United States Court of Appeals

For the Eighth Circuit

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No. 12-2195

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Adam Musser

lllllllllllllllllllllPetitioner - Appellant

v.

Terry Mapes

lllllllllllllllllllllRespondent - Appellee

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 Appeal from United States District Court 

for the Southern District of Iowa – Des Moines

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 Submitted: April 11, 2013

 Filed: June 24, 2013

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Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

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MELLOY, Circuit Judge.

Adam Musser was convicted in four separate trials of criminally transmitting

the human immunodeficiency virus (HIV) in violation of Iowa Code § 709C.1. 

Following the same number of unsuccessful appeals before the Iowa Supreme Court,
Musser petitioned for habeas relief pursuant to 28 U.S.C. § 2254. The district court

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denied the petition, and Musser appealed. For the reasons set forth below, we affirm.

I. Background

A. Facts

In 2002 and 2003, Musser had unprotected sexual intercourse with four

women. At that time, Musser knew himself to be HIV-positive and was receiving

treatment for the condition, but either withheld or misrepresented his HIV status to

the women. Musser was subsequently convicted in four separate trials of violating

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Iowa Code § 709C.1 ("the statute"), which provides as follows: "A person commits

criminal transmission of [HIV] if the person, knowing that the person's [HIV] status

is positive . . . [e]ngages in intimate contact with another person." Iowa Code

§ 709C.1(1)(a). The statute defines "intimate contact" as "the intentional exposure

of the body of one person to a bodily fluid of another person in a manner that could

result in the transmission of [HIV]." Id. § 709C.1(2)(b). It is not an element of the

offense that a victim actually become infected with HIV. Id. § 709C.1(4).

In separate direct appeals, the Iowa Supreme Court affirmed each of Musser's

convictions and fifty-year aggregate prison sentence. See State v. Musser, 721

N.W.2d 734, 741 & n.3 (Iowa 2006). Musser subsequently petitioned the district

court for habeasrelief pursuant to 28 U.S.C. § 2254. Musser did not dispute the facts

underlying his convictions, but claimed that the convictions and representation by his

The Honorable James E. Gritzner, Chief United States District Judge for the

1

Southern District of Iowa.

Musser sometimes used a condom, but in at least one instance his condom 2

failed. Three of the four women were confirmed as having not been infected with

HIV, and the record does not indicate the HIV status of Musser's fourth victim.

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counsel were unconstitutional for variousreasons. The district court denied Musser's

petition on all grounds, Musser v. Mapes, 854 F. Supp. 2d 652 (S.D. Iowa 2012), and

this Court granted a certificate of appealability limited to "the issue of whether [the

statute] violated the due process clause because it is vague and overbroad."

On appeal, Musser renews his arguments regarding the statute's alleged

unconstitutional vagueness and overbreadth. Specifically, Musser claims that the

statute does not provide fair notice of what acts are prohibited because the phrases

"intimate contact" and "in a manner that could result in the transmission of [HIV]" are

vague and sweep too broadly. See Iowa Code § 709C.1(1)(a), (2)(b). Musser argues

that the statute unconstitutionally prohibits certain activities—e.g., accidentally

bleeding on another individual after an automobile accident or during a sporting

competition, kissing, and breast-feeding—where "there is reasonable scientific debate

asto whether the mode of transmission actually spreads [HIV]" because "all the state

needs to do is find an expert to say that such contact 'could' transmit [HIV]." 

(Emphases added.)

B. Standard of Review

"When considering the district court's denial of a habeas petition, we review

the district court'sfindings of fact for clear error and its conclusions of law de novo." 

Middleton v. Roper, 455 F.3d 838, 845 (8th Cir. 2006) (citation and internal

quotation marks omitted). "When a claim has been adjudicated on the merits in state

court, habeas relief is warranted only if the state court proceeding resulted in (1) 'a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court,' or (2) 'a decision that

was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.'" Bucklew v. Luebbers, 436 F.3d 1010,

1015–16 (8th Cir. 2006) (quoting 28 U.S.C. § 2254(d)(1), (2)). A decision is

"contrary to" federal law "if the state court arrives at a conclusion opposite to that

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reached by [the Supreme] Court on a question of law or if the state court decides a

case differently than [the Supreme] Court has on a set of materially indistinguishable

facts." Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A decision is "an

unreasonable application" of federal law "if the state court identifies the correct

governing legal principle from [the Supreme] Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case." Id. at 413. "[I]t is not

enough for [thisCourt] to conclude that, in our independent judgment, we would have

applied federal law differently from the state court; the state court's application must

have been objectively unreasonable." Rousan v. Roper, 436 F.3d 951, 956 (8th Cir.

2006).

II. Musser's Challenges to the Statute

A litigant may bring a facial challenge to invalidate an imprecise law under two

doctrines: vagueness and overbreadth. City of Chicago v. Morales, 527 U.S. 41, 52

(1999). Subject to a limited number of exceptions, however, "a person to whom a

statute may constitutionally be applied will not be heard to challenge that statute on

the ground that it may conceivably be applied unconstitutionally to others, in other

situations not before the Court." Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). 

Musser argues that Iowa Code § 709C.1 isinvalid for being unconstitutionally

vague and overbroad. We address each of his arguments in turn below.

A. Vagueness

Under the void-for-vagueness doctrine, a law is unconstitutional if it "fails to

provide a person of ordinary intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages seriously discriminatory enforcement."

United States v. Williams, 553 U.S. 285, 304 (2008); see United States v. Nat'l Dairy

Prods. Corp., 372 U.S. 29, 32–33 (1963) (“Void for vagueness simply means that

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criminal responsibility should not attach where one could not reasonably understand

that his contemplated conduct is proscribed.”). Vaguenessis generally not one of the

limited exceptions mentioned above, however, see United States v. Mazurie, 419 U.S.

544, 550 (1975), and thus for Musser to have standing to challenge the statute as

vague, the statute must be unconstitutional as applied to his specific conduct at issue. 

See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495

(1982) ("A plaintiff who engages in some conduct that is clearly proscribed cannot

complain of the vagueness of the law as applied to the conduct of others.").

For purposes of this appeal, Musser does not dispute the facts underlying his

convictions—Musser admits to having unprotected sexual intercourse with four

women when he knew himself to be HIV-positive and without informing the women

of his condition. And for the reasons stated by the Iowa Supreme Court and reiterated

by the district court, Musser had fair notice that unprotected sexual intercourse

constituted "intimate contact" within the meaning ofthe statute. Musser, 721 N.W.2d

at 745 (citing State v. Keene, 629 N.W.2d 360, 365–66 (Iowa 2001) ("[A]ny

reasonably intelligent person is aware it is possible to transmit HIV during sexual

intercourse, especially when it is unprotected.")); see Musser, 854 F. Supp. 2d at 663

& n.8. Thus, because Musser knew his HIV status to be "positive" and engaged in

the type of "intimate contact" that the statute was plainly intended to prohibit, the

statute is not unconstitutionally vague as applied to him.

Accordingly, Musser is precluded from asserting a void-for-vagueness

challenge to the statute based on the hypothetical situations posed in his petition and

brief and noted above (e.g., accidental bleeding).

B. Overbreadth

Unlike vagueness, "[t]he First Amendment doctrine of overbreadth is an

exception to [the] normalrule regarding the standards for facial challenges." Virginia

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v. Hicks, 539 U.S. 113, 118 (2003). "[T]he overbreadth doctrine permits the facial

invalidation of laws that inhibit the exercise of First Amendment rights if the

impermissible applications of the law are substantial when 'judged in relation to the

statute's plainly legitimate sweep.'" Morales, 527 U.S. at 52 (quoting Broadrick, 413

U.S. at 615); see Turchick v. United States, 561 F.2d 719, 721 (8th Cir. 1977) ("The

aim of facial overbreadth analysis is to eliminate the deterrent or 'chilling' effect an

overbroad law may have on those contemplating conduct protected by the First

Amendment." (footnote omitted)). The facial overbreadth doctrine is restricted in its

application, however, and is "not recognized . . . outside the limited context of the

First Amendment." United States v. Salerno, 481 U.S. 739, 745 (1987); Schall v.

Martin, 467 U.S. 253, 268 n.18 (1984) ("[O]utside the limited First Amendment

context, a criminal statute may not be attacked as overbroad."). 

Here, because the certificate of appealability was granted on "the issue of

whether [the statute] violated the due process clause because it is vague and

overbroad," and because the First Amendment is applied to the States by way of the

Due Process Clause, see United Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463

U.S. 825, 831 (1983), a First Amendment claim is theoretically within the scope of

the appealable issue. But nowhere in his appeal brief does Musser mention "First

Amendment" or "freedom of association" or any terms or phrasesthat would indicate

how his claim is properly subject to an overbreadth challenge. Musser argues only 3

The Iowa Supreme Court noted that the "practical effect" of the statute does

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compel some speech—forcing an individual to disclose that he or she is

HIV-positive—and thus implicates the First Amendment. Musser, 721 N.W.2d at

742. Nonetheless, the Iowa Supreme Court determined that "[t]he obvious purpose

of th[e] statute is the protection of public health by discouraging the transmission of

the AIDS virus[,]" and the court could not "conceive of a lessrestrictive way in which

the state could accomplish its goal." Id. at 744–45. Musser challenged this ruling in

his petition, but the district court concluded that "the Iowa Supreme Court's decision

was not an unreasonable application offederal law as determined by the United States

Supreme Court." Musser, 854 F. Supp. 2d at 666. There is no cognizable way to

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that "[t]he Fourteenth Amendment accords protection to personal decisions relating

to marriage, procreation, contraception, family relationships, child rearing, and

education." For this proposition, Musser cites Lawrence v. Texas, 539 U.S. 558

(2003). Lawrence, however, was decided on substantive due-process grounds—not

the right of free association arising out of the First Amendment. See id. at 564 ("We

conclude the case should be resolved by determining whether the petitioners were

free as adultsto engage in the private conduct in the exercise of their liberty under the

Due Process Clause of the Fourteenth Amendment to the Constitution." (emphasis

added)). We agree with the district court that Musser is "targeting the right of two

persons to engage in private, intimate contact," and that right is more akin to rights

that have been recognized under the substantive component of the Due Process

Clause, not the First Amendment. Musser, 854 F. Supp. 2d at 661 n.7; see Roberts

v. U.S. Jaycees, 468 U.S. 609, 617–20 (1984) (distinguishing between the "two

distinct senses" in which there is a constitutional right to freedom of association).

Accordingly, because Musser does not raise any First Amendment concerns,

he is precluded from asserting an overbreadth challenge to the statute.

III. Conclusion

For the reasons set forth above, we affirm the district court's denial of habeas

relief to Musser.

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interpret Musser's appeal brief as advancing a free-speech argument, and thusif there

is any First Amendment challenge present, it must arise from the right of free

association. 

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