PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6452
ADAM DARRICK TOGHILL,
Petitioner – Appellant,
v.
HAROLD W. CLARKE, Director, Dept. of Corrections,
Respondent – Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Michael F. Urbanski, Chief District Judge. (7:15-cv-00119-MFU-RSB)
Argued: September 14, 2017 Decided: December 15, 2017
Before WILKINSON, TRAXLER, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the opinion in which Judge Wilkinson
and Judge Agee joined.
ARGUED: Gregory Dolin, UNIVERSITY OF BALTIMORE SCHOOL OF LAW,
Baltimore, Maryland, for Appellant. Matthew Robert McGuire, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF:
Meghan Ellis Brennan, Stuart Goldberg, Jasna McElrath, Third Year Law Students,
UNIVERSITY OF BALTIMORE SCHOOL OF LAW, Baltimore, Maryland, for
Appellant. Mark R. Herring, Attorney General of Virginia, Stuart A. Raphael, Solicitor
General, Trevor S. Cox, Deputy Solicitor General, Eugene P. Murphy, Senior Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellee.
TRAXLER, Circuit Judge:
Petitioner Adam Darrick Toghill, a Virginia inmate, appeals the district court’s
denial of his habeas petition under 28 U.S.C. § 2254(d), in which he challenges his state
court conviction for computer solicitation of acts of sodomy from a minor under the age of
15, in violation of Va. Code Ann. § 18.2-374.3(C)(3) (2007). He argues that his conviction
violates his substantive due process rights under the Fourteenth Amendment to the United
States Constitution, and that the Supreme Court of Virginia’s rejection of his claim was
contrary to or an unreasonable application of the United States Supreme Court’s decision
in Lawrence v. Texas, 539 U.S. 558 (2003). For the following reasons, we affirm.
I.
In March 2011, Toghill, who was 32 years old, engaged in an 80-minute email
exchange with “Becca” Flynn, a 13-year-old girl who had posted an advertisement in the
“miscellaneous romance” section of Craigslist. J.A. 276 (internal quotation marks
omitted). After they exchanged photographs, “Toghill repeatedly expressed his desire to
engage in oral sex with her, questioned her about her sexual experience, and explored
potential locations where they could meet.” Id. In actuality, “Becca” was Louisa County,
Virginia, Deputy Sheriff Patrick Siewert, who was posing as a child as part of his work
with the Internet Crimes Against Children Taskforce.
Virginia Code § 18.2-374.3 generally prohibits the “[u]se of communications
systems to facilitate certain offenses involving children.” Toghill was charged specifically
under Va. Code § 18.2-374.3(C)(3), which, at the time of his offense, provided as follows:
2
It shall be unlawful for any person 18 years of age or older to use a
communications system, including but not limited to computers or computer
networks or bulletin boards, or any other electronic means, for the purposes
of soliciting, with lascivious intent, any person he knows or has reason to
believe is a child less than 15 years of age to knowingly and intentionally . .
. [p]ropose to such child the performance of an act of sexual intercourse or
any act constituting an offense under § 18.2-361.
Id. (emphasis added). Va. Code Ann. § 18.2-361(A) (2005), in turn, prohibited “carnally
know[ing] in any manner any brute animal, or carnally know[ing] any male or female
person by the anus or by or with the mouth,” including “voluntarily submit[ting] to such
carnal knowledge.” Toghill was convicted by a jury and sentenced to five years’
imprisonment. 1
While Toghill’s direct appeal was pending before the Court of Appeals of Virginia,
this court issued its decision in MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013),
granting habeas relief to a Virginia inmate who had been convicted of criminal solicitation
of a 17-year-old minor to commit a felony, see Va. Code Ann. § 18.2-29 (2002), namely
sodomy under Va. Code § 18.2-361(A), based upon the substantive Due Process Clause
and the Supreme Court’s decision in Lawrence. Toghill has since claimed that his
conviction for proposing “the performance of an . . . act constituting an offense under §
18.2-361,” to a “child less than 15 years of age,” in violation of § 18.2-374.3(C)(3), violates
his due process rights as well. Both the Court of Appeals of Virginia and the Supreme
Court of Virginia rejected Toghill’s challenge and affirmed his conviction. See Toghill v.
1
Va. Code § 18.2-374.3(C) was amended in 2013 and 2014. Va. Code § 18.2-361
was amended in 2014. Unless otherwise indicated, references to these statutes pertain to
the earlier versions that were in effect when Toghill was charged with his offense.
3
Commonwealth, 768 S.E.2d 674 (Va. 2015); Toghill v. Commonwealth, No. 2230-12-2,
2014 WL 545728 (Va. Ct. App. Feb. 11, 2014). Toghill then filed this petition for habeas
relief under 28 U.S.C. § 2254. The district court dismissed the claim, but granted a
certificate of appealability.
II.
A.
In Lawrence v. Texas, the United States Supreme Court was presented with a
challenge to the constitutionality of a Texas statute that criminalized homosexual sodomy.
The Court held that the liberty interests protected by the Due Process Clause of the
Fourteenth Amendment prohibit states from criminalizing such sexual conduct between
consenting adults in private. See Lawrence, 539 U.S. at 578. In doing so, the Court
overruled its prior decision in Bowers v. Hardwick, 478 U.S. 186 (1986), which had upheld
a Georgia statute that criminalized all sodomy against the same constitutional challenge.
See id. The Supreme Court, however, was careful to point out the scope of its ruling, noting
that the case did “not involve minors,” “persons who might be injured or coerced or who
are situated in relationships where consent might not easily be refused,” or “public conduct
or prostitution.” Lawrence, 539 U.S. at 578. Rather, it involved the convictions of “two
adults who, with full and mutual consent from each other, engaged in sexual practices
common to a homosexual lifestyle” in the privacy of the home. Id.
B.
Prior to the Fourth Circuit’s decision in Moose, the Virginia appellate courts
considered two cases involving the effect of Lawrence upon a Virginia defendant’s
4
convictions for sodomy under Va. Code § 18.2-361(A), (the “anti-sodomy statute”), and
for solicitation of sodomy under Va. Code §§ 18.2-29 and 18.2-361(A). The defendant in
both cases was the same—William Scott McDonald a/k/a William Scott MacDonald. 2
In the first case, McDonald v. Commonwealth, 645 S.E.2d 918 (Va. 2007),
McDonald challenged his convictions for four counts of sodomy under Va. Code § 18.2-
361(A)—all of which involved minors under the age of 18 when McDonald was between
45 and 47 years old. See id. at 919. McDonald argued that because the anti-sodomy statute
had no age restriction, the court should borrow the age restrictions from certain other
minor-specific criminal statutes in Virginia, and set the age of consent at 15 years of age.
See id. at 923. Under this construction of the anti-sodomy statute, McDonald claimed that
his victims were of the age of consent and, therefore, that the anti-sodomy statute had been
unconstitutionally applied to him under Lawrence. See id. The Supreme Court of Virginia
disagreed, holding as follows:
The only issue preserved at the trial court and presented to this Court
is an as-applied constitutional challenge to the sodomy statute. McDonald’s
statutory construction argument is faulty and furthermore, it misses the real
issue. The victims in this case were minors, defined by the Code of Virginia
as persons under the age of eighteen. See Code § 1-207. Nothing in
Lawrence . . . prohibits the application of the sodomy statute to conduct
between adults and minors.
2
The cases involving the sodomy convictions under Va. Code § 18.2-361(A), are
titled under the “McDonald” spelling of the defendant’s last name, whereas the case
involving the solicitation of sodomy convictions under Va. Code §§ 18.2-29 and 18.2-
361(A), are titled under the “MacDonald” spelling of the defendant’s last name. We refer
to the Fourth Circuit decision, which involved the defendant’s successful petition for
habeas relief from the solicitation conviction in the second case, as the Moose decision.
5
Id. at 924 (emphasis added); see id. (noting that “[t]he Court in Lawrence was explicit in
its declaration of the scope of its opinion: ‘The present case does not involve minors.’”
(quoting Lawrence, 539 U.S. at 578)). Although McDonald also raised a facial challenge
to the anti-sodomy statute, the Supreme Court of Virginia explicitly refused to consider it
because McDonald failed to raise it before the trial court. See id. at 921. 3
In the second case, MacDonald v. Commonwealth, No. 1939-05-02, 2007 WL
43635, at *1 (Va. Ct. App. Jan. 9, 2007), the Court of Appeals of Virginia considered
MacDonald’s appeal from his conviction for solicitation to commit a felony under Va.
Code § 18.2-29, namely acts of sodomy prohibited by Va. Code § 18.2-361(A). Again,
MacDonald argued that his 17-year-old victim should be deemed to be of the age of consent
under Virginia law and, therefore, that the anti-sodomy statute was being unconstitutionally
applied to him under Lawrence. In addition, MacDonald timely asserted a facial challenge
to the anti-sodomy statute. The Court of Appeals of Virginia rejected MacDonald’s as-
applied challenge based upon the age of consent, and held that MacDonald lacked standing
to assert a facial challenge to the anti-sodomy statute because it was not being
unconstitutionally applied to him. See id. (citing McDonald v. Commonwealth, 630 S.E.2d
754, 756-57 (Va. Ct. App. 2006)); see also County Court of Ulster Cty. v. Allen, 442 U.S.
140, 154-55 (1979) (“A party has standing to challenge the constitutionality of a statute
only insofar as it has an adverse impact on his own rights. As a general rule, if there is no
3
In federal habeas proceedings, the district court denied McDonald’s § 2254
petition, see MacDonald v. Johnson, No. 1:08cv781, 2009 WL 3254444 (E.D. Va. Oct. 9,
2009), and we denied a certificate of appealability, see McDonald v. Johnson, 384 Fed.
App’x 273 (4th Cir. 2010).
6
constitutional defect in the application of the statute to a litigant, he does not have standing
to argue that it would be unconstitutional if applied to third parties in hypothetical
situations.”). The Supreme Court of Virginia declined review.
C.
This court’s decision in Moose arose out of MacDonald’s habeas challenge to the
Court of Appeals of Virginia’s decision to affirm his conviction for solicitation of sodomy
under Va. Code §§ 18.2-29 and 18.2-361(A). The Moose court reversed the district court’s
denial of relief, and held that MacDonald was entitled to habeas relief from his solicitation-
of-sodomy conviction because the Virginia court’s “standing determination . . . was
contrary to and involved an unreasonable application of clearly established federal law, as
determined by the Supreme Court.” Moose, 710 F.3d at 162.
First, the Moose court held that, because the Supreme Court in Lawrence
“recognized that the facial due process challenge in Bowers was wrongly decided,” and
Virginia’s anti-sodomy statute was “materially indistinguishable from the anti-sodomy
provision” in Bowers, Virginia’s statute likewise did “not survive the Lawrence decision.”
Id. at 163.
Second, the Moose court turned to the appropriate remedy under the principles of
Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006). In Ayotte,
the United States Supreme Court held that “when confronting a constitutional flaw in a
statute,” federal courts should “try to limit the solution to the problem” by “enjoin[ing]
only the unconstitutional applications of [the] statute while leaving the other applications
in force.” Id. at 328-29. “[T]he normal rule is that partial, rather than facial, invalidation,
7
is the required course, such that [the] statute may be declared invalid to the extent that it
reaches too far, but otherwise left intact.” Id. at 329 (internal quotation marks and alteration
omitted). In doing so, however, federal courts must also remain “mindful that our
constitutional mandate and institutional competence are limited” and that we should
“restrain ourselves from rewriting state law to conform it to constitutional requirements
even as we strive to salvage it.” Id. (internal quotation marks and alteration omitted).
The Moose court agreed that Virginia’s anti-sodomy statute had constitutional
applications, and that there was nothing in Lawrence that would prohibit a state from
enacting a statute “criminaliz[ing] sodomy between an adult and a minor.” Moose, 710
F.3d at 164. However, the court held that it could not judicially remedy the statute without
“run[ning] afoul of the Supreme Court’s decision in Ayotte,” id. at 165-66, because “the
anti-sodomy provision, like the statute in Lawrence, applie[d] without limits,” and “d[id]
not mention the word ‘minor,’ nor . . . remotely suggest that the regulation of sexual
relations between adults and children had anything to do with its enactment,” id. at 165.
Accordingly, the statute, as written, was facially unconstitutional. See id. at 166 (“[T]he
“anti-sodomy provision, prohibiting sodomy between two persons without any
qualification, is facially unconstitutional” under the Due Process Clause.) (emphasis
added).
And, finally, the Moose court held that, because the anti-sodomy provision was
facially unconstitutional, it was “unconstitutional when applied to any person,” id. at 162,
and “the Ulster County decision d[id] not operate to deny standing for MacDonald to
pursue a facial due process challenge to the anti-sodomy provision.” Id. at 161.
8
III.
In his appeal to the Supreme Court of Virginia, Toghill asked the court to follow
our decision in Moose and likewise declare the anti-sodomy statute to be facially
unconstitutional under Lawrence and incapable of a narrowing construction that would
save it in its constitutional applications. 4 Additionally, Toghill asked the court to extend
the holding in Moose to his conviction for proposing acts of sodomy to a child under the
age of 15 in violation of § 18.2-374(C)(3), because § 18.2-374(C)(3) prohibits adults from
proposing “an act of sexual intercourse or any act constituting an offense under § 18.2-
361.” Id. (emphasis added).
After determining that it would allow Toghill to challenge the constitutionality of
his conviction under § 18.2-374.3(C)(3) based upon Lawrence, 5 the Supreme Court of
4
Toghill acknowledged that the Supreme Court of Virginia was not bound by our
decision in Moose, but nonetheless asked the court to follow that decision. See Toghill v.
Commonwealth, 768 S.E.2d 674, 677 (Va. 2015) (“While this Court considers Fourth
Circuit decisions as persuasive authority, such decisions are not binding precedent for
decisions of this Court.”) (citing Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas,
J., concurring) (“[N]either federal supremacy nor any other principle of federal law
requires that a state court’s interpretation of federal law give way to a (lower) federal
court’s interpretation.”); Owsley v. Peyton, 352 F.2d 804, 805 (4th Cir. 1965) (denying that
a Fourth Circuit decision alters existing Virginia law and acknowledging that “[t]hough
state courts may for policy reasons follow the decisions of the Court of Appeals whose
circuit includes their state, . . . they are not obligated to do so”); United States ex rel.
Lawrence v. Woods, 432 F.2d 1072, 1076 (7th Cir. 1970) (“[B]ecause lower federal courts
exercise no appellate jurisdiction over state tribunals, decisions of lower federal courts are
not conclusive on state courts.”). Toghill likewise acknowledges in this appeal that the
Supreme Court of Virginia was not bound by the Fourth Circuit’s decision in Moose.
5
Although Toghill had failed to raise his due process challenge at trial, a majority
of the Supreme Court of Virginia held “that the conflict created by the Fourth Circuit’s
subsequent opinion” in Moose was “good cause under [Va.] Rule 5:25 to consider the error
9
Virginia agreed to “examine whether, under [its] jurisprudence, Toghill’s conviction [was]
invalid premised on the theory that Code § 18.2-361(A) is facially unconstitutional as a
result of the Supreme Court’s ruling in Lawrence.” Toghill, 768 S.E.2d at 677 (emphasis
added). Its decision to reject the constitutional challenge and affirm Toghill’s conviction
was two-fold.
First, the Supreme Court of Virginia stood by its earlier view that “‘[n]othing in
Lawrence prohibits the application of the sodomy statute to conduct between adults and
minors.’” Id. at 679 (alteration omitted) (quoting McDonald, 645 S.E.2d at 924)).
We held in McDonald, 645 S.E.2d at 924, and we reaffirm this day that the
Supreme Court’s decision in Lawrence did not prevent Code § 18.2-361(A)
from being constitutional and enforceable as applied to sodomy between
adults and minors. This Court recognized then and recognizes in this case
that “[t]he Court in Lawrence was explicit in its declaration of the scope of
the opinion: ‘The present case does not involve minors.’”
Id. (quoting Lawrence, 539 U.S. at 578)). Accordingly, the court held that the anti-sodomy
statute “was constitutional as applied to Toghill” and that “Toghill therefore [did] not have
standing to successfully assert a facial constitutional challenge to” the anti-sodomy
statute.” Id.
In doing so, the Supreme Court of Virginia declined to follow the view of the
majority in Moose that “the Supreme Court in Lawrence signaled that sodomy statutes were
facially unconstitutional because it overturned Bowers,” id., and instead “concur[red] with
the sentiment expressed in Judge Diaz’s dissent to the Moose decision that although the
alleged by Toghill regarding the constitutionality of Code § 18.2-361(A).” Toghill, 768
S.E.2d at 677.
10
Court in Lawrence overturned Bowers, to infer that Lawrence intended sodomy statutes to
be facially invalid from this factor would be a logical ‘bridge too far,’” id. at 679 n.4
(quoting Moose, 710 F.3d at 169 (Diaz, J., dissenting)).
Second, the Supreme Court of Virginia directly confronted Toghill’s facial
challenge to the anti-sodomy statute and the question of whether, under its jurisprudence,
the statute should “be totally invalidated” in all of its applications because it was
“unconstitutional only in certain applications.” Id. at 680. Consistent with its obligation
to “narrowly construe a statute where such a construction is reasonable and avoids a
constitutional infirmity,” Virginia Soc’y for Human Life, Inc. v. Caldwell, 500 S.E.2d 814,
816-17 (Va. 1998), the Toghill court adopted an authoritative, narrowing construction of
the anti-sodomy statute so as to save it from total invalidation, see Toghill, 768 S.E.2d at
681.
In accordance with the Lawrence decision, Code § 18.2-361(A) cannot
criminalize private, noncommercial sodomy between consenting adults, but
it can continue to regulate other forms of sodomy, such as sodomy involving
children, forcible sodomy, prostitution involving sodomy and sodomy in
public. The easy to articulate remedy is that Code § 18.2-361(A) is invalid
to the extent its provisions apply to private, noncommercial and consensual
sodomy involving only adults.
Id. (emphasis added); see also Caldwell, 500 S.E.2d at 817 n.3 (“While an ambiguity of
language may serve as the basis for rejecting an unconstitutional interpretation of a statute
in favor of one that survives constitutional scrutiny, a finding of ambiguity is not a
prerequisite for applying a narrowing construction to preserve a statute’s constitutionality.
To the contrary, we may construe the plain language of a statute to have limited application
11
if such a construction will tailor the statute to a constitutional fit.”) (internal citation
omitted).
Thus, in Toghill, the Supreme Court of Virginia confronted, for the first time, a
facial challenge to the anti-sodomy statute, considered the Ayotte framework that governed
our review in Moose, as well as its own jurisprudence in Caldwell, and held “that it is
proper to apply the ‘normal rule’ by prohibiting those applications of Code § 18.2-361(A)
that are unconstitutional and leaving the constitutional applications of Code § 18.2-361(A)
to be enforced.” Id. at 682. “This remedy,” the court pointed out, was the proper “exercise
in judicial restraint because it allow[ed] the constitutional portions of a statute passed by
the General Assembly to remain in effect and reflect[ed] the legislative preferences
exhibited by the Code and the subsequent acts of the General Assembly.” Id. In particular,
the Supreme Court of Virginia relied upon several post-Moose acts of the Virginia General
Assembly that were passed “to ensure that sodomy with a minor or solicitation of sodomy
with a minor would be a crime.” Id. at 681. “Currently, the Code of Virginia criminalizes
sodomy involving adults and minors in numerous ways and thus shows clearly that our
upholding convictions under the instant version of Code § 18.2-361(A) for offenses
involving children is consistent with legislative intent.” Id. 6 It is this determination of the
Supreme Court of Virginia that we review in this appeal.
6
One such statute, the court pointed out, was the statute of conviction in this case,
Va. Code § 18.2-374.3(C)(3), which was amended to prohibit an adult from using “a
communications system to ‘[p]ropose to [a minor under 15 years of age] the performance
of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus.’”
Toghill, 768 S.E.2d at 682 (quoting Va. Code § 18.2-374.3 (C)(3) (2014)).
12
IV.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we
may grant habeas relief to a state prisoner only if the state court’s last adjudication of a
claim on the merits “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,” 28 U.S.C. § 2254(d)(1) (emphasis added), or “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)(2). Toghill does not claim that the
Supreme Court of Virginia’s decision in his case was factually unreasonable. Rather, he
argues that the Supreme Court of Virginia’s rejection of his substantive due process claim
was contrary to and an unreasonable application of the Supreme Court’s decision in
Lawrence, as interpreted by our court in Moose.
The AEDPA standard “serves important interests of federalism and comity” and it
“is intentionally difficult to meet.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (per
curiam) (internal quotation marks omitted). To obtain relief, the state prisoner “is required
to ‘show that the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.’” Id. (quoting
Harrington v. Richter, 562 U.S. 86, 103 (2011)). “The reasons for this approach are
familiar. Federal habeas review of state convictions frustrates both the States’ sovereign
power to punish offenders and their good-faith attempts to honor constitutional rights.”
Harrington, 562 U.S. at 103 (internal quotation marks omitted). “It disturbs the State’s
13
significant interest in repose for concluded litigation, denies society the right to punish
some admitted offenders, and intrudes on state sovereignty to a degree matched by few
exercises of federal judicial authority.” Id. (internal quotation marks omitted).
Accordingly, while we are informed by the decision in Moose, the question before
us is not whether the Supreme Court of Virginia’s decision to affirm Toghill’s conviction
under Va. Code § 18.2-374(C)(3), based upon its reference to Va. Code § 18.2-361(A), is
contrary to or an unreasonable application of the Moose decision, nor whether we would
construe the statutes at issue in the manner that it did. The question is whether the Supreme
Court of Virginia’s decision to uphold Toghill’s conviction under its construction of the
state statutes at issue was contrary to or an unreasonable application of the Supreme Court’s
decision in Lawrence. See Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008) (“[I]t is
Supreme Court precedent, and not Fourth Circuit precedent, to which we look in applying
the AEDPA standard of review.”).
V.
Toghill argues that the Supreme Court of Virginia’s decision to uphold his
conviction for computer solicitation of a minor under Va. Code § 18.2-374.3(C)(3) is
contrary to or an unreasonable application of Lawrence, because it is indistinguishable
from MacDonald’s conviction for solicitation of a felony under Va. Code § 18.2-29, i.e.,
sodomy criminalized under Virginia’s anti-sodomy statute. More specifically, he contends
that both convictions were “predicated” upon the anti-sodomy statute that this court
declared facially invalid in Moose, and that we are therefore equally bound to grant him
relief from his conviction. We disagree.
14
A.
First, there are important differences between the Virginia state court decision that
we reviewed in Moose and the state court decision that we review in this case.
“It is well settled that federal courts have the power to adopt narrowing
constructions of federal legislation. Indeed, the federal courts have the duty to avoid
constitutional difficulties by doing so if such a construction is fairly possible.” Boos v.
Barry, 485 U.S. 312, 330-31 (1988) (emphasis added). However, “federal courts are
without power to adopt a narrowing construction of a state statute unless such a
construction is reasonable and readily apparent.” Id. at 330 (emphasis added); see also
United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 369 (1971) (noting that
while federal courts have the power to give federal statutes an “authoritative construction,”
“we lack jurisdiction authoritatively to construe state legislation”); Virginia Soc’y for
Human Life, Inc. v. Caldwell, 152 F.3d 268, 270 (4th Cir. 1988) (same).
The distinction is an important one. When a state statute has unconstitutional
applications and has not been given a narrowing construction by the state court that saves
it from those applications, federal courts “must be careful not to encroach upon the domain
of a state legislature by rewriting a law to conform it to constitutional requirements.”
Legend Night Club v. Miller, 637 F.3d 291, 301 (4th Cir. 2011) (internal quotation marks
and alteration omitted); see also Ayotte, 546 U.S. at 329. “[N]arrowing constructions are
only appropriate when the text or other source of congressional intent identifies a clear line
that a court could draw.” Legend, 637 F.3d at 301 (internal quotations marks omitted);
see also Moose, 710 F.3d at 166.
15
In Moose, the court held that it could not adopt a narrowing construction to save
Virginia’s anti-sodomy statute under the principles set forth in Ayotte because it would
require undue “meddling” into state legislative matters. Moose, 710 F.3d at 166. This was
because the anti-sodomy provision, as passed by the Virginia General Assembly, “applie[d]
without limits,” “d[id] not mention the word ‘minor,’ nor . . . remotely suggest that the
regulation of sexual relations between adults and children had anything to do with its
enactment.” Id. at 165. In these circumstances, the court held, “a judicial reformation of
the anti-sodomy provision to criminalize MacDonald’s conduct . . ., and to do so in
harmony with Lawrence, require[d] a drastic action that r[an] afoul of the Supreme Court's
decision in Ayotte.” Moose, 710 F.3d at 165-66.
However, prior to Moose, the Supreme Court of Virginia had only considered as-
applied challenges to the anti-sodomy statute, and held, based upon its view of the scope
of the opinion in Lawrence, that the Due Process Clause did not prohibit the application of
the anti-sodomy statutes to the conduct in that case, which was only between adults and
minors. See Toghill, 768 S.E.2d at 679; McDonald, 645 S.E.2d at 924. It was of the view
that Lawrence had only invalidated the convictions of two consenting adults who had
engaged in the criminalized conduct in private, as violative of their due process rights. See
id. Thus, the Supreme Court of Virginia never directly confronted the question of whether
it should adopt an authoritative, narrowing construction of the anti-sodomy statute, under
its jurisprudence, in order to judicially remedy the statute and save it in its constitutional
applications. Simply put, there had been no need to do so in the as-applied challenge before
it.
16
That circumstance—that is, the need to examine a remedy to the statute to preserve
its constitutional application—had changed when the Supreme Court of Virginia heard
Toghill’s appeal. Although the Supreme Court of Virginia stood by its earlier view that
Lawrence did not prohibit application of the anti-sodomy statute to conduct between adults
and minors in the first instance, see Toghill, 768 S.E.2d at 679, 7 it also explicitly considered
the facial challenge to § 18.2-361. In doing so, the court narrowed the anti-sodomy statute
under its own jurisprudence to authoritatively remedy any constitutional infirmity and
prohibit convictions that might run afoul of the Due Process Clause as interpreted by the
Supreme Court in Lawrence, see Toghill, 768 S.E.2d at 681. 8 This was plainly within its
power and prerogative.
7
We note that, had the Supreme Court of Virginia stopped there, it likely would
have set up an intolerable conflict between our court and theirs, at least insofar as we
differed as to the scope of the Lawrence decision and the question of whether Virginia’s
convictions for sodomy and solicitation of sodomy of minors under Va. Code §§ 18.2-
361(A) and 18.2-29 could survive that decision. Because the Supreme Court of Virginia
was not bound by the decision in Moose, it would continue to affirm such convictions
against due process challenges if the victims were minors—as well as when the criminal
conduct involved prostitution, public sodomy, or victims who could not or did not
consent—only to have us grant habeas relief to the same Virginia prisoners based upon our
contrary view, unless and until Moose was overruled by an en banc court in this circuit or
the United States Supreme Court. Fortunately, and perhaps in recognition of this inevitable
conflict, the Supreme Court of Virginia did not stop there.
8
Although the court clearly considered the Ayotte factors that had governed our
review in Moose, see Toghill, 768 S.E.2d at 681-82, Toghill does not dispute that the Ayotte
framework only applies when federal courts are tasked with determining whether a state
statute, which has constitutional and unconstitutional applications, should be totally
invalidated.
17
Federal courts “have long respected the State Supreme Courts’ ability to narrow
state statutes so as to limit the statute’s scope to unprotected conduct.” Osborne v. Ohio,
495 U.S. 103, 120 (1990). This is because “[o]nly [state] courts can supply the requisite
construction” of a state statute. Gooding v. Wilson, 405 U.S. 518, 520 (1972); Thirty-Seven
(37) Photographs, 402 U.S. at 369; Caldwell, 152 F.3d at 270. And when “construing [the
state law], we are bound by the construction given to it by [the state] court.” R.A.V. v. City
of St. Paul, Minn., 505 U.S. 377, 381 (1992); see also Posadas de P.R. Assocs. v. Tourism
Co., 478 U.S. 328, 339 (1986) (“[I]n reviewing the facial constitutionality of [a] challenged
[state] statute [or] regulation[], we must abide by the narrowing constructions announced
by the [state] Court.”); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“This Court . . .
repeatedly has held that state courts are the ultimate expositors of state law, and that we
are bound by their constructions except in extreme circumstances not present here.”
(internal citations omitted)). 9
9
Indeed, in some circumstances, the Supreme Court has indicated that the better
course is to seek an authoritative, narrowing construction from the state supreme court
before ruling upon the constitutionality of a state statute that has constitutional and
unconstitutional applications. See Virginia v. American Booksellers Ass’n, Inc., 484 U.S.
383, 395-96 (1988) (holding that “where it appears the State will decline to defend a statute
if it is read one way and where the nature and substance of plaintiffs’ constitutional
challenge is drastically altered if the statute is read another way, it is essential that we have
the benefit of the law’s authoritative construction from the Virginia Supreme Court” via
the certification procedure); see also Bellotti v. Baird, 428 U.S. 132, 145-51 (1976)
(remanding with instructions to certify questions pertaining to construction of a state statute
that was susceptible to multiple interpretations, one of which would avoid or substantially
modify a federal constitutional challenge); Virginia Soc’y for Human Life, Inc. v. Caldwell,
152 F.3d 268, 269 (4th Cir. 1998) (noting the district court’s decision to seek certification
prior to confronting the constitutional question at hand).
18
Thus, where, the state court has provided an authoritative, narrowing construction
of a state statute, the “federal court must . . . consider [the] limiting construction that a state
court . . . has proffered” when evaluating a facial challenge. Village of Hoffman Estates v.
The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982) (internal quotation marks
omitted); see also Martin v. Lloyd, 700 F.3d 132, 136 (4th Cir. 2012) (same). Moreover,
we are bound to accept the state supreme court’s construction “as if written into the statutes
themselves.” Hebert v. Louisiana, 272 U.S. 312, 317 (1926). The state court’s
“construction fixes the meaning of the statute,” “put[ting] the[] words in the statute as
definitively as if it had been so amended by the legislature.” Winters v. New York, 333
U.S. 507, 514 (1948) (citing Hebert, 272 U.S. at 317).
The Supreme Court of Virginia has now done just that. It has adopted an
authoritative, narrowing construction of the anti-sodomy statute that saves it from total
invalidation, by limiting it to its constitutional applications under Lawrence— “sodomy
involving children, forcible sodomy, prostitution involving sodomy and sodomy in public.”
Toghill, 768 S.E.2d at 681. And this interpretation by the Supreme Court of Virginia “puts
these words in the statute as definitively as if it had been so amended by the legislature.”
Winters, 333 U.S. at 514.
Nor does it matter for purposes of this case that the narrowing construction occurred
after this court in Moose declared the anti-sodomy statute to be facially invalid under
Lawrence and Ayotte. As noted above, the court in Moose did not have the benefit of the
Supreme Court of Virginia’s authoritative, narrowing construction at the time that it
considered the remedy available under Ayotte. Moreover, the United States Supreme Court
19
“ha[s] repeatedly held that a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal court sitting in
habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam); see also
Maynard v. Cartwright, 486 U.S. 356, 365 (1988) (noting that the significance of state
court decisions restricting the application of a statute after it had been declared
unconstitutionally vague by a federal circuit court of appeals is “a matter for the state courts
to decide in the first instance”); cf. Erznoznik v. City of Jacksonville, 422 U.S. 205, 215-17
(1975) (declining to save a city ordinance from its unconstitutional scope and invalidating
the ordinance on its face where “the state courts were presented with the [constitutional]
challenge [and] made no effort to restrict its application” to unprotected conduct, and,
therefore, “there [was] no reason to assume that the ordinance can or will be decisively
narrowed” by the state court).
In addition, the “statute as construed may be applied to conduct occurring prior to
the construction, provided such application affords fair warning to the defendan[t].”
Osborne v. Ohio, 495 U.S. 103, 115 (1990) (internal quotation marks omitted). At the time
of Toghill’s conviction, Va. Code § 18.2-361(A) plainly prohibited sodomy between an
adult and a minor, and § 18.2-374.3(C)(3) plainly prohibited an adult from soliciting
sodomy from a minor via communications systems, including computers and the internet.
Clearly, Toghill was on notice that his actions violated state law. Moreover, Lawrence had
made clear its holding did not apply to cases involving “minors,” “persons who might be
injured or coerced or who are situated in relationships where consent might not easily be
refused,” or “public conduct or prostitution.” Lawrence, 539 U.S. at 578.
20
To conclude, this panel is informed by the decision in Moose. But we, unlike the
panel in Moose, are also bound by the Supreme Court of Virginia’s post-Moose
authoritative, narrowing construction of the anti-sodomy statute, and we are now limited
to considering whether the statute, as construed by the state court, is still facially
unconstitutional. See R.A.V., 505 U.S. at 381; see also Hebert, 272 U.S. at 317 (noting
that, where a state supreme court has construed the statute, “[a]ll that [is] open in this Court
under the due process clause is whether the State had power to impose the penalty fixed by
the statutes as thus construed”). Clearly, Virginia’s anti-sodomy statute, as authoritatively
construed by the Supreme Court of Virginia, does not criminalize conduct that Lawrence
declared to be protected by the liberty interests guaranteed by the Due Process Clause, and
it is, therefore, not facially unconstitutional. And we cannot say that the Supreme Court of
Virginia’s decision to adopt this narrowing construction, under its jurisprudence, was
contrary to or an unreasonable application of applicable Supreme Court precedent. 10
B.
Second, there are also important differences between the statutes of conviction
involved in Moose and the statute of conviction involved in this case.
10
In this regard, we note that the Supreme Court of Georgia, in Watson v. State,
750 S.E.2d 143 (Ga. 2013), issued a similar decision to limit a solicitation statute after our
decision was issued in Moose. It reaffirmed its pre-Lawrence holding that the Georgia
sodomy statute is constitutional under the Due Process Clause when “construed in a limited
manner, so as not to criminalize ‘private, unforced, non-commercial acts of sexual intimacy
between persons legally able to consent,’” id. at 145 (quoting Powell v. State, 510 S.E.2d
18, 26 (Ga. 1998)), and extended that holding to the defendant’s First Amendment
challenge to the solicitation-of-sodomy statute, see id. at 146 & n.2.
21
“Under Code § 18.2-374.3(C), a defendant is guilty of illegally using a
communication system if he contacts ‘any person he knows or has reason to believe is a
child less than 15 years of age’ with lascivious intent for the purpose of soliciting that
person’s involvement in any of several sexual encounters.” Grafmuller v. Commonwealth,
698 S.E.2d 276, 278 (Va. Ct. App. 2010) (quoting Va. Code § 18.2-374.3(C)). “[T]he
General Assembly, by enacting this statute, clearly intended to protect children from people
who would take advantage of them before the perpetrator could commit a sexual assault on
an actual child.” Id. at 280; see also Colbert v. Commonwealth, 624 S.E.2d 108, 112-13
(Va. Ct. App. 2006) (noting that the provisions of what is now Code § 18.2-374.3(C) fall
expressly within the legislature’s purpose of “protecting children from sex offenders”).
As noted above, the Moose court felt constrained by the principles of Ayotte from
providing a limiting construction to Va. Code § 18.2-361(A) because the statute, on its
face, prohibited sodomy between consenting adults “without limits,” “d[id] not mention
the word ‘minor,’ nor . . . remotely suggest that the regulation of sexual relations between
adults and children had anything to do with its enactment.” Moore, 710 F.3d at 165. Not
so with Va. Code § 18.2-374.3(C). There can be no doubt that the Virginia General
Assembly’s intent, when it enacted this and other minor-specific statutes, was to
criminalize the sexual exploitation of children by adults.
Indeed, the Moose decision itself referred to such statutes, implicitly acknowledging
the distinction between them and the anti-sodomy statute. See Moose, 710 F.3d at 165 &
n.16 (noting that, unlike the anti-sodomy statute, which had no age restrictions, the Virginia
General Assembly had explicitly made it “a felony in Virginia for an adult to solicit sodomy
22
from ‘any child under the age of 15 years’” in Va. Code § 18.2-370(A)); id. at 167 (noting
that “[a] consequence of the Ayotte decision could be that a statute closely related to the
anti-sodomy provision—for example, Va. Code section 18.2-361(B), which criminalizes
incestuous sodomy involving both minors and adults—might well survive review under
Lawrence, as may that part of section 18.2-361(A) that outlaws bestiality”); see also Sadler
v. Commonwealth, 667 S.E.2d 783, 785 (Va. 2008) (noting that the purpose of Va. Code §
18.2–370.1, which prohibits an adult from taking indecent liberties with a child under 18
years of age over whom the adult has a custodial or supervisory relationship, “is to protect
minors from adults who might exploit certain types of relationships”). 11
Here, Toghill committed the crime of which he stands convicted. His challenge
rests solely upon his claim that because we declared the anti-sodomy statute
unconstitutional in Moose, and § 18.2-374(C)(3) refers to “offense[s] under § 18.2-361,”
he is entitled to habeas relief. Were we to accept this contorted statutory interpretation, we
would effectively eviscerate the clear intent of the Virginia General Assembly to protect
children from sexual predators via the General Assembly’s minor-specific statutes, even
though none run afoul of the liberty interests the Supreme Court protected in Lawrence.
There is simply nothing in Lawrence that restricts state legislatures from prohibiting adults
from seeking or engaging in sexual acts with children, or that would require us to facially
invalidate convictions under state statutes that were clearly enacted for that purpose.
11
Va. Code § 18.2-370.1, like the statutes of conviction in Moose and Sadler, also
includes “any act constituting an offense under § 18.2-361” as a part of its prohibited acts.
23
Nor does the anti-sodomy statute serve as a predicate felony for § 18.2-374(C)(3),
in the way that it did for the solicitation of felony offense that MacDonald was convicted
of under Va. Code § 18.2-29. On the contrary, Va. Code § 18.2-374(C)(3) is a stand-alone
statute that merely references the anti-sodomy provision in its delineation of the acts
(sodomy and bestiality, along with sexual intercourse) that an adult is constitutionally
prohibited from proposing to a minor via electronic communications systems. See Hassett
v. Welch, 303 U.S. 303, 314 (1938) (“Where one statute adopts the particular provisions of
another by specific and descriptive reference to the statute or provisions adopted, the effect
is the same as though the statute or provisions adopted had been incorporated bodily into
the adopting statute.” (internal quotation marks omitted)); United States v. Myers, 553 F.3d
328, 331 (4th Cir. 2009) (same); Artistic Entm’t, Inc. v. City of Warner Robins, 331 F.3d
1196, 1206 (11th Cir. 2003) (per curiam) (“Incorporation by reference is a form of
legislative shorthand; the effect of an incorporation by reference is the same as if the
referenced material were set out verbatim in the referencing statute.”); id. (“We are aware
of no authority to the effect that a definition incorporated by reference into another
otherwise valid ordinance . . . ceases to be an operative definition just because it derives
from a reference ordinance . . . that was declared unconstitutional for reasons having
nothing to do with the definition.”). 12
12
Virginia’s amended statute, which was passed after our decision in Moose, makes
this all the more plain. The current version now reads as follows:
It is unlawful for any person 18 years of age or older to use a communications
system, including but not limited to computers or computer networks or
24
Accordingly, we reject Toghill’s claim that Lawrence requires the invalidation of
his conviction under § 18.2-374.3(C)(3) merely because it references the anti-sodomy
statute. And we certainly cannot say that the Supreme Court of Virginia’s decision to
uphold Toghill’s conviction for computer solicitation of a minor to engage in sodomy under
Va. Code § 18.2-374.3(C)(3), in light of the clear legislative intent, was an unreasonable
one.
VI.
For the foregoing reasons, we affirm the judgment of the district court denying
Toghill’s petition for habeas relief under 28 U.S.C. § 2254.
AFFIRMED.
bulletin boards, or any other electronic means, for the purposes of soliciting,
with lascivious intent, any person he knows or has reason to believe is a child
younger than 15 years of age to knowingly and intentionally . . . [p]ropose
to such child the performance of an act of sexual intercourse, anal
intercourse, cunnilingus, fellatio, or anilingus or any act constituting an
offense under § 18.2-361.
Va. Code § 18.2-374.3(C)(3) (emphasis added). As the district court aptly noted, there is
simply “no constitutional distinction between Virginia Code § 18.2-374(3)(C) as it has
been amended and exists at present, expressly prohibiting an adult from electronically
soliciting a child to engage in ‘an act of sexual intercourse, anal intercourse, cunnilingus,
fellatio, or anilingus or any act constituting an offense under § 18.2-361,’ from the pre-
MacDonald v. Moose version of the statute which prohibited electronic solicitation of a
child to engage in “‘an act of sexual intercourse or any act constituting an offense under §
18.2-361.’ Merely referencing § 18.2-361 in § 18.2-374.3(C) does not change the fact that
the crime made illegal in § 18.2-374.3(C), and committed by Toghill, is a sex crime
directed at children.” J.A. 95, n.10.
25