Shoemaker v. Taylor, No. 11-56476 (8-6-13)(Pregerson with Paez and Hurwitz).

The defendant was convicted of possessing and duplicating child pornography in state court. On habeas appeal, he argued that the photos were "innocent images." They were not under the six factors test in Dost, 636 F. Supp. 828 (SD Cal 1986). The 9th also rejected the argument that these "innocent" photos were morphed into porn. Under AEDPA, the state court's interpretation was reasonable. Finally, the prosecutor's argument that the jury could find the photos were pornographic in context was error, but was harmless, because the photos were in fact child porn.