Stephen P. Shoemaker, Petitioner-Appellant,
Robert Taylor, Chief Probation Officer for the City and County of Los Angeles, Respondent-Appellee.
Argued and Submitted December 7, 2012
Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding D.C. No. 2:07-cv-05849-MMM-RZ
Michael Rubin, Altshuler Berzon LLP, San Francisco, California, for Petitioner-Appellant.
John C. Eastman, Esq., Orange, California, for Respondent-Appellee.
Before: Harry Pregerson, Richard A. Paez, and Andrew D. Hurwitz Circuit Judges.
The panel affirmed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging misdemeanor convictions for multiple counts of possessing and duplicating child pornography.
Petitioner contended that some of the images he possessed were innocent images of children. Applying the factors in United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986), the panel could not conclude that the images were protected by the First Amendment, and held that the state court was not unreasonable to determine that these images were not protected speech.
Petitioner also contended that some images were innocent when they were created but were later digitally altered, or "morphed, " so that the children appear to be engaging in sexual activity. Distinguishing Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (involving images of children created entirely digitally without the use of real children), the panel held that there is no clearly established Supreme Court law holding that images of real children morphed to look like child pornography constitute protected speech.
The panel further held that, although the prosecutor erred by arguing that the jury's determination could turn on the fact that otherwise innocuous images were displayed in a pornographic context, the error was harmless because the images in question were child pornography.
The panel also held that, even if the standard for expanding the certificate of appealability was met as to petitioner's sufficiency of the evidence claim, petitioner could not meet his burden of showing that the state court was unreasonable to deny the claim.
PREGERSON, Circuit Judge:
A California jury convicted Stephen Shoemaker of eight misdemeanor counts of possession of child pornography in violation of California Penal Code § 311.11(a) and one misdemeanor count of duplicating child pornography in violation of California Penal Code § 311.3(a). Shoemaker was sentenced to 90 days in custody, 36 months probation, a $17, 000 fine, and a one-year sexual compulsiveness program. He was also required to register as a sex offender for life. Shoemaker exhausted his state remedies through the filing of a direct appeal and a petition for writ of habeas corpus. Both the California Court of Appeal and the California Supreme Court issued summary denials of Shoemaker's state habeas petitions. Shoemaker then filed his federal habeas petition under 28 U.S.C. § 2254, which the district court denied.
On appeal from the district court's denial, Shoemaker argues that: (1) because six of the images at issue were not lewd, the jury erred in finding those six images to be child pornography; (2) because the remaining two images were digitally "morphed" so that the children only appeared to be engaging in sexual activity, the jury erred in finding those images to be child pornography; (3) the court erred when it instructed the jury, and permitted the prosecutor to argue, that the jury could consider the context in which the images were displayed to determine whether those images were child pornography; and (4) Shoemaker's convictions were not supported by substantial evidence. We have jurisdiction under 28 U.S.C. § 2253. Constrained by the stringent standards of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), we affirm.
A. Seizure of the Images
While executing a warrant to search Stephen Shoemaker's business, Redondo Beach police found eight images they suspected to be child pornography. The images were located on two computer servers. One server hosted the adult website Blowout.com ("Blowout"); the other hosted the adult website Beachbaby.com ("Beachbaby"). Shoemaker owned both websites. Additionally, as the systems operator for Blowout, Shoemaker managed content for the site and approved images for posting on the site. Shoemaker had one employee, the systems operator for Beachbaby.
In addition to Blowout and Beachbaby, Shoemaker's business hosted five other websites that also contained adult pornography. Police seized more than 3, 700 photos from the hard drives at the business. Other than the eight images that formed the basis of Shoemaker's child pornography convictions, the seized images were adult rather than child pornography.
Six of the eight images (Exhibits 3, 5, 7, 8, 9, and 12) were found on the Beachbaby website. The remaining two images (Exhibits 13 and 14) were not posted on any website but instead were found in a subdirectory of the Beachbaby server named "shoe." Copies of these two images were also found on the Blowout server in a subdirectory named "shoe."
B. The Images
Shoemaker contends that two of the images, Exhibits 8 and 14, were innocent images of children digitally altered, or "morphed, " so that the children appear to be engaging in sexual activity. Morphed images are often created by superimposing images of real children's heads on images of bodies of adults or bodies of other children. The following description of the images (Exhibits 3, 5, 7, 8, 9, 12, 13, and 14) are taken from the Appellate Division of the Superior Court of Los Angeles County's Memorandum Judgment.
• Exhibit 3 "portrays a nude girl, from the knees up, sitting on the edge of a sailboat. Her breasts and pubic hair are visible."
• Exhibit 5 "is a full-length portrayal of a nude girl sitting astride a seesaw. Her breasts and pubic hair are visible."
• Exhibit 7 "portrays a nude girl, from the knees up, sitting on the edge of the bathtub, slightly wet with soap suds. She is facing the viewer and her breasts and pubic area are visible."
• Exhibit 8 "portrays a nude girl and a nude boy, from the knees up. The girl's breasts and pubic area are visible, and the boy's penis and testes are visible. The boy is leaning back and the girl is leaning towards the boy, with one arm behind his head." Shoemaker contends that this image was morphed.
• Exhibit 9 "is a full-length portrayal of six nude girls standing before a crowd. All of the girls' breasts and pubic areas are visible, with varying amounts of pubic hair."
• Exhibit 12 "portrays a nude girl, from the mid-thigh up, standing in front of a shower attachment, with a detachable shower head aiming running water at her body. Her ...