245 F. Supp. 3d 1145
D. Ariz.2017Background
- Stephen May, a former teacher, was convicted in Arizona (2007) of five counts of child molestation based on touching victims under 15; jury acquitted on two counts. Trial judge instructed that the State need only prove the touching and age beyond a reasonable doubt, while May had to prove lack of sexual intent by a preponderance.
- Arizona law (as interpreted after a 1997 burden-reform statute) treats lack of sexual motivation as an affirmative defense that a defendant must prove by a preponderance, rather than an element the State must disprove.
- May did not raise a federal constitutional challenge at trial; he later raised ineffective-assistance claims in post-conviction relief, arguing counsel should have preserved the due-process challenge. State courts denied relief on procedural/default grounds (finding no prejudice).
- The Arizona Supreme Court later (Holle II) upheld the constitutionality of placing the burden on defendants; that decision post-dated May’s state proceedings and is not binding here.
- This federal habeas court reviewed the R&R de novo, concluded trial counsel was ineffective for failing to preserve the constitutional challenge, found prejudice under Strickland, and held Arizona’s burden-shifting scheme violates the Due Process Clause because sexual intent is an essential element and the statute criminalizes benign/constitutionally protected conduct absent proof of sexual intent.
Issues
| Issue | May's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Arizona may require defendant to prove lack of sexual intent by preponderance in child-molestation prosecutions | May: sexual intent is an essential element; burden-shifting to defendant violates Due Process/Winship | State: legislatures may redefine elements and label denials as affirmative defenses; Patterson permits such allocation within limits | Held: Unconstitutional — statute and instruction violate Due Process and Winship; sexual intent remains an essential element and State cannot shift burden to disprove it |
| Whether trial counsel was ineffective for failing to preserve the constitutional challenge | May: counsel’s failure to move to dismiss or object on constitutional grounds was deficient and caused prejudice | State: no prejudice because Patterson permits burden reallocation and evidence supported conviction | Held: Counsel deficient under Strickland; prejudice shown (close jury deliberations/hung jury risk); ineffective assistance excuses default |
| Standard of federal habeas review where state courts did not decide the federal constitutional claim on the merits | May: de novo review is required because state courts denied relief on procedural grounds and did not adjudicate the federal claim | State: rely on state-court decisions upholding scheme (post-dating May) or contend AEDPA deference limits relief | Held: De novo review applies here (no state merits adjudication); even under AEDPA, applying Patterson to uphold the statute would be unreasonable |
| Whether error was harmless | May: instruction assigning burden to him had substantial and injurious effect given jury deadlocks | State: evidence supported conviction and jury found intentional touching | Held: Not harmless; grave doubt exists whether instruction affected outcome — relief warranted |
Key Cases Cited
- In re Winship, 397 U.S. 358 (1970) (Due Process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime)
- Mullaney v. Wilbur, 421 U.S. 684 (1975) (striking burden-shifting that removed malice element from State’s burden)
- Patterson v. New York, 432 U.S. 197 (1977) (upholding some reallocation of burdens but recognizing constitutional limits)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard: deficient performance and prejudice)
- Williams v. Taylor, 529 U.S. 362 (2000) (AEDPA requires state-court decisions not be unreasonable applications of clearly established Supreme Court law)
- Harrington v. Richter, 562 U.S. 86 (2011) (§2254(d) review focuses on arguments that could have supported the state-court decision)
- McMillan v. Pennsylvania, 477 U.S. 79 (1986) (legislature generally determines elements but constitutional limits exist)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (limits on legislative reallocation of facts that increase punishment)
- Jones v. United States, 526 U.S. 227 (1999) (constitutional limits on redefining offense elements)
- Schad v. Arizona, 501 U.S. 624 (1991) (history and practice inform limits on defining elements and burden shifting)