AMY TOTENBERG, District Judge.
In 1997, Petitioner Charlton Paul Green pled guilty to committing sodomy in violation of a Georgia statute that, since then, has been rendered largely unconstitutional by the Georgia Supreme Court and the United States Supreme Court. Nonetheless, the State of Georgia demands that Mr. Green register as a sex offender for this sodomy violation. Mr. Green failed to do so, and in May 2009, he was convicted in the Superior Court of Cherokee County for failing to register as a sex offender. He now petitions this Court for a writ of habeas corpus, to release him from his sentence for failing to register as a sex offender.
On December 9, 2013, the Court granted Mr. Green's petition for a writ of habeas corpus (the "Petition"), holding that his counsel rendered ineffective assistance when he failed to object to the use of the sodomy conviction in the prosecution of Mr. Green's sex offender registration violation. The State of Georgia appealed. Without addressing the merits of Mr. Green's Petition, the Eleventh Circuit Court of Appeals vacated this Court's Order granting Mr. Green's Petition. The court explained that district courts must resolve all claims for relief raised in a petition brought under 28 U.S.C. § 2254, "regardless of whether habeas relief is granted or denied." Green v. State, 570 Fed.Appx. 893 (11th Cir.2014) (quoting Clisby v. Jones, 960 F.2d 925, 936 (11th Cir.1992) (en banc)). The Court remanded the case for consideration of Mr. Green's two other bases for habeas corpus relief: that the use of the sodomy conviction to obtain the instant conviction denied Mr. Green substantive and procedural due process.
The Court again concludes that Mr. Green is entitled to a writ of habeas corpus because his attorney provided ineffective assistance at trial. The Court rejects Mr. Green's remaining arguments for relief. Thus, as more thoroughly explained below, the Court
This matter is before the Court on the Magistrate Judge's Final Report and Recommendation ("R & R") [Doc. 15] and
Green timely filed his objection to the Magistrate Judge's R & R. This Court's review of the Magistrate Judge's R & R is de novo, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
Green raises two questions. The first is whether a 1999 conviction for private consensual sodomy between two men who had each reached the age of consent (a 16 year old and a 20 year old)
In 1997, in the Superior Court of Pickens County, Charlton Green pled guilty to committing sodomy in violation of O.C.G.A. § 16-6-2.
In 1986, O.C.G.A. § 16-6-2, the Georgia statute that criminalized sodomy, survived an attack under the Federal Constitution. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). Twelve years later, relying solely on the Georgia Constitution, emphasizing that it provided more extensive protection than did the Federal Constitution, and noting "the rich appellate jurisprudence in the right of privacy"
In May, 2009, Green was convicted in the Superior Court of Cherokee County of failing to register as a sex offender; it is this conviction that he challenges here.
After his 2009 conviction in Cherokee County for failing to register as a sex offender, Green retained new counsel and filed a motion for new trial.
Addressing the contention that trial counsel had been ineffective, the Georgia Court of Appeals affirmed denial of relief on March 26, 2010. According to the court, pretermitting whether Green could show cause as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he could not show prejudice. The court held that he had not shown "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Green, 692 S.E.2d at 787. The Court of Appeals explained, "At the hearing on the motion for new trial, the alleged victim in the sodomy case testified that his sexual encounter with Green occurred in a hotel room; that it was consensual; that two girls were also in the room; that they were just `partying ... getting into stuff they shouldn't have...." Id. Green had not shown prejudice, the Court of Appeals ruled, because after having considered the evidence and the arguments of counsel, the trial court "acknowledged that Powell and Lawrence had changed the law but concluded that those changes do not apply to his factual situation because the conduct was not `private,' given the presence of other people in the room." Id. The trial court also "noted that Green still had a conviction on his record that required him to register and that no constitutional challenge to that conviction had been made," and "relied on the fact that Green waived his defenses when he pled guilty" presumably referring to Green's plea of guilty to the underlying sodomy charge. Id. The Cherokee County Superior Court recognized that perhaps Green could seek relief from his underlying conviction in Pickens County or via a habeas petition, but found no basis to grant his motion for new trial on the registration offense. (See Tr. Sept. 9, 2009 Mot. New Trial Hrg. at 70-71, 74-45, Doc. 5-3.)
In September 2009 while Green's appeal from the denial of his motion for new trial was still pending, Green followed the Cherokee County Superior Court's suggestion and filed a "Motion to Pronounce a Valid Judgment" in Pickens County Superior Court. (Id. at 74-75.) Pickens County Superior Court Judge Brenda Weaver granted his motion and vacated the sodomy conviction. Judge Weaver addressed Green's constitutional argument head-on and held "that the undisputed evidence supports Mr. Green's claim to the protections of Powell and Lawrence." (Mar. 10, 2010, Pickens Cnty. Ord. at 7, Doc. 21-1.) She first recognized that the constitutional protection of Powell and Lawrence only applies to "sexual activity that is private, consensual, non-commercial, and between person above the age of consent." (Id.) She easily found that the sexual conduct met the last three factors. (Id.) Then, considering the same evidence in the record that was before the Cherokee County trial court,
On February 22, 2011, the Georgia Court of Appeals reversed on procedural grounds the Pickens Superior Court's decision to vacate Green's sodomy conviction. Id. ("[B]ecause a motion to vacate a judgment of conviction is not an established procedure for challenging the validity of a judgment in a criminal case, Green was not authorized to seek relief from his conviction pursuant to such a motion."). Thus, as it stands, Green remains on probation for violating the reporting requirement of O.C.G.A. § 42-1-12, a requirement imposed upon him because of his conviction under a sodomy law that has been deemed largely unconstitutional. On that basis, he petitions for a writ of habeas corpus.
On December 28, 2011, Green filed this petition for a writ of habeas corpus raising three claims: (1) that the use of the sodomy conviction in his prosecution for failing to register violated his right to procedural due process; (2) that the use of the sodomy conviction in his prosecution for failing to register violated his right to substantive due process; and (3) that his counsel's failure to object to the use of the sodomy conviction in his prosecution for failing to register as a sex offender deprived him of the effective assistance of counsel. (Doc. 1.)
The constitutional claim at the heart of each of the three grounds asserted is that the 1999 sodomy conviction criminalized conduct that is beyond the power of the state to treat as criminal. Green does not, however, seek to vacate the 1999 sodomy conviction, and this Court lacks the authority to take such action here because Green is not "in custody" pursuant to the sodomy conviction. Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989).
Green's arguments that his conviction for failing to register as a sex offender has denied him procedural or substantive due process — his petition's first and second grounds for relief — do not provide a sufficient basis for habeas relief under AEDPA's stringent restrictions. Because the sodomy conviction is still extant, the only ground on which Green may seek relief is his contention that his counsel's failure to object to the use of the 1999 sodomy conviction deprived him of the effective assistance of counsel.
The State contends, however, that even this remaining avenue — ineffective assistance of counsel — is not available, relying on Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001). In Coss, the Supreme Court disallowed the use of 28 U.S.C. § 2254 to attack a current sentence on the
The Court rejected this position holding that generally, "once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid." Id. at 403, 121 S.Ct. 1567; see also Daniels v. United States, 532 U.S. 374, 384, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001) (applying this principle to federal convictions). Two concerns drove this decision: (1) the finality of the conviction and, in particular, the state's "strong interest in preserving the integrity of the judgment" and (2) the problem related to "ease of administration of challenges to expired state convictions." Coss, 532 U.S. at 403, 121 S.Ct. 1567. The Court then found that exceptions to this general principle were inapplicable and thus denied the habeas petition.
The prudential limitation on habeas relief articulated in Coss does not apply here. First, unlike in Coss, this is not a case in which a prior conviction is used as an enhancement. Rather, Green directly challenges the sodomy conviction's use to establish one of the elements of the crime of failing to register: "[T]here is a difference between the use of a final conviction merely to increase a recidivist's sentence or to cast collateral burdens on an accused, and the deployment of a prior offense to impose a restriction on liberty that would otherwise not exist at all." (Br. Supp. Pet. Writ Habeas Corpus, Doc. 8 at 18.) See also Jones v. Solis, 121 Fed.Appx. 228, 230 (9th Cir.2005) (holding that Coss does not bar a habeas petitioner from challenging the constitutionality of the basis for his conviction for failure to register as a sex offender merely because the underlying conviction triggering the registration requirement was final).
Second, the concerns driving the decision in Coss are not implicated here. In Coss, the petitioner asked the habeas court to consider whether a former conviction was constitutionally obtained. As the Supreme Court recognized, this question would have required the court to "consult state court records and transcripts to ensure that challenged convictions were obtained in a manner consistent with constitutional demands." Coss, 532 U.S. at 403, 121 S.Ct. 1567. This scrupulous review becomes increasingly difficult over time. "As time passes, and certainly once a state sentence has been served to completion," the Court explained, "the likelihood that trial records will be retained by the local courts and will be accessible for review diminishes substantially." Id. Here, however, Green does not ask (nor need) the Court to substantially review state court records of his 1999 sodomy conviction, because he does not argue that his conviction was unconstitutionally obtained. He argues instead that the sodomy statute under which he was convicted criminalized conduct beyond the power of the state to punish.
Likewise, the state's interest in preserving the integrity of the 1999 conviction is
Moreover, Green's case presents a "unique constitutional defect ... rising to the level of a jurisdictional defect, which therefore warrants special treatment among alleged constitutional violations." Coss, 532 U.S. at 404, 121 S.Ct. 1567. In Coss, the Court recognized "an exception to the general rule for § 2254 petitions that challenge an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright." Id. The Court explained that "allowing an exception for Gideon challenges does not implicate our concern about administrative ease, as the `failure to appoint counsel ... will generally appear from the judgment roll itself, or from an accompanying minute order.'" Id. at 405, 121 S.Ct. 1567 (quoting Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994)). Green's challenge here is as easily evaluated by considering his indictment and the basic facts of his underlying sodomy conviction. Like the failure to appoint counsel, the use of a state statute that exceeds the state's power to criminalize conduct is a unique constitutional defect which warrants special treatment among alleged constitutional violations.
Although this Court has jurisdiction to entertain this petition for relief, under 28 U.S.C. § 2254(a) a federal court may not grant habeas relief on any claim that was adjudicated on the merits in state court proceedings unless the state court adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable
The Supreme Court established the prevailing standard for ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to show that his constitutional right to counsel has been violated, a petitioner must show "that counsel's representation fell below an objective standard of reasonableness." 466 U.S. at 688, 104 S.Ct. 2052. If a defendant establishes that counsel's performance was professionally unreasonable, he is only entitled to relief if the error affected the outcome of his case. Id. This is the second prong of the Strickland test: a petitioner must show that counsel's deficient performance was prejudicial to his defense. To do so, a defendant must show to a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability is one "sufficient to undermine confidence in the outcome." Id. The Strickland court was concerned with the "fundamental fairness of the proceeding." Id. at 696, 104 S.Ct. 2052. Therefore, a court reviewing counsel's performance must consider whether the result of a proceeding is unreliable due to a "breakdown in the adversarial process that our system counts on to produce just results." Id. Both prongs of the Strickland test are satisfied in this case.
The Georgia Court of Appeals erroneously determined that Green had not shown prejudice. The court turned to three comments made by the Cherokee County Superior Court on Green's motion for new trial suggesting that even if trial counsel had challenged the use of the sodomy conviction during the trial, this would not have made a difference in the trial court's ultimate decision. Green, 692 S.E.2d at 786-87.
First, the Court of Appeals referenced the Cherokee County Superior Court's comment that Green "had a conviction on his record that required him to register and that no constitutional challenge to that conviction had been made." Id. at 787. The court appears to refer to the 1999 sodomy conviction.
Second, the trial court noted that Green waived his defenses when he pled guilty to the sodomy charge. Green, 692 S.E.2d at 787. While a defendant who enters a guilty plea is often said to waive defenses, a more accurate statement of the rule is that a "plea of guilty ... waives all defenses other than that the indictment charges no crime." Nazario v. State, 293 Ga. 480, 746 S.E.2d 109, 113 (2013) (quoting Smith v. Hardrick, 266 Ga. 54, 464 S.E.2d 198, 201 (1995)). In Nazario, a case on direct appeal, the Georgia Supreme Court recognized that "[w]here a case challenging criminal convictions is properly brought before a court and the court realizes, on its own or based on the defendant's argument, that the record shows that certain convictions merged, to disregard that determination and allow the defendant to serve a sentence for a criminal conviction that has been identified as illegal and void would not comport with fundamental fairness and due process of law." Id. at 115. Nor does it comport with fundamental fairness and due process of law to allow a guilty plea to waive a constitutional challenge to the use of a conviction based on constitutionally protected, private consensual sexual conduct that cannot be criminalized.
Third, the Cherokee County Superior Court "acknowledged that Powell and Lawrence had changed the law but concluded that those changes did not apply to this factual situation because the conduct was not `private.'" Green, 692 S.E.2d at 787. This was, again, an erroneous conclusion.
"A private place is a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance." Mauk v. State, 242 Ga.App. 191, 529 S.E.2d 197, 198 (2000); accord Stover v. State, 256 Ga. 515, 350 S.E.2d 577, 578 (1986). In Mauk, the defendant's sexual act took place in a wooded area adjacent to a public road. Mauk, 529 S.E.2d at 198. "The conduct could easily be seen from the road. In fact, the incident came to light when a passerby, who had just dropped his wife off at work, went by in his truck and observed [defendant] and the victim struggling." Id. The court held that the sexual activity did not take place in private and thus, Powell did not apply. Id. Likewise,
Green's case is markedly different. Unlike a publicly accessible outdoor area, a hotel room is not a public place. See Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (recognizing that a hotel room is a private place); Stoner v. State of Calif, 376 U.S. 483, 489-90, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) ("No less than a tenant of a house, or the occupant of a room in a boarding house, [cit] a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures."); Snider v. State, 292 Ga.App. 180, 663 S.E.2d 805, 807-808 (2008). The sexual act occurred in a private hotel room with no open doors or windows leading to a public area. (Tr. Sept. 9, 2009 Hrg. Mot. New Trial at 16, Doc. 5-3.) The private nature of this place left no risk that an innocent member of the public would likely be subjected to the private sexual acts involved in this case. See, e.g., People v. McNamara, 78 N.Y.2d 626, 578 N.Y.S.2d 476, 585 N.E.2d 788, 793 (1991) (holding that "public lewdness" occurs where "the objective circumstances establish that lewd acts committed [in a place] can, and likely would, be seen by the casual passerby, whose sensibilities the statute seeks to protect"); People v. Lino, 447 Mich. 567, 527 N.W.2d 434, 449 (1994) (Levin, J., concurring) ("A couple who drive out to a secluded `lover's lane' and engage[] in sexual conduct should not be said to have committed an act of gross indecency in a public place if a lost hiker happens to stumble across them."). And the presence of two private, consenting observers does not transform the private act into a public one. Here, the two women present in the hotel room during the sexual act were not random members of the public but personal friends. (Tr. Sept. 9, 2009 Hrg. Mot. New Trial at 16-18, Doc. 5-3.) While the Court recognizes that the presence of others might, in a case like Stover, be relevant to the question of whether sexual conduct is private, the constitutional right to privacy of young adults engaging in consensual sexual conduct
In addition, the Court notes that to the extent retroactivity is an issue, the proscriptions of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), are inapposite. Teague considers the retroactivity of newly announced rules of constitutional procedure; this case involves the exceptional circumstance singled out by Justice Harlan in his concurrence in Mackey v. United States, 401 U.S. 667, 692-93, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971):
Finally, on Green's Motion for New Trial, the Cherokee County Superior Court indicated that a decision from the Pickens County Superior Court vacating the underlying sodomy conviction would bolster Green's argument. (Tr. Sept. 9, 2009 Mot. New Trial Hrg. at 70, Doc. 5-3.) The Cherokee County Superior Court judge explained that if a Pickens County Superior Court judge had directly addressed the merits of Plaintiff's argument that his underlying conviction was void — and ruled in Green's favor — Green would "probably" be able to rely on this ruling to support his case because he could then turn to a ruling "on issues of privacy and other things by which this [Cherokee County Superior] Court might have been bound." (Id. at 70-71.)
Shortly thereafter, the Pickens County Superior Court was given the first opportunity to consider the merits of Green's privacy arguments. The Pickens Superior Court ruled in 2010 that, in light of Powell and Lawrence, the sodomy sentence it had imposed years earlier was in fact void. (Mar. 10, 2010 Pickens Cnty. Ord., Doc. 21-1.) Although this decision was reversed on procedural grounds, it demonstrates that trial counsel's inadequate assistance — his failure to give the Cherokee County Superior Court an opportunity to consider similar issues of privacy on an objection to the use of the sodomy conviction at the 2009 registration trial — was prejudicial. Accordingly, Green has established prejudice as required by Strickland and its progeny.
Because of its erroneous determination that Green had not shown prejudice, the Georgia Court of Appeals pretermitted the question of whether Green had shown cause, that is, whether Green had shown that "counsel's performance was deficient,... [that it] `fell below an objective standard of reasonableness.'" Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). By the time of Green's trial for the offense of failure to register as a sex offender it was clear beyond peradventure that private consensual sodomy between persons legally able to consent could not, as a matter of both Georgia and federal constitutional law, be criminalized. The failure of trial counsel to challenge the use of a conviction
Just as it is unthinkable that a conviction of miscegenation entered before Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), was decided could be used after that decision to establish an element of a crime, so is it unthinkable that a conviction based on constitutionally protected private consensual sexual conduct entered before Powell or Lawrence was decided could be so used.
For the foregoing reasons, the Court
