclusions of Law” asking the Pinal County Superior Court to explain its decision 22 denying Petitioner’s PCR petition (Id. at 50-52); the Pinal County Superior Court’s order 23 granting Petitioner an extension of time to file a petition for review with the Arizona Court 24 of Appeals and denying Petitioner’s request for clarification (Doc. 1-3 at 1-2); the state’s 25 response to Petitioner’s petition for review (Id. at 3-21); Petitioner’s reply in support of his 26 petition for review (Id. at 22-35); the Arizona Court of Appeals’ December 4, 2024, 27 memorandum decision granting review but denying relief on Petitioner’s petition for 28 review (Id. at 36-39); Petitioner’s “Request for Findings of Fact and Conclusions of Law” 1 asking the Arizona Court of Appeals to explain its decision denying relief on Petitioner’s 2 petition for review (Id. at 40-41); the Arizona Court of Appeals’ order denying Petitioner’s 3 “Request for Findings of Fact and Conclusions of Law” (Id. at 42-43); Petitioner’s motion 4 for reconsideration asking the Arizona Court of Appeals to reconsider its December 4, 5 2024, memorandum decision granting review but denying relief (Id. at 44-50; Doc. 1-4 at 6 1-11); the Arizona Court of Appeals’ order denying Petitioner’s motion for reconsideration 7 (Doc. 1-4 at 12-13); Petitioner’s “Application for Issuance of Writ Under Original 8 Jurisdiction Pursuant to ARS § 13-4037(A)(1)” asking the Arizona Supreme Court to 9 “correct an illegal sentence issued in CR201402338” (Id. at 14-42); the Arizona Supreme 10 Court’s order dismissing Petitioner’s “Application for Issuance of Writ Under Original 11 Jurisdiction Pursuant to ARS § 13-4037(A)(1)” (Id. at 43-46); the Arizona Supreme 12 Court’s order denying Petitioner’s motion asking the court to reconsider its order 13 dismissing Petitioner’s “Application for Issuance of Writ Under Original Jurisdiction 14 Pursuant to ARS § 13-4037(A)(1)” (Id. at 47-49); Petitioner’s “Motion to Correct the 15 Order” asking the Arizona Supreme Court to correct its order denying Petitioner’s 16 “Application for Issuance of Writ Under Original Jurisdiction Pursuant to ARS § 13- 17 4037(A)(1)” (Id. at 50; Doc. 1-5 at 1-3); the Arizona Supreme Court’s order taking no 18 action on Petitioner’s “Motion to Correct the Order” and directing the clerk of court to 19 close the file and accept no further filings on the matter (Doc. 1-5 at 4-5); the Arizona Court 20 of Appeals’ order allowing the state to respond to Petitioner’s petition for review no later 21 than September 4, 2024 (Id. at 6-7); a letter reflecting that the Pinal County Clerk of the 22 Superior Court electronically transmitted the record for appeal to the Arizona Court of 23 Appeals (Id. at 8-10); Petitioner’s “Request for Trial Court Record” filed with the Arizona 24 Court of Appeals asking the court of appeals to print out and mail a copy of the record to 25 Petitioner (Id. at 11-14); Petitioner’s “Motion to Compel and Notice of Non-Compliance” 26 asking the Arizona Court of Appeals to order the Pinal County Clerk of the Superior Court 27 to send Petitioner a printed copy of the trial court record (Id. at 15-19); and the Arizona 28 Court of Appeals’ order denying Petitioner’s “Motion to Compel and Notice of Non- 1 Compliance” (Id. at 20-21). 2 On December 1, 2025, Respondents filed an Answer to Petition for Writ of Habeas 3 Corpus (“Answer”) (Doc. 10), in which Respondents concede that the Petition was timely 4 filed (Id. at 4-5). Respondents argue that the Court should deny the Petition and dismiss it 5 with prejudice because Petitioner’s claims are procedurally defaulted without excuse, not 6 cognizable, and/or waived by virtue of Petitioner’s guilty plea (Id. at 5-12). 7 In their Answer, Respondents represent:
8 Pursuant to Rule 5(c) of the Rules Governing § 2254 Cases, Respondents 9 submit the transcript of the change of plea hearing (12/15/15) (Exh. Q) in support of this answer. 10
11 Respondents inform this Court that their file contains the following complete transcripts: pretrial hearing (4/28/15); and sentencing (3/8/16). Respondents 12 are aware of the following additional proceedings that either were not 13 transcribed (or listed in the state trial court docket as having been transcribed) or were transcribed and not in their possession: arraignment (10/3/14); 14 pretrial hearing (11/4/14); pretrial hearing (12/2/14); pretrial hearing 15 (1/20/15); pretrial hearing (2/17/15); pretrial hearing (3/17/15); pretrial hearing (12/8/15); and hearing continuing sentencing (1/19/16). 16 17 Respondents submit copies of documents from the state trial court proceedings that are relevant to this answer as Exhibits A–I, and Q, and from 18 the state appellate court proceedings that are relevant to this answer as Exhibits J–P. 19 (Doc. 10 at 3-4). 20 With the Answer, Respondents attached the following exhibits from the proceedings 21 in the Pinal County Superior Court (see Doc. 10-1 at 1): the September 29, 2014, 22 indictment charging Petitioner with ten counts of sexual exploitation of a minor (Doc. 10- 23 1 at 2-5 (Exhibit A)); the signed plea agreement under which Petitioner agreed to plead 24 guilty to one count of sexual exploitation of a minor and two counts of attempted sexual 25 exploitation of a minor (Id. at 6-9 (Exhibit B)); the minute entry from Petitioner’s 26 sentencing hearing (Id. at 10-15 (Exhibit C)); the notice of no colorable claims filed by 27 Petitioner’s appointed PCR counsel in the Pinal County Superior Court averring that upon 28 1 review of the plea agreement and record counsel found no colorable PCR claims (Id. at 16- 2 27 (Exhibit D)); the Pinal County Superior Court’s order allowing Petitioner to file a pro 3 per PCR petition no later than December 15, 2016 (Id. at 28-29 (Exhibit E)); Petitioner’s 4 pro per PCR petition (Id. at 30-72 (Exhibit F)); the state’s response to Petitioner’s pro per 5 PCR petition (Id. at 73-83 (Exhibit G)); Petitioner’s reply in support of his pro per PCR 6 petition (Id. at 84-96 (Exhibit H)); the Pinal County Superior Court’s order denying 7 Petitioner’s pro per PCR petition (Id. at 97-98 (Exhibit I)); and the transcript from 8 Petitioner’s change of plea hearing held on December 15, 2015 (Doc. 10-2 at 151-214 9 (Exhibit Q)). 10 Respondents also attached with their Answer the following exhibits from the 11 proceedings in the Arizona Court of Appeals (see Doc. 10-2 at 1): Petitioner’s June 13, 12 2024, petition for review asking the Arizona Court of Appeals to review the trial court’s 13 denial of his pro per PCR petition (Doc. 10-2 at 2-103 (Exhibit J)); the state’s response to 14 Petitioner’s petition for review (Id. at 104-122 (Exhibit K)); Petitioner’s reply in support 15 of his petition for review (Id. at 123-136 (Exhibit L)); the Arizona Court of Appeals’ 16 December 4, 2024, memorandum decision granting review but denying relief on 17 Petitioner’s petition for review (Id. at 137-140 (Exhibit M)); the Arizona Court of Appeals’ 18 order denying a motion for reconsideration (Id. at 141-143 (Exhibit N)); the Arizona Court 19 of Appeals’ June 9, 2025, mandate (Id. at 144-147 (Exhibit O)); and the Arizona Court of 20 Appeals’ order denying a motion to correct mandate (Id. at 148-150 (Exhibit P)) 21 This matter is on referral to the undersigned for further proceedings and a report and 22 recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure 23 (Doc. 7 at 4). 24 III. SUMMARY OF PERTINENT STATE COURT PROCEEDINGS 25 Based on the state court record materials from the parties presently before this 26 Court, on September 29, 2014, a Pinal County Superior Court grand jury indicted Petitioner 27 on ten counts of sexual exploitation of a minor (Doc. 10-1 at 3-5). Each of the ten counts 28 in the indictment refers to a different image or video knowingly possessed on September 1 17, 2014 (Id.). For example, Count 1 charged knowing possession of an image labeled 2 “Megan smiles as Dad probes that child ass.jpg”; Count 2 charged knowing possession of 3 an image labeled “Megan opens on bathroom floor.jpg”; and Count 3 charged knowing 4 possession of an image labeled “Megan holds dads cock.jpg” (Id. at 3). 5 On September 30, 2014, which was the day after the indictment was issued, the 6 clerk of the superior court mailed Petitioner a “Notice of Supervening Indictment” 7 notifying that Petitioner had been indicted on ten counts of sexual exploitation of a minor 8 and that his arraignment was set for October 3, 2014 (Doc. 1-1 at 5-6). 9 On December 15, 2025, and with the assistance of counsel, Petitioner entered into 10 a plea agreement under which he agreed to plead guilty to one count of sexual exploitation 11 of a minor and two counts of attempted sexual exploitation of a minor (Doc. 1-1 at 8-10; 12 Doc. 10-1 at 7-9). At the settlement conference preceding the change of plea hearing, the 13 prosecutor informed the court that there were two open plea offers (Doc. 10-2 at 174-75). 14 Under the first offer Petitioner would plead guilty to one count of sexual exploitation of a 15 minor and face imprisonment of 10 to 24 years and also would plead guilty to two counts 16 of attempted sexual exploitation with lifetime probation on both counts (Id. at 174). The 17 second offer was identical to the first offer other than that Petitioner would face 17 years’ 18 imprisonment on the sexual exploitation count (Id. at 175). After further discussion 19 between the court, the prosecutor, Petitioner, and Petitioner’s attorney (see generally id. at 20 157-200), Petitioner agreed to the plea offer with 17 years’ imprisonment on the sexual 21 exploitation count and lifetime probation on two counts of attempted sexual exploitation 22 (Id. at 200-01). 23 After the court gave Petitioner and Petitioner’s attorney time to go over the plea 24 agreement and sign it (Id.), the court began the plea colloquy with Petitioner. Petitioner 25 affirmed that he wanted to plead guilty to “Count 1, Sexual Exploitation of a Minor, a class 26 2 felony, dangerous crime against children. And also to Counts 2 and 3 as amended, 27 Attempted Sexual Exploitation of a Minor, a class -- both class 3 felonies and dangerous 28 crimes against children” (Id. at 201-02). 1 During the plea colloquy, Petitioner stated that he has a Ph.D., that he reads and 2 understands English, and that he took Prozac and Seroquel within the last 24 hours but 3 neither affected his ability to accurately perceive the court proceedings (Id. at 202). 4 Petitioner’s counsel averred that counsel had no cause to be concerned regarding 5 Petitioner’s ability to understand the court proceedings (Id. at 202-03). 6 Additionally, Petitioner confirmed that he placed his initials on the plea agreement 7 next to each paragraph after reading the paragraph and having his attorney explain each 8 paragraph and answer Petitioner’s questions (Id. at 203). Petitioner further stated that he 9 signed the agreement after reading the entire document as well as having his attorney 10 explain the entire document and answer Petitioner’s questions regarding the plea agreement 11 (Id.). Petitioner affirmed that he was not being threatened, forced, or coerced into pleading 12 guilty to the offenses and that he was not promised anything outside of the plea agreement 13 (Id. at 203-04). Petitioner affirmed that he understood the penalties associated with his 14 guilty pleas (Id. at 204-05). In further plea colloquy, the court explained to Petitioner:
15 THE COURT: [I]f you are not a citizen of the United States, pleading guilty 16 or no contest to a crime may affect your immigration status. Admitting guilt may result in deportation, even if the charge is later dismissed. 17
18 Your plea or admission of guilt could result in your deportation or removal, could prevent you from ever being able to get legal status in the United 19 States, or could prevent you from becoming a United States citizen. 20 By pleading guilty you are giving up certain constitutional rights. They are 21 listed in paragraph 11 of your plea agreement.1 I’m going to go over your 22 1 Paragraph 11 of the plea agreement was initialed by Petitioner and states: 23 I understand that I am giving up the following rights by pleading GUILTY: 24 a. My right to a jury trial, including the right to a jury determination of 25 any aggravating sentencing factor(s), including my right to a jury determination of aggravating circumstances beyond a reasonable 26 doubt. I further understand that the court, using a preponderance of evidence standard, may find the existence of aggravating or mitigating 27 circumstances which may impact my sentence or disposition and may use factors under the “catch-all” aggravator as the sole factor(s) 28 for increasing my sentence regardless of whether the State alleged aggravated factors. The court may find the existence of aggravating 1 rights with you at this time.
2 You are giving up your right to remain silent, and your privilege against self- 3 incrimination, and the right to refuse to testify.
4 You’re giving up your right to confront and cross-examine witnesses to 5 testify against you; the right to have a jury determine your innocence or guilt; and have the jury determine any factors which could aggravate your 6 sentence. 7 If you enter into a plea of guilty or no contest, the Court, not the jury, will 8 decide whether aggravating factors exist. You are giving up the right to have 9 subpoenas issued for your witnesses so they can attend your trial and testify on your behalf. 10 11 You are giving up the right to present other evidence on your own behalf, and the right to testify, if you choose to do so. You are also giving up the 12 presumption that you are innocent until proven guilty beyond a reasonable 13 doubt.
14 You are also giving up your right to file an appeal. Because you are giving up your right to file an appeal, your only right to seek review of these 15 proceedings is to file a petition for Post-Conviction Relief. But you must do 16 that within 90 days of sentencing. If that petition is ultimately denied by the trial courts, you may then petition the appellate court of the state for review 17 of that denial, but such review may or may not be granted. 18 or mitigating circumstances without regard to the Arizona Rules of 19 Evidence, and from any source, including, but not limited to a pre- sentence report, letters to the court, victim or witness statements or 20 any other reliable source.
21 b. My right to confront the witnesses against me and to cross-examine them. 22 c. My right to present evidence and call witnesses in my defense, 23 knowing the court will compel them to appear and testify at trial.
24 d. My right to be represented by counsel, appointed free of charge, if I cannot afford to hire, at all stages of the proceedings. 25 e. My right to remain silent, to refuse to be a witness against myself, and 26 to be presumed innocent until proven guilty beyond a reasonable doubt. And 27 f. My right to appeal the judgment and sentence to a higher court. 28 (Doc. 1-1 at 10; Doc. 10-1 at 9). 1 Sir, do you understand all those things? 2
3 THE DEFENDANT: Yes.
4 THE COURT: Do you wish to waive your constitutional rights and plead 5 guilty to these offenses at this time?
6 THE DEFENDANT: Yes. 7 (Doc. 10-2 at 207-08). The court continued: 8 THE COURT: All right. I will ask formally, how do you plead to Count 1, 9 Sexual Exploitation of a Minor, a class 2 felony, dangerous crime against 10 children, committed in violation of those statutes listed in your plea agreement, committed in or near Casa Grande, Arizona, within Pinal County, 11 on or between September 17, 2014, guilty or not guilty? 12 THE DEFENDANT: Guilty. 13 14 THE COURT: And how do you plead to Counts 2 and 3 as amended, Attempted Sexual Exploitation of a Minor, class 3 felonies, dangerous crimes 15 against children, in violation of those statutes listed in your plea agreement, both committed in Casa Grande, Arizona, within Pinal County, and both 16 committed on or between September 17, 2014, guilty or not guilty? 17 THE DEFENDANT: Guilty. 18
19 THE COURT: And that would be to both 2 and 3.
20 Sir, do you understand that? 21 THE DEFENDANT: Yes. 22 (Doc. 10-2 at 209). Thereafter, Petitioner’s attorney set forth the factual basis for each 23 Count 1, Count 2 as amended, and Count 3 as amended: 24
25 [PETITIONER’S ATTORNEY:] On or about September 17th of 2014, in or near Casa Grande, which is in Pinal County, jurisdiction of this Court, Mr. 26 Paul Fahring knowingly possessed images of minor children that were in 27 sexually ex- -- sexually exploitative -- knowingly possessed images of minor children that were in sexually explicit positions. That’s as to Count 1. The 28 minor children in – depicted in those images were below the age of 15. Mr. 1 Fahring knew that those minor children in those images were below the age of 15 when he possessed them. 2
3 As to Count 2, on the same date and time, on or about September 17th of 2014, in or near Pinal – in or near Casa Grande, which is in Pinal County, 4 jurisdiction of this Court, Mr. Paul Fahring attempted to possess a image of 5 a minor that was under the age of 15 that was in a sexually explicit -- sexually explicit position. Again, the minor in Count Number 2 was below the age of 6 15. Mr. Fahring knew that the minor in that image was below the age of 15. 7 As to Count 3, same date and time, on or about September 17, 2014, in or 8 near Casa Grande, which is in Pinal County, jurisdiction of this Court, Mr. 9 Paul Fahring attempted to possess another picture of a minor that was engaged in a sexually explicit – explicative position -- 10 11 THE COURT: Or exploitive –
12 [PETITIONER’S ATTORNEY:] -- or exploitive position. Again, the minor 13 in that Count Number 3 position -- Count Number 3 count was below the age of 15. Mr. Fahring knew that the minor in Count 3 was below the age of 15. 14 THE COURT: All right. And, Mr. Wilkison, would -- those images, they 15 would contain images of minors either engaged in sexual conduct or the 16 focus being on the genitals and exploitive exhibition?
17 [PETITIONER’S ATTORNEY:] That’s correct. In all three, yes. 18 (Doc. 10-2 at 209-211). Petitioner agreed to the factual basis: 19 THE COURT: All right. Sir, you heard what your attorney says. Is that, in 20 fact, what happened in those three counts? 21 THE DEFENDANT: Yes. 22 (Id. at 211).2 23 The court found that Petitioner’s guilty pleas were knowingly, intelligently, and 24 voluntarily made (Id.). The court accepted Petitioner’s guilty pleas (Id.). At the March 25 2016 sentencing hearing, the court sentenced Petitioner to 17 years’ imprisonment on 26
27 2 Indictment Count 1 regarded an image labeled “Megan smiles as Dad probes that child ass.jpg”; Count 2 regarded an image labeled “Megan opens on bathroom floor.jpg”; Count 28 3 charged regarded an image labeled “Megan holds dads cock.jpg” (Doc. 10-1 at 3). 1 Count 1 - sexual exploitation of a minor - and lifetime probation on each Counts 2 and 3 - 2 attempted sexual exploitation of a minor (Doc. 1-1 at 16; Doc. 10-1 at 11-15). 3 Petitioner timely filed a PCR notice with the trial court (Doc. 10-1 at 18). After 4 reviewing the plea agreement and the trial court record, Petitioner’s appointed PCR counsel 5 filed a notice of no colorable claims averring that counsel had found no colorable PCR 6 claim (Id. at 17-27). Petitioner thereafter filed a pro per PCR petition arguing that 7 Petitioner’s sentences on Counts 2 and 3 should be vacated as unconstitutionally 8 multiplicitous under the Double Jeopardy Clause of the United States Constitution and that 9 Petitioner was sentenced under the incorrect Arizona statute on Count 1 (Id. at 31-72). 10 After the state filed a response and Petitioner filed a reply (Id. at 74-83, 85-96), the trial 11 court denied Petitioner’s pro per PCR petition (Id. at 98). 12 On June 13, 2024, Petitioner filed a petition for review with the Arizona Court of 13 Appeals arguing that Petitioner’s sentences on Counts 2 and 3 should be vacated as 14 unconstitutionally multiplicitous under the Double Jeopardy Clause of the United States 15 Constitution and that Petitioner was sentenced under the incorrect Arizona statute on Count 16 1 (Doc. 10-2 at 3-17). On July 15, 2024, Petitioner filed an amended petition for review 17 reasserting his arguments (Doc. 1-2 at 31-45; Doc. 13 at 17-31). The state filed a response; 18 Petitioner filed a reply (Doc. 10-2 at 105-122, 124-136). On December 4, 2024, the 19 Arizona Court of Appeals granted review but denied relief (Id. at 138-40). State v. Fahring, 20 No. 2 CA-CR 2024-0122-PR, 2024 WL 4976320, at *1-2 (Ariz. Ct. App. Dec. 4, 2024). 21 In its memorandum decision, the Arizona Court of Appeals explained:
22 ¶4 Fahring reurges his claims on review, first asserting that his sentences are 23 multiplicitous. “A charge is multiplicitous if it charges a single offense in multiple counts and thereby raises the potential for multiple punishments for 24 a single act.” State v. Scott, 243 Ariz. 183, ¶ 9, 403 P.3d 595 (App. 2017). 25 Fahring reasons that his possession of multiple images is a single offense because the sexual exploitation statute, A.R.S. § 13-3553, prohibits 26 possession of “any visual depiction,” which, in his view, means “one or 27 more” depictions.
28 ¶5 But, by pleading guilty, Fahring waived all non-jurisdictional defects 1 unrelated to the voluntariness of his plea, including deprivations of constitutional rights. State v. Flores, 218 Ariz. 407, ¶ 6, 188 P.3d 706 (App. 2 2008). Accordingly, even were his argument meritorious, after pleading 3 guilty to three offenses, he cannot now argue he committed only a single offense. And, in any event, we rejected this argument in 2012 in State v. 4 McPherson, concluding that “separate convictions and punishments for 5 different images on the same DVD are constitutionally permissible because the legislature intended the unit of prosecution to be each individual 6 ‘depiction.’” 228 Ariz. 557, ¶ 7, 269 P.3d 1181 (App. 2012) (quoting § 13- 7 3553(A)(2)).
8 ¶6 Fahring also repeats his argument that the factual basis for his plea did not 9 establish the age of his victims, thus rendering his sentence under § 13-705 illegal. He seems to suggest the state was required to identify the victims or 10 provide the photographs to the superior court. But, at his change of plea 11 hearing, Fahring admitted the children in the images he admitted possessing were under the age of fifteen. Nothing more was needed. See Ariz. R. Crim. 12 P. 17.3(b) (court may consider “defendant’s statements” in determining 13 factual basis). (Doc. 10-2 at 138-40). Fahring, 2024 WL 4976320, at *1-2. 14 Petitioner did not file a petition for review with the Arizona Supreme Court (Id. at 15 145). The Arizona Court of Appeals issued the mandate on June 9, 2025 (Id.). 16 IV. RULES FRAMEWORK 17 In relevant part, Rule 5 of the Rules Governing Section 2254 Cases provides: 18
19 (c) Contents: Transcripts. The answer must also indicate what transcripts (of pretrial, trial, sentencing, or post-conviction proceedings) are available, 20 when they can be furnished, and what proceedings have been recorded but 21 not transcribed. The respondent must attach to the answer parts of the transcript that the respondent considers relevant. The judge may order that 22 the respondent furnish other parts of existing transcripts or that parts of 23 untranscribed recordings be transcribed and furnished. If a transcript cannot be obtained, the respondent may submit a narrative summary of the evidence. 24
25 (d) Contents: Briefs on Appeal and Opinions. The respondent must also file with the answer a copy of: 26
27 (1) any brief that the petitioner submitted in an appellate court contesting the conviction or sentence, or contesting an adverse 28 judgment or order in a post-conviction proceeding; 1 (2) any brief that the prosecution submitted in an appellate court 2 relating to the conviction or sentence; and 3 (3) the opinions and dispositive orders of the appellate court relating 4 to the conviction or the sentence. 5 In addition, Rule 7 of the Rules Governing Section 2254 Cases provides: 6 (a) In General. If the petition is not dismissed, the judge may direct the 7 parties to expand the record by submitting additional materials relating to the 8 petition. The judge may require that these materials be authenticated.
9 (b) Types of Materials. The materials that may be required include letters 10 predating the filing of the petition, documents, exhibits, and answers under oath to written interrogatories propounded by the judge. Affidavits may also 11 be submitted and considered as part of the record. 12 (c) Review by the Opposing Party. The judge must give the party against 13 whom the additional materials are offered an opportunity to admit or deny 14 their correctness.
15 Further, Rule 6 of the Rules Governing Section 2254 Cases provides in pertinent part:
16 (a) Leave of Court Required. A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit 17 the extent of discovery. If necessary for effective discovery, the judge must appoint an attorney for a petitioner who qualifies to have counsel appointed 18 under 18 U.S.C. § 3006A.
19 (b) Requesting Discovery. A party requesting discovery must provide reasons for the request. The request must also include any proposed interrogatories and 20 requests for admission, and must specify any requested documents. See also Rule 10 of the Rules Governing Section 2254 Cases (“A magistrate judge may 21 perform the duties of a district judge under these rules, as authorized under 28 U.S.C. 22 § 636.”). 23 V. DISCUSSION 24 In his Motion, Petitioner argues that Respondents have failed to comply with their 25 obligations under Rule 5 of the Rules Governing Section 2254 Cases (Doc. 13). Petitioner 26 asserts that Exhibit A and Exhibit J attached to Respondents’ Answer must be corrected 27 because “Exhibit A is the wrong indictment [because] [i]t was supervened” and “Exhibit J 28 1 of the Respondents’ record submission should be replaced with . . . the amended Petition 2 for Review filed and addressed within the AZ Court of Appeals” (Id. at 2-5). Petitioner 3 also insists that transcripts of Petitioner’s statements on 9/17/2014, the transcript of the 4 grand jury proceedings on 9/29/2014, and the recording of the grand jury on 9/29/2014 5 must be added to the record (Id. at 5-9). Petitioner attached as exhibits to his Motion: a 6 copy of a document entitled “Notice of Supervening Indictment” which informed Petitioner 7 of the indictment filed against him (Id. at 13-15) and a copy of Petitioner’s amended 8 petition for review filed with the Arizona Court of Appeals (Id. at 16-31)—both of which 9 Petitioner attached to his Petition initiating these habeas proceedings (see Doc. 1-1 at 5-6; 10 Doc. 1-2 at 31-45). 11 Petitioner also included as attachments: a “Motion for Emergency Injunction” filed 12 with the Arizona Supreme Court which was previously attached to his Petition (Doc. 13 at 13 33-40; see also Doc. 1 at 20-27); the Pinal County Superior Court’s order denying 14 Petitioner’s pro per PCR petition which was previously attached to the Petition and Answer 15 (Doc. 13 at 42; see also Doc. 1 at 29; Doc. 10-1 at 98); the Arizona Supreme Court’s order 16 denying as moot Petitioner’s “Motion for Emergency Injunction” which was previously 17 attached to the Petition (Doc. 13 at 44-46; see also Doc. 1-2 at 47-49); the cover page for 18 the transcript of the grand jury proceedings held on September 29, 2014 (Doc. 13 at 48); 19 correspondence with the Pinal County Clerk of Court directing Petitioner to contact the 20 Court Reporters Office for copies of transcripts (Id. at 50); a “Notice of Documents 21 Provided to Petitioner” reflecting that Petitioner’s appointed PCR counsel mailed copies 22 of various documents to Petitioner (Doc. 13-1 at 2-5); a pro per “Special Action” filing 23 requesting relief from a trial court ruling in Petitioner’s criminal proceedings (Id. at 7); 24 correspondence with the Clerk of the United States Supreme Court reflecting that 25 Petitioner’s petition for a writ of mandamus was denied (Id. at 9); correspondence with the 26 State Bar of Arizona reflecting that the state bar previously investigated and closed a matter 27 regarding Petitioner’s appointed PCR counsel (Id. at 11); and correspondence with the 28 Pinal County Clerk of Court reflecting that the record for appeal was transmitted which 1 was previously attached to the Petition (Id. at 13; see also Doc. 1-5 at 9). 2 Respondents argue that Petitioner’s Motion should be denied (Doc. 14). 3 Respondents concede that their Exhibit J is not the amended petition filed on July 15, 2024, 4 but maintain that “consideration of the amended petition for review does not affect any 5 affirmative defense raised in their answer” (Id. at 1-2). Respondents do not object to 6 Petitioner supplementing the record with a copy of the “Notice of Supervening Indictment” 7 and the amended petition for review (Id. at 2; see Doc. 13 at 14-15, 17-31; Doc. 1-1 at 5- 8 6; Doc. 1-2 at 31-45). Respondents also argue that Petitioner’s request to add materials to 9 the record should be denied because the requested materials are not relevant to 10 Respondents’ Answer (Doc. 14 at 2). Finally, Respondents argue that if construed as a 11 discovery request Petitioner’s request for materials should be denied because Petitioner has 12 failed to establish good cause for such discovery (Id. at 2-3). 13 In his Reply, Petitioner insists that the requested materials are relevant to his actual 14 innocence claim and that production of such materials would require little effort on the part 15 of Respondents (Doc. 15). Petitioner did not attach any additional documents to his Reply 16 (see id.). 17 Upon review of the briefing on Petitioner’s Motion and associated exhibits (Docs. 18 13, 13-1, 14, 15), the briefing on Petitioner’s Petition and associated exhibits (Docs. 1, 1- 19 1, 1-2, 1-3, 1-4, 1-5, 10, 10-1, 10-2, 16), the record in this matter, and applicable law, the 20 Court will deny Petitioner’s “Motion for an order from the court requiring the Respondents 21 to correct the record and furnish the missing materials in their possession pertinent to this 22 case, a Failure to comply with Rule 5(c)” (Doc. 13). As Respondents correctly point out 23 (Doc. 14 at 2 n.1), the record already contains the “Notice of Supervening Indictment” and 24 the amended petition for review (see Doc. 13 at 14-15, 17-31; Doc. 1-1 at 5-6; Doc. 1-2 at 25 31-45). Thus, Petitioner’s request to correct the record regarding Respondents’ Exhibit A 26 and Exhibit J will be denied.3
27 3 Petitioner appears to confuse the Notice of Supervening Indictment, which notified Petitioner of an arraignment for charges against him brought by indictment, with the 28 indictment itself. Nevertheless, both the indictment attached by Respondents and the Notice of Supervening Indictment attached by Petitioner are part of the state court record 1 Regarding Petitioner’s request that the Court order supplementation of the record 2 with transcripts of Petitioner’s statements on 9/17/2014, the transcript of the grand jury 3 proceedings on 9/29/2014, and the recording of the grand jury on 9/29/2014 must be added 4 to the record (Id. at 5-9). Respondents assert that they complied with Rule 5(c) and attached 5 the only transcript relevant to their Answer––the transcript of the change of plea hearing 6 (Doc. 14 at 2). Upon careful review, the Court agrees with Respondents. First, Petitioner 7 does not articulate the relevance of the requested transcripts and recording aside from 8 vague assertions of false evidence presented to the grand jury (Doc. 13 at 6; Doc. 15 at 2- 9 3). Indeed, he appears to admit that they are not relevant to his claims by stating that 10 “Respondent[s] [are] also correct that the items requested do not pertain to the strict legal 11 analysis of the Petitioner’s grounds presented within this Habeas Corpus proceeding” (Doc. 12 15 at 2-3). However, Petitioner insists that the requested materials are relevant to the issue 13 of actual innocence (Id.). 14 To show actual innocence, a petitioner must establish his or her factual innocence 15 of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 16 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). A petitioner “must 17 show that it is more likely than not that no reasonable juror would have convicted him in 18 the light of the new evidence.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting 19 Schlup v. Delo, 513 U.S. 298, 327 (1995)). “To be credible, such a claim requires petitioner 20 to support his allegations of constitutional error with new reliable evidence–whether it be 21 exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 22 evidence–that was not presented at trial.” Schlup, 513 U.S. at 324; see also Lee v. Lampert, 23 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (explaining the significance 24 of an “[u]nexplained delay in presenting new evidence”). Because of “the rarity of such 25 evidence, in virtually every case, the allegation of actual innocence has been summarily 26 rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. 27
28 before this Court. 1 Thompson, 523 U.S. 538, 559 (1998)).4 2 Here, Petitioner is not urging the Court to consider new exculpatory scientific 3 evidence, trustworthy eyewitness accounts, or critical physical evidence that was not 4 presented at trial. Rather and despite his later guilty pleas, Petitioner posits that he may be 5 able to bolster a claim of actual innocence with his own statements made prior to indictment 6 and with details about the grand jury proceedings leading to indictment. Under applicable 7 law, the materials sought by Petitioner are not relevant to actual innocence analysis. See 8 Bousley, 523 U.S. at 623; Jaramillo, 340 F.3d at 882-83. 9 Finally, Petitioner has not made a showing that he is entitled to discovery in these 10 proceedings. In habeas proceedings, a “petitioner, unlike the usual civil litigant in federal 11 court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 12 U.S. 899, 904 (1997); see also Fed. R. Civ. P. 26(a)(1)(B)(iii) (exempting habeas 13 proceedings from initial discovery disclosure). The availability of discovery in habeas 14 proceedings is governed by Rule 6 of the Rules Governing Section 2254 Cases and is 15 within the Court’s discretion. Bracy, 520 U.S. at 907-09; Rich v. Calderon, 187 F.3d 1064, 16 1068 (9th Cir. 1999). Good cause to allow discovery to proceed in a Section 2254 habeas 17 matter may exist “where specific allegations before the court show reason to believe that 18 the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . 19 entitled to relief.’” Bracy, 520 U.S. at 904 (quoting Harris v. Nelson, 394 U.S. 286, 300 20 (1969)). However, “[j]ust as bald assertions and conclusory allegations do not afford a 21 sufficient ground for an evidentiary hearing, neither do they provide a basis for imposing 22 upon the state the burden of responding in discovery to every habeas petitioner who wishes 23 to seek such discovery.” Earp v. Davis, 881 F.3d 1135, 1142-43 (9th Cir. 2018) (internal 24 citations omitted). The Ninth Circuit has warned that a court “should not allow prisoners 25 to use federal discovery for fishing expeditions to investigate mere speculation.” Calderon
26 4 This discussion assumes that actual innocence argument is even available in a habeas proceeding to a petitioner who pleaded guilty. See Smith v. Baldwin, 510 F.3d 1127, 1140 27 n.9 (9th Cir. 2007) (acknowledging the “potential incongruity between the purpose of the actual innocence gateway announced in Schlup and its application to cases involving guilty 28 (or no contest) pleas” but nevertheless “assum[ing] without deciding that the actual innocence gateway is available to [a pleading defendant]” (citation omitted)). 1 v. U.S. Dist. Ct. for the N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 1996). Petitioner 2 has not shown good cause for discovery in this matter. 3 VI. SUPPLEMENTAL ANSWER AND REPLY REGARDING PETITION 4 GROUND TWO CONSTITUTIONAL DOUBLE JEOPARDY CLAIM 5 In their Answer, Respondents assert regarding Petition Ground Two:
6 Fahring claims “Illegal Sentence – Double Jeopardy – Multiplicity – Actual 7 Innocence.” (Doc. 1, at 29–35.) Specifically, that punishment for the “simultaneous possession of 3 undefined images constitutes multiplicitous 8 charging in violation of the USC Fifth Amendment’s prohibition of Double 9 Jeopardy.” (Id. at 32.) Because Fahring’s claim challenges the trial court’s application of state sentencing law, it is not cognizable in this federal habeas 10 proceeding. “[A]lleged errors in the application of state law are not 11 cognizable in federal habeas corpus.” Langford, 110 F.3d at 1389; see Jeffers, 497 U.S. at 780. His assertion that his sentence was “unlawful in 12 violation of the US Constitution and directly contradict SCOTUS precedent,” 13 (Doc. 1, at 5, 14–16), is not sufficient to state a claim cognizable in this proceeding. Fahring may also not transform a state-law issue into a federal 14 one merely by asserting a violation of federal constitutional law. Langford, 15 110 F.3d at 1389. “An asserted violation of state law does not, without more, rise to the level of a defendant’s right to due process under either the Fifth or 16 Fourteenth Amendments.” Bernal, 2021 WL 7967626, at *7. For those reasons, Fahring’s claim is not cognizable. 17
18 Further, Fahring’s claim is waived by virtue of his guilty plea. Tollett, 411 U.S. at 267. As described above, Fahring was sentenced according to the 19 terms of his plea agreement and, by virtue thereof, has waived his claim that 20 the sentence imposed according to its terms was somehow multiplicitous. See Gonzales, 2023 WL 9289981, at *9. Notably, each crime Fahring to which 21 pleaded guilty was based on a different image of child pornography in his 22 possession, (Exhs. A & B), and required proof of a fact which the others did not. See Blockburger v. United States, 284 U.S. 299, 304 (1932). Finally, 23 Fahring’s claim of “actual innocence” is also barred by Tollett. Barclay, 2014 24 WL 931867, at * 8. Thus, Fahring has also waived his claim by virtue of his plea agreement. 25 (Doc. 10 at 11-12). 26 While Respondents appear to construe Petitioner’s Ground 2 claim as solely a state 27 law claim, the Court did not so construe Petitioner’s Ground 2 claim as solely a state law 28 claim in screening the Petition. The Court described that in Ground Two, Petitioner 1 “asserts his Fifth, Sixth, and Fourteenth Amendment rights were violated because his 2 conviction and sentence are illegally multiplicitous . . . and his conviction violates the 3 prohibition against double jeopardy” (Doc. 7 at 2). Upon review, it appears at least 4 arguable that Petitioner raised and exhausted a constitutional double jeopardy claim set 5 forth in Petition Ground Two. 6 Further, the Answer does not adequately address waiver of a constitutional double 7 jeopardy claim in Petition Ground Two. The Answer cites Tollett, but the Answer does 8 not cite or address Class v. United States, 583 U.S. 174, 178-85 (2018), in which the United 9 States Supreme Court applied the Menna-Blackledge doctrine and determined that a 10 constitutional claim based upon the state court record that would extinguish the 11 government’s power to constitutionally prosecute a defendant was not waived by a guilty 12 plea. See Blackledge v. Perry, 417 U.S. 21, 30-31 (1974) (holding that the petitioner’s 13 vindictive prosecution claim was not waived because it contested “the very power of the 14 State” to prosecute the petitioner and the “very initiation of the proceedings against him 15 . . . operated to deny him due process of law”); Menna v. New York, 423 U.S. 61, 62 n.2 16 (1975) (holding that “a plea of guilty to a charge does not waive a claim that judged on its 17 face the charge is one which the State may not constitutionally prosecute.”). In Class, the 18 Supreme Court acknowledged that “a valid guilty plea relinquishes any claim that would 19 contradict the ‘admissions necessarily made upon entry of a voluntary plea of guilty’” but 20 determined that the defendant’s challenge was “consistent with [his] admission that he 21 engaged in the conduct alleged in the indictment.” 583 U.S. at 805 (quoting United States 22 v. Broce, 488 U.S. 563, 573-74 (1989)). Thus, the Supreme Court concluded that the 23 defendant’s claims were not waived because “[t]hey challenge the Government’s power to 24 criminalize [defendant’s] (admitted) conduct. They thereby call into question the 25 Government’s power to ‘constitutionally prosecute’ him.” Id. (citation omitted). 26 In a supplemental answer to the Petition, Respondents should address whether 27 Petitioner’s double jeopardy argument that the state could constitutionally prosecute 28 Petitioner for only one count of sexual exploitation of a minor—not three—was waived by 1 Petitioner’s guilty pleas in light of the Supreme Court’s application of the Menna- 2 Blacklidge doctrine in Class and Broce; Respondents should also address the merits of such 3 a constitutional double jeopardy claim. Thus, the Court will order Respondents to file a 4 supplemental answer addressing (1) whether Petitioner waived a Ground Two 5 constitutional double jeopardy claim in light of Class v. United States, 583 U.S. 174, 178- 6 85 (2018), United States v. Broce, 488 U.S. 563, 574-76 (1989), Blackledge v. Perry, 417 7 U.S. 21, 30-31 (1974), and Menna v. New York, 423 U.S. 61, 62 n.2 (1975); and (2) 8 regarding the merits of Petitioner’s Ground Two constitutional double jeopardy claim. 9 It appears to the Court that there has been full compliance with all of the 10 requirements of Rule 5 of the Rules Governing Section 2254 Cases regarding a Ground 11 Two constitutional double jeopardy claim; nevertheless, if additional record materials are 12 necessary to address the merits of such claim, then Respondents shall provide such with 13 the supplemental answer. 14 VII. CONCLUSION 15 Upon careful review and because Petitioner has not shown that correcting the 16 record, supplementing the record, or conducting discovery is appropriate, the Court will 17 deny Petitioner’s “Motion for an order from the court requiring the Respondents to correct 18 the record and furnish the missing materials in their possession pertinent to this case, a 19 Failure to comply with Rule 5(c)” (Doc. 13). 20 Additionally, the Court will order Respondents to file a supplemental answer 21 addressing (1) whether Petitioner waived his Ground Two constitutional double jeopardy 22 claim in light of Class v. United States, 583 U.S. 174, 178-85 (2018), United States v. 23 Broce, 488 U.S. 563, 574-76 (1989), Blackledge v. Perry, 417 U.S. 21, 30-31 (1974), and 24 Menna v. New York, 423 U.S. 61, 62 n.2 (1975); and (2) regarding the merits of Petitioner’s 25 Ground Two constitutional double jeopardy claim. 26 It appears to the Court that there has been full compliance with all of the 27 requirements of Rule 5 of the Rules Governing Section 2254 Cases regarding Petitioner’s 28 Ground Two constitutional double jeopardy claim; nevertheless, if additional record 1 || materials are necessary to address the merits of such claim, then Respondents shall provide || such with the supplemental answer. 3 Accordingly, 4 IT IS HEREBY ORDERED denying Petitioner’s “Motion for an order from the 5 || court requiring the Respondents to correct the record and furnish the missing materials in || their possession pertinent to this case, a Failure to comply with Rule 5(c)” (Doc. 13). 7 IT IS FURTHER ORDERED that within thirty (30) days of the date of this 8 || Order, Respondents shall file a supplemental answer addressing (1) whether Petitioner 9|| waived a Ground Two constitutional double jeopardy claim in light of Class v. United States, 583 U.S. 174, 178-85 (2018), United States v. Broce, 488 U.S. 563, 574-76 (1989), || Blackledge v. Perry, 417 U.S. 21, 30-31 (1974), and Menna v. New York, 423 U.S. 61, 62 || n.2 (1975); and (2) regarding the merits of Petitioner’s Ground Two constitutional double 13} jeopardy claim. 14 IT IS FURTHER ORDERED that in filing the supplemental answer, Respondents 15} must ensure full compliance with all of the requirements of Rule 5 of the Rules Governing Section 2254 Cases regarding Petitioner’s Ground Two double jeopardy claim. 17 IT IS FURTHER ORDERED that within thirty (30) days of service of the 18 || supplemental answer to the Petition, Petitioner may file a supplemental reply in support 19|| of the Petition addressing the arguments in the supplemental answer. 20 Dated this 20th day of February, 2026. 21
Honorable Deborah M. Fine United States Magistrate Judge 25 26 27 28
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