Professional Documents
Culture Documents
Before
Barron, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
We find no
application
(ALOFAR).
for
leave
to
obtain
further
appellate
review
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we review de novo.
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
Supreme
Judicial
Court
in
the
ALOFAR.
See
28
U.S.C.
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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
The court
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
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established
federal
law
on
possession
of
child
The earlier one, New York v. Ferber, 458 U.S. 747 (1982),
Osborne v.
Supreme
Court
has
held
nothing
on
the
subject
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contrary
to
clear
federal
standards
apparently
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The
Id. at 485.
on the basis of our own look at the photograph, that although the
pubic
area
is
partially
obscured,
the
sight
of
the
girl's
is
attention.1
likely
to
be
noticed,
let
alone
gain
viewer's
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
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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controversy,
sidestepped
as
however,
like
inconsequential.
the
former
Sullivan's
one,
brief
This
may
be
repeatedly
been
followed,
the
evidence
would
not
have
supported
But
what we have said about the touchstone Supreme Court law and the
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