USCA11 Case: 21-14106 Date Filed: 08/24/2022 Page: 1 of 6

[DO NOT PUBLISH]

In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-14106 Non-Argument Calendar ____________________

MATTHEW TYREL LANCE, Petitioner-Appellant, versus WARDEN,

Respondent-Appellee. ____________________

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 2:19-cv-00156-SCJ ____________________ USCA11 Case: 21-14106 Date Filed: 08/24/2022 Page: 2 of 6

2 Opinion of the Court 21-14106

Before JILL PRYOR, BRANCH and DUBINA, Circuit Judges. PER CURIAM: Appellant Matthew Lance appeals the district court’s order denying his 28 U.S.C. § 2254 petition. On appeal, he argues that the state appellate court erred because it allowed him to be con- victed without a valid indictment for something that was legally protected by his constitutional right to privacy. Specifically, he contends that the indictment charged him with committing sod- omy, in violation of Georgia Code 16-6-2(a)(1) but failed to refer- ence force or lack of consent as elements of the offense. He also contends that Georgia Code 16-6-2(a)(1) is unconstitutional be- cause it has no lack-of-consent element, an essential element of the crime. Having reviewed the record and read the parties’ briefs, we affirm the district court’s order denying Lance’s habeas petition. I. When examining a district court’s denial of a § 2254 habeas petition, we review questions of law and mixed questions of law and fact de novo and findings of fact for clear error. LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1259 (11th Cir. 2005). Alt- hough “appellate review is limited to the issues specified in the COA,” we construe the issues in light of the pleadings and other parts of the record. Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). II. USCA11 Case: 21-14106 Date Filed: 08/24/2022 Page: 3 of 6

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Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court may only grant habeas relief with respect to a claim adjudicated in state court if the state court’s de- cision was: (1) “contrary to, or involved an unreasonable applica- tion of, clearly established [f]ederal law, as determined by the Su- preme Court of the United States,” or (2) “based on an unreasona- ble determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). “A state court acts contrary to clearly established federal law if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court of the United States and nevertheless arrives at a result different from its precedent.” Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1286 (11th Cir. 2012) (quotation marks omit- ted). A state court unreasonably applies clearly established federal law if it “identifies the correct governing legal rule but unreasona- bly applies it to the facts of the particular state prisoner’s case, or when it unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.” Id. (quotation marks omitted). Although we afford deference to a state court’s determina- tion that a claim lacks merit, where the state court did not adjudi- cate the merits of a properly presented claim, no deference is owed under § 2254(d), and the claim is reviewed de novo instead of under AEDPA’s deferential standard. Brewster v. Hetzel, 913 F.3d 1042, 1051 (11th Cir. 2019). We can deny a petition under § 2254 by USCA11 Case: 21-14106 Date Filed: 08/24/2022 Page: 4 of 6

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engaging in de novo review when it is unclear whether AEDPA deference applies. Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1109-10 (11th Cir. 2012). Structural errors, which are errors that require automatic re- versal on appeal, are a “very limited class,” that include, among other errors, the complete denial of counsel, a biased trial judge, racial discrimination in the selection of the grand jury, and the de- nial of a public trial. Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1999). However, “most constitutional errors can be harmless.” Id. at 8, 119 S. Ct. at 1833 (quotation marks omitted). We have held that harmless error review applies to the omission of an element from the indictment. McCoy v. United States, 266 F.3d 1245, 1250-51 (11th Cir. 2001). On collateral review, an error is harmless unless there is “grave doubt about whether a trial error of federal law had sub- stantial and injurious effect or influence in determining the jury’s verdict. There must be more than a reasonable possibility that the error was harmful.” Foster v. United States, 996 F.3d 1100, 1107 (11th Cir.) (quotation marks omitted) (addressing errors in both the indictment and jury instructions), cert. denied, ___ U.S. ___, 142 S. Ct. 500 (2021). Thus, there must be “actual prejudice.” Id. (quo- tation marks omitted). In determining whether the error resulted in actual prejudice, we ask, “whether the error substantially influ- enced the jury’s decision.” Id. In Lawrence, the Supreme Court held that a Texas statute that criminalized homosexual sodomy violated the Due Process USCA11 Case: 21-14106 Date Filed: 08/24/2022 Page: 5 of 6

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Clause of the Fourteenth Amendment. Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 2483 (2003). The Court stressed that the case did not involve “minors,” “persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused,” or “public conduct or prostitution.” Id., 123 S. Ct. at 2484. In other words, Lawrence held that private, consensual acts of sodomy between adults are beyond the power of the criminal law to proscribe. See id. Under Georgia law, “[a] person commits the offense of sod- omy when he . . . performs or submits to any sexual act involving the sex organs of one person and the mouth . . . of another.” O.C.G.A. § 16-6-2(a)(1). Next, “[a] person commits the offense of aggravated sodomy when he . . . commits sodomy with force and against the will of the other person.” Id. § 16-6-2(a)(2). In Powell, the Georgia Supreme Court held that, to the extent that Georgia Code § 16-6-2 “criminalize[d] the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent,” it infringed upon Georgia citizens’ constitutional right to privacy. Powell v. State, 510 S.E.2d 18, 26 (1998); see also Howard v. State, 527 S.E.2d 194, 195 (2000) (stating that Powell “struck down the sodomy statute insofar as it applies to private, non-commercial acts between consenting adults”). Here, Lance’s argument that O.C.G.A. § 16-6-2(a)(1) is un- constitutional is outside the COA and beyond the scope of our re- view. Additionally, we need not decide whether AEDPA deference applies because Lance’s claim fails under de novo review. USCA11 Case: 21-14106 Date Filed: 08/24/2022 Page: 6 of 6

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Assuming that Lance’s indictment erroneously omitted an element of the offense, lack of consent, harmless error analysis ap- plies to the error. The record shows that any error in the indict- ment was harmless because it did not substantially influence the jury’s verdict. First, the record shows that Lance was on notice of the nature of the charge that he had to defend against because he argued at trial that the victim consented to the sodomy and as- serted that the “whole case was about consent.” Second, the trial court instructed the jury that, if the state failed to prove a lack of consent beyond a reasonable doubt as to any of the charged acts, the jury had to acquit Lance, and the jury presumably followed that instruction. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 733 (2000) (“A jury is presumed to follow its instructions.”). Third, the state produced evidence that the sodomy was noncon- sensual when the victim said that she did not want Lance’s penis in her mouth, he forced her to keep his penis in her mouth, and she stated that she did not consent to him putting his penis in her mouth. Accordingly, based on the aforementioned reasons, we af- firm the district court’s order denying Lance habeas relief. AFFIRMED.