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Supreme Court of the United States ______ No. ________ IN THE Supreme Court of the United States ____________ TIM MOOSE, Petitioner, v. WILLIAM SCOTT MACDONALD, Respondent. ____________ On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit ____________ PETITION FOR A WRIT OF CERTIORARI ____________ KENNETH T. CUCCINELLI, II PATRICIA L. WEST Attorney General of Virginia Chief Deputy Attorney General E. DUNCAN GETCHELL, JR. WESLEY G. RUSSELL, JR. Solicitor General of Virginia Deputy Attorney General [email protected] [email protected] Counsel of Record OFFICE OF THE ATTORNEY GENERAL MICHAEL H. BRADY 900 East Main Street Assistant Solicitor General Richmond, Virginia 23219 [email protected] Telephone: (804) 786-7240 Facsimile: (804) 371-0200 Counsel for the Petitioner June 25, 2013 i QUESTION PRESENTED In 2003, this Court took up the question “[w]hether 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 of the Fourteenth Amendment,” in the context of a challenge to a Texas statute that prohibited “‘deviate sexual intercourse with another individual of the same sex.’” Lawrence v. Texas, 539 U.S. 558, 563-64 (2003) (quoting Tex. Penal Code Ann. § 21.06(a) (2003)). This Court answered that question in the affirmative, but stressed what it was not deciding. Id. at 578. “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.” Id. The question presented in this case is whether the Virginia courts unreasonably applied Lawrence in determining that Virginia’s “crimes against nature” statute is not facially unconstitutional or unconstitutional as applied to an adult male’s solicitation of a minor female, outside the home, to perform oral sodomy. ii TABLE OF CONTENTS Page QUESTION PRESENTED .................................................... i TABLE OF CONTENTS ......................................................ii TABLE OF CITED AUTHORITIES ................................... vi INTRODUCTION ................................................................. 1 OPINIONS BELOW .............................................................. 2 JURISDICTION .................................................................... 3 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................................... 3 STATEMENT OF THE CASE ............................................. 4 REASONS FOR GRANTING THE PETITION ................ 13 I. The Fourth Circuit Erroneously Interpreted Lawrence as Facially Invalidating All State Sodomy Statutes and Failed To Properly Apply the Habeas Standard of Review in Erroneously Holding Its Idiosyncratic Interpretation to Be Clearly Established. ................................... 14 A. Lawrence Did Not Declare Unconstitutional State Prosecutions of Adult Solicitation of Minors to Engage in Oral Sodomy, and thus Did Not Invalidate the Virginia Statute As Applied to MacDonald’s Conduct. ......................................................... 17 iii B. Lawrence Did Not Facially Invalidate the Texas Statute nor Does It Clearly Establish That All State Sodomy Statutes Are Facially Unconstitutional. .......................................... 19 C. The Fourth Circuit Failed To Analyze the Sole Question Presented on Habeas Review, Whether the Virginia Courts’ Decision of These Issues Contravened Rules of Law Clearly Established by This Court’s Decisions, and Thus Exceeded Its Authority in Concluding That Habeas Relief Should Issue to MacDonald..................................................... 22 II. Besides Not Enjoying Support in This Court’s Case Law, the Fourth Circuit’s Erroneous Conclusion That Lawrence Clearly Established the Facial Invalidity of All State Sodomy Statutes Conflicts With the Interpretation Placed on Lawrence by Other Federal Courts of Appeals and State Appellate Courts and So Merits This Court’s Review. ........................... 22 III. The Fourth Circuit’s Decision Threatens Significant, Harmful Collateral Effects. ............ 27 CONCLUSION .................................................................... 31 iv APPENDIX: MacDonald v. Moose, No. 11-7427 (4th Cir. March 12, 2013) .......................................................................App. 1 MacDonald v. Holder, No. 1:09-cv-01047 (E.D. Va. September 26, 2011) ...........................................App. 35 Order, en banc, denying petition for rehearing, (4th Cir. April 8, 2013) ..............................................App. 51 Memorandum in Support of Petition for Writ of Habeas Corpus, in U.S. Eastern District Court Case No. 1:09-cv-01047, filed September 16, 2009 ......................................................................App. 53 Petition for Writ of Habeas Corpus, in U.S. Eastern District Court Case No. 1:09-cv-01047, filed September 16, 2009 ..........................................App. 97 Order of the Supreme Court of Virginia denying Petition for a Writ of Habeas Corpus, in Record No. 080260, entered October 21, 2008, by Patricia L. Harrington, Clerk .................................App. 111 Petition for Writ of Habeas Corpus, in Supreme Court of Virginia Case No. 080260, filed February 4, 2008 ......................................................................App. 117 Order of the Supreme Court of Virginia denying Petition for Appeal, in Record No. 070124, entered September 7, 2007, by Patricia L. Harrington, Clerk ....................................................App. 161 McDonald v. Commonwealth, 274 Va. 249, 645 S.E.2d 918 (2007) ....................................................App. 163 v Memorandum Opinion of the Court of Appeals of Virginia, in Record No. 1939-05-2, entered January 9, 2007, by Elizabeth A. McClanahan, J. .................. App. 179 McDonald v. Commonwealth, 48 Va. App. 325, 630 S.E.2d 754 (2006) .............................................App. 185 Brief in Support of A Petition for Appeal, in Court of Appeals Case No. 1939-05-2, filed November 10, 2005 .................................................App. 195 Conviction Order of the Circuit Court for the City of Colonial Heights, in Case No. CR05- 141-02 [sic], entered August 2, 2005, signed by Herbert C. Gill, Jr., Judge ......................................App. 225 Letter Opinion Overruling Defendant’s Motion as to the Constitutionality of § 18.2-361(A), issued July 25, 2005, signed by Herbert C. Gill, Jr., Judge ........................................................App. 227 Defendant’s Brief in Support of Motion to Dismiss, in Colonial Heights Circuit Court Case No. CR05000141-01, filed June 22, 2005 ..............App. 229 Bill of Indictment for Violation of § 18.2-29 of the Code of Virginia, issued January 19, 2005, by Dorsey A. Howard, Magistrate ........................App. 241 Bill of Indictment for Violation of § 18.2-461 of the Code of Virginia, issued January 19, 2005, by Dorsey A. Howard, Magistrate ........................App. 243 Bill of Indictment for Violation of § 18.2-371 of the Code of Virginia, issued January 19, 2005, by Dorsey A. Howard, Magistrate ........................App. 245 vi TABLE OF CITED AUTHORITIES Page Cases Anderson v. Morrow, 371 F.3d 1027 (9th Cir. 2004) ...................................... 23 Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006) ................................................ 11, 20 Bobby v. Dixon, 132 S. Ct. 26 (2011) ..................................................... 31 Bobby v. Mitts, 131 S. Ct. 1762 (2011) ................................................. 31 Bowers v. Hardwick, 478 U.S. 186 (1986) ..........................................10, 17, 18 Cavazos v. Smith, 132 S. Ct. 2 (2011) ....................................................... 31 Cnty. Ct. of Ulster Cnty. v. Allen, 442 U.S. 140, 154-55 (1979) .......................................... 7 Coleman v. Johnson, 132 S. Ct. 2060 (2012) ................................................. 31 Commonwealth v. MacDonald, No. CR05-141-01 (Va. Cir. Ct. July 26, 2005) ............................................ 2 Cook v. Gates, 528 F.3d 42 (1st Cir. 2008) .......................................... 23 Cullen v. Pinholster, 131 S. Ct. 1388 (2011) ................................................. 15 vii Falls Church v. Protestant Episcopal Church, U.S.A., 285 Va. 651, 740 S.E.2d 530 (2013) ............................ 30 Fisher v. Commonwealth, No. 0278-00-4, 2001 Va. App. LEXIS 342, 2001 WL 683954 (Va. App. June 19, 2001) ................ 30 Green v. State, 692 S.E.2d 784 (Ga. Ct. App. 2010) ........................... 25 Hamilton v. Commonwealth, 738 S.E.2d 525 (Va. App. 2013) ............................ 29, 30 Hardy v. Cross, 132 S. Ct. 490 (2011) ................................................... 31 Harlow v. Fitzgerald, 457 U.S. 800 (1982) ...................................................... 29 Harrington v. Richter, 131 S. Ct. 770 (2011) ...........................14, 15, 16, 21, 22 In re R.L.C., 643 S.E.2d 920 (N.C. Ct. App. 2007) .......................... 31 Interactive Media Entertainment & Gaming Association v. Attorney General of the United States, 580 F.3d 113 (3d Cir. 2009) ........................................
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