                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 26 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEPHEN EDWARD MAY,                             No.    17-15603

                Petitioner-Appellee,            D.C. No. 2:14-cv-00409-NVW

 v.
                                                MEMORANDUM*
CHARLES L. RYAN; MARK BRNOVICH,
Attorney General,

                Respondents-Appellants.


STEPHEN EDWARD MAY,                             No.    17-15704

                Petitioner-Appellant,           D.C. No. 2:14-cv-00409-NVW

 v.

CHARLES L. RYAN; MARK BRNOVICH,
Attorney General,

                Respondents-Appellees.

                   Appeal from the United States District Court
                            for the District of Arizona
                     Neil V. Wake, District Judge, Presiding

                       Argued and Submitted March 7, 2019
                                Phoenix, Arizona


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: IKUTA and FRIEDLAND, Circuit Judges, and BLOCK,** District Judge.

      The government appeals the district court’s grant of habeas corpus.

Familiarity with the facts and procedural history is presumed.

      1. As the State properly conceded at oral argument, we review de novo

under Strickland v. Washington, 466 U.S. 668 (1984), whether counsel’s

ineffectiveness constitutes cause and prejudice to excuse procedural default of a

claim, even where the state court considered the same allegations of deficient

performance. See Visciotti v. Martel, 862 F.3d 749, 769 (9th Cir. 2016). But, even

reviewing de novo, we reach the same conclusion as did the state court with

respect to May’s claim that trial counsel was ineffective for failing to object to the

constitutionality of the child molestation statute. Given the long-standing status of

the law in Arizona that the State is not required to prove sexual intent to

successfully prosecute a defendant for child molestation, see State v. Sanderson,

898 P.2d 483, 491 (Ariz. Ct. App. 1995), which provided the background for the

“prevailing professional practice at the time of the trial,” Bobby v. Van Hook, 558

U.S. 4, 8 (2009) (per curiam),1 we cannot conclude that trial counsel’s failure to



      **
             The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
      1
         Two Arizona decisions issued after May’s trial confirmed that Arizona
courts approved of the approach taken by the statutory scheme under which May
was prosecuted, which required the defendant to prove any affirmative defense by
a preponderance of the evidence, including lack of sexual intent. See State v.

                                           2
object to the constitutionality of the statute placing the burden of proving lack of

intent on the defendant fell “below an objective standard of reasonableness,”

Strickland, 466 U.S. at 688. The district court erred in holding otherwise. Because

we do not reach the constitutionality of the Arizona child molestation statute, we

vacate the district court’s judgment in that respect. See C.F. ex rel. Farnan v.

Capistrano Unified Sch. Dist., 654 F.3d 975, 988-89 (9th Cir. 2011); see also

Camreta v. Greene, 563 U.S. 692, 713-14 (2011).

      2. To evaluate May’s claim that trial counsel was ineffective for failing to

object to reconstituting the jury after a mistrial was declared, the Antiterrorism and

Effective Death Penalty Act instructs us to “look to the last reasoned state-court

decision” analyzing that claim. Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir.

2003). We will accord deference to that state court decision unless it “(1) was

contrary to or involved an unreasonable application of clearly established federal

law, or (2) was based on an unreasonable determination of the facts.” Davis v.

Ayala, 135 S. Ct. 2187, 2198 (2015). But, where the state court has not ruled on

the merits of the claim, we review the claim de novo. See Stanley v. Cullen, 633

F.3d 852, 859-60 (9th Cir. 2011). In the ineffective assistance of counsel context,

if the state court resolved the claim on one prong of Strickland without reaching



Holle, 379 P.3d 197, 202 (Ariz. 2016); State v. Simpson, 173 P.3d 1027, 1030
(Ariz. Ct. App. 2007).

                                          3
the other, we assess the merits of the unaddressed prong de novo. See Weeden v.

Johnson, 854 F.3d 1063, 1071 (9th Cir. 2017) (discussing Rompilla v. Beard, 545

U.S. 374, 390 (2005), and Porter v. McCollum, 558 U.S. 30, 39 (2009) (per

curiam)).

      The “last reasoned state-court decision” on this claim comes from the

Arizona Court of Appeals on postconviction review. See State v. May, No. 2 CA–

CR 2012–0257, 2012 WL 3877855, at *4 (Ariz. Ct. App. Sept. 7, 2012). Because

the Court of Appeals “assum[ed], without deciding, that counsel’s performance

was deficient,” id., we review de novo whether May’s counsel was objectively

deficient for failing to object to the continued deliberations.

      Given the trial record of this particular case, counsel’s failure to object to

permitting the jury to resume its deliberations after the trial judge declared a

mistrial and discharged the jury constituted objectively deficient performance. It

was not “sound trial strategy,” see Strickland, 466 U.S. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)), for May’s lawyer not even to attempt to

preserve the mistrial based on a hung jury, because a mistrial here would have been

a clearly advantageous result for May. The State’s case turned entirely on the

jury’s believing the testimony of several child victims who all had struggled to

provide details of the alleged molestation on the stand, including failing to

remember whether some of the incidents even took place. The transcripts


                                           4
memorializing the witnesses’ failure to remember during the first trial would have

been available to May in any second trial. May’s counsel also had good reason to

believe that, if the case had to be reset for a new trial, the victims might decide not

to testify again. One of the counts had already been dismissed prior to the first trial

because the victim’s parents preferred that the victim receive counseling rather

than testify, and the father of one of the other victims made statements at the pre-

trial motions conference reflecting frustration with the length of proceedings and

thereby suggesting a possibility that more victims might refuse to participate in a

second trial. There was therefore a reasonable chance that, if the mistrial had

remained in place, the State would not have pursued a second trial at all, or that the

State would have pursued fewer charges if it did re-try May.

      When pressed at argument about how May would have been worse off in a

second trial, the State could only posit that May’s counsel did not want the State to

have an opportunity to prepare for a second trial with a copy of May’s testimony

from the first trial at hand. But May had vigorously proclaimed his innocence at

trial, so it is unclear what benefit the State could have derived from having a copy

of that testimony. The State contended at oral argument that May’s demonstrably

false statements that he did not know one of the victims or even “half a dozen

children” were particularly damaging to his case and would have been used against

him in a second trial. But those statements were made in a pre-trial police


                                           5
interview and had already been admitted in the first trial—they would not be more

damaging in some future proceeding, so the way they were introduced and

responded to in the first trial did not make a second trial riskier for May.2

      In light of these particular circumstances, when the trial judge asked if either

party objected to the jury resuming deliberations after the court had already

declared a mistrial and discharged the jury, competent counsel would have

objected. The decision not to object was “completely unsupportable” on this

record and therefore, “under the circumstances, could not have been considered a

‘sound trial strategy.’” Reynoso v. Giurbino, 462 F.3d 1099, 1114 (9th Cir. 2006)

(quoting Strickland, 466 U.S. at 689).

      3. We also review de novo the prejudice prong of May’s claim that trial

counsel was ineffective for failing to object to reconstituting the jury after a


      2
          Despite these facts, the dissent agrees with the State that the prosecution’s
possession of the transcript would have disadvantaged May in a second trial
because “the prosecutor would be able to refine his case and improve the chances
of obtaining a conviction if he got a second bite at the apple.” That may be true in
some cases, but there is no evidence it is true on this record. We further note that
the only expert to opine on May’s counsel’s decision concluded that failing to
pursue the mistrial fell far short of reasonable professional judgment. The expert
testified in the postconviction evidentiary hearing that, in his view, taking the
mistrial would be the best defense strategy in all cases, but was especially so in this
one because of a trial record that only advantaged May. Consequently, we do not
believe that May’s counsel’s refusal to object to the resumption of deliberations
was a “reasonable on-the-spot calculation,” even under the strong deference of
Strickland. The dissent accuses us of improperly engaging in hindsight, but every
fact we have pointed to was available to May’s counsel at the time the trial judge
asked whether either side objected to the jury resuming deliberations.

                                           6
mistrial was declared, because the Arizona Court of Appeals’ explanation of why

there was no reasonable probability that an objection would have resulted in a

different outcome was either contrary to or an unreasonable application of

Strickland. In addressing whether May was prejudiced by his counsel’s failure to

object to the resumed deliberations, the Court of Appeals concluded that “May

[could not] show prejudice because [the court] rejected the underlying claim of

error on appeal.” State v. May, 2012 WL 3877855, at *4. On direct review,

however, the Court of Appeals had analyzed whether the jury was improperly

reconstituted solely for fundamental error, State v. May, No. 1 CA-CR 07-0144,

2008 WL 2917111, at *2-3 (Ariz. Ct. App. July 24, 2008), which asks the court to

analyze whether (1) there was error, (2) the error was fundamental, and (3) the

error prejudiced the defendant. State v. Henderson, 115 P.3d 601, 608 (Ariz.

2005). Arizona courts define “fundamental error” as “error going to the foundation

of the case, error that takes from the defendant a right essential to his defense, and

error of such magnitude that the defendant could not possibly have received a fair

trial.” Id. at 607 (quoting State v. Hunter, 688 P.2d 980, 982 (1984)). Asking

whether the trial judge’s failure to sua sponte maintain the mistrial amounted to

fundamental error is different than asking whether the trial judge would have

sustained an objection to the jury resuming deliberations if one had been made—

the judge might have granted such an objection to prevent even the possibility of


                                           7
juror contamination, or to avoid a ruling that would have been erroneous but that

would not rise to the level of fundamental error.

      The dissent reads the Court of Appeals’ opinion differently, interpreting the

decision as holding that there was no prejudice from the lack of objection because

there was no error whatsoever in reconvening the jury, let alone fundamental error.

Even under a charitable reading, the Court of Appeals did not hold that there was

no error in how the jury reconvened here. As the dissent notes, the court instead

held there was no per se rule that the jury could not be reconvened after discharge,

so there was no “structural error requiring reversal.” The use of the phrase

“structural error requiring reversal” connotes that the court was concluding any

error was not fundamental, not that there was no error in the first place.3 The Court

of Appeals’ complete reliance on its prior analysis was therefore misplaced and

either did not apply Strickland whatsoever or applied it in an unreasonable manner.

      Reviewing prejudice de novo, therefore, we conclude that the prejudice


      3
          The dissent fails to properly account for the fact that the Court of Appeals
based its conclusion on direct appeal that there was no fundamental error in part on
the premise that there was no evidence in the record that jurors had “reach[ed] for
their cell phones to call friends or family immediately upon discharge.” May, 2008
WL 2917111, at *3. On postconviction review, however, May had introduced this
exact evidence, with one juror averring that “every one of” the jurors went on their
phones after returning to the jury room. The Court of Appeals’ opinion on direct
review in no way suggests that this addition to the record evidence before it would
have been meaningless to the court’s analysis, particularly if it had been assessing
whether there was a reasonable probability that an objection would have been
sustained rather than whether fundamental (or structural) error occurred.

                                          8
prong of Strickland is satisfied here. Given that the trial judge had declared a

mistrial, had discharged the jury, had set a new trial date, and that the trial was of

relatively short duration, there was “a reasonable probability” that had trial counsel

objected to permitting the jury to continue its deliberations, the trial judge would

have sustained the objection and maintained the mistrial. Strickland, 466 U.S. at

694; see also United States v. Schaflander, 743 F.2d 714, 719 (9th Cir. 1984)

(assessing prejudice based on “[w]hether the trial court would have sustained the

objection”).

      4. Accordingly, because we can grant relief on alternative grounds, see

Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc), the judgment of

the district court is AFFIRMED. We need not reach May’s other arguments for

affirmance.4




      4
          We deny May’s motion to strike the State’s notices of authorities.

                                           9
                                                                   FILED
                                                                    MAR 26 2019
May v. Ryan, No. 17-15603, 17-15704                             MOLLY C. DWYER, CLERK
IKUTA, Circuit Judge, dissenting:                                 U.S. COURT OF APPEALS



       The majority makes two crucial errors in analyzing May’s claim that trial

counsel was ineffective for failing to object before allowing the jurors to resume

deliberations after a mistrial.

       First, the majority errs by reviewing this claim de novo. AEDPA deference

is required because the Arizona Court of Appeals adjudicated this claim on the

merits in its September 2012 decision and reasonably applied Strickland v.

Washington, 466 U.S. 668 (1984), in holding that May’s ineffective assistance

claim failed. See 28 U.S.C. § 2254(d).

       The majority holds otherwise by misreading the court’s earlier July 2008

decision on direct appeal, on which the court’s 2012 decision relies. In its 2008

decision, the court rejected May’s argument that the trial court had erred in

allowing jury deliberations to continue after a mistrial. See State v. May, No. 1

CA-CR 07-0144, 2008 WL 2917111, at *2–3 (Ariz. Ct. App. July 24, 2008).

Because May had not raised this objection at trial, the court considered whether an

“error occurred, the error was fundamental, and [May] was prejudiced thereby.”

Id. at *2. After reviewing its prior cases—principally, State v. Crumley, 128 Ariz.

302 (1981) (in banc)—the court held that there was no error requiring reversal

because there was no per se rule that “any verdict rendered after a jury once has
been discharged is null and void.” Id. at *3. It also held that May had failed to

show prejudice because the jurors had not been sent back into the community

before reconvening. See id. And, “[i]n any event,” even if the jurors had

interacted with the public in the meantime, the Court knew “that [the jurors] did

not have the extended opportunity for contact with the public that occurred in

Crumley.” Id.

      In post-conviction filings, May subsequently raised the related claim that his

attorney was ineffective for failing to object to continuing jury deliberations after

mistrial. In September 2012, the Arizona Court of Appeals likewise rejected this

claim, stating that even if counsel’s performance was deficient, “May cannot show

prejudice because we rejected the underlying claim of error on appeal,” and

“[i]nability to show prejudice is fatal to a claim of ineffective assistance of

counsel.” State v. May, No. 2 CA-CR 2012-0257-PR, 2012 WL 3877855, at *4

(Ariz. Ct. App. Sept. 7, 2012). Reading this ruling under “§ 2254(d)’s highly

deferential standard for evaluating state-court rulings which demands that

state-court decisions be given the benefit of the doubt,” Woodford v. Visciotti, 537

U.S. 19, 24 (2002) (internal citations and quotation marks omitted), we are

compelled to conclude that the Arizona Court of Appeals rejected May’s claim

because the trial court did not err in allowing continuing jury deliberations, and

                                            2
therefore even if May’s attorney had objected to continuing jury deliberations, it

was not reasonably probable that the outcome would have been different. This

analysis is not an unreasonable application of Strickland’s prejudice prong, and

therefore we must defer to the state court’s decision. See id. at 24–25. The

majority’s decision to the contrary fails to give the state court’s decision the

deference which is due.1

      Second, even if we reviewed the deficiency prong de novo, the majority errs

in holding that May’s counsel was deficient. Under Strickland, “[j]udicial scrutiny

of counsel’s performance must be highly deferential.” 466 U.S. at 689. We are

precluded from “second-guess[ing] counsel’s assistance,” and “must indulge a

strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689. “A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.” Id. In other words,



      1
        The majority fails to recognize that even if the jurors reached for their cell
phones after they were discharged (as a single juror testified), Maj. Op. at 9 n.3, the
Court of Appeals determined that the jurors “did not have the extended opportunity
for contact with the public that occurred in Crumley,” May, 2008 WL 2917111, at
*3; therefore, the court could reasonably conclude that the trial court’s resumption
of deliberations was not erroneous as a matter of state law.
                                           3
“defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Id. (internal quotation

marks omitted).

      Here, May’s lawyer explained that his decision not to object was a tactical

one. He was motivated by a reasonable concern that if the case were retried, the

prosecution would have “a complete transcript of [May’s] testimony from the

mistried case.” Further, May’s counsel could have reasonably thought that the jury

would return acquittals, given that the jury had previously deadlocked and received

an impasse instruction. “Reconstruct[ing] the circumstances of counsel’s

challenged conduct” and “evaluat[ing] the conduct from counsel’s perspective at

the time,” Strickland, 466 U.S. at 689, May’s counsel made a reasonable on-the-

spot calculation that it would better serve his client to go forward with the current

jury. There is no basis for concluding that this decision violated prevailing

professional norms; a reasonable attorney could conclude that a jury as divided as

this one might acquit his client while, on the other hand, the prosecutor would be

able to refine his case and improve the chances of obtaining a conviction if he got a

second bite at the apple. Exercising the strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance, we must affirm

the Arizona Court of Appeals’s determination that there was no deficiency here.

                                           4
      The majority’s decision to the contrary makes all the errors Strickland

warned us against. Relying on “the distorting effects of hindsight,” id. at 689, the

majority speculates that “mistrial here would have been a clearly advantageous

result for May.” Indulging in armchair quarterbacking, the majority surveys the

nature of the State’s case, speculates that the victims might have dropped out if

there was a second trial, and supposes that should victims drop out, the State would

become discouraged and choose not to try May again. In response to May’s

counsel’s reasonable assessment that the prosecutor would have an advantage if

offered a mulligan, the majority presents as legal analysis a series of detailed

conjectures and predictions about how a second trial would unfold.2 But pure

speculation is insufficient to establish deficient performance, and we should reject

such uninformed prognostications. See Gonzalez v. Knowles, 515 F.3d 1006,

1014–16 (9th Cir. 2008); Bragg v. Galaza, 242 F.3d 1082, 1088–89 (9th Cir.

2001), as amended on denial of reh’g, 253 F.3d 1150 (9th Cir. 2001).

      Because AEDPA requires us to defer to the decision of the Arizona Court of

Appeals, I would reject May’s claim of ineffective assistance of counsel for failing



      2
        The majority strangely defers to the post-hoc judgment of defense
counsel’s expert, Maj. Op at 6 n.2, instead of following the Supreme Court’s
direction that “substantial deference must be accorded to counsel’s judgment.”
Premo v. Moore, 562 U.S. 115, 126 (2011) (emphasis added).
                                           5
to object to the resumption of jury deliberations. The majority’s conclusion is

contrary to AEDPA and binding Supreme Court precedent. Therefore, I dissent.




                                          6
