                                                                              FILED
                            NOT FOR PUBLICATION                               MAY 30 2012

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JACK KEITH COOK,                                 No. 11-35465

              Petitioner - Appellant,            D.C. No. 3:09-cv-00358-MHW

  v.
                                                 MEMORANDUM*
BRENT REINKE,

              Respondent - Appellee.


                   Appeal from the United States District Court
                             for the District of Idaho
                  Mikel H. Williams, Magistrate Judge, Presiding

                        Argued and Submitted May 8, 2012
                               Seattle, Washington

Before: HAWKINS, BYBEE, and BEA, Circuit Judges.

       Jack Keith Cook appeals the denial of his petition for habeas corpus relief.

We have jurisdiction under 28 U.S.C. § 2253, and our review is controlled by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Cook argues that the Idaho Court of Appeals’s decision affirming his

conviction for committing “the infamous crime against nature,” Idaho Code § 18-

6605, is contrary to, and an unreasonable application of, the Supreme Court’s

decision in Lawrence v. Texas, 539 U.S. 558 (2003), because he was punished for

committing an act of private, consensual sex with an adult, “T.F.” The Idaho Court

of Appeals’s decision is not contrary to Lawrence, however, because the court

concluded that § 18-6605 cannot be used to criminalize sex occurring in private

between consenting adults, the conduct protected by Lawrence. 539 U.S. at 578

(concluding that the government could not punish private sexual conduct between

adults engaging in such activity “with full and mutual consent from each other”).

Nor is the decision an unreasonable application of Lawrence because, under

Lawrence, states may still criminalize nonconsensual or public sexual acts, and, as

we explain below, the state court’s determination that the encounter occurred in

public survives AEDPA review. See Anderson v. Morrow, 371 F.3d 1027,

1032–33 (9th Cir. 2004) (interpreting Lawrence to protect “the right of two

individuals to engage in fully and mutually consensual private sexual conduct”).

      Cook next challenges the Idaho Court of Appeals’s factual determination

that the encounter with T.F. occurred in a public place. Whether the encounter

occurred in public or private is a mixed question of law and fact: the state court


                                          2
concluded as a matter of law that the encounter occurred in public based on the

factual determination that the conduct occurred “in the sauna of a local gym.”

      Cook cites no clearly established U.S. Supreme Court precedent on whether

a gym or club should be considered private or public as a matter of federal

constitutional law, and thus the Idaho court’s legal conclusion survives AEDPA

review. See 28 U.S.C. § 2254(d)(1). With regard to the factual findings, Cook

admitted in briefing before the Idaho trial court that the encounter with T.F.

occurred in the sauna of a gym. See Memo. in Support of Mot. to Dismiss at 2

(“This case has arisen from an encounter in a sauna.”). That statement may be

construed as a judicial admission, binding on Cook. See Gospel Missions of Am. v.

City of L.A., 328 F.3d 548, 557 (9th Cir. 2003) (“We have discretion to consider a

statement made in briefs to be a judicial admission . . . .”). Cook also referred to

the location where the encounter occurred as a “private club” during the court’s

acceptance of his plea.1 See United States v. Bentson, 947 F.2d 1353, 1356 (9th

Cir. 1991) (determining that a statement contained in defendant’s closing argument

could be considered a judicial admission). Therefore, the Idaho Court of Appeals




      1
       That Cook described the club as “private” does not determine for purposes
of Idaho law whether the conduct was in public or private.
                                           3
did not unreasonably determine that the encounter occurred in the sauna of a local

gym, and thus in a public place.2

      Finally, Cook argues that the Idaho Court of Appeals impermissibly found

that the encounter occurred in a public place in violation of Apprendi v. New

Jersey, 530 U.S. 466 (2000), and its progeny. However, Cook’s statement during

the plea colloquy that the encounter occurred in a “club” precludes Apprendi

concerns. See United States v. Booker, 543 U.S. 220, 244 (2005) (“Any fact (other

than a prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”

(emphasis added)); United States v. Silva, 247 F.3d 1051, 1059–60 (9th Cir. 2001)

(holding that defendants waived their right to have a jury determine the quantity of

drugs they had conspired to distribute by admitting to the amount in their plea

agreement). Indeed, the Supreme Court has suggested that a court’s reliance on a

defendant’s own admissions, as evidenced by a plea transcript, does not violate



      2
        Cook also claims that the state court unreasonably concluded that T.F.
lacked the capacity to, and did not, consent to the encounter. However, a showing
that the act occurred in public is alone sufficient to eliminate constitutional
concerns under Lawrence. Because we conclude that the state court did not
unreasonably determine the facts when finding that the encounter occurred in
public, we do not reach the issue of consent.
                                         4
Apprendi. See Shepard v. United States, 544 U.S. 13, 16 (2005) (“We hold that . . .

a later court determining the character of an admitted burglary is generally limited

to examining the statutory definition, charging document, written plea agreement,

transcript of plea colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.” (emphasis added)). Because Cook admitted that

the encounter occurred in a “club” during the plea colloquy, the Idaho Court of

Appeals was within constitutional bounds to rely on that statement.

      AFFIRMED.




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