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Sullivan v. Marchilli

United States District Court, D. Massachusetts

January 13, 2015

MARK SULLIVAN, Petitioner,


LEO T. SOROKIN, District Judge.

Mark Sullivan, an inmate at North Central Correctional Institution in Gardner, Massachusetts, has filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Doc. No. 1.[1] Sullivan's petition levies a single challenge to his state-court conviction for possessing child pornography: that it violates his First Amendment right to free speech because the photograph forming the basis for the criminal charge depicted mere nudity. Although this case required the state trial and appellate courts to navigate difficult constitutional questions, the stringent standards governing federal habeas review compel the denial of Sullivan's petition.


On January 30, 2009, a jury convicted Sullivan of possessing child pornography in violation of Chapter 272, Section 29C of the Massachusetts General Laws.[2] Sullivan, 972 N.E.2d at 478. After a subsequent bench trial, he also was convicted of possessing child pornography as a subsequent offense, a separate charge under state law. Id. at 479. He was sentenced to ten-to-fifteen years' incarceration, to run concurrently with a related sentence for violating probation. Doc. No. 1 at 2.

The charges arose after a librarian discovered Sullivan using a computer in the Hingham Public Library to print a photograph of a naked girl on a beach. Sullivan, 972 N.E.2d at 479. The Massachusetts Appeals Court ("MAC") described the photograph, which came from a Russian-based photo-sharing website, as follows:

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.

Id. at 483.

Sullivan's defense at trial was that the photograph was not child pornography (and, thus, possession of it was not illegal) because it did not constitute a "lewd exhibition" as required by the relevant statute.[3] See Supplemental Answer, Tab B at 44-50, Jury Trial Tr. (Jan. 30, 2009). Sullivan reiterated this theory on appeal as a challenge to the sufficiency of the evidence.[4] As support, Sullivan relied on both state and federal decisions exploring similar statutory language and distinguishing between benign photographs of nude children (which are protected expression under the First Amendment) and child pornography (which is not so protected). See Supplemental Answer at 53-62. The MAC affirmed Sullivan's conviction after surveying relevant law regarding the boundaries between the First Amendment's protections and statutes permissibly criminalizing possession of child pornography, evaluating the photograph at issue, and concluding that the photograph "is a lewd exhibition of a child's breasts and pubic area and therefore an exploitation of her developing sexuality." Sullivan, 972 N.E.2d at 482-88. One justice dissented, arguing the photograph portrayed "mere nudity, " and that criminalizing its possession was "constitutionally infirm." Id. at 491-92. He suggested the lack of clear appellate-court guidance on the meaning of the phrase "lewd exhibition" - or, as the dissenting justice put it, "on what demarcates the boundary between the exercise of free expression and a lengthy prison term" - "raises both First Amendment and due process concerns." Id. at 496.

Sullivan sought further review by the Supreme Judicial Court ("SJC"), citing the MAC dissent and urging the SJC to announce a clear rule limiting "lewd exhibition" to depictions portraying children "in an overtly sexualized' manner that is tantamount to sexual abuse or exploitation of the child." Supplemental Answer at 357-58 (quoting Sullivan, 972 N.E.2d at 496). The SJC denied review in November 2012; Sullivan did not seek certiorari in the United States Supreme Court. Doc. No. 1 at 3-4.

In June 2013, acting through counsel, Sullivan filed a timely federal habeas petition raising only one claim:

[The] [d]enial of [Sullivan's] motion for [a] required finding of not guilty on one count of possession of child pornography violated his First Amendment right to protected speech since the single photograph he downloaded from the internet was of a nude adolescent but it did not depict the requisite "lewd exhibition" to make the possession unlawful.

Id. at 6.

The respondent opposed Sullivan's petition, arguing the claim it presents was not properly exhausted in state court and would not justify habeas relief in any event. See generally Doc. No. 19. Sullivan filed a reply brief, Doc. No. 22, and the ...

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