Neely v. McDaniel, 2012 U.S. App. LEXIS 8908

Neely pleaded guilty in Arkansas state court to five misdemeanor harassing communications and two felonies for sexual indecency with a child after calling minors in Lonoke, Arkansas.
Arkansas § 5-14-110(a)(1) makes it a crime to solicit a person under 15 to engage in sexual activity.
Neely received five years probation and must register as a sex offender; probation supervision was transferred to New Mexico by agreement.
Arkansas sought to revoke his probation for violations; the petition was dismissed, and Neely then pursued a federal habeas petition under 28 U.S.C. § 2254.
The Arkansas trial court and supreme court ruled Neely was not in state custody; the district court dismissed the habeas petition, and this court granted a COA on appeal.
The appeal raises whether § 5-14-110 is facially unconstitutional for vagueness or overbreadth and whether the statute requires knowledge of the victim's age.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is § 5-14-110 vaguer than constitutionally permissible?	Neely argues 'solicits' provides insufficient notice.	McDaniel argues ordinary meanings and dictionary definitions supply notice; statute not impermissibly vague.	No; statute sufficiently delineates proscribed conduct.
Is § 5-14-110 overbroad in restricting protected speech?	Neely contends broad application chills First Amendment activity.	McDaniel contends statute targets illicit solicitation of minors, not protected speech.	No; overbreadth limited to illicit solicitation and narrow in impact.
Does § 5-14-110 violate due process by omitting knowledge of victim's age (mens rea)?	Neely asserts lack of knowledge element creates due process problem.	State may rely on default mens rea or allow reasonable mistake of age defense; no per se violation.	Not unconstitutional under either interpretation; reasonable defense and default mens rea preserve due process.
If mens rea is required, does the reasonable mistake of age defense cure any due process concerns?	Argues the defense is inadequate or misapplied if strict liability applies to age.	Defense exists and does not undermine proof of all elements beyond a reasonable doubt.	Affirmed that the defense and potential mens rea interpretations uphold due process.

Tollett v. Henderson, 411 U.S. 258 (1973) (pre-plea collateral attacks on guilty pleas)
Weisberg v. State of Minn., 29 F.3d 1271 (8th Cir. 1994) (precludes challenges to constitutionality of plea-related issues when guilty plea entered)
United States v. Salerno, 481 U.S. 739 (1987) (facial challenge requires no set of circumstances where statute would be valid)
Kolender v. Lawson, 461 U.S. 352 (1983) (vagueness standard for penal statutes)
Rose v. Locke, 423 U.S. 48 (1975) (dictionary sources can illuminate meaning of terms)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine; sparingly used)
United States v. Williams, 553 U.S. 285 (2008) (offers to engage in illegal transactions not protected by First Amendment)
United States v. Wilcox, 487 F.3d 1163 (8th Cir. 2007) (due process and knowledge of victim's age in sex offenses)
X-Citement Video, Inc. v. United States, 513 U.S. 64 (1994) (strict liability considerations in child pornography context when depictions involved)
Patterson v. New York, 432 U.S. 197 (1977) (state may impose burden-shifting or require proof of all elements; due process considerations)
Mullaney v. Wilbur, 421 U.S. 684 (1975) (due process and burdens of proof for element elements; burden-shifting concerns)
Staples v. United States, 511 U.S. 600 (1994) (presumption of mens rea in criminal statutes; not always applied)