Opinion
Case No. 04-02203-JCC-JPD.
September 8, 2005
REPORT AND RECOMMENDATION
I. INTRODUCTION and SUMMARY CONCLUSION
Petitioner has filed a 28 U.S.C. § 2254 petition for writ of habeas corpus which respondent opposes. Following a careful review of the record, this Court concludes that petitioner's section 2254 motion should be denied.
Although Christine O. Gregoire was the original respondent in this matter, Washington State Attorney General Rob McKenna is "automatically substituted" as the proper respondent. Fed.R.Civ.P. 25(d)(1).
II. FACTS and PROCEDURAL HISTORY
On March 29, 2000, petitioner Molotov Pauling was convicted at a bench trial of two counts of second degree extortion. Dkt. No 12, Ex. 1. Petitioner had threatened to and did, in fact, disseminate nude photographs of his victim in an attempt to coerce her into paying a $5,000 judgment against her. See State v. Pauling, 149 Wash. 2d 381, 384 (2003) (en banc). Among other things, plaintiff was sentenced to ninety days in county jail, was barred from contacting his victim, and was ordered to attend a domestic violence program, which he still attends. Dkt. No 12, Exs. 1, B.
Petitioner was sentenced to ninety days for each count, to run concurrently. Dkt. No. 12, Ex. 1.
Plaintiff appealed his conviction to the Washington State Court of Appeals. Dkt. No. 12, Exs. 4, 5, 6; State v. Pauling, 108 Wash. App. 445 (2001), reversed at 149 Wash. 2d 381 (2003). The Court of Appeals found that R.C.W. 9A.56.130, the extortion statute used to convict petitioner, was unconstitutionally overbroad because it "substantially burdened a wide range of protected speech." Id. at 454. The Court of Appeals specifically determined that it could not save the statute by implying an element of "wrongfulness:"
Nor can this court engraft or imply such an element. Courts have on occassion engrafted an element of criminal intent onto statutes because criminal intent is ordinarily an element of crimes, even where the crimes are created by statute. This reasoning does not apply to elements unrelated to intent such as wrongfulness.Id. at 452. The Court of Appeals therefore invalidated the statute and reversed petitioner's conviction. Id. at 454.
The State appealed to the Washington Supreme Court. Dkt. No. 12, Exs. 7, 8, 9. The Supreme Court agreed that the second degree extortion statute could impact a substantial amount of constitutionally protected speech, but saved the statute by grafting a wrongfulness element. The court held that:
[w]e hold that a limiting construction is available, requiring that the evidence shows a "lack of nexus" between the threat made and the claim of right. This construction confines the statute's application to only extortionate threats that are inherently wrongful and are not protected speech. We therefore reverse the
Court of Appeals and reinstate Pauling's conviction and sentence. Pauling, 149 Wash. 2d at 383. The Supreme Court concluded that petitioner's threats had no nexus to his claim of right, reversed the Court of Appeals, and reinstated petitioner's sentence. Id. at 392-93. The United States Supreme Court denied petitioner's petition for writ of certiorari. Pauling v. Washington, 540 U.S. 986 (2003).
On October 27, 2004, petitioner filed a 28 U.S.C. § 2254 petition for writ of habeas corpus with this Court. Dkt. No. 1.
III. CLAIMS FOR RELIEF
Petitioner argues that he is entitled to a writ of habeas corpus because his conviction was based on an unreasonable application of federal First Amendment law. Dkt. Nos. 1, 2. Specifically, he argues that the grafting of a nexus requirement to the extortion statute was unreasonable and that it failed to cure the statute's overbreadth. Dkt. No. 2. He also argues that the Washington Supreme Court's failure to remand his case for a new trial under the statute, as construed, was unreasonable and violated his Fourteenth Amendment right to due process and Sixth Amendment right to a jury trial. Dkt. Nos. 2, 24.
Respondent argues that the Supreme Court reasonably applied federal law by imposing the nexus requirement. Dkt. No. 23. Respondent further argues that petitioner committed the crime of second degree extortion and that his acts did not constitute protected speech. Dkt. No. 23.
Respondent's Answer initially raised only procedural arguments, including that the Court lacked jurisdiction to consider the petition because petitioner had completed his incarceration and was therefore no longer "in custody" for purposes of § 2254. Dkt. No. 11. The Court, however, determined that petitioner was "in custody" because he was participating in court-ordered domestic violence programs. The Court then directed respondent to file an amended answer that addressed the substantive merits of petitioner's claims. Dkt. No. 22.
IV. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, § 105 (1996), governs petitions for habeas corpus filed by prisoners who were convicted by state courts. 28 U.S.C. § 2254. AEDPA restricts the power of federal courts to grant writs of habeas corpus to state prisoners and imposes a deferential standard of review. Williams v. Taylor, 529 U.S. 399 (2000); see also Brown v. Payton, 125 S.Ct. 1432, 1438-39 (2005). Once a habeas petitioner's claim has been adjudicated on the merits in state court, AEDPA permits federal courts to grant relief only if the state court adjudication "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); Brown, 125 S. Ct. at 1438.A state court decision is contrary to the Supreme Court's clearly established law only if it "applies a rule that contradicts the governing law" of existing precedent, or "if it confronts a set of facts that is materially indistinguishable from a decision [of the Supreme Court] but reaches a different result." Brown, 125 S. Ct. at 1438 (citing Williams, 529 U.S. at 405-06; Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)); see also Tan v. Runnels, 413 F.3d 1101, 1111-12 (9th Cir. 2005).
A state court decision constitutes an unreasonable application of the Supreme Court's clearly established law if it applies applicable precedent to the facts "in an objectively unreasonable manner." Williams, 529 U.S. at 412-13; Brown, 125 S.Ct. at 1438; see also Lockyer v. Andrade, 538 U.S. 63, 70-77 (2003) (explaining that a state court decision to apply one precedent over the other in an ambiguous case is neither contrary to nor an unreasonable application of Supreme Court law). It is not enough that a state court decision incorrectly applies federal law; its decision must also be objectively unreasonable. Williams, 529 U.S. at 410-11; Tan, 413 F.3d at 1111-12.
AEDPA's deferential standard of review applies to the state court decision even if the state court decision relied upon federal law as the basis for its decision. Early, 537 U.S. at 8. Indeed, this deferential standard applies even if the state court is unaware of Supreme Court precedent, "so long as neither the reasoning nor the result of the state court contradicts them." Id. Only clearly established law, "as determined by the United States Supreme Court[,]" is relevant to this inquiry. 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412 (indicating that Supreme Court dicta does not constitute clearly established law).
V. DISCUSSION
A. The Washington Supreme Court's Decision to Impose a Nexus Requirement on the Second Degree Extortion Statute Was Not an Unreasonable Application of Federal First Amendment Law.
Petitioner argues that the Washington Supreme Court's decision was an unreasonable application of federal First Amendment law because it failed to correct the overbreadth of the state extortion statute. He asserts that the statute continues to criminalize a substantial amount of constitutionally protected speech, notwithstanding the state court's limiting construction. Dkt. Nos. 1, 24.
In light of AEDPA's deferential standard of review, this Court is not tasked with finding mere error in the state court decision. Instead, the Court's analysis must determine whether the Washington Supreme Court's decision was objectively unreasonable. Williams, 529 U.S. at 410-11.
A statute can be challenged as unconstitutional on First Amendment grounds on the basis of facial invalidity or as applied in a particular case. See San Remo Hotel v. City of San Francisco, 125 S. Ct. 2491, 2497 (2005). Here, petitioner raises only a facial challenge to Washington's extortion statute. Dkt. No. 12, Exs. 4-6, 7-9.
1. Standards for Determining Facial Invalidity.
According to the Supreme Court, a statute may be facially invalidated only when it is substantially overbroad. City of Houston v. Hill, 482 U.S. 451, 458 (1987) (citing New York v. Ferber, 458 U.S. 747, 769 (1982)); Broadrick v. Oklahoma, 413 U.S. 601, 611-16 (1973). The fact that it is merely possible to conceive of a constitutionally impermissible application of a statute is insufficient to find it invalid on its face. City of Houston, 482 U.S. at 458 (emphasis added). Instead, a court faced with deciding whether a statute is facially vague and overbroad must "determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Id. at 458-59 (internal citations omitted). Criminal statutes must be given particularly careful scrutiny. Id. at 459. Facial invalidation is "strong medicine" that should be used "sparingly and only as a last resort." Broadrick, 413 U.S. at 613; Osborne v. Ohio, 495 U.S. 103, 122 (1990). It should be invoked only when a limiting construction cannot be employed to save a statute. Broadrick, 413 U.S. at 613.
2. The Washington Supreme Court's Decision.
In Pauling v. State, the Washington Supreme Court held that the second degree extortion statute could be saved by imposing a limiting construction. 149 Wash. 2d at 391. Relying upon United States v. Jackson, 180 F.3d 55 (2d Cir. 1999), the court held that the statute could be read to apply to only "inherently wrongful" threats by requiring the lack of a nexus between the threat made and a legitimate claim of right made by the threatener. Pauling, 149 Wash. 2d at 390-91. The court held that this construction would limit the statute's application to "only unprotected speech." Id. at 391. It then applied the statute as construed to petitioner's facts and determined that his conduct was extortionate. Id. at 391-93.
3. The Washington Supreme Court's Decision To Impose A Limiting Construction Was Not Objectively Unreasonable.
In light of the Supreme Court's First Amendment law and AEDPA's deferential standard of review, the Washington Supreme Court's decision to "save" the second degree extortion statute is not objectively unreasonable. The Supreme Court's First Amendment jurisprudence requires that statutes generally, and criminal statutes in particular, avoid restricting a substantial amount of protected speech. See supra, § A.I. By holding that the statute required a lack of nexus between the threat made and a legitimate claim of right, the court effectively limited the statute's otherwise overbroad prohibition on a substantial amount of constitutionally protected speech and thus satisfied the applicable standard. The court's decision to engraft the limiting construction also comports with the Supreme Court's admonition that a statute be invalidated on First Amendment grounds only when a limiting construction cannot be employed to save the statute. Broadrick, 413 U.S. at 613.
Petitioner's argument that the limiting construction fails to cure the extortion statute's overbreadth is not persuasive. He argues that the decision is unreasonable because, even with the construction, certain protected speech could still be prohibited. Dkt. Nos. 1, 24. By way of example, petitioner argues that threats by consumers to impose boycotts or by labor to organize for better wages could be prosecuted under the extortion statute, which would violate constitutionally protected speech. Dkt. Nos. 1, 24. The Court is not persuaded that the required nexus is lacking by either example. To the contrary, there is a strong nexus between threats of collective action and the federally protected rights of protected speech and collective bargaining. There is no such nexus between protected speech and threats to disseminate nude photos in an attempt to collect a judgment.
Finally, even if petitioner could present a scenario that could possibly impact some form of speech in an impermissible way, the mere fact that some protected activity may be prohibited is not sufficient to find the statute facially invalid. A facial challenge will only succeed where a substantial amount of constitutionally protected speech is restricted. The petitioner's recitation of unlikely potential examples does not demonstrate that the extortion statute remains substantially overbroad. The decision by the Washington Supreme Court was therefore not objectively unreasonable.
B. The Washington Supreme Court's Decision Not to Remand Petitioner's Case for a New Trial Was Not an Unreasonable Application of Federal First Amendment Law.
Petitioner also argues that the Washington Supreme Court decision was an unreasonable application of clearly established federal law because it failed to remand his case for a retrial under the newly imposed statutory construction that it had imposed upon the statute. Dkt. No. 24. He argues that failure to do so violated his Fourteenth Amendment due process and Sixth Amendment jury trial rights. Dkt. No. 24.
1. Clearly Established Law Regarding Remand for a Retrial.
The Supreme Court has "long held that a statute as construed [by a state court] may be applied to conduct occurring prior to the construction, provided that such application affords fair warning to the defendan[t]." Osborne, 495 U.S. 115-16 (citing Dombrowski v. Pfister, 380 U.S. 479, 491 n. 7 (1965) (internal citations omitted); see also Hamling v. United States, 418 U.S. 87 (1974). This rule turns on whether the defendant had notice that his conduct was criminal prior to the time the state court imposed its construction to the statute in question. Osborne, 495 U.S. at 116-18. However, when a state supreme court narrows an unconstitutionally overbroad statute, the State must ensure that the defendant was convicted under the statute, as construed. Id. at 118. This rule reflects the Supreme Court's longstanding respect for the authority of state supreme courts to narrow state statutes in order to limit their scope to unprotected conduct. Id. at 120.
The Supreme Court's decision in Osborne is the Court's most recent application of this rule. Osborne involved, among other things, an overbreadth challenge to an Ohio statute that criminalized the possession of child pornography. The Ohio Supreme Court imposed a limiting construction during the pendency of petitioner's appeal to the statute involved, which the Supreme Court held, "plainly survives overbreadth scrutiny." Osborne, 495 U.S. at 112-13.
Specifically, the Ohio Supreme Court read the statute to be limited to "lewd" depictions of a minor and also imposed a scienter requirement. Osborne, 495 U.S. at 114-15.
Petitioner argued that the Ohio court erred by applying its narrowed construction to his claim. Id. at 115. The Court, however, held that the application was not erroneous because Osborne had notice that his conduct was proscribed. Id. at 116-117. In doing so, the Court pointed out that the face of the statute indicated it was obviously designed to eradicate child pornography because it was contained in the "Sex Offenses" section of the Ohio Code. Id. at 116. Hence, while the statute may have "been imprecise at its fringes, someone in Osborne's position would not be surprised to learn that his [actions] . . . constituted a crime." Id. Nevertheless, the Court remanded the case for a new trial, because it was unclear whether petitioner had actually been convicted under the statute, as construed. Id. at 125-26.
Similarly, in Shuttlesworth, the Court ordered a remand when it was unclear from the record whether petitioner had been convicted under a state statute, as construed by the Alabama Court of Appeals. In that case, petitioner had been convicted under a statute that, when read literally, permitted a person to remain on a public sidewalk only at "the whim of any police officer[.]" Shuttlesworth, 382 U.S. at 90. The Court recognized that the state court's interpretation of the statute, which narrowed it to prevent loitering and ensure the free flow of traffic, cured its overbreadth. Id. at 91-92. This construction, however, was imposed two years after petitioner's conviction. Id. Because the state court record lacked any evidence that petitioner's conviction was made under the statute, as construed, the Supreme Court reversed and remanded for a new trial. Id. at 92, 94-95. Thus, as in Osborne, the Court in Shuttlesworth remanded the case for a new trial, because it was unclear whether petitioner had been properly convicted under the statute, as construed.
2. The Washington Supreme Court's Decision Not To Remand For a Retrial Was Not Objectively Unreasonable.
In this case, the Washington Supreme Court's decision not to remand petitioner's case for a new trial under the statute, as construed, was not objectively unreasonable. Like the statute in Osborne, the purpose of the extortion statute used to convict petitioner was obvious. It was listed in the "Washington Criminal Code" and plainly titled "Extortion in the second degree." Wash. Rev. Code § 9A.56.130 (1975). Moreover, as petitioner concedes in his brief, the language of the section then in effect was broader than when the Washington Supreme Court subsequently imposed its nexus requirement. Dkt. Nos, 1, 24. This further underscores the fact that petitioner had fair notice that his conduct was illegal.
Unlike Osborne and Shuttlesworth, the record in this case demonstrates that petitioner was properly convicted under the statute, as construed. After imposing the nexus requirement, the Washington Supreme Court explicitly analyzed whether the trial court had determined whether petitioner's actions satisfied its new construction. Pauling, 149 Wash. 2d at 392. The supreme court reviewed the trial court record and concluded that the trial court had found beyond a reasonable doubt that petitioner's actions failed to satisfy the requirement that there be a nexus between his threat and claim of right. Id. As a result, the Washington Supreme Court's decision not to remand petitioner's case for a retrial under the statute, as construed, cannot be said to be unreasonable.
VI. CONCLUSION
The Washington Supreme Court's decision to impose a nexus requirement on the second degree extortion statute used to convict petitioner was not an unreasonable application of Federal First Amendment law. Further, the Washington Supreme Court's decision not to remand petitioner's case for a retrial under the statute, as construed, was not an unreasonable application of federal law. As a result the Court recommends that petitioner's 28 U.S.C. § 2254 petition be denied. A proposed order accompanies this Report and Recommendation.