Musser v. Mapes, s. 4:10–cv–00349–JEG, 4:10–cv–00350–JEG, 4:10–cv–00352–JEG, 4:10–cv–00354–JEG.

CourtUnited States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
Citation854 F.Supp.2d 652
Docket NumberNos. 4:10–cv–00349–JEG, 4:10–cv–00350–JEG, 4:10–cv–00352–JEG, 4:10–cv–00354–JEG.,s. 4:10–cv–00349–JEG, 4:10–cv–00350–JEG, 4:10–cv–00352–JEG, 4:10–cv–00354–JEG.
PartiesAdam MUSSER, Petitioner, v. Terry MAPES, Respondent. Adam Musser, Petitioner, v. Terry Mapes, Respondent. Adam Musser, Petitioner, v. Terry Mapes, Respondent. Adam Musser, Petitioner, v. Terry Mapes, Respondent.
Decision Date11 April 2012

854 F.Supp.2d 652

Adam MUSSER, Petitioner,
Terry MAPES, Respondent.

Adam Musser, Petitioner,
Terry Mapes, Respondent.

Adam Musser, Petitioner,
Terry Mapes, Respondent.

Adam Musser, Petitioner,
Terry Mapes, Respondent.

Nos. 4:10–cv–00349–JEG, 4:10–cv–00350–JEG, 4:10–cv–00352–JEG, 4:10–cv–00354–JEG.

United States District Court,
S.D. Iowa,
Central Division.

April 11, 2012.

[854 F.Supp.2d 654]

Rockne Cole, Iowa City, IA, for Petitioner.

Richard James Bennett, Attorney General of Iowa, Des Moines, IA, for Respondent.



Petitioner Adam Musser is an inmate in the Iowa Department of Corrections, and he brings these petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to overturn his four Iowa state court convictions for criminal transmission of human immunodeficiency virus (HIV). SeeIowa Code § 709C.1(a). Because all the cases concern violation of the same law and concern the same Petitioner, they have been consolidated for purposes of administration and review. This case has been on file since August 2010, and the Court regrets the age of this case, caused by eleven orders granting requested extensions of time for the parties to submit filings, which were ultimately submitted on September 6, 2011, as well as the Court's own workload and resulting delay in addressing the merits of the submitted petition. The matter is now ready for ruling.

Musser, now represented by counsel, argues (1) his convictions violate the Eighth

[854 F.Supp.2d 655]

Amendment proscription against cruel and unusual punishment; (2) his convictions violate the Fourteenth Amendment because the Iowa law is void for vagueness both facially and as applied to him; (3) his convictions violate the First Amendment because they compel speech and chill freedom of association; (4) his convictions violate his Substantive Due Process Clause right to privacy; and (5) his trial counsel provided ineffective assistance by failing to object to admission of laboratory reports on Confrontation Clause grounds. Musser does not challenge the factual underpinnings of the Iowa Supreme Court's decisions affirming his convictions but instead argues the rulings were contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Respondent resists Musser's arguments on the merits. For the following reasons, the Court denies the petition, and the Court denies a certificate of appealability.


In 2002 and 2003, Musser had unprotected sexual intercourse with four different women. At the time, Musser was knowingly HIV-positive and receiving medical treatment for his condition, but he did not tell his victims prior to engaging in the sexual activity. The record reflects repeated sexual encounters with the women, that condoms were used some of the time and on one occasion failed, that Musser denied having any sexually transmitted disease when specifically asked, and that the victims did not ultimately become infected. 1 Musser was charged in four separate cases with violation of Iowa Code § 709C.1(a), which makes it a crime for someone who knows he is HIV-positive to “[e]ngage in intimate contact with another person.” Iowa Code § 709C.1(1)(a). “ ‘Intimate contact’ means the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus.” Iowa Code § 709C.1(2)(b).

Musser was found guilty on the charges and sentenced to the maximum term of twenty-five years on each of the four convictions. Three sentences were imposed to run concurrently, and one was imposed to run consecutively to the other three, for a total of fifty years in prison. State v. Musser, 721 N.W.2d 734, 741 (Iowa 2006).2 On direct appeal, Musser unsuccessfully raised before the Iowa Supreme Court all the claims he raises in this federal petition for habeas relief. See id. Musser sought postconviction relief in state court but later dismissed those actions. He then filed this timely petition under 28 U.S.C. § 2254.


This Federal Court may consider a petition “for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Consequently, this Court has authority to grant habeas relief for errors of federal constitutional law only, not state law. Id.; see also Turnage v. Fabian, 606 F.3d 933, 942 (8th Cir.2010) (“As we have said time and again, we lack authority to review ... state courts' interpretation and application

[854 F.Supp.2d 656]

of state law.”) (internal quotation marks and citation omitted).

For claims properly before a federal court, a writ of habeas corpus shall be granted only if the prior 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). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

The Supreme Court has held that a state court decision is “contrary to” federal law “if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts.” Id. at 694, 122 S.Ct. 1843. Under the “unreasonable application” standard, this Court may grant a writ only if the state court identified the correct governing federal legal principle but applied that principle to the facts of a petitioner's case in an objectively unreasonable way. See Williams v. Taylor, 529 U.S. 362, 411–13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., delivering the opinion of the Court with respect to Part II). “Objectively unreasonable” means something more than an “erroneous” or “incorrect” application of clearly established law, and a reviewing federal court may not substitute its judgment for the state court's even if the federal court, in its own independent judgment, disagrees with the state court's decision. See Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The reviewing court “must determine what arguments or theories supported or ... could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, –––U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). Of signal importance herein, the applicable federal law is the law in effect as of “ ‘the time the state court renders its decision.’ ” Greene v. Fisher, ––– U.S. ––––, 132 S.Ct. 38, 44, 181 L.Ed.2d 336 (2011) (quoting Cullen v. Pinholster, –––U.S. ––––, 131 S.Ct. 1388, 1399, 179 L.Ed.2d 557 (2011)).

Habeas relief is granted sparingly, reserved for “ ‘extreme malfunctions in the state criminal justice systems' ” and “not as a means of error correction.” Id. at 43, 132 S.Ct. 38 (quoting Harrington, 131 S.Ct. at 786). As the Supreme Court has reminded courts, “[i]t bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.... [The law] preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther.” Harrington, 131 S.Ct. at 786.

Within that disciplined legal framework, the Court addresses Musser's arguments.


Musser argues that the Iowa Supreme Court unreasonably concluded that his convictions did not violate his Eighth

[854 F.Supp.2d 657]

Amendment right to be free from “cruel and unusual punishments.” See U.S. Const. amend. VIII. He argues the court erroneously believed it could not consider his individual circumstances in deciding whether the punishment he received was constitutionally proportionate to the crime in his particular case. He further argues the Iowa Supreme Court unreasonably ignored that section 709C.1 does not require an intent to inflict injury or the occurrence of an injury. Finally, he argues the court unreasonably failed to compare Iowa's punishment against him with punishment for similar crimes in other states.

A. Proportionality

The Eighth Amendment includes a concept of proportionality requiring that the punishment fit the crime. Harmelin v. Michigan, 501 U.S. 957, 997, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring) (plurality opinion). Challenges regarding proportionality of the punishment and the crime have fallen into two general lines. One line, not at issue in Musser's case, includes limits affecting whole categories of offenders, or whole categories of crimes. See e.g., Graham v. Florida, ––– U.S. ––––, 130 S.Ct. 2011, 2034, 176 L.Ed.2d 825 (2010) (life without the possibility of parole cannot be imposed on juveniles who do not commit homicide); 3Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (death penalty cannot be imposed on juveniles); Atkins v. Virginia, 536 U.S. 304, 320–21, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (death penalty cannot be imposed on offenders whose intellect is low functioning); Coker v. Georgia, 433 U.S. 584, 597, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (death...

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3 cases
  • Musser v. Mapes
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 24, 2013 his counsel were unconstitutional for various reasons. The district court denied Musser's petition on all grounds, Musser v. Mapes, 854 F.Supp.2d 652 (S.D.Iowa 2012), and this Court granted a certificate of appealability limited to “the issue of whether [the statute] violated the due pro......
  • Long v. United States, CIV 13-1012
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • April 11, 2014
    ...States Supreme Court has recognized that "[f]ederal jurisprudence in this area has not been exceedingly clear." See Musser v. Mapes. 854 F. Supp. 2d 652, 658 (S.D. Iowa 2012), quoting Lockyer v. Andrade, 538 U.S. 63 at 72. In Lockyer, the court acknowledged that "in determining whether a pa......
  • Musser v. Mapes, 12-2195
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 24, 2013 hiscounsel were unconstitutional for various reasons. The district court denied Musser's petition on all grounds, Musser v. Mapes, 854 F. Supp. 2d 652 (S.D. Iowa 2012), and this Court granted a certificate of appealability limited to "the issue of whether [the statute] violated the due p......

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