Toghill v. Clarke

• Decision Date: 22 February 2016
• Docket Number: Civil Action No. 7:15-cv-00119
• Court: U.S. District Court — Western District of Virginia
• Parties: ADAM DARRICK TOGHILL, Petitioner, v. HAROLD W. CLARKE, Respondent.

ADAM DARRICK TOGHILL, Petitioner, v. HAROLD W. CLARKE, Respondent.

Civil Action No. 7:15-cv-00119

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

FILED: February 23, 2016

February 22, 2016

MEMORANDUM OPINION

By: Hon. Michael F. Urbanski United States District Judge

Adam Darrick Toghill, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of electronically soliciting a minor for oral sex, and he argues that the Virginia statute prohibiting oral sex was unconstitutional and that the evidence was insufficient to sustain his conviction. Respondent filed a motion to dismiss, and Petitioner responded, making the matter ripe for disposition. After reviewing the record, the court grants Respondent's motion to dismiss because the Supreme Court of Virginia's adjudication of these claims was not contrary to, or an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts.

I.

A jury convicted Petitioner of computer solicitation of a minor in violation of former Virginia Code § 18.2-374.3(C)(3). At the time of the offense, Virginia Code § 18.2-374.3(C)(3) prohibited an adult from knowingly and intentionally proposing to a person believed to be under fifteen years of age via a computer network "an act of sexual intercourse or any act constituting an offense" under Virginia Code § 18.2-361. Virginia Code § 18.2-361 (A) prohibited any person from voluntarily committing or submitting to sodomy, which included oral sex.

The Court of Appeals of Virginia summarized the evidence against Petitioner as follows:

As part of his work with the Internet Crimes Against Children Taskforce, Louisa County Deputy Sheriff Patrick Siewert posted an advertisement in the "miscellaneous romance" section of Craigslist with the heading: "suspended, bored and lonely - w4m." The text of the advertisement read:

hey well i just started on CL earlier this week cuz im suspended from skool and was bored but idk what i am really lookin 4 just sumthin 2 do even tho itz rainin outside so hit me up if u want and maybe we can chat or get together or sumthin k? Becca

Toghill answered the ad, and engaged in an approximately 80-minute email exchange with "Becca" on March 10, 2011. In the course of the email exchange, Siewert identified himself as "Rebecca Flynn," a 13-year-old girl residing in Gum Spring. After Toghill and "Becca" exchanged photos of themselves, Toghill repeatedly expressed his desire to engage in oral sex [(cunnilingus)] with her, questioned her about her sexual experience, and explored potential locations where they could meet. He ruled out meeting at her house because he had "seen those shows before," and suggested the mall. However, Toghill terminated the conversation before a time and place to meet were established.

Siewert identified Toghill from his email address and arranged to meet him at the Richmond Police Department. Toghill, a 32 year old who lives in Richmond, admitted to chatting via email with a 13-year-old girl who was suspended from school. He also admitted to masturbating during the exchange.

Toghill v. Commonwealth, No. 2230-12-2, 2014 WL 545728, at *1 (Va. Ct. App. Feb. 11, 2014) (hereinafter "Toghill I"). The Circuit Court for Louisa County sentenced Petitioner to five years' incarceration, and Petitioner's appeals to the Court of Appeals of Virginia and the Supreme Court of Virginia were unsuccessful. Id.; Toghill v. Commonwealth, 289 Va. 220, 230, 768 S.E.2d 674, 679 (2015) (hereinafter "Toghill II").

Petitioner argues in his timely filed federal habeas petition that (1) his conviction is "void ab initio"¹ because of MacDonald v. Moose, 710 F.3d 154, 166 (4th Cir.), cert. denied, 134 S. Ct. 200 (2013), and (2) that the evidence was insufficient to prove Petitioner solicited oral sex with aperson he believed to be less than fifteen years old.² The Supreme Court of Virginia considered and rejected these arguments on direct appeal.³

II.

After a state court addresses the merits of a claim also raised in a federal habeas petition, a federal court may not grant the petition unless the state court's adjudication of a claim is contrary to, or an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d); see id. § 2254(a) (limiting a federal court's grant of habeas relief from a state court judgment only if the petitioner is in custody in violation of the Constitution or laws or treaties of the United States). The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of federal law is based on an independent review of each standard and is "limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011); Williams, 529 U.S. at 412-13.

A state court determination is "contrary to" federal law if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413.

A federal court may issue the writ under the "unreasonable application" clause if the federal court finds that 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." Id. This reasonableness standard is objective, and an unreasonable application means more than just being incorrect or erroneous. Id. at 410-11. A Virginia court's findings cannot be deemed unreasonable merely because it does not cite established United States Supreme Court precedent on an issue if the result reached is not contrary to that established precedent. Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A federal court reviewing a habeas petition "presume[s] the [state] court's factual findings to be sound unless [petitioner] rebuts 'the presumption of correctness by clear and convincing evidence.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. § 2254(e)(1)). "A state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010).

III.

A.

The Supreme Court of Virginia did not agree with Petitioner that MacDonald v. Moose, 710 F.3d 154, 156 (4th Cir. 2013), required it to set aside his conviction. MacDonald v. Moose interpreted Lawrence v. Texas, 539 U.S. 558 (2003), and held that a habeas petitioner's stateconviction for soliciting sodomy from a seventeen year old female was void because Lawrence made the sodomy provision of Virginia Code § 18.2-361(A) facially unconstitutional.

The Supreme Court of Virginia noted that the Fourth Circuit Court of Appeals' holding in MacDonald v. Moose was not mandatory precedent.⁴ Instead of MacDonald v. Moose, the Supreme Court of Virginia relied on Lawrence to determine whether Virginia Code § 18.2-361(A) could be lawfully applied to Petitioner, which in turn resolved whether Petitioner had standing to facially challenge the statute. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973) (recognizing a person to whom a statute may be constitutionally applied does not have standing to argue that it could be unconstitutionally applied to others in other situations).

In Lawrence, the issue was "whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution." Lawrence, 539 U.S. at 564.The challenged sodomy statute from Texas prohibited oral sex with another person of the same sex.⁵ Id. at 563.

The Supreme Court of the United States held that the Texas statute violated due process because it regulated private, non-commercial, and consensual sodomy between adults and furthered no legitimate state interest.⁶ Id. at 578. The Court reasoned that the Texas statute unreasonably interfered with consenting adults' private interpersonal relationships:

The laws involved here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Id. at.567; see Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992) (acknowledging a constitutional right to personal decisions involving marriage, procreation, contraception, family relationships, child rearing, and education). Consequently, the Court determined that "[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Lawrence, 539 U.S. at 578.

The Court qualified its decision in Lawrence, noting that the case "does...