Opinion
CV 20-00309-PHX-DLR (MHB)
02-11-2021
Keith H. Krenklis, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT COURT
REPORT AND RECOMMENDATION
Michelle H. Bums United States Magistrate Judge
Petitioner Keith H. Krenklis, who is confined in the Arizona State Prison Complex-Eyman, has filed a pro se Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 6). Respondents filed an Answer. (Doc. 15.) Petitioner has not filed a reply.
BACKGROUND
On August 6, 2015, the Maricopa County Grand Jury returned an indictment charging Petitioner in Maricopa County Superior Court, case #CR2015-135529 with eight counts of sexual conduct with a minor, all class 2 felonies and dangerous crimes against children, in violation of A.R.S. §§ 13-1405, 13-1401, and former 13-604.01 (renumbered as A.R.S. § 13-705). (Exhs. A, C.) The facts of the case as described in the presentence report stated, as follows:
Count 8: On July 30, 2015, police contacted Evette Campos regarding a report of child molestation involving the defendant. Mrs. Campos told police her daughter, nine-year-old Victim B, told her the defendant, a family friend, touched her inappropriately on April 5, 2015. Police interviewed Victim B, who said after the Easter party, she was in her bed when the defendant entered her room. He came into her room three times and told her goodnight and he was going to be leaving soon. As she was falling asleep, he entered the room a fourth time and sat on the bed next to her. He began rubbing her vagina back and forth with his fingers and thumb, under her pants and underwear. She said she pretended to be asleep because she was upset and did not know what to do. During this investigation, police discovered another sexual misconduct case from 2000, involving fourteen-year-old Victim A.
Counts 1-7: On September 13, 2000, a police report was generated by a CPS caseworker regarding Victim A, who was a ward of the state and previously a runaway. Victim A was pregnant and it was alleged the defendant was providing methamphetamine to her. Victim A was interviewed by police on October 17, 2000. She told police her relationship with the defendant began when she was six years of age, when he would babysit her. When she was ten, the defendant told her they would get married when she turned eighteen. Victim A told police she and the defendant began dating in October of 1999, when she was thirteen and he was nearly twenty-eight. On December 19, 1999, Victim A and the defendant had sexual intercourse at his mother's house. They performed oral sex on each other on December 31, 1999. On June 19, 2000, they had sexual intercourse "all night" after he took her out to dinner.
On July 30, 2015, police contacted Victim A, age twenty-nine then, who conducted a confrontation call with the defendant. Victim A asked him what was he thinking having sex her when she was fourteen, and he said he wasn't thinking and he thought he was in love with her. He said he did not see it as twisted because he was on drugs. When asked if he believed he took advantage of her as a troubled teenager, he said he felt she took advantage of him, stating he felt she wanted out of her situation and he was the way out.
The defendant was arrested on July 30, 2015, and made a voluntary statement to his wife that the arrest was about the rape of a minor from long ago. At police headquarters, he declined to answer any police questions.(Exh. S.)
On June 16, 2017, Petitioner pleaded guilty to one count of sexual conduct with a minor (Count 1) and two counts of attempted molestation of a child (amended Counts 2 and 8), and was sentenced to a 23-year term of imprisonment, followed by lifetime probation.(Exhs. O, P, T, U.)
Amended Counts 2 and 8 represent two sexual conduct with a minor charges that the parties downgraded to attempted child molestation during plea negotiations.
On August 14, 2017, Petitioner filed a Notice of Post-Conviction Relief (PCR). (Exh. V.) Petitioner did not request court-appointed counsel. (Exh. V at 2; Exh. W.) On June 18, 2018, Petitioner filed a PCR petition raising two claims - both of which were based on the Arizona District Court decision May v. Ryan, 245 F.Supp.3d 1145 (D. Ariz. 2017), reversed by May v. Ryan, 807 Fed.Appx. 632 (9th Cir. 2020). Specifically, relying on May, Petitioner alleged that Arizona's statutes defining sexual conduct with a minor and molestation of a child are unconstitutional because they fail to require the State to prove that he acted with sexual intent. Petitioner further alleged that his attorney was ineffective because he failed to challenge the constitutionality of the burden shifting scheme and failed to advise him about the May decision before advising him to plead guilty. (Exhs. X, Y, AA.) On September 18, 2018, the state court denied Petitioner's PCR petition. (Exh. AA.)
On October 17, 2018, Petitioner filed a petition for review with the Arizona Court of Appeals, alleging that pursuant to May, Arizona's statutes defining sexual conduct with a minor and molestation of a child are unconstitutional because they require Petitioner to prove lack of sexual intent. Petitioner additionally argued that his attorney was ineffective because he failed to advise him about the May decision and challenge the constitutionality of the burden shifting scheme. (Exhs. BB, CC, DD.) On February 19, 2019, the Arizona Court of Appeals granted review, but denied relief. See State v. Krenklis, 2019 WL 664727 (Ariz.Ct.App. February 19, 2019). The Arizona Court of Appeals issued its Mandate on April 2, 2019. (Exh. EE.)
In his habeas petition, Petitioner raises two grounds for relief. In Ground One, Petitioner argues that the trial court lacked jurisdiction to prosecute him because he was “required to disprove the only (non)-element of the charged offense which differentiates criminal touching from benign or protected touching where he would be required ... to disprove sexual motivation” under A.R.S. § 13-1407(E). In Ground Two, Petitioner claims that he received ineffective assistance of counsel, in violation of Strickland v. Washington, 466 U.S. 668 (1984).
In their Answer, Respondents argue that Petitioner's claims fail on the merits.
DISCUSSION
Pursuant to the AEDPA, a federal court “shall not” grant habeas relief with respect to “any claim that was adjudicated on the merits in State court proceedings” unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) 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); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). It is also 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) (citation and internal quotation marks omitted). “When applying these standards, the federal court should review the ‘last reasoned decision' by a state court ... .” Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
Antiterrorism and Effective Death Penalty Act of 1996.
A state court's decision is “contrary to” clearly established precedent if (1) “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases, ” or (2) “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 404-05. “A state court's decision can involve an ‘unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).
A. Grounds One and Two
In Ground One, Petitioner argues that the trial court lacked jurisdiction to prosecute him because he was “required to disprove the only (non)-element of the charged offense which differentiates criminal touching from benign or protected touching where he would be required ... to disprove sexual motivation” under A.R.S. § 13-1407(E). Petitioner contends that A.R.S. § 13-1410 is vague, overbroad, and constitutionally unenforceable. In Ground Two, Petitioner claims that he received ineffective assistance of counsel, in violation of Strickland v. Washington, 466 U.S. 668 (1984), because counsel failed to advise him “as to the unconstitutionality due to unenforceable ambiguity of A.R.S. 13-1410 and an unconstitutional burden shifting scheme of A.R.S. 13-1407(E).”
The Court construes the claims alleged in the instant habeas petition as the same claims alleged by Petitioner, and considered by the state courts, in Petitioner's PCR proceedings.
To the extent any additional claim, beyond what was alleged and considered in Petitioner's PCR proceedings, could possibly be gleaned from Petitioner's habeas petition - any such claim has not been fairly presented. A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).
In denying Petitioner's PCR petition, the state court stated, in pertinent part:
The State charged Defendant Krenklis with eight counts of sexual conduct with a minor, class 2 felonies and dangerous crimes against children. Defendant later accepted a plea offer, agreeing to plead guilty to sexual conduct with a minor [Count 1] and two counts of attempted molestation of a child [Counts 2 and 8, as amended]. In exchange, the State agreed to dismiss the remaining counts. The plea stipulated Defendant would receive a prison sentence within the range of 13 to 27 years for the sexual conduct with a minor offense and be placed on lifetime probation for the two attempted molestation offenses.
On July 17, 2018, Defendant filed his Petition for Post-conviction relief alleging inter alia that May v. Ryan [245 F.Supp.3d 1145 (D. Ariz. 2017)] controlled. Defendant further alleged had he been advised of this, the outcome at the trial level would have been different and that his attorney therefore fell below representation standards. Specifically, Defendant contends that he received ineffective assistance of counsel because he was not advised of the May … decision. Strickland v. Washington, 466 U.S. 668 (1984) (explaining: “Counsel's performance was deficient, his representation fell below an objective standard of reasonableness and there is a probability of reasonableness that but for counsels [sic] unprofessional errors, the result would have been more favorable to the defendant.”). For the reasons stated below, Defendant's claims must fail.
A. Rule 32.1(g) Claim.
Defendant claims that significant change in the law has occurred that, if applied retroactively to his case, would alter the outcome pursuant to Arizona Rule of Criminal Procedure (hereinafter ARCrP), Rule 32.1(g). Rule 32.1(g) does not define “a significant change in the law.” State v. Shrum, 220 Ariz. 115, 118, ¶ 15, 203 P.3d 1175, 1178 (2009). The Arizona Supreme Court construes the rule to require “some transformative event, a ‘clear break from the past.'” Id. (quoting State v. Slemmer, 170 Ariz. 174, 182, 823 P.3d 41, 49 (1991)). This change occurs, for example, when an appellate court overrules previously binding authority. Id. at ¶ 16. Defendant relies upon a federal district court decision on the allocation of the burden of proof under A.R.S. § 13-1407(E). May v. Ryan, 245 F.Supp.3d 1145 (D. Ariz. 2017) (appeal filed April 12, 2017). May … held that the burden of proof imposed under that statute violated the federal due process clause, and the district court granted federal habeas relief to the defendant. …
The Arizona Supreme Court considered and rejected the argument in State v. Holle, 240 Ariz. 300, ¶¶ 46-50, 379 P.3d 197, 207-08 (2016), and the United States Supreme Court denied review. State v. Holle, 137 S.Ct. 1446 (2017). The Arizona Supreme Court determined that “lack of sexual motivations is an affirmative defense” under A.R.S. § 13-13407(E) to be proven by a defendant in a child molestation case, and the statutory scheme is not unconstitutionally vague. Holle, 240 Ariz. at 311, ¶ 50, 379 P.3d at 208. This Court is bound by Holle. See State v. James, 2017 WL 1174319, at ¶ 29 (Ariz. App. March 29, 2017). Because May is not an appellate case, it does not overrule Holle, and [it] would not alter the [case's] outcome; it does not support relief under Rule 32.1(g).(Exh. AA.)
The Arizona Court of Appeals then granted review, but denied relief, stating:
¶ 1 Petitioner Keith Krenklis petitions this court for review from the dismissal of his of-right petition for post-conviction relief (“PCR”) pursuant to Arizona Rule of Criminal Procedure 32.1. For the reasons stated, we grant review but deny relief.
¶ 2 Krenklis pleaded guilty to three offenses, including two counts of attempted molestation of a child. In his petition for PCR, he claimed his convictions violated the federal constitution because A.R.S. § 13-1407(E) (2017) impermissibly shifted the burden of proof to the defendant. The superior court denied this claim. In his petition for review, Krenklis raises the same claim.
¶ 3 We will not disturb a superior court's ruling on a petition for post-conviction relief unless the court abused its discretion. State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012). The petitioner has the burden to show the court abused its discretion. See State v. Poblete, 227 Ariz. 537, 538, ¶ 1 (App. 2011).
¶ 4 Here, we find no abuse of discretion. Krenklis claims the statutes he violated unconstitutionally shifted the burden of proof to the defendant by requiring the defendant to prove a lack of sexual motivation as an affirmative defense. In support, Krenklis cites May v. Ryan, 245 F.Supp.3d 1145, 1164 (D. Ariz. 2017), which found the statutes to be unconstitutional. That opinion, however, is not binding on our Court. State v. Gates, 118 Ariz. 357, 359 (1978). Our state supreme court has found the child molestation statutes constitutional, State v. Holle, 240 Ariz. 300, 308, ¶ 38 (2016), and we are bound by the decisions of our supreme court, State v. Smyers, 207 Ariz. 314, 318, ¶ 15, n.4 (2004). We find no error.State v. Krenklis, 2019 WL 664727 (Ariz.Ct.App. February 19, 2019).
Initially, the Court notes that Petitioner was indicted on eight counts of sexual conduct with a minor in violation of A.R.S. § 13-1405. The Arizona statute which Petitioner complains unconstitutionally shifted the burden and required him to “disprove” that he acted with sexual intent, former A.R.S. § 13-1407(E), did not apply to sexual conduct with a minor pursuant to A.R.S. § 13-1405. See A.R.S. § 13-1407(E) (2015) (“It is a defense to a prosecution pursuant to § 13-1404 or 13-1410 that the defendant was not motivated by a sexual interest.”). Petitioner's conviction for attempted molestation of a child pursuant to A.R.S. § 13-1410 was available only because the parties had downgraded Petitioner's original charges to attempted child molestation during plea negotiations, which Petitioner agreed to in lieu of proceeding to trial on the sexual conduct with a minor charges. Therefore, Ground One necessarily fails because the Arizona statute that Petitioner complains unconstitutionally shifted the burden does not apply to the Arizona statute that Petitioner was charged with, and would have gone to trial for, if he had not pleaded guilty. Ground Two also fails because the May decision provides no basis to challenge A.R.S. § 13-1405 and, as noted, former A.R.S. § 13-1407(E) does not apply to that statute. Accordingly, counsel could not have been deficient for failing to advise Petitioner of the May decision and the “unconstitutionality” of A.R.S. § 13-1410 and A.R.S. § 13-1407(E).
Additionally, the Arizona District Court decision that Petitioner relies on to support his claims, May v. Ryan, 245 F.Supp.3d 1145 (D. Ariz. 2017), does not address Arizona's sexual conduct with a minor statute.
In order to establish a claim of ineffective assistance of counsel, a petitioner must demonstrate that counsel's performance was deficient under prevailing professional standards, and that he suffered prejudice as a result of that deficient performance. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In order to establish deficient performance, a petitioner must show “that counsel's representation fell below an objective standard of reasonableness.” Id. at 699. A petitioner's allegations and supporting evidence must withstand the court's “highly deferential” scrutiny of counsel's performance, and overcome the “strong presumption” that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 689-90.
Moreover, Ground One also fails because the District Court's decision in May v. Ryan, was subsequently reversed by the Ninth Circuit Court of Appeals in May v. Ryan, 807 Fed.Appx. 632 (9th Cir. 2020), stating that the petitioner “is not entitled to habeas relief on any of the grounds he raises and thus [we] reverse.” And, in any event, both the trial court and Arizona Court of Appeals were bound by the Arizona Supreme Court's decision in State v. Holle, 379 P.3d 197 (Ariz. 2016), which held that the child molestation statutes and alleged “burden shifting scheme” at issue here, A.R.S. §§ 13-1407(E) and -1410, are clear, unambiguous, and do not violate due process. For this same reason, Ground Two also fails. Even assuming that counsel failed to advise Petitioner of the May decision and the alleged unconstitutionality of former A.R.S. § 13-1407(E), and assuming that the statute even applied to Petitioner, Petitioner cannot establish ineffective assistance because the state courts were bound by Holle, and any challenge to the statute would have been meritless.
Lastly, even if the statutes at issue unconstitutionally shifted the burden proof with respect to the sexual motivation element, Petitioner cannot establish any “substantial and injurious effect or influence” or actual prejudice in his case because no reasonable fact-finder could find that the acts underlying Petitioner's convictions were not motivated by sexual interest.
The presentence report's summation of the misconduct underlying Count 8 and Counts 1-7 overwhelmingly demonstrates the conclusion that Petitioner was motivated by sexual interest when he committed the crimes:
Count 8: On July 30, 2015, police contacted Evette Campos regarding a report of child molestation involving the defendant. Mrs. Campos told police her daughter, nine-year-old Victim B, told her the defendant, a family friend, touched her inappropriately on April 5, 2015. Police interviewed Victim B, who said after the Easter party, she was in her bed when the defendant entered her room. He came into her room three times and told her goodnight and he was going to be leaving soon. As she was falling asleep, he entered the room a fourth time and sat on the bed next to her. He began rubbing her vagina back and forth with his fingers and thumb, under her pants and underwear. She said she pretended to be asleep because she was upset and did not know what to do. ...
Counts 1-7: On September 13, 2000, a police report was generated by a CPS caseworker regarding Victim A, who was a ward of the state and previously a runaway. Victim A was pregnant and it was alleged the defendant was providing methamphetamine to her. Victim A was interviewed by police on October 17, 2000. She told police her relationship with the defendant began when she was six years of age, when he would babysit her. When she was ten, the defendant told her they would get married when she turned eighteen. Victim A told police she and the defendant began dating in October of 1999, when she was thirteen and he was nearly twenty-eight. On December 19, 1999, Victim A and the defendant had sexual intercourse at his mother's house. They performed oral sex on each other on December 31, 1999. On June 19, 2000, they had sexual intercourse “all night” after he took her out to dinner.
On July 30, 2015, police contacted Victim A, age twenty-nine then, who conducted a confrontation call with the defendant. Victim A asked him what was he thinking having sex her when she was fourteen, and he said he wasn't thinking and he thought he was in love with her. He said he did not see it as twisted because he was on drugs. When asked if he believed he took advantage of her as a troubled teenager, he said he felt she took advantage of him, stating he felt she wanted out of her situation and he was the way out.
The defendant was arrested on July 30, 2015, and made a voluntary statement to his wife that the arrest was about the rape of a minor from long ago. ...(Exh. S.)
Accordingly, even assuming the statutes at issue unconstitutionally shifted the burden proof with respect to the sexual motivation element, Petitioner cannot show that the constitutional error resulted in actual prejudice. See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
In light of the foregoing, the Court finds that Petitioner is not entitled to habeas corpus relief based on his claims.
CONCLUSION
The Court will recommend that Petitioner's Petition for Writ of Habeas Corpus (Doc. 6) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 6) be DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right.
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), 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); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file 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 timely to file objections to any factual determinations of the Magistrate Judge will 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 Rule 72, Federal Rules of Civil Procedure.
Further, claims not previously presented to the state courts via direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar), 32.9© (petition for review must be filed within thirty days of trial court's decision). The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Here, the Court has liberally construed the claims alleged in Petitioner's habeas petition as the same claims that were raised and addressed by the state courts in PCR proceedings. Petitioner's failure to fairly present any additional claim that could possibly be construed from his petition, beyond what was alleged and considered in Petitioner's PCR proceedings, has resulted in procedural default because Petitioner is now barred from returning to the state courts. See Ariz.R.Crim.P. 32.2(a), 32.4(a). And, there has been no showing of cause or a fundamental miscarriage of justice.
In order to establish prejudice, a petitioner must show a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A “reasonable probability” is one “sufficient to undermine confidence in the outcome.” Id.