Toghill v. Clarke, 16-6452

• Decision Date: 15 December 2017
• Docket Number: No. 16-6452,16-6452
• Parties: Adam Darrick TOGHILL, Petitioner–Appellant, v. Harold W. CLARKE, Director, Dept. of Corrections, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

877 F.3d 547

Adam Darrick TOGHILL, Petitioner–Appellant,

v.Harold W. CLARKE, Director, Dept. of Corrections, Respondent–Appellee.

No. 16-6452

United States Court of Appeals, Fourth Circuit.

Argued: September 14, 2017

Decided: December 15, 2017

ARGUED: Gregory Dolin, University of Baltimore School of Law, Baltimore, Maryland, for Appellant. Matthew Robert McGuire, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. ON BRIEF: Meghan Ellis Brennan, Stuart Goldberg, Jasna McElrath, Third Year Law Students, University of Baltimore School of Law, Baltimore, Maryland, for Appellant. Mark R. Herring, Attorney General of Virginia, Stuart A. Raphael, Solicitor General, Trevor S. Cox, Deputy Solicitor General, Eugene P. Murphy, Senior Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

Before WILKINSON, TRAXLER, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Traxler wrote the opinion in which Judge Wilkinson and Judge Agee joined.

TRAXLER, Circuit Judge:

Petitioner Adam Darrick Toghill, a Virginia inmate, appeals the district court's denial of his habeas petition under 28 U.S.C. § 2254(d), in which he challenges his state court conviction for computer solicitation of acts of sodomy from a minor under the age of 15, in violation of Va. Code Ann. § 18.2-374.3(C)(3) (2007). He argues that his conviction violates his substantive due process rights under the Fourteenth Amendment to the United States Constitution, and that the Supreme Court of Virginia's rejection of his claim was contrary to or an unreasonable application of the United States Supreme Court's decision in Lawrence v. Texas , 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). For the following reasons, we affirm.

I.

In March 2011, Toghill, who was 32 years old, engaged in an 80-minute email exchange with "Becca" Flynn, a 13-year-old girl who had posted an advertisement in the "miscellaneous romance" section of Craigslist. J.A. 276 (internal quotation marks omitted). After they exchanged photographs, "Toghill repeatedly expressed his desire to engage in oral sex with her, questioned her about her sexual experience, and explored potential locations where they could meet." Id. In actuality, "Becca" was Louisa County, Virginia, Deputy Sheriff Patrick Siewert, who was posing as a child as part of his work with the Internet Crimes Against Children Taskforce.

Virginia Code § 18.2-374.3 generally prohibits the "[u]se of communications systems to facilitate certain offenses involving children." Toghill was charged specifically under Va. Code § 18.2-374.3(C)(3), which, at the time of his offense, provided as follows:

It shall be unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child less than 15 years of age to knowingly and intentionally ... [p]ropose to such child the performance of an act of sexual intercourse or any act constituting an offense under § 18.2-361 .

Id. (emphasis added). Va. Code Ann. § 18.2-361(A) (2005), in turn, prohibited "carnally know[ing] in any manner any brute animal, or carnally know[ing] any male or female person by the anus or by or with the mouth," including "voluntarily submit[ting] to such carnal knowledge." Toghill was convicted by a jury and sentenced to five years' imprisonment.¹

While Toghill's direct appeal was pending before the Court of Appeals of Virginia, this court issued its decision in MacDonald v. Moose , 710 F.3d 154 (4th Cir. 2013), granting habeas relief to a Virginia inmate who had been convicted of criminal solicitation of a 17-year-old minor to commit a felony, see Va. Code Ann. § 18.2-29 (2002), namely sodomy under Va. Code § 18.2-361(A), based upon the substantive Due Process Clause and the Supreme Court's decision in Lawrence . Toghill has since claimed that his conviction for proposing "the performance of an ... act constituting an offense under § 18.2-361," to a "child less than 15 years of age," in violation of § 18.2-374.3(C)(3), violates his due process rights as well. Both the Court of Appeals of Virginia and the Supreme Court of Virginia rejected Toghill's challenge and affirmed his conviction. See Toghill v.Commonwealth, 289 Va. 220, 768 S.E.2d 674 (2015) ; Toghill v. Commonwealth , No. 2230-12-2, 2014 WL 545728 (Va. Ct. App. Feb. 11, 2014). Toghill then filed this petition for habeas relief under 28 U.S.C. § 2254. The district court dismissed the claim, but granted a certificate of appealability.

II.

A.

In Lawrence v. Texas , the United States Supreme Court was presented with a challenge to the constitutionality of a Texas statute that criminalized homosexual sodomy. The Court held that the liberty interests protected by the Due Process Clause of the Fourteenth Amendment prohibit states from criminalizing such sexual conduct between consenting adults in private. See Lawrence, 539 U.S. at 578, 123 S.Ct. 2472. In doing so, the Court overruled its prior decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), which had upheld a Georgia statute that criminalized all sodomy against the same constitutional challenge. See id. The Supreme Court, however, was careful to point out the scope of its ruling, noting that the case did "not involve minors," "persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused," or "public conduct or prostitution." Lawrence , 539 U.S. at 578, 123 S.Ct. 2472. Rather, it involved the convictions of "two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle" in the privacy of the home. Id.

B.

Prior to the Fourth Circuit's decision in Moose , the Virginia appellate courts considered two cases involving the effect of Lawrence upon a Virginia defendant's convictions for sodomy under Va. Code § 18.2-361(A), (the "anti-sodomy statute"), and for solicitation of sodomy under Va. Code §§ 18.2-29 and 18.2-361(A). The defendant in both cases was the same—William Scott McDonald a/k/a William Scott MacDonald.²

In the first case, McDonald v. Commonwealth , 274 Va. 249, 645 S.E.2d 918 (2007), McDonald challenged his convictions for four counts of sodomy under Va. Code § 18.2-361(A) —all of which involved minors under the age of 18 when McDonald was between 45 and 47 years old. See id. at 919. McDonald argued that because the anti-sodomy statute had no age restriction, the court should borrow the age restrictions from certain other minor-specific criminal statutes in Virginia, and set the age of consent at 15 years of age. See id. at 923. Under this construction of the anti-sodomy statute, McDonald claimed that his victims were of the age of consent and, therefore, that the anti-sodomy statute had been unconstitutionally applied to him under Lawrence . See id. The Supreme Court of Virginia disagreed, holding as follows:

The only issue preserved at the trial court and presented to this Court is an as-applied constitutional challenge to the sodomy statute. McDonald's statutory construction argument is faulty and furthermore, it misses the real issue. The victims in this case were minors, defined by the Code of Virginia as persons under the age of eighteen. See Code § 1-207. Nothing in Lawrence... prohibits the application of the sodomy statute to conduct between adults and minors.

Id. at 924 (emphasis added); see id. (noting that "[t]he Court in Lawrence was explicit in its declaration of the scope of its opinion: ‘The present case does not involve minors.’ " (quoting Lawrence , 539 U.S. at 578, 123 S.Ct. 2472 )). Although McDonald also raised a facial challenge to the anti-sodomy statute, the Supreme Court of Virginia explicitly refused to consider it because McDonald failed to raise it before the trial court. See id. at 921.³

In the second case, MacDonald v. Commonwealth , No. 1939-05-02, 2007 WL 43635, at *1 (Va. Ct. App. Jan. 9, 2007), the Court of Appeals of Virginia considered MacDonald's appeal from his conviction for solicitation to commit a felony under Va. Code § 18.2-29, namely acts of sodomy prohibited by Va. Code § 18.2-361(A). Again, MacDonald argued that his 17-year-old victim should be deemed to be of the age of consent under Virginia law and, therefore, that the anti-sodomy statute was being unconstitutionally applied to him under Lawrence . In addition, MacDonald timely asserted a facial challenge to the anti-sodomy statute. The Court of Appeals of Virginia rejected MacDonald's as-applied challenge based upon the age of consent, and held that MacDonald lacked standing to assert a facial challenge to the anti-sodomy statute because it was not being unconstitutionally applied to him. See id. (citing McDonald v. Commonwealth , 48 Va.App. 325, 630 S.E.2d 754, 756-57 (2006) ); see also County Court of Ulster Cty. v. Allen , 442 U.S. 140, 154-55, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979) ("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."). The Supreme Court of Virginia declined review.

C.

This court's decision in Moose arose out of MacDonald's habeas challenge to the Court of Appeals of Virginia's decision to affirm his conviction for solicitation of sodomy under Va. Code §§ 18.2-29 and 18.2-361(A). The Moose court reversed the district court's denial of relief, and held that MacDonald was entitled to habeas relief from his solicitation-of-sodomy conviction because the Virginia court's "standing determination...