Lead Opinion
Rеversed and remanded by published opinion. Judge KING wrote the majority opinion, in which Judge MOTZ joined. Judge DIAZ wrote a dissenting opinion.
OPINION
In 2005, William Scott MacDonald was convicted after a bench trial in the Circuit Court of the City of Colonial Heights, Virginia, of two offenses: the misdemeanor offense of contributing to the delinquency of a minor, in contravention of Virginia Code section 18.2-371; and the felony offense of violating the Commonwealth’s criminal solicitation statute, found in section 18.2-29. The criminal solicitation statute provides that “[a]ny person age eighteen or older who commands, entreats, or otherwise attempts to persuade another person under age eighteen to commit [a predicate felony, i.e.,] a felony other than murder,” shall be guilty of a felony. Va. Code § 18.2-29.
In 2009, after failing to obtain relief on direct appeal and in state postconviction proceedings, MacDonald filed a 28 U.S.C. § 2254 petition in the Eastern District of Virginia. MacDonald alleged, among other things, that his criminal solicitation conviction, insofar as it was predicated on the anti-sodomy provision of Virginia Code section 18.2-361(A), contravened the Constitution. More specifically, MacDonald contended that the predicate anti-sodomy provision had been rendered invalid by the Supreme Court’s decision in Lawrence v. Texas,
On October 24, 2011, MacDonald filed a timely notice of appeal. He thereafter requested the issuance of a certificate of appealability (“COA”) from this Court. See 28 U.S.C. § 2253(c)(1)(A). We granted his COA request on April 17, 2012, identifying the issue for appeal as whether Virginia Code section 18.2-361(A) is unconstitutional either facially or as applied in MacDonald’s case, in light of the Supreme Court’s Lawrence decision. The COA circumscribes this appeal to an examination of the constitutionality of a single aspect of section 18.2-361(A), which provides:
If any person ... carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a [felony.]
We herein use the term “anti-sodomy provision” to refer to the foregoing portion of section 18.2-361(A).
I.
MacDonald was forty-seven years old at the time of the events giving rise to his state court convictions.
Nearly three months later, in December 2004, MacDonаld filed a report with the Colonial Heights police maintaining that Johnson had abducted and sexually assaulted him. MacDonald thereafter met ■with and was interviewed by Detective Stephanie Early. MacDonald advised Early that, sometime in September, Johnson had paged him and asked that he meet her in the Home Depot parking lot. MacDonald stated that, once they met, he got into Johnson’s car and she drove them away. When MacDonald asked Johnson where she was going, she did not respond. MacDonald told her, “[T]his has got to stop, lose my number, I’m married, don’t call me anymore.” J.A. 59. MacDonald also advised Detective Early that he and Johnson stopped at a location on Canterbury Lane in Colonial Heights, and “at that point Ms. Johnson forcibly removed his penis from his pants and performed oral sex against his will.” Id. MacDonald acknowledged that he knew Johnson was only seventeen years old.
Soon thereafter, Detective Early met with and interviewed Johnson, who gave a sharply conflicting account of what had occurred. Crediting Johnson’s version of the events, Early secured three arrest warrants for MacDonald, charging: (1) the felony criminal solicitation offense; (2) the misdemeanor offense of contributing to the delinquency of a minor; and (3) the misdemeanor offense of “knowingly giv[ing] a false report as to the commission of a crime to the Police with the intent to mislead,” in violation of Virginia Code section 18.2-461. See J.A. 4-6. MacDonald was arrested on January 25, 2005. He was prosecuted in the Juvenile and Domestic Relations Court of Colonial Heights on the false police report charge, and in the circuit court on the other two charges.
On May 25, 2005, MacDonald pleaded guilty to filing a false police report, in connection with his false complaint to Detective Early. As a result, he was sentenced to twelve months in jail, with six months suspended. On June 7, 2005, MacDonald moved in the circuit court to dismiss the criminal solicitation charge on the ground that the predicate felony — the anti-sodomy prоvision — -violated his due process rights. Relying on Lawrence v. Texas, MacDonald asserted that the Supreme Court had invalidated all state statutes that prohibit “consensual sodomy between individuals with the capacity to consent.” J.A. 24. A bench trial was conducted in the circuit court on July 12, 2005, where Johnson, Early, MacDonald, and MacDonald’s wife testified.
II.
A.
MacDonald appealed his circuit court convictions to the Court of Appeals of Virginia. In doing so, he argued that, in light of Lawrence v. Texas, the anti-sodomy provision was facially invalid “insofar as it relates tо consensual sodomy between unrelated individuals who have reached the age of consent,” by infringing on the liberty interests protected by “the Due Process Clause of the Fourteenth Amendment.” S.J.A. 14. MacDonald thus maintained that the anti-sodomy provision could not serve as a predicate felony for the criminal solicitation offense.
In January 2007, the state court of appeals ruled that MacDonald lacked “standing to assert [the facial due process claim]” and dismissed his appeal. See MacDonald v. Commonwealth, No. 1939-05-2,
On September 16, 2009, MacDonald, again proceeding pro se, filed his 28 U.S.C. § 2254 petition in the Eastern District of Virginia. Therein, MacDonald theorized that his conviction was “in violation of the ex post facto guarantee of the U.S. Constitution because [the anti-sodomy provision] is Facially Unconstitutional and also because it carries punishments that are in direct conflict with Equal Protection of the Law.” J.A. 292. MacDonald maintained, as he had at each previous opportunity, that the Lawrence decision invalidated all state anti-sodomy provisions, and that the Supreme Court “acted in accordance with numerous prior precedents that struck down laws impinging upon the liberty guarantees of the Fifth and Fourteenth Amendments.” Id. at 301. The district court, “[i]n deference to petitioner’s pro se status,” trifurcated MacDonald’s constitutional challenges into (1) an ex post facto claim; (2) a facial due process attack; and (3) an as-applied due process challenge to the anti-sodomy provision. See Opinion 5.
In its Opinion, the district court dismissed MacDonald’s ex post facto claim “to the extent that [it] differs from the facial attack,” as proeedurally barred under the rule of Slayton v. Parrigan,
The Court of Appeals of Virginia’s determination is based on clearly established federal law. Virginia considers persons aged sixteen and seventeen to be children, and the Supreme Court in Lawrence explicitly stated that the ruling did not apply to sexual acts involving children. Thus, the holding that Va. Code § 18.2-361 is not unconstitutional as applied to MacDonald is not contrary to, or an unreasonable] application of, federal law.
Id. at 9 (citations omitted).
III.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs a federal court’s handling of a 28 U.S.C. § 2254 petition filed by a state prisoner. We review de novo a district court’s denial of a § 2254 petition. See Deyton v. Keller,
rv.
A.
In this appeal, MacDonald pursues both facial and as-applied due process challenges to the anti-sodomy provision. He contends not only that the anti-sodomy provision was unconstitutional as applied to him, but also that Lawrence v. Texas compels the facial invalidation of the anti-sodomy provision under the Fourteenth Amendment.
“where the statute in question has already been declared unconstitutional in the vast majority of its intended applications, and it can fairly be said that it was not intended to stand as valid, on the basis of fortuitous circumstances, only in a fraction of cases it was originally designed to cover.”
Br. of Appellant 14 (quoting United States v. Raines,
MacDonald next asserts that the Virginia courts have impermissibly interpreted Lawrence as authorizing them to recast the anti-sodomy provision — -which by its terms bans all sodomy offenses — and apply the provision solely to sodomy offenses that involve minors. In explaining his position, MacDonald contends thаt
[t]he courts’ re-writing of the [anti-sodomy provision] wrongly “substitute^] the judicial for the legislative department of the government” and creates a “dangerous” precedent to encourage legislatures to “ ‘set a net large enough to catch all possible offenders, and leave it to the courts to step inside’ to announce to whom the statute may be applied.”
Br. of Appellant at 17-18 (quoting Ayotte v. Planned Parenthood of N. New Eng.,
More particularly, Virginia Code section 18.2~370(A) prohibits any person over eighteen from proposing certain sexual conduct (including sodomy) to “аny child under the age of 15 years.” The foregoing provision, MacDonald maintains, was plainly not intended to criminalize activity with minors fifteen or older. He thus contends that Virginia’s judicial rewriting of the anti-sodomy provision, rendering it applicable to the solicitation of sodomy from a minor under eighteen, runs afoul of the age specification (“any child under the age of 15 years”) embedded in section 18.2-370(A). MacDonald further asserts that the judicial redrafting of the anti-sodomy provision by the Virginia courts contravened his due process rights because he did not have — and could not have had — fair notice that the anti-sodomy provision would be construed in a way that renders it applicable to his conduct.
The Commonwealth responds to MacDonald’s contentions by maintaining that Lawrence did not “establish the unconstitutionality of solicitation statutes generally ..., or MacDonald’s solicitation in particular.” Br. of Appellee 8. Positing that Lawrence simply does not apply to statutes that criminalize sodomy involving a minor, Virginia emphasizes the district court’s determination that the anti-sodomy provision is constitutional as applied to MacDonald. The Commonwealth then asserts that MacDonald lacks standing to pursue a facial challenge to the anti-sodomy provision under the Supreme Court’s Ulster County decision, because the provision can be constitutionally applied in various circumstances, including those underlying this appeal.
B.
1.
Put succinctly, the Ulster County decision does not operate to deny standing for MacDonald to pursue a facial due process challenge to the anti-sodomy provision. Under the Article III case-or-controversy requirement, a litigant must assert a concrete interest of his own. See Lujan v. Defenders of Wildlife,
In Ulster County, the Supreme Court assessed a habeas petition filed by three state prisoners, challenging a New York statute that permitted a jury to presume that two firearms found in the vehicle in which they were riding had been jointly possessed by them all. The Second Circuit declared the statute facially unconstitutional, emphasizing its broad reach in potentially applying the presumption to vehicle occupants “ Vho may not know they are riding with a gun’ ” or “ ‘who may be aware of the presence of the gun but not permitted access to it.’ ”
The Supreme Court reversed the court of appeals, however, ruling that the Second Circuit had unnecessarily addressed the issue of the statute’s facial invalidity. According to the Court, the presumption was constitutionally applied to the three Ulster County petitioners, in that the firearms had been discovered in a handbag belonging to the vehicle’s fourth occupant — a sixteen-year-old female. The Court explained the applicable principle as this:
A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.
Ulster Cnty.,
Because, as we explain below, the anti-sodomy provision is unconstitutional when applied to any person, the state court of appeals and the district court were incorrect in deeming the anti-sodomy provision to be constitutional as applied to MacDonald. MacDonald is thus asserting his own concrete injury, and the state court’s standing determination, as endorsed by the district court, was contrary to and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States.
In Lawrence, the Supreme Court plainly held that statutes criminalizing private acts of consensual sodomy between adults are inconsistent with the protections of liberty assured by the Due Process Clause of the Fourteenth Amendment.
On the third question, relating to Bowers v. Hardwick, the Court readily con-eluded that “[t]he rationale of Bowers does not withstand careful analysis.... Bowers was not correct when it was decided, and it is not correct today.... Bowers v. Hardwick should be and now is overruled.” Lawrence,
The Martin decision reversed the trial court’s judgment against the plaintiff, who sought damages because the defendant had infected her with herpes. The defendant had demurred to Martin’s motion for judgment, pointing out that Virginia law barred tort recovery for injuries sustained while participating in an illegal activity. In its ruling, the state supreme court concluded that there was “no rеlevant distinetion between the circumstances in Lawrence ” and those in Martin, recognizing that, “but for the nature of the sexual act, the provisions of [the challenged statute] are identical to those of the Texas statute which Lawrence determined to be unconstitutional.” Martin,
Although both parties in the Martin case were adults, there is no valid reason why the logic of that ruling should not have applied with equal force to the ruling of the Court of Appeals of Virginia in MacDonald’s case. It is not sufficient that the Martin plaintiff was doubtlessly more deserving of the court’s sympathy than MacDonald. True enough, the Supreme Court implied in Lawrence that a state could, consistently with the Constitution, criminalize sodomy between an adult and a minor. See Lawrence,
Recently, we had occasion to consider a facial challenge to a much different statute, but the analysis in that case informs the issue presented here. See United States v. Moore,
The Latorence Court, as in Heller, struck down a specific statute as unconstitutional while reserving judgment on more carefully crafted enactments yet to be challenged. The salient difference between § 922(g) and the anti-sodomy provision, however, is that § 922(g), in a relatively narrow fashion, regulates the possession of firearms by felons, while the anti-sodomy provision, like the statute in Lawrence, applies without limits. Thus, although the Virginia General Assembly might be еntitled to enact a statute specifically outlawing sodomy between an adult and an older minor, it has not seen fit to do so.
In Ayotte, the Court recognized the important principle that, “[gjenerally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving the remainder intact.”
[Mjindful thаt our constitutional mandate and institutional competence are limited, we restrain ourselves from rewriting state law to conform it to constitutional requirements even as we strive to salvage it.... [Mjaking distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a far more serious invasion of the legislative domain then we ought to undertake.... All the while, we are wary of legislatures who would rely on our intervention, for it would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside to announce to whom the statute may be applied. This would, to some extent, substitute the judicial for
the legislative department of the government.
Id. at 329-30,
It is accurate for us to observe that facial constitutional challenges to state statutes are generally disfavored, see Wash. State Grange v. Wash. State Republican Party,
V.
Pursuant to the foregoing, we reverse the judgment of the district court and remand for an award of habeas corpus relief.
REVERSED AND REMANDED.
Notes
. The district court’s unpublished Opinion is found at J.A. 400-12. (Citations herein to "J.A. _” refer to the contents of the Joint Appendix filed by the parties in this appeal. Citations to "S.J.A__” refer to the contents of the Supplemental Joint Appendix.)
. The remainder of Virginia Code section 18.2-361(A) prohibits bestiality by criminalizing the carnal knowledge “in any manner [of] any brute animal." The constitutionality of the bestiality portion of subsection (A) is not challenged in this proceeding nor affected by today’s decision.
.Our account of the facts is largely derived from the evidence presented at MacDonald’s bench trial in state court. The facts are recited in the light most favorable to the Commonwealth, as the prevailing party in the trial. See Roach v. Angelone,
. At his bench trial, MacDonald testified con-sistendy with his initial version of the events of September 23, 2004, under which he had been abducted and sexually assaulted by Johnson. By its verdict, the trial court rejected that testimony.
. Though the appellant’s last name in the earlier аppeal is spelled differently, it is clear that both appeals involved the same individual, known here as petitioner William Scott MacDonald.
. After the state court of appeals affirmed his earlier sodomy convictions, MacDonald sought review in the Supreme Court of Virginia. See McDonald v. Commonwealth,
.MacDonald subsequently sought state post-conviction relief, raising claims of ineffective assistance of counsel and violations of his ex post facto guaranties. The state supreme court dismissed MacDonald’s petition for appeal, however, ruling, inter alia, that his ex post facto claim was "barred because this non-jurisdictional issue could have been raised at trial and on direct appeal and, thus, is not cognizable in a petition for a writ of
. The Opinion does not specify that MacDonald's as-applied challenge was based on the Due Process Clause of the Fourteenth Amendment. The district court recognized, however, that MacDonald relied on the Lawrence decision for his pursuit of this claim, and Lawrence was decided on Fourteenth Amendment due process grounds.
. MacDonald also seeks to invalidate his criminal solicitation conviction on equal protection and ex post facto grounds. Inasmuch as we conclude that MacDonald is entitled to relief on his primary due process claim, we need not consider the alternative bases he has asserted.
. The Commonwealth also contends that the resolution of MacDonald's earlier case relating to his 2005 sodomy convictions — particularly our 2010 denial of a COA, see supra note 6 — has become the law of the case, or, alternatively, is collaterally estopped from relitigation. We disagree. First, the doctrine of law of the case restricts a court to legal decisions it has made on the same issues in the same case. See Christianson v. Colt Indus. Operating Corp.,
. In our resolution of the standing issue, we are, of course, necessarily concluding that the Virginia courts wrongly decided MacDonald's as-applied challenge to the anti-sodomy provision. As explained below, however, we see the provision as not only unconstitutional as
. The Georgia statute upheld in Bowers, and deemed unconstitutional by the Supreme Court in Lawrence, was strikingly similar to the anti-sodomy provision. It provided, in pertinent part, as follows:
"A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another....”
Bowers,
. Our good colleague in dissent accords controlling weight to a single instance of word choice in Lawrence, seizing upon Justice Ken
The dissent’s finely honed distinction that, unlike Lawrence and Bowers, this "case” involves minors, is made possible solely by the Commonwealth’s decision to institute prosecution of a man who loathsomely solicited an underage female to commit an act that is not, at the moment, a crime in Virginia. The Commonwealth may as well have charged MacDonald for telephоning Ms. Johnson on the night in question, or for persuading her to meet him at the Home Depot parking lot. The legal arm of the Commonwealth cannot simply wave a magic wand and decree by fiat conduct as criminal, in usurpation of the powers properly reserved to the elected representatives of the people.
. It is worth noting that the Martin court rejected as waived the defendant's argument that the plaintiff lacked standing to contest the statute's constitutionality (in that she was unlikely to be prosecuted), but nonetheless assured itself that its ruling did not amount to an advisory opinion, inasmuch as "the Court's decision on the constitutionality of [the challenged statute] will determine Martin's right to pursue her tort claim for damages.”
. Section 922(g) provides, in pertinent part, that "[i]t shall be unlawful for any person ... who has been convicted in any court of[] a crime punishable for a term exceeding one year ... to possess ... any firearm or ammunition."
. As explained heretofore, it is a felony in Virginia for an adult to solicit sodomy from "any child under the age of 15 years.” Va. Code § 18.2-370(A). Because Johnson was seventeen years old when she was solicited by MacDonald, he could not be charged with violating that statute.
. The matter before us evidences a rather plain example of state action that is flatly contrary to controlling Supreme Court precedent, and therefore cannot stand. The restraints of AEDPA do not preclude federal intervention in these relatively infrequent instances where the petitioner's right to relief is manifest. See Elmore v. Ozmint,
Dissenting Opinion
dissenting:
In concluding that Lawrence v. Texas,
I.
While we review a district court’s denial of habeas relief de novo, Wolfe v. Johnson,
The majority elides this burden altogether, passing upon the constitutionality of the Virginia anti-sodomy provision as if it were presented in the first instance. In doing so, my colleagues fail to account for the rigor of federal habeas review, which is not intended to be “a substitute for ordinary error correction through appeal.” Id. Because MacDonald’s conviction does not rise to the level of an “extreme malfunction[] in the state criminal justice system[],” id. (quoting Jackson v. Virginia,
A.
The majority grants MacDonald federal habeas relief on the basis that the Virginia аnti-sodomy provision
The majority appears to disagree with this “as-applied” interpretation of Lawrence on two unrelated grounds. First, Lawrence overruled Bowers v. Hardwick,
B.
In Lawrence, Texas police officers responding to an alleged weaрons disturbance entered a private residence where two men were engaged in a sexual act. Lawrence,
Overruling Bowers, Lawrence explained that decisions made in private by consenting adults “concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” Id. at 578,
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek tо enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.
Id.
The majority characterizes this segment of the opinion as “ruminations concerning the circumstances under which a state might permissibly outlaw sodomy” that “no doubt contemplated deliberate action by the people’s representatives, rather than by the judiciary.” Maj. Op. at 165. I do not see how the majority can be so certain. If anything, the commentary on what “the present case does not involve” is characteristic of an as-applied ruling, particularly because the Court used the words “this case,” not “this statute,” to limit its holding. See Lawrence,
This language arguably confines the scope of constitutional protection to private sexual intimacy between consenting adults. In fact, the Court repeatedly emphasized these distinctions throughout its historical and legal analysis of sodomy laws. See id. at 567-69, 571-73,
Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions ... were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law.... Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.
Id. at 569,
In any event, in order for MacDonald to prevail on his federal habeas petition, it must be clear that Lawrence facially invalidated all sodomy statutes. See Harrington,
The majority also relies on Martin v. Ziherl,
It is important to note that this case does not involve minors, non-consensual activity, prostitution, or public activity. The Laurrence court indicated that state regulation of that type of activity might support a different result. Our holding, like that of the Supreme Court in Lawrence, addresses only private, consensual conduct between adults and the respective statutes’ impact on such conduct.
Ziherl,
Given the opaque language of Lawrence, I do not share the majority’s conviction concerning the facial unconstitutionality of Virginia’s anti-sodomy provision. Reasonable jurists could disagree on whether Lawrence represented a facial or an as-applied invalidation of the Texas sodomy statute. In fact, they already have. Compare Massachusetts v. U.S. Dep’t of Health & Human Servs.,
C.
The majority also misreads Ayotte, effectively turning the “normal rule” of “partial, rather than facial, invalidation” on its head. Ayotte,
Furthermore, the majority overlooks that Ayotte actually declined to facially invalidate the New Hampshire statute at issue in that case because there was “some dispute as to whether New Hampshire’s legislature intended the statute to be susceptible to such [an as-applied] remedy.” Ayotte,
Even if Ayotte were instructive, therеfore, it simply invites the next question: “Would the [Virginia] legislature have preferred what is left of its statute to no statute at all?” Id. at 330,
In order for the Virginia anti-sodomy provision to escape facial invalidity, it need not criminalize only conduct that falls outside constitutional protection. See United States v. Salerno,
III.
If a federal court is to grant a writ of habeas corpus to a state prisoner incarcerated under Virginia law, it needs to be more than “confident” that the underlying criminal conviction violates the Constitution. The foundation for the issuance of the writ requires a certainty, not just a likelihood, that a state court ruling “reached a decision contrary to clearly established federal law.” See Harrington,
I respectfully dissent.
. For the reasons stated by the district court, I would also affirm the denial of habeas relief on the additional constitutional claims asserted by MacDonald.
. I refer to the statute in question, Va.Code § 18.2-361(A), as the Virginia anti-sodomy provision. Section 18.2-361(A) provides: "If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he оr she shall be guilty of a Class 6 felony.”
. The Virginia Court of Appeals also ruled that MacDonald lacked standing to advance such a facial challenge under Ulster County, which held that a litigant can not raise a facial attack to a statute that is constitutional as applied to him. Ulster County Court v. Allen,
While this analysis is circular, I do not believe the standing principle set forth by Ulster County matters here. The as-applied and facial challenges brought by MacDonald entail the same inquiry — whether Lawrence invalidated sodomy statutes on an as-applied or facial basis.
. Virginia’s anti-sodomy provision was in place (in one form or another) long before Lawrence was decided. See Doe v. Commonwealth’s Attorney,