Fahring #308968 v. Thornell et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Paul Fahring,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-25-03810-PHX-JAT (DMF)
ORDER
I. SUMMARY
In October 2025, Petitioner Paul Fahring (“Petitioner” and/or “Farhing”) filed a
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody
(Non-Death Penalty) (“Petition”) (Doc. 1). This matter is on referral to the undersigned
for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2
of the Local Rules of Civil Procedure (Doc. 7 at 4).
This matter is presently before the Court on the “Motion for an order from the court
requiring the Respondents to correct the record and furnish the missing materials in their
possession pertinent to this case, a Failure to comply with Rule 5(c)” (or “Motion”) (Doc.
13) filed by Petitioner. Respondents filed a response to the Motion (“Response”) (Doc.
14). Thereafter, Petitioner filed a reply in support of the Motion (“Reply”) (Doc. 15). This
matter is also before the Court on the Court’s review of the Petition and associated filings,
including exhibits thereto (Docs. 1, 1-1, 1-2, 1-3, 1-4, 1-5, 10, 10-1, 10-2, 16).
Upon review of the briefing on Petitioner’s Motion and associated exhibits (Docs.
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13, 13-1, 14, 15), the briefing on Petitioner’s Petition and associated exhibits (Docs. 1, 1-
1, 1-2, 1-3, 1-4, 1-5, 10, 10-1, 10-2, 16), the record in this matter, and applicable law, the
Court will deny Petitioner’s “Motion for an order from the court requiring the Respondents
to correct the record and furnish the missing materials in their possession pertinent to this
case, a Failure to comply with Rule 5(c)” (Doc. 13).
Nevertheless, the Court will require Respondents to file a supplemental answer
addressing (1) whether Petitioner waived a Ground Two constitutional double jeopardy
claim in light of Class v. United States, 583 U.S. 174, 178-85 (2018), United States v.
Broce, 488 U.S. 563, 574-76 (1989), Blackledge v. Perry, 417 U.S. 21, 30-31 (1974), and
Menna v. New York, 423 U.S. 61, 62 n.2 (1975); and (2) regarding the merits of Petitioner’s
Ground Two constitutional double jeopardy claim.
II. PROCEDURAL POSTURE
Petitioner initiated these Section 2254 habeas proceedings in October 2025
regarding his convictions and sentences in Pinal County Superior Court case number
CR201402338 (Doc. 1). The Court’s Screening and Service Order regarding the Petition
recounts:
In his Petition, Petitioner names Ryan Thornell as Respondent and the
Arizona Attorney General as an Additional Respondent. Petitioner raises
two grounds for relief.
In Ground One, Petitioner claims his Fifth, Sixth, and Fourteenth
Amendment rights were violated because his conviction and sentence are
illegal, there is no factual basis to support his convictions and sentence, and
he is actually innocent. In Ground Two, he asserts his Fifth, Sixth, and
Fourteenth Amendment rights were violated because his conviction and
sentence are illegally multiplicitous, he is actually innocent, and his
conviction violates the prohibition against double jeopardy.
Petitioner contends he presented these issues to the Arizona Court of Appeals
and Arizona Supreme Court. The Court will require Respondents to answer
the Petition. 28 U.S.C. § 2254(a).
(Doc. 7 at 1-2).
Petitioner submitted numerous attachments with his Petition (see Doc. 1 at 12-37,
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38; Doc. 1-1 at 2-3): a memorandum in support of his Petition (Doc. 1 at 12-37); a motion
requesting an evidentiary hearing (Id. at 38); the September 30, 2014, notice of supervening
indictment notifying Petitioner that he had been indicted on ten counts of sexual
exploitation of a minor (Doc. 1-1 at 4-6); the signed plea agreement under which Petitioner
agreed to plead guilty to one count of sexual exploitation of a minor and two counts of
attempted sexual exploitation of a minor (Id. at 7-10); the transcript from Petitioner’s
sentencing proceedings in the Pinal County Superior Court (Id. at 11-19); the Pinal County
Superior Court’s order extending Petitioner’s time to file a Rule 32 petition to December
18, 2023 (Id. at 20-21); Petitioner’s pro per post-conviction relief (“PCR”) petition filed in
the Pinal County Superior Court (Id. at 22-44); the state’s response to Petitioner’s PCR
petition (Id. at 45-50; Doc. 1-2 at 1-5); Petitioner’s reply in support of his PCR petition
(Doc. 1-2 at 6-18); Petitioner’s June 1, 2024, “Motion for Emergency Injunction” filed
with the Arizona Supreme Court alleging that the state was withholding documents from
Petitioner and asking the supreme court to order state officials to send various documents
to Petitioner (Id. at 19-27); the Pinal County Superior Court’s order denying Petitioner’s
PCR petition (Id. at 28-29); Petitioner’s amended petition for review filed with the Arizona
Court of Appeals on July 15, 2024 (Id. at 30-45); the Arizona Supreme Court’s order
directing the Pinal County Clerk of Court to file a certificate of service affirming that
pertinent documents were sent to Petitioner and denying as moot Petitioner’s “Motion for
Emergency Injunction” (Id. at 46-49); Petitioner’s “Request for Findings of Fact and
Conclusions of Law” asking the Pinal County Superior Court to explain its decision
denying Petitioner’s PCR petition (Id. at 50-52); the Pinal County Superior Court’s order
granting Petitioner an extension of time to file a petition for review with the Arizona Court
of Appeals and denying Petitioner’s request for clarification (Doc. 1-3 at 1-2); the state’s
response to Petitioner’s petition for review (Id. at 3-21); Petitioner’s reply in support of his
petition for review (Id. at 22-35); the Arizona Court of Appeals’ December 4, 2024,
memorandum decision granting review but denying relief on Petitioner’s petition for
review (Id. at 36-39); Petitioner’s “Request for Findings of Fact and Conclusions of Law”
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asking the Arizona Court of Appeals to explain its decision denying relief on Petitioner’s
petition for review (Id. at 40-41); the Arizona Court of Appeals’ order denying Petitioner’s
“Request for Findings of Fact and Conclusions of Law” (Id. at 42-43); Petitioner’s motion
for reconsideration asking the Arizona Court of Appeals to reconsider its December 4,
2024, memorandum decision granting review but denying relief (Id. at 44-50; Doc. 1-4 at
1-11); the Arizona Court of Appeals’ order denying Petitioner’s motion for reconsideration
(Doc. 1-4 at 12-13); Petitioner’s “Application for Issuance of Writ Under Original
Jurisdiction Pursuant to ARS § 13-4037(A)(1)” asking the Arizona Supreme Court to
“correct an illegal sentence issued in CR201402338” (Id. at 14-42); the Arizona Supreme
Court’s order dismissing Petitioner’s “Application for Issuance of Writ Under Original
Jurisdiction Pursuant to ARS § 13-4037(A)(1)” (Id. at 43-46); the Arizona Supreme
Court’s order denying Petitioner’s motion asking the court to reconsider its order
dismissing Petitioner’s “Application for Issuance of Writ Under Original Jurisdiction
Pursuant to ARS § 13-4037(A)(1)” (Id. at 47-49); Petitioner’s “Motion to Correct the
Order” asking the Arizona Supreme Court to correct its order denying Petitioner’s
“Application for Issuance of Writ Under Original Jurisdiction Pursuant to ARS § 13-
4037(A)(1)” (Id. at 50; Doc. 1-5 at 1-3); the Arizona Supreme Court’s order taking no
action on Petitioner’s “Motion to Correct the Order” and directing the clerk of court to
close the file and accept no further filings on the matter (Doc. 1-5 at 4-5); the Arizona Court
of Appeals’ order allowing the state to respond to Petitioner’s petition for review no later
than September 4, 2024 (Id. at 6-7); a letter reflecting that the Pinal County Clerk of the
Superior Court electronically transmitted the record for appeal to the Arizona Court of
Appeals (Id. at 8-10); Petitioner’s “Request for Trial Court Record” filed with the Arizona
Court of Appeals asking the court of appeals to print out and mail a copy of the record to
Petitioner (Id. at 11-14); Petitioner’s “Motion to Compel and Notice of Non-Compliance”
asking the Arizona Court of Appeals to order the Pinal County Clerk of the Superior Court
to send Petitioner a printed copy of the trial court record (Id. at 15-19); and the Arizona
Court of Appeals’ order denying Petitioner’s “Motion to Compel and Notice of Non-
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Compliance” (Id. at 20-21).
On December 1, 2025, Respondents filed an Answer to Petition for Writ of Habeas
Corpus (“Answer”) (Doc. 10), in which Respondents concede that the Petition was timely
filed (Id. at 4-5). Respondents argue that the Court should deny the Petition and dismiss it
with prejudice because Petitioner’s claims are procedurally defaulted without excuse, not
cognizable, and/or waived by virtue of Petitioner’s guilty plea (Id. at 5-12).
In their Answer, Respondents represent:
Pursuant to Rule 5(c) of the Rules Governing § 2254 Cases, Respondents
submit the transcript of the change of plea hearing (12/15/15) (Exh. Q) in
support of this answer.
Respondents inform this Court that their file contains the following complete
transcripts: pretrial hearing (4/28/15); and sentencing (3/8/16). Respondents
are aware of the following additional proceedings that either were not
transcribed (or listed in the state trial court docket as having been transcribed)
or were transcribed and not in their possession: arraignment (10/3/14);
pretrial hearing (11/4/14); pretrial hearing (12/2/14); pretrial hearing
(1/20/15); pretrial hearing (2/17/15); pretrial hearing (3/17/15); pretrial
hearing (12/8/15); and hearing continuing sentencing (1/19/16).
Respondents submit copies of documents from the state trial court
proceedings that are relevant to this answer as Exhibits A–I, and Q, and from
the state appellate court proceedings that are relevant to this answer as
Exhibits J–P.
(Doc. 10 at 3-4).
With the Answer, Respondents attached the following exhibits from the proceedings
in the Pinal County Superior Court (see Doc. 10-1 at 1): the September 29, 2014,
indictment charging Petitioner with ten counts of sexual exploitation of a minor (Doc. 10-
1 at 2-5 (Exhibit A)); the signed plea agreement under which Petitioner agreed to plead
guilty to one count of sexual exploitation of a minor and two counts of attempted sexual
exploitation of a minor (Id. at 6-9 (Exhibit B)); the minute entry from Petitioner’s
sentencing hearing (Id. at 10-15 (Exhibit C)); the notice of no colorable claims filed by
Petitioner’s appointed PCR counsel in the Pinal County Superior Court averring that upon
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review of the plea agreement and record counsel found no colorable PCR claims (Id. at 16-
27 (Exhibit D)); the Pinal County Superior Court’s order allowing Petitioner to file a pro
per PCR petition no later than December 15, 2016 (Id. at 28-29 (Exhibit E)); Petitioner’s
pro per PCR petition (Id. at 30-72 (Exhibit F)); the state’s response to Petitioner’s pro per
PCR petition (Id. at 73-83 (Exhibit G)); Petitioner’s reply in support of his pro per PCR
petition (Id. at 84-96 (Exhibit H)); the Pinal County Superior Court’s order denying
Petitioner’s pro per PCR petition (Id. at 97-98 (Exhibit I)); and the transcript from
Petitioner’s change of plea hearing held on December 15, 2015 (Doc. 10-2 at 151-214
(Exhibit Q)).
Respondents also attached with their Answer the following exhibits from the
proceedings in the Arizona Court of Appeals (see Doc. 10-2 at 1): Petitioner’s June 13,
2024, petition for review asking the Arizona Court of Appeals to review the trial court’s
denial of his pro per PCR petition (Doc. 10-2 at 2-103 (Exhibit J)); the state’s response to
Petitioner’s petition for review (Id. at 104-122 (Exhibit K)); Petitioner’s reply in support
of his petition for review (Id. at 123-136 (Exhibit L)); the Arizona Court of Appeals’
December 4, 2024, memorandum decision granting review but denying relief on
Petitioner’s petition for review (Id. at 137-140 (Exhibit M)); the Arizona Court of Appeals’
order denying a motion for reconsideration (Id. at 141-143 (Exhibit N)); the Arizona Court
of Appeals’ June 9, 2025, mandate (Id. at 144-147 (Exhibit O)); and the Arizona Court of
Appeals’ order denying a motion to correct mandate (Id. at 148-150 (Exhibit P))
This matter is on referral to the undersigned for further proceedings and a report and
recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure
(Doc. 7 at 4).
III. SUMMARY OF PERTINENT STATE COURT PROCEEDINGS
Based on the state court record materials from the parties presently before this
Court, on September 29, 2014, a Pinal County Superior Court grand jury indicted Petitioner
on ten counts of sexual exploitation of a minor (Doc. 10-1 at 3-5). Each of the ten counts
in the indictment refers to a different image or video knowingly possessed on September
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17, 2014 (Id.). For example, Count 1 charged knowing possession of an image labeled
“Megan smiles as Dad probes that child ass.jpg”; Count 2 charged knowing possession of
an image labeled “Megan opens on bathroom floor.jpg”; and Count 3 charged knowing
possession of an image labeled “Megan holds dads cock.jpg” (Id. at 3).
On September 30, 2014, which was the day after the indictment was issued, the
clerk of the superior court mailed Petitioner a “Notice of Supervening Indictment”
notifying that Petitioner had been indicted on ten counts of sexual exploitation of a minor
and that his arraignment was set for October 3, 2014 (Doc. 1-1 at 5-6).
On December 15, 2025, and with the assistance of counsel, Petitioner entered into
a plea agreement under which he agreed to plead guilty to one count of sexual exploitation
of a minor and two counts of attempted sexual exploitation of a minor (Doc. 1-1 at 8-10;
Doc. 10-1 at 7-9). At the settlement conference preceding the change of plea hearing, the
prosecutor informed the court that there were two open plea offers (Doc. 10-2 at 174-75).
Under the first offer Petitioner would plead guilty to one count of sexual exploitation of a
minor and face imprisonment of 10 to 24 years and also would plead guilty to two counts
of attempted sexual exploitation with lifetime probation on both counts (Id. at 174). The
second offer was identical to the first offer other than that Petitioner would face 17 years’
imprisonment on the sexual exploitation count (Id. at 175). After further discussion
between the court, the prosecutor, Petitioner, and Petitioner’s attorney (see generally id. at
157-200), Petitioner agreed to the plea offer with 17 years’ imprisonment on the sexual
exploitation count and lifetime probation on two counts of attempted sexual exploitation
(Id. at 200-01).
After the court gave Petitioner and Petitioner’s attorney time to go over the plea
agreement and sign it (Id.), the court began the plea colloquy with Petitioner. Petitioner
affirmed that he wanted to plead guilty to “Count 1, Sexual Exploitation of a Minor, a class
2 felony, dangerous crime against children. And also to Counts 2 and 3 as amended,
Attempted Sexual Exploitation of a Minor, a class -- both class 3 felonies and dangerous
crimes against children” (Id. at 201-02).
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During the plea colloquy, Petitioner stated that he has a Ph.D., that he reads and
understands English, and that he took Prozac and Seroquel within the last 24 hours but
neither affected his ability to accurately perceive the court proceedings (Id. at 202).
Petitioner’s counsel averred that counsel had no cause to be concerned regarding
Petitioner’s ability to understand the court proceedings (Id. at 202-03).
Additionally, Petitioner confirmed that he placed his initials on the plea agreement
next to each paragraph after reading the paragraph and having his attorney explain each
paragraph and answer Petitioner’s questions (Id. at 203). Petitioner further stated that he
signed the agreement after reading the entire document as well as having his attorney
explain the entire document and answer Petitioner’s questions regarding the plea agreement
(Id.). Petitioner affirmed that he was not being threatened, forced, or coerced into pleading
guilty to the offenses and that he was not promised anything outside of the plea agreement
(Id. at 203-04). Petitioner affirmed that he understood the penalties associated with his
guilty pleas (Id. at 204-05). In further plea colloquy, the court explained to Petitioner:
THE COURT: [I]f you are not a citizen of the United States, pleading guilty
or no contest to a crime may affect your immigration status. Admitting guilt
may result in deportation, even if the charge is later dismissed.
Your plea or admission of guilt could result in your deportation or removal,
could prevent you from ever being able to get legal status in the United
States, or could prevent you from becoming a United States citizen.
By pleading guilty you are giving up certain constitutional rights. They are
listed in paragraph 11 of your plea agreement.1 I’m going to go over your
1 Paragraph 11 of the plea agreement was initialed by Petitioner and states:
I understand that I am giving up the following rights by pleading GUILTY:
a. My right to a jury trial, including the right to a jury determination of
any aggravating sentencing factor(s), including my right to a jury
determination of aggravating circumstances beyond a reasonable
doubt. I further understand that the court, using a preponderance of
evidence standard, may find the existence of aggravating or mitigating
circumstances which may impact my sentence or disposition and may
use factors under the “catch-all” aggravator as the sole factor(s)
for increasing my sentence regardless of whether the State alleged
aggravated factors. The court may find the existence of aggravating
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rights with you at this time.
You are giving up your right to remain silent, and your privilege against self-
incrimination, and the right to refuse to testify.
You’re giving up your right to confront and cross-examine witnesses to
testify against you; the right to have a jury determine your innocence or guilt;
and have the jury determine any factors which could aggravate your
sentence.
If you enter into a plea of guilty or no contest, the Court, not the jury, will
decide whether aggravating factors exist. You are giving up the right to have
subpoenas issued for your witnesses so they can attend your trial and testify
on your behalf.
You are giving up the right to present other evidence on your own behalf,
and the right to testify, if you choose to do so. You are also giving up the
presumption that you are innocent until proven guilty beyond a reasonable
doubt.
You are also giving up your right to file an appeal. Because you are giving
up your right to file an appeal, your only right to seek review of these
proceedings is to file a petition for Post-Conviction Relief. But you must do
that within 90 days of sentencing. If that petition is ultimately denied by the
trial courts, you may then petition the appellate court of the state for review
of that denial, but such review may or may not be granted.
or mitigating circumstances without regard to the Arizona Rules of
Evidence, and from any source, including, but not limited to a pre-
sentence report, letters to the court, victim or witness statements or
any other reliable source.
b. My right to confront the witnesses against me and to cross-examine
them.
c. My right to present evidence and call witnesses in my defense,
knowing the court will compel them to appear and testify at trial.
d. My right to be represented by counsel, appointed free of charge, if I
cannot afford to hire, at all stages of the proceedings.
e. My right to remain silent, to refuse to be a witness against myself, and
to be presumed innocent until proven guilty beyond a reasonable
doubt. And
f. My right to appeal the judgment and sentence to a higher court.
(Doc. 1-1 at 10; Doc. 10-1 at 9).
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Sir, do you understand all those things?
THE DEFENDANT: Yes.
THE COURT: Do you wish to waive your constitutional rights and plead
guilty to these offenses at this time?
THE DEFENDANT: Yes.
(Doc. 10-2 at 207-08). The court continued:
THE COURT: All right. I will ask formally, how do you plead to Count 1,
Sexual Exploitation of a Minor, a class 2 felony, dangerous crime against
children, committed in violation of those statutes listed in your plea
agreement, committed in or near Casa Grande, Arizona, within Pinal County,
on or between September 17, 2014, guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: And how do you plead to Counts 2 and 3 as amended,
Attempted Sexual Exploitation of a Minor, class 3 felonies, dangerous crimes
against children, in violation of those statutes listed in your plea agreement,
both committed in Casa Grande, Arizona, within Pinal County, and both
committed on or between September 17, 2014, guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: And that would be to both 2 and 3.
Sir, do you understand that?
THE DEFENDANT: Yes.
(Doc. 10-2 at 209). Thereafter, Petitioner’s attorney set forth the factual basis for each
Count 1, Count 2 as amended, and Count 3 as amended:
[PETITIONER’S ATTORNEY:] On or about September 17th of 2014, in or
near Casa Grande, which is in Pinal County, jurisdiction of this Court, Mr.
Paul Fahring knowingly possessed images of minor children that were in
sexually ex- -- sexually exploitative -- knowingly possessed images of minor
children that were in sexually explicit positions. That’s as to Count 1. The
minor children in – depicted in those images were below the age of 15. Mr.
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Fahring knew that those minor children in those images were below the age
of 15 when he possessed them.
As to Count 2, on the same date and time, on or about September 17th of
2014, in or near Pinal – in or near Casa Grande, which is in Pinal County,
jurisdiction of this Court, Mr. Paul Fahring attempted to possess a image of
a minor that was under the age of 15 that was in a sexually explicit -- sexually
explicit position. Again, the minor in Count Number 2 was below the age of
15. Mr. Fahring knew that the minor in that image was below the age of 15.
As to Count 3, same date and time, on or about September 17, 2014, in or
near Casa Grande, which is in Pinal County, jurisdiction of this Court, Mr.
Paul Fahring attempted to possess another picture of a minor that was
engaged in a sexually explicit – explicative position --
THE COURT: Or exploitive –
[PETITIONER’S ATTORNEY:] -- or exploitive position. Again, the minor
in that Count Number 3 position -- Count Number 3 count was below the age
of 15. Mr. Fahring knew that the minor in Count 3 was below the age of 15.
THE COURT: All right. And, Mr. Wilkison, would -- those images, they
would contain images of minors either engaged in sexual conduct or the
focus being on the genitals and exploitive exhibition?
[PETITIONER’S ATTORNEY:] That’s correct. In all three, yes.
(Doc. 10-2 at 209-211). Petitioner agreed to the factual basis:
THE COURT: All right. Sir, you heard what your attorney says. Is that, in
fact, what happened in those three counts?
THE DEFENDANT: Yes.
(Id. at 211).2
The court found that Petitioner’s guilty pleas were knowingly, intelligently, and
voluntarily made (Id.). The court accepted Petitioner’s guilty pleas (Id.). At the March
2016 sentencing hearing, the court sentenced Petitioner to 17 years’ imprisonment on
2 Indictment Count 1 regarded an image labeled “Megan smiles as Dad probes that child
ass.jpg”; Count 2 regarded an image labeled “Megan opens on bathroom floor.jpg”; Count
3 charged regarded an image labeled “Megan holds dads cock.jpg” (Doc. 10-1 at 3).
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Count 1 - sexual exploitation of a minor - and lifetime probation on each Counts 2 and 3 -
attempted sexual exploitation of a minor (Doc. 1-1 at 16; Doc. 10-1 at 11-15).
Petitioner timely filed a PCR notice with the trial court (Doc. 10-1 at 18). After
reviewing the plea agreement and the trial court record, Petitioner’s appointed PCR counsel
filed a notice of no colorable claims averring that counsel had found no colorable PCR
claim (Id. at 17-27). Petitioner thereafter filed a pro per PCR petition arguing that
Petitioner’s sentences on Counts 2 and 3 should be vacated as unconstitutionally
multiplicitous under the Double Jeopardy Clause of the United States Constitution and that
Petitioner was sentenced under the incorrect Arizona statute on Count 1 (Id. at 31-72).
After the state filed a response and Petitioner filed a reply (Id. at 74-83, 85-96), the trial
court denied Petitioner’s pro per PCR petition (Id. at 98).
On June 13, 2024, Petitioner filed a petition for review with the Arizona Court of
Appeals arguing that Petitioner’s sentences on Counts 2 and 3 should be vacated as
unconstitutionally multiplicitous under the Double Jeopardy Clause of the United States
Constitution and that Petitioner was sentenced under the incorrect Arizona statute on Count
1 (Doc. 10-2 at 3-17). On July 15, 2024, Petitioner filed an amended petition for review
reasserting his arguments (Doc. 1-2 at 31-45; Doc. 13 at 17-31). The state filed a response;
Petitioner filed a reply (Doc. 10-2 at 105-122, 124-136). On December 4, 2024, the
Arizona Court of Appeals granted review but denied relief (Id. at 138-40). State v. Fahring,
No. 2 CA-CR 2024-0122-PR, 2024 WL 4976320, at *1-2 (Ariz. Ct. App. Dec. 4, 2024).
In its memorandum decision, the Arizona Court of Appeals explained:
¶4 Fahring reurges his claims on review, first asserting that his sentences are
multiplicitous. “A charge is multiplicitous if it charges a single offense in
multiple counts and thereby raises the potential for multiple punishments for
a single act.” State v. Scott, 243 Ariz. 183, ¶ 9, 403 P.3d 595 (App. 2017).
Fahring reasons that his possession of multiple images is a single offense
because the sexual exploitation statute, A.R.S. § 13-3553, prohibits
possession of “any visual depiction,” which, in his view, means “one or
more” depictions.
¶5 But, by pleading guilty, Fahring waived all non-jurisdictional defects
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unrelated to the voluntariness of his plea, including deprivations of
constitutional rights. State v. Flores, 218 Ariz. 407, ¶ 6, 188 P.3d 706 (App.
2008). Accordingly, even were his argument meritorious, after pleading
guilty to three offenses, he cannot now argue he committed only a single
offense. And, in any event, we rejected this argument in 2012 in State v.
McPherson, concluding that “separate convictions and punishments for
different images on the same DVD are constitutionally permissible because
the legislature intended the unit of prosecution to be each individual
‘depiction.’” 228 Ariz. 557, ¶ 7, 269 P.3d 1181 (App. 2012) (quoting § 13-
3553(A)(2)).
¶6 Fahring also repeats his argument that the factual basis for his plea did not
establish the age of his victims, thus rendering his sentence under § 13-705
illegal. He seems to suggest the state was required to identify the victims or
provide the photographs to the superior court. But, at his change of plea
hearing, Fahring admitted the children in the images he admitted possessing
were under the age of fifteen. Nothing more was needed. See Ariz. R. Crim.
P. 17.3(b) (court may consider “defendant’s statements” in determining
factual basis).
(Doc. 10-2 at 138-40). Fahring, 2024 WL 4976320, at *1-2.
Petitioner did not file a petition for review with the Arizona Supreme Court (Id. at
145). The Arizona Court of Appeals issued the mandate on June 9, 2025 (Id.).
IV. RULES FRAMEWORK
In relevant part, Rule 5 of the Rules Governing Section 2254 Cases provides:
(c) Contents: Transcripts. The answer must also indicate what transcripts
(of pretrial, trial, sentencing, or post-conviction proceedings) are available,
when they can be furnished, and what proceedings have been recorded but
not transcribed. The respondent must attach to the answer parts of the
transcript that the respondent considers relevant. The judge may order that
the respondent furnish other parts of existing transcripts or that parts of
untranscribed recordings be transcribed and furnished. If a transcript cannot
be obtained, the respondent may submit a narrative summary of the evidence.
(d) Contents: Briefs on Appeal and Opinions. The respondent must also
file with the answer a copy of:
(1) any brief that the petitioner submitted in an appellate court
contesting the conviction or sentence, or contesting an adverse
judgment or order in a post-conviction proceeding;
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(2) any brief that the prosecution submitted in an appellate court
relating to the conviction or sentence; and
(3) the opinions and dispositive orders of the appellate court relating
to the conviction or the sentence.
In addition, Rule 7 of the Rules Governing Section 2254 Cases provides:
(a) In General. If the petition is not dismissed, the judge may direct the
parties to expand the record by submitting additional materials relating to the
petition. The judge may require that these materials be authenticated.
(b) Types of Materials. The materials that may be required include letters
predating the filing of the petition, documents, exhibits, and answers under
oath to written interrogatories propounded by the judge. Affidavits may also
be submitted and considered as part of the record.
(c) Review by the Opposing Party. The judge must give the party against
whom the additional materials are offered an opportunity to admit or deny
their correctness.
Further, Rule 6 of the Rules Governing Section 2254 Cases provides in pertinent part:
(a) Leave of Court Required. A judge may, for good cause, authorize a party
to conduct discovery under the Federal Rules of Civil Procedure and may limit
the extent of discovery. If necessary for effective discovery, the judge must
appoint an attorney for a petitioner who qualifies to have counsel appointed
under 18 U.S.C. § 3006A.
(b) Requesting Discovery. A party requesting discovery must provide reasons
for the request. The request must also include any proposed interrogatories and
requests for admission, and must specify any requested documents.
See also Rule 10 of the Rules Governing Section 2254 Cases (“A magistrate judge may
perform the duties of a district judge under these rules, as authorized under 28 U.S.C.
§ 636.”).
V. DISCUSSION
In his Motion, Petitioner argues that Respondents have failed to comply with their
obligations under Rule 5 of the Rules Governing Section 2254 Cases (Doc. 13). Petitioner
asserts that Exhibit A and Exhibit J attached to Respondents’ Answer must be corrected
because “Exhibit A is the wrong indictment [because] [i]t was supervened” and “Exhibit J
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of the Respondents’ record submission should be replaced with . . . the amended Petition
for Review filed and addressed within the AZ Court of Appeals” (Id. at 2-5). Petitioner
also insists that transcripts of Petitioner’s statements on 9/17/2014, the transcript of the
grand jury proceedings on 9/29/2014, and the recording of the grand jury on 9/29/2014
must be added to the record (Id. at 5-9). Petitioner attached as exhibits to his Motion: a
copy of a document entitled “Notice of Supervening Indictment” which informed Petitioner
of the indictment filed against him (Id. at 13-15) and a copy of Petitioner’s amended
petition for review filed with the Arizona Court of Appeals (Id. at 16-31)—both of which
Petitioner attached to his Petition initiating these habeas proceedings (see Doc. 1-1 at 5-6;
Doc. 1-2 at 31-45).
Petitioner also included as attachments: a “Motion for Emergency Injunction” filed
with the Arizona Supreme Court which was previously attached to his Petition (Doc. 13 at
33-40; see also Doc. 1 at 20-27); the Pinal County Superior Court’s order denying
Petitioner’s pro per PCR petition which was previously attached to the Petition and Answer
(Doc. 13 at 42; see also Doc. 1 at 29; Doc. 10-1 at 98); the Arizona Supreme Court’s order
denying as moot Petitioner’s “Motion for Emergency Injunction” which was previously
attached to the Petition (Doc. 13 at 44-46; see also Doc. 1-2 at 47-49); the cover page for
the transcript of the grand jury proceedings held on September 29, 2014 (Doc. 13 at 48);
correspondence with the Pinal County Clerk of Court directing Petitioner to contact the
Court Reporters Office for copies of transcripts (Id. at 50); a “Notice of Documents
Provided to Petitioner” reflecting that Petitioner’s appointed PCR counsel mailed copies
of various documents to Petitioner (Doc. 13-1 at 2-5); a pro per “Special Action” filing
requesting relief from a trial court ruling in Petitioner’s criminal proceedings (Id. at 7);
correspondence with the Clerk of the United States Supreme Court reflecting that
Petitioner’s petition for a writ of mandamus was denied (Id. at 9); correspondence with the
State Bar of Arizona reflecting that the state bar previously investigated and closed a matter
regarding Petitioner’s appointed PCR counsel (Id. at 11); and correspondence with the
Pinal County Clerk of Court reflecting that the record for appeal was transmitted which
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was previously attached to the Petition (Id. at 13; see also Doc. 1-5 at 9).
Respondents argue that Petitioner’s Motion should be denied (Doc. 14).
Respondents concede that their Exhibit J is not the amended petition filed on July 15, 2024,
but maintain that “consideration of the amended petition for review does not affect any
affirmative defense raised in their answer” (Id. at 1-2). Respondents do not object to
Petitioner supplementing the record with a copy of the “Notice of Supervening Indictment”
and the amended petition for review (Id. at 2; see Doc. 13 at 14-15, 17-31; Doc. 1-1 at 5-
6; Doc. 1-2 at 31-45). Respondents also argue that Petitioner’s request to add materials to
the record should be denied because the requested materials are not relevant to
Respondents’ Answer (Doc. 14 at 2). Finally, Respondents argue that if construed as a
discovery request Petitioner’s request for materials should be denied because Petitioner has
failed to establish good cause for such discovery (Id. at 2-3).
In his Reply, Petitioner insists that the requested materials are relevant to his actual
innocence claim and that production of such materials would require little effort on the part
of Respondents (Doc. 15). Petitioner did not attach any additional documents to his Reply
(see id.).
Upon review of the briefing on Petitioner’s Motion and associated exhibits (Docs.
13, 13-1, 14, 15), the briefing on Petitioner’s Petition and associated exhibits (Docs. 1, 1-
1, 1-2, 1-3, 1-4, 1-5, 10, 10-1, 10-2, 16), the record in this matter, and applicable law, the
Court will deny Petitioner’s “Motion for an order from the court requiring the Respondents
to correct the record and furnish the missing materials in their possession pertinent to this
case, a Failure to comply with Rule 5(c)” (Doc. 13). As Respondents correctly point out
(Doc. 14 at 2 n.1), the record already contains the “Notice of Supervening Indictment” and
the amended petition for review (see Doc. 13 at 14-15, 17-31; Doc. 1-1 at 5-6; Doc. 1-2 at
31-45). Thus, Petitioner’s request to correct the record regarding Respondents’ Exhibit A
and Exhibit J will be denied.3
3 Petitioner appears to confuse the Notice of Supervening Indictment, which notified
Petitioner of an arraignment for charges against him brought by indictment, with the
indictment itself. Nevertheless, both the indictment attached by Respondents and the
Notice of Supervening Indictment attached by Petitioner are part of the state court record
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Regarding Petitioner’s request that the Court order supplementation of the record
with transcripts of Petitioner’s statements on 9/17/2014, the transcript of the grand jury
proceedings on 9/29/2014, and the recording of the grand jury on 9/29/2014 must be added
to the record (Id. at 5-9). Respondents assert that they complied with Rule 5(c) and attached
the only transcript relevant to their Answer––the transcript of the change of plea hearing
(Doc. 14 at 2). Upon careful review, the Court agrees with Respondents. First, Petitioner
does not articulate the relevance of the requested transcripts and recording aside from
vague assertions of false evidence presented to the grand jury (Doc. 13 at 6; Doc. 15 at 2-
3). Indeed, he appears to admit that they are not relevant to his claims by stating that
“Respondent[s] [are] also correct that the items requested do not pertain to the strict legal
analysis of the Petitioner’s grounds presented within this Habeas Corpus proceeding” (Doc.
15 at 2-3). However, Petitioner insists that the requested materials are relevant to the issue
of actual innocence (Id.).
To show actual innocence, a petitioner must establish his or her factual innocence
of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614,
623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). A petitioner “must
show that it is more likely than not that no reasonable juror would have convicted him in
the light of the new evidence.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)). “To be credible, such a claim requires petitioner
to support his allegations of constitutional error with new reliable evidence–whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence–that was not presented at trial.” Schlup, 513 U.S. at 324; see also Lee v. Lampert,
653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (explaining the significance
of an “[u]nexplained delay in presenting new evidence”). Because of “the rarity of such
evidence, in virtually every case, the allegation of actual innocence has been summarily
rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v.
before this Court.
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Thompson, 523 U.S. 538, 559 (1998)).4
Here, Petitioner is not urging the Court to consider new exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence that was not
presented at trial. Rather and despite his later guilty pleas, Petitioner posits that he may be
able to bolster a claim of actual innocence with his own statements made prior to indictment
and with details about the grand jury proceedings leading to indictment. Under applicable
law, the materials sought by Petitioner are not relevant to actual innocence analysis. See
Bousley, 523 U.S. at 623; Jaramillo, 340 F.3d at 882-83.
Finally, Petitioner has not made a showing that he is entitled to discovery in these
proceedings. In habeas proceedings, a “petitioner, unlike the usual civil litigant in federal
court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520
U.S. 899, 904 (1997); see also Fed. R. Civ. P. 26(a)(1)(B)(iii) (exempting habeas
proceedings from initial discovery disclosure). The availability of discovery in habeas
proceedings is governed by Rule 6 of the Rules Governing Section 2254 Cases and is
within the Court’s discretion. Bracy, 520 U.S. at 907-09; Rich v. Calderon, 187 F.3d 1064,
1068 (9th Cir. 1999). Good cause to allow discovery to proceed in a Section 2254 habeas
matter may exist “where specific allegations before the court show reason to believe that
the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . .
entitled to relief.’” Bracy, 520 U.S. at 904 (quoting Harris v. Nelson, 394 U.S. 286, 300
(1969)). However, “[j]ust as bald assertions and conclusory allegations do not afford a
sufficient ground for an evidentiary hearing, neither do they provide a basis for imposing
upon the state the burden of responding in discovery to every habeas petitioner who wishes
to seek such discovery.” Earp v. Davis, 881 F.3d 1135, 1142-43 (9th Cir. 2018) (internal
citations omitted). The Ninth Circuit has warned that a court “should not allow prisoners
to use federal discovery for fishing expeditions to investigate mere speculation.” Calderon
4 This discussion assumes that actual innocence argument is even available in a habeas
proceeding to a petitioner who pleaded guilty. See Smith v. Baldwin, 510 F.3d 1127, 1140
n.9 (9th Cir. 2007) (acknowledging the “potential incongruity between the purpose of the
actual innocence gateway announced in Schlup and its application to cases involving guilty
(or no contest) pleas” but nevertheless “assum[ing] without deciding that the actual
innocence gateway is available to [a pleading defendant]” (citation omitted)).
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v. U.S. Dist. Ct. for the N. Dist. of California, 98 F.3d 1102, 1106 (9th Cir. 1996). Petitioner
has not shown good cause for discovery in this matter.
VI. SUPPLEMENTAL ANSWER AND REPLY REGARDING PETITION
GROUND TWO CONSTITUTIONAL DOUBLE JEOPARDY CLAIM
In their Answer, Respondents assert regarding Petition Ground Two:
Fahring claims “Illegal Sentence – Double Jeopardy – Multiplicity – Actual
Innocence.” (Doc. 1, at 29–35.) Specifically, that punishment for the
“simultaneous possession of 3 undefined images constitutes multiplicitous
charging in violation of the USC Fifth Amendment’s prohibition of Double
Jeopardy.” (Id. at 32.) Because Fahring’s claim challenges the trial court’s
application of state sentencing law, it is not cognizable in this federal habeas
proceeding. “[A]lleged errors in the application of state law are not
cognizable in federal habeas corpus.” Langford, 110 F.3d at 1389; see
Jeffers, 497 U.S. at 780. His assertion that his sentence was “unlawful in
violation of the US Constitution and directly contradict SCOTUS precedent,”
(Doc. 1, at 5, 14–16), is not sufficient to state a claim cognizable in this
proceeding. Fahring may also not transform a state-law issue into a federal
one merely by asserting a violation of federal constitutional law. Langford,
110 F.3d at 1389. “An asserted violation of state law does not, without more,
rise to the level of a defendant’s right to due process under either the Fifth or
Fourteenth Amendments.” Bernal, 2021 WL 7967626, at *7. For those
reasons, Fahring’s claim is not cognizable.
Further, Fahring’s claim is waived by virtue of his guilty plea. Tollett, 411
U.S. at 267. As described above, Fahring was sentenced according to the
terms of his plea agreement and, by virtue thereof, has waived his claim that
the sentence imposed according to its terms was somehow multiplicitous. See
Gonzales, 2023 WL 9289981, at *9. Notably, each crime Fahring to which
pleaded guilty was based on a different image of child pornography in his
possession, (Exhs. A & B), and required proof of a fact which the others did
not. See Blockburger v. United States, 284 U.S. 299, 304 (1932). Finally,
Fahring’s claim of “actual innocence” is also barred by Tollett. Barclay, 2014
WL 931867, at * 8. Thus, Fahring has also waived his claim by virtue of his
plea agreement.
(Doc. 10 at 11-12).
While Respondents appear to construe Petitioner’s Ground 2 claim as solely a state
law claim, the Court did not so construe Petitioner’s Ground 2 claim as solely a state law
claim in screening the Petition. The Court described that in Ground Two, Petitioner
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“asserts his Fifth, Sixth, and Fourteenth Amendment rights were violated because his
conviction and sentence are illegally multiplicitous . . . and his conviction violates the
prohibition against double jeopardy” (Doc. 7 at 2). Upon review, it appears at least
arguable that Petitioner raised and exhausted a constitutional double jeopardy claim set
forth in Petition Ground Two.
Further, the Answer does not adequately address waiver of a constitutional double
jeopardy claim in Petition Ground Two. The Answer cites Tollett, but the Answer does
not cite or address Class v. United States, 583 U.S. 174, 178-85 (2018), in which the United
States Supreme Court applied the Menna-Blackledge doctrine and determined that a
constitutional claim based upon the state court record that would extinguish the
government’s power to constitutionally prosecute a defendant was not waived by a guilty
plea. See Blackledge v. Perry, 417 U.S. 21, 30-31 (1974) (holding that the petitioner’s
vindictive prosecution claim was not waived because it contested “the very power of the
State” to prosecute the petitioner and the “very initiation of the proceedings against him
. . . operated to deny him due process of law”); Menna v. New York, 423 U.S. 61, 62 n.2
(1975) (holding that “a plea of guilty to a charge does not waive a claim that judged on its
face the charge is one which the State may not constitutionally prosecute.”). In Class, the
Supreme Court acknowledged that “a valid guilty plea relinquishes any claim that would
contradict the ‘admissions necessarily made upon entry of a voluntary plea of guilty’” but
determined that the defendant’s challenge was “consistent with [his] admission that he
engaged in the conduct alleged in the indictment.” 583 U.S. at 805 (quoting United States
v. Broce, 488 U.S. 563, 573-74 (1989)). Thus, the Supreme Court concluded that the
defendant’s claims were not waived because “[t]hey challenge the Government’s power to
criminalize [defendant’s] (admitted) conduct. They thereby call into question the
Government’s power to ‘constitutionally prosecute’ him.” Id. (citation omitted).
In a supplemental answer to the Petition, Respondents should address whether
Petitioner’s double jeopardy argument that the state could constitutionally prosecute
Petitioner for only one count of sexual exploitation of a minor—not three—was waived by
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Petitioner’s guilty pleas in light of the Supreme Court’s application of the Menna-
Blacklidge doctrine in Class and Broce; Respondents should also address the merits of such
a constitutional double jeopardy claim. Thus, the Court will order Respondents to file a
supplemental answer addressing (1) whether Petitioner waived a Ground Two
constitutional double jeopardy claim in light of Class v. United States, 583 U.S. 174, 178-
85 (2018), United States v. Broce, 488 U.S. 563, 574-76 (1989), Blackledge v. Perry, 417
U.S. 21, 30-31 (1974), and Menna v. New York, 423 U.S. 61, 62 n.2 (1975); and (2)
regarding the merits of Petitioner’s Ground Two constitutional double jeopardy claim.
It appears to the Court that there has been full compliance with all of the
requirements of Rule 5 of the Rules Governing Section 2254 Cases regarding a Ground
Two constitutional double jeopardy claim; nevertheless, if additional record materials are
necessary to address the merits of such claim, then Respondents shall provide such with
the supplemental answer.
VII. CONCLUSION
Upon careful review and because Petitioner has not shown that correcting the
record, supplementing the record, or conducting discovery is appropriate, the Court will
deny Petitioner’s “Motion for an order from the court requiring the Respondents to correct
the record and furnish the missing materials in their possession pertinent to this case, a
Failure to comply with Rule 5(c)” (Doc. 13).
Additionally, the Court will order Respondents to file a supplemental answer
addressing (1) whether Petitioner waived his Ground Two constitutional double jeopardy
claim in light of Class v. United States, 583 U.S. 174, 178-85 (2018), United States v.
Broce, 488 U.S. 563, 574-76 (1989), Blackledge v. Perry, 417 U.S. 21, 30-31 (1974), and
Menna v. New York, 423 U.S. 61, 62 n.2 (1975); and (2) regarding the merits of Petitioner’s
Ground Two constitutional double jeopardy claim.
It appears to the Court that there has been full compliance with all of the
requirements of Rule 5 of the Rules Governing Section 2254 Cases regarding Petitioner’s
Ground Two constitutional double jeopardy claim; nevertheless, if additional record
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materials are necessary to address the merits of such claim, then Respondents shall provide
such with the supplemental answer.
Accordingly,
IT IS HEREBY ORDERED denying Petitioner’s “Motion for an order from the
court requiring the Respondents to correct the record and furnish the missing materials in
their possession pertinent to this case, a Failure to comply with Rule 5(c)” (Doc. 13).
IT IS FURTHER ORDERED that within thirty (30) days of the date of this
Order, Respondents shall file a supplemental answer addressing (1) whether Petitioner
waived a Ground Two constitutional double jeopardy claim in light of Class v. United
States, 583 U.S. 174, 178-85 (2018), United States v. Broce, 488 U.S. 563, 574-76 (1989),
Blackledge v. Perry, 417 U.S. 21, 30-31 (1974), and Menna v. New York, 423 U.S. 61, 62
n.2 (1975); and (2) regarding the merits of Petitioner’s Ground Two constitutional double
jeopardy claim.
IT IS FURTHER ORDERED that in filing the supplemental answer, Respondents
must ensure full compliance with all of the requirements of Rule 5 of the Rules Governing
Section 2254 Cases regarding Petitioner’s Ground Two double jeopardy claim.
IT IS FURTHER ORDERED that within thirty (30) days of service of the
supplemental answer to the Petition, Petitioner may file a supplemental reply in support
of the Petition addressing the arguments in the supplemental answer.
Dated this 20th day of February, 2026.
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