United States District Court, W.D. Virginia, Roanoke Division
HON. MICHAEL F. URBANSKI UNITED STATES DISTRICT JUDGE.
Adam Darrick Toghill, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of electronically soliciting a minor for oral sex, and he argues that the Virginia statute prohibiting oral sex was unconstitutional and that the evidence was insufficient to sustain his conviction. Respondent filed a motion to dismiss, and Petitioner responded, making the matter ripe for disposition. After reviewing the record, the court grants Respondent's motion to dismiss because the Supreme Court of Virginia's adjudication of these claims was not contrary to, or an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts.
A jury convicted Petitioner of computer solicitation of a minor in violation of former Virginia Code § 18.2-374.3(C)(3). At the time of the offense, Virginia Code § 18.2-374.3(C)(3) prohibited an adult from knowingly and intentionally proposing to a person believed to be under fifteen years of age via a computer network "an act of sexual intercourse or any act constituting an offense" under Virginia Code § 18.2-361. Virginia Code § 18.2-361 (A) prohibited any person from voluntarily committing or submitting to sodomy, which included oral sex.
The Court of Appeals of Virginia summarized the evidence against Petitioner as follows:
As part of his work with the Internet Crimes Against Children Taskforce, Louisa County Deputy Sheriff Patrick Siewert posted an advertisement in the "miscellaneous romance" section of Craigslist with the heading: "suspended, bored and lonely - w4m." The text of the advertisement read:
hey well i just started on CL earlier this week cuz im suspended from skool and was bored but idk what i am really lookin 4 just sumthin 2 do even tho itz rainin outside so hit.me up if u want and maybe we can chat or get together or sumthin k? Becca
Toghill answered the ad, and engaged in an approximately 80-minute email exchange with "Becca" on March 10, 2011. In the course of the email exchange, Siewert identified himself as "Rebecca Flynn, " a 13-year-old girl residing in Gum Spring. After Toghill and "Becca" exchanged photos of themselves, Toghill repeatedly expressed his desire to engage in oral sex [(cunnilingus)] with her, questioned her about her sexual experience, and explored potential locations where they could meet. He ruled out meeting at her house because he had "seen those shows before, " and suggested the mall. However, Toghill terminated the conversation before a time and place to meet were established.
Siewert identified Toghill from his email address and arranged to meet him at the Richmond Police Department. Toghill, a 32 year old who lives in Richmond, admitted to chatting via email with a 13-year-old girl who was suspended from school. He also admitted to masturbating during the exchange.
Toghill v. Commonwealth, No. 2230-12-2, 2014 WL 545728, at *1 (Va. Ct. App. Feb. 11, 2014) (hereinafter "Toghill I"). The Circuit Court for Louisa County sentenced Petitioner to five years' incarceration, and Petitioner's appeals to the Court of Appeals of Virginia and the Supreme Court of Virginia were unsuccessful. Id. Toghill v. Commonwealth, 289 Va. 220, 230, 768 S.E.2d 674, 679 (2015) (hereinafter "Toghill IF").
Petitioner argues in his timely filed federal habeas petition that (1) his conviction is "void ab initio" because of MacDonald v. Moose, 710 F.3d 154, 166 (4th Cir.X cert, denied, 134 S.Ct. 200 (2013), and (2) that the evidence was insufficient to prove Petitioner solicited oral sex with a person he believed to be less than fifteen years old. The Supreme Court of Virginia considered and rejected these arguments on direct appeal.
After a state court addresses the merits of a claim also raised in a federal habeas petition, a federal court may not grant the petition unless the state court's adjudication of a claim is contrary to, or an unreasonable application of, clearly established federal law or based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d); see Id. § 2254(a) (limiting a federal court's grant of habeas relief from a state court judgment only if the petitioner is in custody in violation of the Constitution or laws or treaties of the United States). The evaluation of whether a state court decision is "contrary to" or "an unreasonable application of federal law is based on an independent review of each standard and is "limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011); Williams. 529 U.S. at 412-13.
A state court determination is "contrary to" federal law if it "arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the United States Supreme] Court has on a ...