1

 The Honorable Richard H. Kyle, United States District Judge for the District

of Minnesota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-3623

___________

Helmut Horst Mauer, *

*

Petitioner – Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

State of Minnesota, *

*

Respondent – Appellee. *

___________

Submitted: October 19, 2010

Filed: November 17, 2010

___________

Before MURPHY, BEAM, and BENTON, Circuit Judges.

___________

MURPHY, Circuit Judge.

Helmut Horst Mauer brought this action under 28 U.S.C. § 2254 alleging that

his due process rights were violated by his state conviction for possession of child

pornography. The federal district court1

 denied relief but granted him a certificate of

appealability on the issue of whether the Minnesota Supreme Court violated his due

process rights by remanding his case to the trial court without vacating his conviction

or granting him a new trial. In response to the certified question Mauer urges that
-2-

several decisions of the United States Supreme Court support his position and entitle

him to the relief he seeks. We affirm. 

I. 

Mauer received a mail solicitation in April 2003 to purchase videos said to

depict girls, aged from nine to fourteen, engaging in various sex acts. The solicitation

purported to be from the Cultural Research Team (CRT), from which Mauer had

ordered videos in 1998. In fact it was from government agents who had taken over

CRT and were using its mailing list in a sting operation to target purchasers of child

pornography. Mauer ordered four video CDs advertised in the solicitation for $515.

He also requested more information about a "write your own script" video described

as showing a thirteen year old girl fulfilling the subscriber's "fantasy with her." In

May, a package containing the four CDs was delivered to Mauer at his business. He

signed for it, and minutes later a postal inspector entered and found the package

already opened. The inspector confiscated four videos, three of which showed actors

clearly under the age of majority who were engaging in sex acts. 

In August 2004 Mauer was charged in Hennepin County District Court with

violation of Minn. Stat. § 617.247 Subd. 4(a). He waived a jury trial and proceeded

to trial before Judge Charles Porter. After considering the evidence, Judge Porter

issued detailed findings of fact and conclusions of law and found Mauer guilty as

charged. Minn. Stat. § 617.247 Subd. 4(a) provides: 

A person who possesses a pornographic work or a computer disk or

computer or other electronic, magnetic, or optical storage system . . .

containing a pornographic work [involving a minor], knowing or with

reason to know its content and character, is guilty of a felony and may

be sentenced to imprisonment for not more than five years and a fine of

not more than $5,000. . . (emphasis added). 
-3-

At trial Mauer stipulated that the CDs confiscated from his office contained

child pornography, but he argued that he was not aware that the actors appearing on

the CDs were actually minors. After the trial concluded Judge Porter found, however,

that Mauer had "reason to know" the videos contained real children. The evidence on

which the court based that finding included Mauer's testimony that he found girls with

the "young look" to be sexually stimulating; his earlier order from CRT in 1998 of two

"child erotica" projects involving actual children, as opposed to young looking adults;

his disposal of the child erotica projects after he realized the actors were in fact

children; and the fact that the 1998 descriptions of child erotica and the CRT mail

solicitations in 2003 were similar. This evidence was sufficient to conclude that

Mauer had "reason to know" that the actors depicted on the videos would be actual

minor children. Judge Porter entered judgment of conviction in December 2004. 

Mauer appealed his conviction and also sought post conviction relief. The

district court denied Mauer's motion for post conviction relief, and in January 2007

the Minnesota court of appeals affirmed Mauer's conviction. It interpreted the

statute's requirement that the defendant possess child pornography "knowing or with

reason to know its content and character" to mean that possessors of child

pornography must be "in some manner aware" that the performers are minors in order

to be convicted under § 617.247 Subd. 4(a). See State v. Mauer, 726 N.W.2d 810,

814 (Minn. App. 2007). It also concluded that its narrowing construction of the

statutory elements could be applied to Mauer's conviction retroactively because he

"had fair warning that his conduct was criminal." Id. at 816. 

Mauer sought review of both decisions in the Minnesota Supreme Court. The

court denied review of Mauer's claim that the intermediate appellate court's failure to

reverse his conviction and remand for a new trial violated his due process rights. It

granted review of the other issue in his petition challenging the constitutionality of the

statute's knowledge requirement. The supreme court construed § 617.247 Subd. 4(a)
-4-

to mean that a defendant charged with possession of child pornography could only be

convicted if he was "subjectively aware of a substantial and unjustifiable risk that the

work involves a minor." State v. Mauer, 741 N.W.2d 107, 115 (Minn. 2007)

(quotation marks omitted). The court further observed that it was "possible that the

district court determined Mauer had reason to know because, despite being unaware

of a risk that the videos would involve children, a reasonable person under the

circumstances should have known." Id. at 116. Because it was not clear whether the

trial court had used a subjective test, the supreme court remanded the case to Judge

Porter to apply the standard it had enunciated to the facts of Mauer's case. The trial

court was to "review the record and reach a conclusion as to whether Mauer was

subjectively aware of a substantial and unjustifiable risk that the videos he ordered

from C.R.T. would involve minors." Id. The supreme court did not vacate Mauer's

conviction or order a new trial.

On remand, Judge Porter issued additional findings based on the evidence he

had originally heard. He found that the solicitation received by Mauer had described

the actors as "12 year old," "preteens," "young girls 11-13 years old," and "9-14 years

old." He again found that Mauer had previously ordered child erotica projects similar

to the CRT mailing, all of which had involved actual children. In conclusion the trial

court held, that "[b]y ordering films portraying young people engaged in sex acts, with

actors advertised as being between the ages of nine and fourteen, and based on his

personal history of receiving films from this production company, [Mauer] knowingly

took a substantial and unjustifiable risk that the actors in the films at issue in this case

would be actual minors." Since Mauer had been subjectively aware of a substantial

and unjustifiable risk that the videos he ordered would involve minors, his judgment

of conviction was upheld. 
-5-

II. 

Mauer then petitioned for habeas relief under 28 U.S.C. § 2254(d)(1), arguing

that the supreme court's remand order was contrary to clearly established law and a

violation of due process under Shuttlesworth v. City of Birmingham, 382 U.S. 87

(1965); Ashton v. Kentucky, 384 U.S. 195 (1966); and Osborne v. Ohio, 495 U.S. 103

(1990). He argues that those cases stand for the proposition that where a state

supreme court has narrowly construed a potentially unconstitutional statute, a

defendant's prior inconsistent conviction must be reversed and a new trial ordered to

ensure that he could only be convicted under the statute as subsequently construed.

The state opposed his petition for relief, arguing that Mauer had failed to exhaust his

state court remedies and that his petition was "without substantive merit." 

After concluding that it "would be most propitious to sidestep the more

complicated exhaustion issue," United States Magistrate Judge Jeanne J. Graham

proceeded directly to consideration of the merits of Mauer's habeas petition. She

concluded that the supreme court's decision to reverse and remand to the trial court

was not "contrary to" the Supreme Court decisions in Shuttlesworth and Osborne

because neither case held that a new trial would be "the only way to ensure that a

defendant is [actually] guilty" of violating a newly construed statute. Remand without

a new trial was appropriate in Mauer's case, she concluded, because he had been

convicted by the court rather than by a jury. Since Judge Porter had made detailed

factual findings after receiving the evidence, remand was permissible for him to

reconsider the evidence while applying the new standard requiring subjective

awareness "of a substantial and unjustifiable risk that the work involves a minor." The

magistrate judge also rejected Mauer's suggestion that the remand would prejudice

him because at the time of his original trial he had no notice that the subjective

awareness standard would be applied to his case. 
-6-

The district court overruled Mauer's objections to the magistrate judge's report

and recommendation and denied him relief under § 2254. It nevertheless granted a

certificate of appealability on the following question:

Was Petitioner denied due process, because the Minnesota Supreme

Court declined to order a new trial after construing the state statute under

which Petitioner was convicted, and the Court instead remanded the case

to the trial court judge to consider whether Petitioner's conviction could

be sustained under the new construction of the statute, based on the

evidence presented at the previous trial to the court? 

Mauer appeals from the denial of his petition, citing Shuttlesworth, Ashton, and

Osborne in response to the certified question. He argues that these cases "establish

the principle that, when a state appeals court construes a criminal statute narrowly to

save its constitutionality, and when it is unclear that a defendant was convicted under

the statute thus construed rather than as originally written, the defendant's conviction

must be reversed and a new trial afforded." The state responds by distinguishing those

cases from Mauer's. It pointed out that in each of them the defendants had either been

convicted by a jury or by a judge who issued no findings of fact or recorded opinion.

In the state's view, the supreme court did not violate Mauer's due process rights.

In Shuttlesworth, the earliest of the decisions on which Mauer relies, the

Supreme Court reversed a state court conviction for violating an Alabama statute and

remanded for a new trial. The Court pointed out that the Alabama trial court had

made no findings of fact and rendered no opinion. For all that appeared, that court

"may have found the petitioner guilty only by applying the literal—and

unconstitutional—terms of the ordinance." Shuttlesworth v. City of Birmingham, 382

U.S. 87, 92 (1965). There is no indication in the Court's discussion that any evidence

had been received or recorded in the Alabama court. 
-7-

In contrast, Judge Porter received evidence at Mauer's trial from which he made

detailed findings of fact and conclusions of law in writing. Mauer's case is not

"materially indistinguishable" from Shuttlesworth as he claims, for his conviction was

in a court of record which made factual findings and legal conclusions after hearing

the evidence. On this record the state supreme court could remand Mauer's case to the

trial court for it to apply the newly announced scienter standard to the evidence

presented at the original trial. See Williams v. Taylor, 529 U.S. 362, 412–13 (2000)

(state court decision is only "contrary to" federal law under § 2254(d) if it "decides a

case differently than [the Supreme] Court has on a set of materially indistinguishable

facts"). 

Ashton and Osborne are similarly unhelpful to Mauer. In both cases the

Supreme Court reversed and remanded for new trials where the defendants had

originally been convicted in jury trials for violating statutes that were later narrowly

construed to save their constitutionality. See Osborne v. Ohio, 495 U.S. 103, 106–07

(1990); Ashton v. Kentucky, 384 U.S. 195, 198 (1966). The Supreme Court could not

remand to the original triers of fact in those cases because, not only are juries made

up of varying pools of people, but also because jurors have no training in applying a

revised legal standard to evidence previously admitted. Here, in contrast, the state

supreme court could direct Judge Porter to apply its authoritative construction of one

element of the crime charged to the same evidence presented at Mauer's 2004 trial.

Judge Porter was the same trier of fact with training in the application of revised legal

standards. For these reasons Ashton and Osborne are not "materially

indistinguishable" from Mauer's case. The supreme court's remand order was not

"contrary to" either. See Williams, 529 U.S. at 413. 

Furthermore, Mauer's arguments are contrary to the clearly established rule,

announced in Osborne and other cases, that a narrowly construed statute "may be

applied to conduct occurring prior to the construction, provided such application
-8-

affords fair warning to the defendant." 495 U.S. at 115 (citations omitted). The facts

of Mauer's case are similar to those in Osborne, where the defendant was convicted

for possession of material depicting "a minor in a state of nudity." On appeal, the

Ohio supreme court narrowly construed the governing statute to prohibit possession

of nude pictures only "where such nudity constitutes a lewd exhibition or involves a

graphic focus on the genitals." Osborne argued that it would be impermissible for the

Ohio supreme court to apply retroactively its narrowed construction of the statute to

him, but the Supreme Court rejected that argument "[b]ecause Osborne had notice that

his conduct was criminal." See id. at 116. Likewise, Mauer had "fair warning" that

possessing materials with at least reckless awareness of the age of the performers was

against the law. Just as the Supreme Court held in Osborne, we conclude that

"someone in [Mauer's] position would not be surprised to learn that his possession of

the [materials] at issue in this case constituted a crime." Id. at 116. 

Finally, we reject as purely speculative the assertion Mauer's counsel made at

oral argument that he might have chosen a jury trial had he been aware that the statute

would be construed in the way the state supreme court did. Nor could Mauer point

to any support in the record for the proposition that he would have presented any other

evidence or used a different strategy had he been aware of the subsequent

developments at the time of trial. Compare Middleton v. Roper, 455 F.3d 838, 854

(8th Cir. 2006), cert. denied, 549 U.S. 1134 (2007) (habeas petitioner's claim was

properly denied when it was "founded solely on speculation"); Sargent v. Armontrout,

841 F.2d 220, 226 (8th Cir. 1988) (explaining that "speculation and conjecture will

not satisfy [a habeas petitioner's] burden" to prove that his rights have been violated).

Mauer took the risk of waiving a jury trial, and he cannot now claim that that risk

entitles him to relief under § 2254. 
-9-

III. 

After reviewing the district court's findings and conclusions made after the

supreme court's remand order, we conclude that Mauer has been "convicted under the

statute as it [was] subsequently construed and not as it was originally written."

Osborne, 495 U.S. at 118. That is all Osborne requires, and under the facts of this

case, remand to the trial judge was consistent with the demands of due process. 

Because we conclude that Mauer's due process rights were not violated by the

procedure employed by the state supreme court or his conviction on remand, we

affirm the judgment of the district court denying the petition for relief. 

______________________________