The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN EDWARD MAY, Nos. 17-15603
Petitioner-Appellee/ 17-15704
Cross-Appellant,
D.C. No.
v. 2:14-cv-00409-
NVW
DAVID SHINN, Director; MARK
BRNOVICH, Attorney General,
Respondents-Appellants/ ORDER
Cross-Appellees.
Filed June 10, 2022
Before: Sandra S. Ikuta and Michelle T. Friedland, Circuit
Judges, and Frederic Block, * District Judge.
Order;
Concurrence by Judge Block
*
The Honorable Frederic Block, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
2 MAY V. SHINN
SUMMARY **
Habeas Corpus / Mandates
Denying Stephen Edward May’s motion to recall a
mandate, the panel wrote (1) motions that assert a judgment
is void because of a jurisdictional defect generally must
show that the court lacked even an arguable basis for
jurisdiction, (2) May has not met that standard in arguing
that the statutory “in-custody” requirement was satisfied,
and (3) the additional details provided in the motion and
accompanying exhibits do not demonstrate this Court’s
holding on mootness lacked an arguable basis.
Constrained by his oath of office to concur in his
colleagues’ decision rejecting May’s last effort to escape
lifetime incarceration, District Judge Block wrote separately
to reinforce Judge Friedland’s conclusion that “this case, an
in particular May’s sentence, reflects poorly on our legal
system,” May v. Shinn, 954 F.3d 1194, 1209 (9th Cir. 2020),
cert. denied 141 S. Ct. 1740 (2021), and that justice compels
that May’s sentence be commuted by the State of Arizona.
COUNSEL
Robert A. Walsh (argued), Assistant Attorney General,
Criminal Appeals Section; Mark Brnovich, Attorney
General; Office of the Attorney General, Phoenix, Arizona;
for Respondents-Appellants/Cross-Appellees.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MAY V. SHINN 3
Erica T. Dubno (argued), Fahringer & Dubno Herald Price
Fahringer PLLC, New York, New York; Robert J.
McWhirter, Law Offices of Robert J. McWhirter, Phoenix,
Arizona; Michael D. Kimerer, Kimerer & Derrick P.C.,
Phoenix, Arizona; for Petitioner-Appellee/Cross-Appellant.
Mikel Patrick Steinfeld, Phoenix, Arizona, for Amicus
Curiae Arizona Attorneys for Criminal Justice.
J. Thomas Sullivan, Little Rock, Arkansas, for Amicus
Curiae National Association for Rational Sex Offense Laws.
ORDER
May’s motion to recall the mandate (Dkt. No. 135) is
DENIED. “[M]otions that assert a judgment is void because
of a jurisdictional defect generally” must show that “the
court that rendered judgment lacked even an ‘arguable basis’
for jurisdiction.” United Student Aid Funds, Inc. v.
Espinosa, 559 U.S. 260, 271 (2010) (citations omitted). May
has not met that standard in arguing that the statutory “in-
custody” requirement was unsatisfied. Maleng v. Cook, 490
U.S. 488, 490–91 (1989) (per curiam); Carafas v. LaVallee,
391 U.S. 234, 238 (1968). Nor do the additional details
provided in the motion and accompanying exhibits
demonstrate that this Court’s holding on mootness lacked an
arguable basis. Kernan v. Cuero, 138 S. Ct. 4, 7 (2017) (per
curiam).
4 MAY V. SHINN
BLOCK, Senior District Judge, concurring:
This is another failed attempt by the defendant Stephen
May to avoid spending the rest of his life in prison. Although
I am constrained by my oath of office to concur in my
colleagues’ decision rejecting May’s latest effort to escape
lifetime incarceration, I write separately to reinforce Judge
Friedland’s conclusion that “this case, and in particular
May’s sentence, reflects poorly on our legal system,” May v.
Shinn, 954 F.3d 1194, 1209 (9th Cir. 2020), cert. denied
141 S.Ct. 1740 (2021), and that justice compels that May’s
sentence be commuted by the State of Arizona.
I
As shown by the past decisions of this panel, this is a
bizarre case. May stands convicted by an Arizona jury of
five of eight counts of child molestation of three children
between the ages of six and eight. He was acquitted on two
counts with respect to a nine-year-old child. See May v.
Ryan, CIV 14-0409-PHX-NVW (MHB), 2015 WL
13188352, at *13 (D. Ariz. Sept. 15, 2015). 1
The convictions occurred after the trial judge had
declared a mistrial when the jury had announced that it could
not reach a verdict. Although the judge had discharged the
jury, the judge allowed the jury to recommence its
deliberations after the bailiff—as the lawyers were preparing
to leave the courtroom—had advised the judge that the jurors
wished to continue deliberating, and defense counsel
consented. May’s conviction was rendered following a
weekend break after several more hours of deliberations. At
1
For reasons unrelated to the merits, the final count was dismissed
at the behest of the victim’s parents. Id. at *14.
MAY V. SHINN 5
the age of 37, May was sentenced to 75 years of
incarceration without parole. Unless he lives to be 112, he
will die in jail.
May had served ten years of his term of imprisonment as
the case wended its way through the state and federal judicial
systems before the district court granted his habeas petition
and released him from incarceration. See May v. Ryan,
245 F. Supp. 3d 1145 (D. Ariz. 2017). In a lengthy opinion
Judge Wake ruled that May’s trial counsel rendered
ineffective assistance under Strickland v. Washington,
466 U.S. 668 (1984), because he did not object to the
constitutionality of the Arizona law placing the burden of
proving lack of intent on the defendant. May, 245 F. Supp.
3d at 1166.
On appeal, we unanimously disagreed, explaining:
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, which
provided the background for the “prevailing
professional practice at the time of trial,” we
cannot conclude that trial counsel’s failure to
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.”
6 MAY V. SHINN
May v. Ryan, 766 F. App’x 505, 507 (9th Cir. 2019) (internal
citations omitted). 2
Nevertheless, Judge Friedland and I affirmed the district
court’s grant of habeas on other grounds: We first noted that
“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.” Id. at 507. We concluded that, in light of
the 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.” Id at 508.
Consequently, we ruled that “[t]he decision not to object was
completely unsupportable on this record and, therefore,
under the circumstances, could not have been considered a
sound trial strategy.” Id. (citations and internal quotation
marks omitted). We also held that the prejudice prong of
Strickland was satisfied. 3
2
Although we could not agree with Judge Wake that trial counsel
was remiss in failing to object to the statute’s constitutionality, Judge
Wake’s opinion makes a compelling case that the statute is indeed
unconstitutional. Notably, the Supreme Court has yet to rule on the issue.
In May’s petition for certiorari, the issue of the statute’s constitutionality
was not presented. Three Questions Presented were advanced, each
dealing with the application of Strickland. Petition for Certiorari at 2,
May v. Shinn, 141 S.Ct. 1740 (2021) (No. 20-1080).
3
Judge Ikuta dissented. She believed that the majority’s decision
was based on “pure speculation” about “how a second trial would
unfold,” but that “pure speculation was insufficient to establish deficient
performance” and that “we should reject such uninformed
prognostications.” May, 766 Fed. App’x at 509.
MAY V. SHINN 7
However, Judge Friedland changed her vote in response
to the State’s petition for rehearing, which pointed out that
the panel had misunderstood an aspect of the case’s
procedural history. Writing for what was now a majority of
the panel, she reasoned that since the State’s case was so
weak, “it was reasonable [for trial counsel] to think that the
jury might acquit May if it continued deliberating.” May,
954 F.3d at 1204. Accordingly, trial counsel could not be
faulted for consenting to further deliberations. She explained
that the alleged sexual molestation charges were predicated
upon the brief touching of the children’s genitals by May on
the outside of either their clothing or bathing suits, and
nothing more. Id. at 1197. As she elaborated:
The fact that the jury was deadlocked meant
that at least one juror wanted to acquit May.
And both parties agree that the State’s
evidence against May was far from
overwhelming. All four children testified that
other people were nearby when May touched
their genital areas. Luis and Danielle testified
that May touched them when more than
twenty people, including other adults, were in
the vicinity—but none of those people
claimed to see anything. Luis was also unable
to identify May in court. Taylor and Danielle
testified that they were unable to remember
an incident in which May had touched them
that they had previously disclosed to police.
And Sheldon testified that he thought that
May’s touching was accidental until Taylor’s
mother told him otherwise. The State had not
offered any expert testimony to try to explain
away these discrepancies in the children’s
accounts. Based on these and other
8 MAY V. SHINN
weaknesses in the State’s case, it was
reasonable to think that the jury might acquit
May if it continued deliberating. Indeed, the
jury ultimately did acquit May on the counts
related to Sheldon.
Id. at 1204. I dissented, concluding that “[b]ecause I would
find that May’s counsel was objectively deficient in not
objecting to resumed jury deliberations, and because there
was a reasonable probability that an objection would have
been sustained, I would affirm the grant of habeas relief.”
May, 954 F.3d at 1221.
In a brief concurring opinion, Judge Ikuta reasoned:
It is our duty to impartially follow and apply
the law. Here, as required to “reflect our
enduring respect for the State’s interest in the
finality of convictions that have survived
direct review withing the state court system,”
we adhered to the limited scope of federal
habeas review. In doing so, we uphold the
fundamental principles of our legal system.
Id. at 1208 (internal citations omitted). In a separate
concurring opinion, Judge Friedland wrote “to express [her]
dismay at the outcome of this case:”
While I certainly recognize the seriousness of
child molestation, the evidence that May was
actually guilty of the five counts of
molestation he was convicted on was very
thin. May’s conviction on those counts was
based almost entirely on the testimony of the
children who were the alleged victims. Yet,
as described in the opinion, that testimony
MAY V. SHINN 9
had many holes. The potential that May was
wrongly convicted is especially concerning
because he was sentenced to seventy-five
years in prison—a term that all but ensures he
will be incarcerated for the rest of his life.
Given the significant constraints on the scope
of our review, we are not in a position to do
more than decide the narrow question
whether the proceedings in this case were so
egregiously unfair that they violated the
Constitution. But I agree with the dissent that
this case, and in particular May’s sentence,
reflects poorly on our legal system.
Id. at 1208–09 (emphasis added). After having been at
liberty for more than four years May returned to prison.
II
I have profound respect for my two judicial colleagues
who denied May’s habeas petition. Judge Ikuta certainly
cannot be faulted for her commitment “to follow and apply
the law.” Id. at 1208. But, as Judge Friedland poignantly
comments, we have reached a point in our judicial decision-
making that “reflects poorly on our legal system.” Id.
at 1209.
Judge Friedland’s clarion call about the current status of
our legal system triggered my thoughts about a period of
time over a half-century ago when the Supreme Court had
issued a spate of ground-breaking decisions that spoke well
of our judicial system. There was Brown v. Board of
Education in 1954, Mapp v. Ohio in 1961, Baker v. Carr in
1962, Gideon v. Wainright in 1963, Jackson v. Denno in
10 MAY V. SHINN
1964, and Miranda v. Arizona in 1966. And I thought about
the Clayton case.
In 1968 I was a young solo practitioner in Suffolk
County, New York, when the New York State Court of
Appeals assigned me to represent Robert Clayton. It was just
a few years after the Supreme Court had held in Jackson v.
Denno that those who had been convicted based on a
confession had the right to a hearing to determine if it was
voluntary.
Clayton had been indicted and convicted for murder as a
result of a fight he had with a fellow migrant farm worker.
Pursuant to People v. Huntley—the New York equivalent to
Jackson—the trial court held a hearing to determine whether
his confession was voluntary. People v. Clayton,
342 N.Y.S.2d 106, 108 (1973). I was assigned to handle this
appeal. Ultimately, Clayton’s conviction was ruled to be the
product of “a pattern of police dominance and coercion.”
Mancusi v. United States ex rel. Clayton, 454 F.2d 454, 456
(2d Cir. 1972).
Clayton had spent about 20 years in jail when I gave him
the good news: Rather than retry him, the Suffolk County
District Attorney had agreed to allow him to plead to
involuntary manslaughter. With credit for time served,
Clayton would be a free man.
To my surprise, he rejected the offer. He told me that he
had adjusted to a life in prison and wasn’t sure he could
adjust to a life out of prison as a convicted felon. I didn’t
know what to do, but the trial court, on its own motion,
dismissed the indictment in the interests of justice pursuant
to N.Y. Crim. Proc. Law § 210.40. See People v. Clayton,
350 N.Y.S.2d 495, 495 (Co. Ct. 1973). That statute re-
codified an obscure provision of the Code of Criminal
MAY V. SHINN 11
Procedure, dating back to 1881: “The court may, either of its
own motion, or upon the application of the district attorney,
and in furtherance of justice, order an action, after
indictment, to be dismissed.” People v. Campbell, 48 Misc.
2d 798, 799 (N.Y. Misc. 1966) (citing Sec. 671 of the Code
of Criminal Procedure); see also Practice Commentaries,
N.Y. Crim. Proc. Law § 210.40.
The government appealed, arguing before the
intermediate appellate court that never in the annals of the
law had a murder indictment been dismissed on the court’s
own motion, and in the absence of the District Attorney’s
consent, in the so-called interests of justice.
In a precedent-making decision, Judge Hopkins, writing
for a unanimous court, (1) affirmed the power of a court to
dismiss any indictment, upon its own initiative, in the
interests of justice; (b) established the substantive standards
to be henceforth employed in evaluating when principles of
justice required dismissal, and (c) asserted that a hearing
must be held to determine if dismissal was warranted. See
Clayton, 342 N.Y.S.2d at 109–111. The court specified
seven considerations that must be considered at such a
hearing: “(a) the nature of the crime; (b) the available
evidence of guilt; (c) the prior record of the defendant;
(d) the punishment already suffered by the defendant; (e) the
purpose and effect of further punishment; (f) any prejudice
resulting to the defendant by the passage of time, and (g) the
impact on the public interest of a dismissal of the
indictment.” Id. at 110. As the court wrote, the dismissal of
an indictment “depended only on principles of justice, not on
the legal or factual merits of the charge or even on the guilt
or innocence of the defendant.” Id. at 109.
On remand, I conducted the first “interest of justice”
hearing in the state’s history. The trial court granted the
12 MAY V. SHINN
motion, and Clayton’s murder indictment was dismissed.
Thus, was born the Clayton hearing, which exists to this
date.
Almost a half-century ago, I wrote an article for the New
York State Bar Journal recounting my Clayton journey. See
Frederic Block, The Clayton Hearing, N.Y. State B.J., Oct.
1973, 409. I was struck by the notion that because of New
York’s embrace of interest of justice hearings, “our legal
system, though predicated upon the fundamental concept of
due process, recognizes that the law must be possessed of an
even more pervasive spirit; one that transcends common,
codified or even constitutional law.” Id. at 411. I
commented that “it is, after all, the principle of ‘justice’
which is the hallmark of our jurisprudence, and that the letter
of the law is not the final word.” Id. I concluded by stating
that dismissal in the interests of justice may be appropriate—
even for a murder indictment, such as in Clayton—“for
reasons transcending the defendant’s guilt or innocence.” Id.
at 412.
Although Clayton hearings abound to this day in New
York State, there is no federal counterpart. The concept of
justice tempering the strictures of the law is anathema to the
federal justice system. Accordingly, as Judge Friedland
laments, “this case, and in particular May’s sentence,
reflects poorly on our legal system.”
III
There are two relevant injustices that have impacted
May’s lifetime sentence: (1) the strictures of habeas relief;
(2) the emotional overlay that contributes to irrational
MAY V. SHINN 13
sentencing when the nature of the crime entails sexual
misconduct involving children. 4
It is my hope that by calling attention to these injustices
this opinion will be of considerable value to those who will
undoubtedly one day be deciding whether May’s sentence
should be commuted. I believe it is the responsibility of
judges who have had the opportunity to identify injustices in
the sentencing of a defendant to play an active role in sharing
that information with those who will be passing final
judgment on the life of a human being. I believe, therefore,
that “there is no reason why judges could not play a more
regular role in clemency.” Jessica A. Roth, The “New”
District Court Activism in Criminal Justice Reform,
72 N.Y.U. Ann. Surv. Am. L. 187, 382 (2018). This is in
keeping with the moral responsibility of judges, who are
“uniquely positioned to bring perceived injustices to other’s
attention and must.” Jessica A. Roth, Jack Weinstein:
4
These are not the only injustices that reflect “poorly on our legal
system:” We are the world leader in “mass incarceration.” With a prison
population of more than 2.3 million, we incarcerate our populace at more
than twice the rate of Russia, four times that of China, and more than
fourteen times that of Japan. See James Kilgore, Understanding Mass
Incarceration: A People’s Guide to the Key Civil Rights Struggle of Our
Time 11 (The New Press 2015). Congress—the first branch of
government—has usurped much of the power of the judiciary by
imposing mandatory minimums in over 25% of the sentences that judges
must mete out, threatening to reduce the third branch of government to a
twig. Our Sentencing Guidelines are often irrational and of little value.
See, e.g., United States v, Parris, 573 F.Supp.2d 744 (2008) (White
Collar Crimes); United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010)
(Child Pornography). And we make it difficult for ex-felons to re-enter
society by imposing an inordinate number of restrictions as “collateral
consequences.” See United States v. Nesbeth, 188 F.Supp.3d 179
(E.D.N.Y. 2016).
14 MAY V. SHINN
Reimagining the Role of the District Court Judge, Federal
Sentencing Reporter, Vol. 33, No. 3 163, 165 (Feb. 2021).
A. The Strictures of Habeas Relief
My first exposure to the writ of habeas corpus as a
district judge was in 1995 during my first year on the bench.
Winston Moseley, who had been convicted of killing Kitty
Genovese in 1964, sought the writ decades after his
conviction. The murder had caught national attention since
it was one of the most infamous and brutal murders
committed during that century and “symbolized urban
apathy [since] 38 people heard her screams but did nothing.”
214 N.Y.L.J. 29 (July 25, 1995).
My initial reaction was that the inordinate passage of
time had to preclude my asserting jurisdiction over the case.
But to my surprise I learned that there was no statute of
limitations for habeas petitions. I therefore conducted a
hearing because Moseley’s trial lawyer had testified in state
court that he had previously represented Genovese and
consequently “didn’t try this case . . . objectively, calmly,
just as a lawyer defending a client [should].” Moseley v.
Scully, 908 F. Supp. 1120, 1125 (E.D.N.Y. 1995). This
disclosure and admission compelled me to conduct the
hearing to inquire into the nature, duration, breadth and
bounds of this prior representation for the purpose of
determining whether Genovese’s lawyer labored under a
constitutionally impermissible conflict of interest that
adversely affected his representation. I denied Moseley’s
habeas petition on the merits, but only after determining that
neither the passage of time nor other procedural grounds
barred Moseley’s claim.
A year after my decision, Congress enacted the
Antiterrorism and Effective Death Penalty Act (“AEDPA”).
MAY V. SHINN 15
It created a one-year statute of limitations and “departed
from earlier efforts to reform the federal postconviction
process by implementing strict new procedural and
substantive barriers to successful federal habeas corpus
relief.” David Goodwin, An Appealing Choice: An Analysis
of and a Proposal for Certificates Of Appealability in
“Procedural” Habeas Appeals, 68 N.Y.U. Ann. Surv. Am.
L. 791, 792 (2013). Under AEDPA a federal court “shall
not” grant habeas relief “unless” the state court’s decision
was (1) “contrary to” or an “unreasonable application of”
clearly established federal law, as determined by the
decisions of the Supreme Court, or (2) based on an
“unreasonable determination of the facts in light of the
evidence presented” in the original proceeding. 28 U.S.C.
§ 2254(d)(1); (2).
The Supreme Court’s recent decision in Brown v.
Davenport, No. 20-826, 2022 WL 1177498 (Apr. 21, 2022),
traces how AEDPA “represented a sea change in federal
habeas law.” Id. at *8. As Justice Gorsuch framed the issue:
After a state court determines that an error at
trial did not prejudice a criminal defendant,
may a federal court grant habeas relief based
solely on its independent assessment of the
error’s prejudicial effect under Brecht v.
Abrahamson, 507 U.S. 619 (1993)? Or must
a federal court also evaluate the state court’s
decision under the Antiterrorism and
Effective Death Penalty Act of 1996
(AEDPA)?
Id. at *3.
Justice Gorsuch traced the reach of habeas relief during
the country’s history. He explained how by 1953 federal
16 MAY V. SHINN
habeas practice had taken on a permissive scope. In that year
the Supreme Court held that a state-court judgment was
“‘not res judicata’ in federal habeas proceedings with
respect to a petitioner’s federal constitutional claims.” Id.
at *7 (citing Brown v. Allen, 344 U.S. 443, 458 (1953)).
Thus, “[f]ull-blown constitutional error correction became
the order of the day.” Id. Eventually, the Supreme Court
“responded to the post-Brown [v. Allen] habeas boom by
devising new rules aimed at separating the meritorious
needles from the growing haystack.” Id. at *8.
For example, in Chapman v. California, 386 U.S. 18
(1967), the Court had held that “when a defendant
demonstrates on direct appeal that a constitutional error
occurred at his trial, his conviction cannot stand unless the
government proves the error’s harmlessness ‘beyond a
reasonable doubt.’” Brown v. Davenport, 2022 WL
1177498, at *8 (quoting Chapman, 386 U.S. at 24). But in
Brecht v. Abrahamson, 507 U.S. 619 (1993), it “resolved that
this same standard was inappropriate for use in federal
habeas review of final state-court judgments.” Brown v.
Davenport, 2022 WL 1177498, at *8 (citing Brecht,
507 U.S. at 633–34). “Instead, the Court reasoned, a state
prisoner should not receive federal ‘habeas relief based on
trial error unless’ he can show the error had a ‘substantial
and injurious effect or influence’ on the verdict.” Id.
(quoting Brecht, 507 U.S. at 637). In so doing, “the Court
stressed that undoing a final state-court judgment is an
‘extraordinary remedy,’ reserved for only ‘extreme
malfunctions in the state criminal justice system’ and
different in kind from providing relief on direct appeal.” Id.
(quoting Brecht, 507 U.S. at 633–34).
Not satisfied with Brecht’s restrictions, Congress
doubled down by enacting its AEDPA “sea change,”
MAY V. SHINN 17
imposing new “demanding” obstacles in the path of habeas
petitions. Id. Consequently, the majority held in Brown v.
Davenport that in order to qualify for habeas relief, a
petitioner must satisfy both Brecht and AEDPA. It reasoned
that “where AEDPA asks whether every fairminded jurist
would agree that an error was prejudicial, Brecht asks only
whether a federal habeas court itself harbors grave doubt
about the petitioner’s verdict.” Brown v. Davenport, 2022
WL 1177498, at *9.
An empirical study conducted ten years after AEDPA
disclosed that it had effectively neutered habeas relief. As it
reported, compared to a 40% success rate prior to AEDPA,
by 2007 out of a sample of 2,384 cases that year, only 7 writs
were granted by the federal courts in non-capital cases. Z.
Payvand Ahdout, Direct Collateral Review, 121 Colum. L.
Rev. 159, 174 (2021). Thus, the practical effect of AEDPA
was “to halt the prior federal practice of employing habeas
review to bring new conditions of fairness to the steamroller
systems of justice found in too many states.” Jed S. Rakoff,
The Magna Carta Betrayed?, 94 N.C. L. Rev. 1423, 1429
(2016).
Now, with the Supreme Court’s decision in Brown v.
Davenport, superimposed on the difficulties in surmounting
the strictures imposed under Strickland when seeking relief
for ineffective counsel—as reflected by this case—habeas
relief today is virtually a dead letter. Brown v. Davenport,
therefore, realistically put the final nail in the habeas coffin. 5
See also Shinn v. Martinez Ramirez, No. 20-1009, slip op. at
5
Indeed, Arizona’s habeas regime includes many of the same
procedural and substantive roadblocks found in the federal system. See
Keith J. Hilzendeger, Arizona State Post-Conviction Relief, 7 Ariz.
Summit L. Rev. 585 (2014).
18 MAY V. SHINN
15–17 (U.S. May 23, 2022) (imposing further procedural
requirements on federal habeas ineffective assistance of
counsel claims).
B. Irrational Sentencing of Sexual Misconduct Crimes
Involving Children
Nothing provokes more emotionality than sex crimes
perpetrated on a child. The public widely regards child sex
offenders as the “worst of the worst” and “better off dead.”
Colleen M. Berryessa & Chaz Lively, When A Sex Offender
Wins the Lottery: Social and Legal Punitiveness Toward Sex
Offenders in an Instance of Perceived Injustice, 25 Psychol.
Pub. Pol’y & L. 181 (2019).
Congress has responded to this emotional outrage. For
example, it has created Sentencing Guidelines for child
pornographers that place all of them—be they mere
possessors or inveterate distributors—at “a typical total
offense level of 35.” United States v. Dorvee, 616 F.3d 174,
186 (2d Cir. 2010). As explained in Dorvee, “[a]n ordinary
first-time offender is therefore likely to qualify for a
sentence of at least 168 to 210 months.” Id.
I cite Dorvee because it is an extraordinary circuit-court
case that exemplifies how raw emotions can trigger irrational
sentences when children are the victims of sexual
misconduct. See also United States v. Henderson, 649 F.3d
955, 965–69 (9th Cir. 2011) (Berzon, J., concurring) (citing
Dorvee, 616 F.3d at 186–88). Foremost, are the irrational
Guidelines that Congress has created for convicted child
pornographers. Thus, as Dorvee points out: “[T]he
Guidelines actually punish some forms of direct sexual
contact with minors more leniently than possession or
distribution of child pornography.” Id. at 184.
MAY V. SHINN 19
The current status of the child pornography Guidelines
dates to Congress’ enactment of the PROTECT Act of 2003,
Pub. L. 108-21, 117 Stat. 650. It was the culmination of the
Sentencing Commission’s multiple amendments to these
Guidelines—at Congress’ direction—since their
introduction in 1987, each time calling for harsher penalties.
Dorvee, 616 F.3d at 184. And “it was the first instance since
the inception of the Guidelines where Congress directly
amended the Guidelines Manual.” Id.
But, as explained in Dorvee, these congressionally
mandated Guidelines were “fundamentally different from
most” and “unless applied with great care, c[ould] lead to
unreasonable sentences.” Id. The circuit court quoted from
the comments by a former United States Attorney for the
Eastern District of New York that the changes effected by
the PROTECT Act evinced a “blatant disregard for the
Commission” and were “the most significant effort to
marginalize the role of the Sentencing Commission in the
federal sentencing process since the Commission was
created by Congress.” Id. at 185 (internal quotation marks
omitted). As he explained, Congress:
(i) adopted sentencing reforms without
consulting the Commission, (ii) ignored the
statutorily-prescribed process for creating
guideline amendments, (iii) amended the
Guidelines directly through legislation,
(iv) required that sentencing data be
furnished directly to Congress rather than to
the Commission, (v) directed the
Commission to reduce the frequency of
downward departures regardless of the
Commission’s view of the necessity of such
a measure, and (vi) prohibited the
20 MAY V. SHINN
Commission from promulgating any new
downward departure guidelines for the next
two years.
Id. (citation omitted).
The upshot of all of this congressional frenzy was that
“sentencing enhancements cobbled together through this
process routinely result[ed] in Guidelines projections near or
exceeding the statutory maximums, even in run-of-the-mill
cases.” Id. at 186. Thus, Dorvee’s sentencing range was
calculated by the district court to be 262 to 327 months for
having sexually explicit conversations with an undercover
agent posing as a 14-year-old-boy, sending sexually explicit
videos and images via the internet to the agent, and meeting
another undercover agent, also posing as a 14-year-old boy,
with a camera that he intended to use to photograph the “[the
boy’s] feet and penis.” Id. at 176.
Dorvee illustrates the irrationality of the child
pornography Guidelines with two examples: (1) “An adult
who intentionally seeks out and contacts a twelve-year-old
on the internet, convinces the child to meet and to cross state
lines for the meeting, and then engages in repeated sex with
the child, would qualify for a total offense level of 34,
resulting in a Guidelines range of 151 to 188, with a criminal
history category of 1.” Id. at 187. Dorvee, meanwhile, had
the same criminal history category and had “never had any
contact with an actual minor,” yet “was sentenced by the
district court to 233 months of incarceration,” based,
ironically, in part on the district judge’s fear “that Dorvee
would sexually assault a child in the future.” Id. (2) A
defendant convicted of possessing on his computer two
nonviolent videos of seventeen-year-olds engaging in
consensual conduct, with no criminal history, would result
MAY V. SHINN 21
in a Guidelines range of 46 to 57 months. “This,” the court
noted, “is the same Guidelines sentence as that for an
individual with prior criminal convictions placing him in a
criminal history category of II, who has been convicted of an
aggravated assault with a firearm that resulted in bodily
injury.” Id.
Thus, although the circuit court recognized that
“enforcing federal prohibitions on child pornography is of
the utmost importance,” it held that “it would be manifestly
unjust to let Dorvee’s sentence stand.” Id. at 188. Therefore,
it remanded the case for resentencing, cautioning the district
court that it was “dealing with an eccentric Guideline of
highly unusual provenance which, unless carefully applied,
can easily generate unreasonable results.” Id.
The public’s hatred of child pornographers is part of its
emotional reaction to all sexual crimes involving children.
Indeed, “[i]ndividuals living with pedophilic disorder are the
most universally despised group in modern society.” Margo
Kaplan, Taking Pedophilia Seriously 72 Wash. & Lee L.
Rev. 75, 128 (2015). Judges are not exempt from such
emotional reactions. If anyone sexually assaulted one of my
two adorable little grandchildren, I would probably be
indicted for murder. But I understand as a rational jurist that
I cannot let my judgments be based on my emotions.
Realistically, the public’s fear of pedophiles running
loose and abusing children should be tempered by the
knowledge that we judges impose enormous constraints on
their freedom even when they are not incarcerated. The
PROTECT Act authorizes life supervision by the Probation
Department and, in some cases, requires it. The Adam
Walsh Act requires those convicted of specified sex crimes
to register as sex offenders and sets up a national database to
coordinate state sex-offender registries.
22 MAY V. SHINN
Moreover, stringent special conditions are routinely
imposed during supervised release. My list is fairly typical
and includes mental health treatment, limitations on contact
with children, limitations on computer access, and
submission to random searches and other monitoring to
ensure compliance.
Consequently, the data suggest that the recidivist rates
for child sex offenders are low. For example, compared to a
67.8% re-offense rate for state prisoners in general over a
three-year period ending in 2018, there was only a 3.5% re-
offense rate for child sex offenders during that same time
period. Maureen F. Larson & Robert F. Schopp, Sexual
Predator Laws: Clarifying the Relationship Between Mental
Health Laws and Due Process Protections, 97 Neb. L. Rev.
1167, 1169 (2019).
I have discussed the Second Circuit’s decision in Dorvee
at length because it is a clear exposition of how Congress has
responded to the public’s emotional pedophilia hysteria by
creating irrational child pornography Guidelines—which
still exist. But this hysteria has obviously impacted the harsh
sentences that the states have created for crimes entailing the
sexual molestation of children, such as reflected in this case.
Incredibly, May faces the rest of his life in prison for briefly
fondling three children over their outer garments in broad
public. Moreover, Judge Friedland correctly explains that
the evidence against May “was very thin,” and “had many
holes.” Thus, as she acknowledges, there was “[t]he
potential that May was wrongly convicted.” May v. Shinn,
954 F.3d 1194, 1208 (9th Cir. 2020).
But such are the harsh realities of life where thousands
of innocent people are incarcerated and many are even on
death row. Jay Robert Nash, “I am Innocent!”: A
Comprehensive Encyclopedic History of the World’s
MAY V. SHINN 23
Wrongly Convicted Persons (2008); Daniel H. Benson,
Executing the Innocent, 3 Ala. C.R. & C.L.L. Rev. 1 (2013);
see also Frederic Block, Prosecutors aren’t above the law:
Gov. Cuomo must sign legislation creating an oversight
commission, The Daily News (Jul. 30, 2018). 6 Nonetheless,
I doubt that even the most hardened believers that child
molesters should be severely punished would objectively
conclude that sentencing May to life was rational, and would
agree with me and Judge Friedland that it “reflects poorly on
our legal system.”
IV
May has now apparently run the gamut of any judicial
recourse that might have been available. The only chance he
has of not being incarcerated for the rest of his life would
seem to be executive commutation. The Arizona Board of
Executive Clemency (“Clemency Board”), comprising five
members appointed by the Governor, may recommend the
commutation of a sentence to the Governor “after finding by
clear and convincing evidence that the sentence imposed is
clearly excessive given the nature of the offense and the
record of the offender and that there is a substantial
probability that when released the offender will conform the
offender’s conduct to the requirements of the law.” Ariz.
Rev. Stat. § 31-402.
Statistics provided by the Clemency Board show that
between 2004 and 2016, it heard an annual average of 594.9
clemency hearings and recommended a yearly average of
6
Available at: https://www.nydailynews.com/opinion/ny-oped-
prosecutors-arent-above-the-law-20180726-story.html.
24 MAY V. SHINN
only 48.2 prisoners to the Governor who, in turn, granted an
average of only 6.7 per year.
Given the nature of his offense, it is unlikely that the
Clemency Board would recommend that the Governor
commute May’s sentence. But he would seem to be a perfect
candidate for commutation. He had already served a decade
of his sentence before being released by Judge Wake, and
the record before me reflects that he was a law-abiding
citizen during his more than four years of freedom before
being returned to prison: He never attempted to abscond
even though he knew that if Judge Wake’s decision were
reversed he would be spending the rest of his life in jail, and
he faithfully complied with his terms of supervised release.
Hopefully the Clemency Board will recognize the
unusual nature of this case and recommend that the
Governor commute May’s sentence. And hopefully the
Governor will agree that to do so in this particular case
would be the humane thing to do in the interests of justice.