Staley v. JonesStaley v. Jones
ARGUED: Janet A. Van Cleve, OFFICE OF THE ATTORNEY GENERAL, HABEAS CORPUS DIVISION, Lansing, Michigan, for Appellant. David A. Dodge, DODGE
OPINION
SUHRHEINRICH, Circuit Judge.
I. Introduction
On January 1, 1993, the Michigan Legislature enacted a comprehensive stalking law,
On habeas review the district court ruled that the aggravated stalking statute was unconstitutionally overbroad in violation of the First Amendment because the exclusions for “constitutionally protected activity” and “conduct that serves a legitimate purpose” are so limited that the scope of conduct covered by the statute applied to core First Amendment conduct. The court therefore granted Petitioner Jerry Lee Staley’s petition for writ of habeas corpus on July 14, 2000.3
The matter is now before us on the expedited appeal of Respondent Warden Kurt Jones (“Respondent”). Michigan State Senator Dianne Byrum, The Michigan Coalition Against Domestic and Sexual Violence, The Michigan Sheriffs’ Association, and The National Organization for Women, Michigan Conference have filed a joint brief supporting Respondent’s position. The Prosecuting Attorneys Association of Michigan, along with the Michigan Domestic Violence Prevention and Treatment Board have also filed a joint amicus brief supporting Respondent’s view.
A. Facts
In late 1993, Petitioner Jerry Lee Staley was charged with aggravated stalking of his ex-girlfriend, Joellyn Weber. Weber began seeing Staley in April of 1993. She was separated from her husband at the time. On July 4, 1993, however, Weber told Staley that she did not want to see him anymore, because she had reunited with her husband. In October, Weber received a phone call from Staley’s sister-in-law reporting that Staley’s brother had died the previous evening and that, in the sister-in-law’s view, Weber should talk with him. Weber started seeing Staley again as a result of that call. She was separated from her husband again at the time.
On October 31, 1993, Weber and her son Ronnie were visiting Staley at his home. Weber wanted to go shopping, but Staley did not want her to go without him. Weber testified that Staley “threw her around” and tore up her purse. When Weber went to work the next day, Weber had what she characterized as a nervous breakdown and was hospitalized. Weber was discharged on November 5th, went to Staley’s home to pick up some belongings, and told Staley the relationship was over.
That night, when Weber was asleep, Staley entered her home and confronted Weber in her bedroom, trying to get her to change her mind. Weber repeatedly asked him to leave, but he did not. When she yelled for her son, Staley put his hand over her mouth. Weber bit his hand and screamed for her son, who came running. Weber eventually succeeded in getting Staley downstairs. She and her son also went downstairs. Both Weber and Ronnie tried to call the police, but Staley prevented them. Later, Weber tried to push Staley out the front door, and he threw her across the kitchen into the stove. He then left.
Staley then began calling Weber up to fifteen times a day, at home and at work. Weber continued to tell him that she
Staley returned the next day, November 16, 1993. Weber testified that:
I was – my son and I were home. My son was upstairs playing pool. I was in my laundry room doing laundry. And I came out. And he was standing in my living room. He broke in through the back door. And I just immediately sat down. And I just kept looking at the floor and asking – I just kept repeating, please leave, please leave. Hе just slowly started inching towards me on my couch. So I just picked up the phone and I called my brother and – or my brother’s home. And my sister-in-law answered. She asked me if everything was okay. I said no. And she said, he’s there, isn’t he? And I said, yes. And he kept sayin’, who are you talkin’ to, bitch, tell me who you’re talkin’ to. And I wouldn’t say anything. I just kept sayin’, please leave, please leave.
And he went out into the kitchen and he yanked the cord out of the plug-in in the wall. And he came back in and he had a buck knife with him. And he held it by the point and was like this at me (demonstrating) and told me, tell me who you’re talkin’ to, bitch, or I’m gonna slice your gut wide open.
And I knew at that point I had to get out. But my son was upstairs. And I yelled for him. And I didn’t know it at the time, but he was just sitting at the top of the stairs. And he came running down. And I went to jump over my love seat. And I – he grabbed me. And I – I just screamed, Ronnie, call 911, get outta here. And he pulled me back to him and he put the knife right to my throat and he said, bitch, tell me who you’re talkin’ to or I’m gonna slice ya ear to ear. And I screamed to Ronnie to call 911. And he just flung me. And he pulled his pants out and shoved the knife in and he said, fuck it, I’m
gonna go kill your brother and his wife and his kids. And out the door he went.
Later that night, Staley called and told Weber she’d better get out of town, that he was going to kill her mother, her son, and her brother, and that he was going to come to her store the next day and kill her.
After threatening to burn down her house, Staley asked Weber if she had checked her smoke alarm recently. When Weber checked the alarm, the battery was missing. In December 1993, Weber started taping Staley’s phone calls. One evening Staley called constantly from 6:20 p.m. to 2:30 a.m. when Weber took the phone off the hook. The tape was played for the jury, who heard Staley threatening to burn Weber in her sleep, and told her to “say goodbye to Ronnie.”
B. Procedural History
On the day of his conviction, Staley pled guilty to being a habitual offender, fourth offense, in violation of
Having fully exhausted his remedies in state court, Staley filed this federal habeas action. The district court granted Staley’s petition for writ of habeas corpus after concluding that the antistalking statute violates the First Amendment because it is overbroad. See Staley v. Jones, 108 F. Supp. 2d 777 (W.D. Mich. 2000).
Staley argued that Michigan’s aggravated stalking statute is unconstitutionally vague, places defendants at risk of double jeopardy, and unconstitutionally shifts the burden of proof to the defendant. See id. at 779. The district court rejected Staley’s double jeopardy and burden-shifting claims, but agreed that his vagueness arguments have merit because the statute could potentially be applied in violation of the First Amendment. See id. at 779-80, 788.
The district court began by analyzing the statute. The court noted that the statutory definition of “stalking” has threе distinct elements. First, “stalking” requires a “willful course of conduct involving repeated or continuing harassment of another.” Id. at 781. Second, the term “requires that the harassment would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” Id. Third, the definition “requires that the harassment actually cause the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” Id.
Next, the court noted that the term “harassment” has three parts. First, harassment is “conduct directed toward a victim.” Id. (quoting
The court rejected Staley’s argument that part two of the harassment definition was unclear because it contains the phrase “includes, but is not limited to.” Id. at 785-86. In accordance with the well-settled rule of statutory construction that statutes should be construed to avoid constitutional problems, the court concluded that the phrase could “be read to mean that harassing conduct requires repeated unconsented
The district court then turned to Staley’s argument that part three of the harassment definition was unconstitutionally vague because the phrases “constitutionally protected activity” and “conduct that serves a legitimate purpose” were not defined. See id. at 786-88. Staley argued that since the statute was unclear as to what kinds of conduct were excluded from the statute’s reach, the statute violated the First and Fourteenth Amendments. See id.
The district court began its discussion by reciting the well-settled principle that an individual may challenge a statute on its face if that statute infringes on First Amendment freedoms.4 It found the question of whether facial challenges can be mounted on due process grounds to be unsettled,5 but nonetheless held that Petitioner’s due process arguments warranted facial analysis of the statute because: (1) the statute contains no substantial mens rea requirement; (2) the statute provides substantial criminal penalties, including imprisonment; and (3) recent precedent indicates that such challenges are appropriate. See id. at 782-83.
Next, in recognition of the principle that a federal court reviewing a state statute for vagueness should analyze the statute as the highest state court has interpreted it, the district court looked to People v. White, 536 N.W.2d 876 (Mich. Ct. App. 1995). In White, the Michigan Court of Appeals stated
From the foregoing language the district court found “clear evidence” that the Michigan Court of Appeals interpreted the meaning of part three of the harassment definition because the White court specifically referenced the phrases “constitutionally protected activity” and “conduct that serves a legitimate purpose,” “and explained that they have ‘been defined as labor picketing or other organized protests.’” Staley, 108 F. Supp. 2d at 784 (quoting White, 536 N.W.2d at 882). Thus, the district court concluded that “the White court narrowed the meaning of part-three to include only labor picketing or other organized protests.” Id.
The district court held that although the statute criminalizes conduct and not speech, it infringes upon a substantial amount of conduct that lies at the core of the First Amendment: “If only labor picketing and other organized protests are explicitly excluded from the definition of harassment, the statute is at odds with the First Amendment.” Id. at 787. The court cited three examples of First Amendment rights implicated by the White court’s narrow construction of the terms. First, are “the rights of the press to investigate issues of public importance.” Id. The court remarked that if a reporter was persistent in his efforts to question a juror, which caused the juror emotional distress, and if the juror had a reasonable feeling of harassment or fear, the reporter could be prosecuted under the statute. See id.
Second, the district court observed that “commercial speech is placed in jeopardy as well.” Id. at 787-88. The court provided the example of a telemarketer or door-to-door salesman, who could be subject to prosecution for repeatedly soliciting someone. See id. at 788. Third, the court noted that “the rights of ordinary citizens to redress political or legal
The district court concluded:
These examples illustrate that the White court’s interpretation of the phrases “constitutionally protected activity” and “conduct that serves a legitimate purpose” is so limited that it allows application of the statute to core First Amendment conduct. This is not to say that the statute necessarily makes protected conduct illegal or that individuals engaging in this conduct are certain to be prosecuted or convicted. Instead, the vagueness of the statute chills the exercise of First Amendment freedoms because it potentially subjects those who exercise these rights to criminal prosecution. See Broadrick, 413 U.S. at 612-13, 93 S.Ct. 2908 (“[the overbreadth doctrine relies upon the] assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression”). The state of Michigan may certainly criminalize stalking, but it may not do so at the expense of the First Amendment. See id. (“[t]he overbreadth doctrine is predicated on the idea that] the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes”).
Id. The court therefore held that the statute violated the First Amendment because it is overbroad. See id.
Respondent appеals, arguing that the district court erred in allowing Petitioner to mount a facial attack to a state statute on habeas since the statute is constitutional as applied to his conduct. Respondent also contends that the district court misinterpreted the controlling state precedent. Third, he maintains that the state court’s rejection of Petitioner’s facial challenge on First Amendment grounds was not an
III. Standards of Review
Section 2254 authorizes a federal court to grant a writ of habeas corpus to state prisoners if they are held “in custody in violation of the Constitution or laws or treaties of the United States.”
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”) governs federal habeas review of the state court judgment. See id. Under the AEDPA, the writ may not issue unless the state court adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determinаtion of the facts in light of the evidence presented in the State court proceeding.
In Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme Court explained the proper application of
IV. Analysis
A. Habeas Review of Facial Overbreadth Challenge
The district court held that “Staley’s conduct was so abhorrent and harassing that it clearly falls within the zone of conduct that a stalking statute would constitutionally make criminal.” Staley, 108 F. Supp. 2d at 784. The district court nonetheless granted the writ, ruling that the Michigan stalking statute was overbroad because it could hypothetically be applied in an unconstitutional manner. See id. at 788.
Respondent contends habeas relief should not be available to Petitioner because he did not claim that he had engaged in conduct protected by the First Amendment, or that the statute was vague аs applied to him. Respondent contends that First Amendment overbreadth challenges should not be allowed on habeas.7
Respondent acknowledges that the United States Supreme Court has reviewed facial overbreadth challenges under
In urging us to hold that the district court lacked jurisdiction to review Petitioner’s facial challenge, Respondent asserts that “[t]he Supreme Court has not hesitated to reweigh the competing considerations peculiar to cases presented on collateral review, and to reconsider, in that context, the kind of policy considerations that led to the relaxed standing rule in First Amendment cases.” In support, Respondent analogizes to Stone v. Powell, 428 U.S. 465 (1976), wherein the Supreme Court held Fourth Amendment claims that have been raised and decided in state courts cannot be heard on federal habeas court review. See id. at 494 (“where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial”).
In reaching this conclusion, the Stone Court reasoned that the judicially-created exclusionary rule is designed to deter illegal police practices and does not relate to the accuracy of the fact-finding process. See id. at 486, 490-91. Thus, the Stone Court reasoned that its application was particularly inappropriate on habeas:
Application of the rule thus deflects the truthfinding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of
justice. Thus, although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice. These long-recognized costs of the rule persist when a criminal conviction is sought to be overturned on collateral review on the ground that a search-and-seizure claim was erroneously rejected by two or more tiers of state courts.
Id. at 490-91 (footnotes omitted).8 The Supreme Court found that the deterrent value of the exclusionary rule was not enhanced by the possibility that “a conviction obtained in state court and affirmed on direct review might be overturned in collateral proceedings often occurring years after the incarceration of the defendant.” Id. at 493. Nor could it agree that the “overall educative effect of the exclusionary rule would be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions.” Id. Finally, the Court rejected the view that federal habeas corpus review was necessary to protect Fourth Amendment rights because state courts were not “fair and competent forums for the adjudication of federal constitutional rights.” Id. at 493 n.35.
Thus, in Stone, the Supreme Court created an exception to the rule of Brown v. Allen, 344 U.S. 443 (1953), which itself carved out an
As Respondent suggests, the rule allowing facial challenges is a prudential doctrine, not a personal constitutional right. See Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999) (“When asserting a facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing, which we have recognized as a prudential doctrine and not one mandated by Article III of the Constitution.”). Further, the analogy to the Stone rule is inviting, because Petitioner’s conduct clearly falls within the zone of conduct a stalking statute could constitutionally prohibit. Cf. Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992) (stating that a litigant may challenge a statute by showing that it substantially abridges First Amendment rights even if its application to the litigant would be “constitutionally unobjectionable”).
Despite its superficial appeal, this argument must be rejected. Other than the fact that in both situations an admittedly guilty person would escape punishment, cf. Withrow v. Williams, 507 U.S. 680, 704 (1993) (O’Connor, J., concurring in part, dissenting in part) (“Whether the Court admits it or not, the grim result of applying Miranda on habeas will be, time and time again, the release of an admittedly guilty individual who may pose a continuing threat to society.”) (internal quotation omitted), the two doctrines serve different purposes. Admittedly, both rules are prophylactic -- one attempts to deter police misconduct, and the other seeks to prevent the chilling of protected expression. Yet, the exclusionary rule
The overbreadth doctrine, on the other hand, is prospective. Its purpose is to prevent the chilling of future protected expression. See New York v. Ferber, 458 U.S. 747, 768 (1982) (“persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression” (internal quotation omitted)). Its value would therefore not be diminished on habeas. Further, it is intentionally broad in scope. “Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society -- to prevent the statute from chilling the First Amendment rights of other parties not before the court.” Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984). For this reason, any sense of injustice created by the windfall to a guilty defendant is vastly outweighed by the benefit to society in protecting the right to free expression. Thus, the balance struck in the First Amendment overbreadth context is vastly different than that struck in Stone, and not inconsistent with “the idea of proportionality that is essential to the concept of justice.” Stone, 428 U.S. at 490.
The First Amendment occupies hallowed ground in our constitutional jurisprudence. As the Supreme Court has observed, freedom of speech is “delicate and vulnerable, as well as supremely precious in our society.” NAACP v. Button, 371 U.S. 415, 433 (1963). Given the “transcendent value to all society of constitutionally protected expression,” see Lewis v. New Orleans, 415 U.S. 130, 133-34 (1974) (citation omitted), it is not improvident to at least entertain such claims on habeas.
Moreover, the Supreme Court has consistently declined to extend Stone. See Jackson v. Virginia, 443 U.S. 307, 323 (1979) (expressly refusing to extend Stone to due-process challenges to the sufficiency of the evidence); Rose v. Mitchell, 443 U.S. 545, 559-66 (1979) (refusing to extend
Finally, in Stone itself, the Court stressed that its decision restricted the exclusionary rule, not the scope of
Our decision today is not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally. We do reaffirm that the exclusionary rule is a judicially created remedy rather than a personal constitutional right, . . . and we emphasize the minimal utility of the rule when sought to
Stone, 428 U.S. at 494, n. 37 (citation omitted).12
For all these reasons, we decline to hold that First Amendment overbreadth challenges are not reviewable on habeas.
The State also argues that the language of the federal habeas corpus statute,
As Petitioner points out, Williams did not involve a facial challenge to a state statute. At issue was whether the defendant’s attorney had provided ineffective assistance of counsel during the penalty phase of a capital case, which is necessarily a fact intensive issue. Nothing in the opinion suggests that the single sentence extracted by Respondent was intended to have the broad meaning the State has ascribed to it.
Furthermore, the language of the governing statute,
Respondent’s stringing together of references “to the facts” from various sources is unpersuasive. Although the AEDPA has imposed new restrictions on federal habeas, we can find no authority in the legislative history or the case law for the proposition that the AEDPA intended to prohibit facial challenges on habeas. We therefore reject Respondent’s invitation to prohibit facial challenges on habeas.
B. State Court Construction of Stalking Statute
Respondent contends that the district court’s overbreadth analysis is based upon an erroneous conclusion that the Michigan Court of Appeals narrowed the statutory exemptions to include only labor picketing and other organized protests. “‘In evaluating a facial challenge to a state law, a federal court, must, of course, consider any limiting construction that a state court or enforcement agency has proffered.’” Kolender v. Lawson, 461 U.S. 352, 355 (1983) (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982)); Grayned v. City of Rockford, 408 U.S. 104, 110 (1972); see also Johnson v. Fankell, 520 U.S. 911, 916 (1997) (“Neither this Court nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State.”); Gooding v. Wilson, 405 U.S. 518 (1972).14
As noted, the district court held that the White court’s reference to labor picketing or other organized protests was a deliberate statement by the state court that only those activities are exempted from the definition of harassment. See Staley, 108 F. Supp. 2d at 784.16 Based on this
As Respondent contends, there is no indication that the White court’s reference to labor picketing and other organized protests were the only activities excluded by the limiting language. In fact, the portion of the Pallas opinion White refers to is simply a quotation of that state’s exemption in its stalking law: “‘Constitutionally protected activity is not included within the meaning of ‘course of conduct.’ Such constitutionally protected activity includes picketing or other organized protests.’” Pallas, 636 So. 2d at 1360 (quoting
In addition, it is apparent that the White court also read the terms as illustrative not exhaustive, because, in its overbreadth analysis, it concluded that “the statute could not be applied to entirely innocent conduct.” White, 536 N.W.2d
From subsequent opinions it is also apparent that the Michigan Court of Appeals do not perceive White as limiting the statutory exemption to apply only to labor picketing and other organized protests. In People v. Coones, 550 N.W.2d 600 (Mich. Ct. App. 1996), the Michigan Court of Appeals stated that the statutory exemptions have been “defined to include labor picketing and other organized protests.” Id. at 602 (citing White and Pallas). There, the defendant argued that he did not harass the victim because he acted with a legitimate purpose -- to communicate with his wife and preserve his marriage. The Coones court did not reject the defendant’s claim on the grounds that the statutory exclusions applied only to labor picketing or other organized protests, but held that the defendant’s conduct was illegitimate because it was clearly in violation of the temporary restraining order and the conditions of the defendant’s bond.
Similarly, in People v. Kieronski, 542 N.W.2d 339 (Mich. Ct. App. 1995), the Michigan Court of Appeals held that the defendant’s conduct was not exempted under the harassment definition because, although he may have had legitimate business at the public places at which he threatened his victim, the court could discern no legitimate purpose in approaching or confronting the victim in those places. See id. at 343. Had the statutory exemptions been limited by White, as the district court found, there would have been no reason for the Kieronski court to discuss whether the defendant’s behavior was exempted.
Respondent also challenges the district court’s conclusion that the statute is vague. The district court stated that it had not found the White court’s reference to labor picketing and other organized protests so limited the reach of the statute’s exemption, it would find the law unconstitutionally vague because the statute provides no guidance as to what constitutes a “legitimate purpose.” Staley, 108 F. Supp. 2d at 786 n.4.18
C. Overbreadth
Respondent argues that the Michigan Court of Appeals’ rejection of Petitioner’s claim that the statute is overbroad in violation of the First Amendment was not an unreasonable application of United States Supreme Court precedent. The district court found to the contrary, holding that the stalking law “infringes upon a substantial amount of conduct which lies at the core of the First Amendment.” Staley, 108 F. Supp.
The issue we must decide then is whether the state courts’ rejection of Staley’s overbreadth challenge constituted an unreasonable application of federal law, as it existed in 1995-1996. The overbreadth doctrine is well-established. See Broadrick v. Oklahoma, 413 U.S. 601 (1973); Grayned v. City of Rockford, 408 U.S. 104 (1972) (and citations therein). In Broadrick, the Supreme Court explained that the overbreadth doctrine is a limited exception to the traditional standing rule that a person to whom a statute may constitutionally be applied may not challenge that statute on the basis that it may conceivably be applied in an unconstitutional manner to others not before the court.21 The standing exception for First Amendment challenges is based on the recognition that “the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a
On the other hand, “overbreadth scrutiny has generally been somewhat less rigid in the context of statutes regulating conduct in the shadow of the First Amendment, but doing so in a neutral, noncensorial manner.” Id. at 614. That is, overbreadth scrutiny diminishes as the behavior regulated by the statute moves from pure speech toward harmful, unprotected conduct.
[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct -- even if expressive -- falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehеnsive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect -- at best a prediction -- cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. . . . To put the matter another way, particularly where conduct and not
merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.
Id. at 615-16 (emphasis added).
In Broadrick, the Court examined a regulation placing restrictions on political campaign activity by public employees, an area which is not considered “pure speech.” See New York v. Ferber, 458 U.S. 747, 771 (1982). The employees made a facial challenge to the statute, arguing that it could be applied to such allegedly protected political expression as the wearing of political buttons or the displaying of bumper stickers. The Supreme Court upheld the statute. The Court acknowledged some overbreadth, but upheld the statute anyway, because the act was “not substantially overbroad” and that whatever overbreadth might have existed “should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly may not be applied.” Id. at 615-16.
Citing Broadrick, the White court held:
[N]either
§ 411h nor§ 411i is overbroad or impinges on defendant’s right of free speech under United States and the Michigan Constitutions.
White, 536 N.W.2d at 882-83 (citation omitted).
In the сase at bar, the stalking statutes address a willful pattern of conduct, including, but not limited to, following or confronting the victim or calling the victim (i.e. conduct combined with speech), that would cause a reasonable person to feel terrorized, threatened, or harassed, and would cause a reasonable person in the victim’s position to suffer emotional distress. Section
White, 536 N.W.2d at 883 (emphasis added).
The White court held that the statute is directed primarily at conduct, not speech, and therefore subject to Broadrick’s “substantial overbreadth” test for conduct-related statutes. This assessment is not subject to serious debate. The White court then identified the legitimate state interests in prohibiting conduct like the Petitioner’s. As the White court observed:
Defendant’s repeatеd telephone calls to the victim, sometimes fifty to sixty times a day whether the victim was at home or at work, and his verbal threats to kill her and her family do not constitute protected speech or conduct serving a legitimate purpose, even if that purpose is “to attempt to reconcile,” as defendant asserts. The stalking law is aimed at preventing such activity because “[t]he threat of violence, real or perceived, is almost always present in such cases; tragically, it is far from unheard of for a pattern of stalking to end in the stalker killing the stalked.”
White, 536 N.W.2d 883 (citing House Legislative Analysis, HB 5472 and SB 719, January 4, 1993, which became 1992 P.A. 260 and 261, now
Instead of analyzing the state court decision in acсordance with the dictates of
Granted, the district court posed several examples of speech or expressive conduct that could conceivably be restricted under the statute (although less so under a correct interpretation of White). Simply because the district court could cite several examples does not make the statute overbroad, however, especially since none covered the core of
This Court has . . . repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there arе marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the ‘remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable conduct. . . .
Id. at 760. Furthermore, as Broadrick stated, whatever overbreadth exists can be cured on a case-by-case basis. See Broadrick, 413 U.S. at 615-16.
In short, even if the state court of appeals wrongly assessed the First Amendment implications in relation to the statute’s
Although not cited by White, the Supreme Court’s decision in Ferber illustrates why the state court’s application of Broadrick was not an unreasonable application of federal law. In Ferber, the Supreme Court rejected a First Amendment facial challenge to a New York criminal statute that prohibited persons from knowingly promoting sexual performances by children under the age of sixteen, by distributing materials depicting such performances. The New York Court of Appeals invalidated the statute as overbroad because it prohibited the distribution of materials produced outside the state, as well as medical texts and educational sources. The Supreme Court rejected the facial challenge, stating:
We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. New York, as we have held, may constitutionally prohibit dissemination of material specified in
§ 263.15 . While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of§ 263.15 in order to produce educational, medical, or artistic works cannot be known with certainty. Yеt we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fractions of the materials within the statute’s reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on “lewd exhibitions[s] of the genitals.” Under these circumstances,§ 263.15 is “not substantially overbroad and . . . whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.” Broadrick v. Oklahoma, 413 U.S., at 615-616.
Id. at 773-74; see also Osborne v. Ohio, 495 U.S. 103, 112 (1990) (stating that a statute prohibiting possession of “nude” photographs of minors might not be unconstitutionally overbroad in light of the statute’s exemptions and “proper purposes” provisions, in any event, statute was constitutional under state court’s construction, which limited operation of statute to lewd depictions of nudity or graphic focus on the genitals).
In summary, the district court ignored
D. Facial Due Process Challenge
In White, the Michigan Court of Appeals rejected the defendant’s facial challenge to the stalking statute on vagueness grounds. See White, 536 N.W.2d at 884. The district court stated that while a facial attack was clearly available to Petitioner on First Amendment grounds, the issue was less clear whether Petitioner could mount a facial attack on due process grounds. The court concluded, that “[a]lthough the case law on the question is unsettled, the Court bеlieves that Staley’s due process arguments warrant a facial analysis of the statute.” See Staley, 108 F. Supp. 2d at 782. The court also concluded that the statute was vague. See id. at 786 n.4.
Respondent asserts that the White court’s rejection of the defendant’s facial due process challenge did not violate clearly established Supreme Court precedent, since at the time of Petitioner’s appeal, a facial challenge was not recognized on other than First Amendment grounds. In support, Respondent cites United States v. Salerno, 481 U.S. 739, 745 (1987). In Salerno, the Supreme Court stated that to mount a successful facial challenge outside of the First Amendment, a party must “establish that no set of circumstances exists under which the [statute] would be valid.” Id. at 745. See
The plurality in Morales specifically rejected Justice Scalia’s argument, however, noting that the Salerno proposition was dictum, and ruled that since the case sub judice came from a state court, and not a federal court, it need not resolve the viability of Salerno’s dictum. Morales, 527 U.S. at 55 n.22.25 The plurality ruled that it did not need to
Morales was not decided until 1999; Salerno was decided in 1987. The White court, in 1995, and the state appeals panel
As the district court noted, the Supreme Court has indicated that the absence of an intent requirement is an important consideration when determining whether a statute is unconstitutionally vague. See Colautti v. Franklin, 439 U.S. 379, 395 (1979) (“This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea.”). The Court has not, however, unequivocally stated that in such a situation, a statute may be facially invalidated on vagueness grounds without considering whether the statute is invalid in all applications. Indeed, in Hoffman Estates, the Supreme Court noted that the Court has recognized that a scienter requirement may mitigate a law’s vagueness, see id. at 498, but at the same time stated that when a statute is challenged on vagueness grounds, “the complainant must demonstrate that the law is impermissibly vague in all of its applications.” Id. at 497. Given the absence of clear Supreme Court precedent on the subject, the White court’s opinion is not contrary to clearly established federal law, whether or not the Michigan statute lacks a scienter requirement. See Robert P. Faulkner & Douglas H. Hsiao, And Where You Go I’ll Follow: The Constitutionality of Antistalking Laws and Proposed Model
E. Vagueness
As noted, had the district court not narrowly interpreted the statutory exemptions in White, it would have found the Michigan stalking law unconstitutionally vague. It reasoned that, otherwise, the statute provides no guidance to the public and police as to what constitutes a “legitimate purpose.” See Staley, 108 F. Supp. 2d at 786 n.4.
Like overbreadth, the vagueness doctrine was also well-defined at the time of the state court decisions. The Supreme Court has held that the “void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender, 461 U.S. at 357 (citing Hoffman Estates, 455 U.S. 489; Goguen, 415 U.S. 566; Grayned v. City of Rockford, 408 U.S. 104 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Connally v. General Constr. Co., 269 U.S. 385 (1926)). The doctrine focuses on both actual notice and arbitrary enforcement. See id. at 357-58.
The White court stated:
The United States Supreme Court has stated that the “void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definitеness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 . . . (1983). . . . Further, a statute does not provide fair notice of proscribed conduct if it “‘either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its meaning and differ as to its application.’” Id. at 49 . . . (1988). Applying the law to the facts of this case, we believe that the stalking statutes provide fair notice of the prohibited conduct. A person of reasonable intelligence would not need to guess at the meaning of the stalking statutes, nor would his interpretation of the statutory language differ with regard to the statutes’ application, in part because the definitions of crucial words and phrases that are provided in the statutes are clear and would be understandable to a reasonable person reading the statute. Id. Also, the meaning of the words used to describe the conduct can be ascertained fairly by reference to judicial decisions, common law, dictionaries, and the words themselves because they possess a common and generally accepted meaning. We therefore conclude that the statutes are not void for vagueness on the basis of inadequate notice.
Third, defendant asserts that “the trier of fact has unstructured and unlimited discretion to determine whether the complainant was receiving a series of contacts in a positive or in a negative fashion,” which renders the statutes vague. This argument must also fail. Vagueness cannot be established under this prong unless the wording of the statute itself is vague, which the defendant does not allege and which we do not find. Accordingly, we conclude that the stalking statutes are not void for vagueness under these standards.
White, 536 N.W.2d at 884 (internal citations omitted; emphasis added).
The state court’s conclusion that the Michigan stalking law gives fair notice of what conduct is proscribed is not directly contrary to Supreme Court precedent or an unreasonable application of it. The statute defines the offense of stalking as a “willful course of conduct” that is repeated or continuing harassment that causes a reasonable person to feel terrorized,
Although the White court did not discuss in detail the “arbitrary enforcement” aspect of the vagueness analysis, because the issue was not rаised in that case, it did indicate that the claim would fail. Again, such a conclusion is not contrary to, or an unreasonable application of, federal law. As noted, the statute contains requirements that significantly narrow its application and the discretion of police in enforcing the statute. Further, since Staley’s conduct easily met all the elements of the statute, its application to him was not an arbitrary act by law enforcement.
The district court cited two cases in support of its conclusion that the statute would be impermissibly vague if the White court had not limited the “conduct that serves a legitimate purpose” exemption. The state courts’ decision is not directly contrary to, or an unreasonable application of, these decisions. In Papachristou, 405 U.S. 156, the Supreme Court struck down a municipal ordinance providing criminal sanctions for “wandering or strolling around from place to place without any lawful purpose or object.” In Kolender, the Supreme Court invalidated as unconstitutionally vague a criminal statute which provided:
Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . . (e) Who loiters or wanders about the streets or from place to place without apparent reason or business and who refuses to
identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.
Kolender, 461 U.S. at 353 n.1. The Kolender court found that, аlthough the initial detention might be justified by the “surrounding circumstances” clause, the discretion accorded to police to determine what was or was not “credible and reliable” identification was impermissibly vague.
The Michigan stalking statute is dissimilar to the statutes at issue in these cases. In both those cases, totally innocuous behavior could be criminalized. Here, the detailed nature of the Michigan stalking statutes prevents such arbitrary enforcement. Again, the district court erred in engaging in an independent assessment of the stalking statutes rather than following the strictures set forth in AEDPA and as explained in Williams. In sum, Petitioner has not established that the state courts’ conclusion that the stalking statute is not vague is directly contrary to, or an unreasonable application of federal law, as established by the Supreme Court.
V. Conclusion
The state court’s determination that the Michigan stalking statute is not vague or overbroad was not contrary to, or an unreasonable application of, federal law as it existed in 1995-1996. We therefore REVERSE the district court’s grant of Staley’s petition for writ of habeas corpus.
1
Notes
Stone v. Powell, 428 U.S. 465, 491 n.31 (1976) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 259 (1973) (Powell, J., concurring)).Resort to habeas corpus, especially for purposes other than to assure that no innocent person suffers an unconstitutional loss of liberty, results in serious intrusions on values important to our system of government. They include “(i) the most effective utilization of limited judicial resources, (ii) the necessity of finality in criminal trials, (iii) the minimization of friction between our federal and state systems of justice, and (iv) the maintenance of the constitutional balance upon which the doctrine of federalism is founded.”
Id. at 512. But see Stone, 428 U.S. at 493 n.35 (rejecting view that federal habeas corpus review was necessary to protect Fourth Amendment rights because state courts were not “fair and competent forums for the adjudication of federal constitutional rights”).The uniqueness of habeas corpus in the procedural armory of our law cannot bе too often emphasized. It differs from all other remedies in that it is available to bring into question the legality of a person’s restraint and to require justification for such detention. Of course this does not mean that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed. It is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom in the Anglo-American world. ‘The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defense of personal freedom.’ Chief Justice Chase, writing for our Court, in Ex parte Yerger, 8 Wall. 85, 95, 19 L.Ed. 332. Its history and function in our legal system and the unavailability of the writ in totalitarian societies are naturally enough regarded as one of the decisively differentiating factors between our democracy and totalitarian governments.
The notion that Brown v. Allen, 344 U.S. 443 (1953) represents a fundamental change in federal habeas corpus review of state criminal convictions has also been the subject of a longstanding debate. See, e.g., Eric M. Freedman, Brown v. Allen: The Habeas Corpus Revolution That Wasn’t, 51 Ala. L. Rev. 1542, 1542-43 (2000) (“Brown v. Allen has long been the focus of an intense controversy in the history of habeas corpus. . . . [S]ome scholars – in a view that some current Justices accept – argue that the case revolutionized the ability of the federal courts to examine the constitutionality of state criminal convictions, while others assert with equal fervor that the decision ‘worked no revolution when it recognized the cognizability on habeas corpus of all federal constitutional claims presented by state prisoners.’”) (footnotes omitted); Alan Clarke, Habeas Corpus: The Historical Debate, 14 N.Y.L. Sch. J. Hum. Rts. 375, 433 (1998). See Chemerinsky, supra, at 840; see also Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 466, 475 (1963) (arguing that federal habeas is a limited remedy, available only when the state courts lack jurisdiction); and Gary Peller, In Defense of Federal Habeas Corpus Relitigation, 16 Harv. C.R.-C.L.L. Rev. 579, 665-669 (1982) (positing that the federal habeas statute is designed to allow state prisoners a full opportunity to relitigate their constitutional claims in federal court).
In any event, Brown has been partially abrogated by
Withrow, 507 U.S. at 715-16 (Scalia, concurring in part and dissenting in part).By statute, a federal habeas court has jurisdiction over any claim that a prisoner is “in custody in violation of the Constitution or laws” of the United States. See
28 U.S.C. §§ 2241(c)(3) ,2254(a) ,2255 . While that jurisdiction does require a claim of legal error in the original proceedings, cf. Herrera v. Collins, 506 U.S. 390 . . . (1993), it is otherwise sweeping in its breadth. As early as 1868, this Court described it in these terms:“This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It is impossible to widen this jurisdiction.” Ex parte McCardle, 6 Wall. 318, 325-326 . . . (1868).
Our later case law has confirmed that assessment. Habeas jurisdiction extends, we have held, to federal claims for which an opportunity for full and fair litigation has already been provided in state or federal court, see Brown v. Allen, 344 U.S. 443, 458-459 . . . (1953); Kaufman v. United States, 394 U.S. 217, 223-224 . . . (1969), to procedurally defaulted federal claims, including those over which this Court would have no jurisdiction on direct review, see Fay v. Noia, 372 U.S. 391, 426, 428-429 . . . (1963); Kaufman, supra, at 223, . . . Wainwright v. Sykes, 433 U.S. 72, 90-91, . . . (1997); Coleman v. Thompson, 501 U.S. 722, 750 . . . (1991); and to federal claims of a state criminal defendant awaiting trial, see Ex parte Royall, 117 U.S. 241, 251, . . . (1886).
State v. Staley, No. 178555 (Mich. Ct. App. Aug 20, 1996) (unpublished per curiam). The analysis in this case therefore examines the relevant Supreme Court precedent in 1995 and 1996, when White and the Michigan Court of Appeals opinion in the case sub judice were written, respectively. In general, future references will be to the White court opinion, which details the reasoning for rejecting vagueness and overbreadth challenges to the stalking statute, since there appears to be little material change in the applicable precedent in 1995-1996.There is no merit to defendant’s claim that the stalking statute unconstitutionally shifts the burden of proof and is unconstitutionally vague and violative of double jeopardy protectiоns. People v. Coones [sic], -- Mich App -- ; -- NW2d -- (1996)(#166114, rel’d 5-21-96); People v. White, 212 Mich App 298; 535 NW2d 876 (1995); People v. Ballantyne, 212 Mich App 628; 538 NW2d 106 (1995).
White, 536 N.W.2d at 882-83 (citations omitted).It is a basic tenet of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Michigan State AFL-CIO v. Civil Service Comm. (After Remand), . . . 528 N.W.2d 811 (1995), citing Grayned v. Rockford, 408 U.S. 104, 108 . . . (1972). Our Supreme Court has adopted the following standards for evaluating vagueness challenges:
A statute may be challenged for vagueness on the ground that it
– is overbroad, impinging on First Amendment freedoms, or
– does not provide fair notice of the conduct proscribed, or
– is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed.
Dorf, Facial Challenges to State and Federal Statutes, 24 Stan. L. Rev. 235, 239 (January 1994).If Salerno really set forth the governing standard, however, litigants would rarely bring facial challenges. In an as-applied challenge, if the statute in question cannot be constitutionally applied to the litigant, then she will prevail without having to show that no set of circumstances exists under which the statute could be constitutionally applied to someone else. On the other hand, if the litigant loses her as-applied challenge, she will also lose her facial challenge under Salerno because the statute is constitutional in at least one circumstance. In short, a litigant can prevail on a facial challenge only if she can also prevail on an as-applied challenge, and even then she may lose the facial challenge. Under Salerno, a litigant bringing a facial rather than an as-applied challenge gains nothing.
The burden of the first portion of Justice’ SCALIA’S dissent is virtually a facial challenge to the facial challenge doctrine. . . . He first lauds the “clarity of our general jurisprudence” in the method of our assessing facial challenges and then states the clear import of our cases is that, in order to mount a successful facial challenge, a plaintiff must “establish that no set of circumstances exists under which the Act would be valid.” . . . United States v. Salerno, 481 U.S. 739, 745 . . . (1987). To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself (even though the defendants in that case did not claim that the statute was unconstitutional as applied to them, see id. at 745, n.3, . . . the Court nevertheless entertained their facial challenge). Since we, like the Illinois Supreme Court, conclude that vagueness permeates the ordinance, a facial challenge is appropriate. We need not, however, resolve the viability of Salerno’s dictum, because this case comes to us from a state – not a federal – court. When asserting a facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing, which we have recognized as a prudential doctrine and not one mandated by Article III of the Constitution. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 955 . . . (1984). When a state court has reached the merits of a constitutional claim, “invoking prudential limitations on [the respondent’s] assertion of jus tertii would serve no functional purpose.” City of Revere v. Massachusetts Gen. Hospital, 463 U.S. 239, 243 . . . (1983) (internal quotation marks omitted). Whether or not it would be appropriate for federal courts to apply the Salerno standard in some cases – a proposition which is doubtful – state courts need not apply prudential notions of standing created by this Court. See ASARCO Inc. v. Kadish, 490 U.S. 605, 618 (1989). JUSTICE SCALIA’S assumption that state courts must apply the restrictive Salerno test is incorrect as a matter of law; moreover it contradicts “essential principles of federalism.” See Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 284 (1994) (emphasis added).
Furthermore, scholarly comment on the subject discusses the debate both within the Supreme Court and among scholars over when litigants should be able to mount facial challenges. See, e.g., Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321 (2000).