Muth v. Frank

• Decision Date: 22 June 2005
• Docket Number: No. 03-3984.,03-3984.
• Parties: Allen A. MUTH, Petitioner-Appellant, v. Matthew J. FRANK, Secretary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

412 F.3d 808

Allen A. MUTH, Petitioner-Appellant, v. Matthew J. FRANK, Secretary, Respondent-Appellee.

No. 03-3984.

United States Court of Appeals, Seventh Circuit.

Argued November 12, 2004.

Decided June 22, 2005.

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Daniel W. Hildebrand (argued), Dewitt, Ross & Stevens, Madison, WI, for Petitioner-Appellant.

Daniel J. O'Brien (argued), Office of the Atty. General, Wisconsin Dept. of Justice, Madison, WI, for Respondent-Appellee.

Before BAUER, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge.

Allen Muth and his younger sister Patricia married and had three children. After they abandoned the middle child, who was disabled, the State of Wisconsin petitioned to terminate their parental rights because of their incestuous parenthood. After the courts approved the termination, both Allen and Patricia were convicted of incest and sentenced to years in prison. In this petition for a writ of habeas corpus, Allen Muth argues that Wisconsin's incest statute is unconstitutional insofar as it seeks to criminalize a sexual relationship between two consenting adults. The district court denied the petition. We affirm.

I.

Allen Muth and his adult sister, Patricia, were arrested by the State of Wisconsin in 1997 and charged with incest in violation of Wisconsin law. The facts leading up to this arrest are not pleasant.¹ Among fourteen children in a dysfunctional family, Allen was one of the oldest and Patricia one of the youngest. During their childhood they were in and out of foster care, and they and several other siblings were involved in a cycle of sexual abuse and incest. Although they were separated for some length of time, at about the time Patricia reached the age of majority she and Allen became reunited and got married. During their marriage they had three children (apparently she had one other child prior to the marriage). The incestuous relationship came to the State's attention when their middle child, Tiffany, was "removed from her parental home and placed in foster care because [Patricia] and Allen had abandoned her at the home of a baby-sitter." Allen M., 571 N.W.2d at 873.

After a series of progressive separation procedures, the State filed a petition to terminate Patricia and Allen's parental rights to Tiffany because of their incestuous parenthood of Tiffany. Neither Patricia nor Allen contested the evidence of their incest, and consequently the trial court found Patricia and Allen unfit. The evidence at that trial indicated that Tiffany was significantly underdeveloped and that "she was a non-verbal, three and one-half year old who behaved and physically appeared to be more like a two-year-old child. She was not toilet trained or able to feed herself and she displayed little or no emotion." Id. at 874. Other evidence indicated that the child was significantly neglected and that Patricia and Allen had no relationship with the child. The court concluded that Tiffany's best interests would be served by the termination of the parental rights of her biological parents.

On appeal to the Wisconsin Court of Appeals, Patricia and Allen challenged the constitutionality of Wis. Stat. § 48.415(7), which provides that incestuous parenthood is a ground for termination of parental rights.² The Muths claimed that the termination of their parental rights based on their incestuous parenthood of Tiffany denied them due process of law and their rights to equal protection of the law. The court denied those claims and affirmed the trial court. Allen M., 214 Wis.2d 302, 571 N.W.2d 872.

Given the facts exposed in Allen M., the State of Wisconsin arrested Allen and Patricia and charged them with incest, in violation of Wisconsin's criminal incest statute, which provides that:

Whoever marries or has nonmarital sexual intercourse with a person he or she knows is a blood relative and such relative is in fact related in a degree within which the marriage of the parties is prohibited by the law of this state is guilty of a Class F felony.

Wis. Stat. § 944.06.³

Prior to trial, Allen moved to dismiss the criminal complaint against him, on the basis that Wisconsin's incest statute was unconstitutional insofar as it sought to criminalize a sexual relationship between two consenting adults. The trial court denied the motion and conducted a bench trial. Both Allen and Patricia were convicted on November 11, 1997. Allen was sentenced to eight years in prison and Patricia was sentenced to five years' imprisonment.

The Wisconsin Court of Appeals affirmed Allen's conviction in January 2000. In its opinion, the court noted that the issue before it was whether Wisconsin's incest statute was unconstitutional. Wisconsin v. Muth, 98-1137-CR, slip op. at 1 (Wis.Ct.App. Jan. 20, 2000) (hereinafter Muth I). The Court of Appeals also noted that it agreed with the trial court's conclusion that Allen Muth (hereinafter Muth) had no privacy right in having sexual relations with his sister but ultimately concluded that "we need not address [the trial court's conclusion] because we have already concluded in [Allen M.] that the State may legitimately prohibit incestuous relationships." Id. at 2. The Wisconsin Supreme Court denied Muth's petition for discretionary review.

Having exhausted all state remedies, on April 20, 2001, Muth filed this petition for a writ of habeas corpus with the United States District Court for the Eastern District of Wisconsin. He challenged the constitutionality of the statute that criminalized incestuous relationships. Before the completion of briefing by the parties, the United States Supreme Court issued its decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). In that case, the Supreme Court held that a Texas statute prohibiting homosexual sodomy⁴ was unconstitutional insofar as it applied to the private conduct of two consenting adults. Id. at 578-79, 123 S.Ct. 2472.

On October 3, 2003, the district court denied Muth's petition. Muth v. Wisconsin, No. 01-C-0398 (E.D.Wis. Oct. 3, 2003) [hereinafter Muth II]. The court, applying the standard of review provisions set forth in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1) ("AEDPA"), held that Lawrence was not "clearly established" Supreme Court precedent at the time of the Wisconsin Court of Appeals' decision on direct appeal. As such, the district court held that it could not grant habeas relief even if the Court of Appeals' decision was contrary to Lawrence. Muth II, at 5. The district court subsequently denied Muth a certificate of appealability. This court, however, granted a certificate to determine if Lawrence should apply retroactively. This appeal followed.

II.

Because of the limited power of a federal court to issue a writ of habeas corpus in a matter involving a state prisoner, a central focus of this case is whether and to what extent this court should even consider the Supreme Court's decision in Lawrence. AEDPA instructs a federal court reviewing a state conviction on habeas review to determine whether the decision of the last state court to adjudicate the merits of the petitioner's claim was reasonably correct as of the time the decision was made. As discussed below, only in limited circumstances are legal developments occurring after the state court's decision considered.

Lawrence was decided after Muth's conviction and the exhaustion of his state post-conviction remedies. Muth has not identified, and we have not found, a federal court decision (and certainly not a Supreme Court decision) prior to the Wisconsin Court of Appeals decision in Muth I that even discussed whether criminal penalties for incest might be unconstitutional. The closest decision having some bearing and still valid in 2001 was the Supreme Court's decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. In that case, the Court held that a Georgia law banning sodomy was not unconstitutional even when applied to consenting adults. Although Bowers did not deal with incest, it can be safely assumed that a court unwilling to find a law banning sodomy unconstitutional would be no more inclined to find a law prohibiting incest unconstitutional.

Because Lawrence overruled Bowers, and because there is no other related precedent, Muth understandably invokes Lawrence as his only hope for success. The district court held, however, that Lawrence could not be considered because it was not clearly established in 2001 when the Wisconsin Court of Appeals issued its decision in Muth I. At this point we need first to review the district court's decision that Muth I was an adjudication on the merits and if so, whether AEDPA standards of review applied to Muth's claim (Part A). Next, we consider the question raised sua sponte by this court in its order granting Muth the certificate of appealability: whether Lawrence is retroactively applicable (Part B).

A. Whether Muth I was an adjudication on the merits.

Under AEDPA, a federal court may issue a writ of habeas corpus in cases involving prisoners convicted by a state only where the applicable state court proceedings:

(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 determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). This case is concerned only with subsection (d)(1).

"[A] state court decision is `contrary to' federal law if the state court either incorrectly laid out governing Supreme Court precedent, or, having identified the correct rule of law, decided a case differently than a materially factually indistinguishable Supreme Court case." Conner v. McBride, 375 F.3d 643, 649 (7th Cir.2004), cert....