Shoemaker v. Taylor, No. 11-56476 (9th Cir. 2013)
Annotate this CasePetitioner, convicted of eight misdemeanor counts of possession of child pornography and one misdemeanor count of duplicating child pornography, appealed the denial of his federal habeas petition under 28 U.S.C. 2254. The court concluded that, although the prosecutor erred by arguing that the jury could consider the context in which the images at issue were displayed in determining whether the images were child pornography, the error was harmless. The court rejected defendant's remaining arguments and affirmed the judgment.
Court Description: 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 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.
The court issued a subsequent related opinion or order on September 13, 2013.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.