Niederstadt v. Nixon

505 F.3d 832, 2007 U.S. App. LEXIS 24269, 2007 WL 3010529

Opinions

LOKEN, Chief Judge, with whom MURPHY, RILEY, MELLOY, SMITH and SHEPHERD, Circuit Judges, join.

A Missouri trial court convicted James Niederstadt of sodomy of a sleeping teenager and sentenced him to twenty-five years in prison. The Missouri Court of Appeals reversed, concluding that, because the victim was sleeping, there was insufficient evidence he used “forcible compulsion,” as the sodomy statute requires. Mo. Rev.Stat. § 566.060(1). The Missouri Supreme Court reinstated the conviction, State v. Niederstadt, 66 S.W.3d 12 (Mo. banc 2002), and denied Niederstadt’s motion for rehearing. Niederstadt then petitioned for a federal writ of habeas corpus. The district court granted the writ, concluding that Niederstadt’s Fourteenth Amendment right to due process was violated by the Missouri Supreme Court’s construction of the sodomy statute that was “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Niederstadt v. Purkett, No. 4:02CV00847, slip op. at 11 (E.D.Mo. Sept. 27, 2005), quoting Bowie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). The State appealed, and a divided panel of this court affirmed. Niederstadt v. Nixon, 465 F.3d 843 (8th Cir.2006). We granted the State’s petition for rehearing en banc and now reverse.

I.

We quote the Supreme Court of Missouri’s undisputed recitation of the background facts, 66 S.W.2d at 14:

The victim, S.C., was a sixteen-year-old female at the time of the alleged sodomy in 1992. She was the daughter of American missionaries serving in Gambia, West Africa. In 1991, S.C. was sent by her parents to Malden, Missouri, to attend high school and to live with defendant and his family. Prior to coming to defendant’s home, she had no sexual experience. In July and August of 1991, defendant began engaging in inappropriate kissing on the lips and fondling of the girl’s breasts and touching her between her legs.

At the religious school she attended, she began getting into trouble. The school administered detention as punishment. Defendant’s punishment was to administer whippings to the girl’s buttocks, back, and legs. He contended the girl was “rebellious and needed it.” The beatings were so severe that S.C. suffered bruising, making it painful for her to walk and difficult for her to participate in physical education classes. The beatings occurred about once per month during her stay in the Niederstadt home. Sometimes on the morning after a beating, the defendant would come into S.C.’s room, take off her clothes and underwear, and count her bruises out loud. Following one such beating, defendant attempted to strangle S.C., squeezing her neck and repeatedly saying, “I could kill you right now.” He eventually released her. Because of the beatings and threats, on one occasion S.C. attempted to run away from the defendant’s home but returned the same day. S.C. stated that she was afraid to report the sexual misconduct to authorities.

Like the beatings, the fondling incidents continued throughout the school year, usually occurring in the early morning. Defendant would come into the girl’s room and place his hand under her clothes and underwear. While he touched her, he would masturbate.

The information alleged that the [sodomy] occurred in March of 1992. The victim testified to several such incidents but only gave details as to one in March of 1992. S.C. testified that she had been feeling sick and went to sleep in her room. She was awakened by a sharp pain which she discovered was caused by defendant’s finger in her vagina. When she awoke, defendant told S.C. he was “checking [her] temperature.” Defendant admitted to that incident. S.C. testified that later in March there were other occasions when defendant penetrated her vagina with his finger.

Niederstadt was charged with sodomy in violation of § 566.060(1). The statute prohibited “deviate sexual intercourse with another person without that person’s consent by the use of forcible compulsion.” It is conceded that Niederstadt’s digital penetration constituted “deviate sexual intercourse” as defined in § 566.010(1). As relevant here, “forcible compulsion” was defined as “[p]hysical force that overcomes reasonable resistance.” § 556.061(12)(a).

After a bench trial, the trial court denied Niederstadt’s motion for judgment of acquittal and found him guilty of sodomy. The Missouri Court of Appeals reversed, concluding that, because Niederstadt “initiated the sexual act while [the victim] slept” and stopped when she awakened, there was no evidence he used forcible compulsion. The fact that he used forcible compulsion on other occasions, the Court reasoned, did not supply the requisite proof that it was used in committing the charged offense. State v. Niederstadt, No. 23612, 2001 WL 995937 (Mo.App. July 23, 2001). A concurring opinion criticized “the State’s failure to analyze its evidence and file a charge the evidence will support.”

The Supreme Court of Missouri granted discretionary review, concluded that Niederstadt’s conduct constituted sodomy under Missouri law, and reinstated the conviction and sentence. The Court first noted there can be “no question but that defendant used physical force to insert his finger in the girl’s vagina.” Niederstadt, 66 S.W.3d at 15. The Court then discussed the “critical question” of “whether the acts of deviate sexual intercourse were done by use of physical force that overcomes reasonable resistance.” Id. (quotation omitted). The Court looked to the coercive beatings, threats, and sexual indecencies the forty-year-old Niederstadt had previously inflicted on a sixteen-year-old girl who was living in his home. The Court concluded that Niederstadt’s conduct and his “complete control and dominance over every aspect of the girl’s life” provided sufficient evidence for the court to find that he used physical force that overcame “[t]he reasonable resistance expected of an unconscious or sleeping person.” Id. at 16. Niederstadt moved for rehearing, raising as a due process issue that the Court had “unforeseeably expanded the scope of conduct that might be prosecuted under § 566.060.” The Supreme Court of Missouri summarily denied that motion. Niederstadt then timely filed this petition for federal habeas relief.

II.

The State first argues that Nied-erstadt’s due process claim is procedurally barred. Federal habeas relief may not be granted on a claim that the state appellate court declined to address because the petitioner failed to meet a state procedural requirement constituting an “independent and adequate state ground.” Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). An “independent and adequate” ground is one that is “firmly established and regularly followed” by the time it is applied. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). “When a state court decides an issue on the merits despite a possible procedural default, no independent and adequate state ground bars consideration of that claim by a [federal] habeas court.” Sweet v. Delo, 125 F.3d 1144, 1150 (8th Cir.1997), cert. denied sub nom. Sweet v. Bowersox, 523 U.S. 1010, 118 S.Ct. 1197, 140 L.Ed.2d 326 (1998).

Under Missouri law, “to preserve a constitutional issue for appellate review, it must be raised at the earliest time consistent with good pleading and orderly procedure.” State v. Wickizer, 583 S.W.2d 519, 523 (Mo.banc 1979). The State argues that Niederstadt defaulted his due process claim because it was first raised in his motion for rehearing to the Supreme Court of Missouri. The State explains that, because its brief to that Court urged the interpretation of the sodomy statute the Court ultimately adopted, Niederstadt had both notice and opportunity to raise a due process objection in his responsive brief, before the Court ruled.

After careful review of the record, we conclude this issue was not properly preserved and presented by the State. The record on appeal does not reveal whether the State argued procedural default to the Supreme Court of Missouri in opposing Niederstadt’s motion for rehearing. The Court’s summary denial of rehearing is customary and gives no indication that the Court was invoking a procedural bar, particularly if the State did not argue that the due process issue was defaulted. In these circumstances, we infer the state court denied this issue on the merits, not on an independent and adequate procedural ground. See Muth v. Frank, 412 F.3d 808, 815-16 (7th Cir.) (collecting cases), cert. denied, 546 U.S. 988, 126 S.Ct. 575, 163 L.Ed.2d 480 (2005). Moreover, the State cites only the readily distinguishable Wick-izer case, which does not begin to establish that the state court would have been applying a “firmly established and regularly followed” principle if it had ruled the due process claim procedurally defaulted on the unusual procedural facts of this case.

III.

Turning to the merits of Nieder-stadt’s due process claim, in Bouie the state supreme court construed a statute, which on its face limited criminal trespass to wrongful entries, as including the refusal by peaceful civil rights demonstrators to obey a proprietor’s order to leave a racially segregated restaurant otherwise open to the public. The Court held that this retroactive judicial expansion of the statute’s criminal prohibition violated the defendants’ due process rights. As later clarified, Bouie’s due process restriction on judicial interpretation of criminal statutes is limited to those “that are ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’ ” Rogers v. Tennessee, 532 U.S. 451, 461, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001), quoting Bouie, 378 U.S. at 354, 84 S.Ct. 1697. Unlike judicial review of retroactive legislation under the broader Ex Post Facto Clause, review of a court’s application of a criminal statute to a particular defendant, which by its nature is retroactive, “rest[s] on core due process concepts of notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct.” Rogers, 532 U.S. at 459, 121 S.Ct. 1693.

Niederstadt argues the Missouri Supreme Court’s determination that he used forcible compulsion sufficient to violate the sodomy statute violated his right to due process because, contrary to prior reported decisions, the Court ruled that the forcible coercion element is satisfied by the force inherent in a sex offense committed on a sleeping victim, who cannot resist. This ruling was “unexpected and indefensible,” he argues, because it rendered the forcible coercion element surplusage, eliminated the statutory requirement that the defendant “use” forcible coercion, and im-permissibly equated sodomy with lesser uncharged sex crimes that did not require proof of forcible coercion. The Supreme Court of Missouri concluded that its interpretation of the sodomy statute did not conflict with the narrow due process restriction of Bouie and Rogers. The task of a federal habeas court is to determine whether that conclusion was an “unreasonable application of ... clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

1. At the time Niederstadt committed the offense, the Supreme Court of Missouri had not construed the term “forcible compulsion” in § 566.010, nor the term’s statutory definition in § 556.061(12)(a), “[pjhysical force that overcomes reasonable resistance.” The Missouri Court of Appeals, had construed these statutes in a number of cases. In only one prior case had that Court reversed a Missouri sodomy conviction because the evidence failed to establish use of forcible compulsion. State v. Daleske, 866 S.W.2d 476 (Mo.App.1993). In reinstating Niederstadt’s conviction, the Supreme Court of Missouri carefully considered the Court of Appeals decision in Daleske and found it “readily distinguishable” because the defendant in Daleske employed only de minimis force and threats, whereas here the victim “was awakened by a sharp pain which she discovered was caused by defendant’s finger in her vagina” and suffered other “beat ings, physical threats [and] sexual assaults.” Niederstadt, 66 S.W.3d at 16, 14.¹

In Rogers, a divided Court refused to extend Bowie to a state court decision overruling a common law rule that would have barred petitioner’s conviction. Like Bouie, this case involves a state court decision construing a criminal statute. Thus, it is instructive to consider how the dissenting Justices in Rogers&emdash;those who would have extended Bouie&emdash;would apply Bouie in this type of case:

Many criminal cases present some factual nuance that arguably distinguishes them from cases that have come before; a court applying the penal statute to the new fact pattern does not purport to change the law. That, however, is not the action before us here, but rather, a square, head-on overruling of prior law....

582 U.S. at 471, 121 S.Ct. 1693 (Scalia, J., dissenting). In this case, the Supreme Court of Missouri did not overrule prior law, it applied the governing statute to a new fact pattern, engaging in the type of fact-based analysis described in Justice Scalia’s dissent. Indeed, as the Supreme Court of Missouri had not previously considered the statute, there was no prior governing law to overrule. As we said in Hagan v. Caspari, 50 F.3d 542, 547 (8th Cir.1995), “until the state’s highest court has spoken on a particular point of state law, the law of the state necessarily must be regarded as unsettled.” A ruling on an unsettled issue of state law will rarely if ever be unexpected and indefensible.

2. Niederstadt argues that the Supreme Court of Missouri’s construction of “use of forcible compulsion” reconfigured the sodomy statute in a totally unexpected way by eliminating the State’s need to prove the defendant used force over and above the sex act itself to overcome the victim’s reasonable resistance. But this argument ignores over one hundred years of Missouri criminal statutes and judicial decisions. In State v. Welch, 191 Mo. 179, 89 S.W. 945 (1905), the Supreme Court of Missouri affirmed the rape conviction of a man who penetrated a sleeping victim and continued the assault when she awakened. The penal code then defined rape as “forcibly ravishing any woman” who had reached the age of fourteen. The Court explained:

To ravish a woman is to have carnal connection with her forcibly, and without her consent.... The general, if not universal, rule is that, if a man have connection with a woman while she is asleep, he is guilty of rape, because the act is without her consent.

‡ ‡ ‡

[The victim] knew nothing about the assault ... until she awoke ... at which time the penetration had already been made and the offense completed. After that no submission or consent of the prosecutrix could avail the defendant. * * * * * *

[T]he crime is not mitigated by the fact that it was committed while the prosecu-trix was asleep.

89 S.W. at 947-48. In other words, the court equated unconsented penetration of a sleeping woman with forcible rape.

The Supreme Court of Missouri expanded the rule of Welch in State v. Atkins, 292 S.W. 422 (Mo.1926), affirming the rape conviction of a physician who while examining a patient penetrated her by surprise and stopped when she protested. The Court explained:

It is plain that, if appellant did penetrate prosecutrix sexually ... no more physical force was employed by him than is necessarily incident to such an act when done with the consent of the woman.... One phase of the contention concerning the insufficiency of the evidence is that ... the alleged act of ravishment was not forcible within the meaning of [the statute].... But the law has been otherwise declared in this state.

* # % % * sis

If it is rape under our statutes for a man to have illicit sexual connection with a woman while she is asleep, and incapable of consenting ... we are unable to see why it is not also rape for a man to have improper sexual connection with a woman by accomplishing penetration through surprise.... In all cases of that sort the physical force merely to effect penetration without the employment of further force to overcome resistance, together with the want of consent, should, and, under the rule announced in the Welch Case, does, constitute force within the meaning of our statute defining and punishing rape.

292 S.W. at 425-26 (emphasis added).

Welch and Atkins were rape cases, not sodomy cases. In 1979, the Missouri Legislature revised the statutes governing both rape and sodomy. The rape statute was amended to change the “ravishing” language to “use of forcible compulsion.” Mo.Rev.Stat. § 566.030(1). But the Comment to that subsection advised that it “continues the common law concept of forcible rape — intercourse by ‘forcible compulsion’.” At the same time, the sodomy statute, which had previously defined the crime without regard to force or lack of consent, was amended in § 566.060(1) to include the same “use of forcible compulsion” language adopted to define rape. The Comment to this statute advised, “The provisions of this section correspond with the rape provisions of § 566.030.”

This historical review makes crystal clear what common sense teaches — it was neither unexpected nor indefensible for the Supreme Court of Missouri to construe the Missouri rape and sodomy statutes in effect when Niederstadt committed his offense as applying to the unconsented penetration of a sleeping woman, just as the Court had applied prior rape statutes for a century, consistent with “[t]he general, if not universal, rule.” Nor is there reason to infer that 1979 legislative amendments described as continuing the historic concept of forcible rape, and applying that concept to the crime of sodomy, were intended to overrule this longstanding judicial interpretation.² Thus, Niederstadt had the fair notice due process requires that his despicable sexual abuse of a sleeping teenage victim would be punished in this fashion. As Bouie requires no more, the Supreme Court of Missouri’s denial of Niederstadt’s due process claim was not an unreasonable application of clearly estab lished federal law and must be upheld under our deferential standard of review.

The judgment of the district court is reversed and the case is remanded with instructions to deny the petition for a writ of habeas corpus.

Footnotes

1

. We disagree with Niederstadt’s assertion that the Supreme Court of Missouri’s decision collapsed the distinct offenses of sodomy and deviate sexual assault, defined in § 566.070(1) as deviate sexual intercourse without the victim’s consent. By distinguishing Daleske as involving only de minimis force and threats, the Court preserved a distinction between the offenses. 66 S.W.3d at 16. Moreover, as there is no Double Jeopardy Clause concern, we fail to see why such a collapse would violate due process so long as it was not an "unexpected and indefensible” interpretation of state law. As we shall explain, this interpretation was neither.

2

. In language since repealed, the 1979 version of § 566.070.1 made "deviate sexual intercourse with another person ... who is incapacitated" a class C felony punishable less severely than sodomy. A definitional provision, § 566.020.1, clarified that "incapacity” in this context did not include sleeping. Moreover, if unclear, the Supreme Court of Missouri's resolution of that question would not violate Bouie.