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

ORDER AND AMENDED 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 Amended September 13, 2013

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

Order; Opinion by

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

. T A

Y L O R 2

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

. T A

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.

ORDER

The Opinion filed on A u gu s t 6, 2013 is amended a s follows:

On slip opinion pag e 5, line 4, r emove the following tex t:

<Other than the eig ht imag es that formed the basis o f Shoemaker’s child pornog r aphy c onvictions, the seiz ed imag es were adult rather than child pornog raphy .>

On pag e 5, line 4, insert the following tex t:S H O E M A K E R V

. T A

Y L O R 4

<Eig ht of tho se imag es formed the basis for Shoemaker’s child pornog r aphy convictions.>

An a mended opinion is filed concurrently with this order.

No further petitions for reheari n g or rehearing en banc will be entertained.

OP INION

PREGERSON, Circuit J udg e :
A California jury

convicted Stephen Shoemaker of eig ht misdemeanor counts of possession of child por n o gr a phy 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 day s in c ustody
, 3 6 months probation, a $17,000 fine, and a one-y ear sex ual compulsiveness prog ram. He was also required to reg ister as a sex offen d e r for life. Shoemaker ex h austed h is state remedies throug h the filing o f

a direct appeal and a petition for w rit of h abeas corpus. B oth the California Court of Appeal and the California Supreme Court issued summar y denials o f 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 f

ro m the district c ourt’s denial, Shoemaker

ar gu e s that: (1) because six o f the imag es at issue were not l e w d
, the jury erred in f

inding those six imag es to be ch i l d p o rnog raphy ; (2) because the remaining two imag es w e r e dig itally “morphed” so that the children only appeared to beS H O E M A K E R V

. T A

Y L O R 5

eng ag ing in sex ua l a c tivity
, the jury erred in finding those imag es to 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 es were display ed to determine whether those imag es were child pornog raphy ; and (4) Shoemaker’s c o nviction s were not sup p o r ted by substantial e v idence. W e have jurisdiction under 28 U.S.C. § 2253. Constrained by the string ent standards of the Antiterrorism and Effective Deat h P e n alty Act (“AEDPA”), we affirm.

BACK G ROUND

A. Seizure of

the Im ages

W h ile ex ecuting a warrant t o s e a r c h S t e phen Shoemaker’s business, Redondo B each police fo u n d e ig ht imag e s 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 eachbaby .com (“Be a chbaby ”). Shoemaker o w ned both websites. Additionally
, as the sy stems operator for B lowout, Shoemaker manag ed c o ntent for the site a nd approved imag e s for posting o n the site. Shoemaker had one e m p loy ee, the sy stems operator for B e achbaby

.

I n addition to B lowout and B eachbaby
, Shoe m aker’s business hosted five o ther websites that also contained adult pornog raphy

. Police seiz ed more than 3,700 photos f rom the hard drives at the business. Eig ht of those imag es formed the basis for Shoemaker’s child pornog r aphy convictions.

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

were f o u n d on the B eachbaby website. The remaining twoS H O E M A K E R V

. T A

Y L O R 6

imag es (Ex hibits 13 and 14) were not posted on any website but instead were foun d i n a subdirectory 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

Shoemake r contends that two of the imag es, Ex hibits 8 and 14, were innocent imag es o f children dig itally altered, o r “morphed,” s o t h a t the children appear to be eng 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 imag es ( Ex h ibits 3, 5, 7, 8
, 9
, 1 2
, 13, a nd 14) are taken from the Appellate Di v i s i o n of the Superior Court of L o s Ang eles County ’ s Memorandum J udg ment.

• Ex hibit 3 “portray s a nude g irl, from the knees up, sitting on the ed ge o f a sailboat. Her breasts a nd pubic hair are visible.”

• Ex hibit 5 “is a full-leng th portray al of a nude g irl sitting astride a s e e s a w

. Her breasts a nd pubic hair are visible.”

• Ex hibit 7 “portray s a nude g irl, fr o m the k nees up, si t t i ng on the edg e of the bathtub, slig htly wet with

s o ap suds. She is facing the viewer and her b r e a s t s and pubic area are visible.”

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

p

. The g irl’s breasts and p ubic 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 theS H O E M A K E R V

. T A

Y L O R 7

b o y , with one arm b ehind his head.” Shoemake r contends that this imag e was morphed.

• Ex hibit 9 “is a full-leng th portray al of six nude gi r l s standing before a crowd. All of the g irls’ breasts a nd pubic areas are visible, with vary ing amounts o f pubic hair.”

• Ex hibit 12 “port ray s a nude g irl, from the mid-thig h up, s t a nding in front of a shower attachment, with a detachable shower head aiming running water at her body . Her breasts and pubic area are visible.”

• Ex hibit 13 “ is a f

u l l

- l eng th portray al of a nude g irl, h o l ding a larg e piece of fabric behind h er back, with

a flower i n her hair. Her b reasts and 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 b a c k
, spread-eag led, and her breasts and g enitals a re

ex p osed. One boy is kneeling ov e r h e r and h is erect p enis is in the g irl’s mouth. The other boy is on h i s knee s , h o l d ing the g irl’s feet, and his erect penis is 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 Code § 311.11 a nd duplication of c hild pornog raphy under Cal i f o r n i a P enal CodeS H O E M A K E R V

. T A

Y L O R 8

§ 311.3. 1 At trial, Shoemaker sough t a directed verdict, which the trial c ourt denied. Shoemaker argu e d t h at the imag es in question were innocuous photog raphs at the time they were created ( at nudist c a mps and the like), and that the display of such imag es o n 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 s t a t ed: “The prosecution will be able to arg ue that [ a] photog rap h [ t hat 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 violation

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

. . . You can take an innocuous photog r a ph a nd make it illeg a l. I can take a questionable p h otog raph a nd 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 met the statutor y definition of child pornog raphy , it could consider five factors:

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

. T A

Y L O R 9

(1) “whether the foca l p o i n t is on the child’s g enitalia or pubic or rectal a rea”; (2) “whether the setting is sex ually sug g estive; that is, in a place o r pose g enerally associated with sex ual act i v i ty ”; ( 3) “whether the c h ild is in an unnatural pose, or inappr o p riate attire considering the ag e of the child”; (4) “whether the child is f

ully or partially clothed o r nude”; and (5) “whether the child’s conduct sug g ests

s e x ual coy

ness or a willing ness to eng ag e in

sex ual activity .”

I n determining whether t h e r e has been a prohibited e x h i bition of a minor child’s ge n itals, pubic, or rectal area b ased upon th e above factors, it is n o t necessary to conclude 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 evidence that th o se imag es were child pornog raphy

. After addres s ing the alleg edly morphed imag e s that more obviously showed

sex ual activity (Ex h i b i t s 8 and 14), the prosecutor turned to the other six imag es. He beg an by stating :

So when m y family and I visit the nudist camp, and my kids are g etting o ut of the pool, and we are having a g r eat tim e , 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

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

. T A

Y L O R 10

developed, and they come back a

nd someone g ets a hold of them like Mr. Shoe m aker o r [ his co-defendant] and they put them o n 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 por n og raphic p ictures of a d u lts, children, animals, people drinking u rine, it i s that
context , ladie s and g entlemen, of my child, any o ne’s chi l d o n the bear skin rug in the bathtub with the s o ap y hair, with the little brother, the little sister laug hing in the bathtub

n a k e d. It is when you see that image in the
context of how it appears when a person looks
at that photo pl a c e d amongst others by [codefendant] and Mr. Shoemaker that m ake that ima g e t he exhibition of the genitals for the
purpose of stimulation o f the viewer. (emphasis added)

The prosecutor then repeated to the ju r y all f ive f actors from the instructions, stating : “ Those are the factors that y ou should be looking at, ladies and g entlem e n , when deciding these imag es in the contex t in w h i c h w e f i n d them

. . . meet the requirement of a

n ex hibition of the g enitals for the purposes of sex ual stimulation o f the v iewer.” The prosecutor a lso repeated ly emphasiz ed, however, that six o f the imag e s were found in the contex t of B eachbaby
, an adult pornog raphic website. The pros ecutor ex plained that, even assuming t h e n ude photog r aphs were not child pornog raphy when viewed in isolation, their p lacement on the B e achbaby website w as “for the purpose of stimulation of the viewer,” and thus evidence of c h ild p ornog raphy under California law. Reg arding one of the imag es, the prosecutor arg ued:S H O E M A K E R V

. T A

Y L O R 11

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 p o s i n g for the camera as many kids may do. Ag ain, it is the placing in t h e contex t of the website. And inter e sting ly enoug h this one is, a g ain, on the Teens section of B eachbaby .com.

Shoemaker was convicted of eig ht count s o f m i s d e m e anor possession of child pornog raphy based on a ll ei ght imag es, and o ne count of d

uplication b a s e d o n Ex hibits 13 and 14, which were copied from the B eachbaby server to the B lowout

server. Shoemaker was sentenced to 90 day s i n c u stody
, 36 months p robation, a $1 7
, 0 0 0 fine, and a one-y e ar sex ual compulsiveness counseling p r o g ram. 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 t he Superior Court of L os Ang eles County
, which affi r m e d the j u dg ment. Shoemaker filed a p etition for writ of h a b e a s corpus with the California Court o f A p p eal, which issued a summary denial. Shoemaker then filed a habeas petition with the California Supreme Court, which also issued a summary denial.

I n September 2007, Shoemaker filed his f e deral h abeas petition. The district court rejected the same arg uments that Shoemaker raises here and denied his petition.S H O E M A K E R V

. T A

Y L O R 12

STANDARD OF REVIEW

W e review a district court’s denial of a petition f or 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 a b e a s petition implicating the F irst Amendm en t , w e first “must, as a r eviewing court, conduct

our own independent r eview of the record. I n so d o i n g , we must e x erc i se independent judg ment a s to the leg a l issue o f whether [ the habeas petitioner] ’s speech and association were protected.” McCoy v. Stewart
, 2 82 F .3d 626, 6 2 9 (9th Cir. 2002) (conducting an independent review prior to conducting

a habeas a

naly sis in a h abeas cla i m implicating the F irst Amendment).

Under A EDPA, 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 c ourt’s decision was: (1) “contrary to, o r involved an unreasonable application of c l e arly e stablished F ederal law, as determined by the Supreme Cou rt , ” o r (2) “based on an unreasonable determination of the facts in lig ht of the evidence presented in the State cou r t p r o ceeding

. ” 28 U.S.C. § 2254(d). Under § 2254(d)(1), clearly e stablished F ederal law c onsists of “the holding s, as o p p o s e d to the 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, 412 (2000). S e ction 2254(d)(1)’s “unreasonable application” applies where, as here, there have only been summary denials of habeas relief by the state courts. Harrington v

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

an 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.S H O E M A K E R V

. T A

Y L O R 13

D ISCUSSION

Shoemaker arg ues that it was contrary t o , or an

un re a sonable application 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 1 3 were child pornog raphy
, where those imag es were innocuous portray als of nude children; (2) the jury ’s determination that Ex hibits 8 and 1 4 w e r e c h ild pornog raphy
, w here those imag es were morphed; (3) the jury instructions and the prosecutor’s a r g ument that allowed the jury to consider the contex t in whi c h the imag es were d i s p lay ed in determining whether the imag es were chi l d pornog raphy ; and (4) the sufficiency of the evide n ce supporting his c o n v i c t i o ns. Althoug h we ag ree that the prosecutor’s arg ument was error, constrained 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 simply innocent pictures o f nu de children, and thus protected speech. Upon independent review of the imag es, M cCoy
, 282 F .3d at 6 29, we cannot conclude tha t t h e s e imag es are p rotected by the F irst A mendment. Therefore, we hold that the state co u r t was not unreasonable to determine that Ex hibits 3
, 5, 7, 9, 12, and 13 were not protected speech.

The Supre me Court has clearly established that not all imag es of nud e children a mount to child pornog raphy because “nudity
, without mo r e[ ,] is protected ex pression.” New Y o rk v. Ferber
, 458 U.S. 7 47, 765 n .18 ( 1982); see also Osborne v. Ohio
, 495 U .S. 103, 112 (1990). “F or ex am ple,

a family snapshot of a nude child bathing presumably wouldS H O E M A K E R V

. T A

Y L O R 14

not be criminal.” United States v

. Hi l l
, 4 5 9 F .3d 966, 970 ( 9 t h Cir. 2006) (internal quotation o mitted). The Supre m e Court h as, howev e r , upheld statutes criminaliz ing the possession of “lewd” o r “ l ascivious” depictions of nude

c h i l d ren. United S

tates 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 the possess i o n 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 that whether a gi v e n 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. A r vin , 900 F .2d 1385, 1390 (9th Cir. 1990) (citations omitted). T o d e termine 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 oth e r c ircuits have relied on the Dost factors, se t forth in United States v. Dost
, 6 3 6 F. Supp. 828 ( S.D. Cal. 1 986), a ff’d sub nom. Unit e d States v. W

iegand , 812 F .2d 1239 (9th Cir. 1987). See, e.g.
, Hill
, 459 F .3d at 972; Doe v. Chamberlin
, 299 F .3d 192, 196 (3d Cir. 2 002); United States v. Brunette
, 256 F .3d 14, 17–18 (1st Cir. 2001); United States v. Boudreau
, 250 F. 3 d 2 79, 282–83 (5th Cir. 2001); United S tates v. Moore
, 215 F .3d 681, 686–87 (7th Cir. 2000). The Dost test sets forth six factors for determining

lewdness or lasciviousness:S H O E M A K E R V

. T A

Y L O R 15

(1) whether the f

ocal point of the visual depiction is on the ch i ld’s g enitalia or pubic
area;
(2) whether the setting of the visual depiction is sex ually sug g estive, i

. e

. in a place o r pose g enerally associated with sex ual activity ;
(3) w hether the child is depict e d in an unnatural pose, or in inappropriate attire, considering the ag e of the child;

(4) whether the c h i l d is fully or partially clothed, or nude;

(5) whether the visual depictio n sug g ests

sex ual coy

n es s or a w illing 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 sex u al respo n s e 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 ra t her “ g eneral principles a s g uides for analy sis” and “a starting point” in determining whether an imag e constitutes child pornog raphy

. Hill , 459 F .3d at 972.

Considering these factors on de novo review o f the imag es, we conclude tha t the six imag es that Shoemaker

c laims are innocuous nude photog raphs are in fact ch i l d pornog raphy

. W e fi n d
, just as the district court f o und a fter independently reviewing the photog raphs, that several of theS H O E M A K E R V

. T A

Y L O R 16

Dost factors are p r e sent in E x hibits 3
, 5, 7, 9, 12, and 13, including : nudity
, ex pressions o f sex ual coy ness, focus on g enitals and pubic areas, a nd gi r l s “ a rray ed for the sex ual

s t imulation of the viewers.” Therefore, the state cou r t ’s determination was not unreasonable.

I ndeed, the jury i n S h o emaker’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 the vie w er” under California Penal Code § 311.11. Given the pr esence 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 Sho em aker’s arg ument that 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 be child pornog raphy because tho s e i m a g es were morphed, and the state court unreasonabl y applied 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 i mag e s depict children e ng ag ing in sex ually ex plicit behavior and would thus not be protected by the F irst Amendment i f n o t “morphed.” I r respective of whether the imag es are in fact morphed, Shoemaker’s claim fails because there is n o clearly established Supreme Court law holding that imag es of real children morphed to look li k e c h i ld pornog raphy

constitute protected speech.S H O E M A K E R V

. T A

Y L O R 17

Morphed imag es of children eng ag e d in sex ual activity directly implicate 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 states ha v e a compelling interest in “ safeg uarding the phy sical a nd psy cholog ical well-being of a minor” and the “prevention o f

sex ual ex ploitation a

nd abuse of children.” 458 U.S. at 756–57 (internal quotation omitted). The Court further noted that actual child pornog raphy is “intrinsically related to the

sex ual abuse of children” because it is “a permanent record o f the children’s participation a n d t h e harm to the child is exacerbated by [it

s ] c i rculation

. ” Id

. at 759 (emphasis added).

Morphed imag es a

r e dif fe rent from traditional child pornog raphy because the ch i l d re n depicted may n ot have been sex ually abused or phy sically harmed d uring the imag es’ production. B ut, morphed imag es are like traditional child pornog r aphy in that they are rec o rds of the harmful

sex ual ex ploitation of children. The children, w h o a re identifiable in the imag es, are violated b y b eing falsely portray ed as eng ag ing in sex ual activity

. As with traditional child pornog r aphy
, the children are s e x u ally ex p loited a nd psy cholog ically harmed by the ex is t e n ce of the imag es, a nd subject to a dditional reputational harm as t h e i mag e s a re circulated.

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

nited States v

. Hotaling
, 634 F

. 3d 725 (2d C i r. 2 011), cert. denied
, 132 S. Ct. 843 (2011); United States v

. Bach
, 400 F .3d 622 (8th Cir. 2 005). I n Hotaling
, the Second Circuit ex plained tha t t h e “underly ing inquiry isS H O E M A K E R V

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whether an imag e of child pornog raphy implicates the interests o f a

n actual minor.” 63 4 F. 3 d a t 729. The court held that “[ s] ex ually ex plicit imag es that use the faces o f actual minors a

re not protec t e d ex pressive speech under the F irst Amendment” because, when a minor’s face is used, her interests a re 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 i n t h e production of the imag e, a lasting record has been cre a ted of AC, an identifiable minor child, seeming ly eng ag ed in sex ually ex plici t a c tivity

. He is thus victimiz ed every time the picture 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 a r e protected by the F irst Amendment. I ndeed, the Court has e x pressl y left open the question w heth er morphed imag es can constitute child pornog raphy

. Ashcroft v. Free Speech Coalit i o n , 535 U.S. 234, 242 (2002). I n Free S peech C o a l i tion , the Court h eld that virtual c hild pornog ra phy —imag es of n a ked children

cr e a ted entirely d ig itally w ithout the use of any real children—was protected speech. Id. at 239. The Court thus declared unconstitutional those portions of the federal Child Pornog raphy Protection Act prohibiting such pornog raphy

. Id. T he Court, h owever, e x p r e s s l y declined to r ule on the section of the Act that covered morphed imag es: “Althoug h morphed imag e s may fall within the definition of virtual childS H O E M A K E R V

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pornog raphy
, they implicate the interests of real children a nd

are in that sense closer to the imag es in Ferber

. Respondents do not c h alleng 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 to t h e imag es in Ferber ,” the Court noted that morphed imag es were more likely to be c onsidered unprotected speech like the a ctual child pornog raphy at issue in F er ber
, rather than protected speech.

Se co n d, we a

re unpersuaded by Shoemaker’s arg ument that it is clearly established that all speech is protected by the F irst Amendment u nless the Supreme Court has ex press ly carved out an ex cepti o n f r om F irst Amendment protection. 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 are unp r o t e ct ed, the law is clearly established that such imag es are protecte d

. T his arg ument rests on an overly narrow and static conception of categ ories of speech.

Contrary to Shoemaker’s arg ument, i f speech does not squarely fall within a categ o ry o f u n protected speech, that speech’s protection u n der the F irst Amendment is not clearly established. Rather, the “appellate court has an oblig ation to make a n independe n t ex amination of the whole r ecord” to evaluate whether the speech is protected or w hether it

a c t u a lly falls into a categ ory of unprotected speech and th u s may be lawfully restricted under the F irst Amendment. Bose Corp. v. Consumers Union of U.S., Inc.
, 466 U.S. 4 8 5
, 499 (1984) (internal quotation omitted); Ferber , 458 U.S. at 774 n.28. During this independent ex amination, the court c hecks whether the speech f

alls within any unprotected categ ory and, if so, “confine[ s] the perimeters of [ the] u nprotected categ ory

w i thin acceptably n arrow limits in an effort to ensure t h atS H O E M A K E R V

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protected ex press i o n w i l l n ot be inhibited.” Bose
, 466 U.S. at 505. Throug h the i n dependent ex amination process, the parameters of unprotected speec h c a teg ories a re continually being defined. F or this reason, there is no need for the Court to carve out a separate ex c e p t i o n for morphed imag es o f children eng ag ing in sex ual activity in order to hold that such speech is unprotect ed. I n stead, on independent review, the Court may decide that such speech is unprotected as a part o f

an ex isting c atego r y o f u nprotected speech like child pornog raphy

. Therefore, we reject Shoemaker’s invitation t o invert A E D P A ’ s standard of review in the F irst Amendment contex t. I n sum, we c onclude that the Supreme Court has not clearly e stablished that morphed imag es are protected by the F irst Amendment. According ly
, we hold th a t under § 2254(d), the state c ourt reasonably rej e c ted Shoemaker’s claim that E x h ibits 8 and 1 4 cannot b e c o n sidered pornog raphic.

C. Context in Which the Im ages Were Show n

Shoemaker contends that the c ourt erred w hen it allowed the jury to consider the contex t in which t h e i m ages were display ed in determining whether th e i m a g es were child pornog raphy

. Specifically
, Shoemaker alleg es error in the jury instructions, which a llowed the jury to c o n s ider the “setting ” of the imag es, and the p rosecutor’s arg uments reg arding the adult website on which six of the imag es were display ed. Shoemaker arg ues that Free Spe ech Coalition established that c ontex t is irrelevant in d etermining whether

an imag e is child pornog raphy

. Shoemaker misreads F ree Speech Coalition

.S H O E M A K E R V

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I n Free Speech Coalition
, the Supreme Court struck down

a federal law that banned materials marketed in such a w a y that “convey s the impression” that such materia l s d epict minors eng a g ed in sex ually ex p licit conduct. Id. at 257. The Cou r t was concerned that “[ e] ven if a film contains no

sex ually ex p licit scenes involving minors, it c ould b e treated

as child pornog raphy if th e title and trailers convey the impression that [ such] scenes would b e found in the movie.” Id. The Cour t f

o u n d the law overbroad because its analy sis would n ot “depend principa l l y u p on the c ontent of the prohibited work” but would instead “turn[ ] on how the speech is presented, n ot on what 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 n oted that h ow

an imag e is pandered may be relevant in determining whether particular materials are o bscene, c iting Ginzbur g v. United States
, 383 U.S. 463, 474 (1966). 535 U.S. a t 257–58. Thus, the Court left open the question whether the contex 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 presented. W e r ead “turn on” to mean to “depend principally on.” I n Free Speech Coalition
, the Court rejected the g overnment’s arg ument that “the determination [ of child pornog r aphy ] would s t i l l depend principally upon the content of the prohibited w o r k

. ” Id. at 257 (emphasis added). The Court instead f o u n d that “ [t] he determination
turns o n how the speech is presented, not what is depicted ”

a n d t h e re f

o r e h e l d t h at the challeng e d law w a s unconstitutional. Id. (emphasis added). The jux taposition in the opinion between “ depend principally upon” and “turnsS H O E M A K E R V

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on” supports our vie w t hat the two phrases are treated a s sy nony mous. Thus, we read Free Speech 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 turn to wheth e r the state court unreasonably applied F

ree Speech Coal i t i on in rejecting Shoemaker’s habeas claim reg arding the jury instructions. The instructions allowed the jury to consider “ [ w] hether the ‘setting ’ was

sex ually sug g estive.” T he jury may have u nderstood “settin g ” to mean the b ackdrop depicted within the four

corners of the photog raph—for ex ample, the sailboat in Ex hibit 1 or the b a t h tub in Ex hibit 7. This would make “setting ” a factor relating to the content of the imag es rather than to the contex 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 presents a different questi o n

. 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. A t the outset o f his closing
, the prosecutor a rg u ed that when someone like Shoemaker g ets his h an d s on hy pothetical innocent photo s of someone’s children at a nudist camp and:

put[ s] them o n [ his] website amo n g o ther pictures, other po rnog 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 littleS H O E M A K E R V

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brother, the little sister laug hing in the bathtub nake d

. I t is when you see that image in the
context of how it appears when a person looks
at that photo p l a c ed amongst others by [codefendant] and Mr. Shoemaker that make that image the exhibition of t h e genitals for the
purpose of stimulation o f 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 t a k e n at a nudist camp. Perfectly natura l behavior for a nudist camp. Naturalist. W h en y ou take an i m a ge of a c h ild out of 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 about the photog raph. I t i s in a nudist camp and every body is walking around naked. The child i s j u s t posing for the camera as many kids ma y do. A g ain, it is the placing in the

co n tex t of the w ebsite. And interesting 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

o f c hildren at issue h ere were not child pornog r aphy before they w ere o n the website, they became child pornog raphy inS H O E M A K E R V

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the c ontex t in which they wer e p l a c e 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

c ould “ turn on” the fact that otherwise innocuous i m a g e s

were display ed in a pornog raphic contex t. Under clea rly established Supreme Court precedent, the prosecutor erred.

Noneth e l e s s, we h old that the prosecutor’s error d id not have a “s u b s t a n tial and injurious effect or influence in d e t ermining the jury ’s verdict.” B recht v. Abrahams o n , 507 U.S. 619, 631 (1993); Fry v. P liler
, 551 U.S. 112, 121–22 (2007) ( holding th a t “ i n § 2254 proceeding s a court 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 niz ed the error” )

. Here, a s we have already independently determined, the imag es in question were child pornog raphy and several of the Dost factors w ere present in each. Each imag e presented a nude 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 p rosecutor also repeated the instructions reg arding the five factors tha t t h e j ury should consider in determining whether the imag es were child p ornog raphy

. I n

so doing
, the whole of the prosecutor’s arg u m ent made the jury aware that its decision should rest on multiple factors.

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

error arg ument, we r eject Shoemaker’s clai m because the error was harmless.S H O E M A K E R V

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D. Suf f iciency of

the Evidence

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

were b ased on insufficien t e v i d ence and thus a violation o f the Due Process Clause. A conviction based on insufficient evidence violates a defendant’s d ue process rig hts. I

n re W inship
, 397 U.S

. 3 58 (1970). Evidence is insufficient if, viewed in the lig ht most fav o r a b l e to the prosecution, no reasonable trier of fact could have found the d efendant g uilty bey ond a reasonable doubt. J a c k son v. Virginia
, 443 U.S. 307, 319 (1979).

The standard for ex panding a cert i f i c ate of appealability is low. A certificate o f a ppealability should issue if “reasonable jurists c ould debate whether” (1) the district court’s assessment of the claim was d ebat a b l e or wrong ; o r (2) the issue presented is “adequate to deserve encourag ement to proceed further.” Slack v. McDaniel
, 5 2 9 U.S. 473, 484 (2000) (citation and internal quotation m a r ks omitted); see also Miller-El v. Cockrell
, 537 U.S. 322, 338 (2003).

Even if the 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 his convictions. F irst, the state court was n o t u nreasonable when it rejected Shoemaker’s claim that insufficient evidence ex isted to support his conviction for knowing ly p ossessing o r controlling c h i l d pornog raphy

. Shoemaker owned the B ea c h b a by and B lowout websites; the servers for these websites were located i n his business office; two of the imag es were in a folder titled “shoe,” w hich are the first four letters o f Shoemaker’s last name; the “shoe” folder alsoS H O E M A K E R V

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contained imag es of Shoemaker, his friends, a n d his residen c e ; and the sy stems operator for B eachbaby was Shoemaker’s sole employ ee. I n lig ht of this evidence, the state court did not unreasonably apply Jackson v. Virginia in rejecting Shoemaker’s habeas c l a i m t h a t i n sufficient evidence

ex isted to support his convictions for possession of c h i ld pornog raphy

.

Nor was the state court objectively unreasonable to reject Shoemaker’s claim that insufficient evidence ex isted to support his con v iction for duplicating child pornog raphy (based on Ex hibits 13 and 14). The c opies o f t h e se 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 resid en ce; the user “Staff” was moving Shoemaker’s p ersonal imag e s around on the same day the copy of the “ shoe” folder appeared o n the B lowout server; and Shoemaker was the sy stems operator f o r t h e B lowout

s e r v e r. Given this evidence, the state court d id not unreasonably apply Jackson v. Virgin i a in rejecting 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. Althoug h t h e state court unreasonably applied Free Speech Coalition , the error was harmless. The district cou r t ’s d enial of Shoemaker’s petition for writ o f habeas corpus is therefore AF F IRMED

.