F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S T E P H E N P. S H O E M

A K E R , Petitioner-Appellant
,

v

.

R O B E R T T A Y L O R , Chief Probation Officer for the City

and County

of L o s Ang eles, Respondent-Appellee

. N o. 11-56476

D.C. No. 2:07-cv-05849- MMM-RZ

OPI NI ON

A ppeal from the United States District Court for the Central District of California Marg a ret M. Morrow, District J udg e, Presiding

Arg ued and Submitted December 7, 2012—Pasadena, California

F iled Aug ust 6, 2013

B efore: Harry Preg erson, Richard A. Paez
, and Andrew D. Hurwitz Circuit J udg es.
Opinion by

J udg e Preg ersonS H O E M A K E R V

. T A

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SUMMARY *

Habeas Corpus

The p anel affirmed the district c ourt’s denial of a 28 U.S.C. § 2254 habeas cor p u s petition challeng ing misdemeanor convictions for multiple c ounts of possessing and duplicating child pornog raphy

.
Petitioner contended that some of the i m a g es he possessed

were innocent imag e s of c hildren. Apply ing the facto rs in United States v. D ost , 6 36 F

. Supp. 8 28 (S.D. Cal. 1986), the panel could not conclude that the imag es were prote c t ed b y the F irst A mendment, and held that the state c ourt w a s n ot unreasonable to d etermine that these i m a ges w ere not protected speech.

Petitioner also contended that some imag es were innocent when they were created but were later dig itall y a ltered, o r

“ m orphed,” so that the children a p pear to be eng ag in g i n
sex ual activity

. Disting uishing Ashcroft v. Fr e e Speech Coalition
, 535 U.S. 234 (2002) (involving imag es of children created entirely dig itally without the use of real children), the panel held that there is no c learly established Supreme Court law holding that imag es of real children morphed to look like child pornog raphy

constitute protected speech.

The p anel f

urther held that, althoug h the p rosecutor erred by arg uing that the jury ’s determination c ould turn on the fact that o therwise innocuous imag es w e r e display ed in a

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S H O E M A K E R V

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Y L O R 3

pornog raphic contex t, the error was harmless because the imag es in question were child pornog raphy

.
The panel al s o h e ld that, even if the standard for

ex p anding the certificate of appealability was met as to petitioner’s sufficiency of the evidence claim, p eti t i o ner could not meet his burden of showing that the state court was unreasonable to deny

the claim.

COUNSEL

Mic h a e l Rubin, A ltshuler B erz on L L P, San F rancisco, California, for Petitioner-Appellant.

J ohn C. Eastman, E sq., Orang e, California, for RespondentAppellee.

OP INION

PREGERSON, Circuit J udg e :
A California jury

convicted Stephen Shoemaker of eig ht misdemeanor coun t s o f possession o f child pornog raphy in violation of California Penal Code § 311.11(a) and o ne misdemeanor count of duplicating c h ild pornog raphy in violation of California Penal Code § 311.3(a). Shoemaker

was sentenced to 90 d ay s in custody
, 36 months probation, a $17,000 fine, and a one-y ear sex ual compulsiveness prog ram. He w as also required to reg ister a s a sex offender for life. Shoemaker ex h austed h is state remedies throug h the filing o f

a direct appeal and a petition for writ of h abeas corpus. B oth the California Court of Appeal and the California SupremeS H O E M A K E R V

. T A

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Court issued summary denials of Shoemaker ’ s state h abeas petitions. Shoemaker then f iled h is federal habeas petition under 28 U.S.C. § 2254, which the district court denied.

On appeal from the district court’ s d e n ial, Shoemaker arg ues that: (1) because six of the imag es at issue w e r e not lewd, the jury erred in finding those six imag e s t o b e child pornog raphy ; (2) because t h e remaining two imag es were dig itally “morphed” so that the children only appeared to be eng ag ing in sex ual a ctivity
, the j u r y erred in finding those imag es t o be child pornog raphy ; (3) the court erred when it instructed the jury
, and permitted the prosecutor to arg ue, that the jury could consider the contex t in which the imag e s were display ed to determine whether those imag es were child pornog raphy ; and ( 4 ) Shoemaker’s convictions were not supported by substantial evide n c e

. W e have jurisdiction under 28 U.S.C. § 2253. Constrained by the string ent standards of the Antiterrorism and Effec t i v e Death Penalty Act (“AEDPA”), we affirm.

BACK G ROUND

A. Seizure of

the Im ages

W h ile ex ecuting a w a

r r a n t t o s earch Stephen Shoemaker’s business, Redondo B each police found eig ht i m a ges they suspected to be child pornog r aphy

. T he imag es were located

on two computer servers. One server hosted the adult website B lowout.com (“B lowout”); the o ther hosted the adult website B e a c hbaby

. com (“B eachbaby ”). Shoemaker o w ned both websites. Additionally
, a s the sy stems operator for B lowout, Shoemaker manag ed content for the site and approved imag e s for posting o n the site. Shoemaker had one employ ee , t h e sy stems operator for B e achbaby

.S H O E M A K E R V

. T A

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I n addition to B lowout and B eachbaby
, Sho e maker’s business hosted five other websites that also contained adult pornog raphy

. Police seiz ed more than 3,700 photos f rom the hard drives at the business. Other than the eig ht imag e s that formed the b asis of Shoemaker’s child pornog raphy convictions, the seiz ed i m ages were adult rather than child pornog raphy

.
Six of th e eig ht imag es (Ex hibits 3, 5, 7, 8, 9
, and 12)

w ere found on the B eachbaby website. The remaining t w o imag es (Ex hibits 13 and 14) were not posted on any website but instead were found in a sub d i r ectory of the B e achbaby

server named “ shoe.” Copies of these two imag es were also found on the B lowout server in a subdirectory named “shoe.”

B. The Im ages

Shoemaker contends that two of the imag es, Ex hibits 8 and 14, were innocent imag e s o f children dig itally altered, o r “morphed,” so that the children a ppear to b e e n g a g ing in

sex ual activity

. Morphed imag es are often created b y superimposing imag es of real children’s heads on imag es o f bodies of adults or bodies of o ther children. The following description of the i m age s (Ex hibits 3, 5, 7, 8, 9, 1 2, 13, a nd 14) are taken from the Appellate D ivision of t h e S u perior Court of L o s Ang eles County ’ s Memorandum J udg ment.

• Ex hib i t 3 “portray s a nude g irl, from the k nees up,
s i tting on the e dg e o f a sailboat. Her breas t s a n d pubic hair are visible.”

• Ex hibit 5 “ i s a full-leng th portray al of a nude g irl sit t i n g a stride a seesaw. Her breasts a nd pubic hair are visible.”S H O E M A K E R V

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• Ex hibit 7 “portray s a nude g irl, from the k nees up, sitting on the edg e of the bathtub, slig ht l y wet with soap suds. She is f

acing the v i e w e r a nd h er breasts and pubic area are visible.”

• Ex hibit 8 “portray s a nude g irl and a nude boy
, from the knees u

p

. The g irl ’ s b reasts and pubic area a re visible, and the boy ’s penis and testes are visible. The boy is leaning back and the g irl is leaning towards the boy
, w ith one arm behi n d his head.” Shoemaker contends that this imag e was morphed.

• Ex hibit 9 “is a full

- l e n g th portray al of six nude g irls standing before a crowd. All of the g irls’ b reasts a nd pubic areas are visible, with vary ing amounts o f pubic hair.”

• Ex hibit 12 “portray s a nude g irl, from the m id-thig h

u p , standing in front of a shower attachment, with a de t achable shower head aiming running water at her body . Her breasts and pubic area are visible.”

• Ex hibi t 1 3 “ i s a f

ull-leng th portray al of a nude g irl, holding a larg e piece of fab r i c behind her back, with

a flower in her hair. Her breasts an d pubic area a re visible.”

• Ex hibit 14 “portray s two nude boy s and one nude g irl on what appears to be a bed. The g irl is ly ing on her back, spread-eag led, and her b r e a sts and g enitals a re
ex p osed. One boy is kneeli n g o v er her and h is erect penis i s in the g irl’s mouth. The other boy is on his knees, holdin g t h e girl’s feet, and his erect penis isS H O E M A K E R V

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penetrating the g irl.” Shoemaker contends that this imag e was also morphed.

C. State Court Crim inal P roceedings

S h o emaker was c harg ed w ith possession of chi l d pornog raphy u nder California Penal C o de § 311.11 a nd duplication of c hild pornog raphy under Cal i f o r n i a P enal Code § 311.3. 1 A t t r ial, Shoemaker soug ht a directed verdict, which the tr i a l c o u rt d enied. Shoemaker arg ued that the imag es in question were innocuous photog raphs at the time they were created ( at nudist camps and the like), and that the display of such imag es on a pornog raphic w ebsite could not convert them into c h ild pornog raphy

. T he trial judg e rejected this a rg ument and stated: “The prosecution will be ab l e t o arg ue that [ a] photog raph [ t h a t is alleg ed to be child pornog raphy ] included in the other photog raphs on the same [ pornog raphic] website . .

. imbues it with the e ssence of the

1 Calif o rn ia Pen a l C o d e § 3 1 1 .1 1 m ak es it a crim e f o r a p erso n to

“ k n o w in g ly p o ssess[] or co n tro l[] an y m atter, rep resen tatio n of in f o rm atio n , d ata, o r im ag e . . . th e p ro d u ctio n o f w h ich in v o lv es th e u s e
o f a p erso n u n d er th e ag e o f 18 y ears, k n o w in g th at th e m atter d ep icts a p ers o n u n d e r th e ag e o f 1 8 y ears p erso n ally en g ag i n g in or sim u latin g
sex u al co n d u ct, as d ef

in ed in su b d iv i sio n (d ) o f Sectio n 3 11 .4 .”

Calif o rn ia P en al Co d e § 3 1 1 .4 (d ) def in es “ sex u al co n du ct” as in clu d in g actu al o r s im

u lated “ sex u al in terco u rse” an d “ ex h ib itio n o f th e g en itals o r p u

bic o r rectal area fo r t

h e p u r p o se o f sexu a l stimu la tio n o

f th e viewer. ” (em

p h asis ad d ed ).

Calif o rn ia P en al Co d e § 3 1 1 .3 m ak es it a crim e to “ k n o w in g ly d ev elo p[], d u

p licate[], prin t[], o r e x c h an g e[] an y rep resen tatio n of in f o rm at i o n , d a t a o r im ag e

. . . th at d ep icts a p erso n u n d er th e ag e o f 1 8
y ears en g ag ed in an act o f sex u al co n d u ct.” T h i s sectio n d ef in es “ sex u al

co n d u ct” in su

b stan tiv ely

th e sam e w ay

as § 3 1 1 .4

.S H O E M A K E R V

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v i o l a t i o n

. . . . To this court’s mind, it is the use o f t h e photog raph.

. . . You can take an innocuous photog r aph and make it illeg a l. I can take a questionable photog raph and make it leg al. I t’s all in the use of the photog raph.”

The trial court then instructed the jury that in d etermining whether an imag e m e t the statutory definition of child pornog raphy , it could consider five factors:

( 1 ) “whether the focal point is on the child ’s g enitalia or pubic or rectal area”; (2) “whether the setting is sex u ally

sug g estive; that is, in a place o r pose g e nerally associated with sex ual activity ”; (3) “whether the ch i l d is in an unnatur a l pose, or inappropriate attire considering the ag e of the child”; (4) “whether the child is fully or partially clothed o r nude”; and (5) “whether the c h ild’s c onduct sug g ests

sex ual coy

n ess or a wil l i ng n ess to eng ag e in

sex ual activity .”

I n de t er mining w hether there has been a prohibi t e d ex hibition of a minor child’s g enitals, pubic, or re c t al area based upon the

a b o v e factors, it is not necessary to conclud e that all factors 1 throug h 5 are present. 2

At closing
, the trial court allowed the prosecutor to a rg ue that the placement of six of the imag e s on Shoemaker’s adult pornog raphy website, B e achbaby
, w as eviden c e that those imag es were child pornog raphy

. After a d dressing the

2 T h ese f iv e f acto rs w e r e e s t a b l i sh ed in Un ited S t a tes v. Do st , 6 3 6 F. Su p p . 8 2 8, 8 3 2 (S.D. Cal. 1 9 8 6 ).S H O E M A K E R V

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alleg edly morphed imag e s that more obviously showed

sex ual activity (Ex hibits 8 and 14), the prosecutor t u r n e d to the other six imag es. He beg an by stating :

S o w hen my f

amily a nd I visit the nud i s t camp, and my kids are g etting o ut of the pool, and we a r e having a g reat time, and I click, click, c lick, a

nd I ta k e some pictures of them and I send them to Photomat. And I g et them developed, and they

come back and someone g e t s a hold of them like Mr. Shoemaker o r [ his co-defendant] and they put them on their

w e b s i t e a m o n g o t h e r p i c t u r e s , o t h e r pornog raphic p ictures of a dult s , children, animals, people dri n k ing urine, it is that
context , ladies a n d g entlemen, of my child,

a n y o n e ’s child on the bear skin rug in t h e b athtub with the soapy hair, with the li t t l e brother, the little sister laug hing in the bathtub nake d

. It is when you see that image in the
context of how it appears when a person looks
at that photo place d a m o ngst others by [codefendant] and Mr. Shoemaker that make that image the exhibition of th e g enitals for the
purpose of stimulation o f the viewer. (emphasis added)

The prosecutor then repeated to the jury all fi v e f actors from the instructions, stating : “Those are the factors that y ou should be looking at, ladies and g entlemen, when d e c i ding these imag es in the contex t in which we find th e m

. . . m e et the requirement of a

n ex hibition of the g enitals for the p u r poses of sex ual stimulation of the viewer.” The prosecutor a lso repeatedly emphasiz ed, however, that six o fS H O E M A K E R V

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the imag es were found in the contex t of B eachbaby
, an adult pornog raphic website. The prosecutor ex plained that, ev en assuming the nude photog raphs w ere not child po r n o graphy when viewed in isolation, their placement on the B e achbaby website was “for the purp o se of stimulation of the viewer,” and thus evidence of child pornog raphy under California law. Reg arding one of the imag es, the prosecutor arg ued:

May be there is nothing particular[ ly ] odd about this p hotog raph. I t is in a nudist camp and every body is walking around naked. The child is just posing for the c am e r a as many kids may do. Ag a i n , it is the placing in the contex t of the website. And i n teresting ly enoug h this one is, a g ain, on the Teens section of B eachbaby .com.

Shoemaker was convicted of eig ht counts o f m i s d e m e a n o r possession of child pornog raphy based o n all eig ht imag es, and o ne count of d

uplication b ased on E x h i b i ts 13 and 14, which were copied from the B eachbaby server to the B lowout

server. Shoemaker was sentenced to 9 0 d a y s in custody
, 36 months p r o b a t ion, a $17,000 fine, and a one-y e ar sex ual compulsiveness counseling p r o gr am. Shoemaker was also required to reg ister as a sex offender for life.

D. Shoem aker’s Appeal & Habeas P etition

Shoemaker appealed to the Appellate Division of the Superior Court o f L o s Ang eles County
, which affirmed the judg ment. Shoemake r f i l e d a petition for writ of h abeas corpus with the California C o u rt of Appeal, which issued a summary denial. Shoemaker then f iled a habeas petition withS H O E M A K E R V

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the California Supreme Court, which also issued a summary denial.

I n September 2007, Shoema k e r filed his federal h abeas petition. The district court rejected the same arg uments that Shoemaker raises here and denied his petition.

STANDARD OF REVIEW

W e review a district c ourt’s denial of a petition for writ o f habeas corpus de novo

. Lopez v. Thompson
, 202 F .3d 1110, 1116 (9th Cir. 2000) (en banc).

I n the case o f a h abeas petition implicating the F irst Amendment, we first “must, a s a r eviewing court, conduct

our own independent r eview of the record. I n s o doing
, we must e x ercise independent judg ment as to the lega l issue o f whether [ the habeas petitioner] ’s speech and association were protected.” McCoy v. Stewart
, 2 82 F .3d 6 26, 629 (9th Cir. 2002) (conducting an independent review prior to conducting

a habeas a

naly sis in a h abeas claim impl i c a ting the F irst Amendment).

Under AEDPA, w e may g rant habeas relief o n a claim that was adjudicated on the merits in state court proceeding s only where the state court’s decision was: (1) “contrary to, o r involved an unreas o n a b le application of clearly e stablished F ederal la w, a s determined by the Supreme Court,” or (2) “based on an unreasonable determination of the f acts in lig ht of the evidence presented in the State court proc e ed i n g.” 28 U.S.C. § 2254(d). Under § 2254(d)(1), clearly e stablished Federal law c onsists of “the holding s, as opposed t o t h e dicta, of [ the] Court’s decisions as of the time o f the relevant state-court decision.” W

illiams v

. Taylor
, 529 U.S. 362, 412S H O E M A K E R V

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(2000). Section 2254(d)(1)’s “unreasonab l e application” applies where, as here, there have only been summary denials of habeas relief by the state courts. Harri ngton v

. Richter
, 131 S. Ct. 770, 784 (2011). “W here a state court’s decision is unaccompanied by a

n ex planation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Id.

D ISCUSSION

Shoemaker arg ues t h a t it was c ontrary to, or an unreasonable a

pplicati o n of, clearly established federal law for the state court to u

phold: (1) the jury ’s determination that Ex hibits 3, 5, 7, 9, 12, and 13 were child pornog raphy
, where those imag es were innocuous portray als of nude children; (2) the jury ’s determination that Ex hibits 8 a n d 1 4 were child pornog raphy
, w here those imag es were morphed; (3) the jury instructions and the prosecutor’s a r g ument that allowed the j u r y to consider the contex t in which the imag es were d i s p l ay e d in determining whether the imag es were child pornog raphy ; and (4) the sufficie n cy of the evidence

su p p o r t i ng h is convictions. Althoug h we ag ree that the prosecutor’s arg ument was error, c onstrained b y AEDPA, we conclude that the error w as harmless, and we otherwise reject Shoemaker’s remaining

arg uments.

A. Nude Im ages

 ̄ Exhibits 3, 5, 7, 9, 12, and 13

F irst, Shoemaker arg ues that Ex h ibits 3, 5, 7, 9, 12, a nd 13 were s i m ply innocent pictures of nu de children, and thus protected speech. Upon independent review of the imag es, McCoy
, 282 F. 3 d a t 6 29, we cannot conclude that these imag es are p rotected by the F irst A mendment. Therefore, weS H O E M A K E R V

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hold that the state c ourt was not unr ea s o n able to determine that Ex hibits 3, 5, 7, 9, 12, and 13 were not protected speech.

The Supreme Court has c learly established that not all imag es of nude children amount to child porno gr aphy because “nudity
, without more[ ,] is protected ex pres s ion.” New Y ork v

. Ferber
, 458 U.S. 747, 765 n .18 ( 1982); see also Osborne v. Ohio
, 495 U .S. 1 0 3
, 112 ( 1 990). “F or ex ample,

a family snapshot of a nude child bathing presumably would not be cri m i n al

. ” United States v. Hill
, 459 F .3d 966, 970 (9th Cir. 2006) (internal quotation omitted). T h e S u preme Court h as, however, upheld statutes criminal i z i n g the possession o f “ l ewd” or “lascivious” depictions of nude children. U

n i t e d States v

. X-Citement Video
, Inc.
, 513 U.S. 64 (1994) (holding that “lascivious” and “lewd” a re indisting uishable and that federal child pornog raphy statute 18 U.S.C. § 2252 criminaliz ing t h e possession of imag e s depicting “lascivious ex hibition of the g enitals” was not vag ue o r overbroad); Osborne
, 495 U.S. at 112–13; Ferber
, 458 U.S. at 7 65 (upholding New York law prohibiting imag e s amounting to a “lewd ex hibition of the g enitals”).

W e have held that “‘lascivious’ is a ‘commonsensical term’ and th a t w h e t her a g iven photo is lascivious is a question of fact.

. . . [ W ] hether the item to be judg ed is lewd, lascivious, or o bscene is a determination that lay persons can and should make.” United S tates v. Arvin
, 900 F .2d 1385, 1390 (9th Cir. 1990) (citations o m i t t e d). To determine whether d epictions of nude children are “lascivious,” “lewd,”

or “for the purpose of sex ual stimulation of the v iewer,” a nd thus child pornog raphy
, our court and other circui t s h ave relied on the Dost factors, set f orth in United States v

. D ost , 636 F

. Supp. 828 ( S.D. Ca l

. 1 9 8 6 )
, aff’d sub nom. United States v. W

iegand , 812 F .2d 1239 (9th Cir. 1987). See, e.g. ,S H O E M A K E R V

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Hill
, 459 F .3d at 972; Doe v. Chamberlin
, 299 F

. 3d 192, 196 (3d Cir. 2002); United States v. Brunette
, 256 F .3d 14, 17–18 (1st Cir. 2001); Unite d S t a t e s v. Boudreau
, 250 F

. 3d 279, 282–83 (5th Cir. 2001); United S tates v. Moore
, 215 F .3d 681, 686–87 (7th Cir. 2000). T he Dost test sets fort h six factors for determining

lewdness or lasciviousness:

(1) whether the f

ocal point of the visual d epiction is o n the child’s g enitalia or pubi c area;
(2) whether the setting of the visual depiction is sex ually sug g estive, i.e. i n a place o r pose g enerally associated with sex ual activity ;
(3) w hether the c h ild is depicted in an
unn a tural pose, or in inappropriate attire, considering the ag e of the child;

(4) w h e t her the child is fully or partially clothed, or nude;

(5) whether the v i sual depiction sug g ests

sex ual coy

n ess or a willin g n ess to eng ag e in

sex ual activity ; and

(6) whether the visual depiction is intended o r desig ned to elicit a s e x ual response in the viewer.

636 F

. Supp. at 832. W e h a v e stated that “the [ Dost ] f actors

are neither ex clusive nor conclusive” but rather “ge neral principles as g uides for analy sis” an d “a starting point” inS H O E M A K E R V

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determining whether an imag e c o nstitutes child pornog raphy

. Hill , 459 F .3d at 972.

Considering these factors on de novo review o f the ima ges, we conclude that the six imag es that Shoemaker claims are innocuous nude photogr a p hs are in fact child pornog raphy

. W e f

i n d
, just as the district court f o und a fter independently reviewing the photog raphs, that several of the Dost factors are present in Ex hibits 3
, 5, 7, 9, 12, and 13, including : nudity
, ex pressions of sex ual coy ness, focus on g enital s a n d p ubic areas, and g irls “array ed for the sex ual stimulation of the viewers.” Therefore, the s t a t e court’s determination was not unreasonable.

I ndeed, the jury in S h o e m aker’s case was instructed to consider five of the six Dost f actors to determine whether the imag es were “ex hibition of the g enitals or pubic or rectal area for the purpose of sex ual stimulation of t he viewer” under California Penal Code § 311.11. Given the pres ence o f several Dost factors in E x hibits 3, 5
, 7, 9, 12, and 13, the state court d id not unreasonably apply Ferber or Osborne when it rejected Shoemaker’s arg ument th a t the imag es were innocuous nude photog raphs.

B. Morphed Im ages

 ̄ Exhibits 8 and 14

Shoemaker arg ues that the jury wrong ly f ound Ex hibits 8 and 14 to b e c h i ld pornog raphy because those imag es were morphed, and the state court unreasonably applie d clearly established federal law by failing to afford him habeas relief on this g round.

Upon an independent review of the record, it is clear that the imag es depict children e n g ag ing in sex ually ex plicitS H O E M A K E R V

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behavior and would thus not be protected by the F irst Amendment if not “morphed.” I rrespective o f w h e t h er the imag es are in fact morphed, Shoemaker’s claim fails because there is n o clearly est a blished Supreme Court law holding that imag es of real childre n m o r p hed to look like child pornog raphy

constitute protected speech.

Morphed imag es of children eng ag e d in sex ual activity directly impl icate the interest of protecting children from harm, an interest the Supreme Court d eemed c ompelling in Ferber

. There, the Court e x plained that stat e s have a compelling interest in “ safeg uarding the phy sical a nd psy cholog ical well-being of a minor” a n d the “prevention o f

sex ual ex ploitation and abuse of children.” 458 U.S. at 756–57 (internal quotation omitted). The Court further noted that actual child pornog raph y is “intrinsically related to the

sex ual abuse of children” because it is “a permanent record o f the children’s participation and the h a r m t o the child is exacerbated by [its] circulation .” Id

. a t 7 59 (emphasis added).

Morphed ima ge s are different from traditional child pornog raphy because t h e c h ildren depicted may n ot have been sex ually abused o r p hy sically harmed d uring the imag es’ p roduction. B ut, morphed imag es are like traditional child pornog r aphy in that they are records of the harmful

sex ual ex ploitation of chil d r e n

. The children, w ho a re identifiable in the imag es, are violated by bei n g f a lsely portray ed as eng a g ing in sex u al activity

. As with traditional child pornog r aphy
, the child r e n a re sex ually ex p loited a nd psy cholog ically harmed by t h e ex istence of the imag es, a nd subject to a dditional reputational harm as the image s a re circulated.S H O E M A K E R V

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F or this reason, at least three other circuits have held that morphed imag es of children eng ag ing i n sex ual activity constitute unprotected speech. See Doe v. Boland
, 698 F .3d 877 (6th Cir. 2012); United States v

. Hotaling
, 634 F .3d 725 (2d Cir. 2011), cert. den i e d
, 1 3 2 S. Ct. 843 (2011); United States v. Bach
, 400 F .3d 622 (8th Cir. 2 005). I n Hotaling
, the Sec o n d Circuit ex plained that the “underly ing inquiry is whether an imag e of child pornog raphy implicates the interests o f a n a c t u a l minor.” 634 F

. 3d at 729. The court held that “[ s] ex ually ex plicit imag es that use the faces o f actual m i n o rs are not protected ex pressive speech under the F irst Amendment” b ecause, when a minor’s face is used, her inter e s t s are implicated and she is placed “at risk o f reputational harm and

. . . psy cholog ical harm.” Id. at 730. I n Bach , the Eig h th Circuit similarly reasoned,

Althoug h there is n o contention that the nu de body actually is that of A C or that he was involved in the p ro d u c tion of the imag e, a lasting reco r d has been created of AC, an identifiable minor child, seeming ly eng ag ed in sex ually ex plicit activ i t y

. He is thus victimiz ed every time the p icture is display ed.

400 F .3d at 632.

As the foreg oing underscores, the Supreme Court has not clearly e stablished that imag es morphed to d e pict children eng ag ed in sex ual activity are protect ed by the F irst Amendment. I ndeed, the Court has e x pressly left open the question w hether morphed imag es can con s t i tute child pornog raphy

. Ashcroft v. Free Speech Coalition
, 53 5 U.S. 234, 242 (2002). I n Free S p e e ch Coalition
, the Court h eld that vi rtual child pornog raphy —imag es of n a ked childrenS H O E M A K E R V

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created entirely dig itally wi t h out the use of any real children—was protected speech. I d. at 239. The Court thus declared unconstitutional those portions of the federal Child Pornog raphy Protection Act prohibiting such pornog raphy

. I d

. The Court, however, ex pressly declined to rule o n t h e section of the Act that covered morphed imag es: “Althoug h morphed imag e s may fall within the definition of virtual child pornog raphy
, they implicate the interests of real children a nd

are in that sense closer to the imag e s in Ferber

. Respondents do not challeng e this provision, and w e do not consider it.” Id. at 242. I n fact, b y stating that morphed imag es are “closer
t o the imag es in Ferber ,” the Court noted that morph e d imag es were more likely to be c onsidered unprotected speech like the a ct u a l child pornog raphy at issue in Ferber
, rather than protected speech.

Second, w e a

re unpersuaded by Shoemaker’s arg ument that it is c learly established that a ll speech is protected by the F irst Amendment u nless the Supreme Court has ex pressly carved out an ex ception from F irst Amendme n t p r otection. Specifically
, Shoemaker contends that unless a nd until the Court determines that morphed imag es of children eng a g ing in sex ual a ctivity ar e u n p r otected, the law is clearly established that such imag es are p r o t e c ted. This arg ument rests on an overly n arrow a nd static conception of categ ories of speech.

Contra r y to Shoemaker’s arg ument, if speech does not squarely fal l w i thin a categ o ry of unprotected speech, that speech’s protection under the F irst Amendment is not clearly established. Rather, the “ a ppellate court has an oblig ation to make a n independent e x amination o f the whole record” to evaluate whether the speech is protected or w hether it actually fa l l s into a categ ory of u nprotected speech and thusS H O E M A K E R V

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may be lawfully restricted under the F irst Amendment. Bose Corp. v. Consumers Un i o n o f U.S., Inc.
, 466 U.S. 485, 499 (1984) (internal quotation omitted); Ferber , 458 U.S. a t 774 n.28. During this independent ex amination, the court c hecks whether the speech falls within any unprotected categ ory and, if so, “confine[ s] the p erimeters of [ the] unprotected categ ory within a cceptably n ar r o w limits in an e ffort to ensure that protected ex pression will not be inhibited

. ” B o s e , 466 U.S. at 505. Throug h the indepen d ent ex amination process, the parameters o f unprotected speech categ ories a re continually being defined. F or this r eason, there is n o need for the Court to carv e o u t a separate ex c eption for morphed imag es o f children eng ag ing in sex ual activity in order to hold that such speech is unprotected. I nstead, on independent review, t he Court may decide that such speech is u nprotected as a part o f

an ex isting c ateg ory of unp ro t e c ted speech like child pornog raphy

.

T h er efore, we reject Shoemaker’s invitation to invert AEDPA’s standard of r e v i ew in the F irst A mendment contex t. I n sum, we conclude that the Supreme Court has not clearly e stablished that morphed imag es are protected by the F irst Amendment. According ly
, we hold that un d e r § 2254(d), the state c ourt reasona b l y rejected Shoemaker’s claim th a t E x h ibits 8 and 1 4 cannot be considered pornog raphic.

C. Context in Which the Im ages Were Show n

Shoemaker contends that the court erred when it allowed
t he jury to consider the contex t in which the image s we r e display ed in determining wheth e r t h e imag es were child pornog raphy

. Specifically
, Shoemaker alleg es error in the jury instructions, which a llowed the jury to consider t h eS H O E M A K E R V

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“settin g” of the imag es, and the prosecutor’s arg uments reg arding the adult website on which six of the imag es were display ed. Shoem aker a rg ues that Free Speech Coalition established that c ontex t is irrelevant in determining whether

an imag e is child pornog rap hy

. Shoemaker misreads Free Speech Coalition

.

I n Free Speech Coalition
, the Supreme Court struck down

a federal law that banned materials marketed in s u c h a way that “convey s t h e impression” that such materials depict minors eng a g ed in sex ually ex p licit conduct. Id. at 257. The C ourt was concerned that “[ e] ven if a film contains n o
sex ually ex p licit scenes involving minors, it could b e treated

as child pornog raphy if the title a nd trailers convey the impression that [ such] scenes w ould be found in the movie.” Id. The Court found the law overbroad because its a n a l y s is would n ot “depend principally upon t h e c o n tent of the prohibited work” but would instead “turn[ ] on how the speech is presented, not on w hat is depicted.” Id. The Court did not state, however, that the contex t in which an imag e is display ed may never be considered in determining whether an imag e is child pornog raphy

. I n fact, the Court noted that h ow

an imag e is pandered may be relevant in d etermining whether particular materials are o b scene, citing Ginzburg v. United States
, 383 U .S. 4 63, 474 (1966). 535 U.S. a t 257–58. Thus, the Court left open the question w hether the c ontex t in which

an imag e is display ed may b e considered as a factor in a child pornog raphy

determination.

However, F

ree Speech Coalition does tell us that a child pornog raphy

determination may not “turn on” the contex t in which a n imag e is presente d

. W e read “turn on” to mean to “depend principally on.” I n F ree Speech Coalition
, the Court rejected the g overnment’s arg ument that “the determinationS H O E M A K E R V

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[ o f child pornog raphy ] would still depend p rincipally upo n t h e c o n tent of the prohibited work.” Id. at 257 ( emphas i s

a d ded). The Court instead f ound that “ [t] he determinat i o n turns on how the speech is p r esented, not what is depicted ” and therefore held th a t t h e c h a l l e n ge d l a w was unconstitutional. Id. (emphasis a dded). The jux taposition in the opinion between “depend principally upon” and “turns on” supports our view that t h e two phrases are treated a s sy nony mous. Thus, we read F

ree S peech Coalition a s clearly establishing that the contex t o f how an imag e is presented may not be the principal consideration in d etermining whether that imag e is child pornog raphy

.

W e now tu r n to whether the state court unreasonably applied F

ree Speech C o alition in rejecting Shoemaker’s habeas claim reg a

rding the jury instructions. The instructions allowed the jury to consider “[ w] het h er the ‘setting ’ was
sex ually s u g gestive.” The jury may have u nderstood “setting ” to mean the backdrop depicted wi thin the four

corners of the photog raph—for ex ample, the sailboat in E x hibit 1 or the bathtub in E x hibit 7. This would m a k e “setting ” a factor relating to the content of the imag es rather than to the c ontex t in which they were display ed. Therefore,

we cannot say that the state court was unreasonable in finding that the jury instructions, which tracked the widely -used Dost factors, were proper.

The state court’s decision upholding the prosecutor’s closing arg ument p r e s e nts a different question. The prosecutor repeatedly emphasiz ed the c ontex t of the adult B eachbaby website on which six of the p ictures were display ed. At the o utset o f his closing
, the prosecutor a rg u ed
t h a t when someone like Shoemaker g ets h is hands o nS H O E M A K E R V

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hy pothe t ical innocent photos of someone’s children at a nudist camp and:

pu t [ s ] them on [ his] website among other pictures, other p ornog raphic pictures

. . . it is that context , ladies and g entlemen, of my child, any one’s child on the bear skin rug in the bathtub with the soapy hair, with the little brother, the little sister laug hing in the bathtub

n a k ed

. It is when you see that image in the
context of how it appears when a person looks
at that photo placed amongst o t h e r s by [codefendant] and Mr. Shoemaker that m ake that image the exhibition o

f the genitals for the
purpose of stimulat i o n of the viewer. (emphasis added).

He said of each imag e in various formulations:

L et’s assume f

or a minute that this imag e was taken at a nudist camp. Perfectly na t u ra l behavior for a nudist camp. Naturalist. W h en y ou take an imag e of a child o u t o f their

se t ting and put that into the setting o f B e achbaby .com, of B lowout.com, this imag e is d esig ned to stimulate the sex ual desires o f the viewer.

And referring

to another imag e, he said:

May be there is nothing particular[ ly ] odd

a b o u t the photog r aph. I t is in a nudist c a m p and every body is walking around naked. The child is just posing fo r t h e camera as manyS H O E M A K E R V

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kids may do. Ag ain, it is the p l a cing in the contex t of the website. And interes t ing ly enoug h this one is, ag ain, on the teens section of B eachbaby .com.

I n effect, the prosecutor a rg ued that even if the nude imag e s of children at issu e h e re were not child pornog raphy before they were on the website, they became c hild pornog raphy in the c ontex t in which they were p l a ce d

. I n making this arg ument, the prosecutor did ex actly what Free Speech Coalition forbid—he arg ued to the jury that its determination could “turn on” th e f

a c t that otherwise innocuous imag e s
were display ed in a p ornog raphic contex t. Under clearly established Supreme Court precedent, the prosecutor erred.

Nonetheless, we hold that the p ro s ecutor’s error d id not have a “substantial and injurious e f f e ct or influence in determining the jury ’s verdict.” Bre c h t v

. Abrahamson
, 507 U.S. 619, 631 ( 1993); F ry v. Pliler
, 551 U.S. 112, 121–22 (2007) ( holding that “in § 2254 proceedings a c o urt must

assess the prejudicial impact of constitutional error in a statecourt criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht, w hether or not the state appellate court recog n i z e d the error”). Here, a s we have already independently determined, the imag e s in question were child pornog raphy and sever a l of the Dost f actors were present in each. Each imag e presented a n u de g irl, a factor that the prosecutor also emphasiz ed throug h out his closing arg ument. Althoug h we hold that portions of the prosecutor’s arg ument

were e rroneous, the prosecutor also r epeated the instructions reg ard i n g t h e five factors that the jury should consider in determining whether the imag es were child p ornog raphy

. I n
so doing
, the whole of the prosecutor’s arg ument mad e the jury aware that its decision should rest on multiple factors.S H O E M A K E R V

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Thus, althoug h the state court unreasonably applied Free Speech Coalition when it rejected Shoemaker’s prosecutorial

error arg ument, w e reject Shoemaker’s claim because the error was harmless.

D. Suf f iciency of

the Evidence

L astly
, Shoemaker requests that we ex pand the certificate of appealability to consider the issue whether his convictions

were b ased o n i n sufficient e vidence and thus a violation o f the Due Process Clause. A conviction based on insufficient evidence violates a defendant’s d ue process ri gh t s

. In re W i n s hip
, 397 U.S. 358 (1970). Evidence is insufficient if, viewed in the lig ht most favorabl e t o t he prosecution, no reasonable trier of fact could have found the d efendant g uilty bey ond a reasonable doubt. J ackson v

. Virginia
, 443 U.S. 307, 319 (1979).

The standard for ex panding a certifica t e o f appealability is low. A certificate of appealability should i s s u e if “reasonable jurists c ould debate whether” (1) the district court’s assessment of the claim was d e b a t able or wrong ; o r (2) the issue presented is “ adequate to deserve encourag ement to proceed further.” Slack v. McD a n i e l
, 529 U.S. 473, 484 (2000) (citation and int e r n a l quotation marks omitted); see also Miller-El v. Cockrell
, 537 U.S. 322, 338 (2003).

Even if th e standard to ex pand the certificate o f appealability is met, Shoemaker cannot meet his burden to show that the state c ourt was unreasonable to decide that sufficient evidence ex isted to support h is convictions. F irst, the state co u r t w as n ot unreasonable when it rejected Shoemaker’s claim that insufficient evidence ex isted to support his conviction for knowing ly p ossessing o rS H O E M A K E R V

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controlling child pornog raphy

. Shoemaker o wn e d the B eachba b y a nd B lowout websites; the servers for these websites were located in his business office; t w o of the imag es w ere in a folder titled “shoe,” which are the first four letters o f Shoemaker’s last name; the “shoe” folder also contain e d imag es of Shoemaker, his friends, and his

r e sidence; and the sy stems operator f or B eachbaby wa s Shoemaker’s sole employ ee. I n lig ht of this evidence, the state court did not unreasonably apply Jackson v. Virginia in

r e j e c t ing Shoemaker’s habeas claim that insufficient evi d e n c e
ex isted to support his convictions for possessi o n o f child pornog raphy

.

Nor was the state court objectively unreasonable to reject Shoemaker’s claim that insufficient evidence ex isted to support his conviction f or dup l icating child pornog raphy (based on Ex hibits 13 and 14). The c opie s o f these imag e s were located in a folder on the B lowout server titled “shoe”; the “shoe” folder also contained imag es of Shoemaker, his friends, and his residence; the u ser “Staff” wa s moving Shoemak er ’ s personal imag es around on the same day the copy of the “ shoe” folder appeared on the B lowout server; and Shoemaker was the s y s t e ms operator for the B lowout

server. Given this evidence, the state court d i d not

u n r easonably apply Jackson v. Virginia in rejectin g Shoemaker’s claim that insufficient evidence ex isted to support his conviction for duplicating child pornog raphy

.

CONCLUSION

F or the r easons set f

orth in this opinion, Shoemaker is not entitled to r elief. Altho u gh the state court unreasonably applied F ree Speech Coalition , the error was harmless. TheS H O E M A K E R V

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district court’s denial of Shoemaker’ s petition for writ o f habeas corpus is therefore AF F IRMED

.