United States District Court, N.D. Georgia, Atlanta Division
FOR PLAINTIFF(S): Stephen R. Scarborough, Stephen R. Scarborough, Attoney at Law, Atlanta, GA.
FOR DEFENDANT(S): Paula K. Smith, Office of State Attorney General, Atlanta, GA.
Amy Totenberg, United States 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 fro 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 F.App'x 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 GRANTS Mr. Green's Petition.
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 be denied and 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, (2010).
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. Pet. 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 ...