2:24-cv-03395•Kristoff v. Thornell et al
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Kim C. Kristoff, Petitioner, v. Ryan Thornell, et al., Respondents. No. CV-24-03395-PHX-DWL (JZB) REPORT AND RECOMMENDATION TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE: On November 28, 2024, Petitioner Kim C. Kristoff, who is confined in an Arizona State Prison, by and through undersigned counsel, Michael P. Denea, filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. The Court recommends that the Petition be denied and dismissed. I. Background. A. Facts. The Arizona Court of Appeals found the following facts as true:1 Kristoff is the father of Mary, born in 1987, Kaci, born in 1992, as well as two sons. In 2017, both of Kristoff’s daughters, now adults, told their mother, who at the time was Kristoff’s wife, that Kristoff had sexual contact with them—when Mary was about eight and Kaci about three or four years 1 The Arizona Court of Appeals’ recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court’s opinion should not be afforded the presumption of correctness). Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 1 of 21
- 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 old.2 Kristoff’s wife told him she wanted a divorce and threatened that their children would never speak to him again unless he apologized for what he had done. About a week later, Kaci called Kristoff and recorded their conversation (the “Confrontation Call”) during which Kristoff made incriminating statements.3 Several weeks later, police coordinated a phone call between Mary and Kristoff. During that call, Kristoff denied ever having contact with Mary that was sexual in nature, except the conduct he specifically confessed to in the Confrontation Call. The following month, a detective approached Kristoff to discuss the allegations. At that time, Kristoff denied that the voice in the Confrontation Call recording was his. However, in emails and in a recorded call with Mary, Kristoff had admitted he participated in the Confrontation Call. ¶4 As relevant here, the State charged Kristoff with one count of sexual conduct with a minor (Count 1), related to the incident with Mary. See A.R.S. § 13-1405. The State also charged Kristoff with two counts of child molestation (Counts 3 and 6), A.R.S. § 13- 1410, one count of public sexual indecency (Count 4), A.R.S. § 13-1403, and one count of sexual conduct with a minor (Count 5), A.R.S. § 13- 1405, all related to the incidents with Kaci. Both Mary and Kaci testified at trial. Kristoff, who testified on his own behalf, denied each of the sexual acts described by Kaci and testified the story he told her in the Confrontation Call was a lie. He explained, “I actually believed in the moment that telling her something that perhaps she would believe, even though I knew it did not happen, might actually be the end of the discussion.” Kristoff claimed he made up the stories to keep his daughter on the phone because he was afraid if he did not apologize, his children would never talk to him again. Kristoff testified the incidents Kaci described were never sexually motivated. The jury convicted Kristoff of Counts 3, 4, 5, and 6, as well as the lesser-included offense—child molestation—for Count 1. The superior court sentenced Kristoff to 39 years in prison. (Doc. 1-1 at 198–99.) B. Direct Appeal. On February 23, 2021, Petitioner filed an opening brief on direct appeal. (Doc. 12- 2 The opinion refers to victims Mary and Kaci, who are also referenced as MT and KP in other documents. 3 Transcripts of the recordings are contained in the record here. See e.g. Transcript of August 9, 2017 phone call from Kaci to Petitioner where Petitioner stated: “But anyway, during that period of time—and don’t ask me exactly how it started—but during that time—you were involved in oral sex with me and—and I never touched you in any other way.” (Doc. 1-1 at 860.) Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 2 of 21
- 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1, Ex., at 1–43.) Petitioner raised two claims. Petitioner argued that “the trial court’s failure to instruct the jury on contributing to the delinquency of a child was a lesser included offense of child molestation was fundamental error.” (Id. at 31.) Petitioner also argued that “the trial court’s failure to instruct the jury on the defense of lack of sexual motivation was fundamental error.” (Id. at 38.) On September 14, 2021, the Arizona Court of Appeals affirmed the convictions. (Doc. 12-1, Ex. F, at 136.) C. Post-Conviction Relief. On September 8, 2021, Petitioner filed a timely PCR petition that raised five claims of ineffective assistance of trial counsel: (1) failure to request a jury instruction on the defense of lack of sexual motivation; (2) failure to request a jury instruction for contributing to the delinquency of a minor; (3) failure to object to testimony from the State’s expert that false allegations are uncommon; (4) failure to present exculpatory trial witnesses; and (5) failure to present a false confession expert. (Doc. 12-1, Ex. H, at 166– 212.) On April 10, 2023, Petitioner filed a petition for review in the Arizona Court of Appeals. (Doc. 12-1, Ex. L, at 301.) On March 27, 2024, the court granted review and denied relief. (Doc. 11-3, Ex. Q, at 128.) The court affirmed the trial court’s conclusions that Petitioner’s claims were precluded because he failed to raise them on direct appeal. (Id.) On November 28, 2024, the Arizona Supreme Court denied review. (Doc. 12-2, Ex. Q, at 127.) II. Petition for Writ of Habeas Corpus. On November 28, 2024, Petitioner timely filed a habeas petition. (Doc. 1.) On April 14, 2025, Respondent filed a Response. (Doc. 12). III. Motion to Stay and Abey. On September 12, 2025, Petitioner filed a motion to “stay and abey” the petition under Rhines v. Weber, 544 U.S. 269 (2005). (Doc. 17.) Petitioner seeks a stay so that he Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 3 of 21
- 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 may attempt to exhaust five claims in the Arizona courts. (Id.) But the claims that Petitioner is attempting to exhaust in the Arizona courts are not raised in his habeas petition. “[F]ederal district court[s] may not adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims.” Rhines, 544 U.S. at 273. As such, a district court may stay a habeas petition when it contains unexhausted claims. Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016). “Stay and abeyance [is] available only in limited circumstances.” Rhines, 544 U.S. at 277. District courts must use their discretion sparingly, because “routinely granting stays would undermine the AEDPA’s goals of encouraging finality and streamlining federal habeas proceedings.” Blake v. Baker, 745 F.3d 977, 981–82 (9th Cir. 2014) (enumerating the required showing under Rhines as (1) “good cause” for failing to exhaust claims earlier; (2) “the unexhausted claims are potentially meritorious”; and (3) lack of “intentional[ ] dilatory litigation tactics”) (quoting 544 U.S. at 278). In the Motion for a Stay, Petitioner summarized the five claims of the present habeas petition: (1) Ineffective assistance of trial counsel in failing to retain, consult, and present an expert witness on false confessions and “confrontation calls.” (2) Instructional error violative of his Fifth and Fourteenth Amendment rights to a fair trial as the trial court failed to instruct the jury that, under A.R.S. § 13-1407(E) (Supp. 1994), lack of sexual interest motivation is an affirmative defense to child molestation, Counts 1, 3, 5, and 6. (3) The failure of the state court to grant him post-conviction relief violated his Sixth and Fourteenth Amendment rights to effective assistance of counsel because trial counsel was deficient in failing to request a jury instruction for Contributing to the Delinquency of a Minor, the lesser included instruction for Molestation of a Child and, he was prejudiced as a result. (4) The failure of the state court to grant him post-conviction relief violated his Sixth and Fourteenth Amendment rights to effective assistance of counsel because trial counsel elicited and failed to object to inadmissible testimony from the state’s expert witness that false allegations were uncommon. (5) The failure of the state court to grant him post-conviction relief violated his Sixth and Fourteenth Amendment rights to effective assistance of counsel because trial counsel failed to investigate and present the testimony of defense witnesses to rebut some of the victims’ allegations. Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 4 of 21
- 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Doc. 17 at 3–4.) Petitioner summarized the five claims brought in the successive PCR petition: (1) Kristoff’s child molestation convictions are invalid as a matter of law. Sexual motivation is an essential element of child molestation under the affirmative defense statute in effect at the time the offenses were alleged to have been committed and the prosecution failed to present such evidence to the jury. (2) Prior appellate counsel failed to investigate and develop meritorious claims memorialized in the appellate record. As direct appeal counsel she failed to federalize the legal sufficiency claim she raised on direct appeal. As PCR counsel she failed to recognize that trial counsel had not represented Kristoff effectively as she had not consulted with a mental health behavioral expert despite concerns that Kristoff was unable to assist in his defense. (3) Trial counsel failed to investigate and present mental health disorder evidence as character evidence and in mitigation. Trial counsel was aware Kristoff did not have the ability to assist counsel in his defense yet had Kristoff undergo both a Rule 11 examination and a psychosexual risk assessment but failed to have Kristoff examined by a mental health behavioral expert. (4) Trial counsel failed to represent Kristoff effectively during trial where she did not request a theory of the case instruction. (5) Kristoff was denied the right to present a complete defense. Under state law, a defendant may present character trait or observation evidence of behavioral tendencies to establish he acted reflexively or impulsively. Trial counsel failed to present such evidence in support of one of Kristoff’s defenses to the charges. Kristoff’s constitutional rights were further violated where the trial court granted the prosecution’s motions to preclude mental health evidence and character evidence. (Doc. 17-1 at 4.) (Emphasis in original.) Here, Petitioner’s habeas claims have either been exhausted (Grounds One through Four) or Petitioner is not currently raising the claim in the Arizona courts (Ground Five). Stated differently, Petitioner’s current state claims have no relation to Grounds One through Five. Petitioner is not entitled to a stay when the resolution of his current state claims has no bearing upon the claims presented here. See Patterson v. Thornell, No. CV- 20-02068-PHX-JJT, 2023 WL 3060963, at *3 (D. Ariz. Apr. 24, 2023) (denying request for a stay where petitioner presented “no authority for the proposition that the court can Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 5 of 21
- 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 issue a stay under Rhines to allow a petitioner to exhaust a claim he has not raised”); Myers v. Haviland, No. 3:16 CV 659, 2017 WL 4837479, at *4 (N.D. Ohio Oct. 26, 2017) (noting “this court has denied motions for stay and abeyance when the petitioner seeks a stay in order to exhaust a new claim that is not raised in his habeas petition” because such petitions are not “mixed” under Rhines). The Court will recommend the motion to stay and abey be denied. IV. Ground One: Failure to Present False Confessions Expert. In Ground One, Petitioner argues that his trial counsel was ineffective for failing to “retain, consult, and present an expert witness on false confessions and ‘confrontation calls.’” (Doc. 1 at 10–11.) Petitioner contends that although trial counsel consulted with one expert witness regarding false confessions and confrontation calls, she failed to retain and present an expert at trial. (Id.) Petitioner asserts, “Because the jury only found Mr. Kristoff guilty of the offenses for which he made statements that could have been considered confessions, expert testimony clearly could have resulted in a different verdict.” (Id.) Petitioner further alleges that trial counsel’s “expert testimony would have bolstered Mr. Kristoff’s defense and counsel could have argue[d] that the victims had no ‘independent’ memory, as they alleged[,] but based on their allegations on Mr. Kristoff’s admissions.” (Id.) To succeed in a claim of ineffective assistance of counsel, Petitioner must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668 (1984). First, he must demonstrate that “counsel’s representation fell below an objective standard of reasonableness,” with reasonableness being judged under professional norms at the time assistance was rendered. Id. at 688. Second, he must demonstrate that “there is a reasonable probability that, but for counsel’s error the result would have been different.” Id. at 687– 96. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. at 688. The petitioner has the burden of proving his claim of ineffective assistance and must overcome a “strong presumption that the representation was professionally reasonable.” Id. at 689. Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 6 of 21
- 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner raised this claim in his first PCR proceeding. The superior court ruled: First it should be noted that trial counsel did reach out to an expert on false confessions and was informed that the expert could not help in this case. The fact that appellate/pcr counsel found such an expert does not render trial counsel’s conduct ineffective. See Murtishaw v. Woodford, 255 F.3d 926, 947, 948 (9th Cir. 2001). Second it is not clear that Defendant’s expert would have been permitted to testify. Although the expert’s report indicates she would not offer an ultimate opinion on the validity of the confession, her application to Exhibits 20 and 21 raises concerns that her testimony would invade the province of the jury. “And clearly, an expert should not be permitted to express his opinion in a matter on which the opinion cannot aid the trier of fact in determining the truth of the fact. If the jury is as competent to determine the fact in issue as the expert, ordinarily the expert’s opinion will be of no assistance and should not be admitted.” State v. Kevil, 111 Ariz. 240, 246, 247 (1974). Here the proposed expert would explain to the jury why people might falsely admit a crime in a pretext call. Whether she would be permitted to testify directly to the confessions here is questionable. Defendant testified4 and trial counsel argued5 that Defendant lied in the calls in an effort to end the conversation and move on. The jury was aware of the argument. This Court is not clear how an expert saying that could happen and does happen would help the jury determine if Defendant lied in the pretext calls here. Finally Defendant fails to show that but for the failure to present an expert on the issue of his admissions made in Exhibits 20 and 21, the result of the proceeding would have been different. The proposed expert’s opinion relates to the recorded conversations and does not address any of the other admissions the Defendant made in texts and emails. The evidence reflects that the Defendant made admissions to his family before the recorded calls and continued to make or allude to his admissions and actions well after it is [sic] clear from the exhibits that Defendant’s relationship with his family was broken. (Doc. 12-1, Ex. K, at 297–98.) // 4 Petitioner testified that he made false admissions under the assertion that if he did not so his family would never forgive him nor speak to him again. (Doc. 12-3, Ex. AA at 52.) 5 Trial counsel argued that Petitioner was willing to say anything to his family to keep them communicating with him when faced with threats of losing contact with his wife and children for the rest of his life, even if that meant apologizing and admitting to actions he did not do. (Doc. 12-3, Ex. CC, at 70–134.) Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 7 of 21
- 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Counsel’s Conduct Was Not Objectively Unreasonable. The trial court6 found that counsel contacted an expert and “was informed that the expert could not help in this case.” (Id.) The court concluded that the “fact that appellate/pcr counsel found such an expert does not render trial counsel’s conduct ineffective.” (Id.) The Arizona Court of Appeals affirmed the ruling. Here, the trial court ruling was not objectively unreasonable. Trial counsel contacted Dr. Sarah Gallimore, a clinical and forensic psychologist, to discuss the possibility of testifying about false confessions. (Doc. 12-1, Ex, I, at 225.) According to the State’s Response to the PCR Petition, Dr. Gallimore reviewed information and a transcript. Dr. Gallimore responded to counsel: I’m not sure if I can be of much help. Much of the research on false confessions relates to police interrogation. If there is a police interrogation or other background information from prior to this call that you’d like me to review, let me know. Otherwise, sorry I can’t help on this one. (Id.) It was not unreasonable for the Arizona courts to conclude counsel’s performance was not deficient. Counsel relied on the expert’s statement that she could not assist the defense on the basis there was insufficient research on false confessions to family members. See Dunn v. Reeves, 594 U.S. 731, 739 (2021) (“As to counsel, we have often explained that strategic decisions—including whether to hire an expert—are entitled to a strong presumption of reasonableness” and “is doubly deferential when, as here, a state court has decided that counsel performed adequately”) (cleaned up); Harris v. Vasquez, 949 F.2d 1497, 1525 (9th Cir. 1990) (“It is certainly within the “wide range of professionally competent assistance’ for an attorney to rely on properly selected experts.”) (quoting Strickland, 466 U.S. at 690); Murtishaw v. Woodford, 255 F.3d 926, 946 (9th Cir. 2001) (noting “counsel’s actions are not deficient just because, through the fabled twenty- twenty vision of hindsight, a better course of action becomes apparent”) (cleaned up); Mills v. Singletary, 63 F.3d 999, 1024 (11th Cir.1995) (“The question is whether . . . ending an 6 The trial court ruling is the last reasoned decision of this claim. Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 8 of 21
- 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 investigation short of exhaustion, was a reasonable tactical decision. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end.”) (quotation and citation omitted). B. Scope of Expert Testimony. The Court finds it necessary to add context to the trial court’s statement that it “is not clear how an expert saying that could happen and does happen would help the jury determine if Defendant lied in the pretext calls here.” (Doc. 12-1, Ex. K, at 297–98.) In Tekoh v. Cnty. of Los Angeles, 75 F.4th 1264, 1266 (9th Cir. 2023), the Ninth Circuit reversed a trial court ruling precluding similar testimony. The court concluded “the expert’s proposed testimony was not simply about false confessions, but the coercive questioning tactics that lead to them. Dr. Blandón-Gitlin’s testimony would help the jury better understand coerced confessions, including why just asking questions can be coercive, issues that are beyond a layperson’s understanding and not necessarily obvious, even in these circumstances.” Id. The dissent in Tekoh argued this conclusion created a split with United States v. Benally, 541 F.3d 990, 1011 (10th Cir. 2008) (affirming the preclusion of expert testimony in a child sex abuse case “concerning the frequency of false confessions and the interrogation techniques that cause them”). Because there is no clearly established law from the United States Supreme Court on this issue,7 this Court will assume the expert could have testified to the nature of false confessions but could not give an opinion as to whether Defendant’s statements were untrue. C. Failure to Establish Prejudice. To meet his burden of showing “prejudice” required by Strickland, a petitioner must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This standard is doubly deferential on habeas review. 7 See 28 U.S.C. § 2254(d)(1) (affording habeas as relief for a claim that “involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”). Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 9 of 21
- 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential,” and when the two apply in tandem, review is “doubly” so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard. Harrington v. Richter, 562 U.S. 86, 105 (2011). The trial court found that Petitioner was not prejudiced by trial counsel’s failure to call an expert witness because he could not affirmatively show that it would have changed the verdicts. (Doc. 12-1, Ex. K, at 297–98.) As noted above, the superior court ruled: Here the proposed expert would explain to the jury why people might falsely admit a crime in a pretext call. Whether she would be permitted to testify directly to the confessions here is questionable. Defendant testified and trial counsel argued that Defendant lied in the calls in an effort to end the conversation and move on. The jury was aware of the argument. This Court is not clear how an expert saying that could happen and does happen would help the jury determine if Defendant lied in the pretext calls here. . . . The evidence reflects that the Defendant made admissions to his family before the recorded calls and continued to make or allude to his admissions and actions well after it is [sic] clear from the exhibits that Defendant’s relationship with his family was broken. Id. Petitioner presents, as he did in PCR proceedings, the expert report of Dr. Deborah Davis. (Doc. 1-1 at 205.) Petitioner argues that counsel should have found an expert like Dr. Davis to testify as to “the opinions she could have offered in support of Mr. Kristoff’s defense.” (Doc. 1 at 11.) Petitioner argues Dr. Davis could have testified to the nature of false confessions and bolstered Petitioner’s defense that the victims “based their allegations on [Petitioner’s] admissions.” (Id.) The expert report submits conclusions that a “number of facts of [Petitioner’s] case are consistent with what is known about causes of false confessions generally, and during pretext calls.” (Doc. 1-1 at 215.) She opines that “the Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 10 of 21
- 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 content of KK’s admissions can be explained in ways consistent with processes known to facilitate the construction of confessions later proven to be false.” (Id.) Under the deferential standard of 28 U.S.C. § 2254, the decision of the Arizona courts was not unreasonable. The State presented compelling evidence distinct from statements made by Petitioner during the confrontation calls. Both Mary and Kaci testified at trial that Petitioner abused them.8 Petitioner also sent email messages before and after the confrontation calls at issue.9 Petitioner denied any unlawful physical contact with the victims and testified that he would have said anything to reconnect with his family.10 Petitioner’s counsel argued his defense to the jury. As such, it was not unreasonable for the court to conclude the jury sufficiently understood the evidence so that any limited expert testimony on the subject would not have changed the outcome when compared to the testimony of the victims and substantial evidence presented to the jury. Accordingly, Petitioner’s Ground One claim fails on the merits. V. Ground Two: Failure of Trial Court to Instruct on Lack of Sexual Intent. A. Failure to Instruct on Affirmative Defense of Lack of Sexual Intent. Petitioner claims that “the trial court violated his Fifth/Fourteenth Amendment rights to a fair trial by failing to instruct the jury that, under A.R.S. § 13-1407(E) (Supp. 1994), lack of sexual interest motivation is an affirmative defense to child molestation, Counts 1, 3, 5, and 6.” (Doc. 1 at 12.) 8 The trial court summarized the facts in its PCR order. “Victim MT testified at trial that the defendant performed oral sex on her when she was a child. She testified that it occurred more than one time and it seemed like a nightly routine. She described where the sex acts occurred.” (Doc. 1-1 at 116.) “Victim KP testified at trial that Defendant had her perform oral sex on him two times. She described where and how the acts occurred.” (Doc. 1-1 at 116.) The court’s PCR order contains seven pages of facts relevant to Petitioner’s claim. 9 On August 5, 2017, Petitioner texted MT: “I am profoundly sad about the hurt and pain that I have caused you, my loving wife and my entire family. Nothing and perhaps no amount of time will ever erase the wrong that I have done, but ask for your forgiveness and your prayers as I enter the St. Francis Renewal Center for self-reflection and repair with professional and spiritual guidance over the next year.” (Doc. 1-1 at 116.) On August 8, 2017, Petitioner emailed KP: “I am asking you now to go deep inside yourself and find compassion and forgiveness for me. . . . Yes I fully understand my fault and I readily agree that mine is only fault here.” (Doc. 1-1 at 117.) On October 20, 2017, Petitioner emailed KP: “I am very ashamed of the actions that you refer to of 22 years ago.” (Id. at 118.) The court’s PCR order contains additional emails from the Petitioner to the victims. 10 See Doc. 12-3 at 1533–610; 1688–998. Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 11 of 21
- 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The last reasoned decision of the state courts regarding this claim is the Arizona Court of Appeals’ Memorandum Decision rejecting this argument in his direct appeal: ¶10 Kristoff next argues the superior court erred by failing to instruct the jury that, under A.R.S. § 13-1407(E) (Supp. 1994), lack of sexual interest motivation is an affirmative defense to child molestation, Counts 1, 3, 5, and 6. Almost a year before trial, Kristoff notified the State he intended to prove this defense and requested this instruction in his initial proposed jury instructions. But defense counsel did not raise the defense in her opening statement or closing argument, nor did she object when the court failed to include the instruction in the final instructions, as required under Arizona Rule of Criminal Procedure 21.3(b). ¶11 The State argues Kristoff’s failure to address the lack of sexual- interest- motivation defense during opening statement or closing argument and to object to the omission of the instruction demonstrate a strategic abandonment of the defense at trial. We agree. ¶12 Kristoff’s opening statement and closing argument, in conjunction with his testimony, which emphatically denied all sexual contact with his children, demonstrate a strategic choice to abandon the defense. To be successful in presenting this affirmative defense, Kristoff would have to admit the sexual contact, but negate the motive for the conduct. He could not deny all sexual contact and then press a defense that necessarily required the physical touching of the minors. ¶13 “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” State v. Speers, 238 Ariz. 423, 428, ¶ 16 (App. 2015) (citing Strickland v. Washington, 466 U.S. 668, 690 (1984)). The court was not obligated to instruct the jury on a defense Kristoff abandoned and because Kristoff failed to object before the jury retired, we affirm. Ariz. R. Crim. P. 21.3(b); see State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (explaining that courts “discourage a defendant from tak[ing] his chances on a favorable verdict, reserving the ‘hole card’ of a later appeal on [a] matter that was curable at trial, and then seek[ing] appellate reversal’”) (quotation omitted). Here, Kristoff abandoned the affirmative defense of lack of sexual motivation when he adopted the defense of actual innocence. (Doc. 12-1, Ex. F at 4–5; 1 CA-CR 20-0290 – 2021 WL 4164036 at ¶¶ 10–13.) // /// // Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 12 of 21
- 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, the trial court’s failure to instruct on the affirmative defense of lack of sexual intent was not error because that defense was abandoned. At trial, Petitioner testified and denied all sexual contact with his children.11 Petitioner’s trial counsel likewise argued the defense of actual innocence, and asserted that Petitioner never had any sexual or physical contact with the victims.12 Because the defense of actual innocence was maintained by both trial counsel and Petitioner throughout the course of the trial, it was reasonable for the trial court to not instruct the jury on the defense of lack of sexual intent. See Blythe v. Shinn, 2022 WL 17984466, at *1 (9th Cir. 2022) (lack of jury instruction on sexual intent was not erroneous where the affirmative defense was not raised and defendant’s “primary defense was that he did not engage in sexual contact with the victim altogether”). Thus, the decision of the Arizona Court of Appeals was not clearly erroneous. B. Failure to Instruct on Lesser-Included Offense to Child Molestation Counts. Petitioner also argues that “[a]lthough Mr. Kristoff’s trial counsel did not request an instruction on contributing to the delinquency of a minor as a lesser-included offense to the child molestation counts, jurors are to be instructed on any legal theory supported by the evidence and the evidence supported the instruction.” (Doc. 1 at 12.) Here, as above, federal law does not require a court to sua sponte instruct on a theory of a case not supported by the evidence. See Hopper v. Evans, 456 U.S. 605, 611 (1982) (“[D]ue process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction”); Windham v. Merkle, 163 F.3d 1092, 1105-06 (9th Cir. 1998) (citing Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995)) (“Under the law of this circuit, the failure of a state trial court to instruct on lesser included offenses in a non-capital case does not present a federal constitutional question”). Moreover, contrary to Petitioner’s claim, contributing to the delinquency of a minor is not a lesser included offense to child molestation. See State v. Agueda, 513 P.3d 1112, 1115 (Ariz. 2022) 11 Doc. 12-3, Ex. AA, at 1836 (“Absolutely nothing has happened”), 1976 (“No. Not ever.”); Y, at 1590 (“I can’t even imagine it”). 12 Doc. 12-3, Ex. CC at 2170 (“[I]t didn’t happen, ladies and gentlemen. It just did not happen.”), 2215 (“So we’re circling around and I go back to why would an innocent person confess to a crime?”), 2216 (“I would submit to you, ladies and gentlemen, that he felt his statements were, in fact, coerced, they were made up”). Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 13 of 21
- 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (overruling State v. Sutton, 104 Ariz. 317 (1969) (finding contributing to the delinquency of a minor is not a lesser offense of sexual conduct with a minor “[b]ecause Sutton’s statutory interpretation was conclusory, clearly wrong, and would make contributing to the delinquency of a minor a lessor-included offense of virtually every crime in which a child was the victim”); Speers v. Shinn, CV–22–00172–PHX–JAT–DMF, 2022 WL 18956603, at *9 (D. Ariz. Sept. 16, 2022), report and recommendation adopted, CV 22–00172–PHX– JAT, 2023 WL 1814291 (D. Ariz. Feb. 8, 2023) (denying habeas relief because “contributing to the delinquency of a minor is not a lesser-included offense of molestation under Arizona law” and petitioner therefore could not establish Strickland prejudice). For these reasons, the Court of Appeals decision was not clearly unreasonable. VI. Ground Three: PCR Court Failure to grant Relief on IAC Claim for Failure to Request Jury Instruction on Lesser Included. Petitioner claims that the PCR court violated his Sixth/Fourteenth Amendment rights to effective assistance of counsel by failing to grant him postconviction relief. (Doc. 1 at 13.) He argues trial counsel was deficient in failing to request a jury instruction for Contributing to the Delinquency of a Minor, which he alleges is the lesser included instruction for Molestation of a Child, and that he was prejudiced as a result. The superior court ruled: Defendant argues that trial counsel was ineffective for failing to request a lesser included instruction on contributing to the delinquency of a minor. In light of Defendant’s repeated and adamant denial of ever touching his children inappropriately, this court cannot find that trial counsel’s failure to request an instruction for contributing to the delinquency of a minor is ineffective assistance of counsel. This finding is not impacted by post-trial conversations between trial counsel and appellate/pcr counsel wherein trial counsel indicated she had not considered requesting the lesser included instruction or was not aware she could have requested the instruction. Nor has the Defendant shown that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. At 694. First, it is not clear that a request for the instruction would have been granted. The evidence presented to the jury was either that Defendant never touched his children inappropriately or that he committed the offenses of sexual conduct with a minor and/or molestation Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 14 of 21
- 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of a child. MT testified that Defendant performed oral sex on her. KP testified that Defendant had her perform oral sex on him. In the recorded call Defendant admitting to massaging her vulva for 15 to 20 minutes and allowing KP to touch his penis and perform oral sex on him. Many emails were admitted where the Defendant made admissions regarding sexual abuse of his daughters. The jury was instructed to consider the lesser offense only if they were unable to unanimously agree on the higher offense. The jury clearly understood their duty as they found the defendant not guilty as to Count 1 for the charged offense, but guilty as to the lesser included offense of molestation of a child. The jury found Defendant not guilty of both the charged offense and the lesser included offense in Count 2. The jury found the Defendant guilty of the charged offense and therefore did not address the lesser included offense in Court [sic] 5. The jury found the Defendant not guilty on Count 7 of the charged offense and the lesser included offense. Defendant was acquitted on counts where contributing to the delinquency of a minor could have been lesser included offenses. The verdicts suggest that the jury found that the State had proved the charges beyond a reasonable doubt only when the victim’s testimony and the evidence of Defendant’s admissions aligned. The jury did not find the Defendant guilty of any of the offenses he strenuously denied in the recorded conversations and email. (Doc. 12-1 at 8.) For the reasons set forth in Ground Two, PCR court did not abuse its discretion when it denied Petitioner post-conviction relief for trial counsel’s failure to request a jury instruction for Contributing to the Delinquency of a Minor. Trial counsel’s assistance was not ineffective for failure to request a jury instruction on Contributing to the Delinquency of a Minor where the defense reasonably relied on the theory of actual innocence. See Blythe at 1. As noted above, in overturning State v. Sutton, 452 P.2d 110 (Ariz. 1969), the Arizona Supreme Court ruled that “contributing to the delinquency of a minor is not a lesser included offense to Child Molestation.” See Agueda, 513 P.3d at 1115. VII. Ground Four: Failure to Grant Relief on IAC Claim That Trial Counsel Failed to Object to Inadmissible Testimony. Petitioner claims the PCR court violated his Sixth/Fourteenth Amendment rights to effective assistance of counsel by failing to grant him post-conviction relief, “because his Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 15 of 21
- 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 trial counsel elicited and failed to object to inadmissible testimony from the state’s expert witness that false allegations were uncommon.” (Doc. 1 at 14.) During trial, the state called forensic interviewer Jennifer Ingalls as an expert witness regarding false allegations. (Doc. 12-3 at 8.) The testimony was intended to support the State’s claims that the victims presented truthful testimony even though the “allegations were based on events that occurred when the [victims] were young children.” (Doc. 1 at 14.) Petitioner argues his counsel “asked Ms. Ingalls about the types of reporting in sexual abuse cases.” (Id. at 15.) He argues his counsel should have objected when Ms. Ingalls testified that “malicious disclosures” (false allegations) were “uncommon” and “typically occurred in high conflict custody disputes or teenagers trying to make a change in their living situation.” (Doc. 1 at 14.) The superior court rejected this claim as follows: Defendant asserts that trial counsel was ineffective for eliciting and failing to object to testimony from the State’s expert. Defendant here is challenging a tactical decision made by his trial counsel. Disagreements as to trial strategy or errors do not support a claim of ineffective assistance of counsel if there is a reasonable basis for the conduct. State v. Meeker, 143 Ariz. 256, 262 (1984). It is clear from the record here that trial counsel was attempting to [e]licit some evidence to support that sometimes victims are motivated to lie for some other benefit, and that this case was an example of such malicious disclosures. While this trial strategy might not have been particularly successful, this Court does not find it raises to the level of ineffective assistance of counsel. To the contrary, it must be noted that the jury did not find the Defendant guilty of any charge for which there was not a corresponding admission, so perhaps the line of questioning of the State’s witness did provide some benefit to the Defendant. In any event, in light of the overwhelming evidence of guilt in this case, as well as the fact that Defendant was not convicted for any offense not corroborated by other evidence. Defendant has failed to establish a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. (Doc. 12-1, Ex. K, at 296.) This Court does not review questions of state evidence law. Instead, on habeas review, the Court must decide whether “the admission of the evidence so fatally infected Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 16 of 21
- 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the proceedings as to render them fundamentally unfair.” Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Here, the record shows that trial counsel made a deliberate tactical decision to elicit testimony that some victims may fabricate allegations for personal gain, and that this case might involve such false disclosures. Petitioner’s counsel asked the following of Ms. Ingalls: Q. Moving on to an -- and maybe really going back in time. We talked a little about the false allegations and the malicious reporting or disclosure. Is that - - did you say that that was common in situations of high -- highly disputed custody cases? A. What I said was that it was not -- malicious, false allegations are not common, but when we see them, we tend to see them in high conflict custody disputes. Q. And it can also be done for secondary gain, correct? A. Correct. (Doc. 12-3 at 77.) During closing counsel argued there was “motive in this case” for the victims to “fix” their testimony. (Doc. 12-3 at 2173, 2178.) Counsel argued Petitioner’s wife wanted the “criminal case to go first before the family law case because she believed that there would be a circumstance that she would be entitled to all of the assets” if Petitioner was convicted. (Id. at 2174.) The Arizona Court of Appeals decision was not contrary to clearly established federal law. The testimony by Ms. Ingalls did not rise to the level of the expert giving an opinion on a particular victim’s truthfulness. To the contrary, Ms. Ingalls testified that was not her role.13 The Court also does not find that the term “uncommon” is particularly 13 The trial judge read a juror question to Ms. Ingalls regarding accuser truthfulness: THE COURT: What would lead you to believe an accuser may be lying or exaggerating the truth during a series of forensic questioning? THE WITNESS: Again, I would have to caution anyone to -- and make sure that everyone knows that is not my role inside of a forensic interview or any other forensic interviewer. We conduct forensic interviews using research based on methods to ask children questions . . . . And again, it is up for other people to make the decision whether someone is telling me inside an interview if they’re being truthful or not. Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 17 of 21
- 18 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 informative or persuasive such that it would render the trial fundamentally unfair.14 Also, counsel was able to extract testimony that false allegations can be made for “secondary gain.” (Doc. 12-3 at 77.) The Court of Appeals conclusion that “it must be noted that the jury did not find the Defendant guilty of any charge for which there was not a corresponding admission, so perhaps the line of questioning of the State’s witness did provide some benefit to the Defendant,” (doc. 12-1 at 296), was not clearly unreasonable. Whether counsel’s tactic ultimately succeeded is unknown, but tactical decisions of this nature are afforded substantial deference under Strickland.15 Furthermore, assuming arguendo that counsel erred in failing to object to the expert’s testimony regarding the purported infrequency of false allegations, Petitioner failed to demonstrate resulting prejudice. The superior court observed that Petitioner was only convicted on counts that contained corroborating evidence, and that the evidence of guilt was overwhelming. As such, Petitioner failed to show that the outcome of the trial would have been different but for trial counsel’s alleged errors. See Snowden v. Singletary, 135 F.3d 732, 738-39 (11th Cir. 1998) (improperly admitted evidence is “not crucial, critical and highly significant when other evidence of guilt is overwhelming”) (internal quotes and citation omitted). Accordingly, the superior court’s denial of post-conviction relief on this ground was neither contrary to nor an unreasonable application of clearly established federal law. Further, the superior court’s holding was not an unreasonable determination of the facts in (Doc. 12-3 at 116.) 14 Testimony quantifying the percentage of false accusations is generally disfavored. See United States v. Magnan, 756 F. App’x 807, 814 (10th Cir. 2018) (“holding that testifying as to a “mathematical estimate on the rate of false accusations by victims” is a form of “impermissible credibility bolstering testimony.”); State v. Lindsey, 149 Ariz. 472, 474–75 (1986) (court erred in permitting expert to testify “most people in the field feel that it’s a very small proportion (of incest victims) that lie” because such testimony “usurps the jury’s traditional functions and roles and because, when given insight into the behavioral sciences, the jury needs nothing further from the expert.”). 15 Petitioner’s argument that trial counsel should have objected to the expert’s testimony is not consistent with well-established law. See Hardamon v. United States, 319 F.3d 943, 949 (2003) (citing United States v. Payne, 741 F.2d 887, 891 (7th Cir. 1984) (“A competent trial attorney might well eschew objecting … in order to minimize jury attention to the damaging material”)). Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 18 of 21
- 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 light of the evidence presented at trial. For these reasons, Ground Four fails on its merits. VIII. Ground 5: IAC Claim Regarding Trial Counsel Failure to Investigate and Present Defense Witnesses Martha “Marty” Oyler and Chelsea Stires is Procedurally Defaulted. Petitioner claims trial counsel failed to investigate and present defense witnesses Martha “Marty” Oyler and Chelsea Stires. (Doc. 1 at 16–17.) Petitioner contends that this claim was raised at the Arizona Court of Appeals. (Id.) Although Petitioner raised this claim in the superior court in his petition for post-conviction relief (doc. 1-1 at 83–93), he failed to do so with the Arizona Court of Appeals.16 “Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court.” Baldwin, 541 U.S. at 29 (citations omitted); see also Peterson v. Lampert, 319 F.3d 1153, 1155–56, 1159 (9th Cir. 2003) (en banc). Fair presentation requires a prisoner to “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011). The AEDPA requires a petitioner to “exhaust[ ] the remedies available in the courts of the State” prior to obtaining federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). “To exhaust one’s state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). For the purposes of federal review, the Ninth Circuit has held that a prisoner does not exhaust a claim unless it has been presented to the Arizona Court of Appeals. See, e.g., Castillo v. McFadden, 399 F.3d 993, 998, 1003 (9th Cir. 2004) (“To exhaust his Arizona remedies, Castillo had to give the 16 Petitioner raised four claims in the Court of Appeals: lack of sexual motivation, failure to request a lesser included offense, expert testimony, and failure to present an expert witness. (Doc. 12-1, Ex. L, at 301.) Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 19 of 21
- 20 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Arizona courts a ‘fair opportunity’ to act on his federal due process claim before presenting it to the federal courts. . . . Castillo did not fairly present his federal due process claim to the Arizona Court of Appeals. Thus, he failed to exhaust that claim.”). However, claims are not fairly presented if raised for the first time to a state court on discretionary review. Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004). Here, Petitioner’s failure to exhaust Ground Five in the Arizona Court of Appeals bars him from presenting the claim in a federal court. See Copeland, 33 F.3d at 37 (“A petitioner has not satisfied the exhaustion requirement unless he has fairly presented his claim to the highest state court”). For this reason, Petitioner’s claim cannot be reviewed on its merits. Moreover, Petitioner failed to present an excuse for his procedural default. Federal courts are prohibited from subsequent review unless the petitioner can show cause and actual prejudice as a result. Teague v. Lane, 489 U.S. 288, 298 (1989) (holding that failure to raise claims in state appellate proceeding barred federal habeas review unless petitioner demonstrated cause and prejudice). Petitioner fails to show cause as to the procedural default given that Petitioner presented this claim in the trial court. Petitioner’s failure to show cause prevents meritorious review of Ground 5. See Murray v. Carrier, 477 U.S. 478, 488 (ignorance of the prevailing law or inadvertent omission/mistake in failing to raise certain claims on appeal does not constitute cause). Additionally, Petitioner does not argue actual innocence or offer new evidence to support such a claim. Id. A prisoner may excuse a procedural default by proving actual innocence. See Bousely v. United States, 523 U.S. 614, 622 (1998) (“Actual innocence means factual innocence and not mere legal insufficiency.”). Petitioner does not present any new evidence to support a claim of actual innocence. Thus, Ground Five is procedurally defaulted and cannot be reviewed on its merits. IX. Conclusion. Based on the above analysis, the Court recommends the Petition be denied and dismissed. Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 20 of 21
- 21 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE. IT IS FURTHER RECOMMENDED that the Motion to Stay (doc. 17) be DENIED. IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court’s judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party’s right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report and Recommendation. See Fed. R. Civ. P. 72. Dated this 6th day of February, 2026. Honorable John Z. Boyle United States Magistrate Judge Case 2:24-cv-03395-DWL Document 20 Filed 02/06/26 Page 21 of 21
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