Bieganski v. Shinn et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Bradley Bieganski,
Petitioner,
v.
David Shinn, et al.,
Respondents.
No. CV-21-01684-PHX-DWL
ORDER
Pending before the Court is Petitioner Bradley Bieganski’s “renewed motion to
enforce the mandate.” (Doc. 49.) For the reasons that follow, the motion is granted in part
and denied in part—the Court now issues a conditional writ of habeas corpus under which
Bieganski may be retried.
BACKGROUND
Following a 2017 trial in Arizona state court, Bieganski was convicted of three
counts of child molestation and sentenced to 34 years’ imprisonment. Bieganski v. Shinn,
149 F.4th 1055, 1065-66 (9th Cir. 2025). At the time of Bieganski’s trial, the law in
Arizona was that the offense of child molestation “is complete when the child is knowingly
or intentionally touched, because the crime of child molestation does not mention, imply,
or require sexual motivation,” although Arizona law also “provided an affirmative defense
if the defendant could show by a preponderance of the evidence that he was not motivated
by a sexual interest.” Id. at 1060 (cleaned up).1
1 The law in Arizona is now different. Id. at 1060 n.1 (“In 2018, Arizona made
significant changes to its affirmative defense to child molestation and the definition of
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In his direct appeal to the Arizona Court of Appeals, Bieganski argued that these
features of Arizona law “violate Due Process rights by impermissibly shifting the burden
of proof to an accused to disprove the implicit ‘sexual motivation’ element of the offense
of child molestation.” See State v. Bieganski, 2018 WL 7360609, *1 (opening brief). As
a remedy, Bieganski argued that his “convictions, having been based upon violations of his
fundamental Due Process rights, should be vacated and a new trial conducted that comports
with the rights of Due Process.” Id. at *2-3 (emphasis added). See also State v. Bieganski,
2019 WL 2744906, *13 (reply brief: “It simply cannot be reasonably disputed that in
removing the long-recognized essential stigmatizing element of sexual interest from the
crime of child molestation, the Legislature unconstitutionally reallocated the only element
in the Anglo-American legal system, including in Arizona, that makes the difference
between guilt and innocence of child molestation. The Legislature impermissibly shifted
the burden of persuasion on the essential element making child molestation a crime from
the State to Mr. Bieganski. He was thus presumed guilty and unconstitutionally deprived
of his Due Process rights. Mr. Bieganski’s convictions should be overturned and a new
trial comporting with Due Process provided.”) (emphasis added).
After the Arizona courts denied relief, Bieganski initiated this habeas corpus action
under 28 U.S.C. § 2254. In Ground One of his petition, Bieganski reiterated his argument
that his “convictions violate his federal constitutional right to due process and a fair trial
because Arizona’s child molestation statutes . . . are unconstitutional on their face, and as
applied, where they require the defendant, who is actually innocent, to prove that any
touching lacked sexual motivation, thereby relieving the State of its burden to prove each
essential element beyond a reasonable doubt . . . .” (Doc. 1 at 6.) In a supporting
memorandum, Bieganski once again stated that a new trial would be a permissible remedy,
albeit not his preferred remedy: “[T]he Court should vacate Petitioner Bradley Bieganski’s
convictions and sentence, and dismiss the indictment; or, in the alternative, grant a new
trial or a hearing; and grant such other and further relief as is just under all the
‘sexual contact.’”).
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circumstances.” (Doc. 1-10 at 41, emphasis added.)2
In July 2023, this Court denied habeas relief but granted a certificate of appealability
as to Ground One. (Doc. 31.) Bieganski then appealed to the Ninth Circuit. (Doc. 33.) In
his opening brief, Bieganski argued that the appellate court should “vacate [his]
conviction” but offered no argument about whether a retrial would be permissible
following vacatur or whether the requested writ of habeas corpus should be conditional or
unconditional. Bieganski v. Thornell, No. 23-1982, Dkt. 17 at 49. Respondents, likewise,
did not address those remedial issues in their answering brief—they only argued that the
denial of Bieganski’s habeas petition should be affirmed. Bieganski v. Thornell, No. 23-
1982, Dkt. 28. Nor did Bieganski touch on those remedial issues in his reply brief.
Bieganski v. Thornell, No. 23-1982, Dkt. 39 at 19.
On August 12, 2025, the Ninth Circuit reversed. The court “beg[a]n with a candid
observation: as a matter of form, the Arizona Supreme Court is correct that Arizona’s child
molestation scheme does not shift the burden of proof from the state to the defendant.
Therefore, solely as a matter of form, we can find no fault in the court’s decision—much
less that the decision was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.”
Bieganski, 149 F.4th at 1073. However, the court then conducted a review of “several
Supreme Court cases” addressing whether a criminal conviction was tainted by
impermissible burden-shifting. Id. at 1078-80. As part of that analysis, the court identified
three Supreme Court cases in which a criminal conviction was overturned on this basis:
Mullaney v. Wilbur, 421 U.S. 684 (1975), Tot v. United States, 319 U.S. 463 (1943), and
2 During subsequent filings in this Court, Bieganski again identified a new trial as a
permissible remedy. (Doc. 18 at 31 [reply in support of petition: “[T]he Court should
vacate Petitioner Bradley Bieganski’s convictions and sentence, and dismiss the
indictment; or, in the alternative, grant a new trial or a hearing; and grant such other and
further relief as is just under all the circumstances.”]; Doc. 22 at 29 [objection to the
magistrate judge’s report and recommendation: “The Court, in its de novo review, should
disagree with the Magistrate’s Report and vacate Petitioner’s convictions and sentence, and
dismiss the indictment; or, in the alternative, grant a new trial or a hearing; and grant such
other and further relief as is just under all the circumstances.”].)
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Morrison v. California, 291 U.S. 82 (1934).3 The court explained that “[t]hese cases
clearly establish that the state is responsible for proving beyond a reasonable doubt the
critical facts that establish the crime.” Bieganski, 149 F.4th at 1080. The court concluded
that “once we pierce the form of the state’s scheme, we have little difficulty concluding
that Arizona has shifted the burden of proof from the state to the defendant to prove a core
element of child molestation—that the defendant touched the child’s private parts with
some kind of sexual interest. Arizona has done so in violation of the Due Process Clause
of the Fourteenth Amendment, as clearly established in decisions of the United States
Supreme Court.” Id. at 1081. The “CONCLUSION” section of the opinion provides: “The
judgment of the district court is reversed and the matter is remanded to the district court to
issue the writ of habeas corpus. REVERSED AND REMANDED WITH
INSTRUCTIONS.” Id.
On September 3, 2025, the parties filed a joint motion for release. (Doc. 41.) The
parties “jointly move[d] this Court for an Order providing that Mr. Bieganski be released
pending any further judicial review of the Ninth Circuit’s Opinion vacating this Court’s
order denying a writ of habeas corpus and remanding with orders to grant the writ.” (Id.
at 1.) The parties noted that “[t]he mandate has not yet issued, and the parties have
stipulated to a 30-day extension of time for the Arizona Respondents to consider whether
to seek review of the decision. . . . The Arizona Respondents have not yet decided whether
to seek review of the Ninth Circuit decision, either by means of a petition for panel
rehearing or rehearing en banc to the full Ninth Circuit or a petition for writ of certiorari to
the United States Supreme Court.” (Id. at 2.) The parties also stated that Respondents had
“agreed not to contest” the presumption in favor of release arising from the issuance of the
Ninth Circuit’s decision, “contingent upon the imposition of [certain] release conditions,
which shall have effect until this Court enters final judgment in this case.” (Id. at 3.) The
stipulated release conditions included the posting of a signature bond, a prohibition against
3 The court also discussed other Supreme Court cases, including Patterson v. New
York, 432 U.S. 197 (1977), and Martin v. Ohio, 480 U.S. 228 (1987), that rejected burden-
shifting challenges.
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applying for a passport or traveling outside the United States, certain travel-related
reporting requirements, a prohibition against contact with the alleged victims, and a
requirement to appear at any federal proceedings in which Bieganski’s appearance was
ordered by the court. (Id. at 3-4.)
That same day, the Court granted the parties’ joint motion and adopted their agreed-
to release conditions. (Doc. 42.)
On October 3, 2025, the mandate issued. (Doc. 44.)
On December 10, 2025, Respondents filed a petition for certiorari with the Supreme
Court. (Doc. 46-1 at 3-32.)
On January 9, 2026, the Supreme Court ordered Bieganski to file a response. (Doc.
46-1 at 180.)
On January 12, 2026, Bieganski filed a motion to enforce the mandate. (Doc. 45.)
In that motion, Bieganski sought an order “(1) granting him an unconditional writ of habeas
corpus prohibiting his retrial in state court; and (2) vacating his convictions and sentences.”
(Id. at 5.)
On January 22, 2026, Respondents filed a response in which they did not address
the merits of Bieganski’s arguments and simply requested a “stay [of] enforcement of the
mandate until the Supreme Court adjudicates Respondents’ certiorari petition.” (Doc. 46
at 6.)
On January 30, 2026, the Court denied Bieganski’s motion and stayed enforcement
of the mandate pending the resolution of the certiorari petition. (Doc. 48.)
On April 20, 2026, the Supreme Court denied the certiorari petition. (Doc. 49-1 at
10.) That same day, Bieganski filed the pending renewed motion to enforce the mandate.
(Doc. 49.)
On April 22, 2026, the Court held a status conference. (Doc. 53.) Based on the
parties’ arguments during the status conference, the Court exonerated the bond that
Bieganski had previously posted and established an expedited briefing schedule. (Id.)
On April 27, 2026, Respondents filed a response. (Doc. 55.)
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On May 4, 2026, Bieganski filed a reply. (Doc. 56.)
On May 11, 2026, the Court issued a tentative ruling. (Doc. 58.)
On May 18, 2026, the Court heard oral argument. (Doc. 59.)
DISCUSSION
Both sides agree that Bieganski is now entitled to the issuance of a writ of habeas
corpus. The dispute turns on the form that writ should take—Bieganski contends he is
entitled to an unconditional writ under which Arizona would be precluded from retrying
him, while Respondents contend he is entitled to a conditional writ under which retrial
would be possible. As explained below, the Court concludes that Respondents are correct
and that a conditional writ should issue.
As a threshold matter, there is no merit to Bieganski’s contention that the issuance
of an unconditional writ is compelled by the Ninth Circuit’s decision. (Doc. 49 at 2-3.) Of
course, this Court must follow the “rule of mandate doctrine,” which provides that “[w]hen
a case has been once decided by [an appellate] court on appeal, and remanded to the district
court, whatever was before [the appellate] court, and disposed of by its decree, is
considered as finally settled. The district court is bound by the decree as the law of the
case, and must carry it into execution according to the mandate. That court cannot vary it,
or examine it for any other purpose than execution; or give any other or further relief; or
review it, even for apparent error, upon any matter decided on appeal; or intermeddle with
it, further than to settle so much as has been remanded.” United States v. Thrasher, 483
F.3d 977, 981 (9th Cir. 2007) (cleaned up). But the rule of mandate does not resolve the
present dispute because the Ninth Circuit did not specify, in its opinion, whether the writ
to be issued on remand should be conditional or unconditional (and did not otherwise
address the possibility of a retrial in state court following remand). The final portion of
the Ninth Circuit’s decision simply reads: “The judgment of the district court is reversed
and the matter is remanded to the district court to issue the writ of habeas corpus.
REVERSED AND REMANDED WITH INSTRUCTIONS.” Bieganski, 149 F.4th at
1081. The Court cannot find, in this directive, any guidance whatsoever on the question
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of whether the writ should be conditional or unconditional. Thus, the rule of mandate does
not control: “[T]he district court may consider and decide any matters left open by the
mandate of this court.” Thrasher, 483 F.3d at 981 (cleaned up).4
Also unavailing is Bieganski’s contention that because Respondents did not, in their
response to his initial motion to enforce the mandate, address his arguments regarding a
conditional-versus-unconditional writ, they should be deemed to have “waived any
argument that these are not the appropriate remedies.” (Doc. 49 at 5-6.) Bieganski cites
no authority supporting the proposition that when one party files a motion, the opposing
party successfully opposes that motion, and the movant subsequently refiles a new motion
seeking the same or similar relief, the forfeiture doctrine somehow precludes the opposing
party from raising, in its second opposition brief, additional arguments that were not
contained in its first successful opposition brief. At any rate, courts “have discretion to
overlook forfeiture in exceptional cases including when the issue presented is purely one
of law.” United States v. Valle, 940 F.3d 473, 480 n.7 (9th Cir. 2019). Such is the case
here.
Turning the merits, “[t]he typical relief granted in federal habeas corpus is a
conditional order of release unless the State elects to retry the successful habeas petitioner
. . . .” Herrera v. Collins, 506 U.S. 390, 403 (1993). As the Ninth Circuit has explained,
“[w]hen a court issues a writ of habeas corpus, it declares in essence that the petitioner is
being held in custody in violation of his constitutional (or other federal) rights. Given that
function of the writ, courts originally confined habeas relief to orders requiring the
petitioner’s unconditional release from custody. In modern practice, however, courts
employ a conditional order of release in appropriate circumstances, which orders the State
to release the petitioner unless the State takes some remedial action, such as to retry (or
resentence) the petitioner.” Harvest v. Castro, 531 F.3d 737, 741-42 (9th Cir. 2008)
4 During oral argument, Bieganski pointed to a particular sentence in the Ninth
Circuit’s opinion—the sentence that reads, “In Bieganski’s case, the Arizona Court of
Appeals was bound by Holle II,” Bieganski, 149 F.4th at 1081—as proof that the Ninth
Circuit intended to foreclose a retrial in state court. The Court respectfully disagrees. The
cited sentence is too ambiguous to implicate the rule of mandate when it comes to the
question of a conditional-versus-unconditional writ.
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(cleaned up). “Such conditional orders are essentially accommodations accorded to the
state, in that conditional writs enable habeas courts to give States time to replace an invalid
judgment with a valid one.” Id. at 742 (cleaned up).
There is no reason to deviate from this typical practice here. Indeed, Bieganski
consistently argued before the Arizona Court of Appeals and this Court that a new trial
would be a permissible remedy for the burden-shifting violation (and did not argue
otherwise in his briefs to the Ninth Circuit). Even if those statements don’t have a formal
estoppel effect, they underscore a commonsense point—it would be anomalous for
Bieganski to receive, in habeas, a more expansive remedy than that which he sought during
the underlying state-court proceedings whose constitutionality he has now successfully
challenged.
The issuance of a conditional writ, leaving open the possibility of a retrial, is also
supported by Mullaney, one of the main authorities on which the Ninth Circuit relied in
granting relief. In Mullaney, a defendant who was convicted of murder in Maine state court
argued that a provision of “Maine law [that] requires a defendant to establish by a
preponderance of the evidence that he acted in the heat of passion on sudden provocation
in order to reduce murder to manslaughter” was unconstitutional because “the Due Process
Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat
of passion on sudden provocation when the issue is properly presented in a homicide case.”
Mullaney, 421 U.S. at 703. After “[t]he Maine Supreme Court rejected this contention,”
the defendant “successfully petitioned for a writ of habeas corpus in Federal District
Court.” Id. at 688 (citing Wilbur v. Robbins, 349 F. Supp. 149 (D. Me. 1972)). Notably,
the district court granted a conditional writ authorizing a retrial: “[T]his Court holds that
petitioner’s conviction was obtained in violation of his Fourteenth Amendment right to due
process of law. Accordingly, the judgment of conviction and sentence imposed upon
petitioner by the Franklin County Superior Court is vacated, and the matter is remanded to
that court to afford the State an opportunity to grant petitioner a new trial. In the event of
the failure of the State to grant petitioner such relief within 60 days from the date hereof,
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the writ will be sustained and petitioner ordered discharged from custody.” Wilbur, 349 F.
Supp. at 154. The First Circuit then affirmed the district court’s decision, both on initial
review, Wilbur v. Mullaney, 473 F.3d 943 (1st Cir. 1973), and after the Supreme Court
granted certiorari and remanded for reconsideration, Wilbur v. Mullaney, 496 F.2d 1303
(1st Cir. 1974). The latter decision provided: “The order affirming the order of the district
court is reinstated.” Id. at 1307. Finally, the Supreme Court affirmed the First Circuit’s
final decision. Mullaney, 421 U.S. at 703 (“[T]he judgment below is affirmed.”).
Mullaney suggests that when, as here, a state-law conviction is overturned on the
ground that the underlying criminal law unconstitutionally shifted the burden of proof to
the defendant in violation of the Due Process Clause, a proper remedy for the constitutional
violation would be a retrial during which the burden of proof is properly allocated.5 This
outcome makes sense and is consistent with the rationale underlying the modern practice
of favoring conditional writs, which are “essentially accommodations accorded to the
state” that “enable habeas courts to give States time to replace an invalid judgment with a
valid one.” Harvest, 531 F.3d at 742 (cleaned up). In contrast, Bieganski’s proposed
outcome—in which a retrial would be categorically barred, regardless of the strength of
the evidence and regardless of the alleged victims’ interest in his prosecution—would be
disproportionate to the underlying constitutional violation and potentially result in a
windfall.
Notwithstanding all of this, Bieganski contends that a retrial with a properly
allocated burden of proof would be impossible because “[t]he Arizona Supreme Court has
definitively announced that the statute, as written, requires a defendant to prove lack of
sexual interest as an affirmative defense,” so “[i]n effect, the State is asking this Court to
allow it to completely rewrite the statute and prosecute Mr. Bieganski under a version of
the statute that did not exist at the time of the offense.” (Doc. 56 at 2.) This argument
5 As noted, the Ninth Circuit identified Morrison v. California, 291 U.S. 82 (1934),
and Tot v. United States, 319 U.S. 463 (1943), as two additional cases in which a criminal
conviction was reversed due to impermissible burden-shifting. Both decisions simply
reversed without providing any indication as to whether a retrial, with a properly allocated
burden of proof, could occur following remand. Additionally, the underlying decisions in
those cases (unlike in Mullaney) shed no light on the new-trial issue.
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lacks merit. First, it is inconsistent with Mullaney, which, as noted, ordered the issuance
of a conditional writ authorizing a retrial even though the underlying state law as
interpreted by the state courts required the burden of proof to be allocated in an
unconstitutional manner. Second, to the extent Bieganski’s argument might be viewed as
some variant of an ex post facto challenge, the only contemplated change in the law during
his retrial—placing the burden of proof on the prosecution to prove the presence of sexual
motivation, rather than placing the burden of proof on him to prove the absence of sexual
motivation—would be favorable to him and have the effect of limiting, rather than
expanding, the universe of conduct that was deemed criminal at the time of the challenged
conduct. When a change to a criminal law “does not punish as a crime an act previously
committed, which was innocent when done; nor make more burdensome the punishment
for a crime, after its commission; nor deprive one charged with crime of any defense
available according to law at the time when the act was committed,” “[i]ts application . . .
is not prohibited by the Ex Post Facto Clause.” Collins v. Youngblood, 497 U.S. 37, 52
(1990). See also Weaver v. Graham, 450 U.S. 24, 29 (1981) (“[O]ur decisions prescribe
that two critical elements must be present for a criminal or penal law to be ex post facto: it
must be retrospective, that is, it must apply to events occurring before its enactment, and it
must disadvantage the offender affected by it.”). Third, to the extent Bieganski’s argument
is simply that the contemplated change to the burden of proof would be impermissible as a
matter of Arizona law, due to the manner in which the Arizona Supreme Court previously
construed the statute, the resolution of that issue should be left, in the first instance, to the
Arizona courts. Cf. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (“We accept a
state court’s interpretation of state law, and alleged errors in the application of state law
are not cognizable in federal habeas corpus.”) (citation omitted). Perhaps the Arizona
courts will agree with Bieganski, following the issuance of the conditional writ, that the
limited form of retrial being authorized here—a retrial in which the prosecution will bear
the burden of proof on the element of sexual motivation—is impossible as a matter of
Arizona law. In that circumstance, Bieganski will be free to return to this Court to seek
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further relief. Harvest, 531 F.3d at 742 (“The consequence when the State fails to replace
an invalid judgment with a valid one is always release.”) (cleaned up); Satterlee v.
Wolfenbarger, 453 F.3d 362, 368-69 (6th Cir. 2006) (“The district court issued a
conditional writ, allowing Satterlee to apply for immediate release unless the state made
within sixty days a plea offer of six to twenty years. Because the state made no such offer
in the allotted time, the district court granted an unconditional writ ordering Satterlee’s
immediate release. The state contends that the district court did not have the power to order
this remedy. What the state appears to have forgotten is that it did not comply with the
conditional writ. . . . Thus, we conclude that the district court acted well within its power
by ordering Satterlee’s immediate release.”).
Smith v. Goguen, 415 U.S. 566 (1974), which Bieganski cites in his motion papers,
does not compel a different conclusion. Smith did not involve a criminal statute that
misallocated the burden of proof as to critical facts that establish the crime. Rather, the
issue in Smith was that a Massachusetts “flag-misuse statute” utilized “inherently vague
statutory language [that] permits . . . selective law enforcement,” thereby rendering the
statute unconstitutionally vague. Id. at 568, 576. Smith sheds no light on whether a
conditional or unconditional writ of habeas corpus should issue after a conviction is
deemed invalid due to a misallocated burden of proof.
Finally, to the extent Bieganski argues that this Court should “not just vacate [the]
conviction, but . . . order records of the conviction entirely expunged” (Doc. 49 at 5), that
request is premature in light of the determination that a conditional, rather than
unconditional, writ should issue.
…
…
…
…
…
…
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Accordingly,
IT IS ORDERED that:
1. Bieganski’s renewed motion to enforce mandate (Doc. 49) is granted in part
and denied in part.
2. A conditional writ of habeas corpus is issued. Bieganski’s judgment of
conviction and sentence is vacated and this matter is remanded to the Navajo County
Superior Court for a potential retrial in which the prosecution will bear the burden of proof
on the issue of sexual motivation. This order does not resolve whether such a retrial is
permissible as a matter of Arizona law—that is an issue for the Arizona courts to address.
Assuming the Arizona courts conclude that the authorized retrial is permissible under
Arizona law, it must occur within 90 days of the issuance of this order (which deadline
may be extended at Bieganski’s request). If it does not occur within that timeframe,
Bieganski may apply to this Court for the issuance of an unconditional writ.
3. Attorney Randal McDonald is appointed, pursuant to 18 U.S.C.
§ 3006A(a)(2)(B) (“seeking relief under section . . . 2254 . . . of title 28”) and § 3006A(c)
(“ancillary matters appropriate to the proceedings”), to represent Bieganski in the state-
court proceedings, but only for the limited purpose of litigating whether the authorized
retrial is permissible under Arizona law.
Dated this 19th day of May, 2026.
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