                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2195
                        ___________________________

                                   Adam Musser

                      lllllllllllllllllllllPetitioner - Appellant

                                          v.

                                   Terry Mapes

                      lllllllllllllllllllllRespondent - Appellee
                                      ____________

                    Appeal from United States District Court
                 for the Southern District of Iowa – Des Moines
                                 ____________

                            Submitted: April 11, 2013
                              Filed: June 24, 2013
                                ____________

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
                         ____________

MELLOY, Circuit Judge.

      Adam Musser was convicted in four separate trials of criminally transmitting
the human immunodeficiency virus (HIV) in violation of Iowa Code § 709C.1.
Following the same number of unsuccessful appeals before the Iowa Supreme Court,
Musser petitioned for habeas relief pursuant to 28 U.S.C. § 2254. The district court1
denied the petition, and Musser appealed. For the reasons set forth below, we affirm.

                                   I. Background

                                      A. Facts

       In 2002 and 2003, Musser had unprotected sexual intercourse with four
women. At that time, Musser knew himself to be HIV-positive and was receiving
treatment for the condition, but either withheld or misrepresented his HIV status to
the women.2 Musser was subsequently convicted in four separate trials of violating
Iowa Code § 709C.1 ("the statute"), which provides as follows: "A person commits
criminal transmission of [HIV] if the person, knowing that the person's [HIV] status
is positive . . . [e]ngages in intimate contact with another person." Iowa Code
§ 709C.1(1)(a). The statute defines "intimate contact" as "the intentional exposure
of the body of one person to a bodily fluid of another person in a manner that could
result in the transmission of [HIV]." Id. § 709C.1(2)(b). It is not an element of the
offense that a victim actually become infected with HIV. Id. § 709C.1(4).

       In separate direct appeals, the Iowa Supreme Court affirmed each of Musser's
convictions and fifty-year aggregate prison sentence. See State v. Musser, 721
N.W.2d 734, 741 & n.3 (Iowa 2006). Musser subsequently petitioned the district
court for habeas relief pursuant to 28 U.S.C. § 2254. Musser did not dispute the facts
underlying his convictions, but claimed that the convictions and representation by his


      1
      The Honorable James E. Gritzner, Chief United States District Judge for the
Southern District of Iowa.
      2
        Musser sometimes used a condom, but in at least one instance his condom
failed. Three of the four women were confirmed as having not been infected with
HIV, and the record does not indicate the HIV status of Musser's fourth victim.

                                         -2-
counsel were unconstitutional for various reasons. The district court denied Musser's
petition on all grounds, Musser v. Mapes, 854 F. Supp. 2d 652 (S.D. Iowa 2012), and
this Court granted a certificate of appealability limited to "the issue of whether [the
statute] violated the due process clause because it is vague and overbroad."

       On appeal, Musser renews his arguments regarding the statute's alleged
unconstitutional vagueness and overbreadth. Specifically, Musser claims that the
statute does not provide fair notice of what acts are prohibited because the phrases
"intimate contact" and "in a manner that could result in the transmission of [HIV]" are
vague and sweep too broadly. See Iowa Code § 709C.1(1)(a), (2)(b). Musser argues
that the statute unconstitutionally prohibits certain activities—e.g., accidentally
bleeding on another individual after an automobile accident or during a sporting
competition, kissing, and breast-feeding—where "there is reasonable scientific debate
as to whether the mode of transmission actually spreads [HIV]" because "all the state
needs to do is find an expert to say that such contact 'could' transmit [HIV]."
(Emphases added.)

                                B. Standard of Review

       "When considering the district court's denial of a habeas petition, we review
the district court's findings of fact for clear error and its conclusions of law de novo."
Middleton v. Roper, 455 F.3d 838, 845 (8th Cir. 2006) (citation and internal
quotation marks omitted). "When a claim has been adjudicated on the merits in state
court, habeas relief is warranted only if the state court proceeding resulted in (1) 'a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,' or (2) 'a decision that
was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.'" Bucklew v. Luebbers, 436 F.3d 1010,
1015–16 (8th Cir. 2006) (quoting 28 U.S.C. § 2254(d)(1), (2)). A decision is
"contrary to" federal law "if the state court arrives at a conclusion opposite to that

                                           -3-
reached by [the Supreme] Court on a question of law or if the state court decides a
case differently than [the Supreme] Court has on a set of materially indistinguishable
facts." Williams v. Taylor, 529 U.S. 362, 412–13 (2000). A decision is "an
unreasonable application" of federal law "if the state court identifies the correct
governing legal principle from [the Supreme] Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case." Id. at 413. "[I]t is not
enough for [this Court] to conclude that, in our independent judgment, we would have
applied federal law differently from the state court; the state court's application must
have been objectively unreasonable." Rousan v. Roper, 436 F.3d 951, 956 (8th Cir.
2006).

                       II. Musser's Challenges to the Statute

       A litigant may bring a facial challenge to invalidate an imprecise law under two
doctrines: vagueness and overbreadth. City of Chicago v. Morales, 527 U.S. 41, 52
(1999). Subject to a limited number of exceptions, however, "a person to whom a
statute may constitutionally be applied will not be heard to challenge that statute on
the ground that it may conceivably be applied unconstitutionally to others, in other
situations not before the Court." Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973).

      Musser argues that Iowa Code § 709C.1 is invalid for being unconstitutionally
vague and overbroad. We address each of his arguments in turn below.

                                    A. Vagueness

      Under the void-for-vagueness doctrine, a law is unconstitutional if it "fails to
provide a person of ordinary intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously discriminatory enforcement."
United States v. Williams, 553 U.S. 285, 304 (2008); see United States v. Nat'l Dairy
Prods. Corp., 372 U.S. 29, 32–33 (1963) (“Void for vagueness simply means that

                                          -4-
criminal responsibility should not attach where one could not reasonably understand
that his contemplated conduct is proscribed.”). Vagueness is generally not one of the
limited exceptions mentioned above, however, see United States v. Mazurie, 419 U.S.
544, 550 (1975), and thus for Musser to have standing to challenge the statute as
vague, the statute must be unconstitutional as applied to his specific conduct at issue.
See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495
(1982) ("A plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others.").

       For purposes of this appeal, Musser does not dispute the facts underlying his
convictions—Musser admits to having unprotected sexual intercourse with four
women when he knew himself to be HIV-positive and without informing the women
of his condition. And for the reasons stated by the Iowa Supreme Court and reiterated
by the district court, Musser had fair notice that unprotected sexual intercourse
constituted "intimate contact" within the meaning of the statute. Musser, 721 N.W.2d
at 745 (citing State v. Keene, 629 N.W.2d 360, 365–66 (Iowa 2001) ("[A]ny
reasonably intelligent person is aware it is possible to transmit HIV during sexual
intercourse, especially when it is unprotected.")); see Musser, 854 F. Supp. 2d at 663
& n.8. Thus, because Musser knew his HIV status to be "positive" and engaged in
the type of "intimate contact" that the statute was plainly intended to prohibit, the
statute is not unconstitutionally vague as applied to him.

       Accordingly, Musser is precluded from asserting a void-for-vagueness
challenge to the statute based on the hypothetical situations posed in his petition and
brief and noted above (e.g., accidental bleeding).

                                   B. Overbreadth

      Unlike vagueness, "[t]he First Amendment doctrine of overbreadth is an
exception to [the] normal rule regarding the standards for facial challenges." Virginia

                                          -5-
v. Hicks, 539 U.S. 113, 118 (2003). "[T]he overbreadth doctrine permits the facial
invalidation of laws that inhibit the exercise of First Amendment rights if the
impermissible applications of the law are substantial when 'judged in relation to the
statute's plainly legitimate sweep.'" Morales, 527 U.S. at 52 (quoting Broadrick, 413
U.S. at 615); see Turchick v. United States, 561 F.2d 719, 721 (8th Cir. 1977) ("The
aim of facial overbreadth analysis is to eliminate the deterrent or 'chilling' effect an
overbroad law may have on those contemplating conduct protected by the First
Amendment." (footnote omitted)). The facial overbreadth doctrine is restricted in its
application, however, and is "not recognized . . . outside the limited context of the
First Amendment." United States v. Salerno, 481 U.S. 739, 745 (1987); Schall v.
Martin, 467 U.S. 253, 268 n.18 (1984) ("[O]utside the limited First Amendment
context, a criminal statute may not be attacked as overbroad.").

      Here, because the certificate of appealability was granted on "the issue of
whether [the statute] violated the due process clause because it is vague and
overbroad," and because the First Amendment is applied to the States by way of the
Due Process Clause, see United Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463
U.S. 825, 831 (1983), a First Amendment claim is theoretically within the scope of
the appealable issue. But nowhere in his appeal brief does Musser mention "First
Amendment" or "freedom of association" or any terms or phrases that would indicate
how his claim is properly subject to an overbreadth challenge.3 Musser argues only

      3
        The Iowa Supreme Court noted that the "practical effect" of the statute does
compel some speech—forcing an individual to disclose that he or she is
HIV-positive—and thus implicates the First Amendment. Musser, 721 N.W.2d at
742. Nonetheless, the Iowa Supreme Court determined that "[t]he obvious purpose
of th[e] statute is the protection of public health by discouraging the transmission of
the AIDS virus[,]" and the court could not "conceive of a less restrictive way in which
the state could accomplish its goal." Id. at 744–45. Musser challenged this ruling in
his petition, but the district court concluded that "the Iowa Supreme Court's decision
was not an unreasonable application of federal law as determined by the United States
Supreme Court." Musser, 854 F. Supp. 2d at 666. There is no cognizable way to

                                          -6-
that "[t]he Fourteenth Amendment accords protection to personal decisions relating
to marriage, procreation, contraception, family relationships, child rearing, and
education." For this proposition, Musser cites Lawrence v. Texas, 539 U.S. 558
(2003). Lawrence, however, was decided on substantive due-process grounds—not
the right of free association arising out of the First Amendment. See id. at 564 ("We
conclude the case should be resolved by determining whether the petitioners were
free as adults to engage in the private conduct in the exercise of their liberty under the
Due Process Clause of the Fourteenth Amendment to the Constitution." (emphasis
added)). We agree with the district court that Musser is "targeting the right of two
persons to engage in private, intimate contact," and that right is more akin to rights
that have been recognized under the substantive component of the Due Process
Clause, not the First Amendment. Musser, 854 F. Supp. 2d at 661 n.7; see Roberts
v. U.S. Jaycees, 468 U.S. 609, 617–20 (1984) (distinguishing between the "two
distinct senses" in which there is a constitutional right to freedom of association).

       Accordingly, because Musser does not raise any First Amendment concerns,
he is precluded from asserting an overbreadth challenge to the statute.

                                    III. Conclusion

        For the reasons set forth above, we affirm the district court's denial of habeas
relief to Musser.
                         _____________________________




interpret Musser's appeal brief as advancing a free-speech argument, and thus if there
is any First Amendment challenge present, it must arise from the right of free
association.

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