PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSIAH JACOB DEYTON; ANDREW 

RYAN DEYTON; JONATHAN NEIL

KONIAK,

Petitioners-Appellants,

v.  No. 11-7389

ALVIN WILLIAM KELLER, JR.,

Secretary of NCDOC; LANDAR

CORPENING, Superintendent of

Foothills Correctional,

Respondents-Appellees. 

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Martin K. Reidinger, District Judge.

(1:10-cv-00127-MR-DLH; 1:10-cv-00128-MR-DLH;

1:10-cv-00129-MR-DLH)

Argued: May 15, 2012

Decided: June 15, 2012

Before WILKINSON and AGEE, Circuit Judges, and

Henry E. HUDSON, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Agee and Judge Hudson joined.
COUNSEL

ARGUED: Mary Sheehan Pollard, NORTH CAROLINA

PRISONER LEGAL SERVICES, INC., Raleigh, North Carolina, for Appellants. Clarence Joe DelForge, III, NORTH

CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North

Carolina, for Appellees. ON BRIEF: Hoang V. Lam,

NORTH CAROLINA PRISONER LEGAL SERVICES,

INC., Raleigh, North Carolina, for Appellants. Roy Cooper,

Attorney General, Raleigh, North Carolina, for Appellees.

OPINION

WILKINSON, Circuit Judge: 

Petitioners appeal from the district court’s denial of habeas

corpus relief. They contend that, at their sentencing for armed

robbery of the Sunday worship services at a North Carolina

church, the state trial judge impermissibly made references to

religion, thereby violating their rights to due process. But the

defendants’ choice to target a church during weekly services

imbued their crime with an undeniably religious character.

Crimes of this nature carry special hazards for the freedom of

all faiths to worship undisturbed. Far from being "an unreasonable application of[ ] clearly established Federal law," 28

U.S.C. § 2254(d), the trial judge’s comments reflected the distinctive harms to the community of the particular crime that

the defendants chose to commit. We therefore affirm the

denial of the petition.

I.

Petitioners Josiah Deyton, his coworker Jonathan Koniak,

and his brother Andrew Deyton formulated a plan to rob Sunday services at a church in Mitchell County, North Carolina.

On April 13, 2008, the conspirators met and cased possible

2 DEYTON v. KELLER
churches to target, ultimately choosing to rob the Ridgeview

Presbyterian Church in the belief that it would provide the

greatest chance both of success and of escape. 

Wearing ski masks and gloves, the defendants barged into

the Sunday morning worship service, carrying firearms to

intimidate the congregation and duct tape to secure submission. The men seized the parish’s weekly collection, and used

the offertory plate to amass money, keys, and other valuables

from the worshipers, amounting to $2670. Koniak bound one

parishioner with the tape, and Josiah Deyton’s gun discharged

while he was stealing a cell phone. The men threatened the

assembled congregation, warning that they would come back

to kill the churchgoers if they tried to call the police. The

three then absconded in their getaway car.

Undeterred, congregation members called the police,

reported the robbery, and provided a description of the car.

Shortly thereafter, police apprehended the robbers, finding in

their car the guns, masks, and gloves used in the crime. Police

recovered from the car a large quantity of cash and some personal property taken from members of the congregation. The

three men were arrested and subsequently confessed to robbing the church and its members.

On July 22, 2008, Josiah and Andrew Deyton pleaded

guilty to eleven counts of armed robbery and one count of

conspiracy to commit armed robbery in the Superior Court of

Mitchell County. Koniak pleaded guilty to the same charges

a month later. After Koniak’s guilty plea, Judge James L.

Baker, Jr., held a consolidated sentencing hearing for all three

defendants. During the lengthy proceeding, Judge Baker

heard from the State, from defense counsel, from members of

the congregation who had been robbed by the defendants, and

from witnesses attesting to the defendants’ good character.

Judge Baker also reviewed victim impact statements that had

been provided by other members of the church not present at

the hearing. Before imposing sentence, Judge Baker spoke at

DEYTON v. KELLER 3
length about the severity of the defendants’ crime and related

directly the words and feelings of those who were affected by

it:

I was interested in reading what the church members might have thought that should be done to you

and the church members after describing what they

went through have indicated that the experience was

a horrible experience for them. I mean even more so

than being robbed in a store or being robbed on a

street or a highway or even worse than being broken

in in their home. I mean if there’s one place in the

whole world that you ought to have the right to feel

like that for just a few minutes—for just a few minutes you can put the dangers of the world away and

that you can step to some degree of peace and solitude and serenity with some degree of safety it

would be in a church. 

I think it was very appropriate what one person

wrote that coming in God’s house using God as a

curse and to make people give up their possessions

and taking God’s money and threatening God’s people, I can’t imagine how evil these men are to have

done this. That is the feeling of one person and I

hope you realize that’s an opinion that is or a feeling

that is justified. I mean you didn’t just steal money

from people. You took God’s money. You took the

Lord’s money and those of us that believe that there

is an Almighty and that there is a being that created

this world to go in and then steal money that is being

tendered by people for the furtherance of an earthly

kingdom is just outrageous. . . . 

Gentlemen, this is just something that can’t be tolerated and your attorneys have all asked for leniency

and mercy but there are times when you have to kind

of draw the line and you have to say that there are

4 DEYTON v. KELLER
some things that just can’t be tolerated by society. I

mean you can’t just go in a church armed and tie

people up or hold them at gunpoint, threaten to kill

them and rob the collection plate and rob them while

they are in the worship service and expect that the

law is not going to come down just about as strongly

as it can on you. There is scripture that says "Vengeance is mine sayeth the Lord" but every now and

then I think the judicial system has to contribute

what it can.

Judge Baker then sentenced all three defendants to ten consecutive presumptive-range sentences of 64 to 86 months on

the armed robbery counts, and a suspended sentence of 25 to

39 months on the conspiracy charge. Petitioners took no direct

appeal of that sentence.

On August 21, 2009, following the North Carolina state

procedure for collateral attacks on criminal convictions, petitioners filed Motions for Appropriate Relief in the Superior

Court of Mitchell County, alleging, as they do here, that

Judge Baker’s comments reflected an impermissible religious

bias that infected the sentencing procedure in violation of due

process. On May 11, 2010, the state MAR court denied the

petitioners’ motion, concluding that "nothing motivated the

sentencing Judge, except for the atrocious conduct of the

defendant and his cohorts in accomplishing the crimes they

committed." On June 1, 2010, the petitioners sought certiorari

from the North Carolina Court of Appeals, which was denied

on June 17, 2010. On June 21, 2010, petitioners simultaneously filed a petition for certiorari with the North Carolina

Supreme Court and a petition for habeas corpus in the Western District of North Carolina. The federal magistrate judge

held the habeas corpus petition in abeyance pending the resolution of the state certiorari petition, which was denied on

August 26, 2010. On November 1, 2010, the magistrate judge

recommended that the habeas corpus petition be denied. On

September 27, 2011, the district court adopted the magisDEYTON v. KELLER 5
trate’s report and recommendation and issued its own memorandum and order denying the petition. This appeal followed.

II.

We review the district court’s denial of a petition for

habeas corpus de novo. Lewis v. Wheeler, 609 F.3d 291, 300

(4th Cir. 2010). Because the petitioners’ challenge stems from

comments made by the trial judge at a state sentencing proceeding, however, we must show the traditional deference

afforded to sentencing courts before concluding that there was

constitutional error warranting habeas relief. 

Federal courts have long respected the latitude allowed by

state law to state judges at sentencing. See Williams v. New

York, 337 U.S. 241, 246-47 (1949). Perhaps more than in any

other proceeding, "the court has considerable leeway and discretion in governing the conduct of a sentencing." State v.

Smith, 532 S.E.2d 773, 790 (N.C. 2000). 

The North Carolina courts have been unequivocal in their

support of this tradition, especially in a context such as that

before us here. For example, in State v. Sullivan, 151 S.E.2d

41 (N.C. 1966), the North Carolina Supreme Court held that

it would not "restrict informal remarks made by a judge at the

time of pronouncing judgment," particularly when, as in this

case, "the undisputed facts . . . , plus the defendant’s plea of

guilty . . . , justified a substantial sentence." Id. at 42. North

Carolina has been clear that whether or not a reviewing court

"approve[s] of the judge’s extended pre-sentence remarks,"

reversal is not warranted so long as "the evidence in th[e] case

justified the sentence imposed." State v. Bright, 271 S.E.2d

368, 380 (N.C. 1980).

North Carolina’s view is typical of sentencing practice generally. Comments on the severity of a crime have long been

integral to the imposition of punishment. "Courts have always

taken into consideration the harm done by the defendant in

6 DEYTON v. KELLER
imposing sentence." Payne v. Tennessee, 501 U.S. 808, 825

(1991). A sentencing judge need not merely reflect in silence

upon the gravity of the offense. The Supreme Court has recognized that "the judge’s statement to the defendant, made at

the time of sentencing, is an especially important part of the

criminal process." Rita v. United States, 551 U.S. 338, 367

(2007) (Stevens, J., concurring). Because sentencing unaccompanied by explanation is an arbitrary exercise, see United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009), "[a] public statement of th[e] reasons [for the sentence imposed] helps

provide the public with the assurance" that creates public

trust. Rita, 551 U.S. 356 (maj. op.). 

As a result, we not only show deference to sentencing

courts in general, but to the need for judges to vindicate the

public interest through statements about the particular harms

of particular crimes and the need for a particular sentence.

Consistent with those goals, the Supreme Court has limited

assignments of constitutional error under the Due Process

Clause to cases in which the challenged action is "so unduly

prejudicial that it renders the [proceeding] fundamentally

unfair." Payne, 501 U.S. at 825. This is a high bar for a

habeas petitioner to surmount. We will not allow "gossamer

possibilities of prejudice to a defendant . . . to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law." Snyder v. Massachusetts, 291 U.S. 97,

122 (1934) (Cardozo, J.), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964). 

III.

The petitioners nevertheless assert that the sentencing

judge’s comments in this case so impermissibly referenced

religious beliefs that they deprived the defendants of due process, relying principally on this court’s decision in United

States v. Bakker, 925 F.2d 728 (4th Cir. 1991). In that case,

we reversed a sentence because the district judge at sentencing announced his "personal sense of religiosity and simultaDEYTON v. KELLER 7
neously punish[ed] defendants for offending it." Id. at 740.

But the petitioners’ argument is flawed in two ways. First, it

ignores the limitations on both the scope of review and the

sources of authority placed on federal habeas analysis by the

Antiterrorism and Effective Death Penalty Act ("AEDPA"),

28 U.S.C. § 2254(d). Second, even the substance of Bakker

and the Supreme Court precedents on which that case relied

do not disqualify under AEDPA standards the sentencing

judge’s comments at issue in this case. Preserving the free

exercise of all religions permits society—through its judges—

to offer pointed condemnation of crimes that inhibit the practice of any faith.

A.

Although the restrictions on federal collateral review of

state convictions are well known, they are worth reemphasizing here. Habeas corpus review is to be conducted pursuant

to a "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the

benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24

(2002) (per curiam). Under the limitations of AEDPA, a state

court decision may only be reversed by a federal court if it is

either "contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the

Supreme Court of the United States," or "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). Bakker, by contrast, was before this court on direct

appeal from a federal conviction, a posture that allowed this

court greater latitude than collateral review of state convictions affords. It is clear that Bakker does not govern these proceedings, because, although it is plainly precedent in this

circuit, it does not represent "law as determined by the

Supreme Court of the United States." Id.

We turn therefore under AEDPA to the relevant Supreme

Court case law. While the Supreme Court has held that "the

8 DEYTON v. KELLER
sentencing process . . . must satisfy the requirements of the

Due Process Clause," Gardner v. Florida, 430 U.S. 349, 358

(1977), the Court has not set forth the sort of specific limitations on a judge’s conduct of sentencing proceedings that

would permit the federal courts to grant habeas relief in this

case. The most guidance the Court has offered is that sentencing cannot be based on "factors that are constitutionally

impermissible or totally irrelevant to the sentencing process,

such as for example the race, religion, or political affiliation

of the defendant." Zant v. Stephens, 462 U.S. 862, 885 (1983).

Although the sentencing judge in this case referred to religion

in his comments, he in no way relied upon the "religion . . .

of the defendant[s]," and so we are left to decide whether his

statements violated the more general prohibition on "factors

that are constitutionally impermissible."

That inquiry leaves us without the direction from the

Supreme Court that AEDPA demands. After all, before granting habeas relief, we must conclude not only that the sentencing judge’s comments violated due process, but also that

"fairminded jurists could [not] disagree" with that determination. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Relying on extremely general statements in Gardner and Zant

provides us with little basis for second guessing the North

Carolina courts. "[E]valuating whether a rule application was

unreasonable requires considering the rule’s specificity. The

more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Id.

Deference under AEDPA is not some hollow iteration. See

Harrington v. Richter, 131 S. Ct. 770, 786 (2011) ("If this

standard is difficult to meet, that is because it was meant to

be."). Rather, it is constitutionally and statutorily prescribed.

"Federal habeas review of state convictions frustrates both the

States’ sovereign power to punish offenders and their goodfaith attempts to honor constitutional rights." Calderon v.

Thompson, 523 U.S. 538, 555-56 (1998). Federal law therefore reserves habeas relief for "extreme malfunctions in the

DEYTON v. KELLER 9
state criminal justice systems," Jackson v. Virginia, 443 U.S.

307, 332 n.5 (1979) (Stevens, J., concurring), not close calls

that depend on contestable extensions of abstract law. The

Supreme Court has instructed that "it is not an unreasonable

application of clearly established Federal law for a state court

to decline to apply a specific legal rule that has not been

squarely established by this Court." Knowles v. Mirzayance,

129 S. Ct. 1411, 1419 (2009). This general caution has particular force where state sentencing is involved. The states bear

the primary responsibility for the punishment of criminal

offenders in our society, and federal courts risk upsetting the

careful balance of federalism by intruding casually upon their

sentencing processes. See Section II supra.

B.

With these limitations in mind, we cannot conclude that the

sentencing judge’s comments constituted an "unreasonable

application of clearly established Federal law, as determined

by the Supreme Court of the United States," 28 U.S.C.

§ 2254(d). The Supreme Court’s decision in Zant bars a sentencing judge from relying on the "religion . . . of the defendant" in determining the appropriate term of imprisonment.

Zant, 462 U.S. at 885. In Bakker, we extended that principle

to find error "when a judge impermissibly takes his own religious characteristics into account in sentencing." Bakker, 925

F.2d at 740. But this case is quite different. The petitioners

were not sentenced on account of their religion or on account

of the judge’s religion. It was their admitted crime that had a

religious component: by robbing a Sunday worship service in

a church they disrupted the ability of their fellow citizens to

freely practice their faith in peace.

The same factors that Zant prohibits considering when they

are characteristics of the criminal may in fact be important to

consider when they are characteristics of the crime. Indeed,

the Supreme Court has previously recognized the significance

of this distinction. For example, although Zant forbids sen10 DEYTON v. KELLER
tencing courts from considering "the race . . . of the defendant," Zant, 462 U.S. at 885, the Supreme Court has held that

it is constitutional for a defendant to "be more heavily punished if the victim is selected because of his race." Wisconsin

v. Mitchell, 508 U.S. 476, 484 (1993). The Court noted the

particular likelihood that such crimes will "inflict distinct

emotional harms on their victims and incite community

unrest." Id. at 488. When a defendant’s crime tears so violently at the fabric of our society, whether by racial animus

toward the victim or by disruption of the religious practice of

others, it is appropriate for a sentencing court to take that

unique harm into account. "[S]entencing must accurately

reflect the community’s attitude toward the misconduct of

which the offender has been adjudged guilty, and thereby ratify and reinforce community values." United States v. Grayson, 438 U.S. 41, 48 n.8 (1978). Indeed in Bakker we

recognized "that a sentencing court can consider the impact a

defendant’s crimes have had on a community and can vindicate that community’s interests in justice." Bakker, 925 F.3d

at 740.

The disruption of worship services has an especial effect on

the community that it was appropriate for a sentencing judge

to take into account. Ours is a society with a diverse religious

heritage that has long prized the ability of citizens of all faiths

to exercise their beliefs free from fear or intimidation.

Although the Constitution explicitly protects the right to the

free exercise of religion from state interference, the government has long taken a role in protecting citizens from private

deprivations of their constitutional rights as well. See, e.g.,

Griffin v. Breckenridge, 403 U.S. 88 (1971) (upholding federal statute criminalizing conspiracy to "injure, oppress,

threaten, or intimidate any citizen in the free exercise or

enjoyment of any right or privilege secured to him by the

Constitution or laws of the United States," id. at 98 n.4). 

Indeed the law must protect places that demand special

tranquility so that our fellow citizens can exercise their constiDEYTON v. KELLER 11
tutional rights free from fear. Religious services are particularly intimate moments regardless of the faith being observed.

The shocking nature of this crime does not depend on what

sect’s prayer was disturbed—this crime would be equally

offensive at a synagogue, mosque, or any other house of worship. Much as we afford the home a particular sanctity as "the

last citadel of the tired, the weary, and the sick," Gregory v.

Chicago, 394 U.S. 111, 125 (1969) (Black, J., concurring),

houses of worship must be refuges for those seeking guidance, peace, comfort, and religious fellowship without fear of

criminal intimidation. 

Indeed, one need not have any faith at all to appreciate the

profound shock visited by these defendants. Just as all members of society condemn racial violence regardless of their

own ethnicity, all people of good will revile the armed robbery of a religious service whether or not they share the particular creed whose practice was disrupted. Merely "because

the state wishes to protect those who do worship on Sunday

does not mean that the state means to impose religious worship on all." Gallagher v. Crown Kosher Super Market of

Mass., 366 U.S. 617, 627 (1961).

C.

We conclude that the sentencing judge’s comments afford

no warrant for the award of habeas relief.

First, the record makes clear that many of the judge’s comments did not reflect "the court’s own sense of religious propriety," Bakker, 925 F.2d at 741, but voiced the expressions

of the community through victim impact statements and testimony at sentencing. The entirety of the challenged comments

was prefaced by reference to "what the church members

might have thought," and continued to define the expressions

in terms of "what one person wrote" and "the feeling of one

person." It was not unconstitutional for the judge to have considered these statements in determining the appropriate sen12 DEYTON v. KELLER
tence, see Payne, 501 U.S. 808, and it was legitimate for the

judge to state for the record the sentiments of those parishioners that he found most compelling.

Second, to the extent that the judge adopted some of these

opinions as his own, we do not think that rises to the level of

a due process error mandating habeas relief. Judge Baker was

not expressing a personal offense at the crime so much as he

was expressing the opprobrium of the community at large. A

judge joining a general expression of dismay at a particularly

heinous offense does not amount to the kind of "reactions

based on his personal experiences that" may not be considered

at sentencing. Barclay v. Florida, 463 U.S. 939, 971 (1983)

(Stevens, J., concurring). Part of the compact that gives order

to society is that "[w]hatever power therefore individuals had

of punishing offences . . . is now vested in the magistrate

alone." 4 W. Blackstone, Commentaries on the Laws of

England 8 (1765). For the judge too is a member of the community, and "[t]he sentencing process assumes that the

[judge] will exercise judgment in light of his or her background, experiences, and values." Barclay, 463 U.S. at 970

(Stevens, J., concurring).

Taken as a whole and in their proper context, the judge’s

comments describe the unique way that robbing a church

harmed the members of the community. The robbery of, say,

a bank or convenience store is bad enough. But the intentional

selection of a church as a target and of worship services as the

time of attack merits special condemnation because it is

equally an assault on religious liberty as it is on physical

safety. It would be odd indeed if the armed robbery of worshipers and violent threats to parishioners did not elicit strong

condemnation at sentencing. But the judge, as noted, nowhere

mentioned the religious beliefs or lack thereof of the defendants. He expressed no preference for one sect over another.

He mentioned no specific tenets of faith that might have been

offended. To the extent that the judge quoted from the Bible,

there is, as the MAR court found, no credible argument that

DEYTON v. KELLER 13
he impermissibly rested the chosen term of imprisonment on

scripture and not on the North Carolina General Statutes.

The petitioners allege that "the judge sentenced these

young men as harshly as he did because they chose to rob a

church, rather than . . . some other secular entity." Appellant’s

Br. at 17-18. Be that as it may, no Supreme Court case comes

close to holding that criminal harms visited upon religious

congregations may not be the subject of stern and special disapproval from the bench. The various state and federal courts

that have reviewed this case are unanimous in their conclusion that the sentencing judge’s comments represented that

strong disapprobation, and nothing more. As the state MAR

court found, "nothing motivated the sentencing Judge, except

for the atrocious conduct of the defendant and his cohorts."

The federal magistrate concluded that the "offense conduct

was especially serious because it involved victimizing people

at gunpoint in a place where, ordinarily, they would feel safe."

And the district court ruling appealed here was clear that the

sentence was only "vindicating the community’s interest in

justice" for "behavior . . . exceeding all acceptable social

boundaries." To this unanimous chorus we add our voice. The

sensitivity of the site and the vulnerability of those who worshipped there played a critical part in petitioners’ planning of

the crime, and it was no violation of due process for these

same considerations to play a critical part in petitioners’ punishment.

The judgment of the district court is therefore

AFFIRMED.

14 DEYTON v. KELLER