United States District Court, N.D. Georgia, Atlanta Division
For Charlton Paul Green, Petitioner: Stephen R. Scarborough, Stephen R. Scarborough, Attoney at Law, Atlanta, GA.
For State of Georgia, Respondent: Paula K. Smith, LEAD ATTORNEY, Office of State Attorney General, Atlanta, GA.
For Brian Owens, Commissioner of the Georgia Department of Corrections, Respondent: Paula K. Smith, LEAD ATTORNEY, Office of State Attorney General, Atlanta, GA.
Amy Totenberg, United States District Judge.
This matter is before the Court on the Magistrate Judge's Final Report and Recommendation (" R& R" ) [Doc. 15] and Petitioner Charlton Paul Green's objections thereto [Doc. 17]. The Magistrate Judge recommends that the Petition for Habeas Corpus Relief be denied and that the Petition be dismissed. Based on the " unusual circumstances" involved, however, the Magistrate Judge further recommends that a certificate of appealability be granted.
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) could be used in 2009 to prove a violation of O.C.G.A. § 42-1-12, the Georgia statute that requires registration as a sex offender. Because in 2009 it was clear under both the Georgia and the Federal Constitution that private consensual sodomy cannot be criminalized, the answer is no. The second question is whether this Court has jurisdiction to provide relief to Green under the terms of 28 U.S.C. § 2254. Although the route to relief under the Great Writ has become hedged by the Antiterrorism and Effective Death Penalty Act of 1966 (AEDPA) so as to be blockaded under many circumstances, this case falls squarely within an established avenue authorizing relief.
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. His violation arose out of a consensual sexual act with another man in a private hotel room while two friends were present. (Pet. Writ Habeas Corpus Ex. 2, Doc. 1-2; Tr. Sept. 9, 2009 Hrg. Mot. New Trial at 15-18, Doc. 5-3.) He was initially sentenced as a first offender. (Tr. May 7, 2009 Bench Trial at 76-78, Doc. 5-1.) After violating the terms of his probation, he was ultimately convicted and sentenced on the sodomy count and related offenses in January 1999. See Green v. State, 303 Ga.App. 210, 692 S.E.2d 784, 784-85 (Ga. Ct. App. 2010), cert. denied.
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" that developed in Georgia in the wake
of Pavesich v. New England Life Ins Co., 122 Ga. 190, 50 S.E. 68 (Ga. 1905), the Georgia Supreme Court held O.C.G.A. § 16-6-2 unconstitutional " insofar as it criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent." Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (Ga. 1998). In 2003, the United States Supreme Court overruled Bowers and held that a Texas statute that criminalized private consensual sodomy between adults violated the Due Process Clause of the Federal Constitution. Lawrence v. Texas, 539 U.S. 558, 578, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). Bowers, the Supreme Court held, " was not correct when it was decided, and it is not correct today." Id.
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. The 1999 sodomy conviction was the sole basis for the determination that he is a sex offender and is therefore subject to the registration requirement imposed by O.C.G.A. § 43-1-12. ( See Tr. May 7, 2009 Bench Trial at 5, Doc. 5-1 (noting that the only qualifying offense requiring registration as a sex offender is Green's 1999 conviction); see also Indictment Case No. 08CR1299, Doc. 19-2.) He was sentenced to 30 years, two to serve and the balance on probation. (Tr. May 7, 2009 Sentence at 2, 5-6, Doc. 5-2; May 7, 2009 Bench Trial at 59-60, Doc. 5-1.) Green now asserts that because the sodomy conviction penalizes conduct that cannot, as a constitutional matter, be criminalized, it cannot be used as proof of a criminal offense to support a conviction under the registration statute. (Petitioner's Br. Supp. Petition Writ Habeas Corpus at 10-16, Doc. 8.) Green's trial counsel failed to make this argument during trial. ( See Tr. Sept. 9, 2009 Hrg. Mot. New Trial at 48-49, Doc. 5-3.)
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. He argued that the evidence was insufficient, contending that " the state failed to prove that he is required to register as a sexual offender because under Powell v. State and Lawrence v. Texas, consensual sodomy is no longer a crime." Green, 692 S.E.2d at 784. He also argued that his trial counsel was ineffective for not raising this issue at trial, that is, for not challenging the use of the sodomy conviction as the underlying crime that required registration. Id. The
trial court denied the motion for new trial. (Tr. Sept. 9, 2009 Hrg. Mot. New Trial at 76-77, Doc. 5-3.)
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 ...