Published April, 2012

Musser v. Mapes, 2012 U.S. Dist. LEXIS 50535 (S.D. Iowa, April 11, 2012)

Adam Donald Musser brought this petition for a writ of habeas corpus to overturn his four Iowa state court convictions for criminal transmission of HIV under Iowa Code § 709C.1(1)(a), for which he is currently serving a 50-year prison sentence. The Court denied the petition, and denied a certificate of appealability.

The facts were not disputed in the appeal. The convictions stemmed from 2002 and 2003, when Musser, then 22 years old, had sexual intercourse with four women without disclosing his HIV-positive status. Condoms were used sometimes, but not always, and he denied having an STI when asked. The court record does not include any of the women testing positive for HIV.

Musser made five legal arguments on this appeal of two decisions on his cases by the Iowa Supreme Court in 2006. He argued that "(1) His convictions violate the Eighth Amendment proscription against cruel and unusual punishment; (2) his convictions violate the Fourteenth Amendment because the Iowa law is void for vagueness both facially and as applied to him; (3) his convictions violate the First Amendment because they compel speech and chill freedom of association; (4) his convictions violate his Substantive Due Process Clause right to privacy; and (5) his trial counsel provided ineffective assistance by failing to object to admission of laboratory reports on Confrontation Clause grounds."

The Court concluded that "Musser has not shown that the Iowa Supreme Court's determinations on any ground for issuance of a writ of habeas corpus presented to this Court were contrary to, or involved an unreasonable application of, clearly-established federal law, or an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Nor has Musser otherwise shown that he is in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a)." They support all of the Iowa Supreme Court's decisions, which are discussed here and here. The arguments that they accept on Eighth Amendment sentence proportionality are particularly troubling as they accept the inaccurate characterizations of the probability of transmission and risk of serious injury and/or death caused by HIV, and conclude that 50 years in prison is proportional to the crime of non-disclosure of HIV status.