812 F.3d 606
7th Cir.2016Background
- In 2009 Stern posted “Coach Seeking Boy” on Craigslist; an undercover officer posed as a 14-year-old (“Peter”), repeatedly told Stern his age, and arranged a meetup where Stern was arrested.
- Stern was charged under Wis. Stat. § 948.075(1r) for using a computer to facilitate a sex crime against a child; the statute punishes communicating via computerized system with an individual the actor "believes or has reason to believe" is under 16, with intent to have sexual contact in violation of § 948.02.
- § 948.02 offenses are strict liability for the victim’s age (no mens rea as to age).
- At trial Stern argued he subjectively believed Peter was an adult; the jury rejected that defense and convicted.
- Stern sought habeas relief, arguing the Wisconsin appellate court’s interpretation allowing conviction based on an objective “reason to believe” standard (rather than only subjective belief) deprived him of fair notice and violated due process; district court and Seventh Circuit rejected the claim.
Issues
| Issue | Stern's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Wis. Stat. § 948.075(1r) requires subjective belief that the victim is a minor (mens rea as to age) | Stern: statute must require actual (subjective) belief to satisfy intent to commit statutory rape; otherwise "reason to believe" criminalizes conduct without fair notice | State: statute’s plain language includes both subjective belief and objective "reason to believe"; both satisfy element and preserve mens rea for intent to have sexual contact | Held: statute reasonably read to allow conviction on either actual belief or objective "reason to believe"; Wisconsin appellate interpretation not objectively unreasonable |
| Whether the jury instruction mirroring the statute violated due process/ reasonable-doubt requirement | Stern: instruction permitted conviction without proof beyond reasonable doubt of subjective belief as to age | State: instruction correctly tracked statutory elements as reasonably interpreted; jury must find either belief or reason to believe plus intent | Held: instruction proper because it mirrored a reasonable statutory construction; claim fails |
| Whether construing the statute to include "reason to believe" criminalizes consensual adult-adult sexual conduct under Lawrence v. Texas | Stern: objective standard could convict a defendant who actually believed he was communicating with an adult, implicating liberty interest recognized in Lawrence | State: hypothetical scenario differs from case facts; here the undercover repeatedly represented himself as 14 and evidence supported objective reason to believe minor | Held: no Lawrence problem on these facts; statute construction permissible and did not reach consensual adult conduct as applied here |
| Whether the state appellate decision was so unforeseeable or unreasonable to warrant habeas relief under 28 U.S.C. § 2254(d) | Stern: appellate construction was an unforeseeable departure that violated due process | State: appellate court applied plain meaning and established interpretive canons; decision was reasonable | Held: appellate decision was not objectively unreasonable; habeas relief precluded |
Key Cases Cited
- Harrington v. Richter, 562 U.S. 86 (federal habeas relief limited to unreasonable state-court decisions)
- Williams v. Taylor, 529 U.S. 362 (AEDPA’s "unreasonable application" standard explained)
- Corley v. United States, 556 U.S. 303 (statutes should be construed to give effect to all provisions)
- Lawrence v. Texas, 539 U.S. 558 (protected liberty interest in private adult consensual sexual conduct)
- Badelle v. Correll, 452 F.3d 648 (review of state-court decisions for reasonableness under AEDPA)