Schwartzmiller v. Gardner

• Citation: 752 F.2d 1341
• Decision Date: 20 December 1984
• Docket Number: 83-4056,Nos. 83-4014,s. 83-4014
• Parties: Dean A. SCHWARTZMILLER, Petitioner-Appellant, v. Darrol GARDNER, Warden, Idaho State Correctional Institution, and the State of Idaho, Respondents-Appellees. Dean A. SCHWARTZMILLER, Petitioner-Appellee, v. Darrol GARDNER, Warden, Idaho State Correctional Institution, and the State of Idaho, Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1341

752 F.2d 1341

Dean A. SCHWARTZMILLER, Petitioner-Appellant, v. Darrol GARDNER, Warden, Idaho State Correctional

Institution, and the State of Idaho,

Respondents-Appellees.

Dean A. SCHWARTZMILLER, Petitioner-Appellee, v. Darrol GARDNER, Warden, Idaho State Correctional

Institution, and the State of Idaho, Respondents-Appellants.

Nos. 83-4014, 83-4056.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 10, 1984.

Decided Dec. 20, 1984.

John P. Ward, San Francisco, Cal., for petitioner-appellant.

Myrna Stahman, Deputy Atty. Gen., Boise, Idaho, for respondents-appellees.

Appeal from the United States District Court for the District of Idaho.

Before WALLACE, ALARCON, and NELSON, Circuit Judges.

WALLACE, Circuit Judge:

Schwartzmiller filed a petition for writ of habeas corpus, challenging his conviction and confinement on three counts under Idaho Code Sec. 18-6607 (1979) (now amended by Idaho Code Sec. 18-1508 (Supp.1984)), for performing lewd and lascivious acts on a child, on the ground that the statute is unconstitutionally vague. The district court declared the statute to be unconstitutionally vague on its face, but not as applied to some but not all of Schwartzmiller's conduct. Schwartzmiller v. Gardner, 567 F.Supp. 1371, 1376-79 (D.Idaho 1983). Schwartzmiller appeals the district court's denial of his petition, and the state cross-appeals the court's ruling that the statute is void for vagueness on its face and void as applied to part of Schwartzmiller's conduct. The district court exercised jurisdiction under 28 U.S.C. Sec. 2241(a), and we have jurisdiction under 28 U.S.C. Sec. 2253. The issues in this case are all questions of law, reviewable de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We affirm in part and reverse in part.

I

Schwartzmiller, an Idaho state prisoner, was convicted in 1977 pursuant to Idaho Code Sec. 18-6607 for performing lewd and lascivious acts on a child. The Idaho Supreme Court reversed his conviction on the basis of procedural error and ordered a new trial, without deciding his claim that the statute was unconstitutionally vague. Schwartzmiller v. Winters, 99 Idaho 18, 576 P.2d 1052 (1978). He was never retried on this charge. Schwartzmiller v. Gardner, 567 F.Supp. at 1375.

In 1981, Schwartzmiller again was convicted under section 18-6607, based on incidents distinct from those forming the basis of his 1977 conviction. While his state appeal on this second conviction was pending, he filed a petition for writ of habeas corpus, challenging section 18-6607 as unconstitutionally vague and therefore void. The district court dismissed his petition for failure to exhaust state remedies. In an unpublished disposition, we reversed, ordering the district court to consider the merits of the habeas corpus petition. Schwartzmiller v. Gardner, 692 F.2d 765 (9th Cir.1982) (mem.).

On remand, the district court held that, notwithstanding various Idaho decisions applying and attempting to explain and narrow section 18-6607, Schwartzmiller v. Gardner, 567 F.Supp. at 1374-76, the statute "is unconstitutionally vague on its face." Id. at 1382. Paradoxically, the court also held that because the Idaho Supreme Court had previously indicated that the "commission of an infamous crime against nature on a minor child will render the perpetrator subject to the provisions of Sec. 18-6607," id. at 1377, citing State v. Wall, 73 Idaho 142, 144, 248 P.2d 222, 223 (1952), and because the United States Supreme Court had upheld "a statute proscribing 'crimes against nature' " against a vagueness attack, id. at 1378, citing Rose v. Locke, 423 U.S. 48, 53, 96 S.Ct. 243, 246, 46 L.Ed.2d 185 (1975) (Brennan, J., dissenting) (arguing that at common law crime against nature referred only to anal intercourse and not to sodomy in general), section 18-6607 was not unconstitutionally vague as applied to Schwartzmiller's convictions on two counts of performing anal intercourse on one of two fourteen-year old boys. Id. at 1377-78. The district court did find the statute unconstitutionally vague as applied to his conviction on a third count for masturbating the other fourteen-year old boy. Although that count also contained a charge of attempted anal intercourse with the boy, the court could not ascertain whether the jury relied on the masturbation charge, and thus held the conviction on that count violative of due process. Id. at 1378. The court decided that this ruling afforded no immediate relief, however, because the sentence for the third count would not begin until the sentences for the first two anal intercourse counts had been served. Id. at 1378-79. The court refused to disturb the jury's finding that Schwartzmiller engaged in his acts with the specific intent to arouse sexual passions required by section 18-6607. Id. at 1379-80.

After the district court issued its decision, the Idaho Supreme Court heard Schwartzmiller's appeal of his 1981 conviction. It rejected his claims that section 18-6607 is unconstitutionally vague, or that he was unfairly deprived of the opportunity to cross-examine the boys. State v. Schwartzmiller, 107 Idaho 89, 685 P.2d 830 (1984).

II

The state challenges Schwartzmiller's habeas corpus petition on the ground that his present incarceration relates solely to his 1981 conviction, and not his 1977 conviction, and thus he had not exhausted his state remedies by the time he filed this petition. Ordinarily, a state prisoner may not obtain federal habeas corpus relief without first exhausting all state remedies available at the time he files for relief. See Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982); Humphrey v. Cady, 405 U.S. 504, 516, 92 S.Ct. 1048, 1055, 31 L.Ed.2d 394 (1972), citing Fay v. Noia, 372 U.S. 391, 434-35, 83 S.Ct. 822, 846-47, 9 L.Ed.2d 837 (1963). The exhaustion requirement as to a particular claim is satisfied once the claim has been fairly presented to the highest court of the state. See Jackson v. Cupp, 693 F.2d 867, 869 (9th Cir.1982). See also Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Hudson v. Rushen, 686 F.2d 826, 830 (9th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1896, 77 L.Ed.2d 285 (1983). The exhaustion doctrine, however, is not jurisdictional, but reflects a policy of federal-state comity. Rose v. Lundy, 455 U.S. at 515-16, 102 S.Ct. at 1201-02; Picard v. Connor, 404 U.S. at 275, 92 S.Ct. at 512. Thus, an appellate court may give relief if state remedies are exhausted by the time it acts, even if these remedies were not exhausted when the habeas corpus petition was filed. See Sharpe v. Buchanan, 317 U.S. 238, 63 S.Ct. 245, 87 L.Ed. 238 (1942) (per curiam); Thomas v. Teets, 205 F.2d 236, 240-41 (9th Cir.), cert. denied, 346 U.S. 910, 74 S.Ct. 240, 98 L.Ed. 407 (1953).

Because of this, we need not decide whether Schwartzmiller had exhausted his state remedies at the time he filed this habeas corpus petition, or whether, in light of our earlier unpublished decision, the law of the case doctrine prevents us from reexamining the exhaustion issue. After Schwartzmiller filed his habeas corpus petition, the Idaho Supreme Court heard his challenge to section 18-6607 on the appeal from his 1981 conviction. We conclude that, for purposes of this appeal, the exhaustion requirement has been satisfied.

III

Schwartzmiller challenges the state's standing to appeal. He asserts that the state was the "all-prevailing" party in the district court's decision, and thus may not cross-appeal from what he characterizes as the district court's "dictum" that section 18-6607 is void for vagueness on its face and void as applied to his masturbation conviction.

The state may appeal both rulings; they are not irrelevant dictum. Parties may appeal any adverse finding that "form[s] the basis for collateral estoppel in subsequent litigation." 9 J. Moore, Moore's Federal Practice p 203.06, at 3-24 (2d ed. 1983). See also Partmar Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89, 99 n. 6, 74 S.Ct. 414, 420 n. 6, 98 L.Ed. 532 (1954); Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242, 59 S.Ct. 860, 83 L.Ed. 1263 (1939). Because the district court's conclusion that section 18-6607 is unconstitutionally vague as applied to masturbation would bind the state in subsequent litigation, the state has standing to appeal the ruling.

The state also has standing to appeal on the ground that parties may appeal a ruling which creates a "risk that they might become aggrieved upon reversal on the direct appeal." Hilton v. Mumaw, 522 F.2d 588, 603 (9th Cir.1975). If the district court's statement that section 18-6607 "is unconstitutionally vague on its face" were merely dictum or a description of the statute's language standing alone, the state might face little or no risk of becoming aggrieved. But the statement is a separate holding. A complete "facial" vagueness analysis consists of examining statutory language as narrowed by state decisions, Wainwright v. Stone, 414 U.S. 21, 23, 94 S.Ct. 190, 192, 38 L.Ed.2d 179 (1973) (per curiam), and declaring the narrowed statute void for vagueness on its face. This is precisely what the district court did before proceeding to an "as applied" analysis. See 567 F.Supp. at 1372-78. Thus, rather than being merely dictum or a description of the statute's bare language, the district court's "facial" analysis is a separate holding. Because the state risks having this "facial" ruling take effect should the district court's "as applied" holding be reversed, it may appeal the "facial" conclusion.

IV

We now reach the heart of this appeal, which is whether the district court correctly applied the void for vagueness doctrine. This doctrine is an aspect of due process and requires that the meaning of a penal statute be determinable. A...