710 F.3d 154 (4th Cir. 2013), 11-7427, MacDonald v. Moose

Docket Nº:11-7427.
Citation:710 F.3d 154
Opinion Judge:KING, Circuit Judge.
Party Name:William Scott MacDONALD, Petitioner-Appellant, v. Tim MOOSE, Respondent-Appellee, and Keith Holder, Probation Officer, Respondent. Dean and Professor Erwin Chemerinksy; American Civil Liberties Union of Virginia, Incorporated; Lambda Legal Defense and Education Fund, Incorporated, Amici Supporting Appellant.
Attorney:Benjamin E. Rosenberg, Dechert, LLP, New York, New York, for Appellant. Robert H. Anderson, III, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. Joshua D.N. Hess, Dechert, LLP, San Francisco, California, for Appellant. Kenneth T. Cuccinelli, II, Attorney General of V...
Judge Panel:Before MOTZ, KING, and DIAZ, Circuit Judges. Judge KING wrote the majority opinion, in which Judge MOTZ joined. Judge DIAZ wrote a dissenting opinion. DIAZ, Circuit Judge, dissenting:
Case Date:March 12, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 154

710 F.3d 154 (4th Cir. 2013)

William Scott MacDONALD, Petitioner-Appellant,

v.

Tim MOOSE, Respondent-Appellee,

and

Keith Holder, Probation Officer, Respondent.

Dean and Professor Erwin Chemerinksy; American Civil Liberties Union of Virginia, Incorporated; Lambda Legal Defense and Education Fund, Incorporated, Amici Supporting Appellant.

No. 11-7427.

United States Court of Appeals, Fourth Circuit.

March 12, 2013

Argued: Oct. 24, 2012.

Page 155

ARGUED:

Benjamin E. Rosenberg, Dechert, LLP, New York, New York, for Appellant.

Robert H. Anderson, III, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

ON BRIEF:

Joshua D.N. Hess, Dechert, LLP, San Francisco, California, for Appellant.

Kenneth T. Cuccinelli, II, Attorney General of Virginia, Richmond, Virginia, for Appellee.

Rebecca K. Glenberg, American Civil Liberties Union of Virginia Foundation, Inc., Richmond, Virginia; Susan L. Sommer, Gregory R. Nevins, Lambda Legal Defense and Education Fund, Inc., New York, New York, for Amici Supporting Appellant.

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 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.

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The predicate felony for MacDonald's criminal solicitation offense was the Commonwealth's " Crimes Against Nature" statute, which criminalizes, inter alia, " carnal knowledge" by one person of another by the anus or mouth, an act commonly known as sodomy. Va.Code § 18.2-361(A). MacDonald was sentenced to ten years in prison (with nine years suspended) for criminal solicitation, plus twelve months on the misdemeanor offense. Upon release, MacDonald was placed on probation and compelled to register as a sex offender.

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, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (striking down Texas anti-sodomy statute as facially violative of Fourteenth Amendment's Due Process Clause). The district court rejected MacDonald's constitutional challenges to section 18.2-361(A) and dismissed his § 2254 petition. See MacDonald v. Holder, No. 1:09-cv-01047, 2011 WL 4498973 (E.D.Va. Sept. 26, 2011) (the " Opinion" ).1

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).2 As explained below, we are constrained to vacate the district court's judgment and remand for an award of habeas corpus relief on the ground that the anti-sodomy provision facially violates the Due Process Clause of the Fourteenth Amendment.

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 Johnson,

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a young woman he had met through a mutual acquaintance. MacDonald and Johnson arranged to meet that night at a Home Depot parking lot in Colonial Heights. When they arrived at the parking lot, MacDonald got into the backseat of Johnson's vehicle and they drove to the nearby home of Johnson's grandmother. Johnson went into her grandmother's residence to retrieve a book, and when she returned to the vehicle MacDonald asked her to " suck his dick." J.A. 51. MacDonald also suggested that they have sex in a shed in Johnson's grandmother's yard. Johnson declined both proposals, however, and she drove MacDonald back to the Home Depot parking lot.

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 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 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.4 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

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found MacDonald guilty of solicitation to commit a felony (i.e., the anti-sodomy provision), and deferred ruling on the misdemeanor offense of contributing to the delinquency of a minor. On August 2, 2005, the circuit court convicted MacDonald of the misdemeanor offense, and it sentenced him on both offenses.

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 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, 2007 WL 43635 (Va.Ct.App. Jan. 9, 2007). In that regard, the court relied on its ruling in McDonald v. Commonwealth, 48 Va.App. 325, 630 S.E.2d 754 (2006).5 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 Fourteenth...

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