Luke v. Battle , 275 Ga. 370 ( 2002 )

Sears, Presiding Justice.

We granted a habeas corpus application filed by the appellant, Marcus Luke, to consider whether the habeas court erred (1) in ruling that Brewer v. State¹ announced a new rule of criminal procedure, as opposed to a new rule of substantive criminal law, and (2) in applying the so-called “pipeline” rule ² to conclude that Luke could not rely on Brewer to support his claim that the State convicted him without proving an element of the crime beyond a reasonable doubt. Under the pipeline rule, a new rule of criminal procedure generally applies only to those cases on direct review or not yet final, and would not apply to cases on collateral review, such as Luke’s habeas petition. For the following reasons, we conclude that our decision in Brewer announced a new rule of substantive criminal law, as it placed certain conduct beyond the reach of the aggravated sodomy statute that before that decision could have led to criminal liability, and that the habeas court erred by applying the pipeline rule to Luke’s claim regarding Brewer. Accordingly, we reverse the habeas court’s judgment and remand the case to it for proceedings consistent with this opinion.

1. Luke was convicted of aggravated sodomy involving a victim under the age of 14, and on appeal, Luke contended that the evidence was insufficient to support his conviction because the State had failed to prove the element of force necessary to convict him of aggravated sodomy. The Court of Appeals disagreed, holding that the element of force was presumed by a showing that the defendant committed an act of sodomy on an underage victim and that a showing of actual force was unnecessary to support the conviction.³ In Brewer,⁴ however, we overruled Luke and numerous other cases, and held that “force is a separate essential element which the State is required to prove to obtain a conviction for aggravated sodomy against a victim under the age of consent”;⁵ that the State could no longer prove force by showing only an act of sodomy on an underage victim;⁶ but that instead the State had to prove force by acts of force, which could include acts of intimidation and mental coercion, against the victim.⁷

In this habeas action, relying on Brewer, Luke claimed that the State had failed to prove the element of force. The habeas court, however, held that Luke was not entitled to the benefit of Brewer, in that Brewer established a new rule of criminal procedure and that new rules of criminal procedure applied only to those cases then on direct review or not yet final.⁸ Because Luke was raising the issue on collateral review, the habeas court ruled that Brewer was inapplicable. We then granted Luke’s habeas application to consider that ruling of the habeas court.

2. We conclude that the present case is controlled adversely to the State by the rationale of the Supreme Court’s decision in Bousley v. United States,⁹ as well as by the rationale of this Court’s decision in Scott v. Hernandez-Cuevas.¹⁰

In Bousley, the defendant had pled guilty to “using” a firearm during a drug trafficking crime in violation of 18 USC § 924 (c) (1). After Bousley had pled guilty, the Supreme Court held in Bailey v. United States¹¹ that the “use” element of the crime required the active use of the firearm during the drug offense and not merely, as in Bousley’s case, the close proximity of the firearm to the drugs.¹² Bousley filed a habeas petition, contending that he had been misinformed about the essential elements of the crime when he pled guilty, and the Supreme Court considered whether its decision in Bailey should be applied retroactively to Bousley’s habeas case. The Supreme Court held that Bailey had to be applied retroactively. In doing so, the Supreme Court refused to apply the rule of Teague v. Lane, holding that Teague applied to procedural rules and not to new rules of substantive criminal law.¹³

The Court noted that “[t]his distinction between substance and procedure is an important one in the habeas context.”¹⁴ The Court held that when it decides the “meaning of a criminal statute”¹⁵ and decides that the statute “does not reach certain conduct,”¹⁶ it has made a ruling of substantive criminal law.¹⁷ The Court further explained that, unlike most new rules of criminal procedure, it “would be inconsistent with the doctrinal underpinnings of habeas review” for such substantive rulings not to apply retroactively to habeas review.¹⁸ The Court thus held that Bousley was entitled to rely on the Court’s ruling in Bailey in his habeas case.¹⁹

This Court came to a similar conclusion in Hernandez-Cuevas.²⁰ In that case, Hernandez-Cuevas was convicted of trafficking in cocaine at a time when the term “possession” in that statute had been interpreted to permit conviction of the offense based upon evidence of actual or constructive possession of cocaine.²¹ After Hernandez-Cuevas’s direct appeal had been decided by our Court of Appeals, this Court ruled in Lockwood v. State²² that the term “possession” in the trafficking in cocaine statute required the State to show that the defendant had actual possession of the cocaine.²³ Hernandez-Cuevas then filed an action for collateral relief based upon Lockwood, and the habeas court granted relief. In ruling on the State’s appeal, this Court affirmed, holding that our decision in Lockwood applied retroactively to Hernandez-Cuevas’s habeas petition.²⁴ Our decision in Hernandez-Cuevas is consistent with the Supreme Court’s decision in Bousley, in that we recognized that our decision in Lockwood meant that the trafficking in cocaine statute did not reach certain conduct that it had reached before — the constructive possession of cocaine, and in that we held that the Lockwood decision thus had to be applied retroactively to collateral review.

Bousley and our decision in Hernandez-Cuevas thus establish that a new rule of substantive criminal law must be applied retroactively to cases on collateral review and that an appellate decision holding that a criminal statute no longer reaches certain conduct is a ruling of substantive law. Under this framework, contrary to the dissent’s assertion,²⁵ our decision in Brewer must be considered a new rule of substantive criminal law. In this regard, before Brewer, this Court and the Court of Appeals had construed the term “force” in the aggravated sodomy statute to permit the State to convict a person of aggravated sodomy by showing only that he had engaged in an act of sodomy with an underage victim.²⁶ In Brewer, however, we construed the term “force” in the aggravated sodomy statute to “ ‘meant ] acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation,’ ”²⁷ and held that “one who commits an act of sodomy against an underage victim is [not], without more, guilty of aggravated sodomy.”²⁸ We construed the statute in this fashion for two reasons. One was that we had “construed the language ‘forcibly and against her will’ in the rape statute, OCGA § 16-6-1 (a), as specifying two separate and distinct elements”²⁹ and as requiring some factual evidence of force to prove rape.³⁰ The other was that the General Assembly had enacted a strict-liability aggravated child molestation statute that does not require the use of force, but that instead permits conviction based only on the fact that the defendant committed an act of sodomy on an underage victim. We reasoned that, with the enactment of the aggravated child molestation statute, the General Assembly had negated the ability to convict a defendant of aggravated sodomy based solely on the commission of an act of sodomy with an underage victim, since such an ability “would leave the separate crime of aggravated child molestation with no practical purpose.”³¹

This discussion of Brewer demonstrates that our decision in that case, like the Supreme Court’s decision in Bailey³² and our decision in Lockwood,,³³ construed the meaning of a criminal statute so as to place certain conduct - a non-forceful act of sodomy with an underage victim - beyond its reach. Thus, to be consistent with the Supreme Court’s decision in Bousley³⁴ and this Court’s decision in Hernandez-Cuevas,³⁵ we now hold that Brewer established a rule of substantive criminal law that must be applied retroactively to cases on collateral review.³⁶ Accordingly, the habeas court erred in applying the pipeline rule to Luke’s habeas case, and erred in refusing to permit Luke to rely on Brewer³⁷ We therefore reverse the habeas court’s judgment and remand the case to it for proceedings consistent with this opinion.

As for the dissent’s emotional assertion that our holding today might “vacate the convictions of an untold number of child molesters,” there are two fair and just responses. One is that today’s opinion does not vacate the child molestation conviction of any defendant also convicted of aggravated sodomy before our decision in Brewer. The other, more important, response is that the only defendants who will have their aggravated sodomy convictions overturned are those convicted of an act that the aggravated sodomy statute does not make criminal. Overturning the conviction of a person not guilty of the crime for which he was convicted goes to the heart of our habeas corpus system and our American system of justice.

Judgment reversed and case remanded for proceedings consistent with this opinion.

All the Justices concur, except Hunstein, Carley and Thompson, JJ, who dissent.

1 271 Ga. 605, 607 (523 SE2d 18) (1999).

2 See Taylor v. State, 262 Ga. 584, 586 (422 SE2d 430) (1992); Teague v. Lane, 489 U. S. 288, 310-311 (109 SC 1060, 103 LE2d 334) (1989).

3 Luke v. State, 222 Ga. App. 203 (1) (474 SE2d 49) (1996). As noted in the Court of Appeals’s opinion, the victim testified that “he was not forced” to do the acts in question, but that “he did not want to do them.” Id. at 203.

4 271 Ga. at 606-607.

5 Id. at 606.

6 Id.

7 Id.

8 See Taylor, 262 Ga. at 586; Teague, 489 U. S. at 310-311.

9 523 U. S. 614 (118 SC 1604,140 LE2d 828) (1998).

10 260 Ga. 466 (396 SE2d 900) (1990).

11 516 U. S. 137 (116 SC 501,133 LE2d 472) (1995).

12 Bousley, 523 U. S. at 616-617.

13 Bousley, 523 U. S. at 620-621.

14 Id.

15 Id.

16 Id.

17 Id. at 620-621.

18 Id. at 620-621.

19 Id. For a case following Bousley and ruling that court decisions altering the meaning of the substantive criminal law must be applied retroactively, see Santana-Madera v. United States, 260 F3d 133, 138-139 (2nd Cir. 2001).

20 260 Ga. 466.

21 Id. at 466-467.

22 257 Ga. 796 (364 SE2d 574) (1988).

23 Id. at 467.

24 Id.

25 The dissent has improperly analyzed the so-called “pipeline” rule in this case. The dissent concludes that Brewer constituted a new rule of criminal procedure, and that for that reason alone, the rule in Brewer may not be applied retroactively to cases on collateral review. See Teague, 489 U. S. 288. Although Teague does establish a general rule that new rules of criminal procedure will not be applied to cases on collateral review, it establishes two exceptions to the general rule, and those exceptions must be found not to apply before it can be concluded that a new rule of criminal procedure does not apply to cases on collateral review. See Teague, 489 U. S. at 307-315. The dissent fails to analyze either of these exceptions, and thus errs in its application of the “pipeline” rule.

26 See, e.g., Luke, 222 Ga. App. at 203-206; Cooper v. State, 256 Ga. 631 (352 SE2d 382) (1987); State v. Collins, 270 Ga. 42, 43-44 (508 SE2d 390) (1998).

27 Brewer, 271 Ga. at 607, quoting Collins, 270 Ga. at 43.

28 Brewer, 271 Ga. at 607. Based on this holding, we overruled our decision in Cooper, 256 Ga. 631, and numerous Court of Appeals’s decisions. Brewer, 271 Ga. at 607.

29 Brewer, 271 Ga. at 606.

30 Id. See also Collins, 270 Ga. at 42-44.

31 Brewer, 271 Ga. at 607.

32 516 U. S. 137.

33 257 Ga. 796.

34 523 U. S. 614.

35 260 Ga. 466.

36 The case of Harris v. State, 273 Ga. 608, 610 (543 SE2d 716) (2001), on which the dissent relies, is inapposite to the present situation. In Harris, this Court did not offer any opinion as to the meaning of the term “intent” and did not place any conduct beyond the reach of the murder statute that had, before Harris, been subject to criminal liability under that statute. Instead, we simply held that a jury charge on a permissive inference that a jury might draw on intent should not be given as a matter of state law. We adopted this rule because, as a procedural matter, we concluded that the better practice was not to have a jury charge that emphasized an inference that could be drawn from one particular circumstance of the case, as opposed to an inference that could be drawn from other particular circumstances. See Clark v. State, 265 Ga. 243, 246 (454 SE2d 492) (1995), on which we relied in Harris. Indeed, after Harris, juries are free to infer that a person who uses a deadly weapon has the intent to kill and to use that evidence to support a finding of guilt. See Renner v. State, 260 Ga. 515, 517-518 (397 SE2d 683) (1990) (holding that juries should not be instructed on flight, but stating that the prosecutor was free to argue the defendant’s guilt based on evidence of flight and that the jury was free to infer that Renner’s flight was evidence of guilt). On the other hand, after Brewer, juries are no longer free to rely on the simple fact that the defendant committed an act of sodomy on an underage victim to support a finding of guilt for aggravated sodomy. Thus, in Brewer, unlike in Harris, this Court altered the meaning of a statutory element of the crime and placed certain conduct beyond the reach of a criminal statute.

37 We note that Luke’s claim on habeas that under Brewer the evidence is insufficient to support his conviction is a claim that is cognizable in habeas. See Miller v. Parker, 256 Ga. 276 (348 SE2d 655) (1986); Valenzuela v. Newsome, 253 Ga. 793 (325 SE2d 370) (1985). See also Fiore v. White, 531 U. S. 225 (121 SC 712, 148 LE2d 629) (2001), in which the Supreme Court held that when a court decision clarifies a criminal statute, a defendant is entitled to collateral relief based on that decision if he can show that the State convicted him “without proving the elements of [the] crime beyond a reasonable doubt.” Id. at 228. The Court held that under these circumstances, the Federal Due Process Clause forbids such a conviction. Id. We also note that Luke’s claim is not barred by res judicata, as, after the Court of Appeals decided his directed appeal, there was am intervening change in the law due to our Brewer decision. See Bruce v. Smith, 274 Ga. 432, 434-435 (553 SE2d 808) (2001).