Fahring #308968 v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Paul Fahring,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-25-03810-PHX-JAT (DMF)
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES
DISTRICT JUDGE:
This matter is on referral to the undersigned for further proceedings and a report and
recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure
(Doc. 7 at 4).1
I. PROCEDURAL HISTORY AND POSTURE IN THIS MATTER
On October 14, 2025, self-represented Petitioner Paul Fahring (“Petitioner” and/or
“Farhing”) filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody (Non-Death Penalty) (“Petition”) (Doc. 1). The Petition is directed to
Petitioner’s convictions and sentences in Pinal County Superior Court case number CR-
2014-02338 in which Petitioner was convicted of one count of sexual exploitation of a
1 Citation to the record as “Doc.” indicates documents as displayed in the official Court
electronic document filing system maintained by the District of Arizona under Case No.
CV-25-03810-PHX-JAT (DMF).
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minor and two counts of attempted sexual exploitation of a minor (Id. at 1). In his Petition,
Petitioner names Ryan Thornell as Respondent and the Arizona Attorney General as
additional Respondent (Id.). Along with his Petition, Petitioner submitted numerous
attachments as described in the Court’s later February 20, 2026, Order (Doc. 17 at 2-5; see
Doc. 1 at 12-37; Docs. 1-1, 1-2, 1-3, 1-4, 1-5).
The Court’s November 25, 2025, Order screening the Petition described:
Petitioner raises two grounds for relief.
In Ground One, Petitioner claims his Fifth, Sixth, and Fourteenth
Amendment rights were violated because his conviction and sentence are
illegal, there is no factual basis to support his convictions and sentence, and
he is actually innocent. In Ground Two, he asserts his Fifth, Sixth, and
Fourteenth Amendment rights were violated because his conviction and
sentence are illegally multiplicitous, he is actually innocent, and his
conviction violates the prohibition against double jeopardy.
Petitioner contends he presented these issues to the Arizona Court of Appeals
and Arizona Supreme Court.
(Doc. 7 at 1-2). The Court ordered Respondents to answer the Petition (Id. at 4).
On December 1, 2025, Respondents filed an Answer to Petition for Writ of Habeas
Corpus (“Answer”) (Doc. 10), in which Respondents argue that all of Petitioner’s claims
are procedurally defaulted without excuse, not cognizable in these habeas proceedings, or
waived by virtue of his plea agreement (Id. at 5-12). Respondents ask the Court to deny
the Petition, dismiss it with prejudice, and deny a certificate of appealability (Id. at 12-13).
With their Answer, Respondents attached relevant state court documents as described in
the Court’s later February 20, 2026, Order (Doc. 17 at 5-6; see Docs. 10-1, 10-2).
Petitioner timely filed a reply in support of the Petition (“Reply”) (Doc. 16).
Petitioner did not file any additional court records or other materials with his Reply (see
id.).
On January 6, 2026, Petitioner filed a “Motion for an order from the court requiring
the Respondents to correct the record and furnish the missing materials in their possession
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pertinent to this case, a Failure to comply with Rule 5(c)” (Doc. 13). In the motion,
Petitioner argued that Exhibit A and Exhibit J attached to Respondents’ Answer must be
corrected because “Exhibit A is the wrong indictment [because] [i]t was supervened” and
“Exhibit J of the Respondents’ record submission should be replaced with . . . the amended
Petition for Review filed and addressed within the AZ Court of Appeals” (Id. at 2-5).
Petitioner also insisted that transcripts of Petitioner’s statements on 9/17/2014, the
transcript of the grand jury proceedings on 9/29/2014, and the recording of the grand jury
on 9/29/2014 must be added to the record (Id. at 5-9).
After the motion was fully briefed (see Docs. 14, 15), the Court denied Petitioner’s
motion (Doc. 17), noting that the record already contained the “Notice of Supervening
Indictment” and the amended petition for review (Id. at 16). The Court determined that
record supplementation was not warranted (Id. at 17-18). Nevertheless, the Court ordered
Respondents to file a supplemental answer addressing waiver of a constitutional double
jeopardy claim in Petition Ground Two (Id. at 19-22).2
On March 23, 2026, Respondents filed a Supplemental Answer to Petition for Writ
of Habeas Corpus (“Supplemental Answer”) (Doc. 19). In the Supplemental Answer,
Respondents argue that Petitioner waived his constitutional double jeopardy claim in light
of Class v. United States, 583 U.S. 174 (2018), United States v. Broce, 488 U.S. 563 (1989),
Blackledge v. Perry, 417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61 (1975) (Id.
at 2-6). Respondents further argue that Petition Ground Two fails on the merits because
the Arizona Court of Appeals’ decision was not contrary to, nor did it involve an
unreasonable application of, clearly established federal law (Id. at 6-11).
After two extensions of time (Docs. 21, 24), Petitioner filed a Supplemental Reply
to the State’s Supplemental Answer (“Supplemental Reply”) (Doc. 29).
Upon careful review of the parties’ arguments, the record before the Court, and
applicable law, it is recommended as set forth below that the Petition be denied and
2 Petitioner objected to the February 20, 2026, Order (Doc. 18), and the Presiding Judge
overruled Petitioner’s objections (Doc. 22).
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dismissed with prejudice, the Clerk of Court be directed to terminate this matter, and a
certificate of appealability be denied.
II. STATE COURT PROCEEDINGS
A. Charges, Convictions, and Sentences
On September 29, 2014, a Pinal County Superior Court grand jury indicted
Petitioner on ten counts of sexual exploitation of a minor (Doc. 10-1 at 3-5). Each of the
ten counts in the indictment refers to a different image or video knowingly possessed on
September 17, 2014 (Id.). For example, Count 1 charged knowing possession of an image
labeled “Megan smiles as Dad probes that child ass.jpg”; Count 2 charged knowing
possession of an image labeled “Megan opens on bathroom floor.jpg”; and Count 3 charged
knowing possession of an image labeled “Megan holds dads cock.jpg” (Id. at 3).
On September 30, 2014, which was the day after the indictment was issued, the
clerk of the superior court mailed Petitioner a “Notice of Supervening Indictment”3
notifying that Petitioner had been indicted on ten counts of sexual exploitation of a minor
and that his arraignment was set for October 3, 2014 (Doc. 1-1 at 5-6).
On December 15, 2015, and with the assistance of counsel, Petitioner entered into
a plea agreement under which he agreed to plead guilty to one count of sexual exploitation
of a minor and two counts of attempted sexual exploitation of a minor (Doc. 1-1 at 8-10;
Doc. 10-1 at 7-9). At the settlement conference preceding the change of plea hearing, the
prosecutor informed the court that there were two open plea offers (Doc. 10-2 at 174-75).
Under the first offer, Petitioner would plead guilty to one count of sexual exploitation of a
minor and face imprisonment of 10 to 24 years and would plead guilty to two counts of
attempted sexual exploitation with lifetime probation on both counts (Id. at 174). The
3 As the Court previously noted (Doc. 17 at 6 n.3), Petitioner appears to confuse the “Notice
of Supervening Indictment” with the indictment itself. Petitioner attached the “Notice of
Supervening Indictment” as Attachment A to his Petition and refers to it as a “blank”
indictment (Doc. 1 at 18, 29; see Doc. 1-1 at 5-6). However, that document simply notified
Petitioner of an arraignment for charges against him brought by indictment. The
indictment brought against Petitioner is attached to Respondents’ Answer and charged
Petitioner with ten counts of sexual exploitation of a minor relating to ten different images
or videos knowingly possessed on September 17, 2014 (Doc. 10-1 at 3-5).
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second offer was identical to the first offer other than that Petitioner would face 17 years’
imprisonment on the sexual exploitation count (Id. at 175). After further discussion
between the court, the prosecutor, Petitioner, and Petitioner’s attorney (see generally id. at
157-200), Petitioner agreed to the plea offer with 17 years’ imprisonment on the sexual
exploitation count and lifetime probation on two counts of attempted sexual exploitation
(Id. at 200-01).
After the court gave Petitioner and Petitioner’s attorney time to go over the plea
agreement and sign it (Id.), the court began the plea colloquy with Petitioner. Petitioner
affirmed that he wanted to plead guilty to “Count 1, Sexual Exploitation of a Minor, a class
2 felony, dangerous crime against children. And also to Counts 2 and 3 as amended,
Attempted Sexual Exploitation of a Minor, a class -- both class 3 felonies and dangerous
crimes against children” (Id. at 201-02).
During the plea colloquy, Petitioner stated that he has a Ph.D., that he reads and
understands English, and that he took Prozac and Seroquel within the preceding 24 hours
but neither affected his ability to accurately perceive the court proceedings (Id. at 202).
Petitioner’s counsel averred that counsel had no cause to be concerned regarding
Petitioner’s ability to understand the court proceedings (Id. at 202-03).
Petitioner confirmed that he placed his initials on the plea agreement next to each
paragraph after reading the paragraph and having his attorney explain each paragraph and
answer Petitioner’s questions (Id. at 203). Petitioner further stated that he signed the
agreement after reading the entire document as well as having his attorney explain the
entire document and answer Petitioner’s questions regarding the plea agreement (Id.).
Petitioner affirmed that he was not being threatened, forced, or coerced into pleading guilty
to the offenses and that he was not promised anything outside of the plea agreement (Id. at
203-04). Petitioner also affirmed that he understood the penalties associated with his guilty
pleas (Id. at 204-05). In further plea colloquy, the court explained to Petitioner:
THE COURT: [I]f you are not a citizen of the United States, pleading guilty
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or no contest to a crime may affect your immigration status. Admitting guilt
may result in deportation, even if the charge is later dismissed.
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
States, or could prevent you from becoming a United States citizen.
By pleading guilty you are giving up certain constitutional rights. They are
listed in paragraph 11 of your plea agreement.4 I’m going to go over your
rights with you at this time.
You are giving up your right to remain silent, and your privilege against self-
incrimination, and the right to refuse to testify.
You’re giving up your right to confront and cross-examine witnesses to
4 Paragraph 11 of the plea agreement was initialed by Petitioner and states:
I understand that I am giving up the following rights by pleading GUILTY:
a. My right to a jury trial, including the right to a jury determination of
any aggravating sentencing factor(s), including my right to a jury
determination of aggravating circumstances beyond a reasonable
doubt. I further understand that the court, using a preponderance of
evidence standard, may find the existence of aggravating or mitigating
circumstances which may impact my sentence or disposition and may
use factors under the “catch-all” aggravator as the sole factor(s)
for increasing my sentence regardless of whether the State alleged
aggravated factors. The court may find the existence of aggravating
or mitigating circumstances without regard to the Arizona Rules of
Evidence, and from any source, including, but not limited to a pre-
sentence report, letters to the court, victim or witness statements or
any other reliable source.
b. My right to confront the witnesses against me and to cross-examine
them.
c. My right to present evidence and call witnesses in my defense,
knowing the court will compel them to appear and testify at trial.
d. My right to be represented by counsel, appointed free of charge, if I
cannot afford to hire, at all stages of the proceedings.
e. My right to remain silent, to refuse to be a witness against myself, and
to be presumed innocent until proven guilty beyond a reasonable
doubt. And
f. My right to appeal the judgment and sentence to a higher court.
(Doc. 1-1 at 10; Doc. 10-1 at 9).
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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
sentence.
If you enter into a plea of guilty or no contest, the Court, not the jury, will
decide whether aggravating factors exist. You are giving up the right to have
subpoenas issued for your witnesses so they can attend your trial and testify
on your behalf.
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
presumption that you are innocent until proven guilty beyond a reasonable
doubt.
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
proceedings is to file a petition for Post-Conviction Relief. But you must do
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
of that denial, but such review may or may not be granted.
Sir, do you understand all those things?
THE DEFENDANT: Yes.
THE COURT: Do you wish to waive your constitutional rights and plead
guilty to these offenses at this time?
THE DEFENDANT: Yes.
(Doc. 10-2 at 207-08). The court continued:
THE COURT: All right. I will ask formally, how do you plead to Count 1,
Sexual Exploitation of a Minor, a class 2 felony, dangerous crime against
children, committed in violation of those statutes listed in your plea
agreement, committed in or near Casa Grande, Arizona, within Pinal County,
on or between September 17, 2014, guilty or not guilty?
THE DEFENDANT: Guilty.
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
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against children, in violation of those statutes listed in your plea agreement,
both committed in Casa Grande, Arizona, within Pinal County, and both
committed on or between September 17, 2014, guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: And that would be to both 2 and 3.
Sir, do you understand that?
THE DEFENDANT: Yes.
(Doc. 10-2 at 209). Thereafter, Petitioner’s attorney set forth the factual basis for each
Count 1, Count 2 as amended, and Count 3 as amended:
[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.
Paul Fahring knowingly possessed images of minor children that were in
sexually ex- -- sexually exploitative -- knowingly possessed images of minor
children that were in sexually explicit positions. That’s as to Count 1. The
minor children in – depicted in those images were below the age of 15. Mr.
Fahring knew that those minor children in those images were below the age
of 15 when he possessed them.
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,
jurisdiction of this Court, Mr. Paul Fahring attempted to possess a image of
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
15. Mr. Fahring knew that the minor in that image was below the age of 15.
As to Count 3, same date and time, on or about September 17, 2014, in or
near Casa Grande, which is in Pinal County, jurisdiction of this Court, Mr.
Paul Fahring attempted to possess another picture of a minor that was
engaged in a sexually explicit – explicative position --
THE COURT: Or exploitive –
[PETITIONER’S ATTORNEY]: -- or exploitive position. Again, the minor
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.
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THE COURT: All right. And, Mr. Wilkison, would -- those images, they
would contain images of minors either engaged in sexual conduct or the
focus being on the genitals and exploitive exhibition?
[PETITIONER’S ATTORNEY]: That’s correct. In all three, yes.
(Doc. 10-2 at 209-211). Petitioner agreed to the factual basis:
THE COURT: All right. Sir, you heard what your attorney says. Is that, in
fact, what happened in those three counts?
THE DEFENDANT: Yes.
(Id. at 211).5
The court found that Petitioner’s guilty pleas were knowing, intelligent, and
voluntary (Id.). The court accepted Petitioner’s guilty pleas (Id.). At the March 2016
sentencing hearing, the court sentenced Petitioner to 17 years’ imprisonment on Count 1 -
sexual exploitation of a minor - and lifetime probation on each Counts 2 and 3 as amended
- attempted sexual exploitation of a minor (Doc. 1-1 at 16; Doc. 10-1 at 11-15).
B. Post-Conviction Relief (“PCR”) Proceedings
Petitioner timely filed a PCR notice with the trial court (Doc. 10-1 at 18). After
reviewing the plea agreement and the trial court record, Petitioner’s appointed PCR counsel
filed a notice of no colorable claims averring that counsel had found no colorable PCR
claim (Id. at 17-27). On November 17, 2023, Petitioner filed a timely pro per PCR petition
(Id. at 31-72; see Doc. 1-1 at 21 (granting Petitioner until December 18, 2023, to file a PCR
petition)). In the PCR petition, Petitioner argued that Petitioner’s sentences on amended
Counts 2 and 3 should be vacated as unconstitutionally multiplicitous under the Double
Jeopardy Clause of the United States Constitution and that Petitioner was sentenced under
the incorrect Arizona statute on Count 1 (Doc. 10-1 at 31-72). After the state filed a
response and Petitioner filed a reply (Id. at 74-83, 85-96), the trial court summarily denied
5 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
3 charged regarded an image labeled “Megan holds dads cock.jpg” (Doc. 10-1 at 3).
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Petitioner’s pro per PCR petition (Id. at 98).
On June 13, 2024, Petitioner filed a petition for review with the Arizona Court of
Appeals arguing that Petitioner’s sentences on amended Counts 2 and 3 should be vacated
as unconstitutionally multiplicitous under the Double Jeopardy Clause of the United States
Constitution and that Petitioner was sentenced under the incorrect Arizona statute on Count
1 (Doc. 10-2 at 3-17). On July 15, 2024, Petitioner filed an amended petition for review
reasserting his arguments (Doc. 1-2 at 31-45; Doc. 13 at 17-31). The state filed a response,
and Petitioner filed a reply (Doc. 10-2 at 105-122, 124-136). On December 4, 2024, the
Arizona Court of Appeals granted review but denied relief (Id. at 138-40). State v. Fahring,
No. 2 CA-CR 2024-0122-PR, 2024 WL 4976320, at *1-2 (Ariz. Ct. App. Dec. 4, 2024).
In its memorandum decision, the Arizona Court of Appeals explained:
¶4 Fahring reurges his claims on review, first asserting that his sentences are
multiplicitous. “A charge is multiplicitous if it charges a single offense in
multiple counts and thereby raises the potential for multiple punishments for
a single act.” State v. Scott, 243 Ariz. 183, ¶ 9, 403 P.3d 595 (App. 2017).
Fahring reasons that his possession of multiple images is a single offense
because the sexual exploitation statute, A.R.S. § 13-3553, prohibits
possession of “any visual depiction,” which, in his view, means “one or
more” depictions.
¶5 But, by pleading guilty, Fahring waived all non-jurisdictional defects
unrelated to the voluntariness of his plea, including deprivations of
constitutional rights. State v. Flores, 218 Ariz. 407, ¶ 6, 188 P.3d 706 (App.
2008). Accordingly, even were his argument meritorious, after pleading
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.
McPherson, concluding that “separate convictions and punishments for
different images on the same DVD are constitutionally permissible because
the legislature intended the unit of prosecution to be each individual
‘depiction.’” 228 Ariz. 557, ¶ 7, 269 P.3d 1181 (App. 2012) (quoting § 13-
3553(A)(2)).
¶6 Fahring also repeats his argument that the factual basis for his plea did not
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
provide the photographs to the superior court. But, at his change of plea
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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.
P. 17.3(b) (court may consider “defendant’s statements” in determining
factual basis).
(Doc. 10-2 at 138-40). Fahring, 2024 WL 4976320, at *1-2.
Petitioner did not file a petition for review with the Arizona Supreme Court (Id. at
145). The Arizona Court of Appeals issued the mandate on June 9, 2025 (Id.).
III. GROUNDS AND DEFENSES IN THESE HABEAS PROCEEDINGS
Petitioner’s October 2025 Petition initiating these proceedings raises two grounds
for relief (Doc. 1). Petitioner first argues that he was “illegally sentenced under ARS § 13-
705 when he should have been sentenced under ARS § 13-702” (Id. at 23-28). Petitioner
reasons that sentencing under A.R.S. § 13-705 is authorized only if the state can prove that
“the counts involved an actual living minor who is under the age of 15” and no such factual
basis was ever established (Id. at 23-25). Petitioner also argues he is actually innocent of
the crimes to which he pled guilty (Id. at 27). Petitioner claims that he “took a plea because
his computers had been hacked and the state led him to believe that there were thousands
of illegal files on them” and asks the Court to vacate his conviction or in the alternative
order that he be resentenced under A.R.S. § 13-702 (Id.). Petitioner asserts that Ground
One was properly exhausted in the Arizona state courts (Id. at 28).
In Ground Two, Petitioner argues that his convictions are unconstitutionally
multiplicitous (Id. at 32-35). Petitioner reasons that he “pled guilty to 3 counts under
A.R.S. § 13-3553(A)(2) for the single act of simultaneous possession of 3 undefined
images; no photos, victims or their ages were alleged” (Id. at 33). Petitioner argues that
under A.R.S. § 13-3553(A)(2) “any visual depiction” means “one or more visual
depictions” and cites Bell v. United States, 349 U.S. 81 (1955), for the proposition that
“ambiguity in a statute will be resolved against turning a single transaction into multiple
offenses” (Id. at 34-35). Petitioner insists that he could be charged once for possession of
the three images and thus argues that his three convictions violated the Double Jeopardy
Clause of the Fifth Amendment as well as his Fourteenth Amendment right to due process
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(Id.). Petitioner claims that Ground Two was properly exhausted in the Arizona state courts
(Id. at 36).
For relief, Petitioner asks the Court to vacate Petitioner’s convictions and sentences
(Id. at 11).
In their Answer, Respondents concede that the Petition was timely filed (Doc. 10 at
4-5) but argue that all of Petitioner’s claims are not cognizable, procedurally defaulted
without excuse, or waived by virtue of Petitioner’s guilty pleas (Id. at 5-12). Respondents
ask the Court to deny the Petition, dismiss it with prejudice, and deny a certificate of
appealability (Id. at 12-13).
In his Reply, Petitioner contests Respondents’ assertions of procedural default, non-
cognizability, and waiver (Doc. 16). Petitioner insists that his claims were “thoroughly
presented to each court in Arizona in the proper form and in a timely manner” and thus are
not procedurally defaulted (Id. at 6-7, 15). Petitioner argues that his claims are cognizable
because the “state did not follow their own law which violates the USC Fourteenth
Amendment’s guarantee of Due Process” and the Double Jeopardy Clause (Id. at 3-4, 10-
12). Regarding waiver, Petitioner argues that his claims are not waived by virtue of his
guilty plea because his sentence is illegal (Id. at 7-8, 13-14). Petitioner again asserts actual
innocence arguing that no reasonable juror would have convicted him if the jury had known
that “there were never any illegal pictures,” “the prosecutor presented false evidence to the
grand jury,” “the county detective lied to the grand jury,” and “agents threatened to arrest
Petitioner’s girlfriend (whose name appears alone on the search warrant) and put their child
in foster care if he did not confess” (Id. at 9-10, 15).
In their Supplemental Answer, Respondents first argue that Class, Broce,
Blackledge, and Menna are distinguishable from the circumstances here and offer no basis
to exempt Petitioner’s claim from the general rule that a pleading defendant may not raise
claims relating to the deprivation of a constitutional right that occurred prior to the entry
of the guilty plea (Doc. 19 at 2-6). Respondents also argue that Petitioner’s double
jeopardy claim lacks merit (Id. at 6-11). Specifically, Respondents contend that “[i]t is
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well settled in Arizona that the Arizona Legislature intended to criminalize each image that
constitutes child pornography in the defendant’s possession” and Petitioner’s reliance on
Bell v. United States is misplaced (Id. at 9-11).
In his Supplemental Reply, Petitioner contests Respondents’ interpretation of
Class, Broce, Blackledge, and Menna (Doc. 29 at 3-13). Petitioner reasons that he may
challenge his convictions in this Court on double jeopardy grounds because he did not
expressly waive his double jeopardy right (Id. at 14). Petitioner also argues that his guilty
pleas were not made knowingly, voluntarily, and intelligently (Id. at 14-20). Petitioner
next contends that AEDPA does not bar consideration of his habeas claims (Id. at 20-25).
Finally, Petitioner reasserts his argument that his convictions and sentences are
unconstitutional because the proper unit of prosecution is “one or more visual depictions”
(Id. at 25-31).
IV. PROCEDURAL DEFAULT
Respondents argue that Petitioner’s Ground One claim is procedurally defaulted
without excuse (Doc. 10 at 9-10). In his Petition, Reply, and Supplemental Reply,
Petitioner insists that Ground One was properly exhausted in the Arizona state courts (Doc.
1 at 28, 36; Doc. 16 at 6-7, 15; Doc. 29 at 20-25). Respondents do not assert that Ground
Two is procedurally defaulted (see Doc. 10 at 11-12). After careful review of the record
and applicable law, the Court concludes that Ground One and Ground Two are exhausted
for purposes of these habeas proceedings.
A. Legal Framework of Procedural Default
1. Exhaustion
A state prisoner must properly exhaust all state court remedies before a federal court
may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan
v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991).
Arizona prisoners properly exhaust state remedies by fairly presenting claims to the
Arizona Court of Appeals in a procedurally appropriate manner. See O’Sullivan v.
Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.
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1999). To be fairly presented, a claim must include a statement of the operative facts and
the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v.
Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.
1999) (“The mere similarity between a claim of state and federal error is insufficient to
establish exhaustion.”).
In Arizona, a petitioner must fairly present his claims to the Arizona Court of
Appeals by properly pursuing the claims through the state’s direct appeal process or
through appropriate post-conviction relief. See Swoopes, 196 F.3d at 1010; Roettgen v.
Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Castillo v. McFadden, 399 F.3d 993, 998 & n.3
(9th Cir. 2005). Fair presentment of claims to the Arizona Court of Appeals requires a
description of “both the operative facts and the federal legal theory on which [a] claim is
based so that the state courts [could] have a ‘fair opportunity’ to apply controlling legal
principles to the facts bearing upon [the] constitutional claim.” Castillo, 399 F.3d at 999
(quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)).
It is not fair presentment, for example, that “all the facts necessary to support the
federal claim were before the state courts or that a somewhat similar state-law claim was
made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation omitted).
It is also not enough to rely on a “general appeal to a constitutional guarantee as broad as
due process to present the ‘substance’ of such a claim to a state court.” Gray, 518 U.S. at
163; see also Castillo, 399 F.3d at 1002-03 (finding habeas petitioner did not give the state
appellate court a fair opportunity to rule on a federal due process claim because
“[e]xhaustion demands more than drive-by citation, detached from any articulation of an
underlying federal legal theory,” and the petitioner’s claim in state court was a “conclusory,
scattershot citation of federal constitutional provisions, divorced from any articulated
federal legal theory”). It is also not fair presentment if the state court “must read beyond a
petition or a brief . . . in order to find material” that alerts it to the presence of a federal
claim. Baldwin, 541 U.S. at 32 (concluding that a petitioner does not “fairly present” an
issue for exhaustion purposes when the appellate judge can only discover the issue by
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reading a lower court opinion in the case).
Fair presentment is not achieved by raising the claim for “the first and only time in
a procedural context in which its merits will not be considered,” unless there are special
circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). As example, raising a claim
for the first time in a discretionary petition for review to the Arizona Supreme Court or in
a special action petition is not sufficient to achieve fair presentment. See Casey v. Moore,
386 F.3d 896, 918 (9th Cir. 2004) (“Because we conclude that Casey raised his federal
constitutional claims for the first and only time to the state’s highest court on discretionary
review, he did not fairly present them.” (footnote omitted)).
2. Procedural Default
A corollary to the exhaustion requirement is the “procedural default doctrine.” The
procedural default doctrine limits a petitioner from proceeding in federal court where his
claim is procedurally barred in state court and is rooted “in the general principle that federal
courts will not disturb state court judgments based on adequate and independent state law
procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392 (2004). If a petitioner fails to
fairly present his claim to the state courts in a procedurally appropriate manner, the claim
is procedurally defaulted and generally barred from federal habeas review. Ylst v.
Nunnemaker, 501 U.S. 797, 802-05 (1991). There are two categories of procedural default.
First, a claim may be procedurally defaulted in federal court if it was actually raised
in state court but found by the state court to be defaulted on state procedural grounds.
Coleman, 501 U.S. at 729-30. This is called an express procedural bar. An express
procedural bar exists if the state court denies or dismisses a claim based on a procedural
bar “that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis
for the court’s decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536
U.S. 856, 860 (2002) (Arizona’s “Rule 32.2(a)(3) determinations are independent of
federal law because they do not depend upon a federal constitutional ruling on the merits.”);
Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state
strictly or regularly follows its procedural rule).
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Moreover, if a state court applies a procedural bar, but goes on to alternatively
address the merits of the federal claim, the claim is still barred from federal review. See
Harris, 489 U.S. at 264 n.10 (“[A] state court need not fear reaching the merits of a federal
claim in an alternative holding. By its very definition, the adequate and independent state
ground doctrine requires the federal court to honor a state holding that is a sufficient basis
for the state court’s judgment, even when the state court also relies on federal law. . . . In
this way, a state court may reach a federal question without sacrificing its interests in
finality, federalism, and comity.” (citations omitted)); Bennett v. Mueller, 322 F.3d 573,
580 (9th Cir. 2003) (“A state court’s application of a procedural rule is not undermined
where, as here, the state court simultaneously rejects the merits of the claim.” (citing
Harris, 489 U.S. at 264 n.10)).
Second, the claim may be procedurally defaulted if the petitioner failed to present
the claim in a necessary state court and “the court to which the petitioner would be required
to present his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred.” Coleman, 501 U.S. at 735 n.1; Boerckel, 526 U.S. at 848 (holding
that when time for filing state court petition has expired, petitioner’s failure to timely
present claims to state court results in a procedural default of those claims); Smith v.
Baldwin, 510 F.3d 1127, 1138 (9th Cir. 2007) (holding that failure to exhaust claims in
state court resulted in procedural default of claims for federal habeas purposes when state’s
rules for filing petition for post-conviction relief barred petitioner from returning to state
court to exhaust his claims). This is called an implied procedural bar. Robinson v. Schriro,
595 F.3d 1086, 1100 (9th Cir. 2010). This type of procedural default is often referred to
as “technical” exhaustion because although the claim was not actually exhausted in state
court, the petitioner no longer has an available state remedy. Coleman, 501 U.S. at 732
(“A habeas petitioner who has defaulted his federal claims in state court meets the technical
requirements for exhaustion; there are no state remedies any longer ‘available’ to him.”).
In Arizona, claims not properly presented to the state courts are generally barred
from federal review because an attempt to return to state court to present them is futile
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unless the claims fit in a narrow category of claims for which a successive petition is
permitted. See Ariz. R. Crim. P. 32.1(b)–(h), 32.2(b), 33.1(b)–(h), 33.2(b)(1) (limiting
successive petitions for post-conviction relief to claims of: court lacked subject-matter
jurisdiction to render judgment or impose sentence; sentence, as imposed, not authorized
by law or plea agreement; custody continues or will continue beyond sentence’s expiration;
newly-discovered material facts that would have changed the outcome; defendant not at
fault for failure to file a timely PCR notice; significant change in the law, retroactively
applicable, would probably overturn conviction or sentence; actual innocence).
Besides preclusion, Arizona has a time bar requiring a PCR notice in a non-capital
case to be filed either “within 90 days after the oral pronouncement of sentence” (all
defendants) or “within 30 days after the issuance of the mandate in the direct appeal,
whichever is later” (non-pleading defendants only). Ariz. R. Crim. P. 32.4(b)(3)(A); Ariz.
R. Crim. P. 33.4(b)(3)(A); Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997)
(recognizing untimeliness bar under former Rule 32.4(a) as a basis for dismissing an
Arizona petition for post-conviction relief, distinct from preclusion under former Rule
32.2(a)); State v. Lopez, 234 Ariz. 513, 514-15, 323 P.3d 1164, 1165-66, ¶¶ 5-9 (Ct. App.
2014) (discussing differences between the time-bar rule, former Rule 32.4(a), and the
waiver rule, former Rule 32.2(a)(3)).6 As with the preclusion bar, an untimely PCR notice
is only permitted for a narrow category of claims—the same narrow category of claims that
are exempted from the preclusion bar. See Ariz. R. Crim. P. 32.1(b)-(h), 32.4(b)(3)(B),
33.1(b)-(h), 33.4(b)(3)(B). If a claim does not fall within one of the narrow exceptions or
6 Effective January 1, 2020, former Arizona Rules of Criminal Procedure (“Rules”) 32 and
33 were abrogated, and new Rules 32 and 33 were adopted. See Arizona Supreme Court
Order No. R-19-0012. As a general matter, the substance of former Rule 32 was divided
among the two new rules based on whether a defendant was convicted at trial (new Rule
32) or had pled guilty or no contest (new Rule 33). See id.; Pet. to Amend (Jan. 10, 2019),
at 4-5. New Rule 33 thus encompasses the rules applicable to a defendant’s right to seek
post-conviction relief when the defendant is convicted following a guilty plea. New Rule
32 and new Rule 33 apply to “all actions filed on or after January 1, 2020,” and to “all other
actions pending on January 1, 2020, except to the extent that the court in an affected action
determines that applying the rule or amendment would be infeasible or work an injustice,
in which event the former rule or procedure applies.” Arizona Supreme Court Order No.
R-19-0012.
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is filed outside the time limits, the PCR notice is subject to summary dismissal. See, e.g.,
State v. Diaz, 228 Ariz. 541, 543-45, 269 P.3d 717, 719-21, ¶¶ 5-13 (Ct. App. 2012); State
v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 228, ¶ 7 (Ct. App. 1999).
Arizona courts have consistently applied Arizona’s procedural rules to bar further
review of claims that were not properly raised on direct appeal or in prior PCR proceedings.
See, e.g., Smith, 536 U.S. at 860 (holding that determinations made under Arizona’s
procedural default rule are “independent” of federal law); Beaty v. Stewart, 303 F.3d 975,
987 (9th Cir. 2002) (finding unexhausted claims were procedurally defaulted because
petitioner was “now time-barred under Arizona law from going back to state court”); Smith
v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) (“We have held that Arizona’s
procedural default rule is regularly followed [or “adequate”] in several cases.” (citations
omitted)), rev’d on other grounds, Smith, 536 U.S. at 856; State v. Mata, 185 Ariz. 319,
334-36, 916 P.2d 1035, 1050-52 (1996) (strictly applying waiver and preclusion rules in
post-conviction proceedings). A petitioner who fails to follow a state’s procedural
requirements for presenting a valid claim deprives the state court of an opportunity to
address the claim in much the same manner as a petitioner who completely fails to attempt
to exhaust his state remedies. In Arizona, “ineffective assistance of counsel claims should
be raised in [PCR] proceedings pursuant to rule 32, Arizona Rules of Criminal Procedure.”
Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001) (quoting State v. Atwood, 171
Ariz. 576, 599, 832 P.2d 593, 616 (1992)). Regarding Arizona convictions not carrying a
life sentence or the death penalty, to properly exhaust a PCR claim for habeas purposes,
the claim must be raised in the trial court and in the Arizona Court of Appeals. See Ariz.
R. Crim. P. 32; Swoopes, 196 F.3d at 1010; Castillo, 399 F.3d at 999.
3. Excuse for Procedural Default
A habeas court may review a procedurally defaulted claim if the petitioner can
demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or
(2) a miscarriage of justice/actual innocence. Schlup v. Delo, 513 U.S. 298, 321 (1995);
Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is
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something that “cannot be fairly attributable” to a petitioner, and a petitioner must show
that this “objective factor external to the defense impeded [his] efforts to comply with the
State’s procedural rule.” Coleman, 501 U.S. at 753 (citation and internal quotation marks
omitted). To establish prejudice a “habeas petitioner must show ‘not merely that the errors
at . . . trial created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’”
Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)
(emphasis in original)). “Such a showing of pervasive actual prejudice can hardly be
thought to constitute anything other than a showing that the prisoner was denied
‘fundamental fairness’ at trial.” Id.
The miscarriage of justice exception to procedural default “is limited to those
extraordinary cases where the petitioner asserts his [actual] innocence and establishes that
the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles,
541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual
innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the
crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623
(1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). Significantly, “[t]o be
credible, [a claim of actual innocence] requires petitioner to support his allegations of
constitutional error with new reliable evidence–whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S.
at 324; see also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin v. Perkins,
569 U.S. 383, 399 (2013) (explaining the significance of an “[u]nexplained delay in
presenting new evidence”). A petitioner “must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new evidence.” McQuiggin,
569 U.S. at 399 (quoting Schlup, 513 U.S. at 327). Because of “the rarity of such evidence,
in virtually every case, the allegation of actual innocence has been summarily rejected.”
Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523
U.S. 538, 559 (1998)).
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B. Procedural Status of Petitioner’s Claims
1. Ground One is Exhausted
In Ground One of the Petition, Petitioner argues that he was illegally sentenced
under A.R.S. § 13-705 because no facts established that the children depicted in the images
were under the age of fifteen7 (Doc. 1 at 23-27). In support of his Ground One argument,
Petitioner argues that his sentences violate the Fifth and Fourteen Amendments and cites
Supreme Court cases for the proposition that a conviction must be supported by a factual
basis (Id.).
In his PCR petition, Petitioner raised his Ground One argument. There, Petitioner
argued that he was sentenced under A.R.S. § 13-705 in violation of the Fifth and Fourteen
Amendments (Doc. 10-1 at 49). Petitioner further cited Supreme Court cases, arguing that
a guilty plea and conviction must be supported by a factual basis (Id. at 49-54). In his
amended petition for review filed with the Arizona Court of Appeals, Petitioner again
argued that he was sentenced under A.R.S. § 13-705 in violation of the Fifth and Fourteen
Amendments (Doc. 1-2 at 41-43; Doc. 13 at 27-29).
Petitioner’s Ground One claim is therefore properly exhausted for purposes of these
habeas proceedings.
2. Ground Two is Exhausted
In Ground Two of the Petition, Petitioner asserts his three convictions are illegally
multiplicitous in violation of the Fifth Amendment Double Jeopardy Clause (Doc. 1 at 32-
35). Petitioner cites several United States Supreme Court cases in support of his argument
(Id.).
Respondents do not challenge that Ground Two of the Petition is properly exhausted
(see Doc. 10 at 11-12). Indeed, Petitioner argued that his convictions violate the Double
Jeopardy Clause of the Fifth Amendment in both his PCR petition before the trial court and
his petition for review before the Arizona Court of Appeals (Doc. 10-1 at 42-48; Doc 13 at
7 A.R.S. § 13-3553(C) provides that “[s]exual exploitation of a minor is a class 2 felony
and if the minor is under fifteen years of age it is punishable pursuant to § 13-705.”
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21, 25-27). Petitioner’s Ground Two claim is therefore properly exhausted for purposes of
these habeas proceedings.
V. COGNIZABILITY
Respondents contend that Grounds One and Two present issues of state law and are
not cognizable in these federal habeas proceedings (Doc. 10 at 9, 11). In his Reply,
Petitioner asserts that his claims are cognizable (Doc. 16 at 3-5, 10-12). After careful
review of the record and applicable law, the Court concludes that Ground One and Ground
Two are cognizable in these habeas proceedings.
A. Legal Framework of Cognizability
A federal court may grant habeas relief “only on the ground that [Petitioner] is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). “[V]iolations of state law are not cognizable on federal habeas review.”
Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010); Lewis v. Jeffers, 497 U.S. 764,
781 (1990) (allowing habeas review of errors of state law only where “state court’s finding
was so arbitrary or capricious as to constitute an independent [constitutional] violation”).
Further, a habeas petitioner cannot “transform a state law issue into a federal one merely
by asserting a violation of due process,” Poland v. Stewart, 169 F.3d 573, 584 (9th Cir.
1999) (quoting Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)).
B. Cognizability of Petitioner’s Claims
1. Ground One is Cognizable
Regarding Petition Ground One, Petitioner argues that his sentences violate the
Fifth, Sixth, and Fourteen Amendments and cites Supreme Court cases for the proposition
that due process requires a conviction to be supported by a factual basis (Doc. 1 at 23-27).
Respondents argue that “[Petitioner’s] assertion that his sentence was ‘unlawful in
violation of the US Constitution and directly contradict SCOTUS precedent,’ . . . is
insufficient to state a claim cognizable in this proceeding” (Doc. 10 at 9). Yet, the Court
described Petitioner’s claim as asserting a violation of “his Fifth, Sixth, and Fourteenth
Amendment rights . . . because his conviction and sentence are illegal [and] there is no
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factual basis to support his convictions and sentence” (Doc. 7 at 2). Moreover, the thrust
of Petitioner’s Ground One argument is that the factual basis as to the ages of the children
depicted was never established in violation of the Fifth, Sixth, and Fourteenth Amendments
(see Doc. 1 at 23-27). Ground One is cognizable in these federal habeas proceedings.
2. Ground Two is Cognizable
Regarding Ground Two, Petitioner argues that his convictions are illegally
multiplicitous in violation of the Fifth Amendment Double Jeopardy Clause and cites
several United States Supreme Court cases in support of his argument (Doc. 1 at 32-35).
Respondents argue that Ground Two “challenges the trial court’s application of state
sentencing law [and] is not cognizable in this federal habeas proceeding” (Doc. 10 at 11).
However, the Court described that in Ground Two Petitioner “asserts his Fifth, Sixth, and
Fourteenth Amendment rights were violated because his conviction and sentence are
illegally multiplicitous . . . and his conviction violates the prohibition against double
jeopardy” (Doc. 7 at 2). Moreover, Petitioner cites the Fifth Amendment’s prohibition
against double jeopardy and cites Supreme Court cases for the proposition that
multiplicitous counts must be vacated (Doc. 1 at 29-35). Ground Two is cognizable in
these federal habeas proceedings.
VI. WAIVER
In their Answer and Supplemental Answer, Respondents assert that Grounds One
and Two are waived by virtue of Petitioner’s guilty pleas. After careful review of the
record and applicable law, the Court concludes that Ground One is waived and Ground
Two is not waived.8
8 Undersigned assumes without deciding that AEDPA deference does not preclude the
below waiver analysis. Deference under § 2254(d) applies to “any claim that was
adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d) (emphasis
added). A “claim” for purposes of AEDPA is “an asserted federal basis for relief from a
state court’s judgment of conviction.” Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). The
Third Circuit has concluded that a state court’s determination regarding waiver is not a
claim entitled to deference under § 2254(d). Fahy v. Horn, 516 F.3d 169, 180 (3d Cir.
2008). In a withdrawn opinion, the Ninth Circuit “agree[d] with [the Third Circuit] without
the slightest reservation.” Kirkpatrick v. Chappell, 872 F.3d 1047, 1058 (9th Cir. 2017),
opinion withdrawn on reh’g, 926 F.3d 1157 (9th Cir. 2019), opinion amended and
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A. Legal Framework of Waiver by Pleading Guilty
“When a criminal defendant has solemnly admitted in open court that he is in fact
guilty of the offense with which he is charged, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights that occurred prior to the entry of
the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). Unless the petitioner
alleges his plea was involuntary or improperly induced by ineffective assistance of counsel,
a conviction based on a guilty plea may not be challenged in a federal habeas proceeding,
“despite various forms of misapprehension under which a defendant might [have]
labor[ed].” Lambert v. Blodgett, 393 F.3d 943, 981 n.26 (9th Cir. 2004) (internal marks
omitted) (collecting cases); see Tollett, 411 U.S. at 267.
However, there is a narrow exception to Tollett waiver. Namely, a pleading
defendant does not waive a claim that a charge brought against him is one which the
government may not constitutionally prosecute. See Menna v. New York, 423 U.S. 61, 62
(1975) (“Where the State is precluded by the United States Constitution from haling a
defendant into court on a charge, federal law requires that a conviction on that charge be
set aside even if the conviction was entered pursuant to a counseled plea of guilty.” (citing
Blackledge v. Perry, 417 U.S. 21, 30 (1974))). In Class v. United States, 583 U.S. 174,
175-85 (2018), the Supreme Court applied the Menna-Blackledge doctrine and determined
that a constitutional claim based upon the state court record that would extinguish the
government’s power to constitutionally prosecute a defendant was not waived by a guilty
plea. The Supreme Court explained:
In more recent years, we have reaffirmed the Menna–Blackledge doctrine
superseded on denial of reh’g, 950 F.3d 1118 (9th Cir. 2020). Therefore, to the extent that
the Arizona Court of Appeals concluded that Petitioner’s claims were waived, undersigned
assumes that deference under § 2254(d) does not apply. Moreover, the Arizona Court of
Appeals addressed waiver of only non-jurisdictional defects. Fahring, 2024 WL 4976320,
at *1 (“Fahring waived all non-jurisdictional defects unrelated to the voluntariness of his
plea, including deprivations of constitutional rights.”). The court of appeals did not make
any determination with respect to waiver of jurisdictional defects as discussed below. See
United States v. Brown, 875 F.3d 1235, 1239 n.2 (9th Cir. 2017) (describing a double
jeopardy claim as “jurisdictional” (citing Menna, 423 U.S. at 62)).
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and refined its scope. In United States v. Broce, 488 U.S. 563, 109 S.Ct. 757,
102 L.Ed.2d 927 (1989), the defendants pleaded guilty to two separate
indictments in a single proceeding which “on their face” described two
separate bid-rigging conspiracies. Id., at 576, 109 S.Ct. 757. They later
sought to challenge their convictions on double jeopardy grounds, arguing
that they had only admitted to one conspiracy. Citing Blackledge and Menna,
this Court repeated that a guilty plea does not bar a claim on appeal “where
on the face of the record the court had no power to enter the conviction or
impose the sentence.” 488 U.S., at 569, 109 S.Ct. 757. However, because the
defendants could not “prove their claim by relying on those indictments and
the existing record” and “without contradicting those indictments,” this
Court held that their claims were “foreclosed by the admissions inherent in
their guilty pleas.” Id., at 576, 109 S.Ct. 757.
Unlike the claims in Broce, Class’ constitutional claims here, as we
understand them, do not contradict the terms of the indictment or the written
plea agreement. They are consistent with Class’ knowing, voluntary, and
intelligent admission that he did what the indictment alleged. Those claims
can be “resolved without any need to venture beyond that record.” Id., at 575,
109 S.Ct. 757.
Nor do Class’ claims focus upon case-related constitutional defects that
“‘occurred prior to the entry of the guilty plea.’” Blackledge, 417 U.S., at 30,
94 S.Ct. 2098. They could not, for example, “have been ‘cured’ through a
new indictment by a properly selected grand jury.” Ibid. (citing Tollett, 411
U.S., at 267, 93 S.Ct. 1602). Because the defendant has admitted the charges
against him, a guilty plea makes the latter kind of constitutional claim
“irrelevant to the constitutional validity of the conviction.” Haring v. Prosise,
462 U.S. 306, 321, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983). But the cases to
which we have referred make clear that a defendant’s guilty plea does not
make irrelevant the kind of constitutional claim Class seeks to make.
In sum, the claims at issue here do not fall within any of the categories of
claims that Class’ plea agreement forbids him to raise on direct appeal. They
challenge the Government’s power to criminalize Class’ (admitted) conduct.
They thereby call into question the Government’s power to “‘constitutionally
prosecute’” him. Broce, supra, at 575, 109 S.Ct. 757 (quoting Menna, supra,
at 61-62, n.2, 96 S.Ct. 241). A guilty plea does not bar a direct appeal in these
circumstances.
Class, 583 U.S. at 180-83.
Thus, a pleading defendant does not waive a claim that—judged on its face and
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consistent with defendant’s admitted conduct—the charge is one which the government
may not constitutionally prosecute. Id.; Blackledge, 417 U.S. at 30-31; Menna, 423 U.S.
at 63; Broce, 488 U.S. at 575.
B. Discussion
1. Ground One is Waived
In Ground One of the Petition, Petitioner argues that he was sentenced under the
wrong Arizona statute because there was no factual basis to establish the ages of the
children depicted (Id. at 23-26). Petitioner’s arguments do not challenge the knowing,
voluntary, and intelligent character of the guilty pleas.9
At first blush, Petitioner appears to challenge a defect which occurred at sentencing
by asserting that he was incorrectly sentenced under A.R.S. § 13-705 when he should have
been sentenced under A.R.S. § 13-702 (Doc. 1 at 23). However, the predicate for
Petitioner’s illegal sentence argument rests on Petitioner’s argument that the factual basis
for the ages of the children depicted was never established.
At the plea hearing, Petitioner agreed to the factual basis set forth and agreed that
the images depicted minor children under the age of fifteen (see Doc. 10-2 at 209-211). As
discussed above, Petitioner’s trial counsel set forth the following factual basis:
[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.
Paul Fahring knowingly possessed images of minor children that were in
sexually ex- -- sexually exploitative -- knowingly possessed images of minor
children that were in sexually explicit positions. That’s as to Count 1. The
minor children in – depicted in those images were below the age of 15. Mr.
Fahring knew that those minor children in those images were below the age
of 15 when he possessed them.
9 In his Supplemental Reply, Petitioner for the first time challenges the knowing, voluntary,
and intelligent nature of his guilty pleas (Doc. 29 at 14-20). Yet, a reply brief may not raise
new grounds for relief. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994)
(“A Traverse is not the proper pleading to raise additional grounds for relief. In order for
the State to be properly advised of additional claims, they should be presented in an
amended petition or . . . in a statement of additional grounds.”); Zamani v. Carnes, 491
F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for
the first time in a reply brief.”). In any event, the state court record clearly establishes that
Petitioner’s guilty pleas were knowing, voluntary, and intelligent.
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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,
jurisdiction of this Court, Mr. Paul Fahring attempted to possess a image of
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
15. Mr. Fahring knew that the minor in that image was below the age of 15.
As to Count 3, same date and time, on or about September 17, 2014, in or
near Casa Grande, which is in Pinal County, jurisdiction of this Court, Mr.
Paul Fahring attempted to possess another picture of a minor that was
engaged in a sexually explicit – explicative position --
THE COURT: Or exploitive –
[PETITIONER’S ATTORNEY]: -- or exploitive position. Again, the minor
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.
THE COURT: All right. And, Mr. Wilkison, would -- those images, they
would contain images of minors either engaged in sexual conduct or the
focus being on the genitals and exploitive exhibition?
[PETITIONER’S ATTORNEY]: That’s correct. In all three, yes.
. . .
THE COURT: All right. Sir, you heard what your attorney says. Is that, in
fact, what happened in those three counts?
THE DEFENDANT: Yes.
(Doc. 10-2 at 209-211).
Petitioner further stated that he understood that by pleading guilty he would give up
constitutional rights such as the right to a jury trial, the right to confront witnesses, the right
to present evidence and call witnesses in defense, the right to be represented by counsel,
the right to remain silent, the right to refuse to be a witness against himself, the right to be
presumed innocent until proven guilty beyond a reasonable doubt, and the right to appeal
the judgment and sentence to a higher court (Id. at 207-08; see also Doc. 10-1 at 9). The
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court found that Petitioner’s guilty pleas were knowing, voluntary, and intelligent; the court
accepted Petitioner’s guilty pleas (Doc. 10-2 at 211). Upon review of the record, there is
no indication that Petitioner’s guilty plea was not knowing, voluntary, or intelligent.
Indeed, the state court record clearly establishes that Petitioner’s guilty pleas were
knowing, voluntary, and intelligent. Petitioner thus waived any objections to the court’s
entry of judgment against him pursuant to the terms of the plea agreement based on the
agreed to factual basis given for the charges. See Menna, 423 U.S. at 62 n.2 (“[A]
counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary
and intelligent, it quite validly removes the issue of factual guilt from the case.”).
Moreover, the plea agreement provided that Petitioner “hereby waives and gives up
all motions, defenses, objections, or requests which he has made or raised, or could assert
hereafter, to the court’s entry of judgment against him and imposition of a sentence upon
him consistent with this agreement.” (Doc. 10-1 at 8). The plea agreement further stated
that the parties stipulate to a sentence of 17 years’ imprisonment on Count 1 and lifetime
probation on Counts 2 and 3 as amended (Id.). Petitioner initialed next to each term of the
plea agreement, signed the plea agreement, and stated during the plea colloquy that he
understood and agreed to the terms of the plea agreement (Id.; Doc. 10-2 at 203-09). The
court thereafter sentenced Petitioner to 17 years’ imprisonment on Count 1 and lifetime
probation on Counts 2 and 3 as amended (Doc. 10-1 at 11-15). Thus, Petitioner voluntarily
waived any objections to the trial court’s imposition of a sentence consistent with the terms
of the plea agreement.
Therefore, Petitioner voluntarily waived any objections to the trial court’s
imposition of a sentence based on the agreed to factual basis and consistent with the terms
of the plea agreement. It is recommended that Ground One of the Petition be dismissed
with prejudice as waived.
2. Ground Two is Not Waived
In Ground Two of the Petition, Petitioner argues that his convictions are illegally
multiplicitous in violation of the Fifth Amendment Double Jeopardy Clause (Doc. 1 at 32-
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35). Respondents argue that Ground Two is waived (Doc. 10 at 11-12).
Much like the defendants in Class, Blackledge, and Menna, Petitioner has raised an
argument that the state may not constitutionally prosecute him in Ground Two of the
Petition. Petitioner contends that the state may prosecute him only once for possession of
the three images. Such an argument is consistent with Petitioner’s admitted conduct and
his claim can be analyzed without venturing beyond the record of the state court
proceedings. Thus, consistent with the Menna-Blackledge doctrine as discussed in Class,
undersigned concludes that Petitioner’s Ground Two double jeopardy claim is not waived.
See Lemke v. Ryan, 719 F.3d 1093, 1097 (9th Cir. 2013) (concluding that a § 2254
petitioner did not waive a double jeopardy claim because the court could resolve the claim
“solely by reviewing the face of the indictment, the guilty plea, and the judgments entered
against [the petitioner] ‘without any need to venture beyond [the existing] record.’”
(quoting Broce, 488 U.S. at 575)).
Respondents raise several arguments against a finding of non-waiver (Doc. 19 at 2-
6), but the arguments are not persuasive.
First, Respondents appear to contest whether Class, Broce, Blackledge, and Menna
apply to claims raised in AEDPA proceedings (Id. at 2 n.1). Yet, the Ninth Circuit has
applied Menna and Broce post-AEDPA to determine that a § 2254 petitioner’s “double
jeopardy claim is not waived merely by his entry of a plea of guilty.” Lemke, 719 F.3d at
1097. Additionally, Respondents have asserted no convincing reason why the waiver
principles discussed in Class, Broce, Blackledge, and Menna do not apply to the waiver
analysis here.
Respondents next argue that Class is distinguishable because there the Supreme
Court considered inherent waiver while here Petitioner expressly “waived his right to
appeal all claims he ‘has made or raised, or could assert hereafter, to the court’s entry of
judgment against him and imposition of a sentence upon him consistent with this
agreement’” (Doc. 19 at 2-3). To the extent Respondents argue that Petitioner waived his
right to bring this collateral action under § 2254, Respondents are incorrect. Importantly,
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Petitioner’s plea agreement does not include an express collateral attack waiver (see Doc.
10-1 at 7-9) and the Ninth Circuit has made clear that “a waiver of collateral attack must
be express, and that a plain waiver of appeal does not suffice.” Crespin v. Ryan, 46 F.4th
803, 809 (9th Cir. 2022) (quoting Lemke, 719 F.3d at 1096).
Moreover, Petitioner did not expressly waive a double jeopardy claim. In Lemke,
the Ninth Circuit considered a plea agreement with a waiver provision identical to the
provision contained in Petitioner’s plea agreement and quoted by Respondents (see Doc.
19 at 3). Compare Lemke, 719 F.3d at 1096 with Doc. 10-1 at 8.10 The Ninth Circuit noted
that the text of the waiver “does not refer specifically to double jeopardy or any other
particular subject matter” and “appears to be limited to matters arising in the trial court
apart from any collateral attack.” Lemke, 719 F.3d at 1098. Finding the provision to be
ambiguous, the Ninth Circuit construed the plea agreement against the state and determined
that the petitioner’s double jeopardy claim was not expressly waived. Id. Similarly,
Petitioner’s double jeopardy claim here is not expressly waived.
Respondents continue by arguing that Petitioner’s double jeopardy challenge does
not fall under the waiver exception because the challenge, if successful, would not entirely
extinguish the government’s power to constitutionally prosecute him (Doc. 19 at 3). Citing
United States v. Chavez-Diaz, 949 F.3d 1202, 1209-10 (9th Cir. 2020), Respondents
contend that the exception applies only if “the government cannot prosecute the defendant
at all” (Id.). Because a successful claim would extinguish the government’s power to
prosecute just two of the three indictment counts, Respondents argue that Chavez-Diaz
precludes a determination of non-waiver (Id.).
10 Both waiver provisions state:
[T]he Defendant hereby waives and gives up any and all motions, defenses,
objections, or requests which he has made or raised, or could assert hereafter, to the
court’s entry of judgment against him and the imposition of a sentence upon him
consistent with this agreement. By entering this agreement, the Defendant further
waives and gives up the right to appeal.
Lemke, 719 F.3d at 1096; Doc. 10-1 at 8.
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Yet in Chavez-Diaz, the Ninth Circuit’s waiver discussion was predicated on the
defendant’s plea of guilty to a single count of illegal entry into the United States. 949 F.3d
at 1204. The petitioner challenged his conviction but conceded that “if his claims were
successful, the government could still retry him.” Id. at 1029. The Ninth Circuit
determined that the Menna-Blackledge exception therefore did not apply because the
petitioner’s challenges did not “amount[] to a claim that ‘the State may not convict’ him”
Id. (quoting Class, 583 U.S. at 179). Here, Petitioner’s challenge, if successful, would
completely extinguish the state’s power to prosecute two of the three charges against
Petitioner. Chavez-Diaz is therefore inapposite.
Moreover, Respondents’ reading of Chavez-Diaz is inconsistent with the Supreme
Court’s holding in Menna—“a plea of guilty to a charge does not waive a claim that judged
on its face the charge is one which the State may not constitutionally prosecute.” 423 U.S.
at 63 n.2. The relevant analysis considers whether the state may constitutionally prosecute
a specific charge brought against a defendant. See id at 62 (“Where the State is precluded
by the United States Constitution from haling a defendant into court on a charge, federal
law requires that a conviction on that charge be set aside even if the conviction was entered
pursuant to a counseled plea of guilty.” (emphasis added)). Chavez-Diaz does not foreclose
a finding of non-waiver.
Finally, Respondents argue that the facts of Broce, Blackledge, and Menna are
distinguishable and thus the cases provide no basis to exempt Petitioner’s double jeopardy
claim from waiver (Doc. 19 at 4-6). However, the factual differences between those claims
and the instant double jeopardy claim do alter the governing legal principles. Supreme
Court and Ninth Circuit precedent hold that a double jeopardy claim is not waived merely
by entry of a guilty plea if the claim can be resolved by reviewing the face of the indictment,
the guilty plea, and the judgments entered against defendant without any need to venture
beyond the state court record. Such is the case here.
Petitioner’s Ground Two double jeopardy claim is not waived.
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VII. GROUND TWO FAILS ON THE MERITS
In their Supplemental Answer, Respondents argue that Petitioner’s Ground Two
double jeopardy claim lacks merit (Doc. 19 at 6-11). In Ground Two, Petitioner argues
that his convictions and sentences are unconstitutionally multiplicitous and reasons that he
“pled guilty to 3 counts under A.R.S. § 13-3553(A)(2) for the single act of simultaneous
possession of 3 undefined images” (Doc. 1 at 32-35). Petitioner insists that he could be
charged only once for possession of the three images and thus argues that his three
convictions violate the Double Jeopardy Clause of the Fifth Amendment as well as his
Fourteenth Amendment right to due process (Id.).
A. 28 U.S.C. § 2254 – Legal Standard of Review
On habeas review of claims adjudicated on the merits in a state court proceeding,
relief can be granted only if Petitioner demonstrates that the state court’s adjudication of
the claim either “(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). This is a “‘highly deferential standard for evaluating state-court rulings’ which
demands that state-court decisions be given the benefit of the doubt.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal citation omitted) (quoting Lindh v.
Murphy, 521 U.S. 320, 333 n.7 (1997)). A federal court “look[s] to the last reasoned state
court decision” to make a determination on a claim pursuant to Section 2254(d). White v.
Ryan, 895 F.3d 641, 665 (9th Cir. 2018) (citing Wilson v. Sellers, 584 U.S. 122, 125
(2018)).
Under the “unreasonable application” prong of Section 2254(d)(1), a federal habeas
court may grant relief where a state court “identifies the correct governing legal rule from
[the Supreme] Court’s cases but unreasonably applies it to the facts of the particular . . .
case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to extend that principle to a new
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context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). For a federal
court to find a state court’s application of Supreme Court precedent “unreasonable” under
Section 2254(d)(1), the petitioner must show that the state court’s decision was not merely
incorrect or erroneous, but “objectively unreasonable.” Id. at 409.
To make a determination pursuant to Section 2254(d)(1), the Court first identifies
the “clearly established Federal law,” if any, that governs the sufficiency of the claims on
habeas review. “Clearly established” federal law consists of the holdings of the United
States Supreme Court which existed at the time the petitioner’s state court conviction
became final. Id. at 412. The Supreme Court has emphasized that “an unreasonable
application of federal law is different from an incorrect or erroneous application of federal
law.” Id. (emphasis in original). Under AEDPA, “[a] state court’s determination that a
claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011). Accordingly, to obtain habeas relief from this Court, Petitioner “must show
that the state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at 103. Stated another way, a
decision unreasonably applies “[Supreme Court] holdings when the state court ‘blunder[s]
so badly’ that no fair-minded jurist could agree with it. McCarthy v. Hernandez, No. 25-
748, 2026 WL 1780410, at *4 (U.S. June 22, 2026) (per curiam) (quoting Mays v. Hines,
592 U.S. 385, 392 (2021)).
Under § 2254(d)(1), “clearly established federal law” consists of holdings of the
United States Supreme Court at the time of the last reasoned state court decision. Thompson
v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34
(2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529
U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining what
law is clearly established and whether a state court applied that law unreasonably.”
Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
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However, circuit precedent may not be “used to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not
announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 567
U.S. 37, 47-49 (2012) (per curiam)). Nor may it be used to “determine whether a particular
rule of law is so widely accepted among the Federal Circuits that it would, if presented to
th[e] [Supreme] Court, be accepted as correct.” Id. Further, where courts of appeals have
diverged in their treatment of an issue, there is no “clearly established Federal law”
governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
Regarding Section 2254(d)(2), a state court decision “based on a factual
determination will not be overturned on factual grounds unless objectively unreasonable in
light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537
U.S. 322, 340 (2003). A “state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained,
to find that a factual determination is unreasonable under Section 2254(d)(2), the court
must be “convinced that an appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is supported by the record.” Taylor
v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds by Murray v.
Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). “This is a daunting standard—one that will
be satisfied in relatively few cases.” Id.
The petitioner bears the burden of rebutting the state court’s factual findings “by
clear and convincing evidence.” Section 2254(e)(1). The Supreme Court has not defined
the precise relationship between Section 2254(d)(2) and Section 2254(e)(1) but has
clarified “that a state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first instance.” See
Burt v. Titlow, 571 U.S. 12, 18 (2013) (citing Wood, 558 U.S. at 293, 301).
B. Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall
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“be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.
Amend. V. “[T]he Double Jeopardy Clause consists of several protections: ‘It protects
against a second prosecution for the same offense after acquittal. It protects against a
second prosecution for the same offense after conviction. And it protects against multiple
punishments for the same offense.’” Schiro v. Farley, 510 U.S. 222, 229 (1994) (quoting
North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Relevant here is the prohibition
against multiple punishments for the same offense.
As the Supreme Court has explained, the double jeopardy protection against
multiple punishments “is designed to ensure that the sentencing discretion of courts is
confined to the limits established by the legislature. Because the substantive power to
prescribe crimes and determine punishments is vested with the legislature, the question
under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one
of legislative intent[.]” Ohio v. Johnson, 467 U.S. 493, 499 (1984) (internal citations
omitted). State courts “have the final authority to interpret . . . that State’s legislation.”
Brown v. Ohio, 432 U.S. 161, 167 (1977) (quoting Garner v. Louisiana, 368 U.S. 157, 169
(1961)); see also McCarthy, 2026 WL 1780410, at *4 (“‘State-court determinations on
state-law questions’ are ‘no part of a federal court’s habeas review of a state conviction.’”
(citation omitted)).
C. Discussion
The last reasoned state court decision addressing Petitioner’s Ground Two claim is
the memorandum decision of the Arizona Court of Appeals granting review but denying
relief regarding the trial court’s summary dismissal of Petitioner’s PCR petition. See
Fahring, 2024 WL 4976320, at *1-2. The court of appeals reasoned:
¶4 Fahring reurges his claims on review, first asserting that his sentences are
multiplicitous. “A charge is multiplicitous if it charges a single offense in
multiple counts and thereby raises the potential for multiple punishments for
a single act.” State v. Scott, 243 Ariz. 183, ¶ 9, 403 P.3d 595 (App. 2017).
Fahring reasons that his possession of multiple images is a single offense
because the sexual exploitation statute, A.R.S. § 13-3553, prohibits
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possession of “any visual depiction,” which, in his view, means “one or
more” depictions.
¶5 But, by pleading guilty, Fahring waived all non-jurisdictional defects
unrelated to the voluntariness of his plea, including deprivations of
constitutional rights. State v. Flores, 218 Ariz. 407, ¶ 6, 188 P.3d 706 (App.
2008). Accordingly, even were his argument meritorious, after pleading
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.
McPherson, concluding that “separate convictions and punishments for
different images on the same DVD are constitutionally permissible because
the legislature intended the unit of prosecution to be each individual
‘depiction.’” 228 Ariz. 557, ¶ 7, 269 P.3d 1181 (App. 2012) (quoting § 13-
3553(A)(2)).
Fahring, 2024 WL 4976320, at *1.
Under A.R.S. § 13-3553(A)(2), “[a] person commits sexual exploitation of a minor”
if he receives or possesses “any visual depiction in which a minor is engaged in exploitive
exhibition or other sexual conduct.” Arizona courts “have recognized the legislature’s
intent to criminalize each sexually exploitive ‘visual depiction’ or image to deter the
production of such material and the continuing harm suffered by the victims depicted.”
State v. Rix, 256 Ariz. 125, 136, 536 P.3d 253, 264 (Ct. App. 2023) (first citing State v.
Berger, 212 Ariz. 473, 473-74, 477-78, 134 P.3d 378, 378-79, 382-83 (2006); then citing
State v. McPherson, 228 Ariz. 557, 560, 269 P.3d 1181, 1184 (Ct. App. 2012)).
Accordingly, Respondents are correct that, as a matter of state law, the “Arizona
Legislature intended to criminalize each image that constitutes child pornography in the
defendant’s possession” (Doc. 19 at 10). Because possession of multiple images
constitutes multiple crimes under Arizona law, Petitioner’s three convictions and sentences
for possession or attempted possession of three sexually exploitive visual depictions of
minors do not violate the Double Jeopardy Clause.
Petitioner insists that the Arizona Court of Appeals should have applied the rule of
lenity as discussed in Bell v. United States to conclude that possession of multiple images
constitutes one crime (Doc. 1 at 32-35; Doc. 29 at 25-31). However, in Bell the Supreme
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Court analyzed the intent of the United States Congress regarding violation of the Mann
Act. 349 U.S. at 81. Bell does not control the analysis of the Arizona Legislature’s intent
regarding violation of A.R.S. § 13-3553. Further, Petitioner essentially asks this Court to
review the Arizona courts’ interpretation of Arizona statute. Such second guessing of
Arizona courts is inappropriate in these habeas proceedings. See Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-
court determinations on state-law questions.”); McCarthy, 2026 WL 1780410, at *4.
Petitioner also asserts that the “blank indictment” violates the Double Jeopardy
Clause and insists that “no reasonable jurist could disagree” that Petitioner is actually
innocent as to all counts (Doc. 1 at 35). To the extent that Petitioner can raise such an
argument which is inconsistent with his guilty pleas, the record reflects that Petitioner was
not charged with a “blank indictment.” Petitioner was charged with ten counts of sexual
exploitation of a minor relating to ten different images or videos knowingly possessed on
September 17, 2014 (Doc. 10-1 at 3-5).
In sum, Petitioner cannot show that the Arizona Court of Appeals memorandum
decision was contrary to, or involved an unreasonable application, of clearly established
federal law. See 28 U.S.C. § 2254(d)(1). Nor can Petitioner show that Arizona Court of
Appeals memorandum decision was based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2).
Indeed, Petitioner agreed to the factual basis set forth at the plea hearing and waived any
objection to the trial court’s imposition of sentence on that basis.
It is recommended that Ground Two of the Petition be denied as meritless.
VIII. ASSUMING THE EXISTANCE OF A COGNIZABLE FREESTANDING
ACTUAL INNOCENCE CLAIM, PETITIONER’S CLAIM FAILS ON THE
MERITS
In Grounds One and Two of the Petition, Petitioner asserts that he is actually
innocent of the crimes for which he was convicted (Doc. 1 at 27, 35; see also Doc. 16 at 9-
10, 15).
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It is an open question whether a federal habeas petitioner in a non-capital case may
raise a freestanding claim of actual innocence. See McQuiggin, 569 U.S. at 392 (“We have
not resolved whether a prisoner may be entitled to habeas relief based on a freestanding
claim of actual innocence” (citation omitted)); Jones v. Taylor, 763 F.3d 1242, 1246 (9th
Cir. 2014) (“We have not resolved whether a freestanding actual innocence claim is
cognizable in a federal habeas corpus proceedings in the non-capital context. . . .”).
Moreover, an actual innocence claim is inconsistent with Petitioner’s guilty pleas. Smith
v. Baldwin, 510 F.3d 1127, 1140 n.9 (9th Cir. 2007) (noting the “potential incongruity
between the purpose of the actual innocence gateway announced in Schlup and its
application to cases involving guilty (or no contest) pleas”). Assuming Petitioner raises a
cognizable freestanding actual innocence claim, Petitioner has not met the “extraordinarily
high” standard nor is his purported evidence “truly persuasive.” See Jones, 763 F.3d at
1246.
In support of his actual innocence argument, Petitioner argues that “there were never
any illegal pictures,” “the prosecutor presented false evidence to the grand jury,” “the
county detective lied to the grand jury,” and “agents threatened to arrest Petitioner’s
girlfriend (whose name appears alone on the search warrant) and put their child in foster
care if he did not confess” (Doc. 16 at 9-10, 15). Petitioner also insists that “his computers
had been hacked” (Doc. 1 at 27). Yet, Petitioner agreed to the factual basis set forth during
the plea colloquy and Petitioner’s bare assertions in these habeas proceedings do not
amount to a showing of new reliable evidence of actual innocence.
To the extent that Petitioner raises a freestanding actual innocence claim, it is
recommended that Petitioner’s claim be denied as meritless.
IX. EVIDENTIARY HEARING
Along with his Petition, Petitioner filed with the Court a motion requesting an
evidentiary hearing (Doc. 1 at 38). The Court denied the motion as premature in the
Screening and Service Order (Doc. 7 at 3). In his Reply, Petitioner again requests an
evidentiary hearing (Doc. 16 at 17).
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AEDPA imposes “an express limitation on the power of a federal court to grant an
evidentiary hearing” in habeas proceedings and has “reduced considerably the degree of
the district court’s discretion.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999)
(internal quotation marks and citation omitted). Title 28, Section 2254(e)(2) of the United
States Code “restricts the discretion of federal habeas courts to consider new evidence
when deciding claims that were not adjudicated on the merits in state court.” Cullen v.
Pinholster, 563 U.S. 170, 186 (2011) (citing Williams v. Taylor, 529 U.S. 420, 427-29
(2000)). Section 2254(e)(2) provides that if a habeas petitioner:
has failed to develop the factual basis of a claim in State court proceedings,
the court shall not hold an evidentiary hearing on the claim unless the
applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that, but for constitutional error, no
reasonable fact-finder would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2254(e)(2); see also Ramirez, 596 U.S. at 369 (2022) (“[W]hen a federal
habeas court convenes an evidentiary hearing for any purpose, or otherwise admits or
reviews new evidence for any purpose, it may not consider that evidence on the merits of
a negligent prisoner’s defaulted claim unless the exceptions in § 2254(e)(2) are satisfied.”).
Further, an evidentiary hearing is “not required ‘on issues that can be resolved by
reference to the state court record.’” Smith v. Mahoney, 611 F.3d 978, 997 (9th Cir. 2010)
(quoting Campbell v. Wood, 18 F.3d 662, 679 (9th Cir. 1994)). Also, a district court is not
required to hold an evidentiary hearing where 28 U.S.C. § 2254(d) precludes relief.
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Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Pinholster, 563 U.S. at 183. Insofar as an
evidentiary hearing on claims that were adjudicated on the merits in state court, “review
under § 2254(d)(1) is limited to the record that was before the state court that adjudicated
the claim on the merits.” Pinholster, 563 U.S. at 181; see also Gulbrandson v. Ryan, 738
F.3d 976, 993 n.6 (9th Cir. 2013) (noting that the holding of Pinholster is also applicable
to § 2254(d)(2) claims). Because review under Section 2254(d)(1) “requires an
examination of the state-court decision at the time it was made[,] . . . the record under
review is limited to the record in existence at that same time i.e., the record before the state
court.” Pinholster, 563 U.S. at 182; see also Shoop v. Twyford, 596 U.S. 811, 819 (2022).
Here, an evidentiary hearing is not appropriate because the state court record
sufficiently resolves Petitioner’s habeas arguments. See Totten v. Merkle, 137 F.3d 1172,
1176 (9th Cir. 1998) (“It is axiomatic that when issues can be resolved with reference to
the state court record, an evidentiary hearing becomes nothing more than a futile
exercise”); Schriro, 550 U.S. at 474 (“[I]f the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.”).
X. CONCLUSION
For the reasons set forth above, the Petition’s claims are waived or meritless.
Therefore, it is recommended that the Petition be denied and dismissed with prejudice
without an evidentiary hearing and that the Clerk of Court be directed to terminate this
matter.
Assuming the recommendations herein are followed in the District Judge’s
judgment, undersigned recommends that a certificate of appealability be denied because
Petitioner has not “made a substantial showing of the denial of a constitutional right,” 28
U.S.C. § 2253(c)(2), and jurists of reason would not find the Court’s assessment of
Petitioner’s constitutional claims “debatable or wrong,” Slack v. McDaniel, 529 U.S. 473,
484 (2000).
Accordingly,
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IT IS RECOMMENDED that the Petition (Doc. 1) be denied and dismissed with
prejudice and that the Clerk of Court be directed to terminate this matter.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied.
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
judgment. The parties shall have fourteen days from the date of service of a copy of this
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
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
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
Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. In addition, LRCiv 7.2(e)(3)
provides that “[u]nless otherwise permitted by the Court, an objection to a Report and
Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
Dated this 26th day of June, 2026.
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