United States Court of Appeals

For the Eighth Circuit

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No. 11-3088

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David L. Meador

lllllllllllllllllllllPetitioner - Appellant

v.

Pat Branson

lllllllllllllllllllllRespondent - Appellee

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 Appeal from United States District Court 

for the District of North Dakota - Bismarck

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 Submitted: June 12, 2012

 Filed: August 16, 2012

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Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

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MELLOY, Circuit Judge.

David Meador appeals from the district court's denial of his petition for a writ 1

of habeas corpus under the Antiterrorism and Effective Death Penalty Act (AEDPA),

28 U.S.C. § 2254. He argues that the decision of the North Dakota Supreme Court,

The Honorable Daniel E. Hovland, United States DistrictJudge or the District 1

of North Dakota.
interpreting the state'ssex offender registration statute to apply to sex offenders even

when they have no permanent residential or mailing address, is an unforeseen and

retroactive expansion of statutory language. We affirm the district court's denial of

that claim, holding that the state's interpretation of its statute as applied to Meador is

not a constitutional violation sufficient to meet the high standards for success under

AEDPA.

I

In 1994, David Meador was convicted of sex crimes in Kentucky. Because of

this conviction, when Meador moved to North Dakota in 2008, he was required to

register as a sex offender pursuant to N.D. Cent. Code. Ann. § 12.1-32-15(2). In

accordance with this requirement, Meador registered with the Valley City Police

Department (VCPD) on August 9, 2008, listing his residence as a gas station parking

lot where he was living in his truck. However, on August 14, the police evicted

Meador from the parking lot.

Between the nights of August 14 and August 20, Meador did not formally

register his location. The night of August 14, Meador went to a local hospital to

address some breathing problems. The next day, he drove to Chataqua City Park in

Valley City, but the VCPD told him to leave. Meador then went to a trailer park in

Valley City, where he stayed the nights of August 15 and 16. On August 17, Meador

left the trailer park and stayed on city property in the northwest part of Valley City. 

During the three-day period between August 15 and 17, Meador was in contact with

the VCPD, telling them where he was spending the night and that he was looking for

a more permanent place to stay. On August 17, an officer at the VCPD suggested he

stay nearby at Lake Ashtabula.

Meador spent the night near Lake Ashtabula on August 18 and 19. On August

19, he called the VCPD and the North Dakota Attorney General's office and told both

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that he did not have a place to stay. He also asked how to register as a sex offender

under his particular circumstances. An officer at the VCPD told Meador that he

should let police know more or less where he wasliving. On August 20, Meador sent

a notification to the county sheriff that he was moving to Tower City, North Dakota. 

On August 22, Meador properly registered in that county.

Despite this, on August 20, 2008, North Dakota filed a criminal complaint

against Meador, charging him with failure to comply with registration requirements

in violation of N.D. Cent. Code § 12.1-32-15(7), a class C felony. The statute

requires that, "upon a change of address, the individual required to register shall also

register within three days at the law enforcement agency having local jurisdiction of

the new place of residence, school, or employment." A jury found Meador guilty of

this charge. The trial court then sentenced Meador to five years' imprisonment, plus

two years' supervised release. Meador appealed his conviction and sentence to the

North Dakota Supreme Court, arguing, inter alia, that the state district court erred and

violated his due process rights in interpreting § 12.1-32-15(7) as requiring him to

register within three days even though he had not obtained a residence. The state

supreme court denied Meador's claims, and held that "[t]he plain language of the

statute requires an individual to register within three days of a change of address."

State v. Meador, 785 N.W.2d 886, 891 (N.D. 2010).

Following the state supreme court decision, Meador filed a timely pro se

petition for relief under 28 U.S.C. § 2254 in federal court. His petition alleged

several errors, including an ex post facto violation and a claim that "the trial court

abused its discretion or authority in denying a motion to dismiss, where, the appellant

did not move to a new residence for three days under N.D.C.C. 12.1-32-15(7)

(2007)." Meador also filed a memorandum supporting position, which included the

following question: "Whether the petitioner was denied due process of law by the

State's attorney having changed the meaning of N.D.C.C. § 12.1-32-15(7) to include

persons who have no residence to register?"

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On August 23, 2011, a Magistrate Judge filed a Report and Recommendation. 

It recommended ordering Meador's petition be amended to include a due process

claim based on an unexpected judicial expansion of statutory language. It then

recommended denying Meador's claims and dismissing his petition, but granting a

certificate of appealability on Meador's due process claim. Both parties objected to

the Report and Recommendation, and the U.S. District Court adopted it, denying

Meador's claims but granting the certificate of appealability on the amended claim.

II

We must first address the issue of whether Meador's claim is properly before

this court. Under AEDPA, a federal court may not grant a writ of habeas corpus

unless the petitioner has exhausted available state remedies. 28 U.S.C.

§ 2254(b)(1)(A). The government argues that we should not consider Meador's

habeas claim because he failed to exhaust the issue of whether the state's

interpretation of § 12.1-32-15(7) was an unforeseeable and retroactive expansion of

narrow and precise statutory language. To exhaust a claim in state court, a habeas

petitioner "must show that he either made a fair presentation of his claims to the state

courts or that he has no other presently available state remedies to pursue." Gentry

v. Lansdown, 175 F.3d 1082, 1083 (8th Cir. 1999). 

Here, Meador presented to the North Dakota Supreme Court the question of

whether his conviction was a violation of his "substantial due process right to fair

notice." That court characterized this argument as asserting that "the statute does not

require a sexual offender [to] locate a new address within three days, but requires an

offender to register a new address within three days of obtaining a new residence."

Meador, 785 N.W.2d at 891. Meador also presented the facts of his case, which

supported his argument that the state improperly required him to register an address

when he was a transient.

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In response, the North Dakota Supreme Court held:

The plain language ofthe statute requires an individual to register within

three days of a change of address. Meador requested the jury

instructions include language from State v. Rubey, 2000 ND 119,

¶¶ 18–19, 611 N.W.2d 888, in which a majority of this Court held the

word "address" under a prior version of the statute included mailing and

residential addresses, and he does not argue that a different

interpretation applies under the current version of the statute. 

Furthermore, Meador did not argue the statute is unconstitutionally

vague. See Santos v. State, 284 Ga. 514, 668 S.E.2d 676 (2008)

(registration statute is unconstitutionally vague asto homeless offenders

because it does not provide sufficient notice of how they can comply

with the registration requirement). We conclude that Meador's argument

is without merit and the district court did not abuse its discretion by

denying his motion to dismiss.

Id. Thus, the state supreme court ruled on the merits that the "plain language" of

§ 12.1-32-15(7) and Rubey required Meador to register even though he wastransient,

and that he was on notice of this requirement. Moreover, the court's assertion that

Meador did not raise a vagueness claim appears to be referring to a claim that he did

not know how to register as a transient, rather than the claim he raises here, which is

that the state courts interpreted the statute in an unforeseeable and retroactive manner. 

Although Meador's argument—and the state's treatment of it—might not have been

asfully developed asit could have been, we find that it wassufficient to fairly present

his claim to the North Dakota state courts.

The state also argues that we should not consider Meador's AEPDA petition

because his constitutional claim of an unforeseen and retroactive expansion was not

included in his petition to the federal district court. Ordinarily, a federal district court

"should not grant habeas relief to a petitioner based upon a legal theory that involves

an entirely different analysis and legal standards than the theory actually alleged" in

the petition to that court. Frey v. Schuetzle, 78 F.3d 359, 361 (8th Cir. 1996).

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However, we relax these requirements where a petitioner represents himself pro se. 

Id. ("We note that as a general rule a pro se habeas petition must be given a liberal

construction and that such a petitioner is not required to identify specific legal

theories or offer case citations in order to be entitled to relief.").

Here, while Meador may have presented his constitutional challenge to the

North Dakota sex offender registration statute somewhat inartfully, it is nevertheless

sufficiently presented to the district court. In Meador's habeas petition, he presented

the following question: whether "the trial court abused its discretion or authority in

denying a motion to dismiss, where, the appellant did not move to a new residence

for three days under N.D.C.C. 12.1-32-15(7) (2007)." In the memorandum

accompanying his petition, he also presents an additional question to the court:

"Whether the petitioner was denied due process of law by the State's Attorney having

changed the meaning of N.D.C.C. 12.1-32-15(7) to include persons who have no

residence to register?"

The facts Meador presented in both his brief and petition support the

unforeseeable and retroactive judicial expansion issue that the district court

considered. Meador argues that he did not register as a sex offender over the period

in question because he was never in one place for longer than three days and the

statute does not require registration under those circumstances. Because Meador set

forth the relevant facts and outlined the alleged constitutional violation in his brief

to the North Dakota Supreme Court and in his petition to the United States District

Court for the District of North Dakota the district court did not err in addressing that

issue on the merits.

III

We next turn to a discussion of Meador's constitutional claim on the merits. 

We review de novo a district court's denial of a writ of habeas corpus. Owen v.

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Weber, 646 F.3d 1105, 1106 (8th Cir. 2011). A federal court may only grant a habeas

petition if the decision that resulted in the state conviction "was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). 

Under this standard, "even a strong case for relief does not mean the state court's

contrary conclusion was unreasonable." Harrington v. Richter, 131 S. Ct. 770, 786

(2011). Rather, the petitioner "must 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 of

fairminded disagreement." Id. at 786–87.

The Supreme Court has held that the due process rights of a criminal defendant

may be violated "not only from vague statutory language but also from an

unforeseeable and retroactive judicial expansion of narrow and precise statutory

language." Bouie v. City of Columbia, 378 U.S. 347, 352 (1964). Such a decision

violates due process because "it lulls the potential defendant into a false sense of

security, giving him no reason even to suspect that conduct clearly outside the scope

of the statute as written will be retroactively brought within it by an act of judicial

construction." Id. In Bouie, the Supreme Court found such a violation where the

Supreme Court of South Carolina construed a criminal trespass statute to apply both

when entry was prohibited in the first place, as well as when a person refused to leave

after an initially lawful entry. The Court noted that, to obtain a conviction in that

case, the state court had reversed ninety-five years of cases that "uniformly

emphasized the notice-before-entry requirement, and gave notthe slightest indication

that that requirement could be satisfied by proof of the different act of remaining on

the land after being told to leave." Id. at 356–57.

Meador argues that, like in Bouie, the North Dakota Supreme Court's

interpretation of § 12.1-32-15(7) was an unforeseeable and retroactive expansion of

statutory language. In relevant part, this statute requires that "[u]pon a change of

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address, the individual required to register shall also register within three days at the

law enforcement agency having local jurisdiction of the new place of residence,

school, or employment." Meador assertsthat thisstatute does not require him, as a sex

offender who remains in close contact with state authorities but is transient and does

not have a mailing address, to register.

For support, Meador relies primarily on State v. Rubey, 611 N.W.2d 888 (N.D.

2000). There, the North Dakota Supreme Court considered the case of a sex offender

who did not register while he was living in his truck and had no permanent address

except for a post office box. The court affirmed Rubey's conviction, and held:

If an offender registered at a particular residing address permanently

abandonsthe address, the offender must register the subsequentresiding

address if there is one. However, if the offender, as in this case, has no

new residing address, but has a new mailing address, the offender must

notify authorities of the new address.

Id. at 892 (emphasis added). As Meador argues, Rubey seems to indicate that the sex

offender registration statute requires registration of a person's permanent "residing

address" or his mailing address. Like Meador, the defendant in Rubey did not have

a permanent residing address, but rather lived as a transient, out of his vehicle. In that

case, though, because he had a P.O. box, he had some permanent address and

therefore was required to register. Here, Meador had no such address. 

To supplement his argument about Rubey, Meador further argues thatrequiring

a transient sex offender to register is illogical for two reasons. First, on the sex

offender registration form, there is no place to note a transient address. Second, if

Meador had registered any of his addresses where he lived during this period, he

could not have done so until he had left them with no plans to return, since he stayed

at each for fewer than three days. Rather than providing the state with accurate

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information of his whereabouts, this would have confused the issue, thus frustrating

the purposes of the statute.

The state makes several arguments in response. First, it emphasizes the

purpose of the sex offender registration statute. The North Dakota Supreme Court

has repeatedly pointed to the registration statute's purpose of keeping "better track of

sex offenders and those who commit crimes against children." Rubey, 611 N.W.2d

at 891;see also State v. McAvoy, 767 N.W.2d 874, 877 (N.D. 2009); State v. Steiger,

644 N.W.2d 187, 189 (N.D. 2002). Also important is preventing sex offenders from

circumventing the registration requirements:

Allowing sex offenders to circumvent to registration process by

physically leaving one residence without technically acquiring a new

residence would permit the offender to "slip through the cracks,"

disappear from law enforcement view and thus thwart the purpose for

which this law was enacted.

Rubey, 611 N.W.2d at 892. The state argues that if the North Dakota Supreme Court

had interpreted the statute to only require registration when a sex offender has a

"legal residence," it would be easy to evade the requirements of the statute and thus

frustrate its purpose. In this vein, the state also argues that the statement in Rubey,

indicating that registration is only required if a sex offender has a legal residence or

a mailing address, is dicta and therefore is not necessarily an accurate statement of

North Dakota law before this case. In Rubey, the defendant did have a mailing

address, so unlike in Meador's case, the court did not consider what the statute

required of sex offenders who had no permanent address.

In considering this case, we first note that Meador'sinterpretation of § 12.1-32-

15(7) has some force. The Rubey case does seem to strongly indicate that a sex

offender is not required to register his residence address when he is a transient. 

Furthermore, Meador's argument that his registration would have frustrated the

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purpose of the sex offender statute by providing outdated information about his

whereabouts is well-taken and is a strong counter-argument to the state's emphasis

on the statute's purpose of keeping better track of sex offenders.

However, our task is not to interpret the North Dakota statute in the first

instance. The issue we must decide under AEDPA and Bouie is not whether we agree

or disagree with the state court's interpretation of its own statute. As has long been

the case, "the elementary rule is that [federal courts accept] the interpretation of the

statute of a state affixed to it by the court of the last resort thereof." Missouri, K. &

T. Ry. Co. v. McCann, 174 U.S. 580, 586 (1899). We may therefore only consider

whether the state court's interpretation was such an unforeseen and retroactive

expansion of narrow and precise statutory language, Bouie, 378 U.S. at 352, that it

"resulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United

States." 28 U.S.C. § 2254(d)(1). Meador's argument, while perhaps convincing as

a matter of statutory interpretation, is not sufficiently definitive to meet these two

standards. In particular, the state's argument that the North Dakota Supreme Court

did not confront the same facts in Rubey as it was presented with in this case

indicates that there is no prior uniform interpretation contrary to the state's present

interpretation, as AEDPA and Bouie require.

Accordingly, we affirm the decision of the district court denying Meador's

claim for relief under AEDPA.

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