Dean A. Schwartzmiller v. Darrol Gardner, Warden, Idaho State Correctional Institution, and the State of Idaho, Dean A. Schwartzmiller v. Darrol Gardner, Warden, Idaho State Correctional Institution, and the State of Idaho

752 F.2d 1341 Dean A. SCHWARTZMILLER, Petitioner-Appellant, v. Darrol GARDNER, Warden, Idaho State Correctional Institution, and the State of Idaho, Respondents-Appellees. Dean A. SCHWARTZMILLER, Petitioner-Appellee, v. Darrol GARDNER, Warden, Idaho State Correctional Institution, and the State of Idaho, Respondents-Appellants. Nos. 83-4014, 83-4056. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 10, 1984. Decided Dec. 20, 1984. John P. Ward, San Francisco, Cal., for petitioner-appellant. Myrna Stahman, Deputy Atty. Gen., Boise, Idaho, for respondents-appellees. Appeal from the United States District Court for the District of Idaho. Before WALLACE, ALARCON, and NELSON, Circuit Judges. WALLACE, Circuit Judge: 1 Schwartzmiller filed a petition for writ of habeas corpus, challenging his conviction and confinement on three counts under Idaho Code Sec. 18-6607 (1979) (now amended by Idaho Code Sec. 18-1508 (Supp.1984)), for performing lewd and lascivious acts on a child, on the ground that the statute is unconstitutionally vague. The district court declared the statute to be unconstitutionally vague on its face, but not as applied to some but not all of…