Adam Toghill v. Harold Clarke

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