Sullivan v. Marchilli , 827 F.3d 197 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1191
MARK SULLIVAN,
Petitioner, Appellant,
v.
RAYMOND MARCHILLI,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Barron, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
Janet H. Pumphrey for appellant.
Ryan E. Ferch, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, was on brief, for
appellee.
June 30, 2016
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. This appeal is from denial
of relief on petition for writ of habeas corpus, brought by a state
prisoner convicted of possessing child pornography as a repeat
offender. He raises issues of First Amendment infringement,
unreasonable fact finding, and insufficient evidence. We find no
error and affirm.
It is undisputed that Mark Sullivan used a public library
computer to view and print an image obtained from a Russian site
for sharing photographs. The subject is a naked girl around twelve
years old kneeling on beach sand. Sullivan was convicted under a
Massachusetts statute that prohibits the knowing possession of
a . . . photograph . . . of any child whom the
person knows or reasonably should know to be
under the age of 18 years of age and such child
is . . . depicted or portrayed in any pose,
posture or setting involving a lewd exhibition
of the unclothed genitals, pubic area,
buttocks or, if such person is female, a fully
or partially developed breast of the child
with knowledge of the nature or content
thereof.
Mass. Gen. Laws ch. 272, § 29C(vii). The Massachusetts Appeals
Court (MAC) affirmed, with a dissent, Commonwealth v. Sullivan,
972 N.E.2d 476 (Mass. 2012), and the Supreme Judicial Court denied
an application for leave to obtain further appellate review
(ALOFAR). Sullivan then filed this petition for federal habeas
relief under 28 U.S.C. § 2254, the district court's denial of which
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we review de novo. Powell v. Tompkins, 783 F.3d 332, 336 (1st
Cir. 2015).
We deal first with the claim that possession falls within
the protection of the First Amendment when the photograph depicts
a merely nude minor but is not an expression of lewdness. At the
threshold, however, the parties dispute at some length whether
litigation of this federal constitutional claim was, as required
for relief, exhausted in the state courts through presentation to
the Supreme Judicial Court in the ALOFAR. See 28 U.S.C.
§ 2254(b)(1)(A); Fusi v. O'Brien, 621 F.3d 1, 5 (1st Cir. 2010).
The district court found the exhaustion requirement satisfied
despite the ALOFAR's failure to lead off with an express claim of
First Amendment violation. There was no question that the MAC
discussion referred to the federal claim, and the ALOFAR quoted
from the dissent there in referring to the "First Amendment . . .
concern[]" raised by the case. While we mean to cast no doubt on
the trial court's conclusion, we see no balance of utility in
resolving the issue, given the choice provided by 28 U.S.C.
§ 2254(b)(2) to deny on the merits regardless of exhaustion, an
option that the district court itself alternatively invoked.
As for the merits of the First Amendment claim, we start
with the MAC's independent evaluation of the photograph, the sole
evidence going to the issue of "lewd exhibition." See Commonwealth
v. Bean, 761 N.E.2d 501, 507 (2002); see also Bose Corp. v.
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Consumers Union of U.S., Inc., 466 U.S. 485, 505 (1984). Since
the state statute did not define that term, the court applied the
multi-factor Dost test, set out in the federal case of United
States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub
nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), and
aff'd, 813 F.2d 1231 (9th Cir. 1987): focal point, suggestive
setting, pose and clothing, exposure of body, sexual
suggestiveness, design to elicit sexual response. The court
characterized the photo as ostensibly meant to provoke a sexual
response, focusing on the totally nude subject's pubic area and
breasts, as evaluated in light of the background understanding
that girls of her age would not normally go unclothed at the beach.
It added that it found no countervailing artistic or cultural value
apparent, and concluded that the picture fell afoul of the
prohibition.
For habeas relief from this conclusion, Sullivan must
show that the state adjudication resulted in a decision that was
either "contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States," 28 U.S.C. § 2254(d)(1), or "based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding," id. § 2254(d)(2). These
limitations on our review are dispositive, given the federal law
to be applied and the evidentiary basis for the facts found.
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To start with the legal standards, the touchstone of
clearly established federal law on possession of child
pornography, as declared by the Supreme Court, implicates two
cases. The earlier one, New York v. Ferber, 458 U.S. 747 (1982),
affirmed prior law that depicting actual nudity "without more" is
protected, id. at 765 n.18, but that producing portrayals of "lewd
exhibition[s] of the genitals" is not, id. at 765. Osborne v.
Ohio, 495 U.S. 103 (1990), acknowledged possible protection under
the "mere nudity" rule for those possessing such depictions, id.
at 112, but held that there was nothing facially invalid in
prohibiting possession, by someone other than a child's parent or
guardian, of "material . . . of a minor who is in a state of
nudity, where such nudity constitutes a lewd exhibition or involves
a graphic focus on the genitals," id. at 113. The Court added
that "[t]he crucial question is whether the depiction is lewd, not
whether the depiction happens to focus on the genitals or the
buttocks," id. at 114 n.11, and it suggested that "lewd" may
properly be understood as "obnoxiously debasing portrayals of
sex . . . [or, put differently,] indecent material which taken as
a whole appeals to prurient interest," id. at 119-20 (internal
quotation marks omitted) (quoting Manual Enterprises, Inc. v. Day,
370 U.S. 478, 483-84 (1962)).
The Supreme Court has held nothing on the subject
subsequently. That being so, the MAC did not decide contrary to
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relevant federal law in upholding the state statute prohibiting a
nonrelated person from possessing a photograph of a minor depicting
a "lewd exhibition of the unclothed genitals, pubic area, buttocks
or, if such person is female, a fully or partially developed breast
of a child." Mass. Gen. Laws ch. 272, § 29C(vii). Nor was there
anything contrary to clear federal standards or apparently
unreasonable in identifying what is "obnoxiously debasing" by
reference to the Dost factors set out above.
Finally, we see no violation of reasonable limits in the
fact-finding by the MAC from the evidence before it pointing to
its conclusion that the photograph showed a lewd exhibition. The
court described the subject matter in these words:
The photograph in the instant case is of a
naked adolescent girl sitting on her knees on
a beach with her legs separated, but not
spread, and her pubic area partially visible.
The focal point of the photograph is her
developing breasts and, to a lesser extent,
her pubic area. Her developing left breast
and nipple are prominently displayed. The
tilt of her head, the shadow line it creates,
the angle of her glasses and ponytail, and her
right arm align with her right nipple, drawing
the viewer's attention to it. Her left hand
is pointed down and over, but not touching,
her pubic area, placing half of her pubic area
in shadow. Her hand position draws the
viewer's attention to her pubic area. The
girl is staring downward. She is not smiling,
nor is she otherwise engaging with the
photographer. Someone who knows the girl
would be readily able to identify her from the
photograph. She does not appear to be posed.
Sullivan, 972 N.E.2d at 483.
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Our own examination of the picture confirms that the
description is not inaccurate in stating that the focal point of
the depiction of the indisputably nude adolescent is "the girl's
genitalia, pubic area, or breasts." Id. at 485. We can say, again
on the basis of our own look at the photograph, that although the
pubic area is partially obscured, the sight of the girl's
developing breasts dominates the scene, in which no other visual
element is likely to be noticed, let alone gain a viewer's
attention.1 Because there is nothing in the record at odds with
our common experience that girls of her age and degree of physical
maturity are virtually never seen naked at a beach, and because
parents are not known to make records like this for the family
album, one is at a loss to imagine why such a photograph would be
taken except to exploit the adolescent sexuality, or why it would
be kept by anyone not engaged in pediatrics or law enforcement
except to stimulate and gratify a sexual attraction to minors. It
is true of course that an artist might use the picture to copy,
but that possibility alone counts for little since it would be
equally true of a photograph that would qualify as obscene under
First Amendment doctrine. In sum, the MAC did not act contrary to
or unreasonably apply any clear law as declared by the Supreme
1
The only thing shown in addition to the girl and beach sand
is a flip-flop sandal lying nearby. If this is thought to have
any significance at all, it does not help the petitioner.
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Court, or apply it to facts and factual inferences not reasonably
supported by the evidence.
Just as this appeal began with a dispute over exhaustion
of state remedies, it ends with disagreement on whether the
coverage by the certificate of appealability the district court
granted Sullivan extends to a due process claim that the evidence
was insufficient to support the verdict: that is, that the evidence
was inadequate to support a finding beyond a reasonable doubt of
every element of the offense, as required by Jackson v. Virginia,
443 U.S. 307 (1979), and In re Winship, 397 U.S. 358 (1970). This
latter controversy, however, like the former one, may be
sidestepped as inconsequential. Sullivan's brief repeatedly
notes, correctly, that the issue of evidentiary sufficiency he
seeks to raise is "inextricably intertwined" with his claim, just
discussed, that the evidence supported a finding of possessing an
image of mere nudity protected by First Amendment privilege, but
not of possessing one that could be classified as lewd without
running afoul of clear federal law. The insufficiency claim here
seems to amalgamate the argument that, if First Amendment standards
had been followed, the evidence would not have supported a
conviction, in addition to an argument that the evidence does not
support a conviction even under the Dost factor analysis. But
what we have said about the touchstone Supreme Court law and the
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MAC fact-finding pretermits further consideration of either sort
of sufficiency claim.
AFFIRMED.
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