Stephen May v. David Shinn

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN EDWARD MAY, Nos. 17-15603
Petitioner-Appellee/ 17-15704
Cross-Appellant,
D.C. No.
v. 2:14-cv-00409-
NVW
DAVID SHINN; * MARK BRNOVICH,
Attorney General,
Respondents-Appellants/ OPINION
Cross-Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted March 7, 2019
Phoenix, Arizona
Filed March 27, 2020 **
*
David Shinn is automatically substituted for his predecessor under
Federal Rule of Appellate Procedure 43(c)(2).
**
This case was originally the subject of a memorandum disposition.
See May v. Ryan, 766 F. App’x 505 (Mar. 26, 2019). Subsequently, the
State filed a petition for panel rehearing and rehearing en banc arguing
that an aspect of the procedural history of the state trial proceedings had
been misinterpreted. See Fed. R. App. P. 40(a)(2). We issue this revised
disposition in response.
2 MAY V. SHINN
Before: Sandra S. Ikuta and Michelle T. Friedland, Circuit
Judges, and Frederic Block, *** District Judge.
Opinion by Judge Friedland;
Concurrence by Judge Ikuta;
Concurrence by Judge Friedland;
Dissent by Judge Block
SUMMARY ****
Habeas Corpus
In an appeal and cross-appeal from the district court’s
decision on Stephen May’s habeas corpus petition
challenging his Arizona state conviction on five counts of
child molestation, the panel (1) rejected May’s claim for
habeas relief based on his trial attorney’s failure to object to
the resumption of jury deliberations; and (2) rejected his
other arguments for habeas relief in a concurrently filed
memorandum disposition.
After the close of evidence, the jury reported that it was
deadlocked, and the judge declared a mistrial. Several
minutes later, the jury requested permission to resume
deliberations. May’s defense lawyer did not object to such
a resumption, which the judge then permitted, and the jury
***
The Honorable Frederic Block, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
****
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MAY V. SHINN 3
convicted May on most counts. May argued in his habeas
petition that his lawyer’s failure to object amounted to
ineffective assistance of counsel. The district court accepted
the magistrate judge’s determination that the lawyer’s failure
to object was neither deficient performance nor prejudicial.
The panel held that counsel’s performance was not deficient
because, on the facts of this case, it was a reasonable
prediction that May had a better chance of a more favorable
verdict from the existing jury on the existing trial record than
he would from a retrial.
Concurring, Judge Ikuta wrote that in adhering to the
limited scope of federal habeas review, the panel upholds the
fundamental principles of our legal system.
Concurring, Judge Friedland wrote separately to express
dismay at the outcome of the case. She wrote that the
evidence of guilt was very thin and the length of his sentence
all but ensures he will spend the rest of his life in prison, but
given the significant constraints on the scope of review, the
panel is not in a position to do more than decide the narrow
question whether the proceedings in this case were so
egregiously unfair that they violated the Constitution.
Dissenting, District Judge Block wrote that the majority
ignores Strickland v. Washington’s constitutional
underpinning that deference is due only “to counsel’s
informed decisions,” and that the facts of this case
unequivocally show that counsel’s decision was the
antithesis of an informed decision.
4 MAY V. SHINN
COUNSEL
Robert A. Walsh (argued), Assistant Attorney General,
Criminal Appeals Section; Mark Brnovich, Attorney
General; Office of the Attorney General, Phoenix, Arizona;
for Respondents-Appellants/Cross-Appellees.
Erica T. Dubno (argued), Fahringer & Dubno Herald Price
Fahringer PLLC, New York, New York; Robert J.
McWhirter, Law Offices of Robert J. McWhirter, Phoenix,
Arizona; Michael D. Kimerer, Kimerer & Derrick P.C.,
Phoenix, Arizona; for Petitioner-Appellee/Cross-Appellant.
Mikel Patrick Steinfeld, Phoenix, Arizona, for Amicus
Curiae Arizona Attorneys for Criminal Justice.
J. Thomas Sullivan, Little Rock, Arkansas, for Amicus
Curiae National Association for Rational Sex Offense Laws.
OPINION
FRIEDLAND, Circuit Judge:
Appellant Stephen May seeks habeas corpus relief,
arguing that he was deprived of his Sixth Amendment right
to counsel because the defense lawyer who represented him
in his child molestation trial in Arizona state court was
ineffective. After the close of evidence in that trial, the jury
reported that it was deadlocked, and the judge declared a
mistrial. Several minutes later, however, the jury requested
permission to resume deliberations. May’s defense lawyer
did not object to such a resumption, which the judge then
permitted. The jury convicted May on most counts. May
now argues that his lawyer’s failure to object amounted to
MAY V. SHINN 5
constitutionally deficient performance. We hold that May’s
counsel was not ineffective because, on the facts of this case,
it was a reasonable prediction that May had a better chance
of a more favorable verdict from the existing jury on the
existing trial record than he would from a retrial. 1
I.
A grand jury in Maricopa County, Arizona indicted
Stephen May in 2006 on eight counts of child molestation.
The indictment alleged that May had engaged in sexual
contact with five children: Taylor (Counts 1 and 2), Danielle
(Counts 3 and 4), Sheldon (Counts 5 and 6), Luis (Count 7),
and Nicholas (Count 8). May’s lawyer, Joel Thompson,
subsequently filed a motion to sever, arguing that the count
or counts related to each individual child must be tried
separately. The motion contended that severance was
required under an Arizona rule entitling some defendants to
severance of an offense “unless evidence of the other offense
or offenses would be admissible” if there were separate
trials. See Ariz. R. Crim. P. 13.4(b). 2
The trial court granted the motion in part by severing the
count related to Nicholas. Ruling from the bench, the judge
made reference to the fact that the count related to Nicholas
alleged that he had been molested at a daycare center where
1
May presses other arguments for why he is entitled to habeas
corpus relief. We reject all those arguments in a concurrently filed
memorandum disposition.
2
This rule provides in full: “A defendant is entitled to a severance
of offenses joined solely under Rule 13.3(a)(1) [allowing for joinder of
offenses that are of the same or similar character], unless evidence of the
other offense or offenses would be admissible if the offenses were tried
separately.” Ariz. R. Crim. P. 13.4(b).
6 MAY V. SHINN
May worked in 2001, while the counts related to the other
children involved allegations of molestation occurring
between 2003 and 2005. Because the timing and other
“circumstances” of the count related to Nicholas were
“different,” and there had also “been a loss of evidence” with
respect to that count, the judge determined that the evidence
concerning the other children would be “more prejudicial
than probative on that count.”
The court declined to sever any of the other counts. It
explained that the evidence concerning each of the
remaining children would have been admissible to prove the
counts related to the other children if they were tried
separately. Under Arizona Rule of Evidence 404(b), such
“evidence of other crimes, wrongs, or acts” is admissible for
the purpose of proving “motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident.” See Ariz. R. Evid. 404(b). And under Rule
404(c), such “evidence of other crimes, wrongs, or acts”
could additionally be admissible “to show that [May] had a
character trait giving rise to an aberrant sexual propensity to
commit the offense[s] charged.” See Ariz. R. Evid. 404(c).
The counts related to Luis, Taylor, Danielle, and Sheldon
therefore proceeded to trial in January 2007. At trial, the
State’s evidence consisted primarily of testimony from the
four children and some of their parents.
Luis testified first. Luis attended an elementary school
where May was employed for several months. May worked
with first graders with special needs who would be
integrated into Luis’s class for certain activities, including
computer lab. Luis testified that one day in computer lab
May came over to help him. While May’s right hand was
holding the computer mouse, May’s left hand touched Luis’s
“private part” over his pants. Luis testified that May did not
MAY V. SHINN 7
move the hand that was touching his genital area. 3 Luis
testified that two adults other than May and about twenty
children were present when this happened.
Luis testified that he told his mother about May touching
him. His mother confirmed this in her testimony at trial, and
she further testified that Luis said May touched him on
purpose. Luis testified that he never talked to police about
May, but a detective who had interviewed Luis soon after the
incident testified at trial about that interview. The detective
testified that he did not report Luis’s allegations to
prosecutors after the interview because Luis was unable to
provide details about the incident, such as the time frame in
which it occurred or the people who were nearby.
Luis testified at one point during trial that May was
clean-shaven at the time he worked at Luis’s school; at
another point, Luis testified that May had a beard. When the
prosecutor asked Luis if he saw May, who was in the
courtroom at the time, Luis said no. Later, after a recess, the
prosecutor showed Luis a photographic line-up. Regarding
the photograph of May, Luis testified that it “kind of
look[ed] like Mr. May.” Luis testified that the other
photographs did not depict anyone who looked familiar.
The other children—Taylor, Danielle, and Sheldon—all
knew May because they lived at the same apartment
complex as him. 4 That apartment complex had a pool where
May spent much of his time. May gave swim lessons at the
pool, kept an eye on the children playing at the pool for their
3
When Luis initially told his mother about the alleged incident, Luis
said that May did move his hand.
4
Luis testified that he did not know Taylor, Danielle, or Sheldon.
8 MAY V. SHINN
parents, and attended barbecues hosted at the pool by
residents of the complex.
Taylor and Danielle were close friends. Prior to trial,
Taylor had told police that May touched her genital area on
two occasions in 2005 when she was eight years old, once
before a birthday party for Danielle held at the apartment
complex’s pool and once afterward. Taylor testified at trial
that the first time, she was in the pool and swam over to May,
who was in the shallow end. Taylor testified that she sat in
May’s lap, and May touched her “private” over her bathing
suit with his hand. She did not recall whether May moved
his hand when he touched her. At the time, Taylor thought
May “was just being clumsy” and “didn’t think he meant it.”
Taylor also testified that another adult was present when this
happened.
When the prosecutor asked Taylor at trial if she recalled
telling police about a time she was in the pool “after
Danielle’s birthday,” Taylor responded, “Barely. I kinda
remember. I kinda don’t.” In response to further
questioning by the prosecutor, Taylor testified that she
remembered telling police that May had touched her genital
area over her clothing. But during cross-examination,
Taylor testified that she did not recall what had actually
happened. Taylor testified that she eventually came to think
May’s touching was not an accident and therefore stopped
going to the pool.
Like Taylor, Danielle had told police about multiple
incidents. 5 At trial, Danielle testified that May touched her
5
Danielle’s father testified at trial that, when he spoke to Danielle
prior to her interview with police, she recalled only one incident.
Danielle stated in the police interview that May touched her every time
MAY V. SHINN 9
genital area over her bathing suit at her eighth birthday party.
About forty people, including twenty adults, were present at
the pool during the party. Danielle testified that she and May
were in the jacuzzi. May “put [her] on his lap,” and he
touched her “private parts” on top of her bathing suit. The
prosecutor asked Danielle if she also remembered “another
time earlier in the summer that you had a barbecue and
[May] touched you[.]” Danielle replied, “No.” The
prosecutor further asked Danielle if she remembered telling
police about a “barbecue at the beginning of the summer”
where May “touched you again with his hand.” Danielle
responded that she did remember telling police, but indicated
that she did not remember the touching.
Finally, Sheldon (who knew Danielle and Taylor)
testified that there were two occasions on which May
touched his genital area. About a week after July 4, 2005,
Sheldon, who was then nine years old, was at the pool with
May and at least one other person. 6 Sheldon testified that
May “picked me up and he tossed me inside the pool.”
Sheldon testified that as May did so, one of May’s hands was
on his back and the other was “in [his] private spot” over his
trunks. Sheldon testified that May did not make any
movements with the hand on his trunks. Sheldon testified
that he moved May’s hand to his stomach, but that May
moved that hand back down to his genital area. On one prior
they were both at the pool. At trial, when asked if she “remember[ed]
telling police that this touching happened every time [she] went to the
pool,” Danielle responded, “[n]o, it didn’t happen every time I went to
the pool.”
6
Sheldon testified at one point that his brother was the only other
person present. At another point, Sheldon appeared to testify that Taylor,
her mother, and a teenager whose name he could not recall were the only
other people present.
10 MAY V. SHINN
occasion, Sheldon testified, May had similarly touched his
genital area while throwing him in the pool. Sheldon could
not recall exactly when this had happened. But he did
remember that others were present at the time.
Sheldon testified that he initially thought May touched
him by accident, but that he changed his mind after talking
to his mother and Taylor’s mother. Taylor’s mother later
testified that, soon after Taylor gave a statement to police,
Sheldon “came up to [her] and told [her] what had happened
to him.” Sheldon’s stepfather also testified that he and
Sheldon’s mother approached Sheldon about May and that
Sheldon was initially reluctant to talk but eventually said that
May had touched his genital area.
Additional testimony at trial established that the children
who lived in May’s apartment complex had talked to each
other about being touched by May. Taylor and Danielle both
testified that they had talked to each other about May
touching them. Sheldon testified that he had not talked to
Taylor and Danielle about May, but other testimony at trial
revealed that when Sheldon was interviewed by police prior
to trial, he told them he had talked to Taylor. All three
children also spoke to a parent or another adult before telling
police that May touched them.
Near the end of trial, May took the stand. May described
his teaching background; among other things, he had worked
at a Montessori school, as a swim and American Red Cross
instructor, and at a child care center. May testified that he
has an undiagnosed “neurological condition” and as a result
has “nervous tics” and “tend[s] to be clumsy.” May
explained that “there are very few fine motor things that [he]
can do with [his] left hand or [his] left-hand side.” May
testified that he never intended to touch the children in their
MAY V. SHINN 11
genital areas, and that he never had any sexual interest in the
children.
The prosecutor’s cross-examination focused in part on
statements May had made in an interview with a detective.
During that interview, the detective had listed the names of
several children, and May had responded by stating that he
did not even know a half dozen children. But May testified
at trial that he knew many children from his work teaching
children. He testified that he did not remember what he
meant when he told the detective otherwise.
May had also stated in the interview, “I don’t know no
somebody [sic] named Sheldon.” But May testified at trial
that he knew a Sheldon from the pool at his apartment
complex. May also testified that he was “very frustrated”
during the interview: “[The detective] asked me about
several other children whose names I do not know, and
Sheldon’s name came up and [my response] may have been
a reflex answer at that point in time.”
In all, the jury heard evidence for five days.
During closing statements, the prosecutor highlighted
the testimony the four children had given about being
touched by May, and May’s statements to the detective that
he did not know Sheldon or many children at all. The
prosecutor also argued that the children’s allegations could
not have been the product of them “talk[ing] to each other”
and “mak[ing] up something.” The prosecutor noted that
Luis did not even know the other children. And if the
children had purposefully made up stories, the prosecutor
contended, they would not have testified at trial that they
could not remember what had happened.
12 MAY V. SHINN
Defense counsel Thompson emphasized that the children
had given inconsistent statements and sometimes could not
recall what had happened. He also pointed out that adults
were present on many of the occasions when May allegedly
touched a child, yet none of those adults ever saw anything.
Thompson argued that the children’s stories about May
touching them were the product of the children’s talking to
each other or of an adult’s suggesting that they had been
inappropriately touched.
The trial judge read instructions to the jury and also gave
the jury a hard copy of those instructions. One instruction
stated: “Each count charges a separate and distinct offense.
You must decide each count separately on the evidence with
the law applicable to it, uninfluenced by your decision on
any other count.” The jury sent the judge four notes about
this instruction on the second day of deliberations. The most
comprehensive of the notes asked:
The evidence we have heard on certain
counts appears to [corroborate] the
information on other counts. The instructions
say, “[E]ach count charges a separate and
distinct offen[s]e. You must decide . . . on
any other count[.]” ([P]age 7 of final
instructions[.]) Can the evidence provided to
support one allegation lend support to a
separate allegation? 7
7
The other notes asked: “Can we use [corroborating] evidence? Yes
or no[?] ([I]n refer[e]nce to [p]age 7 of the final instructions that each
count is a sep[a]rate and distinct offen[s]e?)”; “Is the information
labelled ‘sep[a]rate counts’ on page 7 of the final instructions one and
the same with the term [corroboration]?”; “All 7 counts are distinct and
MAY V. SHINN 13
The court responded with the following instruction:
Evidence of other acts has been presented.
You may consider this evidence only if you
find that the State has proved by clear and
convincing evidence that the defendant
committed these acts. You may only
consider this evidence to establish the
defendant’s motive, opportunity, intent, plan,
absence of mistake or accident. You must not
consider this evidence to determine the
defendant’s character or character trait, or to
determine that the defendant acted in
conformity with the defendant’s character or
character trait and therefore committed the
charged offense.
The instruction tracked Arizona Rule of Evidence 404(b),
which provides that “evidence of other crimes, wrongs, or
acts . . . may . . . be admissible . . . as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.” Ariz. R. Evid. 404(b).8
The instruction also made clear that the jury could not
consider the evidence for the purpose described in Rule
404(c): “to show that the defendant had a character trait
sep[a]rate counts but they all involve the same subject, can we use
[corroboration]?”.
8
The Arizona Supreme Court held in State v. Terrazas, 944 P.2d
1194 (Ariz. 1997), that “evidence of prior bad acts” is only admissible
under Rule 404(b) in a criminal case if there is clear and convincing
proof of those acts. Id. at 1196, 1198.
14 MAY V. SHINN
giving rise to an aberrant sexual propensity to commit the
offense charged.” Ariz. R. Evid. 404(c). 9
About an hour after receiving this responsive instruction,
the jury reported that it was deadlocked. The jury explained
in a note: “We are a hung jury because the not guilty side
doesn’t believe there is enough evidence and the guilty side
believes there is.” The judge called the jury into the
courtroom and suggested that the jury “identify areas of
agreement and disagreement and discuss the law and the
evidence as they relate to those areas of disagreement.”
Shortly after resuming deliberations, the jury reported that it
was still deadlocked. The jury’s note stated that “[p]art of
the jury believes they have heard sufficient evidence,” while
“[p]art of the jury believes the quantity and quality of the
evidence is not sufficient.” The court declared a mistrial and
excused the jury.
No more than several minutes later, the judge announced
that “[t]he bailiff has received a communication from the
jury that they do not wish to have a hung jury and wish to
continue deliberating and communicate that to the counsel.”
The judge then asked the prosecutor and defense counsel
Thompson if either had any objection. Thompson consulted
with May for about twenty to thirty seconds. Both
Thompson and the prosecutor then said they had no
objection. In an interview occurring two years after May’s
9
The prosecutor did not object to the instruction. Nor did the
prosecutor attempt to argue during trial that evidence of other acts could
be used to show May’s propensity to molest children. In fact, any
reference to character evidence at trial or in the instruction may have
been foreclosed once the trial began, given that the procedures for
admitting evidence under Rule 404(c) had apparently not been followed.
See Ariz. R. Evid. 404(c)(1)(D), (c)(3) (requiring the court to make
certain findings and requiring the prosecutor to make disclosures).
MAY V. SHINN 15
trial, one juror stated that all the jurors used their cell phones
after being excused, but this fact was apparently not known
to Thompson, the prosecutor, or the judge at the time.
The jury reassembled and deliberated for about an hour
more before recessing for the weekend. When the jury
returned from that recess, it deliberated for several hours and
then announced that it had reached a verdict. The jury
convicted May on the five counts related to Luis, Taylor, and
Danielle. It acquitted him on the two counts related to
Sheldon.
Trial on the severed count related to Nicholas was
scheduled to begin two days later. But Nicholas’s parents
represented to the trial court that they had been unable to
arrange for counseling, which they wanted Nicholas to have
if he was going to go through the traumatic process of
testifying. The court therefore dismissed the case without
prejudice so that the “State [could] reevaluate it after the
victim has had counseling.”
For each of the five counts that May was convicted on,
Arizona law provided a “presumptive term of
imprisonment” of seventeen years. Ariz. Rev. Stat. Ann.
§ 13-604.01(D) (2007). 10 That presumptive sentence could
be “increased or decreased by up to seven years.” Id. § 13-
604.01(F). Sentences for all the counts related to a particular
victim could run concurrently. Id. § 13-604.01(K). Thus,
the minimum sentence for May would have been two ten-
year terms running concurrently for the counts related to
Taylor, two ten-year terms running concurrently for the
counts related to Danielle, and ten years for the count related
10
All further references to this statute are to the 2007 version that
was in effect when May was sentenced.
16 MAY V. SHINN
to Luis—that is, an aggregate minimum sentence of thirty
years.
The trial court sentenced May to five consecutive
sentences of fifteen years, or seventy-five years total. The
court ruled that a “slightly mitigated term” of fifteen years
per count was “appropriate.” The judge cited May’s “social
background,” “physical impairment,” “lack of criminal
history,” and “extensive family and community support.”
Noting that Arizona law allowed “discretion to run some of
[the sentences] concurrent,” the judge declined to do so. The
judge stated that, “because of the nature of these offenses,
[she didn’t] think that would be justice in this case.”
On direct appeal, the Arizona Court of Appeals affirmed
May’s conviction and sentence. The Arizona Supreme
Court denied May’s petition for review, and the U.S.
Supreme Court denied May’s petition for a writ of certiorari.
May sought post-conviction relief in Arizona court.
Among other claims, May contended that his trial counsel
Thompson was ineffective because he had failed to object to
the resumption of jury deliberations after the trial court
declared a mistrial. May retained a defense strategy expert,
who testified at an evidentiary hearing that he believed
Thompson was ineffective. May also submitted a
declaration from Thompson, in which Thompson stated that,
before responding that the defense had no objection to the
jury’s resuming deliberations, he had a “very brief
conversation” with May about the alternative strategies of
continuing with the jury or risking a retrial. Thompson
further stated that he was “[c]aught in the moment by a
circumstance [he] had never before encountered in almost
300 previous felony jury trial [sic].”
MAY V. SHINN 17
The Arizona Superior Court (“PCR court”) denied relief.
It determined that Thompson’s performance was not
deficient because “[t]he decision on whether to object to
resumption of jury deliberations was a tactical and strategic
decision by defense counsel that can’t form the basis for a
claim of ineffective assistance of counsel.” Even if
Thompson’s performance was deficient, the PCR court
concluded that there was “no evidence of any resulting
prejudice to” May.
The Arizona Court of Appeals affirmed. With respect to
May’s claim that Thompson was ineffective for failing to
object to the resumption of jury deliberations, the court of
appeals “assum[ed], without deciding, that counsel’s
performance was deficient.” The court of appeals held that
“May cannot show prejudice,” which “is fatal to a claim of
ineffective assistance of counsel.” Both the Arizona
Supreme Court and the U.S. Supreme Court declined review.
In 2014, May filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 in the United States District Court
for the District of Arizona. May again argued that
Thompson rendered ineffective assistance of counsel by
failing to object to the resumption of jury deliberations. The
district court accepted the magistrate judge’s determination
that Thompson’s failure to object “was neither deficient
performance nor prejudicial.” But the district court granted
habeas relief on another ground that May had raised: that the
Arizona child molestation statute under which May was
convicted was unconstitutional. 11
11
This is among the issues we discuss in a concurrently filed
memorandum disposition. See supra note 1. We hold there that because
the challenge to the constitutionality of the statute was procedurally
18 MAY V. SHINN
The State appeals the district court’s grant of habeas
relief. May cross-appeals the district court’s decision to the
extent it rejected claims in his habeas petition. Repeating his
argument that defense counsel was ineffective for failing to
object to the resumption of jury deliberations, May contends
that the district court erred in denying relief on that claim.
II.
An ineffective assistance of counsel claim requires
(1) establishing deficient performance by “show[ing] [that]
‘counsel’s representation fell below an objective standard of
reasonableness,’” and (2) establishing prejudice by
“show[ing] that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Porter v. McCollum, 558 U.S.
30, 38–39 (2009) (per curiam) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984)).
For the reasons explained below, we hold that May’s
lawyer did not render deficient performance under the
standard outlined in Strickland by failing to object to the
resumption of jury deliberations after the trial court declared
a mistrial. Because we would reach this conclusion
regardless of whether we reviewed the performance question
de novo (as the dissent does, Dissent at 40) or with deference
under the Antiterrorism and Effective Death Penalty Act, see
28 U.S.C. § 2254(d), we need not decide which standard of
review applies here. See Berghuis v. Thompkins, 560 U.S.
370, 389–90 (2010). We also need not decide whether May
defaulted and May cannot show cause and prejudice to overcome that
default, the district court erred in granting habeas relief.
MAY V. SHINN 19
has satisfied the prejudice prong of Strickland because his
claim fails on the performance prong.
A.
“The proper measure of attorney performance” when
evaluating a claim that the Sixth Amendment right to
effective assistance of counsel was violated is
“reasonableness under prevailing professional norms.”
Strickland, 466 U.S. at 688; see also Hinton v. Alabama,
571 U.S. 263, 273 (2014) (per curiam) (noting that
“constitutional deficiency . . . is necessarily linked to the
practice and expectations of the legal community” (quoting
Padilla v. Kentucky, 559 U.S. 356, 366 (2010))). A defense
attorney faces “any number of choices about how best to
make a client’s case.” Buck v. Davis, 137 S. Ct. 759, 775
(2017). Counsel “discharge[s] his constitutional
responsibility so long as his decisions fall within the ‘wide
range of professionally competent assistance.’” Id. (quoting
Strickland, 466 U.S. at 690). “[O]nly when [a] lawyer’s
errors were ‘so serious that counsel was not functioning as
the “counsel” guaranteed . . . by the Sixth Amendment’” has
the lawyer rendered constitutionally deficient performance.
Id. (quoting Strickland, 466 U.S. at 687).
The Supreme Court has made clear that “[j]udicial
scrutiny of counsel’s performance must be highly
deferential.” Strickland, 466 U.S. at 689. Thus, “[a] fair
assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. Put differently, the
“defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Id. (quotation marks omitted).
20 MAY V. SHINN
Under the deferential review required by Strickland, we
cannot say that Thompson’s decision to continue with the
current jury rather than risking a retrial—which he reached
after briefly consulting with May about the choice—fell
outside “the wide range of reasonable professional
assistance.” See id.
B.
There were good reasons to think that sticking with the
current trial record and jury would better serve May’s
interests than would a new trial. When a jury indicates that
it is deadlocked, a rational defendant deciding between a
mistrial or staying the course with the current jury “would
compare the likely consequences of allowing the jury to
deliberate longer with the likely consequences of obtaining
a mistrial.” Brewster v. Hetzel, 913 F.3d 1042, 1058 (11th
Cir. 2019) (quoting Lane v. Lord, 815 F.2d 876, 879 (2d Cir.
1987)); see also United States v. Beckerman, 516 F.2d 905,
909 (2d Cir. 1975) (noting that the “report of a jury in
deadlock could be welcome news to an accused who is
fearful of his fate” and therefore welcomes a mistrial, but
also contemplating the possibility that the defendant might
“ha[ve] an interest in having guilt determined by this
particular jury” (emphasis added)). Here, it was objectively
reasonable to think that acquittal on some or all counts was
a real possibility if May continued with the current jury,
while a mistrial likely would have led to a retrial that could
well have resulted in conviction on all counts. Because
Thompson’s failure to object to the resumption of
deliberations “falls within the range of reasonable
representation,” we “need not determine the actual
MAY V. SHINN 21
explanation for [his] failure to object.” Morris v. California,
966 F.2d 448, 456 (9th Cir. 1991). 12
The fact that the jury was deadlocked meant that at least
one juror wanted to acquit May. 13 And both parties agree
that the State’s evidence against May was far from
overwhelming. All four children testified that other people
were nearby when May touched their genital areas. Luis and
Danielle testified that May touched them when more than
twenty people, including other adults, were in the vicinity—
but none of those people claimed to see anything. Luis was
also unable to identify May in court. Taylor and Danielle
testified that they were unable to remember an incident in
which May had touched them that they had previously
disclosed to police. And Sheldon testified that he thought
that May’s touching was accidental until Taylor’s mother
told him otherwise. The State had not offered any expert
testimony to try to explain away these discrepancies in the
children’s accounts. Based on these and other weaknesses
in the State’s case, it was reasonable to think that the jury
might acquit May if it continued deliberating. Indeed, the
12
Thus, unlike the dissent, we do not discuss in detail the declaration
Thompson prepared during these later habeas proceedings. See Dissent
at 35–37.
13
More specifically, the jury’s reporting that it was deadlocked
probably meant that at least one juror wanted to acquit on each of the
counts. If the jury had reached a verdict on some counts, it apparently
could have convicted May on those counts even if it was deadlocked on
other counts. See, e.g., State v. Cummings, 716 P.2d 45, 46 & n.1 (Ariz.
Ct. App. 1985).
22 MAY V. SHINN
jury ultimately did acquit May on the counts related to
Sheldon. 14
There was further reason to think the current trial record
was more favorable to May than the record that might result
from a retrial. In particular, the trial court gave the jury an
instruction that was relatively favorable to May. That
instruction permitted the jury to consider “[e]vidence of
other acts” to “establish the defendant’s motive, opportunity,
intent, plan, absence of mistake or accident” in accordance
with Arizona Rule of Evidence 404(b). See Ariz. R. Evid.
404(b). But, significantly, the instruction expressly forbade
the jury from considering “[e]vidence of other acts” in
accordance with Rule 404(c), which permits “evidence of
other . . . acts . . . if relevant to show that the defendant had
a character trait giving rise to an aberrant sexual propensity
to commit the offense charged.” See Ariz. R. Evid. 404(c).
The instruction admonished the jury: “You must not
consider [evidence of other acts] to determine the
defendant’s character or character trait, or to determine that
14
The dissent mentions an empirical study of juries that ultimately
hang, which found that the final straw poll of such juries is three times
more likely to favor conviction than acquittal. Dissent at 45 (citing Lane,
815 F.2d at 879, which discusses Harry Kalven, Jr. & Hans Zeisel, The
American Jury (1966)). But that study additionally found that juries that
do not hang are likewise far more likely to convict than acquit—statistics
that bear on what could have been expected from a retrial. See Harry
Kalven, Jr. & Hans Zeisel, The American Jury: Notes for an English
Controversy, 48 Chi. Bar Ass’n Rec. 195, 196–97 (1967); see also
Theodore Eisenberg et al., Judge-Jury Agreement in Criminal Cases: A
Partial Replication of Kalven and Zeisel’s The American Jury, 2 J.
Empirical Legal Stud. 171, 182 tbl.2 (2005). Thus, to the extent the
dissent relies on the study to conclude that the likelihood of conviction
with an initially deadlocked jury is reason enough for defense counsel to
generally take a mistrial, the study, viewed as a whole, does not support
such a conclusion. See Dissent at 45.
MAY V. SHINN 23
the defendant acted in conformity with the defendant’s
character or character trait and therefore committed the
charged offense.” In other words, the jury could consider
evidence that May had molested one child as, for example,
evidence that May had not mistakenly or accidentally
touched the other children. But the jury could not consider
evidence that May had molested one child as evidence of
sexual propensity to molest children generally.
It was a reasonable strategy to move forward with a jury
that had specifically been prohibited from considering
“evidence of other . . . acts” as proof of May’s “aberrant
sexual propensity.” See Ariz. R. Evid. 404(c). At a retrial,
the jury might have been allowed to consider other acts as
evidence of May’s character—which could have increased
the risk that jurors would punish May for perceived bad
character regardless of whether they were persuaded by the
evidence that he had committed all of the alleged crimes.
See, e.g., 23 Charles Alan Wright & Kenneth W. Graham,
Jr., Federal Practice and Procedure § 5382 (criticizing
Federal Rules of Evidence 413 to 415, which are similar to
Arizona Rule of Evidence 404(c), because those provisions
“[a]llow[] the jury to easily cast the defendant into the
category of ‘The Other,’ as a ‘lustful rapist’ or a ‘depraved
child molester’”); cf. State v. Garcia, 28 P.3d 327, 334 (Ariz.
Ct. App. 2001) (noting that “the potential for unfairness
[was] particularly high” in a case where “many very young
victims . . . each testif[ied] to multiple uncharged
molestations,” and where the trial judge admitted the
uncharged acts as proof of the defendant’s character). The
difference between allowing in other acts to prove only
May’s intent, versus allowing in other acts to prove both
May’s intent and his character, could reasonably be viewed
as a meaningful one by counsel in Thompson’s shoes. See
generally State v. Scott, 403 P.3d 595, 600 n.3 (Ariz. Ct.
24 MAY V. SHINN
App. 2017) (observing that the appropriate “consideration
and use by the jury of evidence of a prior crime differs
significantly depending upon whether it is admitted . . .
under Rule 404(b), or ‘to show that the defendant had a
character trait giving rise to an aberrant sexual propensity
. . .’ under Rule 404(c)”).
In the trial that happened, the prosecutor had not pursued
the admission of character evidence under Rule 404(c) and
had never asked the jurors to infer from a finding that May
had engaged in any of the charged acts that he had a
propensity for aberrant sexual acts. But once the prosecution
knew that Thompson’s primary strategy at trial had been to
argue that May had never inappropriately touched the
children at all—a defense that could be particularly
undermined by propensity evidence if the jury did not
believe that defense as to at least one child—the prosecution
would be especially inclined to seek an instruction about
propensity evidence at a retrial. And there was reason to
think that if the prosecutor had requested use of Rule 404(c)
evidence at a retrial, the court would have granted it. At the
pretrial hearing on the motion to sever the counts against
May, the trial court had expressly contemplated that the
evidence with respect to each child could be admissible with
respect to the other children under both Arizona Rule of
Evidence 404(b) and Rule 404(c). In light of these
considerations, it was a reasonable strategic choice for
Thompson to allow the existing jury to continue deliberating
with the more favorable instruction.
More generally, Thompson could reasonably have
concluded that it would be risky to give the State a second
bite at the apple because the State would be able to refine in
other ways the case it presented at the first trial. See
generally, e.g., United States v. DiFrancesco, 449 U.S. 117,
MAY V. SHINN 25
128 (1980) (“[I]f the Government may reprosecute, it gains
an advantage from what it learns at the first trial about the
strengths of the defense case and the weaknesses of its
own.”); United States v. McGowan, 668 F.3d 601, 606 (9th
Cir. 2012) (noting that the prosecution may “learn from its
mistakes and put [on] a more persuasive case the second time
around” (quoting United States v. Moran, 393 F.3d 1, 10 (1st
Cir. 2004))). For example, the State argues that the
prosecution could have “revis[ed] its cross-examination of
May and other defense witnesses,” “call[ed] new witnesses,”
and sought to reconsolidate the count related to Nicholas
with the counts related to the other children. The State also
could have sought to address inconsistencies and gaps in the
children’s testimony by retaining an expert witness who
might testify that “children’s memories tend to be more
simplistic and less rich in detail” and that “children do not
tend to recall time[lines] and dates.” See Kurtz v.
Commonwealth, 172 S.W.3d 409, 413 (Ky. 2005). May’s
own defense strategy expert admitted that the State would
benefit at any retrial from having a record of the first trial.
Of course, May would also profit from having that record
at a retrial. But it was reasonable to think the State would
profit more. Due to asymmetries in disclosure obligations,
defense counsel was probably able to learn more about the
prosecution’s case before trial began than the other way
around. Compare Ariz. R. Crim. P. 15.1 (listing the State’s
relatively broader disclosure obligations), with Ariz. R.
Crim. P. 15.2 (listing the defendant’s relatively narrower
disclosure obligations); see also generally State v. Helmick,
540 P.2d 638, 640 (Ariz. 1975) (observing that “discovery
in a criminal case is not really a two-way street” because
“[t]he constitutional protections of the Fifth and Fourteenth
Amendments deny to the prosecution full disclosure of
information from the defense” (quoting Wright v. Superior
26 MAY V. SHINN
Court, 517 P.2d 1261, 1264 (Ariz. 1974))). At a retrial, any
informational advantage the defense had prior to the first
trial would be diminished. See Stephen J. Schulhofer,
Jeopardy and Mistrials, 125 U. Pa. L. Rev. 449, 506 (1977)
(“The government may be aided upon retrial merely by
having observed defense counsel’s tactics on cross-
examination or by having learned the nature of any
substantive defense. These possibilities are particularly
important because . . . the prosecution generally lacks the
opportunity to learn much prior to trial.”).
The dissent contends that “any reasonable lawyer would
have asked the court for some opportunity to investigate the
facts and law” before acquiescing to the jury resuming
deliberations. Dissent at 43. In support, the dissent argues
that “[a]uthorities teaching that defendants benefit when
hung juries result in mistrials are legion,” and that Thompson
“should have at least considered that the prevailing
professional norm would counsel against rejecting a
mistrial.” Dissent at 44, 45–46. But, to the extent the
dissent’s cited authorities are on point, they are actually
consistent with the notion that sometimes a reasonable
strategy is to proceed with the current jury rather than risking
a heightened chance of conviction at a retrial. See, e.g.,
Lane, 815 F.2d at 879 (recognizing that there is “some risk
of facing what might be an enhanced prospect of conviction
at a retrial”); Massachusetts Superior Court Criminal
Practice Manual, Special Trial Issues § 18.2.2 (indicating
that if “substantial issues of reasonable doubt have been
raised by the defense,” seeking a mistrial may not be the best
strategy). Even May’s expert—who emphasized that
“normally” defense counsel would object to the resumption
of jury deliberations—seemed to recognize that there could
be “pros” and “cons” to doing so.
MAY V. SHINN 27
The dissent’s argument that Thompson should have
attempted to ascertain the facts about “what may have
occurred after the jury was discharged” fares no better.
Dissent at 49–50. Investigation of the facts would have
required questioning jurors in open court, in front of the
judge and the prosecutor. The jurors presumably would have
described using their cell phones after being excused. Even
in the absence of evidence that jurors’ use of their cell
phones had prejudiced them—and we take this opportunity
to note that the record before us is devoid of any such
evidence—this could have prompted the judge to disallow
further deliberations. See Dietz v. Bouldin, 136 S. Ct. 1885,
1895 (2016) (explaining that “courts should . . . ask to what
extent just-dismissed jurors accessed their smartphones or
the internet” when deciding whether to reempanel a jury);
State v. Crumley, 625 P.2d 891, 895 (Ariz. 1981) (“It is
simply too dangerous a practice to discharge the individual
jurors . . . , send them back into the community . . . , and then
recall those same jurors.”). 15
Whether refraining from questioning the jurors was
deficient performance is ultimately the same question as
whether failing to object to the resumption of deliberations
was deficient performance. Having the jury sent home
would have cost May any strategic advantage that could be
gained by proceeding with the existing jury and the existing
trial record. Given how the trial had played out, Thompson
could reasonably have thought that there was such an
15
The dissent speculates about other issues, such as the nature of
“communications between the bailiff and the jurors” after the jurors were
discharged, and whether “there were individual pressures applied by
some of the jurors to others.” Dissent at 50. But the dissent does not cite
anything in the record indicating prejudice to May from any such
interactions.
28 MAY V. SHINN
advantage to continuing with the existing jury. It was
therefore also reasonable for Thompson to refrain from
initiating an investigation that could have caused that jury to
be dismissed for good. Put simply, it was a strategic choice
to not sacrifice the benefits of proceeding with the existing
jury in pursuit of more information. See Strickland, 466 U.S.
at 691 (“[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” (emphasis added)). 16
In sum, on the facts of this case, a mistrial was not plainly
more advantageous than continuing with the current jury,
such that a lawyer who failed to object should be found
ineffective. It was reasonable to conclude that May’s best
interest was served by continuing with the current jury—
which had indicated that at least one of its members was
inclined to acquit, had received an instruction prohibiting it
from considering certain evidence as proof of May’s sexual
propensity, and had been presented with the State’s
relatively weak case-in-chief. 17
16
The dissent also argues that Thompson could have performed
research into caselaw about discharged juries not being able to be
reconstituted. Dissent at 46. But the Arizona Court of Appeals held that
May failed to raise his claim “that counsel was ineffective for failing to
raise a jurisdictional challenge to the continued deliberations,” and the
dissent does not explain how May has shown cause and prejudice such
that we could consider this issue. See Coleman v. Thompson, 501 U.S.
722, 750 (1991).
17
May argues in his briefing that “[t]here is a difference between
deciding whether to seek a mistrial and taking the radical, and highly
unusual, step of reconstituting the jury to allow previously discharged
jurors to begin their deliberations anew.” We agree that the particular
situation counsel faced was unusual. But May does not explain how that
MAY V. SHINN 29
Even if Thompson may not have made the best decision
or the one that most defense lawyers would make, the Sixth
Amendment requires no more than objectively competent
performance. Under that standard, we are compelled to
conclude that Thompson’s performance was not
constitutionally deficient.
III.
For the foregoing reasons, we reject May’s claim for
habeas relief based on Thompson’s failure to object to the
resumption of jury deliberations. Because, in a concurrently
filed memorandum disposition, we also reject May’s other
arguments for habeas relief, the district court’s grant of
habeas relief is REVERSED.
IKUTA, Circuit Judge, concurring:
It is our duty to impartially follow and apply the law.
Here, as required to “reflect our enduring respect for the
State’s interest in the finality of convictions that have
survived direct review within the state court system,”
Calderon v. Thompson, 523 U.S. 538, 555 (1998) (internal
quotation marks omitted), we adhered to the limited scope of
federal habeas review. In doing so, we uphold the
fundamental principles of our legal system. I do not hesitate
to concur.
would or should alter defense counsel’s calculus in weighing the risks of
a retrial after mistrial against proceeding with the current jury.
30 MAY V. SHINN
FRIEDLAND, Circuit Judge, concurring:
I write separately to express my dismay at the outcome
of this case.
While I certainly recognize the seriousness of child
molestation, the evidence that May was actually guilty of the
five counts of molestation he was convicted on was very
thin. May’s conviction on those counts was based almost
entirely on the testimony of the children who were the
alleged victims. Yet, as described in the opinion, that
testimony had many holes. The potential that May was
wrongly convicted is especially concerning because he was
sentenced to seventy-five years in prison—a term that all but
ensures he will be incarcerated for the rest of his life. See
Ariz. Rev. Stat. Ann. § 13-604.01(G) (2007) (providing that
“a person sentenced for a dangerous crime against children
in the first degree . . . is not eligible for suspension of
sentence, probation, pardon or release from confinement on
any basis . . . until the sentence imposed by the court has
been served or commuted”).
Given the significant constraints on the scope of our
review, we are not in a position to do more than decide the
narrow question whether the proceedings in this case were
so egregiously unfair that they violated the Constitution. But
I agree with the dissent that this case, and in particular May’s
sentence, reflects poorly on our legal system.
BLOCK, Senior District Judge, Dissenting:
The majority holds that “we cannot say that [May’s
lawyer’s] decision to continue with the current jury rather
than risking a retrial—which he reached after briefly
consulting with May about the choice—fell outside ‘the
wide range of reasonable professional assistance’” under the
constraints of Strickland v. Washington, 466 U.S. 668
(1984).
In so holding, the majority ignores Strickland’s
constitutional underpinning that deference is due only “to
counsel’s informed decisions.” Strickland, 466 U.S. at 681
(emphasis added). The facts of this case unequivocally show
that counsel’s decision was the antithesis of an informed
decision. Therefore, I must dissent. 1
I.
A.
I start with the unimpeachable official trial transcript. It
tells us that at 2:58 p.m. on Friday, July 12, 2007, the jury
rendered a note, after deliberating for two days, reporting
that “we are a hung jury because the not guilty side doesn’t
believe there is enough evidence and the guilty side believes
1
The panel majority decides this case after taking the extraordinary
step of granting Appellee’s motion for rehearing. Rehearing is reserved
only for cases in which “[a] material point of fact or law was overlooked”
or a “change in the law occurred after the case was submitted [and] which
appears to have been overlooked” by the court’s initial decision.
Adamson v. Port of Bellingham, 907 F.3d 1122, 1136 (9th Cir. 2018)
(citing FRCP 40 and 9th Cir. Rule 40-1). Rehearing is not appropriate
“merely to reargue the case.” Id. The initial majority decision, from
March 2019, held that May was entitled to habeas relief. I believed that
decision was correct then, and I believe it is correct now.
32 MAY V. SHINN
there is.” The court then gave the jury the Arizona-
equivalent of an Allen charge and recessed from 3:00 until
3:26 p.m., when it received a second note, filed at 3:30 p.m.,
of the same import, but adding: “We do not have significant
dispute over the facts or the elements of law, or how to apply
the law to the facts. We feel we need some guidance to
‘proof beyond reasonable doubt.’”
The following then transpired:
THE COURT: Let’s bring in the jury.
(Jury enters the courtroom.)
THE COURT: Please be seated. The record
will show the presence of the jury, counsel
and the defendant.
Ladies and gentlemen, I have received
your most recent note and based upon the
information contained in that note after
discussing it with the attorneys, I’m going to
declare a mistrial. I know you are
disappointed not to be able to reach a verdict,
but sometimes that happens. Some cases are
more difficult to resolve than others.
On behalf of the members of the
participants in this trial, I want to thank you
for your service to the community. You have
gone above and beyond what we typically ask
jurors to do and most grateful for your time
and attention. The attorneys indicated that
they may wish to speak with you. You are
certainly under no obligation to do so. If you
are willing to speak with the lawyers, I would
MAY V. SHINN 33
ask that you wait back in the jury room and
they will be in shortly.
Again, thank you very much for your
time and attention. You are excused. Have a
good weekend.
After the jury exited, the court set the case down for
retrial on April 2, 2008 (just about eight months later) and
advised the defendant—who was at liberty—that he had to
be back in court on that date. It did not impose any
additional terms and conditions of release and wished
everyone “a good weekend.”
The following colloquy then occurred after an
unexplained “Off the record” notation:
THE COURT: Well, we’re back on the
record. The bailiff has received a
communication from the jury that they do not
wish to have a hung jury and wish to continue
deliberating and communicate that to the
counsel.
Any objection from the State?
MR. BEATTY: Not from the State.
THE COURT: Any objection [from May’s
counsel], Mr. Thompson?
MR. THOMPSON: No, your Honor.
THE COURT: All right. I’m going to then
advise the bailiff to communicate with the
34 MAY V. SHINN
jury that they may continue deliberating and
to let us know.
The record reflects that “Recess [was] taken at
3:32 p.m.” Thus, six minutes had transpired from the time
the jury was discharged until the bailiff was instructed to
advise the jurors that they could “continue deliberating.”
What transpired during that brief interregnum after the
jurors were discharged—where they each were, and what
they were doing or saying—is unknown from the trial
transcript. Moreover, it is not known what the bailiff may
have said to the jurors once they were discharged, or what
the bailiff may have said to the jurors when instructing them
that they could continue with their deliberations. Nor is
there any information as to what had transpired or how much
time elapsed “Off the record.”
What is known, however, is that the court used the bailiff
as its surrogate to give instructions to the jury rather than to
call the jurors back into the courtroom and that, tellingly,
May’s counsel’s response when asked if he had any
objection to continued deliberations was instantaneous.
What is perfectly clear from the trial record, therefore, is that
Thompson never asked the court to give him any time to
think about this most critical decision or even to speak to his
client. 2
2
If Thompson had asked for a pause, or for the opportunity to speak
to his client, the record surely would have reflected as much. See, e.g.,
Trial Tr. at 35 (Jan. 10, 2007) (reflecting Thompson’s request to “have a
minute” to check on an exhibit); Trial Tr. at 87–88 (Jan. 4, 2007)
(reflecting Thompson’s request to “approach” the bench); Trial Tr. at 65
(Jan. 3, 2007) (reporting that a discussion was held off the record
between “state and witness’ husband”).
MAY V. SHINN 35
The majority’s conclusion that May’s counsel briefly
consulted with him before agreeing to the continued
deliberations, consequently, is not supported by the trial
transcript; rather, it comes from the post-conviction relief
(“PCR”) hearing on September 7, 2011—over four years
after the trial. The record of that hearing consists of
Thompson’s testimony; his Declaration sworn to March 23,
2010; May’s Affidavit sworn to February 22, 2010; the
testimony of a Strickland expert; and the unchallenged
transcript of a post-trial investigative interview of one of the
jurors.
From all of that, the majority acknowledges simply that
“May hired a defense strategy expert, who testified . . . that
he believed Thompson was ineffective,” and reports only the
following snippet from the PCR record—taken from
Thompson’s Declaration: “[B]efore responding that the
defense had no objection to the jury’s resuming deliberation,
he had ‘a very brief conversation’ with May about the
alternative strategies of continuing with the jury or risking a
retrial,” and “further stated that he was ‘caught in the
moment by a circumstance [he] had never before
encountered in almost 300 previous felony jury trial [sic].’” 3
But in cherry-picking from the record, the majority chose
not to report other relevant portions of the record.
1. Thompson testified that his “brief conversation” with
May lasted about 20 to 30 seconds, and as explained in his
Declaration, centered on the issue of “go[ing] through
3
Thompson presumably got carried away with himself by claiming
that he had “almost 300 previous felony trials.” Since Thompson was
admitted to the Arizona bar in 1975, he would have had to average
approximately 10 felony trials per year to reach 300 by the time of May’s
trial 32 years later.
36 MAY V. SHINN
another complete trial with the prosecution then in
possession of a complete transcript of his testimony from the
mistried case.” In other words, during those seconds, there
was no mention of any of the concerns that the majority
meticulously details about the supposed weaknesses of the
prosecution’s case.
2. Thompson’s Declaration explains that when the
bailiff returned to the courtroom after the jury had been
discharged, the bailiff “whispered” to the judge.
Presumably, the bailiff told the judge that the jury had told
him that it wanted to continue deliberating. Thompson
confirmed that nothing was in writing. As he explained: “I
do not recall being aware of any written communication on
this subject from the jury to the judge or from the judge back
to the jury, nor do I recall being given the opportunity to see
any note from the jury to the judge or having any discussion
of any written response being sent back to the jury.”
3. Thompson’s Declaration states that “[a]t the moment
Judge Stephens informed the courtroom of the jury’s desire
to continue deliberating, [he] was standing at counsel table,
where Mr. May was sitting.” Apparently, this is when
Thompson had that “brief” conversation with May, although
the official trial transcript makes no mention of what had
then transpired aside from Thompson’s instantaneous
response that he had no objection to the continued
deliberations.
4. Although the majority accurately reports that
Thompson was “[c]aught in the moment,” it fails to mention
that Thompson then acknowledged that he “did not consider
what had caused the jury to change their minds, whether we
should inquire as to what had happened, or whether the
jury—having been discharged and released from their oath
and admonitions—could even be reconstituted.” In other
MAY V. SHINN 37
words, Thompson was the veritable “deer in the headlights”
and, other than his awareness that the trial transcript would
obviously be available at a retrial, he gave no thought
whatsoever to the wisdom of allowing the jury to engage in
further deliberations after it had been discharged.
5. May’s Affidavit stated:
The judge then suddenly said that the jury
wanted to keep deliberating. After the judge
said that, Mr. Thompson and I conferred at
the counsel table for a very short time, no
more than twenty seconds, before he
informed the court that he did not object to
the jury continuing deliberations. Mr.
Thompson did not discuss with me any of the
legal issues underlying this decision, nor did
he discuss with me the risks and possible
consequences of this decision.
6. At the post-conviction hearing, May’s Strickland
expert explained the prevailing professional norm:
[W]hen you get a mistrial . . . you close up
your file and get out of the courtroom as fast
as you can. . . . [B]y all defense standards,
you have won not with an acquittal, but you
leave with your client . . . to live and fight
another day.
The expert then testified that:
[M]inimal standards require that if you were
going to even consider that option of
continuing on, to get the information, to find
out what went on so you can analyze the
38 MAY V. SHINN
information and, importantly, advise your
client of all the risks and rewards and what,
given your recommendation, and come to a
collective decision as to what’s the best
course to follow.
Here, a decision was made without the
benefit of information. It was a decision to
continue on, . . . all your nerve endings are
telling you not to and you don’t have
sufficient information and . . . you have a jury
that has sat outside the courtroom, who had
been released doing who knows what went on
there, and you are making a decision to carry
on with insufficient information.
The expert then opined on what the “reasonable
objective standards would require”:
Well, what reasonable objective standards
would require is that, one, first you gather
whatever information is available about what
just went on, either through the bailiff
advising on the record, the Court advising on
the record so you have the information—
whatever information is available you have.
It might even require a voir dire of certain
members of the jury, and then after you
gather the information, you take whatever
time is necessary and you ask the Court’s
indulgence . . . to explain to your client what
just happened, here are the pros, here are the
cons, here’s my recommendation to you,
here’s the risks, here’s the rewards, and then
MAY V. SHINN 39
you and the client come to a collective
decision. 4
7. Finally, the transcript of the unchallenged interview
with one of the jurors conducted by the post-conviction
investigator disclosed what had transpired as soon as the
jurors returned to the jury room after they were discharged:
Ruggiero: Last question. When you guys
were back in the jury room between the time
the mistrial was declared and the time you
came back, did anyone make any phone calls,
get on their cell phones?
Proeber: Absolutely every one of us.
Ruggiero: Did you call out?
Proeber: I’m sure I did.
Ruggiero: Who did you call?
Proeber: I don’t remember.
4
The majority states that the Strickland expert “recognize[d] that
there could be ‘pros’ and ‘cons’ to” to resumed jury deliberations.
However, reading his testimony in context, the expert was not
“recogniz[ing]” any “pros” of allowing a discharged jury to resume
deliberations. To the contrary, his testimony outlined the bare minimum
of what defense counsel should do when the possibility of reconvening
a discharged jury arose—such as investigate possible juror
contamination—and the myriad ways in which Thompson failed to
satisfy “reasonable objective standards” by blithely acquiescing to
resumed deliberations.
40 MAY V. SHINN
Ruggiero: Did you talk about the trial?
Proeber: My friend, something, saying oh
my God it’s over.
Ruggiero: Did you–
Proeber: Thank God I’m coming back to
work now. I mean, I’m sure.
Ruggiero: Did others make calls?
Proeber: Every one of us was on our cell
phones walking out.
B.
Because the majority holds against May on the
deficiency prong, I analyze that prong first. Although the
majority concluded that it “need not decide which standard
of review applies,” it is clear to me that it is de novo. Under
AEDPA, if a state court’s last-reasoned decision addressed
the merits of an issue, then habeas relief is only available if
that decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or
“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). However, where “the
state court has not decided an issue, we review that question
de novo.” Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th
Cir. 2006).
Here, the last reasoned state court decision was the
Arizona Court of Appeals’ affirmance of the denial of PCR.
MAY V. SHINN 41
That decision held only that May was not prejudiced by his
counsel’s performance; therefore, it did not resolve the issue
of whether Thompson’s performance was objectively
deficient. Accordingly, de novo review of Strickland’s
deficiency prong is the proper standard of review. See
Porter v. McCollum, 558 U.S. 30, 39 (2009) (“Because the
state court did not decide whether Porter’s counsel was
deficient, we review this element of Porter’s Strickland
claim de novo.”). That standard calls upon us to perform an
independent review of the record before the Arizona Court
of Appeals. See Reynoso, 462 F.3d at 1109 (“[When] no
reasoned state court decision denying a habeas petition
exists, this court must . . . perform an independent review of
the record to ascertain whether the state court decision was
objectively unreasonable.” (internal citation omitted)); see
also Rabkin v. Oregon Health Scis. Univ., 350 F.3d 967, 970
(9th Cir. 2003) (“When de novo review is compelled, no
form of appellate deference is acceptable.” (citing Salve
Regina Coll. v. Russell, 499 U.S. 225, 238 (1991))).
As identified in Part I.A., supra, the relevant record
includes the trial transcript, the PCR hearing transcript,
Thompson’s Declaration, May’s Affidavit, and the juror
interview.
C.
The majority has devoted its entire opinion to a detailed
analysis of the trial testimony and evidence, yet that is beside
the point unless we were to hold that counsel’s mindless
acquiescence to resumed deliberations was an irrelevancy.
But that is not the law, and there is no Supreme Court
support for such a novel notion. Rather, Strickland requires
that counsel make “informed strategic choices”—often
requiring a “thorough investigation of law and facts.”
42 MAY V. SHINN
Strickland, 466 U.S. at 690–91 (emphasis added).
Thompson’s blind acquiescence to continued deliberations
was anything but an informed decision. At the very least he
had an obligation to put some thought into his thoughtless
decision.
He also had an obligation “to consult with the defendant
on important decisions.” Strickland, 466 U.S. at 688.
Certainly, this was an important decision. 5 At best, the
record reflects a 20- to 30-second conversation between
counsel and client where apparently all that was mentioned
was the obvious—that the trial transcript would be available
at a retrial. This is hardly a meaningful consultation. See,
e.g., U.S. ex rel. Washington v. Maroney, 428 F.2d 10, 12–
13 (3rd Cir. 1970) (commenting on an ineffective conference
between counsel and defendant that lasted between one to
ten minutes: “This brief encounter between Washington and
counsel took place in open court . . . . It was in no respect a
private discussion, but was a hurried, whispered meeting in
an atmosphere where a genuine opportunity for disclosure of
information or a discussion of defense was impossible.”).
Nor could it be a meaningful conversation if Thompson had
not acquired basic facts and had not taken a modicum of time
to explore the law. Hinton v. Alabama, 571 U.S. 263, 274
(2014) (“An attorney’s ignorance of a point of law that is
fundamental to his case combined with his failure to perform
basic research on that point is a quintessential example of
5
To be sure, a lawyer has no duty to consult with his client during
the course of a trial before moving for a mistrial. See United States v.
Chapman, 593 F.3d 365, 367–68 (4th Cir. 2010) (citing cases). But
allowing a jury to deliberate after a mistrial has been declared is a far
different issue, and is obviously an “important,” if not critical, decision.
MAY V. SHINN 43
unreasonable performance under Strickland.” (emphasis
added)).
Given the uniqueness of this case—which Thompson
acknowledged he had never before encountered in his many
years of representing criminal defendants in felony trials—
any reasonable lawyer would have asked the court for some
opportunity to investigate the facts and law. There was
simply no rush to judgment. It was late Friday afternoon.
The court could simply have instructed the jurors to return
after the weekend and admonish them not to discuss the case
with anyone. Thompson should at least have asked for the
opportunity to check out the law over the weekend and to
reflect on what had transpired during the course of the trial.
It would also have given him time to think about what
additional facts should be ascertained before he could make
an informed decision and effectively consult with May.
If Thompson had investigated the law and facts, here’s
what he would have found:
1. The Law & Prevailing Professional Norm
The Supreme Court instructs that the first prong of the
Strickland standard, “constitutional deficiency—is
necessarily linked to the practice and expectations of the
legal community.” Padilla v. Kentucky, 559 U.S. 356, 366
(2010). Thus, “[t]he proper measure of attorney
performance remains simply reasonableness under
prevailing professional norms.” Id. (emphasis added)
(quoting Strickland, 466 U.S. at 688). 6
6
Consequently, in Padilla the Supreme Court held that “[t]he
weight of prevailing professional norms supports the view that counsel
must advise her client regarding the risk of deportation.” Id. at 367.
44 MAY V. SHINN
Prevailing professional norms are, therefore, valuable
“guides to determining what is reasonable.” Strickland,
466 U.S. at 688. As acknowledged in our Memorandum, the
“‘prevailing professional practice at the time of the trial,’”
Bobby v. Van Hook, 558 U.S. 4, 8 (2009) (per curiam),
“provide[s] the background” for assessing Thompson’s
performance. Thompson should have thought about what
the prevailing professional norm was when the opportunity
for a mistrial was extant.
Authorities teaching that defendants benefit when hung
juries result in mistrials are legion. Such authorities vary in
time and format and abound in criminal defense manuals,
reported cases, and legislative debates from across the
country. See, e.g., Blue’s Guide to Jury Selection § 28:5;
Criminal Trial Techniques § 66:11 (“Even where the case is
perceived to be progressing well for the defense, the
potential waiver of an applicable issue by the failure to seek
a mistrial almost always warrants the motion.”);
Massachusetts Superior Court Criminal Practice Manual,
ch. 18, CRIMP MA-CLE 18-1 (“Defense counsel who
oppose mistrial [when a jury is deadlocked] should have
very strong reasons to hope for acquittal; the wiser course
usually is to seek the mistrial and return to fight another
day.”). 7
7See also People v. Rundle, 180 P.3d 224, 304 (Cal. 2008)
(characterizing a mistrial ruling as “a more favorable outcome”), rev’d
on other grounds, People v. Doolin, 198 P.3d 11 (Cal. 2009); State v.
Taylor, 142 P.3d 1093, 1098 (Or. Ct. App. 2006) (quoting a colloquy
between a trial judge and a defendant in which the judge describes “a
hung jury on” a “felony count was a pretty good result”); 1 Proceedings
and Debates of the Constitutional Conventions of the State of Ohio 180
(1912) (statement of Humphrey Jones) (“Two things are always kept in
view. One is to get a jury to acquit, and if you can’t do that the next best
MAY V. SHINN 45
This common understanding is not simply the product of
arbitrary tradition; a mistrial is favored for many concrete
reasons. For example, the Second Circuit has cited an
empirical study finding that “the last vote of deadlocked
juries favors conviction nearly three times as often as
acquittal.” Lane v. Lord, 815 F.2d 876, 879 (2d Cir. 1987).
Thus, if an opportunity for a mistrial is available when there
is a hung jury, a defense attorney would generally be well-
advised to take it.
Apart from that, a mistrial means more time for
negotiations, potential witness unavailability, new evidence,
and so forth. See, e.g., United States v. Diggs, 522 F.2d
1310, 1321 n.24 (D.C. Cir. 1975) (“[A] mistrial need not
‘require’ a retrial. Witnesses disappear; other considerations
often affect the prosecutor’s discretion.”); see also Richard
A. Primus, When Democracy Is Not Self-Government:
Toward a Defense of the Unanimity Rule for Criminal
Juries, 18 Cardozo L. Rev. 1417, 1417 n.2 (1997)
(explaining that trials ending in hung juries are beneficial for
criminal defendants in part because not every hung jury
results in a retrial). In May’s case, a mistrial also meant
guaranteed time out of jail, since he was out on bond.
In other words, well-known defense strategies clearly
supported preserving a mistrial here. Thus, Thompson
thing is to get one that will fail to agree. And it is a matter of common
knowledge that every means is adopted that is available within the limits
of the ethics of the profession to secure at least a jury that will not
convict.”); id. (statement of James C. Tallman) (“[T]he prosecution
adopts all means it can to secure a conviction, but the prosecution does
not want a hung jury. A hung jury doesn’t do the prosecution any
good.”).
46 MAY V. SHINN
should have at least considered that the prevailing
professional norm would counsel against rejecting a mistrial.
Moreover, in addition to being cognizant of the
prevailing professional norm, some simple research would
have informed Thompson that there was caselaw applying
the then-prevailing common law rule that once a jury has
been discharged it could not be reconstituted. See, e.g.,
Blevins v. Indiana. 591 N.E.2d 562, 563 (Ind. App. 1992)
(“Any action of the jury after its discharge is null and
void.”); Michigan v. Rushin, 194 N.W.2d 718, 721–22
(Mich. App. 1971) (error to reconvene jury after it had left
the courtroom, “be it for two minutes or two days”);
Tennessee v. Green, 995 S.W.2d 591, 614 (Tenn. 1998)
(convictions vacated; jury may not be reconvened if it has
been discharged and “outside contacts may have occurred”)
(internal quotation and citation omitted); Melton v. Virginia,
111 S.E. 291, 294 (Va. 1922) (reversing conviction: “[i]t is
sufficient that the jury had left the presence of the court”). 8
Justice Thomas has explained the rationale for this
“prophylactic rule”—which was applicable to both civil and
criminal cases:
Even without full sequestration, the
common-law rule remains sensible and
administrable. After discharge, the court has
no power to impose restrictions on jurors, and
jurors are no longer under oath to obey them.
Jurors may access their cellphones and get
8
Generally, these criminal cases have involved juries that were
discharged after rendering a verdict. However, Blevins considered the
specific factual circumstance of a jury discharged after the declaration of
a mistrial, as in May’s trial. 591 N.E.2d at 563.
MAY V. SHINN 47
public information about the case. They may
talk to counsel or the parties. They may
overhear comments in the hallway as they
leave the courtroom. And they may reflect
on the case—away from the pressure of the
jury room—in a way that could induce them
to change their minds. The resulting
prejudice can be hard to detect. And a litigant
who suddenly finds himself on the losing end
of a materially different verdict may be left to
wonder what may have happened in the
interval between the jury’s discharge and its
new verdict. Granting a new trial may be
inconvenient, but at least litigants and the
public will be more confident that the verdict
was not contaminated by improper influence
after the trial has ended. And under this
bright-line rule, district courts would take
greater care in discharging the jury.
Dietz v. Bouldin, 136 S. Ct. 1885, 1898 (2016) (dissenting
opinion).
2. The Facts
Although not embracing the common-law rule in Dietz,
the Supreme Court’s majority opinion serves as a template
for the common-sense facts that Thompson should have
considered. There, the Court announced that trial courts
have an inherent power to rescind a discharge order in civil
cases. It cautioned, however, that the power “must be
carefully circumscribed, especially in light of the guarantee
of an impartial jury that is vital to the fair administration of
justice.” Dietz, 138 S. Ct. at 1893. Therefore, it held that
“[a]ny suggestion of prejudice in recalling a discharged jury
48 MAY V. SHINN
should counsel a district court not to exercise its inherent
power.” Id. at 1894. Thus, “for example,” an inquiry should
be made as to “whether any juror has been directly tainted.”
Id.
The Court explained that a trial court “should also take
into account at least the following additional factors that can
indirectly create prejudice in this context, any of which
standing alone could be dispositive in a particular case.” Id.
“First, the length of delay between discharge and recall.”
The Court imposed no bright-line rule, but commented that
the delay “could be as short as even a few minutes,
depending on the case.” Id. (emphasis added.).
“Second, whether the jurors have spoken to anyone
about the case after discharge.” The Court explained that
“[e]ven apparently innocuous comments about the case from
someone like a courtroom deputy such as ‘job well done’
may be sufficient to taint a discharged juror who might then
resist reconsidering her decision.” Id. (emphasis added).
“Third, the reaction to the verdict.” As examples, the
Court stated that “[s]hock, gasps, crying, cheers, and yelling
are common reactions to a jury verdict—whether as a verdict
is announced in the courtroom or seen in the corridors after
discharge.”
Tellingly, the Court then concluded:
In considering these and any other relevant
factors, courts should also ask to what extent
just-dismissed jurors accessed their
smartphones or the internet, which provide
other avenues for potential prejudice. It is a
now-ingrained instinct to check our phones
MAY V. SHINN 49
whenever possible. Immediately after
discharge, a juror could text something about
the case to a spouse, research an aspect of the
evidence on Google, or read reactions to a
verdict on Twitter. Prejudice can come
through a whisper or a byte.
Id. at 1895 (emphases added).
Finally, the Court “caution[ed] that our recognition here
of a court’s inherent power to recall a jury is limited to civil
cases only” and did not address, therefore, “whether it would
be appropriate to recall a jury after discharge in a criminal
case.” 9
Dall.
I have made my own full independent review of the
entire record before the Arizona Court of Appeals and
cannot conclude that it reflects that Thompson made an
“informed” decision to allow the jury to continue to
deliberate after it had been discharged. It is painfully clear
that the opposite was the case. And it is also painfully clear
that Thompson could not have effectively counseled his
client—let alone in 20 to 30 seconds—without first
9
While the Supreme Court may someday take up the issue, it will
not be able to do so in this case since May’s counsel has never preserved
the issue as one invoking federal constitutional law. Picard v. Connor,
404 U.S. 270, 275 (1971) (holding that to preserve federal claim for
habeas review, “the federal claim must be fairly presented to the state
courts”); Madrid v. Gregoire, 187 F.3d 648 (9th Cir. 1999) (“Absent the
requisite specificity of a federal claim, [petitioner] did not preserve his
claim for federal habeas review.”).
50 MAY V. SHINN
ascertaining what may have occurred after the jury was
discharged.
Indeed, a number of questions jump off the pages:
(1) What were the precise communications between the
bailiff and the jurors both before and after the judge
discharged the jurors? In particular, what instructions did
the bailiff give the jurors as the judge’s surrogate? (2) Was
there any communication in the hallway between some of
the jurors—let alone with the bailiff—before they all
returned to the jury room? (3) Were there individual
pressures applied by some of the jurors to others outside the
jury room to continue deliberations? (4) Since the record
contains the unchallenged report from one juror that
“everyone was on our cellphones walking out,” to whom
were the jurors talking, and what was said?
I have profound respect for the candor expressed by my
colleague in her concurring opinion, and for her humanity in
recognizing that “[t]he potential that May was wrongly
convicted is especially concerning because he was sentenced
to seventy-five years in prison—a term that all but ensures
he will be incarcerated for the rest of his life,” 10 and that his
10
Unlike New York, the federal system has yet to embrace the
concept that “principles of justice” can, and should, transcend common
or codified law. See N.Y. Crim. Proc. Law § 210.40 (conferring
authority on courts to dismiss indictments, or counts thereof, “as a matter
of judicial discretion” where a “compelling factor, consideration or
circumstance clearly demonstrate[s] that conviction or prosecution . . .
would constitute or result in injustice”); People v. Clayton, 342 N.Y.S.2d
106, 109 (N.Y. App. Div. 2d 1973) (finding the use of § 210.40
“depended only on principles of justice, not on the legal or factual merits
of the charge or even on the guilt or innocence of the defendant”);
Frederic Block, The Clayton Hearing, N.Y. State B.J., Oct. 1973, at 412
(commenting that Clayton and § 210.40 “set in motion new machinery
MAY V. SHINN 51
sentence “reflects poorly on our legal system.” 11 But I
cannot agree with her that there were “significant constraints
on the scope of our review.” The majority simply limited its
review to an extensive analysis of those parts of the record
that apparently played a large part in the jurors’ inability to
reach a verdict before the mistrial was declared. But May’s
counsel never indicated that he had reflected for one moment
about the weaknesses of the prosecution’s case—let alone
discussed them with his client.
The majority has not made a full independent review of
Thompson’s performance—which is the true “scope of our
review.” If it did, it could not conclude that his mindless
assent to continued deliberations was truly an informed
decision.
to allow for the screening of criminal cases . . . for reasons transcending
the defendant’s guilt or innocence”).
11
Judge Friedland might also have noted that it also reflects “poorly
on our legal system” that Arizona is the only state that places the burden
of proving lack of intent on the defendant, and that it may well be that if
the issue ever reached the Supreme Court, it would agree with Judge
Wake that it is unconstitutional. See May v. Ryan, 245 F. Supp. 3d 1145,
1149 (D. Ariz. 2017) (“Arizona stands alone among all United States
jurisdictions in allocating the burden of proof this way.”); Schad v.
Arizona, 501 U.S. 624, 640 (1991) (“[A] freakish definition of the
elements of a crime that finds no analogue in history or in the criminal
law of other jurisdictions” may signal constitutional infirmity.).
However, as explained in our Memorandum, Thompson could not be
faulted for failing to object on that ground.
52 MAY V. SHINN
II.
A.
Although not critical to the dispositive conclusion that
Thompson’s performance was objectively deficient because
of his failure to make an informed decision—which also
prevented him from effectively consulting with his client—
I also take issue with the majority’s conclusion that “[t]here
were good reasons to think that sticking with the current trial
record and jury would better serve May’s interests than
would a new trial.” While the majority has finely combed
the record in its effort to support its conclusion, its principal
rationales are that May’s counsel could have reasonably
wanted to avoid a second trial because (1) “the State would
be able to refine in other ways the case it presented at the
first trial,” and (2) a less favorable jury instruction might
have been given at a second trial. Against the available
evidence, these conclusions are subjective, speculative, and
unsupportable.
The first rationale simply makes no sense. It would
render nugatory the entire body of law extolling the virtues
of a mistrial since the record of any prior trial would always
be available to the government at a retrial. In any event, I
see nothing in the record explaining what the State could
have meaningfully done better if it got a second bite at the
apple. The State makes several arguments, which the
majority presumably credits. For example, at oral argument
the State argued that May’s demonstrably false statements
that he did not know one of the victims, or even “half a dozen
children,” were particularly damaging to his defense and
would have been used against him in a second trial. Yet
those statements were made in a pretrial police interview and
had been admitted in the first trial. They would not be more
damaging in some future proceeding. In addition, May had
MAY V. SHINN 53
vigorously proclaimed his innocence at trial, and it is unclear
what benefit the State could have derived from having a copy
of that testimony. In short, the majority’s conclusory
argument that the State could have refined its case at a
second trial rings hollow. 12
The remaining rationale stands on no better footing.
Having consolidated seven of the eight counts, the trial judge
instructed the jurors that they could collectively consider
them under Arizona Rule of Evidence 404(b) to establish,
inter alia, intent, which was the what the trial was all about.
She pointedly told the jury not to consider the seven counts
as evidence of propensity. It is pure speculation to surmise
that the judge would change her mind and give a propensity
instruction at a second trial. Moreover, given the powerful
collective impact of the 404(b) charge, it is unrealistic—and,
once again, purely speculative—to surmise that a propensity
charge would have made a defining difference.
B.
To allow all this speculation by two of the three judges
on this particular panel to trump the body of law supporting
a retrial, especially in light of the prevailing professional
norm and the unimpeached expert testimony, would be a
miscarriage of justice.
Notably, the majority ignores that prevailing
professional norms are valuable guides to determining what
is reasonable; and since Strickland “calls for an inquiry into
the objective reasonableness of counsel’s performance, not
12
Of course, a retrial also affords the defense the opportunity to
refine its case. Thus, an acquittal following a retrial is entirely possible
and does indeed occur. See, e.g., Frederic Block, Crimes and
Punishments: Entering the Mind of a Sentencing Judge ch. 2 (2019).
54 MAY V. SHINN
counsel’s subjective state of mind,” a reviewing court must
identify the prevailing professional norm before it decides
whether a potential justification for counsel’s performance
is objectively reasonable. Harrington v. Richter, 562 U.S.
86, 105, 110 (2011) (“The question is whether an attorney’s
representation amounted to incompetence under ‘prevailing
professional norms.’”). Otherwise, there is no anchor to
guard against decisions pegged on the predilections of
judges.
Justice Cardozo famously taught that judges are “not to
innovate at pleasure. [A judge] is not a knight-errant
roaming at will in pursuit of his own ideal of beauty or
goodness. He is to draw his inspiration from consecrated
principles.” Benjamin N. Cardozo, The Nature of the
Judicial Process 141 (17th prtg. 1957) (1921). In more
recent times, jurists across the political spectrum have
cautioned against judges relying on their own personal
judgment, hunches, or preferences over concrete evidence.
See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019)
(plurality opinion of Kagan, J., joined by Ginsburg, Breyer,
and Sotomayor, JJ.) (“After all, judges are most likely to
come to divergent conclusions when they are least likely to
know what they are doing.”); Roper v. Simmons, 543 U.S.
551, 616 (2005) (Scalia, J., dissenting) (“By what
conceivable warrant can nine lawyers presume to be the
authoritative conscience of the Nation?”). Objective
evidence is the antidote to the vagaries of a random panel-
selection process that draws from a pool of judges who may
not even have had first-hand experience with the criminal
justice system.
The majority also fails to credit the testimony of the
Strickland expert, who testified to the standards to which
defense attorneys are held—precisely the “prevailing
MAY V. SHINN 55
professional norm” against which Strickland directs us to
measure counsel’s performance. The Strickland expert
testified that, with a mistrial, “by all defense standards, you
have won[,] not with an acquittal, but you leave with your
client to go out with you, to live and fight another day.”
Strickland expert testimony is routinely accepted as reliable
evidence of pertinent professional norms. See, e.g.,
Hamilton v. Ayers, 583 F.3d 1100, 1130 (9th Cir. 2009)
(“The district court clearly erred in relying on the testimony
of Hamilton’s trial counsel as to the ‘standard capital
practice’ at the time of trail and rejecting the testimony of
Hamilton’s Strickland expert.”).
Thus, these failings—apart from the failure to make an
informed decision—also compel the conclusion that
Thompson’s performance was objectively deficient under
the first prong of Strickland.
III.
Since I would find in May’s favor on objective
deficiency grounds, I must also analyze prejudice. Because
the state PCR court resolved the prejudice issue “on the
merits,” I review that decision under AEDPA’s “contrary to,
or an unreasonable application of clearly established law”
standard. I conclude that the Arizona Court of Appeals
decision as to the prejudice prong of May’s ineffective-
assistance claim was “contrary to” clearly established law as
dictated by Strickland, and I would find that May is entitled
to habeas relief.
The Arizona Court of Appeals denied May’s claim on
the ground that “May [could not] show prejudice because
[the court] rejected the underlying claim of error on [direct]
appeal.” State v. May, 2012 WL 3877855, at *4 (Sept. 7,
2012). On direct appeal, the Court of Appeals considered
56 MAY V. SHINN
whether the trial court committed fundamental error “by
allowing the jury to reconvene.” State v. May, No. 1 CA-CR
07-0144, 2008 WL 2917111, at *2–3 (Ariz. Ct. App. July
24, 2008). Arizona courts define “fundamental error” as any
“error going to the foundation of the case, error that takes
from the defendant a right essential to his defense, and error
of such magnitude that the defendant could not possibly have
received a fair trial.” State v. Henderson, 115 P.3d 601, 607
(Ariz. 2005) (quoting State v. Hunter, 688 P.2d 980, 982
(1984)). Of course, the standard for prejudice under
Strickland is different; requiring only that a petitioner
establish “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” 466 U.S. at 694.
Asking whether it constitutes fundamental error to
“allow[] the jury to reconvene” (as the Court of Appeals did
on direct review) is different than asking whether there was
a “reasonable probability” that the trial judge would have
sustained an objection to resumed deliberations if one had
been made (which was the question posed to the Court of
Appeals in the PCR proceeding). Cf. United States v.
Schaflander, 743 F.2d 714, 719 (9th Cir. 1984) (assessing
prejudice based upon “[w]hether the trial court would have
sustained the objection”). When the PCR court relied on the
direct-review decision to hold that May had not shown
prejudice, it committed a non sequitur: That May had not
shown prejudice under a “fundamental error” standard did
not mean that he failed to show prejudice under Strickland. 13
13
This distinction is also clear in light of the procedural history in
the state courts. Appellate counsel had no choice but to argue
fundamental error since trial counsel failed to object and appellate
counsel was not allowed to argue ineffective assistance of trial counsel.
MAY V. SHINN 57
By incorporating a fundamental error standard in its
decision, the state court rendered a judgment “that was
contrary to . . . clearly established Federal law, as
determined by the Supreme Court” in Strickland. 28 U.S.C.
§ 2254. See Williams v. Taylor, 529 U.S. 362, 405 (2000)
(plurality opinion of O’Connor, J., joined by Rehnquist, C.J.,
and Kennedy, Thomas, and Scalia, JJ.) (“A state-court
decision will certainly be contrary to our clearly established
precedent if the state court applies a rule that contradicts the
governing law set forth in our cases.”).
Moreover, under a correct application of Strickland,
there can be no doubt that Thompson’s deficient
performance prejudiced May. Cf. Williams, 529 U.S. at 396
(plurality opinion of Stevens, J., joined by O’Connor,
Kennedy, Souter, Ginsburg, and Breyer, JJ.) (applying
Strickland to ineffective-assistance claim after holding state-
court decision was “contrary to” clearly established law). By
the time the jury resumed deliberations, the trial judge had
declared a mistrial, discharged the jury, and set a new trial
date. The trial also was of relatively short duration. Given
those considerations, there was “a reasonable probability”
that if trial counsel had objected to reconstituting the jury,
the trial judge would have sustained the objection and
maintained the mistrial. Strickland, 466 U.S. at 694. Indeed,
the trial judge might well have granted such an objection
simply to prevent the possibility or perception of juror
contamination, or out of a concern that a decision to allow
See State ex rel. Thomas v. Rayes, 153 P.3d 1040, 1044 (Ariz. 2007).
Thus, on direct review, the Court of Appeals could only analyze the
waived objection to resumed deliberations for fundamental error. On
collateral review, May is able to argue ineffective assistance of trail
counsel, and May’s point is that the objection would have been analyzed
by the trial court on a clean slate. That is clearly a different inquiry than
fundamental error.
58 MAY V. SHINN
resumed deliberations would be erroneous (even if such
error did not rise to the heights of a “fundamental error”).
Under Strickland, no more is needed to show prejudice.
CONCLUSION
Because I would find that May’s counsel was objectively
deficient in not objecting to resumed jury deliberations, and
because there was a reasonable probability that an objection
would have been sustained, I would affirm the grant of
habeas relief. 14 Regrettably, the majority returns a man to
prison—probably for the rest of his life—under the severe
strictures of Arizona’s sentencing regime. 15 May has
already served ten years based on his counsel’s
ineffectiveness, and has been at liberty since March 2017,
14
In our Memorandum, we rejected May’s argument that his counsel
was ineffective for failing to consult with him because May has not
shown prejudice. However, the failure to effectively consult with May
was a component of Thompson’s objectively deficient performance, and
the prejudice prong is otherwise satisfied.
15
Although May has raised a claim that the Eighth Amendment
rendered his harsh sentence unconstitutional, I concurred with the
majority in our Memorandum that the claim was procedurally barred. In
any event, the Supreme Court has foreclosed that argument. See Ewing
v. California, 538 U.S. 11, 30–31 (2003). While I am mindful of that
precedent and the seriousness of May’s offenses, I cannot help but agree
with the dissenters in that case, two of whom are still sitting Justices. A
common-sense proportionality review, which would weigh May’s
criminal conduct against his otherwise clean record and all-but-life
sentence, would doubtless suggest that the punishment is cruel and
unusual, especially taking into account sentencing patterns in other
jurisdictions. See id. at 35 (Breyer, J., dissenting).
MAY V. SHINN 59
without incident, ever since Judge Wake granted his habeas
petition based on a statute of dubious constitutionality. 16
16
Judge Wake raised compelling reasons why the statute placing the
burden of proving lack of intent on the defendant may well be
unconstitutional. However, as explained in our Memorandum, “[g]iven
the long-standing Arizona rule that the State is not required to prove
sexual intent . . . we cannot conclude that trial counsel’s failure to object
to the constitutionality of the statute[] . . . ‘fell below an objective
standard of reasonableness.’” Therefore, any review by the Supreme
Court of the statute’s constitutionality will have to await another day.