FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN P. SHOEMAKER,

Petitioner-Appellant,

v.

ROBERT TAYLOR, Chief Probation

Officer for the City and County of

Los Angeles,

Respondent-Appellee.

No. 11-56476

D.C. No.

2:07-cv-05849-

MMM-RZ

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

December 7, 2012—Pasadena, California

Filed August 6, 2013

Amended September 13, 2013

Before: Harry Pregerson, Richard A. Paez,

and Andrew D. Hurwitz Circuit Judges.

Order;

Opinion by Judge Pregerson
2 SHOEMAKER V. TAYLOR

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition challenging

misdemeanor convictions for multiple counts of possessing

and duplicating child pornography.

Petitioner contended that some of the images he possessed

were innocent images of children. Applying the factors in

United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), the

panel could not conclude that the images were protected by

the First Amendment, and held that the state court was not

unreasonable to determine that these images were not

protected speech.

Petitioner also contended that some images were innocent

when they were created but were later digitally altered, or

“morphed,” so that the children appear to be engaging in

sexual activity. Distinguishing Ashcroft v. Free Speech

Coalition, 535 U.S. 234 (2002) (involving images of children

created entirely digitally without the use of real children), the

panel held that there is no clearly established Supreme Court

law holding that images of real children morphed to look like

child pornography constitute protected speech.

The panel further held that, although the prosecutor erred

by arguing that the jury’s determination could turn on the fact

that otherwise innocuous images were displayed in a

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SHOEMAKER V. TAYLOR 3

pornographic context, the error was harmless because the

images in question were child pornography.

The panel also held that, even if the standard for

expanding the certificate of appealability was met as to

petitioner’s sufficiency of the evidence claim, petitioner

could not meet his burden of showing that the state court was

unreasonable to deny the claim.

COUNSEL

Michael Rubin, Altshuler Berzon LLP, San Francisco,

California, for Petitioner-Appellant.

John C. Eastman, Esq., Orange, California, for RespondentAppellee.

ORDER

The Opinion filed on August 6, 2013 is amended as

follows: 

On slip opinion page 5, line 4, remove the following text:

<Other than the eight images that formed the basis of

Shoemaker’s child pornography convictions, the

seized images were adult rather than child

pornography.>

On page 5, line 4, insert the following text:
4 SHOEMAKER V. TAYLOR

<Eight of those images formed the basis for

Shoemaker’s child pornography convictions.>

An amended opinion is filed concurrently with this order.

No further petitions for rehearing or rehearing en banc

will be entertained.

OPINION

PREGERSON, Circuit Judge:

A California jury convicted Stephen Shoemaker of eight

misdemeanor counts of possession of child pornography in

violation of California Penal Code § 311.11(a) and one

misdemeanor count of duplicating child pornography in

violation of California Penal Code § 311.3(a). Shoemaker

was sentenced to 90 days in custody, 36 months probation, a

$17,000 fine, and a one-year sexual compulsiveness program. 

He was also required to register as a sex offender for life. 

Shoemaker exhausted his state remedies through the filing of

a direct appeal and a petition for writ of habeas corpus. Both

the California Court of Appeal and the California Supreme

Court issued summary denials of Shoemaker’s state habeas

petitions. Shoemaker then filed his federal habeas petition

under 28 U.S.C. § 2254, which the district court denied.

On appeal from the district court’s denial, Shoemaker

argues that: (1) because six of the images at issue were not

lewd, the jury erred in finding those six images to be child

pornography; (2) because the remaining two images were

digitally “morphed” so that the children only appeared to be
SHOEMAKER V. TAYLOR 5

engaging in sexual activity, the jury erred in finding those

images to be child pornography; (3) the court erred when it

instructed the jury, and permitted the prosecutor to argue, that

the jury could consider the context in which the images were

displayed to determine whether those images were child

pornography; and (4) Shoemaker’s convictions were not

supported by substantial evidence. We have jurisdiction

under 28 U.S.C. § 2253. Constrained by the stringent

standards of the Antiterrorism and Effective Death Penalty

Act (“AEDPA”), we affirm.

BACKGROUND

A. Seizure of the Images

While executing a warrant to search Stephen Shoemaker’s

business, Redondo Beach police found eight images they

suspected to be child pornography. The images were located

on two computer servers. One server hosted the adult website

Blowout.com (“Blowout”); the other hosted the adult website

Beachbaby.com (“Beachbaby”). Shoemaker owned both

websites. Additionally, as the systems operator for Blowout,

Shoemaker managed content for the site and approved images

for posting on the site. Shoemaker had one employee, the

systems operator for Beachbaby.

In addition to Blowout and Beachbaby, Shoemaker’s

business hosted five other websites that also contained adult

pornography. Police seized more than 3,700 photos from the

hard drives at the business. Eight of those images formed the

basis for Shoemaker’s child pornography convictions.

Six of the eight images (Exhibits 3, 5, 7, 8, 9, and 12)

were found on the Beachbaby website. The remaining two
6 SHOEMAKER V. TAYLOR

images (Exhibits 13 and 14) were not posted on any website

but instead were found in a subdirectory of the Beachbaby

server named “shoe.” Copies of these two images were also

found on the Blowout server in a subdirectory named “shoe.”

B. The Images

Shoemaker contends that two of the images, Exhibits 8

and 14, were innocent images of children digitally altered, or

“morphed,” so that the children appear to be engaging in

sexual activity. Morphed images are often created by

superimposing images of real children’s heads on images of

bodies of adults or bodies of other children. The following

description of the images (Exhibits 3, 5, 7, 8, 9, 12, 13, and

14) are taken from the Appellate Division of the Superior

Court of Los Angeles County’s Memorandum Judgment.

• Exhibit 3 “portrays a nude girl, from the knees up,

sitting on the edge of a sailboat. Her breasts and

pubic hair are visible.”

• Exhibit 5 “is a full-length portrayal of a nude girl

sitting astride a seesaw. Her breasts and pubic hair

are visible.”

• Exhibit 7 “portrays a nude girl, from the knees up,

sitting on the edge of the bathtub, slightly wet with

soap suds. She is facing the viewer and her breasts

and pubic area are visible.”

• Exhibit 8 “portrays a nude girl and a nude boy, from

the knees up. The girl’s breasts and pubic area are

visible, and the boy’s penis and testes are visible. The

boy is leaning back and the girl is leaning towards the
SHOEMAKER V. TAYLOR 7

boy, with one arm behind his head.” Shoemaker

contends that this image was morphed.

• Exhibit 9 “is a full-length portrayal of six nude girls

standing before a crowd. All of the girls’ breasts and

pubic areas are visible, with varying amounts of pubic

hair.”

• Exhibit 12 “portrays a nude girl, from the mid-thigh

up, standing in front of a shower attachment, with a

detachable shower head aiming running water at her

body. Her breasts and pubic area are visible.”

• Exhibit 13 “is a full-length portrayal of a nude girl,

holding a large piece of fabric behind her back, with

a flower in her hair. Her breasts and pubic area are

visible.”

• Exhibit 14 “portrays two nude boys and one nude girl

on what appears to be a bed. The girl is lying on her

back, spread-eagled, and her breasts and genitals are

exposed. One boy is kneeling over her and his erect

penis is in the girl’s mouth. The other boy is on his

knees, holding the girl’s feet, and his erect penis is

penetrating the girl.” Shoemaker contends that this

image was also morphed.

C. State Court Criminal Proceedings

Shoemaker was charged with possession of child

pornography under California Penal Code § 311.11 and

duplication of child pornographyunder CaliforniaPenal Code
8 SHOEMAKER V. TAYLOR

§ 311.3.1 At trial, Shoemaker sought a directed verdict,

which the trial court denied. Shoemaker argued that the

images in question were innocuous photographs at the time

they were created (at nudist camps and the like), and that the

display of such images on a pornographic website could not

convert them into child pornography. The trial judge rejected

this argument and stated: “The prosecution will be able to

argue that [a] photograph [that is alleged to be child

pornography] included in the other photographs on the same

[pornographic] website . . . imbues it with the essence of the

violation . . . . To this court’s mind, it is the use of the

photograph. . . . You can take an innocuous photograph and

make it illegal. I can take a questionable photograph and

make it legal. It’s all in the use of the photograph.”

The trial court then instructed the jury that in determining

whether an image met the statutory definition of child

pornography, it could consider five factors:

1 California Penal Code § 311.11 makes it a crime for a person to

“knowingly possess[] or control[] any matter, representation of

information, data, or image . . . the production of which involves the use

of a person under the age of 18 years, knowing that the matter depicts a

person under the age of 18 years personally engaging in or simulating

sexual conduct, as defined in subdivision (d) of Section 311.4.”

California Penal Code § 311.4(d) defines “sexual conduct” as

including actual or simulated “sexual intercourse” and “exhibition of the

genitals or pubic or rectal area for the purpose of sexual stimulation of the

viewer.” (emphasis added).

California Penal Code § 311.3 makes it a crime to “knowingly

develop[], duplicate[], print[], or exchange[] any representation of

information, data or image . . . that depicts a person under the age of 18

years engaged in an act of sexual conduct.” This section defines “sexual

conduct” in substantively the same way as § 311.4.
SHOEMAKER V. TAYLOR 9

(1) “whether the focal point is on the child’s

genitalia or pubic or rectal area”; (2) “whether

the setting is sexually suggestive; that is, in a

place or pose generally associated with sexual

activity”; (3) “whether the child is in an

unnatural pose, or inappropriate attire

considering the age of the child”; (4) “whether

the child is fully or partially clothed or nude”;

and (5) “whether the child’s conduct suggests

sexual coyness or a willingness to engage in

sexual activity.”

In determining whether there has been a

prohibited exhibition of a minor child’s

genitals, pubic, or rectal area based upon the

above factors, it is not necessary to conclude

that all factors 1 through 5 are present.2

At closing, the trial court allowed the prosecutor to argue

that the placement of six of the images on Shoemaker’s adult

pornography website, Beachbaby, was evidence that those

images were child pornography. After addressing the

allegedly morphed images that more obviously showed

sexual activity (Exhibits 8 and 14), the prosecutor turned to

the other six images. He began by stating:

So when my family and I visit the nudist

camp, and my kids are getting out of the pool,

and we are having a great time, and I click,

click, click, and I take some pictures of them

and I send them to Photomat. And I get them

2 These five factors were established in United States v. Dost, 636 F.

Supp. 828, 832 (S.D. Cal. 1986).
10 SHOEMAKER V. TAYLOR

developed, and they come back and someone

gets a hold of them like Mr. Shoemaker or

[his co-defendant] and they put them on their

website among other pictures, other

pornographic pictures of adults, children,

animals, people drinking urine, it is that

context, ladies and gentlemen, of my child,

anyone’s child on the bear skin rug in the

bathtub with the soapy hair, with the little

brother, the little sister laughing in the bathtub

naked. It is when you see that image in the

context of how it appears when a person looks

at that photo placed amongst others by [codefendant] and Mr. Shoemaker that make that

image the exhibition of the genitals for the

purpose of stimulation of the viewer.

(emphasis added)

The prosecutor then repeated to the jury all five factors

from the instructions, stating: “Those are the factors that you

should be looking at, ladies and gentlemen, when deciding

these images in the context in which we find them . . . meet

the requirement of an exhibition of the genitals for the

purposes of sexual stimulation of the viewer.” The

prosecutor also repeatedly emphasized, however, that six of

the images were found in the context of Beachbaby, an adult

pornographic website. The prosecutor explained that, even

assuming the nude photographs were not child pornography

when viewed in isolation, their placement on the Beachbaby

website was “for the purpose of stimulation of the viewer,”

and thus evidence of child pornography under California law. 

Regarding one of the images, the prosecutor argued:
SHOEMAKER V. TAYLOR 11

Maybe there is nothing particular[ly] odd

about this photograph. It is in a nudist camp

and everybody is walking around naked. The

child is just posing for the camera as many

kids may do. Again, it is the placing in the

context of the website. And interestingly

enough this one is, again, on the Teens section

of Beachbaby.com.

Shoemaker was convicted of eight counts ofmisdemeanor

possession of child pornography based on all eight images,

and one count of duplication based on Exhibits 13 and 14,

which were copied from the Beachbabyserver to the Blowout

server. Shoemaker was sentenced to 90 days in custody, 36

months probation, a $17,000 fine, and a one-year sexual

compulsiveness counseling program. Shoemaker was also

required to register as a sex offender for life.

D. Shoemaker’s Appeal & Habeas Petition

Shoemaker appealed to the Appellate Division of the

Superior Court of Los Angeles County, which affirmed the

judgment. Shoemaker filed a petition for writ of habeas

corpus with the California Court of Appeal, which issued a

summary denial. Shoemaker then filed a habeas petition with

the California Supreme Court, which also issued a summary

denial.

In September 2007, Shoemaker filed his federal habeas

petition. The district court rejected the same arguments that

Shoemaker raises here and denied his petition.
12 SHOEMAKER V. TAYLOR

STANDARD OF REVIEW

We review a district court’s denial of a petition for writ of

habeas corpus de novo. Lopez v. Thompson, 202 F.3d 1110,

1116 (9th Cir. 2000) (en banc).

In the case of a habeas petition implicating the First

Amendment, we first “must, as a reviewing court, conduct

our own independent review of the record. In so doing, we

must exercise independent judgment as to the legal issue of

whether [the habeas petitioner]’s speech and association were

protected.” McCoy v. Stewart, 282 F.3d 626, 629 (9th Cir.

2002) (conducting an independent review prior to conducting

a habeas analysis in a habeas claim implicating the First

Amendment).

Under AEDPA, we may grant habeas relief on a claim

that was adjudicated on the merits in state court proceedings

only where the state court’s decision was: (1) “contrary to, or

involved an unreasonable application of clearly established

Federal law, as determined by the Supreme Court,” or (2)

“based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.” 

28 U.S.C. § 2254(d). Under § 2254(d)(1), clearly established

Federal law consists of “the holdings, as opposed to the

dicta, of [the] Court’s decisions as of the time of the relevant

state-court decision.” Williams v. Taylor, 529 U.S. 362, 412

(2000). Section 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). “Where a state court’s decision

is unaccompanied by an explanation, the habeas petitioner’s

burden still must be met by showing there was no reasonable

basis for the state court to deny relief.” Id.
SHOEMAKER V. TAYLOR 13

DISCUSSION

Shoemaker argues that it was contrary to, or an

unreasonable application of, clearly established federal law

for the state court to uphold: (1) the jury’s determination that

Exhibits 3, 5, 7, 9, 12, and 13 were child pornography, where

those images were innocuous portrayals of nude children; (2)

the jury’s determination that Exhibits 8 and 14 were child

pornography, where those images were morphed; (3) the jury

instructions and the prosecutor’s argument that allowed the

jury to consider the context in which the images were

displayed in determining whether the images were child

pornography; and (4) the sufficiency of the evidence

supporting his convictions. Although we agree that the

prosecutor’s argument was error, constrained by AEDPA, we

conclude that the error was harmless, and we otherwise reject

Shoemaker’s remaining arguments.

A. Nude Images ̄Exhibits 3, 5, 7, 9, 12, and 13

First, Shoemaker argues that Exhibits 3, 5, 7, 9, 12, and

13 were simply innocent pictures of nude children, and thus

protected speech. Upon independent review of the images,

McCoy, 282 F.3d at 629, we cannot conclude that these

images are protected by the First Amendment. Therefore, we

hold that the state court was not unreasonable to determine

that Exhibits 3, 5, 7, 9, 12, and 13 were not protected speech.

The Supreme Court has clearly established that not all

images of nude children amount to child pornography

because “nudity, without more[,] is protected expression.” 

New York v. Ferber, 458 U.S. 747, 765 n.18 (1982); see also

Osborne v. Ohio, 495 U.S. 103, 112 (1990). “For example,

a family snapshot of a nude child bathing presumably would
14 SHOEMAKER V. TAYLOR

not be criminal.” United States v. Hill, 459 F.3d 966, 970

(9th Cir. 2006) (internal quotation omitted). The Supreme

Court has, however, upheld statutes criminalizing the

possession of “lewd” or “lascivious” depictions of nude

children. United States v. X-Citement Video, Inc., 513 U.S.

64 (1994) (holding that “lascivious” and “lewd” are

indistinguishable and that federal child pornography statute

18 U.S.C. § 2252 criminalizing the possession of images

depicting “lascivious exhibition of the genitals” was not

vague or overbroad); Osborne, 495 U.S. at 112–13; Ferber,

458 U.S. at 765 (upholding New York law prohibiting images

amounting to a “lewd exhibition of the genitals”).

We have held that “‘lascivious’ is a ‘commonsensical

term’ and that whether a given photo is lascivious is a

question of fact. . . . [W]hether the item to be judged is lewd,

lascivious, or obscene is a determination that lay persons can

and should make.” United States v. Arvin, 900 F.2d 1385,

1390 (9th Cir. 1990) (citations omitted). To determine

whether depictions of nude children are “lascivious,” “lewd,”

or “for the purpose of sexual stimulation of the viewer,” and

thus child pornography, our court and other circuits have

relied on the Dost factors, set forth in United States v. Dost,

636 F. Supp. 828 (S.D. Cal. 1986), aff’d sub nom. United

States v. Wiegand, 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. 2002); United States v. Brunette, 256 F.3d 14, 17–18

(1st Cir. 2001); United States v. Boudreau, 250 F.3d 279,

282–83 (5th Cir. 2001); United States v. Moore, 215 F.3d

681, 686–87 (7th Cir. 2000). The Dost test sets forth six

factors for determining lewdness or lasciviousness:
SHOEMAKER V. TAYLOR 15

(1) whether the focal point of the visual

depiction is on the child’s genitalia or pubic

area;

(2) whether the setting of the visual depiction

is sexually suggestive, i.e. in a place or pose

generally associated with sexual activity;

(3) whether the child is depicted in an

unnatural pose, or in inappropriate attire,

considering the age of the child;

(4) whether the child is fully or partially

clothed, or nude;

(5) whether the visual depiction suggests

sexual coyness or a willingness to engage in

sexual activity; and

(6) whether the visual depiction is intended or

designed to elicit a sexual response in the

viewer.

636 F. Supp. at 832. We have stated that “the [Dost] factors

are neither exclusive nor conclusive” but rather “general

principles as guides for analysis” and “a starting point” in

determiningwhether an image constitutes child pornography. 

Hill, 459 F.3d at 972.

Considering these factors on de novo review of the

images, we conclude that the six images that Shoemaker

claims are innocuous nude photographs are in fact child

pornography. We find, just as the district court found after

independently reviewing the photographs, that several of the
16 SHOEMAKER V. TAYLOR

Dost factors are present in Exhibits 3, 5, 7, 9, 12, and 13,

including: nudity, expressions of sexual coyness, focus on

genitals and pubic areas, and girls “arrayed for the sexual

stimulation of the viewers.” Therefore, the state court’s

determination was not unreasonable.

Indeed, the jury in Shoemaker’s case was instructed to

consider five of the six Dost factors to determine whether the

images were “exhibition of the genitals or pubic or rectal area

for the purpose of sexual stimulation of the viewer” under

California Penal Code § 311.11. Given the presence of

several Dost factors in Exhibits 3, 5, 7, 9, 12, and 13, the state

court did not unreasonably apply Ferber or Osborne when it

rejected Shoemaker’s argument that the images were

innocuous nude photographs.

B. Morphed Images ̄Exhibits 8 and 14

Shoemaker argues that the jury wrongly found Exhibits 8

and 14 to be child pornography because those images were

morphed, and the state court unreasonably applied clearly

established federal law by failing to afford him habeas relief

on this ground.

Upon an independent review of the record, it is clear that

the images depict children engaging in sexually explicit

behavior and would thus not be protected by the First

Amendment if not “morphed.” Irrespective of whether the

images are in fact morphed, Shoemaker’s claim fails because

there is no clearly established Supreme Court law holding

that images of real children morphed to look like child

pornography constitute protected speech.
SHOEMAKER V. TAYLOR 17

Morphed images of children engaged in sexual activity

directly implicate the interest of protecting children from

harm, an interest the Supreme Court deemed compelling in

Ferber. There, the Court explained that states have a

compelling interest in “safeguarding the physical and

psychological well-being of a minor” and the “prevention of

sexual exploitation and abuse of children.” 458 U.S. at

756–57 (internal quotation omitted). The Court further noted

that actual child pornography is “intrinsically related to the

sexual abuse of children” because it is “a permanent record of

the children’s participation and the harm to the child is

exacerbated by [its] circulation.” Id. at 759 (emphasis

added).

Morphed images are different from traditional child

pornography because the children depicted may not have

been sexually abused or physically harmed during the

images’ production. But, morphed images are like traditional

child pornography in that they are records of the harmful

sexual exploitation of children. The children, who are

identifiable in the images, are violated by being falsely

portrayed as engaging in sexual activity. As with traditional

child pornography, the children are sexually exploited and

psychologically harmed by the existence of the images, and

subject to additional reputational harm as the images are

circulated.

For this reason, at least three other circuits have held that

morphed images of children engaging in sexual 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. denied, 132 S. Ct. 843 (2011); United

States v. Bach, 400 F.3d 622 (8th Cir. 2005). In Hotaling, the

Second Circuit explained that the “underlying inquiry is
18 SHOEMAKER V. TAYLOR

whether an image of child pornography implicates the

interests of an actual minor.” 634 F.3d at 729. The court

held that “[s]exually explicit images that use the faces of

actual minors are not protected expressive speech under the

First Amendment” because, when a minor’s face is used, her

interests are implicated and she is placed “at risk of

reputational harm and . . . psychological harm.” Id. at 730. 

In Bach, the Eighth Circuit similarly reasoned,

Although there is no contention that the nude

body actually is that of AC or that he was

involved in the production of the image, a

lasting record has been created of AC, an

identifiable minor child, seemingly engaged

in sexually explicit activity. He is thus

victimized every time the picture is displayed.

400 F.3d at 632.

As the foregoing underscores, the Supreme Court has not

clearly established that images morphed to depict children

engaged in sexual activity are protected by the First

Amendment. Indeed, the Court has expressly left open the

question whether morphed images can constitute child

pornography. Ashcroft v. Free Speech Coalition, 535 U.S.

234, 242 (2002). In Free Speech Coalition, the Court held

that virtual child pornography—images of naked children

created entirely digitally without the use of any real

children—was protected speech. Id. at 239. The Court thus

declared unconstitutional those portions of the federal Child

Pornography Protection Act prohibiting such pornography. 

Id. The Court, however, expressly declined to rule on the

section of the Act that covered morphed images: “Although

morphed images may fall within the definition of virtual child
SHOEMAKER V. TAYLOR 19

pornography, they implicate the interests of real children and

are in that sense closer to the images in Ferber. Respondents

do not challenge this provision, and we do not consider it.” 

Id. at 242. In fact, by stating that morphed images are “closer

to the images in Ferber,” the Court noted that morphed

images were more likely to be considered unprotected speech

like the actual child pornography at issue in Ferber, rather

than protected speech.

Second, we are unpersuaded by Shoemaker’s argument

that it is clearly established that all speech is protected by the

First Amendment unless the Supreme Court has expressly

carved out an exception from First Amendment protection. 

Specifically, Shoemaker contends that unless and until the

Court determines that morphed images of children engaging

in sexual activity are unprotected, the law is clearly

established that such images are protected. This argument

rests on an overly narrow and static conception of categories

of speech.

Contrary to Shoemaker’s argument, if speech does not

squarely fall within a category of unprotected speech, that

speech’s protection under the First Amendment is not clearly

established. Rather, the “appellate court has an obligation to

make an independent examination of the whole record” to

evaluate whether the speech is protected or whether it

actually falls into a category of unprotected speech and thus

may be lawfully restricted under the First Amendment. Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499

(1984) (internal quotation omitted); Ferber, 458 U.S. at 774

n.28. During this independent examination, the court checks

whether the speech falls within any unprotected category and,

if so, “confine[s] the perimeters of [the] unprotected category

within acceptably narrow limits in an effort to ensure that
20 SHOEMAKER V. TAYLOR

protected expression will not be inhibited.” Bose, 466 U.S.

at 505. Through the independent examination process, the

parameters of unprotected speech categories are continually

being defined. For this reason, there is no need for the Court

to carve out a separate exception for morphed images of

children engaging in sexual activity in order to hold that such

speech is unprotected. Instead, on independent review, the

Court may decide that such speech is unprotected as a part of

an existing category of unprotected speech like child

pornography.

Therefore, we reject Shoemaker’s invitation to invert

AEDPA’s standard of review in the First Amendment

context. In sum, we conclude that the Supreme Court has not

clearly established that morphed images are protected by the

First Amendment. Accordingly, we hold that under

§ 2254(d), the state court reasonably rejected Shoemaker’s

claim that Exhibits 8 and 14 cannot be considered

pornographic.

C. Context in Which the Images Were Shown

Shoemaker contends that the court erred when it allowed

the jury to consider the context in which the images were

displayed in determining whether the images were child

pornography. Specifically, Shoemaker alleges error in the

jury instructions, which allowed the jury to consider the

“setting” of the images, and the prosecutor’s arguments

regarding the adult website on which six of the images were

displayed. Shoemaker argues that Free Speech Coalition

established that context is irrelevant in determining whether

an image is child pornography. Shoemaker misreads Free

Speech Coalition.
SHOEMAKER V. TAYLOR 21

In Free Speech Coalition, the Supreme Court struck down

a federal law that banned materials marketed in such a way

that “conveys the impression” that such materials depict

minors engaged in sexually explicit conduct. Id. at 257. The

Court was concerned that “[e]ven if a film contains no

sexually explicit scenes involving minors, it could be treated

as child pornography if the title and trailers convey the

impression that [such] scenes would be found in the movie.” 

Id. The Court found the law overbroad because its analysis

would not “depend principally upon the content of the

prohibited work” but would instead “turn[] on how the speech

is presented, not on what is depicted.” Id. The Court did not

state, however, that the context in which an image is

displayed may never be considered in determining whether an

image is child pornography. In fact, the Court noted that how

an image is pandered may be relevant in determining whether

particular materials are obscene, citing Ginzburg v. United

States, 383 U.S. 463, 474 (1966). 535 U.S. at 257–58. Thus,

the Court left open the question whether the context in which

an image is displayed may be considered as a factor in a child

pornography determination.

However, Free Speech Coalition does tell us that a child

pornography determination may not “turn on” the context in

which an image is presented. We read “turn on” to mean to

“depend principally on.” In Free Speech Coalition, the Court

rejected the government’s argument that “the determination

[of child pornography] would still depend principally upon

the content of the prohibited work.” Id. at 257 (emphasis

added). The Court instead found that “[t]he determination

turns on how the speech is presented, not what is depicted”

and therefore held that the challenged law was

unconstitutional. Id. (emphasis added). The juxtaposition in

the opinion between “depend principally upon” and “turns
22 SHOEMAKER V. TAYLOR

on” supports our view that the two phrases are treated as

synonymous. Thus, we read Free Speech Coalition as clearly

establishing that the context of how an image is presented

may not be the principal consideration in determining

whether that image is child pornography.

We now turn to whether the state court unreasonably

applied Free Speech Coalition in rejecting Shoemaker’s

habeas claim regarding the jury instructions. The instructions

allowed the jury to consider “[w]hether the ‘setting’ was

sexually suggestive.” The jury may have understood

“setting” to mean the backdrop depicted within the four

corners of the photograph—for example, the sailboat in

Exhibit 1 or the bathtub in Exhibit 7. This would make

“setting” a factor relating to the content of the images rather

than to the context in which they were displayed. 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 argument presents a different question. The

prosecutor repeatedly emphasized the context of the adult

Beachbaby website on which six of the pictures were

displayed. At the outset of his closing, the prosecutor argued

that when someone like Shoemaker gets his hands on

hypothetical innocent photos of someone’s children at a

nudist camp and:

put[s] them on [his] website among other

pictures, other pornographic pictures . . . it is

that context, ladies and gentlemen, of my

child, anyone’s child on the bear skin rug in

the bathtub with the soapy hair, with the little
SHOEMAKER V. TAYLOR 23

brother, the little sister laughing in the bathtub

naked. It is when you see that image in the

context of how it appears when a person looks

at that photo placed amongst others by [codefendant] and Mr. Shoemaker that make that

image the exhibition of the genitals for the

purpose of stimulation of the viewer.

(emphasis added).

He said of each image in various formulations:

Let’s assume for a minute that this image was

taken at a nudist camp. Perfectly natural

behavior for a nudist camp. Naturalist. When

you take an image of a child out of their

setting and put that into the setting of

Beachbaby.com, of Blowout.com, this image

is designed to stimulate the sexual desires of

the viewer.

And referring to another image, he said:

Maybe there is nothing particular[ly] odd

about the photograph. It is in a nudist camp

and everybody is walking around naked. The

child is just posing for the camera as many

kids may do. Again, it is the placing in the

context of the website. And interestingly

enough this one is, again, on the teens section

of Beachbaby.com.

In effect, the prosecutor argued that even if the nude images

of children at issue here were not child pornography before

they were on the website, they became child pornography in
24 SHOEMAKER V. TAYLOR

the context in which they were placed. In making this

argument, the prosecutor did exactly what Free Speech

Coalition forbid—he argued to the jury that its determination

could “turn on” the fact that otherwise innocuous images

were displayed in a pornographic context. Under clearly

established Supreme Court precedent, the prosecutor erred.

Nonetheless, we hold that the prosecutor’s error did not

have a “substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson,

507 U.S. 619, 631 (1993); Fry v. Pliler, 551 U.S. 112, 121–22

(2007) (holding that “in § 2254 proceedings 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, whether or not the state appellate

court recognized the error”). Here, as we have already

independently determined, the images in question were child

pornography and several of the Dost factors were present in

each. Each image presented a nude girl, a factor that the

prosecutor also emphasized throughout his closing argument.

Although we hold that portions of the prosecutor’s argument

were erroneous, the prosecutor also repeated the instructions

regarding the five factors that the jury should consider in

determining whether the images were child pornography. In

so doing, the whole of the prosecutor’s argument made the

jury aware that its decision should rest on multiple factors.

Thus, although the state court unreasonably applied Free

Speech Coalition when it rejected Shoemaker’s prosecutorial

error argument, we reject Shoemaker’s claim because the

error was harmless.
SHOEMAKER V. TAYLOR 25

D. Sufficiency of the Evidence

Lastly, Shoemaker requests that we expand the certificate

of appealability to consider the issue whether his convictions

were based on insufficient evidence and thus a violation of

the Due Process Clause. A conviction based on insufficient

evidence violates a defendant’s due process rights. In re

Winship, 397 U.S. 358 (1970). Evidence is insufficient if,

viewed in the light most favorable to the prosecution, no

reasonable trier of fact could have found the defendant guilty

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979).

The standard for expanding a certificate of appealability

is low. A certificate of appealability should issue if

“reasonable jurists could debate whether” (1) the district

court’s assessment of the claim was debatable or wrong; or

(2) the issue presented is “adequate to deserve encouragement

to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (citation and internal quotation marks omitted); see

also Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).

Even if the standard to expand the certificate of

appealability is met, Shoemaker cannot meet his burden to

show that the state court was unreasonable to decide that

sufficient evidence existed to support his convictions. First,

the state court was not unreasonable when it rejected

Shoemaker’s claim that insufficient evidence existed to

support his conviction for knowingly possessing or

controlling child pornography. Shoemaker owned the

Beachbaby and Blowout websites; the servers for these

websites were located in his business office; two of the

images were in a folder titled “shoe,” which are the first four

letters of Shoemaker’s last name; the “shoe” folder also
26 SHOEMAKER V. TAYLOR

contained images of Shoemaker, his friends, and his

residence; and the systems operator for Beachbaby was

Shoemaker’s sole employee. In light of this evidence, the

state court did not unreasonably apply Jackson v. Virginia in

rejectingShoemaker’s habeas claimthat insufficient evidence

existed to support his convictions for possession of child

pornography.

Nor was the state court objectively unreasonable to reject

Shoemaker’s claim that insufficient evidence existed to

support his conviction for duplicating child pornography

(based on Exhibits 13 and 14). The copies of these images

were located in a folder on the Blowout server titled “shoe”;

the “shoe” folder also contained images of Shoemaker, his

friends, and his residence; the user “Staff” was moving

Shoemaker’s personal images around on the same day the

copy of the “shoe” folder appeared on the Blowout server;

and Shoemaker was the systems operator for the Blowout

server. Given this evidence, the state court did not

unreasonably apply Jackson v. Virginia in rejecting

Shoemaker’s claim that insufficient evidence existed to

support his conviction for duplicating child pornography.

CONCLUSION

For the reasons set forth in this opinion, Shoemaker is not

entitled to relief. Although the state court unreasonably

applied Free Speech Coalition, the error was harmless. The

district court’s denial of Shoemaker’s petition for writ of

habeas corpus is therefore AFFIRMED.