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Larry Neely v. Dustin Mcdaniel

May 2, 2012

LARRY NEELY, APPELLANT,
v.
DUSTIN MCDANIEL, ARKANSAS ATTORNEY GENERAL, APPELLEE.



Appeal from the United States District Court for the Eastern District of Arkansas.

The opinion of the court was delivered by: Colloton, Circuit Judge.

Submitted: January 12, 2012

Before BYE, SMITH, and COLLOTON, Circuit Judges.

Larry Neely pleaded guilty in Arkansas state court to sexual indecency with a child. He later filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of the statute under which he was convicted. The district court*fn1 dismissed the action, and we affirm.

I.

During the autumn of 2003, Neely made a series of telephone calls from his home in Albuquerque, New Mexico, to minors living in Lonoke, Arkansas. In some of the calls, Neely offered to perform oral sex on the minors, including one boy who was fourteen years old at the time. After police traced the calls to Neely, he pleaded guilty to five misdemeanor counts of harassing communications and two felony counts of sexual indecency with a child, in violation of Ark. Code Ann. §§ 5-71-209 and 5-14-110, respectively.

The Arkansas felony statute states, in relevant part:

(a) A person commits sexual indecency with a child if:

(1) Being eighteen (18) years of age or older, the person solicits another person who is less than fifteen (15) years of age or who is represented to be less than fifteen (15) years of age to engage in:

(A) Sexual intercourse;

(B) Deviate sexual activity; or

(C) Sexual contact

Ark. Code Ann. § 5-14-110(a)(1). An Arkansas state court sentenced Neely to serve five years' probation, and ordered him to register as a sex offender. Pursuant to an agreement with the prosecuting attorney, supervision of Neely's probation was transferred to New Mexico. See Neely v. McCastlain, 306 S.W.3d 424, 425 (Ark. 2009).

Less than a year later, an Arkansas prosecuting attorney sought to revoke Neely's probation because he violated conditions of probation. See id. Neely resisted revocation on the ground that New Mexico authorities had imposed conditions that were not authorized by the judgment. The revocation petition was eventually dismissed, id. at 425 n.1, but Neely filed a federal habeas petition arguing that ยง 5-14-110 is unconstitutional, and that his felony ...


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