Josiah Deyton v. Alvin Keller, Jr.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cv-00127-MR-DLH,1:10-cv-00128-MR -DLH,1:10-cv-00129-MR -DLH Paper copies to all parties and the district court/agency. [998875859]. [11-7389]

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PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSIAH JACOB DEYTON; ANDREW
RYAN DEYTON; JONATHAN NEIL
KONIAK,
Petitioners-Appellants,
v.
ALVIN WILLIAM KELLER, JR.,
Secretary of NCDOC; LANDAR
CORPENING, Superintendent of
Foothills Correctional,
Respondents-Appellees.




No. 11-7389



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.

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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

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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

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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

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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 magis-

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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

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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 simulta-

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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

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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

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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 sen-

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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 consti-

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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 sen-

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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

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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.