Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Murphy, Circuit Judge
Submitted: October 19, 2010
Before MURPHY, BEAM, and BENTON, Circuit Judges.
Helmut Horst Mauer brought this action under 28 U.S.C. § 2254 alleging that his due process rights were violated by his state conviction for possession of child pornography. The federal district court*fn1 denied relief but granted him a certificate of appealability on the issue of whether the Minnesota Supreme Court violated his due process rights by remanding his case to the trial court without vacating his conviction or granting him a new trial. In response to the certified question Mauer urges that several decisions of the United States Supreme Court support his position and entitle him to the relief he seeks. We affirm.
Mauer received a mail solicitation in April 2003 to purchase videos said to depict girls, aged from nine to fourteen, engaging in various sex acts. The solicitation purported to be from the Cultural Research Team (CRT), from which Mauer had ordered videos in 1998. In fact it was from government agents who had taken over CRT and were using its mailing list in a sting operation to target purchasers of child pornography. Mauer ordered four video CDs advertised in the solicitation for $515. He also requested more information about a "write your own script" video described as showing a thirteen year old girl fulfilling the subscriber's "fantasy with her." In May, a package containing the four CDs was delivered to Mauer at his business. He signed for it, and minutes later a postal inspector entered and found the package already opened. The inspector confiscated four videos, three of which showed actors clearly under the age of majority who were engaging in sex acts.
In August 2004 Mauer was charged in Hennepin County District Court with violation of Minn. Stat. § 617.247 Subd. 4(a). He waived a jury trial and proceeded to trial before Judge Charles Porter. After considering the evidence, Judge Porter issued detailed findings of fact and conclusions of law and found Mauer guilty as charged. Minn. Stat. § 617.247 Subd. 4(a) provides:
A person who possesses a pornographic work or a computer disk or computer or other electronic, magnetic, or optical storage system . . . containing a pornographic work [involving a minor], knowing or with reason to know its content and character, is guilty of a felony and may be sentenced to imprisonment for not more than five years and a fine of not more than $5,000. . . (emphasis added).
At trial Mauer stipulated that the CDs confiscated from his office contained child pornography, but he argued that he was not aware that the actors appearing on the CDs were actually minors. After the trial concluded Judge Porter found, however, that Mauer had "reason to know" the videos contained real children. The evidence on which the court based that finding included Mauer's testimony that he found girls with the "young look" to be sexually stimulating; his earlier order from CRT in 1998 of two "child erotica" projects involving actual children, as opposed to young looking adults; his disposal of the child erotica projects after he realized the actors were in fact children; and the fact that the 1998 descriptions of child erotica and the CRT mail solicitations in 2003 were similar. This evidence was sufficient to conclude that Mauer had "reason to know" that the actors depicted on the videos would be actual minor children. Judge Porter entered judgment of conviction in December 2004.
Mauer appealed his conviction and also sought post conviction relief. The district court denied Mauer's motion for post conviction relief, and in January 2007 the Minnesota court of appeals affirmed Mauer's conviction. It interpreted the statute's requirement that the defendant possess child pornography "knowing or with reason to know its content and character" to mean that possessors of child pornography must be "in some manner aware" that the performers are minors in order to be convicted under § 617.247 Subd. 4(a). See State v. Mauer, 726 N.W.2d 810, 814 (Minn. App. 2007). It also concluded that its narrowing construction of the statutory elements could be applied to Mauer's conviction retroactively because he "had fair warning that his conduct was criminal." Id. at 816.
Mauer sought review of both decisions in the Minnesota Supreme Court. The court denied review of Mauer's claim that the intermediate appellate court's failure to reverse his conviction and remand for a new trial violated his due process rights. It granted review of the other issue in his petition challenging the constitutionality of the statute's knowledge requirement. The supreme court construed § 617.247 Subd. 4(a) to mean that a defendant charged with possession of child pornography could only be convicted if he was "subjectively aware of a substantial and unjustifiable risk that the work involves a minor." State v. Mauer, 741 N.W.2d 107, 115 (Minn. 2007) (quotation marks omitted). The court further observed that it was "possible that the district court determined Mauer had reason to know because, despite being unaware of a risk that the videos would involve children, a reasonable person under the circumstances should have known." Id. at 116. Because it was not clear whether the trial court had used a subjective test, the supreme court remanded the case to Judge Porter to apply the standard it had enunciated to the facts of Mauer's case. The trial court was to "review the record and reach a conclusion as to whether Mauer was subjectively aware of a substantial and unjustifiable risk that the videos he ordered from C.R.T. would involve minors." Id. The supreme court did not vacate Mauer's conviction or order a new trial.
On remand, Judge Porter issued additional findings based on the evidence he had originally heard. He found that the solicitation received by Mauer had described the actors as "12 year old," "preteens," "young girls 11-13 years old," and "9-14 years old." He again found that Mauer had previously ordered child erotica projects similar to the CRT mailing, all of which had involved actual children. In conclusion the trial court held, that "[b]y ordering films portraying young people engaged in sex acts, with actors advertised as being between the ages of nine and fourteen, and based on his personal history of receiving films from this production company, [Mauer] knowingly took a substantial and unjustifiable risk that the actors in the films at issue in this case would be actual minors." Since Mauer had been subjectively aware of a substantial and unjustifiable risk that the videos he ordered would involve minors, his judgment of conviction was upheld.
Mauer then petitioned for habeas relief under 28 U.S.C. § 2254(d)(1), arguing that the supreme court's remand order was contrary to clearly established law and a violation of due process under Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965); Ashton v. Kentucky, 384 U.S. 195 (1966); and Osborne v. Ohio, 495 U.S. 103 (1990). He argues that those cases stand for the proposition that where a state supreme court has narrowly construed a potentially unconstitutional statute, a defendant's prior inconsistent conviction must be reversed and a new trial ordered to ensure that he could only be convicted under the statute as subsequently ...