PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16 - 6452

ADAM DARRICK TOGHILL , Petitioner

– Appellant , v. HAROLD W. CLARKE, Director, Dept. of Corrections , Respondent

– Appellee

. Appeal from the United States District Court for the Western District of Virginia , at Roanoke

. Michael F. Urbanski , Chief District Judge. ( 7:15

- cv - 00119

- MFU

- RSB )
Argued : September 14, 2017 Decided: December 15, 2017

Before WILKINSON, TRAXLER, and AGEE , Circuit Judges.

Affirmed by published opinion

. Judge Traxler wrote the opinion in which Judge Wilkinson and Judge Agee joined.

ARGUED: Gregory Dolin, UNIVERSITY OF BALTIMORE SCHOOL OF LAW, Baltimore, Maryland, for Appellant. Matthew Robert M cGuire, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Meghan Ellis Brennan, Stuart Goldberg, Jasna McElrath, Third Year Law Students, UNIVERSITY OF BALTIMORE SCHOOL OF LAW, Baltimore, Maryland, for Appellant. Mark R. Herring, Attorney General of Virginia, Stuart A. Raphael, Solicitor General, Trevor S. Cox, Deputy Solicitor General, Eugene P. Murphy, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.2 TRAXLER, Circuit Judge : Petitioner Adam Darrick Toghill , a Virginia inmate, appeals the distric t court’s denial of his habeas petition under 28 U.S.C. § 2254 (d) , in which he challeng es his state
court conviction for computer solicitation of acts of sodomy from a minor under the age of 15 , in violation of V a. Code Ann. § 18.2

- 374.3(C)(3) (2007)

. He argues that his conviction violate s his substantive d ue p rocess rights under the Fourteenth Amendment to the United States Constitution , and that the Supreme Court of Virginia’s rejection of his claim was contrary to or an unreasonable applic ation of the United States Supreme Court ’s decision in Lawrence v. Texas , 539 U.S. 558 (2003)

. For the following reasons, we affirm. I. In March 2011, Toghil l , who was 32 years old, engaged in an 80

- minute email exchange with “Becca” Flynn, a 13

- year - old girl who had posted an advertisement in the “miscellaneous romance” section of Craigslist. J.A. 276 (internal quotation marks omitted)

. After they exchanged photographs, “Toghill repeatedly expressed h is desire to engage in oral sex with her, questioned her abou t her sexual experience, and explored potential locations where they could meet.” Id. In actuality, “Becca” was Louisa County , Virginia, Deputy Sheriff Patrick Siewert , who was p osing as a child a s part of his work with the Internet Crimes Against Children Taskforce.
V irginia Code § 18.2

- 3 74.3 generally prohibits t he “[u]se of communications systems to fa cilitate certain offenses involving children

. ” Toghill was charged specifically under Va. Code § 18.2

- 374 .3 (C)(3) , which , at the time of his offe nse , pr ovided as follows:3 It shall be unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of solici ting, with lascivious intent, any person he knows or has reason to believe is a child less than 15 years of age to knowingly and intentionally . .

. [p]ropose to such child the performance of an act of sexual intercourse or any act constituting an offense under § 18.2

- 361

. Id. (emphasis added). V a. Code Ann. § 18.2

- 361 (A) (2005) , in turn, prohibited “ carnal ly know[ing] in any manner any brute animal, or carnally know[ing] any male or female person by the anus or by or with the mouth, ” including “ voluntar ily submi t[ting] to such carnal knowledge .” T oghill was convicted by a jury and sentenced to five years ’ imprisonment

. 1 While Toghill’s direct appeal was pending before the Court of Appeals of Virginia , this court issued its decision in MacDonald v. Moose , 710 F.3d 154 (4th Cir. 2013) , granting habeas relief to a Virginia inmate who had been convicted of criminal solicit ation of a 17

- year - old minor to commit a felony , see Va. Code Ann. § 18.2

- 29 (2002) , namely sodomy under Va. Code § 18.2

- 361 (A) , base d upon the substantive Due Process Clause and the Supreme Court’s decision in Lawrence

. Toghill has since claimed that his conviction for proposing “ the performance of an . . . act constituting an offense under § 18.2

- 361 , ” to a “ child less than 15 years of age, ” in violation of § 18.2

- 374.3(C)(3), violate s his d ue p rocess rights as well

. Both th e Court of Appeals of Virginia and the Supreme Court of Virginia rejected Toghill’s c hallenge a nd affirmed his conviction

. S ee Toghill v.

1 Va. Code § 18.2

- 374.3(C) was amended in 2013 and 2014. Va. Code § 18.2

- 361 was amended in 2014. Unless otherwise indicated, references to these statutes pertain to the earlier versions that were in effect when Toghill was charged with his offense

.4 Commonwealth, 768 S.E.2 d 674 (Va. 2015) ; Toghill v. Commonwealth , No. 2230

- 12

- 2, 2014 WL 545728 (Va. Ct. App. Feb. 11, 2014)

. Toghill then filed t his petition for habeas relief under 28 U.S.C. § 2254

. The d istrict court dismissed the claim, but granted a certificate of appealability

. II. A.
In Lawrence v. Texas , the United States Supreme Court was presented with a challenge to the constitutionality of a T exas statute tha t criminalized homosexual sodomy

. The Court h eld that the liberty interests protected by the Due Process Clause of the Fourteenth Amendment prohibit states from criminalizing such sexual conduct b etween consenting adults in private

. See Lawrence, 539 U.S. at 578

. In doing so, t he Court overruled its prior decision in Bowers v. Hardwick, 478 U.S. 186 (1986), which had upheld a Georgia statute that criminaliz ed all sodomy against the same constitutional challenge. See id. The Supreme Court , however, was careful to point out the scope of its ruling, noting that the case did “ not involve m inors , ” “ persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused, ” or “ public conduct or prostitution. ” Lawrence , 539 U.S. at 578. Rather, it involved the convictions of “ two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle ” in the privacy of the home. Id. B.
P rior to the Fourth Circuit’s decision in Moose , the Virginia appellate courts considered two cases involving the effect of Lawrence upon a Virginia defendant’s5 convictions for sodomy under Va. Code § 18.2

- 361 (A) , (the “anti

- sodomy statute”), and for solicitation of sodomy under Va. Code § § 18.2

- 29 and 18.2

- 361 (A)

. The defendant in both cases was the same

— William Sco tt McDonald a/k/a William Scott MacDonald

. 2
In the first case , McDonald v. Commonwealth , 645 S.E.2d 918 (Va. 2007), McDonald chall enged his convictions for four counts of sodomy under Va. Code § 18.2

- 361 (A)

— all of which involv ed minors under the age of 18 when McDonald was between 45 and 47 years old

. See id

. at 919. McDonald argued that because the anti

- sodomy statute had no age restriction, the court should borrow the age restrictions from certain other minor

- specific criminal statutes in Virginia , and set the age of consent at 15 years of age

. See i d. at 923. Under this construction of the anti

- sodomy statute, McDonald claimed that his victims were of the age of consent and, therefore, that the anti

- sodomy statute had been unconstitutionally appli e d to him under Lawrence

. See i d. T he Supreme Court of Virg i nia disagreed, holding a s follows: The only issue preserved at the trial court and presented to this Court is an as

- applied constitutional challenge to the sodomy statute. McDonald’s statutory construction argument is faulty and furthermore, it misses the real issue. The victims in this case were minors, defined by the Code of Virg i nia as persons under the age of eighteen. See Code § 1

- 207. Nothing in Lawrence

. . . prohibits the application of the sodomy statute to conduct between adults and minors.

2 Th e cases involving the sodomy convictions under Va. Code § 18.2

- 361 (A) , are titled under the “McDonald” spelling of the defendant’s last name, whereas the case involving the solicitation of sodomy convictions under Va. Code § § 18.2

- 29 and 18.2

- 361 (A) , are t itled under the “MacDonald” spelling of the defendant’s last name. We refer to the Fourth Circuit decision, which involved the defendant’s successful petition for habeas relief from the solicitation conviction in the second case, as the Moose decision.6 Id. at 924 (emphasis added) ; see id. (noting that “[t]he Court in Lawrence was explicit in its declaration of the scope of its opinion: ‘The present case do e s not involve minors.’” (quoting Lawre nce , 539 U.S. at 578) )

. Although McDonald a lso raise d a facial challenge to the anti

- sodomy statute, the Supreme Court of Virginia explicitly refused to consider it because McDonald f ailed to raise it before the trial court. See i d. at 921. 3 In the second case, MacDonald v. Commonwealth , No. 1939

- 05

- 02, 2007 WL 43635 , at *1 ( Va. Ct. App. Jan. 9, 2007), the Court of Appeals of Virginia considered MacDonald’s appeal from his conviction for solicitation to commit a felony under Va. Code § 18.2

- 29 , namely acts of sodomy prohibited by V a. Code § 18. 2

- 361 (A) . A gain, MacDonald argued that his 17

- year - old victim should be deemed to be o f the age of consent under Virginia law and, therefore, that the anti

- sodomy statute was being unconstit u tionally
app lied to him under La wrence . In addition, MacDonald timely asserted a facial challenge to the anti

- sodomy statute. The Court of Appeals of Virginia rejected MacDonald’s as

applied challenge based upon the age of consent, and held that MacDonald lacked standing to assert a facial challenge to the anti

- sodomy statute because it was not being unconstitutionally applied to him. See i d. (c iting McDonald v. Commonwealth , 630 S.E.2d 754, 756

- 57 (Va. Ct. App. 2006) ) ; see also C ounty Court of Ulster C ty. v. Allen , 442 U.S. 140, 154

- 55 (1979) (“A party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no

3 In federal habeas proceedings, the district court denied McDonald’s § 2254 petition, see MacDonald v. Johnson , No. 1:08cv781 , 2009 WL 3254444 (E.D. Va. Oct. 9, 2009), and we denied a certificate of appealability, see McDonald v. Johnson , 384 Fed. App’x 2 73 (4th Cir. 2010).7 constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.” ). The Supreme Court of Virginia declined review

. C. This court’s decision in Moose arose out of MacDonald ’s habeas challenge to the Court of Appeals of Virginia’s decision to affirm his conviction for solicitation of sodomy under Va. Code § § 18.2

- 29 and 18.2

- 361 (A)

. T he Moose court reversed the district court’s denial of relief, and held that MacDonald was e ntitled to habeas relief from his solicitation

of

- sodomy conviction because the Virginia court’s “ standing determination . . . was contrary to and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court

. ” Moose , 710 F.3d at 162

. First, the Moose court held that , because the Supreme Court in Lawrence “recognized that the facial due process challenge in Bowers was wrongly decided,” and Virginia’s anti

- sodomy statute was “materially indistinguishable from the anti

- sodomy provision” in Bowers, Virginia’s statute likewise did “not survive the Lawrence decision.” Id. at 163. Second, the Moose court turned to th e appropriate remedy under the principles of Ayotte v. Planned Parenthood of N orthern New England, 546 U.S. 320 (2006)

. I n Ayotte , the United States Supreme Court held t hat “when confronting a constitutional flaw in a statute,” federal courts should “try to limit the solution to the problem” by “enjoin[ing] only the unconstit u t i onal applications of [the] statute while leaving the other applications in force.” Id. at 328

- 29. “[T] he normal rule is that partial, rather than facial, invalidation ,8 is the req uired course, such that [the] statute may be declared invalid to the extent that it reaches too far, but otherwise left intact

. ” I d. at 329 (internal quotation marks and alteration omitted). In doing so, however, federal courts must also remain “mindful that our constitutional mandate and institutional competence are limited” and that we should “restrain ourselves from rewriting state law to conform it to constitutional requirements even as we strive to salvage it.” Id. (internal quotation marks and alteration omitted). The Moose court agreed that Virginia’s anti

- sodomy statute had constitutional applications, and that there was nothing in Lawrence that would prohibit a state from enacting a statute “criminaliz[ing] sodomy between an adult and a minor.” Moose , 710 F.3d at 164. However, the court held that it could not judicially remedy the statute without “run[ning] afoul of the Supreme Court’s decision in Ayotte , ” i d. at 165

- 66 , because “the anti

- sodomy provision, like the statute in Lawrence , applie[d] without limits,” and “ d [id] not mention the word ‘ minor ,’ nor . . . remotely suggest that the regulation of sexual relations between adults and children had anything to do with its enactment ,” id. at 165

. Accordingly, the statute, as written, w as facially unconst i tu ti onal

. S ee id

. at 166 ( “[T] he “an ti

- sodomy provision, prohibiting sodomy between two persons without any qualification , is facially unconstitutional” under the Due Process Clause

. ) (emph asis added)

. And , finally, the Moose court held that, b ecause the anti

- sodomy provision was facially unconstitutional, it was “unconstitutional when applied to any person,” id. at 162, and “the Ulster County decision d[id] not operate to deny standing for MacDonald to
pursue a facial due pro cess challenge to the anti

- sodomy provision.” Id. at 161

.9 III. In his appeal to the Supreme Court of Virginia, Toghill a sked the court to follow our decision in Moose and likewise dec lare the anti

- sodomy statute t o be facially unconstitutional under Lawrence and incapable of a narrowing construction that would save it in its constitutional applications

. 4 Additionally, Toghill asked the court to extend th e holding in Moose to his conviction for proposing acts of sodomy to a child under the age of 15 i n violation of § 18.2

- 374(C)(3), because § 18.2

- 374(C)(3) prohibits adults from proposing “an act of sexual intercourse or any act constituting an offense under § 18.2

- 361

. ” Id. (emphasis added). After determining that it would allow Toghill to challenge the constitutionality of his conviction under § 18.2

- 374.3 (C)(3) based upon Lawrence , 5 the Supreme Court of

4 Toghill acknowledge d that the Supreme Court of Virginia was not bound by our decision in Moose , but non e theless asked the court to follow that decision. See Toghill v. Commonwealth , 768 S.E.2d 6 7 4, 677 (Va. 2015) (“ While this Court considers Fourth Circuit decisions as persuasive authority, such decisions are not binding precedent for decisions of this Court .” ) (citing Lockha rt v. Fretwell , 506 U.S. 364, 376 (1993) (Thomas, J., concurring) (“[N]either federal supremacy nor any other principle of federal law requires that a state court ’ s interpretation of federal law give way to a (lower) federal court ’ s interpretation.”); Owsley v. Peyton , 352 F.2d 804, 805 (4th Cir. 1965) (denying that a Fourth Circuit decision alters existing Virgi nia law and acknowledging that “[t]hough state courts may for policy reasons follow the decisions of the Court of Appeals whose circuit includes their state , . . . they are not obligated to do so”); United States ex rel. Lawrence v. Woods , 432 F.2d 1072, 1 076 (7th Cir. 1970) (“[B]ecause lower federal courts exercise no appellate jurisdiction over state tribunals, decisions of lower federal courts are not conclusive on state courts.”) . Toghill likewise acknowledges in this appeal that the Supreme Court of V irginia was not bound by the Fourth Circuit’s decision in Moose

.
5 Although Toghill had failed to raise his due process challenge at trial, a majority of the Supreme Court of Virginia held “that the conflict created by the Fourth Circuit’s subsequent opinion ” in Moose was “ good cause under [Va.] R ule 5:25 to consider the error10 Virginia agreed to “examine whether, under [its] jurisprudence, Toghill’s conviction [was] invalid premised on the theory that Code § 18.2

- 361(A) is facially unconstitutional as a result of the Supreme Court’s ruling in Lawrence

. ” Toghill , 768 S.E.2d at 677 (emphasis added)

. Its decision to reject the constitutional challenge and affirm Toghill’s conviction

was t wo - fold. First, the Supreme Court of Virginia stood by its earlier view that “‘[n] ot h ing in
Lawrence prohibits the application of the sodomy statute to conduct between adults and minors. ’” Id. at 679 ( alteration omitted) ( quoting McDonald , 645 S.E.2d at 924) )

. We held i n McDonald , 645 S.E.2d at 924, and we reaffirm this day that the Supreme Court’s decision in Lawrence did not prevent Code § 18.2

- 361(A) from being constitutional and enforceable as applied to sodomy between adults and minors. This Court recognized then a nd recognizes in this case that “ [t]he C ourt in Lawrence was explicit in its declaration of the scope of the opinion: ‘The present case does not involve minors.’ ” Id

. (quoting Lawrence , 539 U.S. at 578) )

. Accordingly, the court held that the anti

- sodomy statute “was constitutional as applied to Toghill” and that “Toghill therefore [did] not have standing to successfully assert a facial constitutional challenge to” the anti

- sodomy statute.” Id. In doing so, t he Supreme Court of Virginia declined to follow the view of the majority in Moose that “ the Supreme Court in Lawrence signaled that sodomy statutes were facially unconstitutional because it overturned Bowers ,” id. , and instead “concur [red] with the se ntiment expressed in Judge Diaz’s dissent to the Moose decision that although the

alleged by Toghill regarding the constitutionality of Code § 18.2

- 361(A).” Toghill , 768 S.E.2d at 677.11 Court in Lawrence overturned Bowers , to infer that Lawrence intended sodomy statutes to be facially invalid from this factor would be a logical ‘bridge too far , ’” i d. at 679 n.4 (quoting Moose , 710 F.3d at 169 (Diaz, J., dissenting)). Second, the Supreme Court of Virginia directly confront ed Toghill’s facial challenge to the anti

- sodomy statute and the qu estion of w hether , under its jurisprudence, the statute should “be totally invalidated” in all of its applications because it was “unconstitutional only in certain applications

. ” Id. at 680

. C onsistent with its obligation
to “ narrowly construe a statute where such a construction is reasonable and avoids a

con stitutional infirmity ,” Virginia Soc ’y for Human Life , Inc. v. Caldwell , 500 S.E.2d 814, 81 6

- 17 (Va. 1998) , t he Toghill court adopted an authoritative, narrowing construction of the anti

- sodomy statute so as to save it from total invalidation , see Toghill , 768 S.E.2d at 681. In accordance with the Lawrence decision, Code § 18.2

- 361(A) cannot criminalize private, noncommercial sodomy between consenting adults, but it can continue to regulate other forms of sodomy, such as sodomy involving children, forcible sodomy, prostitution involving sodomy and sodomy in public. The easy to articulate remedy is that Code § 18.2

- 361(A) is invalid to the extent its provisions apply to private, noncommercial and consensual sodomy involving only adults

. Id. (emphasis added ) ; see also Caldwell , 500 S.E.2d at 817 n.3 ( “While an ambiguity of language may serve as the basis for rejecting an unconstitutional interpretation of a statute in favor of one that survives constitutional scrutiny, a finding of ambiguity is not a prerequisite for applying a narrowing construction to preserve a statute’s constitutionality

. To the contrary, we may construe the plain language of a statute to have limited application12 if such a construction will tailor the statute to a constitutional fit. ”) (internal citation omitted)

. Thus, i n Toghill , the Supreme Court of Virginia confronted, for the fir st time, a facial challenge to the anti

- sodomy statute , consider ed the Ayotte framework tha t governed our review in Moose , as well as its own jurisprudence in Caldwell , and held “ that it is proper to apply the ‘normal rule’ by prohibiting those applications of Code § 18.2

- 361(A) that are unconstitutional and leaving the constitutional applicatio ns of Code § 18.2

- 361(A) to be enforced. ” Id. at 682. “ This remedy ,” the court pointed out, was the proper “ exercise in judicial restraint because it allow [ed] the constitutional portions of a statute passed by the General Assembly to remain in effect an d reflect [ed] the legislative preferences exhibited by the Code and the subsequent acts of the General Assembly. ” Id. In particular, the Supreme Court of Virginia relied upon several post

- Moose acts of the Virginia General Assembly that were passed “to ensure that sodomy with a minor or solicitation of sodomy with a minor would be a crime.” Id. at 681. “Currently, the Code of Virginia criminalizes sodomy involving adults and minors in numerous ways and thus shows clearly that our upholding convictions under the instant version of Code § 18.2

- 361(A) for offenses involving children is consistent with legislative intent.” Id. 6 It is this de termination of the Supreme Court of Virginia that we review in this appeal.

6 One suc h statute , the court pointed out, was the statute of conviction in this case, Va. Code § 18.2

- 374.3(C)(3), which was amended to prohibit an adult from using “ a communications system to ‘[p]ropose to [a minor under 15 years of age] the performance of an act of sexual intercours e, anal intercourse, cunnilingus, fellatio, or anilingus .’ ” Toghill , 768 S.E.2d at 682 (quoting Va. Code § 18.2

- 374.3 (C)(3) (2014)).13 I V

. Under the Ant iterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may grant habeas relief to a state prisoner only if the state court’s last adjudication of a claim on the merits “resulted in a decision that was contrary to, or involved an unreasonable appl ication of, clearly established Federal law, as determined by the Supreme Court of the United States ,” 28 U.S.C. § 2254(d)(1) (emphasis added) , or “ resulted in a decision that

was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2) . Toghill does not claim that the Supreme Court of Virginia’s decision in his case was factually unreasonable. Rather, he argues that the Supreme Court of Virginia’s rejection of his substa ntive due process claim was contrary to and an unreasonable application of the Supreme Court’s decision in Lawrence, as interpreted by our court in Moose

. The AEDPA standard “serves important interests of federalism and comity” and it “is intentionally di fficult to meet.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (internal quotation marks omitted). To obtain relief, the state prisoner “is required to ‘show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” Id. (quoting Harrington v. Richter , 562 U.S. 86, 103 (2011) ) . “The reasons for this approach are familiar. Federal habeas review of state convictions frustrates both the States’ sovereign power to punish offenders and their good

- faith attempts to honor constitutional rights.” Harrington , 562 U.S. at 103 (interna l quotation marks omitted) . “It disturbs the State’s14 significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal jud icial authority.” Id. (internal quotation marks omitted). Accordingly, while we are informed by the decision in Moose , the question before us is not whether the Supreme Court of Virginia’s decision to affirm Toghill’s conviction under Va. Code § 18.2

- 374 (C)(3) , based upon its reference to Va. Code § 18.2

- 361(A) , is contrary to or an unreasonable application of the Moose decision , nor whether we would construe the statute s at issue in the manner that it did . The question is whether the Supreme Court of Vi rginia’s decision to uphold Toghill’s conviction under its construction of the
state statute s at issue was contrary to or an unreasonable application of the Supreme Court’s decision in Lawrence

. See Bustos v. White , 521 F.3d 321 , 325 (4th Cir. 2008) (“[I] t is Supreme Court precedent, and not Fourth Circuit precedent, to which we look in applying the AEDPA standard of review.”). V. Toghill argues that the S upreme Court of Virginia’s decision to uphold his conviction for computer solicitation of a minor under Va. Code § 18.2

- 374.3(C)(3) is contrary to or an unreasonable application of Lawrence , because it is indistinguishable from MacDonald’s conv iction for solicitation of a felony under Va. Code § 18.2

- 29, i.e. , sodomy criminalized under Virginia’s anti

- sodomy statute

. More specifically, he contends that both convictions we re “ predicated ” upon the anti

- sodomy statute that this court declared facially invalid in Moose , and that we are therefore equally bound to grant hi m relief from his conviction

. W e disagree.15 A. First, t here are important differences between the Virginia state court decision that we reviewed in Moose and the state court decision that we review in th is case.

“ I t is well settled that federal courts have the power to adopt narrowing

co nstructions of federal legislation. Indeed, the federal courts have the duty to avoid constitutional difficulties by doing so if such a construction is fairly possible .” Boos v. Barry , 485 U.S. 312, 330

- 31 (1988 ) (emphasis added)

. However, “federal courts are without power to adopt a narrowing construction of a state statute unless such a construction is reasonable and readily apparent .” Id. at 330 (emphasis added) ; see also United States v. Thirty

- Seven (37) Photographs , 402 U.S. 363, 369 (1971) (noting that while federal courts have the power to give federal statutes an “authoritative construct ion,” “we lack jurisdiction authoritatively to construe state legislation”) ; V irginia Soc’y for Human Life, Inc. v. Caldwell , 152 F.3d 268, 270 (4th Cir. 1988) ( same)

. Th e distinction is an important one. When a state statute has unconstitutional applications and has not been given a narrowing construction by the state court that saves it from those applications, federal courts “ must be careful not to encroach upon the domain of a state legislature by rewriting a law to conform it to constitutional requirements.” Legend Night Club v. Miller , 637 F.3d 2 91, 301 (4th Cir. 2011) (internal quotation marks and alteration omitted); see also Ayotte , 546 U.S. at 329. “[N]arrowing constructions are only appropriate when the text or other source of congressional intent identifies a clear line that a court could draw.” Legend , 637 F.3d at 301 (internal quotations marks omitted);

see also Moose , 710 F.3d at 166

.16 In Moose , the court held that it could not adopt a narrowing construction to save Virginia’s anti

- sodomy statute under the principles set forth in Ayotte because it would require undue “meddling” into state legislative matters

. Moose , 710 F.3d at 166. This was because the anti

- sodomy provision , as passed by the Virginia General Assembly, “applie [d] without limits , ” “ d [id] not mention the word ‘ minor , ’ nor . . . remotely suggest that the regulation of sexual relations between adults an d children had anything to do with its
enactment. ” Id. at 165. In these circumstances, the court held, “a judicial reformation of the anti

- sodomy pro vision to criminalize MacDonald’ s conduct

. . . , and to do so in harmony with Lawrence , require [d] a drastic action that r [an] afoul of the Supreme Court's decision in Ayotte

. ” M oose , 710 F.3d at 165

- 66. However, p rior to Moose , the Supreme Court of Virginia had only considered as applied challenges to the anti

- sodomy statute, and held, based upon it s view of the scope of the opinion in Lawrence , that the Due Process Clause did not prohibit the application of the anti

- sodomy statute s to the conduct in that case, which was only between adults and minors

. See Toghill , 768 S.E.2d at 679 ; M cDonald , 645 S.E.2d at 924. I t was of the view that Lawrence had only invalidated the convictions of two consenting adults who had engaged in the criminalized conduct in private , as violative of their due process rights

. See id. Thus, the Supreme Court of Virginia n ever directly confronted t he question of whether it should adopt an authoritative, narrowing construction of the anti

- sodomy statute, under its jurisprudence , in order to judicially remedy the statute and save it in its constitutional applications. Simply put, there had been no need to do so in the as

- applied challenge before it

.17 Th at circumstance

— that is, the need to examine a remedy to the statute to preserve its constitutional application

— had changed when the Supreme Court of Virginia heard Tog h ill’s a ppeal. Although the Supreme Court of Virginia stood by its earlier view that
Lawrence did not prohibit application of the anti

- sodomy statute to conduct between adults and minors in the first instance, see Toghill , 768 S.E.2d at 679, 7 it also explicitly c onsidered the facial challenge to § 18.2

- 361. In doing so, the court narrowed the anti

- sodomy statute under its own jurisprudence to authoritatively remedy any constitutional infirmity and prohibit convictions that might run afoul of the Due Process Clause as interpreted by the Supreme Court in Lawrence , see T oghill , 768 S.E.2d at 681. 8 This was plainly within its power and prerogative.

7 We note that, h ad the Supreme Court of Virginia stopped there, it likely would have set up an into lerable conflict between our court and theirs, at least insofar as we differed as to the scope of the Lawrence decision and the question of whether Virginia’s convictions for sodomy and solicitation of sodomy of minors under Va. Code § § 18.2

- 361 (A) and 18. 2

- 29 could survive that decision. Because t he Supreme Court of Virginia was not bound by the decision in Moose , it would continue to a ffirm such convictions against due process challenges if the victims were minors

— as well as when the criminal conduct inv olved prostitution, public sodomy, or victims who could not or did not consent

— only to have us grant habeas relief to the same Virginia prisoners based upon our contrary view, unless and until Moose was overruled by an en banc court in this circuit or the United States Supreme Court. F ortunately , and perhaps in recognition of this inevitable conflict, the Supreme Court of Virginia did not stop there.

8 Although the court clearly considered the Ayotte factors that had governed our review in Moose , see Toghill , 768 S.E.2d at 681

- 82, Toghill does not dispute that the Ayotte framework only applies when federal courts are tasked with determining whether a state statute, which has constitutional and unconstitutional applications, should be totally invalidate d.18 Federal courts “ have long respected the State Supreme Courts’ ability to narrow
stat e statutes so as to limit the statute’s scope to unprotected conduct.” Osborne v. Ohio , 495 U.S. 103, 120 (1990). This is because “[o] nly [state] courts can supply the requisite construction ” of a state statute. Gooding v. Wilson, 405 U.S. 5 18 , 520 (197 2) ; Thirty

- Seven (37) Photographs , 402 U.S. at 369; Caldwell , 152 F.3d at 270. And w hen “construing [ the state law], we are bound by the construction given to it by [the state] court.” R.A.V. v. City of St. Paul, Minn. , 505 U.S. 377, 381 (1992) ; see also Posadas de P .R. Assoc s . v. Tourism Co. , 478 U.S. 328, 339 (1986) (“[I]n reviewing the facial constitutionality of [a] challenged [state] statute [or] regulation[], we must abide by the narrowing constructions announced by the [state] Court.”); Mullaney v. Wilb u r , 421 U.S. 684, 691 (1975) (“This Court . . . repeatedly has held that state courts are the ultimate expositors of state law, and that we are bound by their constructions except in extreme circumstances not present here.” (internal citations omitted ))

. 9

9 Indeed, in some circumstances, the Supreme Court has indicated that the better course is to seek an authoritative, narrowing construction from the state supreme court before ruling upon the constitutionality of a state statute that has constitutiona l and unconstitutional applications. See Virginia v. Am erican Booksellers Ass’n, Inc. , 484 U.S. 383, 395

- 96 (1988) (holding that “where i t appears the State will decline to defend a statute if it is read one way and where the nature and substance of plain tiffs’ constitutional challenge is drastically altered if the statute is read another way, it is essential that we have the benefit of the law’s authoritative construction from the Virginia Supreme Court” via the c ertification procedure ) ; see also Bellotti v. Baird , 428 U.S. 132, 145

- 51 (1976) ( remanding with instructions to certify questions pertaining to construction of a state statute that was susceptible to multiple interpretations, one of which would avoid or substantially modify a federal constitution al challenge); Virginia Soc ’y for Human Life, Inc. v. Caldwell , 152 F.3d 268, 269 (4th Cir. 1998) (noting the district court’s decision to seek certification prior to confronting the constitutional question at hand)

.19 Thus, where, the state court has provided a n authoritative, narrowing construction of a state statute, the “federal court must . . . consider [the] limiting construction that a state court . . . has proffered” when evaluating a facial challenge. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc. , 455 U.S. 489, 494 n.5 (1982) (internal quotation marks omitted) ; see also Martin v. Lloyd , 700 F.3d 132, 136 (4th Cir. 2012) (same). Moreover,

we are bound to accept the state supreme cour t’s construction “ as if written into the statutes themselves.” Hebert v. Louisiana , 272 U.S. 312, 317 (1926). The state court’s

“ construction fixes the meaning of the statute ,” “ put[ting] the[] words in the statute as definiti v ely as i f i t had been so am ended by the legislature.” Winters v. New York , 333 U.S. 507, 514 (1948) (citing Hebert , 272 U.S. at 317 )

. The Supreme Court of Virginia has now done just that. It has a dopted an authoritative, narrowing c onstruction of the anti

- sodomy statute that save s it from total invalidation, by limiting it to its constitutional applications under Lawrence

— “sodomy involving children, forcible sodomy, prostitution involving sodomy and sodomy in public.” Toghill , 768 S.E.2d at 681. And t his interpretation by the Supreme Court of Virginia “ puts these words in the statute as definitively as if it had been so amended by the legislature

. ” Winters , 333 U.S. at 514. Nor does it matter for purposes of this case that the narrowing construction occurred after this court in Moose declared the anti

- sodomy statute to be facially invalid under
Lawrence and Ayotte

. As noted above, the court in Moose did not have the benefit of the Supreme Court of Virginia’s authoritative , narrowing construction at the time that it considered the remedy available under Ayotte. Moreover, t he United States Supreme Court20 “ha[s] repeatedly held that a state court’s interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey , 546 U.S. 74, 76 (2005) (per curiam) ; see also Maynard v. Cartwright , 486 U.S. 356 , 365 (1988) (noting that the significance of state court decisions restricting the application of a statute after it had been declared unconstitutional ly vague by a federal circuit court of appeals is “ a matter for the state courts to decide in the first instance” ); cf. Erznoznik v. City of Jacksonville , 422 U.S. 205, 215

- 17 (1975) (declining to save a city ordinance from its unconstituti onal scope and invalidating the ordinance on its face where “the state courts were presented with the [constitutional] challenge [and] made no effort to restrict its application” to unprotected conduct, and , therefore, “there [was] no reason to assume that the ordinance can or will be decisively narrowed” by the state court)

. In addition, the “statute as construed may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendan[ t ].” Osborne v. Ohio , 495 U.S. 103, 115 (1990) (internal quotation marks omitted). At the time of Toghill’s conviction, Va. Code § 18.2

- 361 (A) plainly prohibited sodomy between an adult and a minor, and § 18.2

- 374.3( C )(3) plainly prohibited an adult from soliciting sodo my from a minor via communications systems, including computer s and the internet. Clearly, Toghill was on notice that his actions violated state law. Moreover, Lawrence had made clear its holding did not apply to cases involving “minors,” “persons who mi ght be injured or coerced or who are situated in relationships where consent might not easily be refused,” or “public conduct or prostitution.” Lawrence , 539 U.S. at 578.21 To conclude, this panel is informed by the decision in Moose . But we , unlike the panel in Moose , are also bound by the Supreme Court of Virginia’s post

- Moose authoritative , narrowing construction of the anti

- sodomy statute, and we are now limited to considering whether the statute, as construed by the state court, is still facially unconstitutional. See R.A.V. , 505 U.S. at 3 8 1 ; see also Hebert , 272 U.S. at 317 (noting that, where a state supreme court has construed the statute, “[a]ll that [is] open in this Court under the due process clause is whether the State had power to impose the penalty fixed by the statutes as thus construed”) . Clearly, Virginia’s anti

- sodomy statute, a s authoritatively construed b y the Supreme Court of Virginia, does not criminalize conduct that Lawrence declared to be prot ected by the liberty int erests guaranteed by the Due Process Clause , and it is, therefore, not facially unconstitutional. And w e cannot say that the Supreme Court of Virginia’s decision to adopt this narrowing construction, under its jurisprudence, was contrary to or an unreason able application of applicable Supreme Court precedent. 10
B. Second, t here are also important differences between the statutes of conviction involved in Moose and the statute of conviction involved i n this case.

10 In this regard, we note that the Supreme Court of Georgia, in Watson v. State , 750 S.E.2d 143 (Ga. 2013) , issued a similar decision to limit a solicitation statute after our decision was issued in Moose . I t reaffirm ed its pre - Lawrence holding that the Georg ia sodomy statute is constitutional under the Due Process Clause when “construed in a limited manner, so as not to criminalize ‘private, unforced, non

- commercial acts of sexual intimacy between persons legally able to consent,’” id. at 145 (quoting Powell v. State , 510 S.E.2d 18, 26 (Ga. 1998)) , and extend ed th at holding to the defendant’s First Amendment challenge to the solicitation

- of

- sodomy statute, see id. at 146 & n.2.22 “Under Code § 18.2

- 374.3(C), a defendant is guilty of illegally using a communication system if he contacts ‘ any person he knows or has reason to believe is a child less than 15 years of age’ with lascivious intent for the purpose of soliciting that person’s involvement in any of several sexual encounters

. ” Grafmuller v. Commonwealth , 698 S.E.2d 276, 278 (Va. Ct. App. 2010) (quoting Va. Code § 18.2

- 374.3(C) ) . “ [T] he General Assembly, by enacting this statute, clearly intended to protect children from people who would take advantage of them be fore the perpetrator could commit a sexual assault on an actual child.” Id. at 280; see also Colbert v. Commonwealth , 624 S.E.2d 108, 112

- 13 (Va. Ct. App. 2006) (noting th at the provisions of what is now Code § 18.2

- 374.3(C) fall expressly with in the legi slature’s purpose of “protecting children from sex offenders”)

. As noted above, the Moose court felt constrained by the principles of Ayotte from providing a limiting construction to Va. Code § 18.2

- 361 (A) because the statute, on its face, pro hibited sodomy between consenting adults “without limits , ” “d[id] not mention the word ‘minor,’ nor . . . remotely suggest that the regulation of sexual relations between adults and children had anything to do with its enactment

. ” Moore , 710 F.3d at 165

. Not

so with Va. Code § 18.2

- 374.3 (C)

. T here can be no doubt that the Virginia General Assembly ’s intent, when it enacted this and other minor

- specific statutes, was to criminalize the sexual exploitation of children by adults. Indeed, the Moose decision itself referred to such statute s , implicitly acknowledging the distinction between them and the anti

- sodomy statute. See Moose , 710 F.3d at 165 & n.16 (noting that, unlike the anti

- sodomy statute, which had no age restrictions, the Virginia General Assembly had explicitly made it “a felony in Virginia for an adult to solicit sodomy23 from ‘any child under the age of 15 years ’ ” in Va. Code § 18.2

- 370( A)); id. at 167 (noting that “[a] consequence of the Ayotte decision could be that a statute closely related to the anti

- sodomy provision

— for example, Va. Code section 18.2

- 361(B), which criminalizes incestuous sodomy involving both minors and adults

— might well survive review under
Lawrence , as may that part of section 18.2

- 361(A) that outlaws bestiality”) ; see also Sadler v. Commonwealth , 667 S.E.2d 783 , 785 ( Va. 2008) ( noting that t he purpose of Va. Code § 18.2

– 370.1 , which prohibits an adult from taking indecent liberties with a child under 18
years of age over whom the adult has a custodial or supervisory relationship , “ is to protect minors from adults who might exploit certain types of relationships” ). 11 Here, Toghill committed the crime of which he sta nds convicted. His challenge rests solely upon his claim that because we declared the anti

- sodomy statute unconstitutional in Moose , and § 18.2

- 374(C)(3) refers to “offense[s] under § 18.2

- 361 , ” he is entitled to habeas relief. Were we to accept this con torted statutory interpretation , we would effectively e viscerate the clear intent of the Virginia General Assembly t o protect children from sexual predators via the General Assembly’s minor

- specific statutes, ev en though none run afoul of the liberty interests the Supreme Court protected in Lawrence. There is simply nothing in Lawrence that restricts state legislatures from prohibiting adults from seeking or engaging in sexual acts with children, or that would r equire us to facially invalidate convictions under state statute s that were clearly enacted for that purpose

.

11 Va. Code § 18.2

- 370.1, like the statutes of conviction in Moose and Sadler, also includes “ any act constituting an offense under § 18.2

- 361” as a part of its prohibited acts

.24 Nor does the anti

- sodomy statute serve as a predicate felony for § 18.2

- 374(C)(3) , in the way that it did for the solicitation of felony offense that MacDonald was convicted of under Va. Code § 18.2

- 29

. On the contrary, Va. Code § 18.2

- 374(C)(3) is a stand

- alone statute that merely reference s the anti

- sodomy provision in its delineation of the acts (sodomy and bestiality, along with sexual interc ourse) that an adult is constitutionally prohibited from proposing to a minor via electronic communications systems. See Hassett v. Welch , 303 U.S. 303, 314 (1938) (“Where one statute adopts the particular provisions of another by specific and descriptive reference to the statute or provisions adopted, the effect is the same as though the statute or provisions adopted had been incorporated bodily into the adopting statute.” (internal quotation marks omitted)); United States v. Myers , 553 F.3d 328, 331 (4th Cir. 2009) (same); Artistic Entm’t, Inc. v. City of Warner Robins , 331 F.3d 1196, 1206 (11th Cir. 2003) (per curiam) (“Incorporation by reference is a form of legislative shorthand; the effect of an incorporation by reference is the same as if the referen ced material were set out verbatim in the referencing statute.”); id. (“We are aware of no authority to the effect that a definition incorporated by reference into another otherwise valid ordinance . . . ceases to be an operative definition just because it derives from a reference ordinance . . . that was declared unconstitutional for reasons having nothing to do with the definition.”). 12

12 Virginia’s amended statute, which was passed after our decision in Moose , makes this all the more plain . The current version now reads as follows: It is unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or25 Accordingly, we reject Toghill’s claim that Lawrence require s the i nvalidation of his conviction under § 18.2

- 374.3(C)(3) merely because it r eference s the a nti

- sodomy
statute

. And we certainly cannot say that the Supreme Court of Virginia’s decision to uphold Toghill’s conviction for computer solicitation of a minor to engage in sodomy under Va. Code § 18.2

- 374.3(C)(3) , in light of the clear legislative intent, was an unreasonable

one . V I

. For the foregoing reasons, we affirm the judgment of the district court denying Toghill’s petition for habeas relief under 28 U.S.C. § 2254

. AFFIRMED.

bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, an y person he knows or has reason to believe is a child younger than 15 years of age to knowingly and intentionally . . . [p]ropose to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any ac t constituting an offense under § 18.2

- 361

. Va. Code § 18.2

- 374.3(C)(3) (emphasis added)

. As the district court aptly noted, there is simply “ no constitutional distinction between V irginia Code § 18.2

- 374(3)(C) as it has been amended and exists at present , expressly prohibiting an adult from electronically soliciting a child to engage in ‘ an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting an offense under § 18.2

- 361, ’ from the pre

MacDonald v. Moose version of the statute which prohibited electronic solicitation of a child to engage in “ ‘ an act of sexual intercourse or any act constituting an offense under § 18.2

- 361. ’ Merely referencing § 18.2

- 361 in § 18.2

- 374.3(C) does not change the fact that the crime made illegal in § 18.2

- 374.3(C), and committed by Toghill, is a sex crime directed at children.” J.A. 95, n.1 0

.