Stone v. Wainwright

• Decision Date: 19 April 1973
• Docket Number: No. 72-3738. Summary Calendar.,72-3738. Summary Calendar.
• Citation: 478 F.2d 390
• Parties: Raymond R. STONE, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, etc., Respondent-Appellant. Eugene P. HUFFMAN, Petitioner-Appellee, v. James F. TOMPKINS, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

478 F.2d 390 (1973)

Raymond R. STONE, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, etc., Respondent-Appellant.

Eugene P. HUFFMAN, Petitioner-Appellee, v. James F. TOMPKINS, Respondent-Appellant.

No. 72-3738. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

April 19, 1973.

Robert L. Shevin, Atty. Gen., William E. Whitlock, III, Andrew W. Lindsey, Asst. Attys. Gen., William E. Whitlock, III, Tallahassee, Fla., for respondents-appellants.

Lynn E. Wagner, Director, Prisoner Assistance Project, Legal Aid & Defender Clinic, University of Fla., College of Law, Gainesville, Fla., for petitioners-appellees.

Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

GOLDBERG, Circuit Judge:

This is an appeal by the State of Florida from the granting of federal habeas relief to two men who had been convicted of violating Florida's "felony sodomy statute," Fla.Stat.Ann. § 800.01. Subsequent to the trials at which petitioners were convicted, the Supreme Court of Florida held Section 800.01 to be "void on its face as unconstitutional for vagueness and uncertainty in its language."¹ The Florida Supreme Court went on in that case, however, to say that its decision was "not retroactive, but prospective only,"² and the State now insists that that determination is binding upon the federal courts. We cannot agree. It is always the duty of a federal court to grant habeas relief whenever it independently determines that a person is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.A. § 2254. We hold that relief under the Great Writ was properly granted when the United States District Court independently and correctly found that the statute under which petitioners were convicted and imprisoned was void.

I. HISTORY OF THE INSTANT CASES

Petitioner Stone was tried and convicted in 1970 on two counts of violating Section 800.01, Fla.Stat.Ann., and was sentenced to serve consecutive five-year terms of imprisonment. His conviction was affirmed on direct appeal, Stone v. State, 245 So.2d 91 (Fla.Dist.Ct.App. 1970), and the state court's denial of his subsequent motion for post-conviction relief was also affirmed. Stone v. State, 264 So.2d 81 (Fla.Dist.Ct.App.1972), cert. denied, 267 So.2d 329 (Fla.Sup.Ct. 1972). Petitioner Huffman was tried and convicted in 1968 on one count of violating Section 800.01 and was sentenced to serve from six months to ten years imprisonment. Huffman did not appeal from his conviction, but it is not argued that he has failed to exhaust any available state remedies.³

The statute under which petitioners were convicted reads as follows:

"800.01 Crime against nature; punishment

"Whoever commits the abominable and detestable crime against nature, either with mankind or with beast, shall be punished by imprisonment in the state prison not exceeding twenty years."

Fla.Stat.Ann. § 800.01. As recently as 1966, the Florida Supreme Court was continuing to adhere to its long line of cases upholding the constitutionality of this statute in the face of repeated challenges urging that it was impermissibly vague and failed to afford persons in Florida notice of precisely what acts constituted violations of the statute. See, e. g., Delaney v. State, 190 So.2d 578 (Fla.Sup.Ct.1966); Lason v. State, 152 Fla. 440, 12 So.2d 305 (Fla.Sup.Ct. 1943). Thus, at the time petitioners were convicted, the State of Florida considered its statute to be free of constitutional infirmity.

After the dates on which petitioners were convicted and before petitioners filed these consolidated actions, the Florida Supreme Court rendered its decision in Franklin v. State, 257 So.2d 21 (Fla.Sup.Ct.1971), declaring the statute void for vagueness. The Florida Supreme Court explicitly limited its decision to prospective application, and as a result, the State has subsequently denied one of the instant petitioners any relief under Franklin.⁴

Petitioners thereafter filed the instant habeas actions in the United States District Court. Although the wording of their pro se petitions was somewhat imprecise, petitioners were clearly seeking relief on allegations that their confinement was in contravention of the United States Constitution.⁵ The United States District Judge agreed that the statute was too vague in its wording to withstand constitutional scrutiny:

"On the merits, it is clear that § 800.-01, which makes it a felony to commit `the abominable and detestable crime against nature,\' suffers from the constitutional defect of vagueness in violation of due process. Severson v. Duff, 322 F.Supp. 4 (M.D.Fla.1970); Franklin v. State, supra."

Habeas relief was accordingly granted by the court below, and the question now before us is whether that action was proper.

II. "SODOMY STATUTES" UNDER THE CONSTITUTION

Statutes prohibiting consensual sodomy have increasingly come under constitutional attack in recent years.⁶ The challenges that have been brought fall into a wide variety of imaginative theories that can be categorized in two general groups. The first grouping is premised on the theory that the state is without power to regulate consensual sodomy and other sexual activities between or among consenting adults. Specific arguments that have been advanced include allegations that such statutes unconstitutionally (1) invade a penumbral right to privacy,⁷ (2) establish a religion by promoting nonsecular religious morals,⁸ (3) impose cruel and unusual punishment by penalizing a condition (homosexuality),⁹ (4) impinge First Amendment expressional freedoms,¹⁰ and (5) violate due process standards by criminalizing conduct absent either a "rational basis" or a "compelling state interest."¹¹

The second general category of attacks against sodomy statutes consists of arguments that admit that the state may permissibly regulate some instances of consensual sodomy but argue that the particular statute involved is constitutionally defective. Perhaps the most common example of this argument is the theory that marital privacy is protected by the Constitution¹² and that therefore any statute that could be or is used to prosecute married persons is unconstitutionally overbroad.¹³ Another example is the attack based on the vagueness with which the acts sought to be proscribed are often defined. The term "sodomy" originated in the Bible¹⁴ and appears in the common law,¹⁵ but the various states have, perhaps for euphemistic reasons, selected terms even more arcane than "sodomy," such as "buggery" or "the crime against nature."¹⁶ Thus, when the common citizen is faced with prosecution under a statute employing such indefinite phraseology,¹⁷ he may argue that due process is violated inasmuch as the statute is so vague and lacking in ascertainable standards of guilty conduct as to be incapable of giving a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.¹⁸See Palmer v. City of Euclid, 1971, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98; United States v. Harriss, 1954, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; Lanzetta v. New Jersey, 1939, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888.

The application of these arguments and theories to specific factual situations is often difficult and confusing, involving considerable overlapping and duplication. We think it clear beyond peradventure, however, that the instant appeal presents only an attack on the vagueness found by the District Court to be present in Section 800.01.

III. THE FEDERAL DISTRICT COURT'S DETERMINATION THAT SECTION 800.01 IS UNCONSTITUTIONALLY VAGUE

Almost fifty years have passed since the Supreme Court of the United States penned the classic statement regarding the level of linguistical vagueness that a criminal statute must exceed if it is to satisfy due process standards:

"That the words of a criminal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."

Connally v. General Construction Co., 1926, 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328. In subsequent years, the Supreme Court has many times had occasion to restate the rule, as when it said:

"It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids."

Lanzetta v. New Jersey, supra, 306 U.S. at 453, 59 S.Ct. at 619, 83 L.Ed. at 890 (citations omitted). See also Palmer v. City of Euclid, supra; United States v. Harriss, supra.

The standard by which the Constitution requires criminal statutes to be judged is clear. Here, the United States District Judge considered the language of section 800.01 and found it to be fatally vague. In making this determination, Judge McRae's independent federal finding that the statute fails to advise those who may be convicted under it of precisely what behavior is proscribed was neither new or unsupported. In fact, the Supreme Court of Florida had previously found that this precise statute's terminology is impermissibly indefinite. In a thoughtful and well-reasoned opinion, the Florida high court stated as follows:

"We have over a long period of time upheld the statute despite earlier constitutional challenges. We are persuaded that these holdings and this statute require our reconsideration. One reason which makes this apparent is the transition of language over the span of the past 100 years of this law\'s

...