Williаm Scott MacDONALD, Petitioner-Appellant, v. Tim MOOSE, Respondent-Appellee, and Keith Holder, Probation Officer, Respondent.
No. 11-7427.
United States Court of Appeals, Fourth Circuit.
Argued: Oct. 24, 2012. Decided: March 12, 2013.
710 F.3d 154
Dean and Professor Erwin Chemerinksy; American Civil Liberties Union of Virginia, Incorporated; Lambda Legal Defense and Education Fund, Incorporated, Amici Supporting Appellant.
Thus, we must remand to the District Court to determine the intended loss amount and whether a departure is warranted based on the intended loss amount overstating or understating the seriousness of the offense. See United States v. Langford, 516 F.3d 205, 217 (3d Cir.2008) ([W]e cannot presume that a district court would have imposed the same sentence, given the opportunity to consider the correctly calculated Guideline.).
III.
Accordingly, the Judgment of Sentence of the District Court entered on September 7, 2010 will be vacated and the case remanded for resentencing in conformity with this opinion.
Before MOTZ, KING, and DIAZ, Circuit Judges.
Reversed and remanded by published opinion. Judge KING wrote the majority opinion, in which Judge MOTZ joined. Judge DIAZ wrote a dissenting opinion.
OPINION
KING, Circuit Judge:
In 2005, William Scott MacDonald was convicted after a bench trial in the Circuit Court of the City of Cоlonial Heights, Virginia, of two offenses: the misdemeanor offense of contributing to the delinquency of a minor, in contravention of
In 2009, after failing to obtain relief on direct appeal and in state postconviction proceedings, MacDonald filed a
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
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
I.
MacDonald was forty-seven years old at the time of the events giving rise to his state court convictions.3 On the evening of September 23, 2004, MacDonald telephoned seventeen-year-old Amanda John
Nearly three months later, in December 2004, MacDonald 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 numbеr, 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.4
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
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 provision 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. After the trial had concluded, on July 25, 2005, the circuit court denied the motion to dismiss, ruling that the anti-sodomy provision was not being unconstitutionally applied to MacDonald. The following day, the court
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 to 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
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, 2007 WL 43635 (Va.Ct.App. Jan. 9, 2007).5 In that regard, the court relied on its ruling in McDonald v. Commonwealth, 48 Va.App. 325, 630 S.E.2d 754 (2006).6 The previous appeal related to other criminal proceedings involving petitioner MacDonald, specifically his prior convictions on four counts of violating Virginia s anti-sodomy provision, twice each with two young women who were sixteen and seventeen years old. There, the court of appeals had rejected MacDonald s
On September 16, 2009, MacDonald, again proceeding pro se, filed his
In its Opinion, the district court dismissed MacDonald s ex post facto claim to the extent that [it] differs from the facial attack, as procedurally barred under the rule of Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680, 682 (1974). See Opinion 6; see also supra note 6. Proceeding to MacDonald s facial due process challenge, the district court employed the deferential
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 unreasonabl[e] 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
IV.
A.
In this appeal, MacDonald pursues both facial and as-applied due process challenges to the anti-sodоmy 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
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, 362 U.S. 17, 23 (1960)).
MacDonald next asserts that the Virginia courts have impermissibly interpreted Lawrence as authorizing them to recast thе 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 that
[t]he courts re-writing of the [anti-sodomy provision] wrongly substitute[s] 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., 546 U.S. 320, 330 (2006)). MacDonald further argues that the Virginia courts rewriting of the anti-sodomy provision was contrary to the intent of Virginia s General Assembly, because the judicially rewritten statute is at odds with other Virginia criminal statutes regulating the sexual conduct of persons over eighteen with younger persons. Cf.
More particularly,
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 determinаtion 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.10
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
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 who 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. 442 U.S. at 146 (quoting Allen v. Cnty. Court, Ulster Cnty., 568 F.2d 998, 1007 (2d Cir.1977)).
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., 442 U.S. at 154-55. The Court s ruling on standing to pursue a facial challenge, as in this case, depended on an unfavorable threshold resolution of an as-applied challenge. If the statute had been unconstitutionally applied to the petitioners in Ulster County, their own rights would have been adversely affected, and, therefore, reaching the merits of their facial challenge may have been appropriate.
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.11
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
On the third question, relating to Bowers v. Hardwick, the Court readily concluded 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, 539 U.S. at 577-78.12 Though acknowledging the equal protection argument as tenable, the Court premised its сonstitutional holding on the Due Process Clause of the
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 relevant distinction 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, 607 S.E.2d at 370 & n.*.14 The anti-sodomy provision, of course, prohibits the same sexual act targeted by the Texas statute that failed constitutional muster in Lawrence.
Although both parties in the Martin case were adults, there is no valid reason why the lоgic 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, 539 U.S. at 572 (documenting emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex (emphasis added)); id. at 573 (pointing out that, in thirteen states where sodomy was yet proscribed, there is a pattern of nonenforcement with respect to consenting adults acting in private (emphasis added)); 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. (emphasis added)). The Court s ruminations concerning the circumstances under which a state might permissibly outlaw sodomy, however, no doubt contemplated deliberate action by the people s representatives, rather than by the judiciary.
The Lawrence Court, as in Heller, struck down a specific stаtute as unconstitutional while reserving judgment on more carefully crafted enactments yet to be challenged. The salient difference between
[M]indful that 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.... [M]aking 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 than 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 (citations, аlterations, and internal quotation marks omitted); see also Reno v. Am. Civil Liberties Union, 521 U.S. 844, 884-85 (1997) (explaining, in upholding facial constitutional challenge, that [t]his Court will not rewrite ... law to conform it to constitutional requirements (quoting Virginia v. Am. Booksellers Ass n, Inc., 484 U.S. 383, 397 (1988))); United States v. Nat l Treasury Emp. Union, 513 U.S. 454, 479 (1995) (recognizing [o]ur obligation to avoid judicial legislation ); Aptheker v. Sec y of State, 378 U.S. 500, 515 (1964) (warning against judicial rewriting of statute to save it against constitutional attack ).
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, 552 U.S. 442, 450-51 (2008), and the general rule when a defect appears is partial, rather than facial, invalidation, see Ayotte, 546 U.S. at 329. We are confident, however, that we adhere to the Supreme Court s holding in Lawrence by concluding that the anti-sodomy provision, prohibiting sodomy between two persons without any qualification, is facially unconstitutional.17
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.
DIAZ, Circuit Judge, dissenting:
In concluding that Lawrence v. Texas, 539 U.S. 558 (2003), invalidated sodomy laws only as applied to private consenting adults, the Virginia Court of Appeals did not reach a decision that was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011). The majority ultimately may be proven right that the Virginia anti-sodomy provision facially violates the Due Process Clause of the
I.
While we review a district court s denial of habeas relief de novo, Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir.2009), in adjudicating a federal petition for habeas relief from a state court convictiоn, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limit[s] the federal courts power to issue a writ to exceptional circumstances where the state court decision on the merits 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. Richardson v. Branker, 668 F.3d 128, 138 (4th Cir.2012) (quoting
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, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring)), I would affirm the district court s judgment.
A.
The majority grants MacDonald federal habeas relief on the basis that the Virginia anti-sodomy provision2 facially violates the Due Process Clause. The Virginia Court of Appeals, citing its own precedent, concluded that Lawrence did not facially invalidate all sodomy statutes, but rather only the application of such statutes to private, consensual sexual activity among adults. See MacDonald v. Commonwealth, No. 1939-05-2, 2007 WL 43635, at *1 (Va.Ct.App. Jan. 9, 2007) (citing McDonald v. Commonwealth, 48 Va.App. 325, 630 S.E.2d 754, 756-57 (2006)). Accordingly, the Virginia Court of Appeals concluded that the Virginia anti-sodomy provision was constitutional as applied to MacDonald because his sexual conduct involved a minor. Id.
The majority appears to disagree with this as-applied interpretation of Lawrence on two unrelated grounds. First, Lawrence overruled Bowers v. Hardwick, 478 U.S. 186 (1986), which dismissed a facial challenge to the constitutionality of a sodomy law. Because the Virginia anti-sodomy provision is indistinguishable from the statute in question in Bowers, the majority reasons that MacDonald s facial challenge must succeed just as according to Lawrence the facial challenge in Bowers should have.3 Second, the majority contends that allowing the Virginia anti-sodomy provision to apply to minors would entail rewriting the statute in a manner forbidden by Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320 (2006). I address each ground in turn.
B.
In Lawrence, Texas police officers responding to an alleged weapons disturbance entered a private residence where two men were engaged in a sexual act. 539 U.S. at 562-63. The state charged the men with violating a Texas sodomy statute criminalizing any contact between any part of the genitals of one person and the mouth or anus of another person. Id. at 563 (citing
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
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 to enter. The case does involve two adults who, with full and mutual consеnt 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, 539 U.S. at 578.
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. In defending its view that sodomy laws were never applied to private sexual conduct among consenting adults, Lawrence recounted the historical enforcement of sodomy statutes:
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 (emphasis added). This historical discussion also evinces an as-applied ruling to private consenting adults, for it is only relevant inasmuch as it identifies the valid applications of sodomy laws outside this zone of constitutionally protected liberty.
In any event, in order for MacDonald tо prevail on his federal habeas petition, it must be clear that Lawrence facially invalidated all sodomy statutes. See Harrington, 131 S.Ct. at 786-87. Nowhere in the opinion does the Court do that. The majority nevertheless infers the unconstitutionality of Virginia s anti-sodomy provision from the fact that Lawrence expressly overruled Bowers. Again, this is a bridge too far. If it is difficult to discern from the Lawrence opinion whether it invalidated all sodomy statutes, it is even more of a stretch to do so by negative inference from the case it overturned.
The majority also relies on Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005), which invalidated the Virginia fornication
It is important to note that this case does not involve minors, non-consensual activity, prostitution, or public activity. The Lawrence 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, 607 S.E.2d at 371. Furthermore, Ziherl was a Virginia civil case on direct appeal a far cry from federal collateral review of a state court conviction and is not clearly established federal law. It has no place in the analysis, and to the extent it does, it undermines the majority s reasoning.
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., 682 F.3d 1, 8 n. 4 (1st Cir.2012) (characterizing Lawrence decision as facial invalidation of statute), and Sylvester v. Fogley, 465 F.3d 851, 857 (8th Cir.2006) (same), with D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir.2004) (explaining that Lawrence invalidat[ed] Texas sodomy statute as applied to consensual, private sex between adults ), and Muth v. Frank, 412 F.3d 808, 812 (7th Cir.2005) (characterizing Lawrence as holding that Texas sodomy statute was unconstitutional insofar as it applied to thе private conduct of two consenting adults ).
C.
The majority also misreads Ayotte, effectively turning the normal rule of partial, rather than facial, invalidation on its head. Ayotte, 546 U.S. at 329 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985)). The exception to an as-applied invalidation is just that an exception to that normal rule which, as evidenced by the cases cited by the majority, applies almost exclusively to challenges to overbroad statutes on
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, 546 U.S. at 331. Concluding that the lower courts need not have invalidated the law wholesale, the Court recognize[d] the possibility of a modest remedy: .... an injunction prohibiting unconstitutional applications. Id. at 331-32.
Even if Ayotte were instructive, therefore, 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, 481 U.S. 739, 745 (1987) (The fact that the [statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an overbreadth doctrine outside the limited context of the
III.
If a federal court is to grant a writ of habeas corpus to a state prisoner incarсerated 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, 131 S.Ct. at 786-87. Unlike the majority, the district court here remained faithful to that distinction in declining to issue the writ.
I respectfully dissent.
DIAZ
CIRCUIT JUDGE
UNITED STATES ex rel. Benjamin CARTER, Plaintiff-Appellant, v. HALLIBURTON CO.; Kellogg Brown & Root Services, Inc.; Service Employees International, Inc.; KBR, Inc., Defendants-Appellees.
No. 12-1011.
United States Court of Appeals, Fourth Circuit.
Argued: Oct. 26, 2012. Decided: March 18, 2013.
Notes
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.
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, 478 U.S. at 188 n. 1 (quoting