A petitioner found guilty of attempted sodomy in 2012 is entitled to habeas corpus relief, as the statute under which he was convicted, Va. Code § 18.2-361, has been declared void under MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013).
On March 12, 2013, the 4th Circuit decided MacDonald, and in that decision, Va. Code § 18.2-361 was ruled unconstitutional on its face. On July 16, 2013, petitioner filed his petition for writ of habeas corpus. A hearing was held on Sept. 26, 2013. I took the case under advisement, pending a decision from the U.S. Supreme Court regarding the petition for a writ of certiorari filed in MacDonald. On Oct. 7, 2013, the U.S. Supreme Court denied cert.
The key issue is whether MacDonald should be applied retroactively to petitioner’s case. If MacDonald were to be applied retroactively, the statute under which petitioner was convicted would be unconstitutional, and his petition should be granted.
Respondent acknowledges that substantive changes in the law are usually retroactive if an appellate court makes a ruling that establishes that someone was convicted for an act that the law does not make criminal. Respondent argues that since petitioner’s attempted sodomy occurred in public the commonwealth could, in theory, enact a statute that would criminalize petitioner’s conduct. Therefore, respondent argues that it would be wrong to apply MacDonald retroactively.
The difficulty I have with respondent’s argument is that I think that in MacDonald the 4th Circuit considered that argument and rejected it. The court said that although the Virginia General Assembly might be entitled to enact a statute specifically outlawing sodomy between an adult and an older minor, it has not seen fit to do so, and stated it was not going to rewrite the law to conform it to constitutional requirements. We have the same situation here; in the future, the General Assembly might enact a statute that specifically outlaws sodomy in public, but as of now it has not done so. What we have now is a law that the federal courts have declared void ab initio. Therefore, I believe petitioner is entitled to habeas corpus relief, as he was convicted under a void law.
Vann v. Pixley (Cella) No. CL 13000066-00, Oct. 11, 2013; Nottoway Cir.Ct.; Jason Moore for petitioner; Eugene Murphy, Sr. AAG, for respondent. VLW 013-8-125, 3 pp.