Niederstadt v. Nixon

• Decision Date: 17 October 2007
• Docket Number: No. 05-4329.,05-4329.
• Citation: 505 F.3d 832
• Parties: James R. NIEDERSTADT, Petitioner-Appellee, v. Jeremiah W. NIXON, Attorney General for the State of Missouri; Jim Purkett, Respondents-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

505 F.3d 832

James R. NIEDERSTADT, Petitioner-Appellee, v. Jeremiah W. NIXON, Attorney General for the State of Missouri; Jim Purkett, Respondents-Appellants.

No. 05-4329.

United States Court of Appeals, Eighth Circuit.

Submitted: April 11, 2007.

Filed: October 17, 2007.

Stephen D. Hawke, AAG, argued, Jefferson City, MO, for Appellant.

John M. Albright, argued, Poplar Bluff, MO, for Appellee.

Before LOKEN, Chief Judge, WOLLMAN, ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges, en banc.

LOKEN, Chief Judge, with whom MURPHY, RILEY, MELLOY, SMITH and SHEPHERD, Circuit Judges, join.

A Missouri trial court convicted James Niederstadt of sodomy of a sleeping teenager and sentenced him to twenty-five years in prison. The Missouri Court of Appeals reversed, concluding that, because the victim was sleeping, there was insufficient evidence he used "forcible compulsion," as the sodomy statute requires. Mo. Rev.Stat. § 566.060(1). The Missouri Supreme Court reinstated the conviction, State v. Niederstadt, 66 S.W.3d 12 (Mo. banc 2002), and denied Niederstadt's motion for rehearing. Niederstadt then petitioned for a federal writ of habeas corpus. The district court granted the writ, concluding that Niederstadt's Fourteenth Amendment right to due process was violated by the Missouri Supreme Court's construction of the sodomy statute that was "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue." Niederstadt v. Purkett, No. 4:02CV00847, slip op. at 11 (E.D.Mo. Sept. 27, 2005), quoting Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). The State appealed, and a divided panel of this court affirmed. Niederstadt v. Nixon, 465 F.3d 843 (8th Cir.2006). We granted the State's petition for rehearing en banc and now reverse.

I.

We quote the Supreme Court of Missouri's undisputed recitation of the background facts, 66 S.W.2d at 14:

The victim, S.C., was a sixteen-year-old female at the time of the alleged sodomy in 1992. She was the daughter of American missionaries serving in Gambia, West Africa. In 1991, S.C. was sent by her parents to Malden, Missouri, to attend high school and to live with defendant and his family. Prior to coming to defendant's home, she had no sexual experience. In July and August of 1991, defendant began engaging in inappropriate kissing on the lips and fondling of the girl's breasts and touching her between her legs.

At the religious school she attended, she began getting into trouble. The school administered detention as punishment. Defendant's punishment was to administer whippings to the girl's buttocks, back, and legs. He contended the girl was "rebellious and needed it." The beatings were so severe that S.C. suffered bruising, making it painful for her to walk and difficult for her to participate in physical education classes. The beatings occurred about once per month during her stay in the Niederstadt home. Sometimes on the morning after a beating, the defendant would come into S.C.'s room, take off her clothes and underwear, and count her bruises out loud. Following one such beating, defendant attempted to strangle S.C., squeezing her neck and repeatedly saying, "I could kill you right now." He eventually released her. Because of the beatings and threats, on one occasion S.C. attempted to run away from the defendant's home but returned the same day. S.C. stated that she was afraid to report the sexual misconduct to authorities.

Like the beatings, the fondling incidents continued throughout the school year, usually occurring in the early morning. Defendant would come into the girl's room and place his hand under her clothes and underwear. While he touched her, he would masturbate.

The information alleged that the [sodomy] occurred in March of 1992. The victim testified to several such incidents but only gave details as to one in March of 1992. S.C. testified that she had been feeling sick and went to sleep in her room. She was awakened by a sharp pain which she discovered was caused by defendant's finger in her vagina. When she awoke, defendant told S.C. he was "checking [her] temperature." Defendant admitted to that incident. S.C. testified that later in March there were other occasions when defendant penetrated her vagina with his finger.

Niederstadt was charged with sodomy in violation of § 566.060(1). The statute prohibited "deviate sexual intercourse with another person without that person's consent by the use of forcible compulsion." It is conceded that Niederstadt's digital penetration constituted "deviate sexual intercourse" as defined in § 566.010(1). As relevant here, "forcible compulsion" was defined as "[p]hysical force that overcomes reasonable resistance." § 556.061(12)(a).

After a bench trial, the trial court denied Niederstadt's motion for judgment of acquittal and found him guilty of sodomy. The Missouri Court of Appeals reversed, concluding that, because Niederstadt "initiated the sexual act while [the victim] slept" and stopped when she awakened, there was no evidence he used forcible compulsion. The fact that he used forcible compulsion on other occasions, the Court reasoned, did not supply the requisite proof that it was used in committing the charged offense. State v. Niederstadt, No. 23612, 2001 WL 995937 (Mo.App. July 23, 2001). A concurring opinion criticized "the State's failure to analyze its evidence and file a charge the evidence will support."

The Supreme Court of Missouri granted discretionary review, concluded that Niederstadt's conduct constituted sodomy under Missouri law, and reinstated the conviction and sentence. The Court first noted there can be "no question but that defendant used physical force to insert his finger in the girl's vagina." Niederstadt, 66 S.W.3d at 15. The Court then discussed the "critical question" of "whether the acts of deviate sexual intercourse were done by use of physical force that overcomes reasonable resistance." Id. (quotation omitted). The Court looked to the coercive beatings, threats, and sexual indecencies the forty-year-old Niederstadt had previously inflicted on a sixteen-year-old girl who was living in his home. The Court concluded that Niederstadt's conduct and his "complete control and dominance over every aspect of the girl's life" provided sufficient evidence for the court to find that he used physical force that overcame "[t]he reasonable resistance expected of an unconscious or sleeping person." Id. at 16. Niederstadt moved for rehearing, raising as a due process issue that the Court had "unforeseeably expanded the scope of conduct that might be prosecuted under § 566.060." The Supreme Court of Missouri summarily denied that motion. Niederstadt then timely filed this petition for federal habeas relief.

II.

The State first argues that Niederstadt's due process claim is procedurally barred. Federal habeas relief may not be granted on a claim that the state appellate court declined to address because the petitioner failed to meet a state procedural requirement constituting an "independent and adequate state ground." Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). An "independent and adequate" ground is one that is "firmly established and regularly followed" by the time it is applied. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). "When a state court decides an issue on the merits despite a possible procedural default, no independent and adequate state ground bars consideration of that claim by a [federal] habeas court." Sweet v. Delo, 125 F.3d 1144, 1150 (8th Cir.1997), cert. denied sub nom. Sweet v. Bowersox, 523 U.S. 1010, 118 S.Ct. 1197, 140 L.Ed.2d 326 (1998).

Under Missouri law, "to preserve a constitutional issue for appellate review, it must be raised at the earliest time consistent with good pleading and orderly procedure." State v. Wickizer, 583 S.W.2d 519, 523 (Mo.banc 1979). The State argues that Niederstadt defaulted his due process claim because it was first raised in his motion for rehearing to the Supreme Court of Missouri. The State explains that, because its brief to that Court urged the interpretation of the sodomy statute the Court ultimately adopted, Niederstadt had both notice and opportunity to raise a due process objection in his responsive brief, before the Court ruled.

After careful review of the record, we conclude this issue was not properly preserved and presented by the State. The record on appeal does not reveal whether the State argued procedural default to the Supreme Court of Missouri in opposing Niederstadt's motion for rehearing. The Court's summary denial of rehearing is customary and gives no indication that the Court was invoking a procedural bar, particularly if the State did not argue that the due process issue was defaulted. In these circumstances, we infer the state court denied this issue on the merits, not on an independent and adequate procedural ground. See Muth v. Frank, 412 F.3d 808, 815-16 (7th Cir.) (collecting cases), cert denied, 546 U.S. 988, 126 S.Ct. 575, 163 L.Ed.2d 480 (2005). Moreover, the State cites only the readily distinguishable Wickizer case, which does not begin to establish that the state court would have been applying a "firmly established and regularly followed" principle if it had ruled the due process claim procedurally defaulted on the unusual procedural facts of this case.

III.

Turning to the merits of Niederstadt's due process claim, in Bouie the state supreme court construed a statute, which on its face limited criminal trespass to wrongful entries, as including the refusal by peaceful civil rights demonstrators to obey a proprietor's order to leave a racially segregated restaurant otherwise open to the public. The Court held that this retroactive judicial expansion of the statute's criminal prohibition violated the defendants' due process...