          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.


                                   - 3 -
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


                                    - 5 -
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.


                                         - 7 -
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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