Unreported / Non-Citable
Background
Angela Leeman was convicted in Arizona of multiple counts of child abuse under former A.R.S. § 13-3623(B)(1) for harm to her young son in 1993. Count 1 charged that, having the child's care or custody, she knowingly or intentionally caused or permitted him to be placed in an endangering situation by failing to get medical attention between May 30 and June 12, 1993. Count 8 charged that between June 8 and June 12 she caused or permitted him to be injured, specifically a fracture to the head of the left humerus. She was also convicted on Counts 5 through 13.
The Arizona Court of Appeals rejected her multiplicity arguments in post-conviction review, and the Arizona Supreme Court denied review. The District of Arizona then denied her amended federal habeas petition. On appeal she argued that Counts 1 and 8 violate the Double Jeopardy Clause and made the same assertion about Counts 5–13. The respondents agreed that Counts 1 and 8 are multiplicitous but opposed relief on Counts 5–13. The panel nonetheless reviewed the claim independently rather than accepting the concession.
The Court’s Holding
The Ninth Circuit affirmed. It rejected the parties' view that review was de novo. Leeman had raised multiplicity in the state courts, which rejected the argument wholesale, so the claim is presumed adjudicated on the merits and AEDPA deference applies. The panel therefore asked only whether the Arizona Court of Appeals, the last reasoned state decision, unreasonably applied clearly established federal law or unreasonably determined the facts.
On the merits, the court looked to the legislature's allowable unit of prosecution and the Blockburger inquiry into whether each charge requires proof of a fact the other does not. Arizona treats § 13-3623 as an alternative-means statute defining a single offense, and alternative means and multiple acts may overlap when the State alleges distinct acts for separate means. Count 1 rested on endangerment through failure to get medical care, while Count 8 charged a specific injury, the humerus fracture. The jury instructions limited Count 8 to the moment of the fracture. Trial medical testimony indicated the injury was likely to cause permanent disfigurement or protracted impairment, which could reasonably qualify as serious physical injury. Worsening from delayed care was separate from whether she caused or permitted the initial injury, and the jury alternatively could have convicted based on circumstances likely to cause serious injury or death. The state court's conclusion was therefore reasonable, despite the concession.
The panel declined to reach a claim that Counts 5–13 are multiplicitous with one another. Her petition argued only that those counts were multiplicitous with Count 1, and her counsel confirmed that understanding in the district court. Even if the certificate of appealability could be read to cover the new theory, she forfeited it by not raising it in the district court.
Key Takeaways
- AEDPA deference applies when a federal claim was presented to the state courts and rejected, even if the state court did not address the specific theory later urged, absent an indication to the contrary.
- A federal court must independently review a double jeopardy claim even when the respondents concede error, and a concession does not displace AEDPA's limits.
- Under Arizona's alternative-means child abuse statute, an endangerment count based on failure to get medical care and an injury count based on a specific fracture can rest on distinct acts and survive multiplicity review.
- Habeas claims not raised in the district court are forfeited on appeal, even if the certificate of appealability might be read broadly enough to cover them.
Why It Matters
This is an unpublished, non-precedential memorandum under Ninth Circuit Rule 36-3, so it binds no later panel. It does illustrate how the court applies AEDPA deference to a multiplicity claim and how closely it examines the charging language, jury instructions and trial evidence to decide whether counts rest on distinct acts.
The practical result is that no habeas relief was granted, and the Count 8 conviction stands even though the respondents conceded the multiplicity point. The question whether Counts 5–13 are multiplicitous with one another remains unresolved in this proceeding because it was never presented to the district court. The decision also shows why habeas counsel must frame every theory in the petition itself.