                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


STEPHEN P. SHOEMAKER,                   No. 11-56476
              Petitioner-Appellant,
                                           D.C. No.
                 v.                     2:07-cv-05849-
                                          MMM-RZ
ROBERT TAYLOR, Chief Probation
Officer for the City and County of
Los Angeles,                            ORDER AND
                Respondent-Appellee.     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 Respondent-
Appellee.


                         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 pornography under California Penal 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 [co-
       defendant] 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 of misdemeanor
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 Beachbaby server 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
determining whether 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 [co-
       defendant] 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 state-
court 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
rejecting Shoemaker’s habeas claim that 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.
