The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the court has reviewed the Petition, records on file, and the Report and Recommendation and Supplemental Report and Recommendation of United States Magistrate Judge Ralph Zarefsky. Further, the court has engaged in a de novo review of those portions of the Report and Supplemental Report to which Petitioner has objected. Finally, the court has reviewed Petitioner's Notice of Supplemental Authority, and considered whether that authority requires a different outcome than that recommended by Judge Zarefsky.
As respects the supplemental authority, People v. Gerber, 196 Cal.App.4th 368 (2011), the court notes first that on July 28, 2011, the California Supreme Court, on its own motion, extended the time for granting review to and including October 6, 2011, pursuant to Rule 8.512(c) of the California Rules of Court. See People v. Gerber, No. S195160.*fn1
Should the California Supreme Court grant review, the opinion of the California Court of Appeal would be vacated. Until the Supreme Court decides whether to grant review, moreover, the Court of Appeal cannot issue a remittitur. Thus, the precedential value of the Sixth Appellate District's opinion cannot presently be determined.
Additionally, the holding of Gerber concerns the proper construction to be given to California Penal Code § 311.11(a). The issue raised in the habeas petition pending before the court is a constitutional one -- whether petitioner's convictions violated the First Amendment.*fn2 While the California Court of Appeal suggests that its construction of § 311.11(a) is required to avoid constitutional infirmities, citing New York v. Ferber,458 U.S. 747 (1982), and Ashcroft v. Free Speech Coalition,535 U.S. 234 (2002), it acknowledges that the precise issue before it was not decided by the United States Supreme Court in Free Speech Coalition. See Gerber, 196 Cal.App.4th at 386 ("In Free Speech Coalition, the United States Supreme Court had no occasion to decide whether possession of adult pornography edited by superimposing an actual child's head on an adult body is protected by the First Amendment. In that case, there was 'no underlying crime at all' and it did not need to 'consider where to strike the balance. . .'"). The fact that "there is no holding from the United States Supreme Court commanding that 'morphed' images . . . [cannot] form the basis of a conviction for possession of child pornography" is the central conclusion of Judge Zarefsky's Report and Recommendation,*fn3 a conclusion with which this court agrees.*fn4 The court thus concludes that the Gerber opinion, assuming it remains citable California precedent, does not demonstrate that the state courts' denial of petitioner's constitutional claim was contrary to, or an unreasonable application of, clearly established federal law.*fn5
For the reasons set forth in the Report and Recommendation, and the further reasons stated in this order, the court accepts Judge ...