Argued: September 14, 2017
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)
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.
Ellis Brennan, Stuart Goldberg, Jasna McElrath, Third Year
Law Students, UNIVERSITY OF BALTIMORE SCHOOL OF LAW,
Baltimore, Maryland, for Appellant.
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
WILKINSON, TRAXLER, and AGEE, Circuit Judges.
TRAXLER, CIRCUIT JUDGE
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,
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.
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:
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.
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. 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.
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.
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
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
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
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.
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 ...