Arizona Cases June 25, 2021: Curtis v. Ryan

Case Description

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REPORT AND RECOMMENDATION

Honorable John Z. Boyle United States Magistrate Judge

TO THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE:

Petitioner has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) (doc. 1) and a Memorandum of Facts and Law in support of his Petition (doc. 12).

I. Summary of Conclusion.

Following a jury trial in Maricopa County Superior Court, Petitioner, a retired attorney, was convicted and sentenced to 190 years in prison on 15 counts of sexual exploitation of a minor and four counts of child molestation. Petitioner appealed his convictions and sought post-conviction relief in the Arizona courts prior to filing his Petition. Petitioner is not entitled to relief on any ground of his Petition because his claims are either noncognizable, unexhausted, procedurally defaulted, and/or without merit as explained below. Accordingly, the Court recommends that the Petition be denied and dismissed with prejudice.

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II. Background.

A. Conviction & Sentencing.

Petitioner is a retired criminal defense/family law attorney in the custody of the Arizona Department of Corrections. In December 2010, Petitioner was convicted by a jury in Maricopa County Superior Court (#CR2010-005771-001) on 15 counts of Sexual Exploitation of a Minor, each a Class 2 Felony and Dangerous Crime Against Children (Counts 1-10, 12, 14, 16, 18, 20), and four counts of Molestation of a Child (Counts 11, 15, 17, 19), each a Class 2 Felony and Dangerous Crime Against Children. (Doc. 25-1, Ex. B, at 26-32; Doc. 25-18, Ex. JJJJJJ, at 2-11.) An additional molestation charge (Count 13) was dismissed on motion by the State during trial after it determined that the image supporting the charge may not have fit within the legal definition of molestation. (Doc. 25-12, Ex. HHHHH, at 119-20.) For his conviction on each remaining count, Petitioner was sentenced to consecutive terms of ten years in prison for a total of 190 years. (Doc. 25-18, Ex. JJJJJJ, at 2-11.)

The prosecution of Petitioner arose from Dwayne Benallie's discovery of a flash drive in a parking lot at Tempe Marketplace near Harkins Theatres on May 28, 2009. (Doc. 25-8, Ex. IIII, at 88-90.) Mr. Benallie, who worked at the Harkins Theatres, took the flash drive home and put it in his computer, at which point he discovered it contained “nude photos” of what he believed to be children. ( Id. at 90, 93, 99-101, 104-05.) Mr. Benallie immediately called police and turned the flash drive over to Officer Michael Vick at the Tempe Police Department (“TPD”). ( Id. at 90, 101, 103-04.) Mr. Benallie testified that he had not altered or modified the contents of the flash drive in any way. ( Id. at 101-02.)

Based on Mr. Benallie's statements as to the flash drive's illicit contents, Officer Vick transferred the flash drive to Detective (“Det.”) Todd Bailey, a computer forensic detective for TPD, who previewed the contents of the flash drive and verified that there

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was indeed child pornography on it. ( Id. at 183; Doc. 25-10, Ex. SSSS, at 114-15, 120- 21.) Thereafter, Det. Burke Mattlin, a detective in TPD's Internet Crimes Against Children division, was assigned to the case and obtained a search warrant for the flash drive. (Doc. 25-8, Ex. IIII, at 198-200.) Det. Bailey then conducted a complete digital forensic exam of the flash drive and determined that Petitioner was its owner based on files on it that “seemed to be specific to [Petitioner].” ( Id. at 201.) These files consisted of three last will and testament documents prepared for Petitioner's late wife, Petitioner's father, and Petitioner himself; a “travel receipt or a confirmation for attendance of a legal conference called CLE by the Sea, ” which listed Petitioner as a participant and a phone number for him; and family photos that were determined to be of Petitioner based on a subsequent comparison to Petitioner's driver's license photo. ( Id. at 202-03, 205; Doc. 25-10, Ex. SSSS, at 122-25.) Additionally, “homemade” child pornography images on the flash drive depicted unique physical identifiers that ultimately led to the identification of Petitioner as the adult individual depicted in the images, including “a light veinous wrinkled hand, ” “a gold wedding band, ” and a “large silver wristwatch” with “the word ‘Pathfinder' embossed or engraved on it.” (Doc. 25-8, Ex. IIII, at 203-06; Doc. 25-10, Ex. SSSS, at 126.) In several of the benign family photos on the flash drive, Petitioner was depicted wearing the same silver watch and gold wedding band. (Doc. 25-10, Ex. SSSS, at 124-25.) Moreover, based on those family photos, it was believed that Petitioner's granddaughter, Jessica, was the child depicted in some of the illicit photos. (Doc. 25-8, Ex. IIII, at 233.)

Det. Mattlin obtained a search warrant for Petitioner's residence, including any vehicles there, and Petitioner's person. ( Id. at 209.) Det. Mattlin testified that an undercover TPD detective, Det. McCluskey, “was going to call [Petitioner], identify himself as Chris, and tell [Petitioner] that he found the thumb drive, that he knew what was on it, and that he wanted compensation.” ( Id. at 210-11.) Det. Mattlin was present for Det. McCluskey's calls to Petitioner and was monitoring both ends of the calls. ( Id. at 211.) Initially, Det.

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McCluskey was unable to reach Petitioner and reached a voicemail greeting “that started with, ‘Hello, this is David Curtis,' or something to that extent.” ( Id. at 211.) Eventually, Det. McCluskey made contact with Petitioner, who agreed to meet Det. McCluskey (posing as “Chris”) at Tempe Marketplace. ( Id. at 214.) Petitioner arrived at Tempe Marketplace and was arrested. ( Id. ) Upon his arrest, TPD discovered “a hammer, his wallet, his cell phone, and a digital camera in his pocket.” ( Id. ) The camera was determined to be a Canon Powershot SD-630. ( Id. ) Petitioner's hand, face, and genitals were photographed. ( Id. at 215-216.) Of particular evidentiary significance was that Petitioner was uncircumcised. ( Id. at 217.) (Doc. 25-13, Ex. KKKKK, at 234.)

TPD then executed the search warrant of Petitioner's home and vehicles. ( Id. ) From Petitioner's bedroom, TPD seized a Post-it note that said “Tempe Marketplace” with a phone number, “a man's gold ring, ” “a key to what appeared to be a safety-deposit box, ” and “a laptop bag containing a Fujitsu laptop and a Canon printer.” (Doc. 25-9, Ex. MMMM, at 196, 335-39; see Doc. 25-9, Ex. KKKK, at 11; Doc. 25-8, Ex. IIII, at 218.) From Petitioner's home office, TPD seized “a Privacy Expert software program, ” “an OfficeMax receipt for a thumb drive purchased on 6-6-09, ” a desktop computer, various CDs and floppy disks in a plastic tub, a Canon camera, a digital photo frame, and a power cord for a Compaq laptop computer. (Doc. 25-9, Ex. MMMM, at 197-98, 340-343; Doc. 25-10, Ex. RRRR, at 44.)

Petitioner's Honda Civic, which was parked at the home, was also searched. (Doc. 25-8, Ex. IIII, at 218.) From it, TPD seized two laptops (one Sony, one Compaq), two eMachine desktop computers, three flash drives (a Transcend, a Lexar, and a Skate), a floppy disk, and “a router or modem of some type.” (Doc. 25-9, Ex. MMMM, at 191, 194, 317-321, 326, 331-34.) TPD also seized an external hard drive that had been sitting on the passenger seat underneath some papers. (Doc. 25-8, Ex. IIII, at 222-23.) Det. Brian

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Breckow testified that “it looked like the computer-related items had been recently placed there as the other debris, or trash [that was also in the trunk] looked like it had been there for quite a while.” (Doc. 25-9, Ex. MMMM, at 318.) A third search warrant was obtained to search a Hyundai Santa Fe that Petitioner had driven to Tempe Marketplace prior to his arrest. (Doc. 25-8, Ex. IIII, at 218-19.) From it, TPD seized a silver wristwatch with the word “Pathfinder” on it that had been sitting in a cup holder with a broken band. ( Id. at 220.) The interior of the Hyundai resembled the interior of the vehicle depicted in some of the photographs on the flash drive from Tempe Marketplace. ( Id. at 222.)

Det. Bailey performed forensic examination on certain seized devices on which the charged images were ultimately found, including: (1) the flash drive found by Mr. Benallie at Tempe Marketplace (“Benallie Flash Drive” or “BFD”), (2) one of the two eMachine desktop computers found in the trunk of the Honda (“Honda eMachine”), (3) the external (portable) hard drive found in the passenger seat of the Honda (“PHD”), (4) CDs from a CD spindle found in the trunk of the Honda (“Honda CD”), (5) a CD found in the Fujitsu computer found in Petitioner's bedroom (“Fujitsu CD”), and (6) floppy disks found in Petitioner's home office (“Office Floppy”). (Doc. 25-10, Ex. SSSS, at 146.)

Det. John Guzman, a computer forensic examiner with the Phoenix Police Department (“PPD”), testified that all charged images depicted real children. (Doc. 25-9, Ex. MMMM, at 266, 283.) Five of the charged images contained metadata linking them to a particular model of a Canon camera, which, according to Det. Guzman, indicated that they all “originated from the same or similar camera.” ( Id. at 284.)

Dr. Kathryn Coffman, a pediatrician, testified that the images each depicted a child that appeared to be less than 13 years old, and in some, a child less than two years old. (Doc. 25-9, Ex. MMMM, at 221-29.) In addition to the charged images, a number of uncharged, similarly exploitative images were admitted into evidence under Ariz. R. Evid. 404(c). ( See Doc. 25-10, Ex. TTTT, at 221-48.)

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Counts 1-10 charged possession of child pornography found on Petitioner's computer media. Counts 11-20 charged images and conduct related to Petitioner and his granddaughter, Jessica. The images underlying the exploitation charges of Counts 12, 14, 16, 18, and 20 provided the basis for the molestation charges of Counts 11, 13, 15, 17, and 19, respectively. The charts below summarize the evidence and testimony regarding the charged images. (Doc. 25-1, Ex. B, 26-32; Doc. 25-10, Ex. TTTT, at 202-18; Doc. 25-10, Ex. VVVV, at 265-78; Doc. 25-9, Ex. MMMM, at 223-29; Doc. 25-12, Ex. HHHHH, at 190-95.)

IMAGES OF COUNTS 1-10 (EXPLOITATION)
Count/Image	Locations	Subject Matter
Count 1 (CX.24.jpg)	BFD (charged), PHD, Honda CD	infant held by an adult with an adult penis at infant's face
Count 2 (CX3.jpg)	BFD (charged), PHD, Honda CD	female child (< 10 y.o.) with a penis in her vagina
Count 3 (11cpxx.jpg)	Honda eMachine (charged), BFD, PHD	female child (< 10 y.o.) performing fellatio on adult with her legs spread
Count 4 (21000000.jpg)	Honda eMachine (charged), BFD, PHD, Honda CD	female child (< 10 y.o.) with no pubic hair or breast development, “straddling” edge of a crib
Count 5 (LP13.jpg)	Office Floppy (charged), PHD	female child (< 10 y.o.) with no pubic hair or breast development, sitting on a ball
Count 6 (kg21-07.jpg)	Office Floppy (charged), BFD	female child (< 10 y.o.) laying down with her legs spread naked
Count 7 (chx11.jpg)	Fujitsu CD (charged), PHD, Honda CD	female child (< 13 y.o.) sitting on top of a man with his penis in her vagina
Count 8 (see_13.jpg)	Fujitsu CD (charged), BFD, PHD, Honda CD	female toddler with her mouth on an exposed penis
Count 9 (4tn.jpg)	Honda CD (charged), BFD	female child (< 5 y.o.) laying with a bottle in her hand and an adult hand spreading her labia
Count 10 (extro02.jpg)	Honda CD (charged), BFD, Office Floppy	two female children (< 10 y.o.) exposing their genital area with their legs spread

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IMAGES OF COUNTS 11-20 (EXPLOITATION/MOLESTATION)
Count/Image	Location(s)	Subject Matter	Date Taken
Count 12 ($RVH3LQG.jpg) (basis of Count 11)	PHD charged)	Jessica sitting on a child's (potty and spreading her labia	4/22/2008, 12:12:48 PM (based on data from the PHD)
Count 14 (cherre 196.jpg) (basis of dismissed Count 13)	Honda CD (charged)	Jessica lying on a blanket, wearing a pink shirt, spreading her legs with her genital area exposed	4/12/2007, 8:30 PM, with a Canon PowerShot SD-630 (based on EXIF data)
Count 16 (cheare 238.jpg) (basis of Count 15)	Honda CD, PHD	Jessica holding Petitioner's penis	5/5/2007, 9:04 AM, with a Canon PowerShot SD-630 (based on EXIF data)
Count 18 (RVZBWEK.jpg) (basis of Count 17)	PHD	Jessica with Petitioner's hand spreading her labia	4/22/2008, 12:43:46 PM (based on data from the PHD)
Count 20 (R61NO.jpg) (basis of Count 19)	PHD	Jessica with Petitioner's penis at her vaginal area	4/22/2008, 11:59:24 AM (based on data from the PHD)

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Jessica's mother, Carolina Curtis, testified that Petitioner was alone with Jessica on maybe three or four occasions, but two that she could recall clearly. (Doc. 25-10, Ex. TTTT, at 168.) The first was when she left Jessica alone with Petitioner for about three hours in April of “2007 or 2008” while she went to run errands the day before she left to visit her family in Chile. ( Id. at 168-70.) Jessica's father, Jason Curtis, testified that Carolina went to Chile around April 23, 2008. (Doc. 25-13, Ex. KKKKK, at 111.) The second was when she left Jessica alone with Petitioner while she took an exam for her cosmetology license around the same timeframe. (Doc. 25-10, Ex. TTTT, at 170.)

Petitioner testified and admitted that he photographed and possessed nude photos of himself and Jessica. (Doc. 25-12, Ex. HHHHH, at 190.) Petitioner testified that the image of Count 12 was a “picture of [Jessica] on her potty chair” that he intended to use as a visual aid to help potty-train her. ( Id. at 190-91.) He explained, “I thought if I could just catch a picture of her peeing, I could use that to communicate what she was supposed to be doing then. So I tried several attempts at it.” ( Id. at 191.) Petitioner testified that the image of Count 14 was a picture of Jessica “in a position to be changed” that he took

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because Jessica “was having severe diaper rash . . . just above the vagina.” ( Id. at 192.) Petitioner testified that the image of Count 16 was “a photograph of [Jessica] holding a man's penis” (his, to be specific). ( Id. at 194.) He explained, “[She] would not let me go to the bathroom and close the door.... So I thought if she saw what I was doing, that that would solve the problem. And, in fact, after letting her see and touch me, it did.” ( Id.) He denied that this was done for his sexual stimulation, stating, “I don't have an erection, as you can easily see in the picture. It wasn't to stimulate me.” ( Id.) Additionally, he testified, “She grabbed my penis a couple of times, but I didn't think that there was anything wrong with a one-year-old doing that.” (Doc. 25-13, Ex. KKKKK, at 7; see also Id. at 89-91.) Petitioner testified that the image of Count 18 was a picture of “a child lying on her stomach, and it appears that a man is spreading her vaginal/anal area.” (Doc. 25-12, Ex. HHHHH, at 194.) He further testified, “I don't believe that it's me. I don't believe it's her [Jessica].” ( Id. at 195.) However, he noted that in the photo “you can see an area of rash, ” “a reddish area or a darkish area around the area that's open.” ( Id. at 194.) Petitioner did not testify as to the contents of the image of Count 20, but testified that he was “sure” he did not take it and was “sure” it was not him or Jessica. ( Id. at 195.) Petitioner denied that he had any sexual intent in possessing or taking such photos.

On December 16, 2010, the jury returned a guilty verdict on all counts. (Doc. 25-14, Ex. SSSSS, at 37-55; Doc. 25-18, Ex. JJJJJJ, at 2-11.)

B. Direct Appeal.

On September 4, 2012, Petitioner appealed to the Arizona Court of Appeals and raised the following five issues for review:

(1) the indictment was ambiguous and duplicitous;

(2) the trial court wrongfully denied/did not enforce motions to suppress;

(3) the trial court wrongfully denied him access to computer data and client files that he intended to use for his defense;

(4) the trial court erred when it denied his motion to dismiss on the grounds that the child pornography statute he was convicted under - Ariz. Rev. Stat. (“A.R.S.”) § 13-

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3553 - is unconstitutionally overbroad as applied to an attorney in lawful possession of client documents and evidence and when it instructed the jury about said statute and defenses thereto; and

(5) the trial court wrongfully admitted character evidence.

(Doc. 25-19, Ex. MMMMMM, at 2-79; see also Doc. 25-20, Ex. TTTTTT, at 49-56 [supplement to opening brief].) In an April 1, 2014 memorandum decision, the court of appeals found no reversible error and affirmed the convictions. (Doc. 26-3, Ex. XXXXXX, at 2-22.) On August 29, 2014, Petitioner filed a petition for review in the Arizona Supreme Court (doc. 26-3, Ex. YYYYYY, at 28-108), which was denied on March 27, 2015 (doc. 26-6, Ex. AAAAAAA, at 2). On April 22, 2015, the Arizona Court of Appeals issued its mandate. ( Id. )

C. Post-Conviction Relief (“PCR”) Proceedings.

On April 25, 2016, Petitioner filed a Second Amended PCR Petition in the Maricopa County Superior Court and raised the following three grounds for relief:

(1) the trial court wrongfully denied him the right to state disclosures based on his pro se status in violation of his due process rights and right to effectively represent himself;

(2) several instances of prosecutorial misconduct involving “manipulation of evidence, ” including Wells Fargo bank records and various photographs; and

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(3) the PCR court denied him due process and violated his constitutional right to seek habeas relief when it ordered him to replace his timely-filed state habeas petition with a Rule 32 PCR petition pursuant to Ariz. R. Crim. P. 32. (Doc. 26-8, Ex. WWWWWWW, at 9-32.)

On July 13, 2016, the PCR court denied the Second Amended PCR petition. (Doc. 26-12, Ex. BBBBBBBB, at 26-27.) It determined that the first two grounds were precluded as untimely under Ariz. R. Crim. P. 32.2(a)(3) for Petitioner's failure to raise them either at trial or on direct appeal. ( Id. at 26.) It determined that the third ground was without merit because under Arizona law, a petition for an Arizona writ of habeas corpus “may be used only to review matters affecting the jurisdiction of the court” and “may not raise mistakes or errors that occurred in the trial proceedings.” ( Id. ) As such, the PCR court found no error in treating Petitioner's state habeas petition as a Rule 32 PCR petition where the petition did not challenge the court's jurisdiction. ( Id. at 27.)

On December 6, 2016, Petitioner filed a petition for review of the PCR court's decision in the Arizona Court of Appeals, raising the issues raised in his PCR petition and arguing that the PCR court abused its discretion in denying the PCR petition. (Doc. 26-12, Ex. DDDDDDDD, at 32-52.) On April 19, 2018, the Arizona Court of Appeals granted review but denied relief, holding that Petitioner had not established an abuse of discretion by the PCR court. (Doc. 26-12, Ex. EEEEEEEE, at 54-55.) Petitioner did not appeal the decision of the Arizona Court of Appeals to the Arizona Supreme Court. On June 4, 2018, the mandate issued. (Doc. 26-12, Ex. CCCCCCCC, at 30.)

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III. Petition for Writ of Habeas Corpus.

On June 3, 2019, Petitioner mailed the present habeas petition to this Court pursuant to 28 U.S.C. § 2254. (Doc. 1, “Petition”; Doc. 12 [supplement].) Therein, Petitioner raised the following fourteen grounds for relief, as previously summarized by the Court in its October 15, 2019 Service Order:

In Ground One , Petitioner alleges that his statutes of conviction are unconstitutional. In Ground Two , he alleges the indictment was duplicative and failed to set forth the acts alleged to have violated the state statutes. In Ground Three , he alleges violation of his Sixth Amendment rights. In Ground Four , he alleges that exclusion of his computer expert at trial violated his Sixth and Fourteenth Amendment right to represent himself and to due process. In Ground Five , Petitioner alleges violations of his First, Sixth, and Fourteenth Amendment rights. In Ground Six , he appears to allege the State failed to offer separate admissible evidence to support each of the molestation charges. In Ground Seven , he alleges that the trial court issued jury instructions that required Petitioner to prove that he was in possession of images in an active case of one of his clients in violation of the First Amendment. In Ground Eight , he alleges that he had to testify in order to present an affirmative defense under the state statute, since repealed, in violation of his Eighth Amendment rights. In Ground Nine , Petitioner alleges prosecutorial misconduct. In Ground Ten , Petitioner alleges “false reporting” by a Tempe detective on the search warrant. In Ground Eleven , Plaintiff appears to allege that bank records were illicitly obtained or disclosed to police. In Ground Twelve , Petitioner alleges insufficient evidence to sustain his convictions. In Ground Thirteen , Petitioner seeks relief concerning jury instructions given regarding his affirmative defense. In Ground Fourteen , he challenges the denial of his suppression motions.

(Doc. 13 at 2-3 (boldface added)); see also Doc. 21.)

On February 25, 2020, Respondents answered the Petition and argued that it should be dismissed because the claims therein are noncognizable, procedurally defaulted, and/or without merit. (Doc. 25; see Docs. 25, 26 (exhibits).) On November 18, 2020, Petitioner replied. (Doc. 40.)

IV. Legal Standards.

A. Cognizability.

“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a); Engle v. Isaac, 456 U.S. 107, 119 (1982) (“A state prisoner is entitled to relief under 28 U.S.C. § 2254 only if he is held

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‘in custody in violation of the Constitution or laws or treaties of the United States.'”). As such, a state prisoner may not obtain habeas relief for errors of state law. Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times that federal habeas corpus relief does not lie for errors of state law.”) (quotation marks and citations omitted); Little v. Crawford, 449 F.3d 1075, 1083 (9th Cir. 2006) (“A violation of state law standing alone is not cognizable in federal court on habeas.”) (quotation marks and citations omitted); Middleton v. Cupp, 768 F.2d 1083, 1985 (9th Cir. 1985) (“A writ of habeas corpus is available under 28 U.S.C. § 2254(a) only on the basis of some transgression of federal law binding on the state courts. It is unavailable for alleged error in the interpretation or application of state law.”) (citation omitted).

B. Exhaustion.

“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing 28 U.S.C. § 2254(b)(1); quotations and other citations omitted). “To provide the State with the necessary opportunity, the prisoner must fairly present his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim.” Id. (quotations and citations omitted). “In order to fairly present a claim, the petitioner must clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011); see Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.”); Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004) (“[U]nless the petitioner clearly alerts the court that he is alleging a specific federal constitutional violation, the petitioner has not fairly presented the claim.”).

“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Claims

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of Arizona prisoners who are not sentenced to death or life in prison “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (citing Moreno v. Gonzalez, 962 P.2d 205, 207-08 (Ariz. 1998) (en banc)). Claims raised for the first time in a special action proceeding or in a petition for review by the Arizona Supreme Court are not fairly presented and are therefore unexhausted. See Castille v. Peoples, 489 U.S. 346, 351 (1989) (rejecting the argument “that the submission of a new claim to a State's highest court on discretionary review constitutes a fair presentation”); Roettgen, 33 F.3d at 38 (“Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation.”) (citing Castille, 489 U.S. at 351). In order for a claim to be ruled on by the Arizona Court of Appeals - and therefore exhausted for purposes of habeas review - a petitioner must have raised the claim in an opening brief; arguments raised thereafter, e.g., in a reply brief, are waived and therefore unexhausted. See State v. Kiles, 213 P.3d 174, 181 n.8 (Ariz. 2009) (en banc) (“In his reply brief, Kiles attempted to add new arguments relating to prosecutorial misconduct. These arguments, however, are waived, because ‘opening briefs must present significant arguments, supported by authority, setting forth an appellant's position on the issues raised.'”) (citation omitted); State v. Brown, 310 P.3d 29, 39 (Ariz.Ct.App. 2013) (“Arguments raised for the first time in a reply brief, however, are waived.”); Callan v. Ryan, No. CV-17-08077-PCT-DGC (JFM), 2018 WL 3543918, at *15 (D. Ariz. May 17, 2018) (holding that claim raised for the first time in reply brief before the Arizona Court of Appeals “was not fair presentation, ” noting that “Arizona follows the prevailing practice that claims not raised in an opening brief are waived, and cannot be raised for the first time in a reply brief) (citations omitted), adopted by 2018 WL 3536729 (D. Ariz. July 23, 2018).

Nevertheless, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2); see Medley v. Ryan, No. CV-12-762-PHX-

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GMS (BSB), 2012 WL 6814246, at *5 (D. Ariz. Dec. 10, 2012) (denying habeas petitioner's “plainly meritless” claim on the merits notwithstanding that it was procedurally barred), adopted by 2013 WL 105269 (D. Ariz. Jan. 9, 2013).

C. Procedural Default.

“In addition to the exhaustion requirement, a federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.” Cooper , 641 F.3d at 327. Specifically, a federal court may not review a claim “that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan , 566 U.S. 1, 9 (2012). “A state court's invocation of a procedural rule to deny a prisoner's claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed.” Id. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan , 752 F.3d 768, 780 (9th Cir. 2014) (citing Stewart v. Smith , 536 U.S. 856, 859-60 (2002)); see Ariz. R. Crim. P. 32.2(a). A state court addressing the merits of a claim in the alternative while applying a procedural bar does not vitiate the procedural bar ruling. Comer v. Schriro , 480 F.3d 960, 964 n.6 (9th Cir. 2007). A state procedural bar need not be expressly invoked and applied by a state court in order for a claim to be procedurally defaulted on habeas review; “[a]n implied procedural bar” may exist “when a petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.” Robinson v. Schriro , 595 F.3d 1086, 1100 (9th Cir. 2010); see Beaty v. Stewart , 303 F.3d 975, 987 (9th Cir. 2002) (“If [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court.”) (citing Ariz. R. Crim. P. 32.2(a)). Nevertheless, a prisoner can obtain federal review of a procedurally

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defaulted claim if he “can demonstrate either cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

D. Entitlement to Relief.

When the Court reaches the merits of a claim that is cognizable, exhausted, and not procedurally defaulted, it may not grant a habeas petition with respect to that claim unless the state court's adjudication of it (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2554(d); see White v. Woodall, 572 U.S. 415, 419-20 (2014); Andrews v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019). The Supreme Court recently reaffirmed the appropriate standard of review:

The term “unreasonable” refers not to “ordinary error” or even to circumstances where the petitioner offers “a strong case for relief, ” but rather to “‘extreme malfunctions in the state criminal justice syste[m].'” In other words, a federal court may intrude on a State's “‘sovereign power to punish offenders'” only when a decision “was so lacking in justification . . . beyond any possibility for fairminded disagreement.”

Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)) (alterations added by Mays); see White, 572 U.S. at 419 (stating that an unreasonable application of law must be “objectively unreasonable, not merely wrong, ” and “even ‘clear error' will not suffice”) (quotation marks and citations omitted). “Unreasonable determinations of material facts can occur where the state court plainly misapprehends or misstates the record in making its findings or where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim.” Andrews, 944 F.3d at 1107 (quotation marks, alterations, and citations omitted). “[A] determination of a factual issue made by a State court shall be presumed to be correct” unless the petitioner rebuts the presumption through “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “When at least one state court has rendered a reasoned decision, but the last state court to

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reject a prisoner's claim issues an order ‘whose text or accompanying opinion does not disclose the reason for the judgment,' [the Court] ‘look[s] through' the mute decision and presume[s] the higher court agreed with and adopted the reasons given by the lower court.” Curiel v. Miller , 830 F.3d 864, 870 (9th Cir. 2016) (quoting Yist v. Nunnemaker , 501 U.S. 797, 802-06 (1991)).

V. Analysis.

As explained below, Petitioner is not entitled to habeas relief on any ground asserted in his Petition.

A. Ground One.

In Ground One, Petitioner argues that the Arizona child molestation and child pornography statutes he was convicted under are unconstitutional on their face and/or in their application by the trial court in crafting the final jury instructions. (Doc. 1 at 6-17; see also Doc. 12 at 46-52; Doc. 12-1 at 1-7.)

1. Child Molestation Statutes: A.R.S. §§ 13-1410(A), 13-1407(E).

In “Part A” of Ground One, Petitioner argues that the child molestation statutes, A.R.S. §§ 13-1410(A) and former 13-1407(E), are unconstitutional as violative of due process and May v. Ryan , 245 F.Supp.3d 1145 (D. Ariz. 2017), reversed by May v. Shinn , 954 F.3d 1194 (9th Cir. 2020); May v. Ryan , 807 Fed. App'x. 632 (9th Cir. 2020) (unpublished memorandum decision). (Doc. 1 at 6-10.) He argues, inter alia , that A.R.S. § 13-1410(A) “criminalizes normal and necessary physical contact even without any evidence of an intent to receive sexual or other deviant gratification from such contact, and then requires that the defendant prove that the contact was innocent.” ( Id. at 6.)

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The claims asserted in Part A are unexhausted and consequently barred from this Court's review because Petitioner did not present them to the Arizona Court of Appeals, either on direct appeal or in his petition for review of the denial of his PCR petition. See Swoopes , 196 F.3d at 1010; Roettgen , 33 F.3d at 38. ( See Doc. 25-19, Ex. MMMMMM, at 2-79 (opening brief, direct appeal); Doc. 25-20, Ex. TTTTTT, at 49-56 (supplement to opening brief, direct appeal); Doc. 26-12, Ex. DDDDDDDD, at 32-52 (PCR petition for review).) Moreover, Ground One is procedurally defaulted because Ariz. R. Crim. P. 32.2(a) precludes a subsequent litigation of it in state court. See Beaty , 303 F.3d at 987. The procedural default of Ground One is not excused as Petitioner fails to show cause for the default as he does not assert any adequate reason for why he was unable to timely raise this claim at trial, particularly where he, a retired attorney, served as his own counsel.

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Accordingly, Petitioner is not entitled to relief on his claims asserted in Part A of Ground One.

2. Child Pornography Statutes: A.R.S. §§ 13-3551, 13-3553.

In “Part B” of Ground One, Petitioner presents three arguments: (a) the child pornography statute, A.R.S. § 13-3553(A)(2), was unconstitutional as applied in violation of the First Amendment (doc. 1 at 11); (b) the trial court impermissibly eliminated his proposed “sexual stimulation” element from the jury instructions in violation of the Sixth Amendment ( id. ); and (c) the trial court impermissibly denied him certain defenses arising under Arizona statutes ( id .). All of Petitioner's arguments fail.

a. First Amendment Claim.

Petitioner first argues that the child pornography statute, A.R.S. § 13-3553(A)(2), was unconstitutional as applied in violation of the First Amendment. (Doc. 1 at 11.) Specifically, Petitioner states that he “was not allowed to build his defense that as an attorney in possession of client evidence, the images possessed from all sources except the PHD and BFD. . . . were not images possessed for the purpose of the sexual stimulation of any viewer.” ( Id. ) Petitioner contends this “is a matter of U.S. Constitutional law” because “communications between counsel and client are protected by the First Amendment.” ( Id. ) Petitioner's First Amendment argument was fairly presented to the Arizona Court of Appeals on direct appeal and is cognizable; the Court therefore considers its merits. ( See Doc. 25-19, Ex. MMMMMM, at 60-65.)

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On direct appeal, Petitioner argued that the trial court erred by denying his motion to dismiss in which he argued that A.R.S. § 13-3553(A)(2) was “[un]constitutionally overbroad as applied to an attorney in lawful possession of client documents and evidence.” (Doc. 25-19, Ex. MMMMMM, at 60; see Doc. 25-6, Ex. PPP, at 182-87 [Petitioner's motion to dismiss].) The Arizona Court of Appeals rejected this argument, noting that “[c]hild pornography is not protected by the First Amendment” and that “Arizona's statutory scheme ensures that a person may be convicted only for knowing possession of child pornography.” (Doc. 26-3, Ex. XXXXXX, at 18 (citing New York v. Ferber , 458 U.S. 747, 764 (1982) ).) As such, the Arizona Court of Appeals held that A.R.S. § 13-3553(A)(2) was not unconstitutionally overbroad because it did not include within its scope speech protected by the First Amendment. ( Id. )

Petitioner also argued on appeal that “[a]s defense counsel, [he] had a right to possession of evidence relevant to his representation of his clients” and that this right extended beyond the conclusion of a case or when consultation was complete-contrary to the trial court's allegedly erroneous jury instruction that “[t]he lawful possession ends when the case ends or the advice has been rendered” (doc. 25-13, Ex. OOOOO, at 158).

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(Doc. 25-19, Ex. MMMMMM, at 61.) The Arizona Court of Appeals rejected this argument as well, holding that the trial court “did not err in instructing the jury that an attorney could assert an affirmative defense only insofar as he possessed child pornography for the active defense of a client, or to advise a client.” (Doc. 26-3, Ex. XXXXXX, at 17.)

Further, the appellate court held that Petitioner “offered no authority supporting a [broader] defense that would allow him to retain child pornography obtained in connection with legal representation years after that representation ended” and “failed to present evidence at trial to support a defense that it was necessary for him to retain possession of the charged images in representing any client.” ( Id. ) In fact, the appellate court noted that Petitioner “testified that he had no cases involving child pornography after 2005, he did not recognize any of the images charged in Counts 1 through 10 (the only counts for which he claimed this defense)[, ] and he had destroyed any cross-reference between client names and evidence on his computers after he retired from the practice of law in 2006.” ( Id. at 19-20.) The appellate court therefore concluded that “[u]nder these circumstances, the record fails to support [Petitioner's] claim that he possessed the charged images based on the possibility that they would be needed to defend a client's conduct, meaning his claim that the statute is overbroad as applied fails.” ( Id. at 20.)

The Arizona Court of Appeals' rejection of Petitioner's First Amendment claim was neither an unreasonable application of or contrary to clearly established federal law nor an unreasonable application of the facts before it. First, Petitioner points to no Supreme Court decision holding that the First Amendment entitles a criminal defense attorney to knowingly retain child pornography indefinitely for the purposes of counseling a client. See Stenson v. Lambert , 504 F.3d 873, 881 (9th Cir. 2007) (“Where the Supreme Court has not addressed an issue in its holding, a state court adjudication of the issue not addressed by the Supreme Court cannot be contrary to, or an unreasonable application of, clearly established federal law.”). Petitioner cited to Ferber in his Memorandum regarding Ground Four (doc. 12-1 at 31), but Ferber does not address a lawyer's right to possess child pornography.

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The Arizona Court of Appeals reasonably concluded that child pornography is not protected by the First Amendment and that A.R.S. § 13-3553(A)(2)-whose scope did not extend beyond child pornography (unprotected speech) into any realm of protected speech- was therefore not unconstitutionally overbroad. See United States v. Stevens , 559 U.S. 460, 471 (2010) (noting that “child pornography” is one category of speech that is “fully outside the protection of the First Amendment”); Ashcroft v. Free Speech Coalition , 535 U.S. 234, 245-46 (2002) (“The freedom of speech has its limits; it does not embrace certain categories of speech, including . . . pornography produced with real children.”); Ferber , 458 U.S. at 764. Moreover, the Arizona Court of Appeals properly held that Petitioner had not demonstrated entitlement (by presentment of evidence and legal authority) to a defense allowing him to possess the contraband images beyond what the trial court had instructed- namely, during the course of a legal representation or consultation and until the conclusion of either-which did not infringe on any legitimate First Amendment protections. Thus, the Arizona Court of Appeals reasonably concluded that Petitioner had not suffered any violation of his First Amendment rights by being prosecuted for possessing child pornography under A.R.S. § 13-3553(A)(2) where he failed to demonstrate that such possession was within the scope of his duty of any legal representation.

b. Sixth Amendment Claim.

Petitioner next argues that the trial court impermissibly eliminated a necessary element for conviction under A.R.S. 13-3553(A)(2) from the jury instructions in violation of the Sixth Amendment. (Doc. 1 at 11.) Specifically, Petitioner argues that “the Sixth Amendment requires that every element of the charged crime be proven beyond a reasonable doubt[, ]” thus, to convict Petitioner under A.R.S. § 13-3553(A)(2), the prosecution had to show that the contraband images were possessed for the purpose of the sexual stimulation of the viewer. ( Id. ) However, the trial court did not include that “sexual stimulation” in the jury instructions, thereby violating Petitioner's Sixth Amendment right to have a jury find every element of a charged offense proven beyond a reasonable doubt. ( Id. )

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Petitioner's claim is unexhausted. On direct appeal, Petitioner argued in his opening brief that “[a]t the very least, the State needed to prove beyond a reasonable doubt that [he] possessed such images for the purpose of the sexual stimulation of the viewer” (Doc. 25-19, Ex. MMMMMM, at 64), but he did not present this argument as a Sixth Amendment claim, or any other federal claim, and did not cite any federal law in support of it. ( See id. ) Instead, Petitioner presented this claim as a violation of certain Arizona statutes that he argued supported his position that “for the purpose of the sexual stimulation of the viewer” was a necessary element to be proven for conviction under A.R.S. § 13-3553(A)(2) and that the trial court's jury instructions impermissibly deviated from those statutes by failing to include the “sexual stimulation” element. ( See Id. (“The Trial Court ignored the plain language of A.R.S. § 13-3551 (4) and (9) which requires that such images . . . be possessed ‘for the purpose of the sexual stimulation of the viewer.'”).) Because Petitioner did not raise this argument as a federal claim in the state courts, his Sixth Amendment Claim is unexhausted.

Petitioner's Sixth Amendment claim is also noncognizable because it asks the Court to review a state court ruling on a question of state law - specifically, the interpretation of what elements are required for conviction under A.R.S. § 13-3553(A)(2). The Arizona Court of Appeals rejected Petitioner's element-based arguments, holding that the “for the purpose of sexual stimulation of the viewer” language in A.R.S. §§ 13-3551(4) and 13-3551(9) is intended to “limit the types of images that a defendant must not knowingly possess” under A.R.S. § 13-3553(A)(2) and “do[es] not add an additional element to [A.R.S. § 13-3553(A)(2)].” (Doc. 26-3, Ex. XXXXXX, at 16.) The Arizona Court of Appeals' interpretation of Arizona statutes is not reviewable. See Melugin v. Hames , 38 F.3d 1478, 1482 (9th Cir. 1994) (“[W]e accept a state court ruling on questions of state law.”); see also Langford v. Day , 110 F.3d 1380, 1389 (9th Cir. 1996) (holding that a habeas petitioner may not “transform a state-law issue into a federal one merely by asserting a violation of due process”).

Accordingly, Petitioner is not entitled to habeas relief on his Sixth Amendment

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claim, even if he had fairly presented it as a Sixth Amendment claim to the Arizona Court of Appeals.

c. Arizona Statutory Defenses.

Petitioner's final argument in Part B is that the trial court impermissibly denied him certain defenses arising under Arizona statutes. (Doc. 1 at 11-17.) Specifically, Petitioner states that “limited [Petitioner's] announced and formally noticed defense of ‘lawful attorney possession' of the images for any he may have possessed[, ]” and “that his possession of such images as client evidence . . . was never possessed ‘for the purpose of the sexual stimulation of the viewer[.]” ( Id. at 16-17.)

Petitioner's claim that he was denied certain statutory defenses under Arizona law presents a noncognizable issue of state law. See Swarthout , 562 U.S. at 219 (“We have stated many times that federal habeas corpus relief does not lie for errors of state law.”). Accordingly, Petitioner is not entitled to habeas relief on Ground One.

B. Ground Two.

In Ground Two, Petitioner argues that the State “obtained an indictment with five counts of molestation without ever identifying a single act of molestation for each count. . . .” (Doc. 1 at 18.) Petitioner asserts that the police detective failed to show the grand jury the actual photographs for each count, and that the detective misrepresented the evidence to the grand jury. ( Id. ) Petitioner argues the “proceedings were fundamentally unfair” and a “clear due process violation.” ( Id. ) Petitioner submits 12 pages of factual allegations that fraud was perpetrated upon the grand jury. ( Id. at 19-31.) Petitioner alleges that the “court unconstitutionally sealed [Petitioner's] grand jury motions and never notified [Petitioner] making him believe his motions had not been filed and they were abandoned.” ( Id. ; see also Doc. 12-1 at 8-24 (Memorandum).)

Petitioner's challenges to the indictment and the indictment proceedings are not cognizable because there is “no due process right to a grand jury indictment before criminal prosecution in state court.” Peterson v. California , 604 F.3d 1166, 1170 (9th Cir. 2010)

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(citing Hurtado v. California, 110 U.S. 516, 534-35 (1884)). Although the Due Process Clause guarantees defendants a fair trial, “it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury.” Alexander v. Louisiana, 405 U.S. 625, 633 (1972). Accord Gautt v. Lewis, 489 F.3d 993, 1003 n.10 (9th Cir. 2007) (The “Fifth Amendment right to presentment or indictment by a grand jury . . . has not been incorporated into the Fourteenth Amendment so as to apply against the states.”); Stumpf v. Alaska, 78 Fed. App'x. 19, 21 (9th Cir. 2003) (“First, the introduction of grand jury testimony that was later determined to be perjury did not violate Stumpf s right to due process. Because the right to a grand jury has not been applied to the states via the Fourteenth Amendment, Stumpf s Fifth Amendment challenge to the grand jury proceedings does not raise a question of federal law and is not cognizable on habeas review.” (citation omitted)). See also Lackey v. Noble, 2018 WL 3587014, at *2 (6th Cir. 2018) (unpublished) (“Because Lackey does not have a federal constitutional right to a grand jury indictment in state court, his claim that the amendment to his conspiracy charge violated his rights under the Fifth Amendment is not cognizable on habeas review.”).

Petitioner also argues that the “sealing of the Curtis grand jury motions is an unconstitutional act because it defeats two of the fundamental tools of insuring a fair trial, the Sixth Amendment right to a public trial and the First Amendment right of press access to court proceedings. . . .” (Doc. 1 at 29.) Petitioner submits that the “consequence of hiding of the sealing of Curtis's grand jury motions . . . kept the trial court from hearing of the

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state's deliberate use of perjured testimony” to deceive the grand jury. ( Id. ) Petitioner's claims are unexhausted and procedurally defaulted because he did not raise these claims on direct appeal. ( See Doc. 25-19, Ex. MMMMMM, at 11-26.)

Accordingly, the Court finds that Petitioner is not entitled to habeas relief on Ground Two because Petitioner's discernable indictment challenge is not cognizable, and any other challenge to the indictment was not raised on appeal and is thus procedurally defaulted without excuse.

C. Ground Three.

In Ground Three, Petitioner argues that he was denied the right to effectively represent himself because the state and the court precluded him from reviewing the digital media and storage devices held by the state. (Doc. 1 at 32.) He asserts that he, his advisory counsel, and his expert were only permitted to inspect the digital evidence rather than maintain their own copies. ( Id. at 33.) He and his expert did not have the “opportunity to examine the forensic data from the mirror images” or to compare the digital records to prove he was fraudulently convicted. ( Id. at 38.) Petitioner asserts that he could have challenged the dates that the photographs were taken, cast doubt on the prosecution's timeline, and demonstrated that the prosecution misled the grand jury and the trial jury. ( Id. at 39.) He argues that it “was a violation of Curtis's Sixth Amendment right to self counsel to keep Curtis's expert consultant away from all of the primary evidence or of their mirror images.” ( Id. at 40.) In his Memorandum, Petitioner asserts that the state did not disclose all of the evidence in the state's possession. “The State has no evidence that it ever disclosed all of its data to Curtis.” (Doc. 12-1 at 25.) He argues that the “Arizona Court of Appeals, in PCR review, did not address the issue” that the denial of discovery made it “impossible” for Petitioner to function as “self-counsel.” ( Id. at 27.)

Petitioner's claim is unexhausted and procedurally defaulted because he did not raise this claim on direct appeal. Petitioner raised this claim in “Issue One” of his Second

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Amended petition for post-conviction relief, but the trial court found the claim was “precluded because Defendant failed to timely raise the issue[] either at trial or on his direct appeal.” (Doc. 26-12, Ex. BBBBBBBB, at 26.) Rule 32.2(a)(3) of the Arizona Rules of Criminal Procedure states that a “defendant is precluded from relief under Rule 32.1(a) based on any ground. . . waived at trial or on appeal. . . .” The Arizona Court of Appeals found no abuse of discretion in the trial court's ruling. (Doc. 26-12, Ex. EEEEEEEE, at 54.)

Petitioner admits that he did not raise this issue on appeal. ( See Doc. 1 at 32 (“. . . the Sixth Amendment [argument] was only presented in the PCR proceeding”). But Petitioner argues the issue was properly raised in PCR proceedings because he argued he was denied “the Sixth Amendment right to counsel, ” which is properly raised in PCR proceedings. ( Id. at 35.) The Arizona courts did not agree. Rule 32.2(a)(3) is a firmly established and regularly applied procedural bar in Arizona. Petitioner's challenge to the state court's interpretation of this rule is not reviewable. See Murray v. Schriro, 745 F.3d 984, 1016 (9th Cir. 2014) (noting that “the Supreme Court has recognized Arizona Rule of Criminal Procedure 32.2(a)(3) as an independent and adequate state ground that bars federal habeas review of constitutional claims”) (citation omitted); Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999) (“Federal habeas courts lack jurisdiction . . . to review state court applications of state procedural rules.”); Martinez v. Ryan, 926 F.3d 1215, 1224 (9th Cir. 2019) (“Instead, Martinez argues that Rule 32.2(a) was not adequate because the PCR court misinterpreted the scope of the rule. . . . We lack jurisdiction to address that contention.”). Petitioner's claim is procedurally defaulted because it was barred on state procedural grounds.

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Petitioner fails to argue or demonstrate cause and prejudice to excuse the procedural default of this claim. Petitioner extensively litigated his case in the lower courts. Petitioner specifically litigated the issue of disclosure and discovery throughout the trial. Petitioner does not deny that he had the requisite facts to raise this issue on direct appeal. Petitioner's claim is procedurally defaulted without excuse.

Accordingly, Petitioner is not entitled to habeas relief on Ground Three.

D. Ground Four.

In Ground Four, Petitioner argues that the State's failure to disclose evidence resulted in a Brady violation. (Doc. 1 at 42.) Petitioner argues he was denied the forensic and computer disclosure necessary to defend his case “in direct violation of Brady .” ( Id. at 45.) In particular, he asserts that he was denied access to his client files so he could establish the child-pornography images were possessed by an “attorney in lawful possession of client evidence.” ( Id. at 42.) He also alleges he was denied copies of the “state's trial exhibits, of the state's other act evidence, of the 120+ mirror images, of copies of all the state's evidence of molestation to be used to prove counts 11, 13, 15, 17, and 19.” ( Id. ) “The issue here presented is that the State, by systematic suppression of evidence, and the Court by refusal to enforce Arizona's criminal rules of procedure as they describe mandatory state disclosure, made it impossible for Curtis to perform even basic duties as defense counsel.” ( Id. at 44.) In his Memorandum, Petitioner also suggests that the computer evidence was altered by law enforcement. (Doc. 12-1 at 29-45.)

On direct appeal, Petitioner argued if “evidence favorable to the accused has not been disclosed by the prosecution and such omitted evidence creates a reasonable doubt that did not otherwise exist, the accused's constitutional right to due process has been violated.” (Doc. 25-19, Ex. MMMMMM, at 53-60.) Petitioner cited to Brady and Giglio v.

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United States, 405 U.S. 150 (1972). The Court will review Petitioner's Brady claim.

A meritorious Brady claim contains three essential components: (1) the evidence must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the government must have withheld the evidence, either intentionally or inadvertently; and (3) the evidence must be material to guilt or punishment, i.e., “prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Undisclosed evidence is material under Brady, and its non-disclosure is prejudicial, if a reasonable probability exists that, had the evidence been disclosed, the result of the proceeding would have been different. “A ‘reasonable probability' is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).

1. Evidence Favorable to the Accused.

Petitioner argues that he was denied discovery that could have helped him defense his case. (Doc. 1 at 42-45.) On direct appeal, Petitioner argued that he was:

stripped of any ability to prove his affirmative defense that some of the images for the first ten counts were client case files evidence, or that the 17, 000 images on the Benallie Flash Drive were not placed there by the Appellant, and could not have been placed there using Appellant's computers, or that the [Jessica] photographs had been altered (or at least five or six of them had) or that the flash drive's 17, 000 images were transferred to the portable hard drive, again by using some other computer, not Appellant's computer, or that the CD described as Item 16.1 was not in the Fujitsu laptop computer when Det. Bailey found it and pulled its battery, freezing the sleep mode data in the processor (which would have proven that fact) but was actually one of the stored CDs used for backing up computer hard drives, and placed by Det. Bailey or another in the bedroom to make it look like its data was being used for a different purpose.

(Doc. 25-19, Ex. MMMMMM, at 57.)

The Arizona Court of Appeals found that Petitioner failed to identify any evidence that the State failed to disclose, and has not explained how he could have proved his defenses that the charged images came from his former clients' files, were planted by others or were altered if he would have been provided greater access to the contents of the electronic media. Under these circumstances, [Petitioner] has abandoned and waived such claims.

State v. Curtis, 2014 WL 1319513, at *10 (Ariz.Ct.App. 2014).

The Arizona Court of Appeals' express procedural bar of the instant Brady claim

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renders it procedurally defaulted and consequently barred from this Court's review, and Petitioner does not show cause to excuse the default. See Martinez , 566 U.S. at 9.

Notwithstanding, Petitioner presents no actual evidence that favorable evidence was possessed by the prosecution. Petitioner presents no evidence that any image in Counts 1-10 was connected to a client file. Petitioner presents no evidence that Mr. Benallie and the police conspired to alter the evidence in the case. Petitioner presents no actual evidence that any photographic images or dates were changed. Of course, Petitioner does not have access to these drives and the child pornography contained within, but Petitioner has not met his burden to show there is favorable evidence connecting his client files to child pornography possessed in this case. Wood v. Bartholomew , 516 U.S. 1, 8 (1995) (per curiam) (granting a habeas corpus petition “on the basis of little more than speculation” is improper); Phillips v. Woodford , 267 F.3d 966, 987 (9th Cir. 2001) (rejecting Brady claim based on “mere suppositions” with “absolutely no evidence” that the allegedly withheld material, if it existed, “would have contained exculpatory evidence”).

2.Whether Evidence was Withheld by the Prosecution.

Petitioner argues that the prosecution withheld evidence by failing to permit access to the digital and photographic evidence in the case. (Doc. 1 at 42.) Petitioner raised this claim on direct appeal.

The Arizona Court of Appeals found:

The record instead reflects that the following month, Curtis' consulting expert was reviewing the hard drive containing the seized media. The court later adopted the prosecutor's proposal that Curtis and his expert not be provided copies of the seized media containing contraband, but be allowed to inspect the evidence under the supervision of a deputy sheriff subject to a gag order, which Curtis agreed was “a perfectly acceptable procedure.” The record reflects that Curtis and a successor expert then reviewed the seized media on several occasions before and during trial.

On this record, the State made the electronic media “reasonably available for inspection, ” as required under Rule 15.1(j). The record demonstrates that Curtis received all of the access that he sought before and during trial, as evidenced by the State's granting his inspection requests, by his failure to seek a continuance of the trial and his agreement to mid-trial review of seized media. In addition, Curtis failed to make the “substantial showing” required under Rule 15.1(j) that would have required him to be furnished copies of

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the contraband. In short, the record does not support Curtis' argument that he was denied reasonable access to the evidence, or wrongly denied copies of the seized material.

Curtis , 2014 WL 1319513, at *10.

Here, the record does not support Petitioner's claim that he was denied access to discovery by the state prior to the start of his trial on November 29, 2010. (Doc. 25-7, Ex. FFFF, at 91.) On July 9, 2010, the court held a hearing where Petitioner's advisory counsel asked the court to order discovery to Petitioner's computer expert. (Doc. 25-3, Ex. CC at 33.) The court directed that read-only files to be made available to Petitioner's expert as requested by Petitioner. ( Id . at 45-50.) On October 15, 2010, the court held a hearing regarding discovery and a motion to compel that Petitioner filed. Petitioner advised the court that some “of the items on the list of evidence we are seeking have been produced, and some of it has not been.” (Doc. 25-4, Ex. SS, at 5.) Petitioner argued that he must be permitted to review actual photographs in the case. ( Id .) Petitioner advised the court that it would be “perfectly acceptable” for him to review requested evidence with his advisory counsel in a room with a third-party present (to ensure unlawful evidence was not copied). ((Doc. 25-4, Ex. SS, at 10.) Petitioner did not argue that he had been denied access to discovery necessary to defend his case. On November 23, 2010, Petitioner advised the court that he and his expert (Ron Dworkin) went through evidence for an hour and a half. (Doc. 25-7, Ex. YYY, at 38-39.) Regarding his motion to compel evidence, Petitioner stated that the prosecutor “gave us most of what we had addressed in that motion.” ( Id .) He advised that he did not have “thumbnail versions of pictures . . . but everything else that I had ask for, [the prosecutor] provided us.” ( Id .)

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Petitioner's ultimate review of the evidence was certainly brief. Petitioner was allowed to review digital data for scheduled periods of time, and often while a third party was present. Petitioner's actual review of the digital evidence may have been as short as the three and one-half hours he alleged in his motion for new trial. (Doc. 25-14, Ex. WWWWW, at 81.) But the record shows Petitioner agreed with the Court's discovery procedures when he could have made earlier, and more clear requests for access to discovery. Although the record is not a model of clarity, Petitioner fails to establish that the ruling of the Arizona Court of Appeals was clearly unreasonable. 28 U.S.C. § 2254(d). Because the evidence of lack of prejudice is overwhelming, the Court will move to that discussion.

3. Lack of Prejudice.

Even if Petitioner could satisfy the first two prongs of a Brady violation, Petitioner fails to demonstrate prejudice. Petitioner cannot show there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.

Petitioner first argues that he was denied discovery essential to show that he was an “attorney in lawful possession of client evidence.” (Doc 1. at 42.) This argument pertains to the child pornography found in images charged in Counts 1-10. But Petitioner presented no evidence before and points to no evidence now that these images were possessed in connection with former client files. Instead, the pornographic images were found and copied in six separate locations. The Benallie Flash Drive contained images for Counts 1-4 and 6-10. The Portable Hard Drive contained images for Counts 1-5 and 7-8. The Honda eMachine contained images for Counts 3-4. The Honda CD contained images for Counts 1-4 and 7-10. The Office Floppy contained images for Counts 5-6 and 10. The Fujitsu CD contained images for Counts 7-8. Petitioner offers no explanation for how these images were found in these multiple locations except to suggest that perhaps the police, and even Mr. Benallie , all conspired against him. Petitioner offers no proof that Mr. Benallie (who

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saw child pornography images on the flash drive before he called Tempe Police) lied to police or fabricated evidence. Also, Petitioner was in possession of pornographic photos taken of his granddaughter, several of which he admitted he photographed and retained. Even if the images in Counts 1-10 originated from former client files, the evidence shows they had been converted to Petitioner's personal use on six separate digital media years after his client representation ended. The overwhelming volume of evidence that established Petitioner's guilt soundly undercuts his suggestion that there was non-disclosed evidence that would have materially assisted his defense to Counts 1-10.

Similarly, Petitioner provides no new proof to support his suggestion that Mr. Benallie or the police placed the child pornography in Counts 1-10 on his digital media, or maliciously altered the photographic evidence regarding his granddaughter in Counts 12, 14, 16, 18, and 20. (Doc. 12-1 at 43.) Petitioner presents nothing but speculation to suggest that Mr. Benallie placed child pornography on a flash drive before several police officers allegedly manufactured evidence, and all in a case where Defendant had taken explicit pictures of his granddaughter. In a discovery-intensive case, the Court would not be surprised to see anomalies or typographical errors in the evidence. But these inconsistencies do not establish that Mr. Benallie, Det. Mattlin, and other witnesses conspired to manufacture evidence against Petitioner. See Runningeagle v. Ryan , 686 F.3d 758, 769 (9th Cir. 2012) (“[T]o state a Brady claim, [petitioner] is required to do more than ‘merely speculate' about what Melendez told prosecutors.”).

Finally, Petitioner fails to demonstrate there is favorable undisclosed evidence related to Counts 11-12 and 14-20 that would undermine confidence in those verdicts. Petitioner admits that he babysat the victim five or six times in 2007. (Doc. 25-13, Ex. KKKKK, at 85.) Petitioner admits he photographed his granddaughter in the images for

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Counts 12, 14, and 16. (Doc. 25-12, Ex. HHHHH, at 190, 192, 194.) Petitioner admits that the photograph for Count 16 was Jessica holding his penis. He testified that “letting her see and touch” his penis would solve her curiosity problem. ( Id. at 194.) In his closing argument, Petitioner stated: “Even her holding my penis was only a part of her play, not a sexual act.” (Doc. 25-13, Ex. KKKKK, at 221.) The question before the jury was whether Petitioner had the sexual intent to commit the offenses charged, which Petitioner denied. (Doc. 25-13 at 103.) Therefore, Petitioner's suggestions that inconsistencies in the meta data or changes in the dates of photographs have no material bearing on the sole question of intent in Counts 11-12 and 14-16. Regarding Counts 16-20, Petitioner denied that he was the individual in the photographs and testified that the images were likely altered. Petitioner testified that “. . . there's picture 18 and picture 20, and I don't think that those are real pictures. Picture 20 definitely isn't. Picture 18 might - or even 12 might be misdated. . . .” (Doc. 15-12, Ex. KKKKK, at 8.) But Petitioner presents no evidence that the pictures were altered. Petitioner presents no new evidence that the metadata and digital evidence for Counts 16-20 were altered.

Petitioner fails to establish that material evidence was withheld in this case sufficient to undermine confidence in the verdicts. See Barker v. Fleming, 423 F.3d 1085, 1099 (9th Cir. 2005) (“The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense.”); Downs v. Hoyt, 232 F.3d 1031, 1037 (9th Cir. 2000) (rejecting Brady claim because “Downs's arguments . . . are speculative and fail to point out . . . how production of [the withheld] materials would have created a reasonable probability of a different result”).

E. Ground Five.

In Ground Five, Petitioner argues that the “trial court deprived [him] of several lawful defenses and instead crafted a single defense that applied retroactively a rule of criminal procedure as if it was in effect years earlier and misstated the law, ” thereby depriving “[him] and his clients of their First Amendment right to free speech, [him of his]

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Sixth Amendment right to present a complete defense, and [him of his] right to due process of law.” (Doc. 1 at 46; see also Doc. 12-1 at 46-56.) Specifically, Petitioner argues that he was deprived of the defense that the images were not possessed “‘for the purpose of the sexual stimulation of the viewer.'” (Doc. 1 at 46.) Petitioner complains that the trial “judge's jury instruction presented only a defense to possession where the evidence came from the state pursuant to a Rule 15.1(j) Court order, but not w[h]ere the evidence came from a client seeking legal advice.” ( Id. ) The claims of Ground Five are without merit and/or unexhausted.

The First Amendment claim is without merit. For the reasons discussed in Section V(A), above, the Arizona Court of Appeals reasonably and correctly determined that the trial court had not erred nor infringed on any First Amendment right by instructing the jury that Petitioner could only assert the constitutional defense of attorney-client representation insofar as he had possessed the images “in the capacity of a lawyer for the active defense of a client or to properly advise a client regarding the images” and that such “lawful possession ends when the case ends or the advice has been rendered.” (Doc. 25-13, Ex. OOOOO, at 158; Doc. 26-3, Ex. XXXXXX, at 17 (“[T]he record fails to support Curtis' claim that he possessed the charged images based on the possibility that they would be needed to defend a client's conduct, meaning his claim that the statute is overbroad as

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applied fails.”)) As such, Petitioner suffered no violation of any First Amendment right because the pornographic images are categorically exempt from First Amendment protection and he had not possessed them for the legitimate purpose of providing representation to a client. See supra Section V(A).

The Sixth Amendment claim and the due process claim are unexhausted as they were never fairly presented to the Arizona Court of Appeals. See Swoopes, 196 F.3d at 1010; Roettgen, 33 F.3d at 38. Although Petitioner argued on direct appeal that the trial court “improperly instructed the jury about [A.R.S. § 13-3553(A)(2)] and the defenses to it, ” nowhere in his opening brief argument did he assert a violation of any Sixth Amendment right or due process right under the Fourteenth Amendment. ( See Doc. 25-19, Ex. MMMMMM, at 60-65.) Rather, Petitioner asserted that in crafting the jury instructions the way it did, the trial court “ignored the plain language of A.R.S. § 13-3551 (4) and (9) which requires that such images . . . be possessed ‘for the purpose of the sexual stimulation of the viewer, '” which he argued was “by definition, a statutory defense, ” not “an affirmative defense.” ( Id. at 64.) Petitioner asserted no Sixth Amendment violation; he did not mention the Sixth Amendment or any other federal basis for this claim of error. As such, the claim here is unexhausted. Similarly, Petitioner asserted no violation of due process, and thus that claim, too, is unexhausted. Moreover, both claims are procedurally defaulted because Ariz. R. Crim. P. 32.2(a) precludes a subsequent litigation of them in state court, and Petitioner does not show cause for the default. See Beaty, 303 F.3d at 987.

Accordingly, Petitioner is not entitled to habeas relief on Ground Five.

F. Ground Six.

In Ground Six, Petitioner argues that the indictment (doc. 25-1, Ex. B, at 26-30) was unconstitutionally “duplicitous” because the State “refused to identify a single act for each molestation charge.” (Doc. 1 at 47; see also Doc. 12-2 at 1-7.) Petitioner maintains that the State “instead offered a whole group of other acts evidence to fill in the blanks to its 5 images allegedly defining the charged behavior for the five molestation counts.” (Doc.

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1 at 47.) Petitioner fairly presented this claim as a federal claim to the Arizona Court of Appeals on direct appeal, and therefore it is exhausted. ( See Doc. 25-19, Ex. MMMMMM, at 24 (“It is equally erroneous for the State to charge the defendant with one factual crime but take the case to a jury with a different factual crime.” (citing Eaton v. Tulsa , 415 U.S. 697, 698 (1974) )).)

The Court notes that the Arizona Court of Appeals found that Petitioner waived this claim on appeal because he withdrew his duplicity challenge before trial. Specifically, the appellate court found that “Curtis withdrew the [duplicity] motion” and by “this conduct waived the challenges he now presses about claimed flaws in the indictment.” (Doc. 26-3, Ex. XXXXXX, at 6.) Typically, if a state court expressly applied a procedural bar to a claim and that state procedural bar is both “independent” and “adequate, ” then review of the merits of the claim by a federal habeas court is barred. See Ylst v. Nunnemaker , 501 U.S. 797, 801 (1991). Notwithstanding, the Arizona Court of Appeals reviewed this claim on the merits and this Court will as well.

“A duplicitous indictment compromises a defendant's Sixth Amendment right to know the charges against him, as well as his Fifth Amendment protection against double jeopardy.” United States v. King , 200 F.3d 1207, 1212 (9th Cir. 1999). “An indictment is considered duplicitous if a single count combines two or more different offenses.” United States v. Renteria , 557 F.3d 1003, 1008 (9th Cir. 2009). However, “[e]ven if [an]

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indictment [is] technically duplicitous, ” reversal on that ground is not warranted “unless [the defendant] was misled and thereby prejudiced” as a result. United States v. Todd, 964 F.2d 925, 928 (9th Cir. 1992) (denying relief on duplicity grounds where “[t]he record unambiguously demonstrate[d] that [the defendant's] counsel had notice [of] the charge at issue”).

1. Adequate Notice of Conduct Underlying the Charges.

Petitioner had adequate notice of the specific acts underlying the molestation charges of Counts 11, 15, 17, and 19 and was therefore not misled or prejudiced by any alleged defect in the indictment. A sufficient indictment states the elements of the offense charged with sufficient clarity to apprise a defendant of the charge against which he must defend, and to enable him to plead double jeopardy. Hamling v. United States, 418 U.S. 87, 117 (1974). The Arizona Court of Appeals found that the indictment “identified the elements of each offense charged; the individual image title relevant to each exploitation count (and in most cases, the location of the media on which it was found); the conduct giving rise to the molestation counts (as did the testimony presented to the grand jury) and implicitly paired them with the exploitation counts depicting the alleged molestation.” (Doc. 26-3, Ex. XXXXXX, at 4.)

Here, the indictment expressly stated the specific act for three of the four molestation charges Petitioner was charged with: “digital/penile contact” (Count 15), “digital/vaginal” contact (Count 17), and “penile/vaginal” contact (Count 19). (Doc. 25-1, Ex. B, at 29-30.) The verdict forms reflected the same. (Doc. 25-14, Ex. SSSSS, at 37-55.) Although there was no specific act alleged for Count 11 in either the indictment or the verdict form - as noted by the Arizona Court of Appeals (doc. 26-3, Ex. XXXXXX, at 6 n.2.) - Petitioner nonetheless had sufficient notice of the charged act underlying Count 11 - as well as Counts 15, 17, and 19 - as evident by his statements and testimony at trial.

At trial, it was clear to Petitioner that the images underlying the exploitation charges of Counts 12, 14, 16, 18, and 20 provided the basis for the molestation charges of Counts

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11, 13, 15, 17, and 19, respectively. Petitioner acknowledged this in his opening statement:

I also am accused of having photographed my granddaughter as I allegedly molested her. I am not guilty of either charge. These five pictures - there are ten counts. The last ten counts, all derived out of five pictures, do not show any act of molestation.

(Doc. 25-8, Ex. IIII, at 77.) The State also referenced these images in its opening statement. ( Id. at 69-70.) Remarks made during opening argument can indicate a defendant has notice of the charges, which they do here. See Todd, 964 F.2d at 928 (finding that defendant “was not deprived of his constitutionally required notice or opportunity to defend” based on statements made by his counsel during opening statement).

Similarly, on direct examination, Petitioner testified that he knew which images formed the basis of the molestation charges and what they depicted:

COUNSEL: There are photographs alleging five molestation charges or sexual exploitation charges.

PETITIONER: Yes.

COUNSEL: Are you familiar with the photos that we're talking about? You have seen them?

PETITIONER: I am. I think we can do this count by count. That's what

I contemplated. I thought.

(Doc. 25-12, Ex. HHHHH, at 190.) Petitioner demonstrated his familiarity of the images by testifying as to the specific subject matter of each. Petitioner testified that: the image of Count 12 was a “picture of [Jessica] on her potty chair” that he intended to use as a visual aid to help potty-train her; the image of Count 14 was a picture of Jessica “in a position to be changed” that he took because she “was having severe diaper rash . . . just above the vagina”; the image of Count 16 was “a photograph of [Jessica] holding a man's penis”; the image of Count 18 was a picture of “a child lying on her stomach, and it appears that a man is spreading her vaginal/anal area”; and the image of Count 20 did not depict him or Jessica.

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( Id. at 190-195.) When asked during cross-examination about the “photograph for Count 12, ” Petitioner stated that “Count 11 is the molestation count that goes along with it.” (Doc. 15-12, Ex. at 191-192.) In his Reply, Petitioner agrees he knew each Count was connected to another. “Curtis argued each mol[estation] count was to the one act in the following count's named image.” (Doc. 40 at 47.)

Petitioner had sufficient notice that the photographs in Counts 12, 14, 16, 18, and 20 were the basis for the charges in Counts 11, 13, 15, 17, and 19. Petitioner was not prejudiced by any notice deficiencies in the indictment. See United States v. Severino , 316 F.3d 939, 943 (9th Cir. 2003) (“Because a defendant can be put on notice of a charge despite certain mistakes, minor or technical deficiencies in the indictment will not reverse a conviction if there is no prejudice.”) (internal quotations, citations, and alterations omitted).

2. Double Jeopardy/Prejudice.

Petitioner argues that the indictment (doc. 25-1, Ex. B, at 26-30) was unconstitutionally “duplicitous” because the State “refused to identify a single act for each molestation charge.” (Doc. 1 at 47; see also Doc. 12-2 at 1-7.) Petitioner submits that the jury could have convicted him for acts contained in “other act” photographs rather than the charged offenses. ( Id .)

The Arizona Court of Appeals held:

Nor has Curtis shown that charges submitted to the jury were duplicitous because the jury asked during deliberations whether the molestation charges were associated with specific images. In response, after conferring with the parties, the superior court instructed the jury that it was to “rely on the evidence, arguments of counsel and the instructions given.' The verdict forms for the molestation counts identified the child's name and the sexual contact alleged consistent with the “to-wit” designation in the indictment. Moreover, both parties linked each molestation count by evidence, testimony and argument to the charged image in the count depicting the molestation.

(Doc. 26-3, Ex. XXXXXX, at 6.)

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As explained below, the Arizona Court of Appeals' decision was not an unreasonable application of clearly established federal law, or an unreasonable interpretation of the facts before it. The Fifth Amendment requires that a defendant be “convicted only upon charges presented in an indictment returned by the grand jury.” Todd , at 964 F.2d at 928. The Arizona Court of Appeals was not unreasonable in finding that based upon the statements during opening statement, direct examination, and cross examination, the parties all linked Counts 12, 14, 16, 18, and 20 to the charges in Counts 11, 13, 15, 17, and 19. Also, as noted above, the indictment expressly stated the specific act for three of the four molestation charges Petitioner was charged with: “digital/penile contact” (Count 15), “digital/vaginal” contact (Count 17), and “penile/vaginal” contact (Count 19). (Doc. 25-1, Ex. B, at 29-30.) The verdict forms reflected the same. (Doc. 25-14, Ex. SSSSS, at 37-55.)

In its closing argument, the State noted that the last “five charged images of sexual exploitation of a minor . . . all stem from molestation . . . and coincide with the molestation counts.” (Doc. 25-13, Ex. OOOOO, at 173-74.) The State then proceeded to describe each of the five images. ( Id. at 174-76.) Additionally, the State expressly distinguished charged images from uncharged images in its accompanying PowerPoint presentation, obviating any risk of confusion by the jury as to what evidence supported each charge. (Doc. 26-1, Ex. VVVVVV, at 81-87, 94-105.) In his own closing argument, Petitioner maintained that “[t]he five charged images of [Jessica] do not depict any act of molestation or depict contact that was motivated by sexual interest.” (Doc. 25-13, Ex. OOOOO, at 196-97.) Later, he described those images in relation to the molestation charges, arguing why he believed they did not depict any act of molestation by him. ( Id. at 225-27). For example, Petitioner stated “[t]he photo in Count 12 is the only evidence of the molestation charge of Count 11.” ( Id . at 225.) He argued that the “photograph in Count 16 is the only evidence of molestation before this Court, where this an act of a child holding my penis, as I have told you.” ( Id . at 226.) Petitioner's closing argument thus reflected his awareness that the images underlying Counts 12, 16, 18, and 20 were the bases for the molestation charges of Counts 11, 15, 17,

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and 19, respectively. See Todd , 964 F.2d at 929 (finding no duplicity error because the “allegations [in the superseding indictment] were the subject of the trial” thus the “superseding indictment did not deprive Todd of his fifth or sixth amendment rights.”).

In light of the above, the Court is unable to find that Petitioner was misled or prejudiced by any defect in the indictment pertaining to the five molestation counts. Thus, the Arizona Court of Appeals' decision regarding duplicity did not involve an unreasonable application of clearly established Federal law and was not based on an unreasonable determination of the facts. See Todd , 964 F.2d at 928; Severino , 316 F.3d at 943. Accordingly, Petitioner is not entitled to habeas relief on Ground Six. See Mays , 141 S.Ct. at 1149.

G. Ground Seven.

In Ground Seven, Petitioner argues that the jury instructions as crafted violated his First Amendment right to communicate with his clients. (Doc. 1 at 48; see also Doc. 12-2 at 9-14.) The Court addressed this claim in Ground One. See supra Section V(A)(2). For the reasons discussed therein, Petitioner is not entitled to habeas relief on this claim.

H. Ground Eight.

In Ground Eight, Petitioner argues that the trial court violated his Fifth Amendment privilege against self-incrimination. (Doc. 1 at 49.) Specifically, Petitioner argues that he “had no choice but to take the stand at trial because the affirmative defense authorized by A.R.S. § 13-1407(E) required such testimony.” ( Id. ) He further argues that his testimony was “coerced” because the trial judge had told him that he had no Fifth Amendment privilege once he took the stand and that if he refused to answer questions from the prosecution, his testimony would be stricken. ( Id. )

Petitioner's claims in Ground Eight are unexhausted because Petitioner did not present them to the Arizona Court of Appeals, either in his direct appeal or in his petition for review of the denial of his PCR petition. See Swoopes , 196 F.3d at 1010; Roettgen , 33 F.3d at 38. ( See Doc. 25-19, Ex. MMMMMM, at 2-79 (opening brief, direct appeal); Doc. 25-20, Ex. TTTTTT, at 49-56 (supplement to opening brief, direct appeal); Doc. 26-12,

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Ex. DDDDDDDD, at 32-52 (PCR petition for review).) Moreover, Ground Eight is procedurally defaulted because Ariz. R. Crim. P. 32.2(a) precludes a subsequent litigation of it in state court, and Petitioner does not show cause for the default. Beaty , 303 F.3d at 987.

Even assuming arguendo that Petitioner's claims in Ground Eight were properly exhausted, Petitioner would still not be entitled to relief because his claims also fail on the merits. Contrary to Petitioner's assertion, he had a choice to testify or to not. See, e.g. , Flynn , 709 F.Supp.2d at 743. In Flynn , the defendant - like Petitioner - was a criminal defense attorney that had been charged with possession of child pornography. Id. at 739. And, like Petitioner, the defendant sought to assert a similar attorney-client representation defense, which was available to him under a South Dakota statute. Id. at 743. In determining whether the defendant was entitled to a jury instruction on this defense, the district court noted that the defendant had the burden “to demonstrate that there is sufficient evidence to warrant [such] an instruction.” Id. It further noted that in satisfying this burden, “[ t ] he defendant does not have to testify or even offer any evidence; the basis for the defendant's theory may derive from the testimony of government witnesses on direct or cross-examination.” Id. (emphasis added; citation omitted).

Moreover, the Supreme Court has held in a number of cases that a defendant's testimony is not compelled simply because it may be helpful to his defense. See, e.g. , Williams v. Florida , 399 U.S. 78, 84 (1970) (holding that a defendant is not compelled to testify in violation of his privilege against self incrimination merely because his testimony may aid in his defense). Specifically, the Willams Court explained as follows:

That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State's evidence may be severe but they do not vitiate the defendant's choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant.

Id.

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Therefore, even if Petitioner's claim in Ground Eight was not procedurally defaulted without excuse, the Court would still find that Petitioner's testimony was not compelled in violation of the Fifth Amendment. Accordingly, Petitioner is not entitled to habeas relief on Ground Eight.

I. Ground Nine.

In Ground Nine, Petitioner alleges “numerous instances of prosecutorial misconduct.” (Doc. 1 at 50.) Petitioner is not entitled to habeas relief on any of these claims for the reasons below.

1. Subclaim A: False Statements by Det. Mattlin.

First, Petitioner reiterates the claim of Ground Two that “the prosecutor solicited statements from Det. Mattlin that she knew to be false” during the grand jury proceeding. ( Id. ) As previously discussed, Petitioner is not entitled to habeas relief on any claims of misconduct occurring during the grand jury proceeding because the Fifth Amendment right to indictment by a grand jury has not been incorporated into the Fourteenth Amendment so as to apply to the states and state court proceedings. See supra Section V(B) . In any event, Petitioner was convicted at trial, thereby rendering any alleged errors occurring during the grand jury proceeding harmless. See Mechanik , 475 U.S. at 70. Accordingly, Petitioner is not entitled to habeas relief on this claim.

2. Subclaim B: Brady Violation.

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Next, Petitioner argues that “the prosecutor refused to abide by her duty to disclose evidence of the type she was obligated to disclose under [ Brady ].” (Doc. 1 at 50.) The Court addressed this claim in Ground Four. See supra Section V(D). Petitioner fails to show that favorable evidence was withheld from him by the prosecution, that the Arizona Court of Appeals' ruling on his Brady claims was unreasonable, or that Petitioner was prejudiced by the alleged failure to disclose.

Accordingly, Petitioner is not entitled to habeas relief on this claim.

3. Subclaim C: “$R Images Fraud.”

Next, Petitioner cites “the ‘$R Images Fraud' described in several other Grounds.” (Doc. 1 at 50.) Petitioner is not entitled to relief on this claim because it was never fairly presented to the Arizona Court of Appeals as a violation of any federal law and is therefore unexhausted and consequently barred from this Court's review.

On direct appeal, Petitioner argued before the Arizona Court of Appeals that “fraud” was perpetuated upon the trial court when the State allegedly switched file names of certain charged images, e.g. , “$R619NO” to “R$6191NO.” (Doc. 25-19, Ex. MMMMMM, at 15-22.) Petitioner argued that this was “not merely a mis-spoken file name because Det. Bailey searched for the file named $R6191NO, not file name $R619NO which was the charged image.” ( Id. at 18-19.) Petitioner also argued that the trial court “allow[ed] the State to contradict its own witness's testimony that the files bearing a ‘$R' in the first two positions in the file name indicated a recycle bin source on the portable hard drive.” ( Id. at 19.) Nowhere in his argument did Petitioner allege that the alleged misconduct constituted a violation of any federal law. Rather, Petitioner simply submitted that the alleged misconduct “represent[ed] a fraud upon the Court and obstruction of justice, and hopelessly confused the issue of what factual act applied to each count.” ( Id. at 22.) Petitioner raised these claims before the Arizona Court of Appeals during his PCR proceeding, but again, without alleging that they constituted a violation of any federal law. (Doc. 26-12, Ex. DDDDDDDD, at 49 (“D. $R Images Perjuries of Det. Bailey”).)

Therefore, the “$R Images Fraud” claims are unexhausted and consequently barred

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from this Court's review. See Swoopes , 196 F.3d at 1010; Roettgen , 33 F.3d at 38. Moreover, they are procedurally defaulted because Ariz. R. Crim. P. 32.2(a) precludes a subsequent litigation of them in the state courts. Beaty , 303 F.3d at 987. Petitioner does not show cause to excuse the procedural default.

Accordingly, Petitioner is not entitled to habeas relief on this claim.

4. Subclaim D: “Bank Records Fraud.”

Next, Petitioner cites “the Bank Records Fraud described in Ground Eleven.” (Doc. 1 at 50, 61-63.) Petitioner is not entitled to relief on this claim because it was never fairly presented to the Arizona Court of Appeals as a violation of any federal law and is therefore unexhausted and consequently barred from this Court's review. Petitioner's “bank records” fraud claim is further reviewed in Ground Eleven. See supra Section V(K).

Petitioner is not entitled to relief on this claim.

5. Subclaim E: False Reporting & Other Misconduct.

Next, Petitioner cites “the many occurrences of false reporting by Detective Mattlin.” (Doc. 1 at 50.) Petitioner elaborates on this claim in Ground Ten. (Doc. 1 at 51- 60, Doc. 20 at 3-5 (legible versions of Doc. 1 at 57-59).) Additionally, in Ground Ten, Petitioner makes a number of other allegations of misconduct by the State apart from his allegations against Det. Mattlin specifically. ( See id. ) As explained below, Petitioner is not entitled to relief on any of the claims asserted in Subclaim E and Ground Ten because they are unexhausted, procedurally defaulted, and consequently barred from this Court's review.

Petitioner alleges the following:

(A) Det. Mattlin falsely reported finding the PHD in Petitioner's Hyundai, a “false report” that was “not corrected for 16 months” (doc. 1 at 50-51);

(B) Det. Mattlin failed to report finding the PHD and Fujitsu CD to Det. Breckow ( id. at 52-53);

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(C) Det. Mattlin failed to obtain a warrant to search the PHD and Fujitsu CD prior to making mirror images of their contents (id. at 53);

(D) Det. Mattlin failed to abide by a court order to provide copies of search warrant documents and made various misrepresentations to the court concerning search warrants and evidence (id. at 54);

(E) Det. Mattlin “falsely testif[ied]” that the PHD and Fujitsu CD were both searched pursuant to a valid search warrant (id. at 55);

(F) Det. Mattlin “misle[]d” Det. Bailey by giving him a “false order” to search the PHD and Fujitsu CD (id.);

(G) Det. Mattlin made false reports regarding the contents, locations, and metadata of certain images prior to and at trial (id); and

(H) “the State falsely claimed” that certain images were not subject to the disclosure requirements of Ariz. R. Crim. P. 15.1 and violated those disclosure requirements (id. at 56; doc. 20 at 3-5).

To the extent that any of the above claims are cognizable, Petitioner is not entitled to relief because they are unexhausted. Petitioner either did not raise these claims before the Arizona Court of Appeals, or if he did raise them, he did not fairly present them as violations of federal law. On direct appeal, Petitioner did not raise any claim of prosecutorial misconduct, much less any of the instant claims asserted in Subclaim E and Ground Ten. ( See Doc. 25-19, Ex. MMMMMM, at 2-79 [opening brief, direct appeal]; Doc. 25-20, Ex. TTTTTT, at 49-56 [supplement to opening brief, direct appeal].) In his petition for review during his PCR proceeding, Petitioner did raise some claims of prosecutorial misconduct, including alleged perjury by Det. Bailey; however, he did not assert that any of the alleged misconduct violated any federal law. (Doc. 26-12, Ex. DDDDDDDD, at 48-50.) Rather, Petitioner presented his prosecutorial misconduct claims

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exclusively as violations of state law, citing only Arizona cases in his articulation of the appropriate standard of review. ( Id. )

Therefore, because Petitioner did not fairly present any of the claims of Subclaim E and Ground Ten to the Arizona Court of Appeals as violations of a federal law, they are unexhausted and consequently barred from this Court's review. See Swoopes, 196 F.3d at 1010; Roettgen, 33 F.3d at 38. Moreover, these claims are procedurally defaulted because Ariz. R. Crim. P. 32.2(a) precludes a subsequent litigation of them in state court, and Petitioner does not show cause for the default. See Beaty, 303 F.3d at 987.

Accordingly, Petitioner is not entitled to habeas relief on these claims.

6. Subclaims F and H: Fourth Amendment Claims.

Next, Petitioner cites “Det. Mattlin's false affidavit that said he had photos of small girls taken in some vehicle, justifying his seizure of the vehicles when at [a] hearing he was forced to admit no photo existed.” (Doc. 1 at 50.) Petitioner also cites “Det. Mattlin's and Det. Bailey's multiple warrantless searches.” ( Id.) Petitioner is not entitled to relief on these claims because they are not cognizable in the instant proceeding as Fourth Amendment claims.

“A Fourth Amendment claim is not cognizable in federal habeas proceedings if a petitioner has had a full and fair opportunity to litigate the claim in state court.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (citing Stone v. Powell, 428 U.S. 465, 481-82 (1976)); see also Newman v. Wengeler, 790 F.3d 876, 878-79 (9th Cir. 2015) (holding that the Stone rule survived the passage of AEDPA). “The relevant inquiry is whether [the] petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided.” Ortiz-Sandoval, 81 F.3d at 899 (emphasis added). A defendant has such an “opportunity” where he is able to move for the suppression of evidence on the basis that it was obtained in violation of the Fourth Amendment. See Gordan v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990). Under Ariz. R. Crim. P. 16.2, a defendant in Arizona court can file such a motion and therefore has the “opportunity” to fully and fairly litigate any Fourth Amendment claims he may have. Prior

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to and during his trial, Petitioner took full advantage of that opportunity, filing numerous motions to suppress. ( See Doc. 25 at 67 n.50.) As such, Subclaims F and G are noncognizable in the instant proceeding.

Accordingly, Petitioner is not entitled to habeas relief on these claims.

7. Subclaim H: Exhibits Switched on Appeal.

Lastly, Petitioner cites “the State's interception of [his] offer of proof of four CD's and one DVD and replacing them with four CD's and no DVD, thus discrediting [his] proof of the State's deficient disclosures.” (Doc. 1 at 50.)

Petitioner is not entitled to relief on this claim because it is procedurally defaulted, as determined by the PCR court and upheld by the Arizona Court of Appeals. Petitioner raised this claim as “Issue Two” in his PCR petition. (Doc. 26-8, Ex. WWWWWWW, at 31 [“[S]witching those discs so that the Court of Appeals never saw Curtis's offer of proof crippled Curtis from proving his appellate issues[.]”; see also Doc. 26-12, Ex. DDDDDDDD, at 49 [PCR petition for review].) The PCR court ruled that this issue was precluded as untimely for Petitioner's failure to timely raise it “either at trial or on his direct appeal” and that Petitioner “failed to set forth a colorable claim that the claims are based on newly discovered evidence.” (Doc. 26-12, Ex. BBBBBBBB, at 26.) The Arizona Court of Appeals found no abuse of discretion in the PCR court's reasoning. (Doc. 26-12, Ex. EEEEEEEE, at 55.) Therefore, this claim is procedurally defaulted and consequently barred from this Court's review. See Martinez , 566 U.S. at 9. Petitioner asserts no cause to excuse the default.

Accordingly, Petitioner's claims and subclaims in Ground Nine are either noncognizable, unexhausted, procedurally defaulted without excuse, and/or fail on the merits. Accordingly, Petitioner is not entitled to habeas relief on Ground Nine.

J. Ground Ten.

In Ground Ten, Petitioner alleges “false reporting by Tempe Det. Mattlin on the search warrant documents. . . .” (Doc. 1 at 51.) The Court thoroughly addressed Petitioner's Ground Ten claims above, in Section V(I)(5). For the reasons discussed therein, Petitioner

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is not entitled to habeas relief on Ground Ten.

K. Ground Eleven.

Petitioner argues that bank records were switched in his case, which resulted in a fraud being perpetrated by the prosecution. (Doc. 1 at 61-63.) Petitioner does not allege a constitutional violation in his argument. Nonetheless, liberally construed, the Court will assume Petitioner is alleging a Fourth Amendment violation and prosecutorial misconduct. Petitioner is not entitled to relief on these claims.

1. Fourth Amendment Claim.

Petitioner alleges Wells Fargo employees violated “two federal banking and electronic transaction laws” by providing credit card purchase information to law enforcement. ( Id . at 61.) Petitioner states that he “challenged the legality of the subpoena/search warrant, and Curtis's motion to suppress was granted on Fourth Amendment grounds.” ( Id .) Petitioner's Fourth Amendment claim is barred from review. See Stone , 428 U.S. at 481-82.

2. Prosecutorial Misconduct.

Petitioner argues that the prosecutor committed misconduct by improperly switching “bank records” during trial. (Doc. 1 at 61.) Wells Fargo records indicated that Petitioner's debit card had been used at the Harkins Theatres on May 23, 2009 - just days before Mr. Benallie discovered the flash drive. (Doc. 25-8, Ex. IIII, at 206-07.) Petitioner asserts he proved by theater-camera recordings that he was not present at the theater on May 23, 2009. (Doc. 1 at 61-62.) Petitioner alleges the prosecutor then switched credit card information and introduced bank records from May 15, 2009 to show he was present on that earlier date. (Doc. 1 at 63.) To the extent Petitioner is arguing the prosecutor committed misconduct by introducing May 15, 2009 records during trial, Petitioner was present during trial and responsible for reviewing the trial exhibits. Petitioner admits he knew of the May 15, 2009 records prior to trial because he filed a motion to suppress these documents. ( Id . at 62.) Petitioner argues he did not know of the “fraudulent switch of exhibits until the appeal” ( id . at 63) but this is incorrect. During closing argument, the prosecutor argued that

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bank records showed Petitioner used his credit card on May 15 and May 23, 2009, so Petitioner had notice of the prosecutor's evidence and argument. Petitioner did not raise this claim on direct appeal so it is unexhausted and procedurally defaulted. Petitioner had notice of the “bank record switch” and could have raised this claim on direct appeal.

During his PCR proceeding, Petitioner presented these allegations to the Arizona Court of Appeals but he did not present them as federal claims, citing no federal law in support of his argument. (Doc. 26-12, Ex. DDDDDDDD, at 48-50 (PCR petition for review); see also Doc. 26-8, Ex. WWWWWWW, at 29-30 (PCR petition).) Thus, the claims were also unexhausted for lack of fair presentation. Moreover, the PCR court ruled that the claims were precluded as untimely, a ruling affirmed by the Arizona Court of Appeals. See supra Section II(C). Petitioner does not show cause to excuse the procedural default.

Finally, Petitioner argues that the “bank records switch” had “major consequences” because it showed that Mr. Benallie may have placed the child pornography on the Benallie Flash Drive. (Doc. 1 at 63.) Petitioner submits that because Petitioner was not at the theater on May 23, 2009, then Mr. Benallie “was the best candidate for the false purchase from Curtis's bank account” on May 23, 2009. ( Id .) Petitioner argues this likely shows Mr. Benallie may have placed the child pornography on the Benallie Flash Drive. Petitioner presents no new evidence for this theory. Petitioner also argued this theory about Mr. Benallie to the jury in his closing argument, so Petitioner's argument is not new. (Doc. 25-13, KKKKK, at 202-203.) The Court is not persuaded that camera recordings that might show Petitioner was not at the Harkins Theatres on May 23, 2009 tend to prove that Mr. Benallie stole Petitioner's credit card data and placed child pornography on a flash drive to frame Petitioner for some unknown reason.

Accordingly, Petitioner is not entitled to habeas relief on these claims.

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L. Ground Twelve.

In Ground Twelve, Petitioner challenges the sufficiency of the evidence for all 19 convictions. (Doc. 1 at 64.) As it pertains to the 15 convictions of sexual exploitation of a minor under A.R.S. § 13-3553(A)(2), Petitioner argues that the evidence was insufficient because the State had not proven that the charged images, which Petitioner maintains were “client[-]sourced, ” were possessed by him for the purpose of the sexual stimulation of the viewer. ( Id. ) As it pertains to the four molestation convictions under A.R.S. § 13-1410(A), Petitioner argues that the evidence was insufficient because the State had not proven any “criminal purpose or motive” (“sexual interest”) when Petitioner touched the victim. ( Id. )

Petitioner is not entitled to relief on Ground Twelve because Petitioner never raised any sufficiency-of-the-evidence claims before the Arizona Court of Appeals. ( See Doc. 25-19, Ex. MMMMMM, at 2-79 [opening brief, direct appeal]; Doc. 25-20, Ex. TTTTTT, at 49-56 [supplement to opening brief, direct appeal]; Doc. 26-12, Ex. DDDDDDDD, at 32-52 [petition for review of denial of PCR].) Thus, the claims of Ground Twelve are unexhausted and consequently barred from this Court's review. See Swoopes, 196 F.3d at 1010; Roettgen, 33 F.3d at 38. Moreover, the claims are procedurally defaulted because Ariz. R. Crim. P. 32.2(a) precludes a subsequent litigation of them in state court. See Beaty, 303 F.3d at 987. The procedural default of Ground Twelve is not excused as Petitioner fails to show cause for the default.

Accordingly, Petitioner is not entitled to habeas relief on Ground Twelve.

M. Ground Thirteen.

In Ground Thirteen, Petitioner “challenges the jury instructions, both as given and as argued and applied by the court and the State.” (Doc. 1 at 67.) Petitioner argues, as he did in Ground One, that the jury instructions “faile[d] to recognize the statutory defense to any A.R.S. § 13-3553(A) prosecution” and “wrongly relieved the State of the burden of proving that [he] engaged in ‘sexual contact' with [the victim], ” which he maintains that it had to prove as an element of the offense. ( Id. at 67-68.) He argues that “the instruction was unconstitutional as given.” ( Id. at 68.)

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The above claims are essentially a reiteration of the claims of Ground One that the Court addressed in Section V(A), above. For the reasons discussed therein, Petitioner is not entitled to relief on the above claims.

Additionally, in Ground Thirteen, Petitioner argues that the statutory scheme of A.R.S. § 13-3553(A) “is fundamentally flawed because it shifts to [him] the burden of proving his innocence instead of the State proving his guilt.” ( Id. at 67-68.) This claim was never presented to the Arizona Court of Appeals and is therefore unexhausted and nonreviewable. ( See Doc. 25-19, Ex. MMMMMM, at 2-79 (opening brief, direct appeal); Doc. 25-20, Ex. TTTTTT, at 49-56 (supplement to opening brief, direct appeal); Doc. 26-12, Ex. DDDDDDDD, at 32-52 (petition for review of denial of PCR).) Moreover, Ground Thirteen is procedurally defaulted because Ariz. R. Crim. P. 32.2(a) precludes a subsequent litigation of it in state court. See Beaty, 303 F.3d at 987. The procedural default of Ground Thirteen is not excused as Petitioner fails to show cause for the default.

Accordingly, Petitioner is not entitled to habeas relief on Ground Thirteen

N. Ground Fourteen.

In Ground Fourteen, Petitioner argues that the trial court “made rulings contrary to settled U.S. Constitutional law” in denying his motions to suppress. (Doc. 1 at 69; Doc. 12-2 at 15-36.) Whether Petitioner was entitled to have his motions granted and certain evidence excluded is a Fourth Amendment question. See Ariz. R. Crim. P. 16.2(a) ("[S]uppress' refers to the exclusion of evidence that was unlawfully obtained due to a constitutional violation.”). As discussed above in Section V(I)(6), Petitioner's Fourth Amendment claims are not cognizable in the instant habeas proceeding.

Accordingly, Petitioner is not entitled to habeas relief on Ground Fourteen.

VI. Motion to Require State to Provide Court with Exhibits.

On February 24, 2021, Petitioner filed a Motion to Require the State to Provide

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Court with Exhibits Necessary for Court Review. (Doc. 52.) In the Motion, Petitioner requests disclosure of the actual pornographic photographs and all of the superior court documents related to the search of Petitioner's “home/law office and of the Honda Civic” at Petitioner's home. Doc 52.) Petitioner requests (a) “the 15 photographs that define the charged criminal acts” (doc. 52 at 1-2); and (b) “the entire superior court file for SW 2009-003192” ( id. at 5).

In support of his requests for disclosure, Petitioner asserts that his challenges of “elaborate fraud” and perjury in Ground Two “cannot be competently weighed without viewing the actual named images. ( Id. at 2.) He asserts that the “evaluation of this legal constitutional error requires that the U.S. District Court compare the evidence presented at the grand jury compared to the evidence presented to the trial jury.” ( Id. at 3.) He asserts the actual images will assist him with his claims regarding duplicity (Ground Six), as well as challenges regarding prosecutorial misconduct (Ground Nine), false reporting (Ground Ten), and insufficiency of the evidence (Ground Twelve). ( Id. at 4-5.) Petitioner also argues that the disclosure is necessary for the Court to evaluate “the State's claims on Curtis's argument that the search of the PHD and Fujitsu CD were done without the authority of the warrant.” ( Id. at 8.)

The Court will recommend the Motion be denied. Regarding Ground Two, Petitioner's challenges to the grand jury proceedings are not cognizable. Regarding Count Six, Petitioner's duplicity allegation would not be aided by a review of the photographs. The question regarding duplicity is whether Petitioner had clear notice of the charges connecting the photographs in Counts 12, 16, 18, and 20 to the molestation charges in Counts 11, 15, 17, and 19. The Court finds that Petitioner had clear notice for each charge. Also, Petitioner argues that the “trial court convictions were based upon evidence of criminal acts other than those for which he was charged in the Indictment.” (Doc. 52 at 2.) As explained in Ground Six, the Court finds that the Arizona Court of Appeals decision denying this claim was not an unreasonable application of clearly established federal law, or an unreasonable interpretation of the facts before it.

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Regarding Grounds Nine (prosecutorial misconduct) and Ten (search warrant fraud), the Court finds that the additional documents requested by Petitioner would not aid the Court's ruling. Finally, Regarding Count Twelve, Petitioner's sufficiency of the evidence claim is unexhausted and procedurally defaulted without excuse so additional exhibits are necessary for a resolution of this claim.

The Court recommends that Petitioner's Motion for Exhibits (doc. 52) be denied.

VII. Certificate of Appealability.

“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254. The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell , 537 U.S. 322, 327 (2003). Petitioner has not made the requisite showing here, and therefore the Court recommends that a certificate of appealability be denied.

IT IS THEREFORE RECOMMENDED that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be denied and dismissed with prejudice .

IT IS FURTHER RECOMMENDED that Petitioner's Motion for Exhibits (doc. 52) be denied .

IT IS FURTHER RECOMMENDED that a certificate of appealability be denied .

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.

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Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.

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Notes:

The terms “flash drive, ” “thumb drive, ” and “jump drive” are used interchangeably to refer to a storage device that plugs into the USB port of a computer or other electronic device. ( See Doc. 25-10, Ex. SSSS, at 131-32.) In this Report, the Court will refer to such a device as a “flash drive.”

“Jessica” is a pseudonym used by the State to refer to the victim of the five molestation counts. (Doc. 25 at 4.)

“Privacy Expert” is a software program that is used to remove usage information, such as Internet browsing history, from a computer. (Doc. 25-10, Ex. SSSS, at 137.)

A Canon SD-360 camera was seized from Petitioner's person upon his arrest. (Doc. 25-8, Ex. IIII, at 214.)

Ariz. R. Evid. 404(c) provides that: “In a criminal case in which a defendant is charged with having committed a sexual offense, . . . evidence of other crimes, wrongs, or acts may be admitted by the court if relevant to show that the defendant had a character trait giving rise to an aberrant sexual propensity to commit the offense charged.”

These are the names of the images as charged in the indictment. (Doc. 25-1, Ex. B, at 26-30.) There were minor - and ultimately immaterial - discrepancies between the image name as charged in the indictment and what it was referred to as during trial. ( See, e.g., Doc. 25-10, Ex. TTTT, at 213 [“extro02.jpg” versus “EXTR002.JPG”]; 215, 217 [“cherre 196.jpg” versus “CHEARE196.JPG”]; 217 [“R61NO.jpg” versus “$R619NO.JPG”]; 218 [“RVZBWEK.jpg” versus “$RVZBWEK.JPG”].) Det. Bailey testified that a ‘$' sign at the beginning of a file name suggests that the file may have come from the recycle bin of a device. ( Id. at 214.) See also infra Section V(I)(3) (“$R Images Fraud”). On direct appeal, the Arizona Court of Appeals found these discrepancies inconsequential. (Doc. 26-3, Ex. XXXXXX, at 5-6.) Specifically, it held that the “typographical error” in some image names had “no material significance, given the absence of any other images admitted at trial with the same title.” ( Id. at 5.) Further, it found no “evidence of a deliberate attempt by the State to switch images” where a detective had misstated the name of an image - “a slip of the tongue that was neither intentional nor significant in context.” ( Id. at 6; see also Doc. 25 at 227 n.148.)

See supra n.6.

The date taken is based on data from either (a) the camera that captured the image - i.e. , Exchangeable Information Format (“EXIF”) data - or (b) a device that the image was later stored on. The former refers to metadata generated by a camera when it captures an image and includes information “such as the name of the camera that was used to take the picture, the make and model, [and] the date and time that the camera was set to when the picture was taken.” (Doc. 25-10, Ex. SSSS, at 127-30.) The latter includes information such as the date an image file was “created” or “last written” on a particular device, e.g. , a computer, portable hard drive, or flash drive. (Doc. 25-10, Ex. VVVV, at 264-65.) The date a file was “last written” is when it was last modified, which could predate its creation date if the file was modified on a device prior to being copied to another device. ( Id. at 265-66.) “[T]he last written date can actually indicate the date that it was [originally] created, ” i.e. , taken. ( Id. at 266.) The State's direct-appeal appendix provides extensive transcript references for each photograph. ( See Doc. 26-1, Ex. VVVVVV, at 5-9.)

Prior to his direct appeal, Petitioner filed a petition for a writ of habeas corpus and an amended petition for a writ of habeas corpus in the Maricopa County Superior Court (PCR court). (Doc. 26-7, Ex. MMMMMMM, at 4-28; Doc. 26-7, Ex. NNNNNNN, at 30- 54.) On May 13, 2015, the State moved to treat Petitioner's amended habeas petition as a petition for post-conviction relief under Ariz. R. Crim. P. 32. (Doc. 26-6, Ex. BBBBBBB, at 25-28; see also Doc. 26-6, Ex. DDDDDDD, at 53-60 (Petitioner's response).) On May 20, 2015, the PCR court granted the motion, and construed the amended habeas petition as a timely Notice of Post-Conviction relief and directed Petitioner to file a second amended petition for PCR relief. (Doc. 26-6, Ex. CCCCCCC, at 50-51.) Petitioner unsuccessfully contested the PCR court's decision to both Arizona Court of Appeals and Arizona Supreme Court through both appeals and special action filings. Ultimately, Petitioner complied with the PCR court's order, and submitted his Second Amended PCR petition. (Doc. 26-8, Ex. WWWWWWW, at 9-33.)

“A defendant is precluded from relief under Rule 32 based on any ground: . . . (3) waived at trial, on appeal, or in any previously collateral proceeding.” Ariz. R. Crim. P. 32.2(a)(3).

See generally Roettgen v. Copeland , 33 F.3d 36, 38 (9th Cir. 1994) (“Rule 32 was amended in 1975, in part, to consolidate several types of post-conviction writs, petitions, and motions into one comprehensive post-conviction remedy; included was state habeas corpus. Rule 32 does not eliminate habeas corpus as a remedy; however, habeas corpus is subordinated to the post-conviction remedy of Rule 32. Rule 32 is meant to encompass the grounds available under a writ of habeas corpus, but habeas corpus relief remains available for claims which fall outside the scope of Rule 32.”) (citations omitted).

“A defendant is precluded from [post-conviction] relief under Rule 32 based on any ground: (1) still raisable on direct appeal under Rule 31 or in a post-trial motion under Rule 24; (2) finally adjudicated on the merits in an appeal or in any previous collateral proceeding; or (3) waived at trial, on appeal, or in any previous collateral proceeding.” Ariz. R. Crim. P. 32.2(a).

Ground Thirteen raises similar claims. See infra Section V(M).

Under A.R.S. § 13-1410(A), “[a] person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age.” At the time of Petitioner's conviction, “sexual contact” for purposes of § 13-1410(A) was defined as “any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact.” A.R.S. § 13-1401(2) (West, effective until July 2, 2015). Under former A.R.S. § 13-1407(E) - also in effect at that time - once the prosecution established that such contact had occurred, the burden shifted to the defendant to prove that the contact was “not motivated by a sexual interest.” Id. (West, effective Sept. 26, 2008 to Aug. 2, 2018). In May v. Ryan , the District Court for the District of Arizona granted habeas relief to an Arizona prisoner who had been convicted under § 13-1410(A) on the grounds that “the burden-shifting scheme of [A.R.S. §§ 13-1410 and 13-1407(E)] . . . violate[d] the Constitution's guarantee of due process of law-specifically, [the prisoner's] right to be convicted of a crime only if the state proves each element beyond a reasonable doubt and to have the jury so instructed.” 245 F.Supp.3d at 1171. The claim underlying this holding had been procedurally defaulted; however, the district court concluded that the default was excused because the prisoner's trial counsel had been ineffective for failing to raise the claim at trial. Id. at 1170 (“It should have been obvious that the burden-shifting scheme presented a serious constitutional question that could have been dispositive for [the petitioner].”). The Ninth Circuit Court of Appeals reversed in two separate decisions. May v. Shinn , 954 F.3d 1194 (9th Cir. 2020) (published opinion addressing other unrelated claims); May v. Ryan , 807 Fed. App'x. 632 (9th Cir. 2020) (unpublished memorandum decision). In the memorandum decision, the Court of Appeals held that the prisoner's trial counsel was not ineffective for failing to raise a constitutional challenge to the statutes because the burden-shifting scheme was “long-standing” and the “prevailing professional practice at the time of the trial.” May , 807 Fed. App'x. at 634-35. As such, it held that the district court erred in reaching the constitutional question and vacated its judgment in that respect. Id. at 635. Nevertheless, following the district court's ruling, the statutory definition of “sexual contact” was amended in 2018 to exempt “direct or indirect touching or manipulating during caretaking responsibilities, or interactions with a minor or vulnerable adult that an objective, reasonable person would recognize as normal and reasonable under the circumstances.” A.R.S. § 13-1401(3)(b). Moreover, the affirmative defense of lack of sexual motivation in former § 13-1407(E) was deleted.

Additionally, Petitioner argued that the statutory scheme impermissibly permitted the introduction of character evidence in contravention of Fed.R.Evid. 404(a)(1) and Ariz. R. Evid. 404(a) by “forc[ing] the defendant to place his character into evidence or be found guilty.” (Doc. 1 at 7.) This claim presents an issue of state evidentiary law that is not cognizable on habeas review. See Swarthout , 562 U.S. at 219 (“We have stated many times that federal habeas corpus relief does not lie for errors of state law.”) (quotation marks and citations omitted); Winzer v. Hall , 494 F.3d 1192, 1198 (9th Cir. 2007) (“State court rulings on the admissibility of evidence generally fall outside the scope of federal habeas relief, which is designed only to remedy violations of federal law.”). Moreover, Petitioner's reference to the Federal Rules of Evidence is inapposite because the Federal Rules of Evidence do not apply to state court proceedings. See Fed. R. Evid. 101(a) (“These rules apply to proceedings in United States courts.”).

Ferber states in relevant part:

Thus, it is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required. When a definable class of material, such as that covered by [the New York statute at issue], bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.

Ferber , 458 U.S. at 763-64.

The compete instructions given to the jury on this defense were:

It is an affirmative defense to the crime of Sexual Exploitation of a Minor that the possession was in the capacity of a lawyer for the active defense of a client or to properly advise a client regarding the images. The lawful possession ends when the case ends or the advice has been rendered. Once lawful possession ends, the images must be returned or destroyed.

(Doc. 25-13, Ex. OOOOO, at 158.)

This claim is also raised in Ground Six. See infra Section V(F).

Petitioner is entitled to a charging document that provides him with adequate notice and the opportunity to defend and protect himself against future prosecution for the same offense. “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation . . . .” See U.S. Const., amend. VI.

The Court is mindful, but need not address, Respondents' additional argument that any claimed constitutional violation regarding grand jury procedures was rendered harmless by Petitioner's subsequent conviction at trial. (Doc. 25 at 93 (citing United States v. Mechanik, 475 U.S. 66, 70 (1986) (“[T]he petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.”)).)

Petitioner also alleges the denial violated Brady v. Maryland , 373 U.S. 83 (1963) and Arizona Rule of Criminal Procedure 15.1(b). (Doc. 1 at 30.) The Brady claim is also raised in Ground Four (doc. 1 at 42) and is reviewed there.

Even if the Court had jurisdiction to review Ground Three, the argument is unexhausted and procedurally defaulted because Petitioner could have raised this claim on direct appeal. A litigant in the Arizona courts can assert a discovery violation or a denial of the right to self-representation on appeal. See State v. Dunbar, 465 P.3d 527, 534 (Ariz.Ct.App. 2020) (ruling on a denial of self-representation); State v. Calvillo, 2020 WL 5200955, at *1 (Ariz.Ct.App. 2020) (reviewing failure to disclose evidence in sexual abuse of minor case). Petitioner presents no authority for the right to effective “self- counsel.” See Faretta v. California, 422 U.S. 806, 834, n.46 (1975) (noting that “a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of “effective assistance of counsel.”).

Petitioner also reasserts the same Sixth Amendment claim brought in Ground Three, which the Court found unexhausted and procedurally defaulted without excuse.

The State advised that the computer evidence, client files, and “child pornography” were available for the full three hours of the visit, but Petitioner and his expert did not review it for the first hour of the meeting. (Doc. 25-7, Ex. YYY, at 39.) Petitioner advised that he did not have notice of the meeting and did not prepare his expert to review “client files.” ( Id . at 41.) Petitioner stated that he did not want his expert to review the client files, but instead wanted the expert to set up the files so Petitioner could review them. ( Id .) Petitioner did not object when the court set up additional time for him to conduct a review on December 3, 2010. ( Id . at 43.)

In the Petition, Petitioner states: “Is it that the mother lode can't be found on any of Curtis's computer hard drives because this batch of images were [sic] placed upon the BFD by Benallie, and that he is not the innocent one in this story?” (Doc. 12-1 at 43.) Petitioner adds that in “such a scenario, Det. Mattlin moved the BFD to a remote hard drive he acquired elsewhere now called the PHD.” ( Id .)

In his opening statement, Petitioner stated that “You will hear evidence that I babysat my granddaughter, [Jessica], in 1987, when she was almost two years old, and I also babysat for her a few times in 2008.” (Doc. 25-8, Ex. IIII, at 77.)

Petitioner asserts that when representing clients in child custody cases, specifically fathers, he would “typically” keep the client's computer containing pornography “until the last child reached the age of majority” because “fathers who kept pornography on the family computer could be accused of not protecting their children.” (Doc. 12-1 at 47.)

The State maintains that the First Amendment claim raised in Ground Five is distinct from the First Amendment claim raised in Ground One, asserting that in Ground One Petitioner attacks the constitutionality of A.R.S. § 13-3553(A)(2) and in Ground Five attacks the constitutionality of the final jury instructions. (Doc. 25 at 165 n.120.) However, as explained in Section V(A), Petitioner attacked not only the constitutionality of A.R.S. § 13-3553(A)(2) in Ground One, but also the constitutionality of the trial court's jury instructions regarding it and the attorney-client representation defense thereto on First Amendment grounds. As such, the Court's analysis of the First Amendment claim of Ground One sufficiently addresses the substance of the First Amendment claim of Ground Five. See supra Section V(A).

Additionally in Ground Six, Petitioner reiterates the claims of Ground Two (misconduct at the grand jury proceeding) and Ground Twelve (sufficiency of the evidence). (Doc. 1 at 47; Doc. 12-2 at 3.) Those claims are addressed above in Section V(B), and below in Section V(L), respectively.

In Eaton , the Supreme Court reversed an Oklahoma defendant's conviction for criminal contempt where the Oklahoma appellate court, in affirming the trial court, had held that there was “‘sufficient evidence upon which the trial court could find defendant was in direct contempt of court.'” 415 U.S. at 698. The Court reversed, explaining that “the question is not upon what evidence the trial judge could find petitioner guilty but upon what evidence the trial judge did find petitioner guilty.” Id. (emphasis added). It therefore held that the Oklahoma appellate court had “denied petitioner constitutional due process in sustaining the trial court by treating [his] conviction as a conviction upon a charge not made.” Id. at 699.

As previously noted in Section II(A), above, Count 13 was dismissed on motion by the State because the act depicted in the underlying image may not have fit within the statutory definition of molestation. ( See Doc. 25-12, Ex. HHHHH, at 119-20.)

The court of appeals noted that “[t]he type of sexual contact involved was omitted from the indictment and verdict form for Count 11.” (Doc. 26-3, Ex. XXXXXX, at 6 n.2.) As explained further herein, this potential defect does not entitle Petitioner to habeas relief.

This position is well established in American jurisprudence. In 1925, the Supreme Court made plain that the Fifth Amendment is not infringed in situations where a defendant's decision to testify may aid his defense against alleged crimes under a statute but also expose that defendant to self-incrimination of other potential crimes,

The point that the practical effect of the statute creating the presumption is to compel the accused person to be a witness against himself may be put aside with slight discussion. The statute compels nothing. It does no more than to make possession of the prohibited article prima facie evidence of guilt. It leaves the accused entirely free to testify or not as he chooses. If the accused happens to be the only repository of the facts necessary to negative the presumption arising from his possession, that is a misfortune which the statute under review does not create but which is inherent in the case.

Yee Hem v. United States , 268 U.S. 178, 185 (1925). ( See also Doc. 25 at 132 n.92 (Respondents response collecting cases).)

In Ground Ten, Petitioner does not always expressly name Det. Mattlin as the subject of the allegation. At times, “the State” is the subject of the allegation.

Claims arising under the Fourth Amendment or alleging errors of state law, e.g., whether the State complied with the disclosure requirements of Ariz. R. Crim. P. 15.1, are not cognizable in a habeas proceeding. Swarthout, 562 U.S. at 219; Stone v. Powell, 428 U.S. 465, 481-82 (1976); see also infra Section V(I)(6).

The prosecutor argued: “I'll also point out that we presented two sets of bank records, one that shows that the defendant purchased a ticket, or at least his credit card purchased a ticket on May 15th of 2009… and another for a ticket purchase that took place on May 23rd of 2009.) (Doc. 25-13, Ex. OOOOO, at 170.)

As discussed above in Section V(A), Petitioner did challenge the constitutionality of A.R.S. § 13-3553 on direct appeal, but only on First Amendment grounds. ( See Doc. 25-19, Ex. MMMMMM, at 60-65.) He did not challenge it on any Fourteenth Amendment grounds.

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