UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
June 28, 1977
MYRON M. AMATO, PETITIONER-APPELLEE,
ARCHIE H. DIVINE, JR., SHERIFF OF ROCK COUNTY, WISCONSIN, RESPONDENT-APPELLANT
Appeal from the United States District Court for the Western District of Wisconsin. Nos. 72-C-281, 72-C-282. James E. Doyle, Judge.
Knoch, Senior Circuit Judge, Swygert, Circuit Judge, and Campbell, Senior District Judge.*fn*
Author: Per Curiam
We affirmed an order of the district court granting a petition for a writ of habeas corpus on the basis that the Wisconsin obscenity statute, Wisconsin Statutes, § 944.21(1)(a), under which petitioner was convicted, was unconstitutionally vague. Amato v. Divine, 496 F.2d 441 (7th Cir. 1974). That decision was vacated and remanded by the United States Supreme Court, 419 U.S. 1014, 95 S. Ct. 487, 42 L. Ed. 2d 288 (1974), for further consideration in light of Hamling v. United States, 418 U.S. 87, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1974) and State ex rel. Chobot v. Circuit Court, 61 Wis. 2d 354, 212 N.W. 2d 690 (1973). The facts underlying this appeal are set forth in Amato, supra, 496 F.2d at 442-443, and need not be repeated here. The district court's opinion is reported at 354 F. Supp. 805 (W.D. Wis. 1973).
In Chobot, supra, 212 N.W. 2d at 698, the Wisconsin Supreme Court authoritatively construed the word "obscene" in Wisconsin Statutes § 944.21(1)(a) to comport with the test for obscenity formulated in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). As so construed, the Wisconsin obscenity statute meets First Amendment standards and any objection to its constitutionality on vagueness grounds has been eliminated. Id., at 24, n. 6; Hamling, supra, 418 U.S. at 110-114.
Our review of the history of this case indicates that petitioner's conviction had become final prior to the announcement of new standards for "isolating 'hard core' pornography from expression protected by the First Amendment," Miller, supra, 413 U.S. at 29, and, hence, petitioner is not entitled to any arguable constitutional benefit derived from Miller. Hamling v. United States, supra; Marks v. United States, 430 U.S. 188, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). Although the jury was properly instructed as to the standards to be employed in determining the obscenity vel non of the publications*fn1 and found petitioner guilty of selling obscene material, that determination necessarily involved petitioner's First Amendment rights, and we are not foreclosed from independently reviewing the publications in question to determine whether or not they are obscene. Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957); Jacobellis v. Ohio, 378 U.S. 184, 12 L. Ed. 2d 793, 84 S. Ct. 1676 (1964); Jenkins v. Georgia, 418 U.S. 153, 41 L. Ed. 2d 642, 94 S. Ct. 2750 (1974).
We have made such an independent review, and agree with the district court that the publications for which petitioner was convicted cannot be distinguished in any meaningful way from those publications found by the Supreme Court not to be obscene.*fn2
Accordingly, the order of the district court granting the petition for a writ of habeas corpus is hereby affirmed.