Lowe v. Stark Cnty. Sheriff

• Decision Date: 08 December 2011
• Docket Number: No. 09–3942.,09–3942.
• Citation: 663 F.3d 258
• Parties: Paul D. LOWE, Petitioner–Appellant, v. Stark County Sheriff, Timothy A. SWANSON, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

663 F.3d 258

Paul D. LOWE, Petitioner–Appellant,

v.Stark County Sheriff, Timothy A. SWANSON, Respondent–Appellee.

No. 09–3942.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 4, 2011.Decided and Filed: Dec. 8, 2011.

ARGUED: J. Dean Carro, University of Akron School of Law, Akron, Ohio, for Appellant. Ross A. Rhodes, Stark County Prosecutor's Office, Canton, Ohio, for Appellee. ON BRIEF: J. Dean Carro, University of Akron School of Law, Akron, Ohio, for Appellant. Ross A. Rhodes, Stark County Prosecutor's Office, Canton, Ohio, for Appellee.Before: KEITH, GRIFFIN, and STRANCH, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Petitioner Paul Lowe appeals the district court's denial of his petition for a writ of habeas corpus, arguing that the Ohio Supreme Court unreasonably applied federal law as clearly established by the Supreme Court in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), when it upheld his incest conviction for engaging in sexual conduct with his stepdaughter. We disagree and therefore affirm.

I.

Lowe was charged with one count of sexual battery for engaging in sexual conduct by means of sexual intercourse with his 22–year–old stepdaughter, in violation of Ohio Rev.Code § 2907.03(A)(5), which makes it a crime to “engage in sexual conduct with another, not the spouse of the offender, when ... [t]he offender is the other person's natural or adoptive parent, or a stepparent, or guardian, custodian, or person in loco parentis of the other person.” Lowe moved to dismiss the charge in the trial court, arguing that the facts alleged in the indictment did not constitute an offense under Ohio Rev.Code § 2907.03(A)(5) because there was a “clear legislative intent to have the law apply to children, not adults”; ¹ Lowe also argued that the statute was unconstitutional as applied to him because the government had no legitimate interest in regulating sexual activity between consenting adults. See State v. Lowe, 112 Ohio St.3d 507, 861 N.E.2d 512, 514 (2007). The court disagreed and overruled his motion. Thereafter, Lowe pled no contest to the charge and was sentenced to 120 days of incarceration and three years of community control and was classified as a sex offender. Id.

The Ohio Court of Appeals upheld Lowe's conviction on direct review. It concluded that Ohio Rev.Code § 2907.03(A)(5) prohibits sexual conduct between a stepparent and stepchild regardless of the stepchild's age and found that Lowe “d[id] not have a constitutionally protected right to engage in sex with his stepdaughter.” State v. Lowe, No. 2004CA00292, 2005 WL 1983964, at *2 (Ohio Ct.App. Aug. 15, 2005) (unpublished). On discretionary review, the Ohio Supreme Court also affirmed. Lowe, 861 N.E.2d at 518. It determined that “ Lawrence did not announce a ‘fundamental’ right to all consensual adult sexual activity, let alone consensual sex with one's adult children or stepchildren” and that “the statute in Lawrence was subjected to a rational-basis rather than a strict-scrutiny test....” Id. at 517. Accordingly, the court held that Lowe's conviction was constitutional because “as applied in this case, R.C. 2907.03(A)(5) bears a rational relationship to the legitimate state interest in protecting the family ... from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren.” Id. at 518.

Lowe then filed a 28 U.S.C. § 2254 petition for habeas relief with the federal district court, arguing that the Ohio Supreme Court unreasonably applied federal law as clearly established by the Supreme Court in Lawrence. The magistrate judge issued a report and recommendation to deny Lowe's petition, concluding that the Ohio Supreme Court's decision was not unreasonable because, as evidenced by a split among the federal circuits, Lawrence was not clear as to the nature of the right it considered or the standard of review it applied to the Texas statute. See Lowe v. Swanson, 639 F.Supp.2d 857, 859 (N.D.Ohio 2009). The district court adopted the magistrate judge's report and recommendation and denied the petition. Id. at 860. We subsequently granted Lowe's request for a certificate of appealability, explaining that “the conflicting authority by our sister circuits establishes that the issues presented by this habeas petition are substantial and warrant further review.”

II.

We review the district court's habeas decision de novo. Souter v. Jones, 395 F.3d 577, 584 (6th Cir.2005). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits federal habeas review of state court proceedings and provides that an application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless adjudication of the claim:

(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); Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir.2008).

A state court adjudication is “contrary to” Supreme Court precedent under § 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law[,]” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [an opposite result].” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “unreasonable application” clause of § 2254(d)(1), habeas relief is available if “the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case[,]” or if a “state court decision either unreasonably extends or unreasonably refuses to extend a legal principle from the Supreme Court precedent to a new context.” Harris, 526 F.3d at 909 (citations and internal quotation marks omitted). “In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,’ the state court's decision must have been more than incorrect or erroneous,” but rather “must have been ‘objectively unreasonable.’ ” Wiggins v. Smith, 539 U.S. 510, 520–21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citations omitted); see also Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir.2007).

III.

Lowe argues that he is entitled to habeas relief because the Ohio Supreme Court “unreasonably applied the federal law announced in Lawrence.” According to Lowe, the Ohio Supreme Court “made the same mistake as the Bowers Court by framing the issue as ‘whether [Mr.] Lowe is guaranteed a fundamental right to engage in sexual intercourse with his consenting adult stepdaughter,’ ” rather than framing the issue more broadly as “the recognition of the right, as between consenting adults, to engage in private sexual conduct.” See Lowe, 861 N.E.2d at 516; see also Lawrence, 539 U.S. at 578, 123 S.Ct. 2472 (quoting Bowers v. Hardwick, 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) (Stevens, J., dissenting) (opining that “individual decisions by married [or unmarried] persons, concerning the intimacies of their physical relationship ... are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment ...”)) (footnotes and citations omitted). Lowe also contends that this broad right is a fundamental one requiring strict scrutiny because of the Lawrence Court's citations to fundamental rights cases and its references to “the right to make certain decisions regarding sexual conduct,” a person's interest in making “certain fundamental decisions affecting her destiny,” and the “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” See Lawrence, 539 U.S. at 565, 572, 123 S.Ct. 2472.

Lowe's arguments have some support. In Cook v. Gates, 528 F.3d 42 (1st Cir.2008), the First Circuit, considering a challenge by members of the United States Armed Forces who claimed that the “Don't Ask, Don't Tell” statute, 10 U.S.C. § 654 (2007), violated their substantive due process rights, found that Lawrence announced a broad Fourteenth Amendment right to sexual privacy. The court noted that “[t]he Lawrence Court characterized the constitutional question as ‘whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause”; and it further explained that “[t]aking into account the precedent relied on by Lawrence, the tenor of its language, its special reliance on Justice Stevens' Bowers dissent, and its rejection of morality as an adequate basis for the law in question, we are convinced that Lawrence recognized that adults maintain a protected liberty interest to engage in certain ‘consensual sexual intimacy in the home.’ ” Id. at 49, 53. The Fifth Circuit came to a similar conclusion in Reliable Consultants, Inc. v. Earle, 517 F.3d 738 (5th Cir.2008), asserting that “[t]he right the Court recognized [in Lawrence ] was not simply a right to engage in the sexual act itself, but instead a right to be free from governmental intrusion regarding ‘the most private human contact, sexual behavior.’ ” Id. at 744.

Also, were Lawrence applicable, there is authority for Lowe's position that a heightened standard, greater than a rational basis, may govern. Again, Lowe relies on Cook, where the First Circuit held that Lawrence “applies a standard of review that lies between strict scrutiny and rational basis” because it “balanced the strength of the state's asserted interest in prohibiting immoral conduct...