The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Petitioner Aric Sven ("Sven") was convicted of one count of child pornography in violation of 720 ILCS 5/11-20.1(a)(1)(vii) on January 19, 2005 in the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois. In addition, he pled guilty to four misdemeanor counts of unlawful videotaping. Sven now petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 arguing that his child pornography conviction resulted from an unreasonable application of New York v. Ferber, 458 U.S. 747 (1982) and its progenybecause the videos at issue contain mere nudity rather than child pornography and that the state court made an unreasonable determination of facts in finding that the videos constituted child pornography. For the reasons stated below, Sven's petition is denied.
FACTS AND PROCEDURAL HISTORY
Sven mounted two hidden video cameras in his home bathroom - one aimed at approximately waist level and one pointing downward on the bathroom from a higher angle. Using these cameras, Sven videotaped his infant daughter's babysitter, then fourteen or fifteen years old, in the bathroom unclothed bathing the infant. Sven specifically instructed the babysitter to bathe the baby and to get into the tub with the baby for safety reasons. These videotapes are the basis for Sven's child pornography conviction, which he now challenges.
Sven was charged in Lake County, Illinois with seven counts of child pornography in violation of 720 ILCS 5/11-20.1(a)(1)(vii) and four counts of unauthorized video recording in violation of 720 ILCS 5/26-4. Sven pled guilty to all four counts of unauthorized videotaping. The State dismissed four of the child pornography counts prior to trial and Sven proceeded to a bench trial on the remaining three counts. The trial judge acquitted Sven of two of the remaining three counts at the close of the State's case but convicted Sven of the last count of child pornography.
The issue at trial was whether the videos depicted the babysitter in a pose, posture or setting involving a lewd exhibition of her genitalia. Illinois courts apply a six-factor test, originally proposed in United States v. Dost, 636 F.Supp. 828 (S.D.Cal. 1986), in determining whether a visual depiction of a child constitutes the lewd exhibition of the genitals (The "Dost test" or "Dost factors"). See People v. Lamborn, 708 N.E.2d 350, 354 (Ill. 1999). They consider: "1) whether the focal point of the visual depiction is on the child's genitals; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer." Id. All of these factors need not be present in order for an image to be considered a lewd exhibition of the genitals. See Id. at 355 citing United States v. Villiard, 885 F.3d 117, 122 (3rd Cir. 1989). Rather, a determination of whether an image is lewd involves analyzing the overall content of the image including the age of the child. See Id.
The trial court applied the Dost factors and in an oral decision found that: 1) although the genitals are not always the focal point of the tapes, there are multiple occasions where they are the focal point; 2) the setting was not sexually suggestive; 3) it was not natural for a naked fourteen or fifteen-year old girl to be holding a naked child, not her own; 4) the victim was completely nude; 5) it was not sure whether any of the victim's behaviors suggested sexual coyness and chose not to give the factor much weight; and 6) that the sixth factor is "an objective test based upon the subcommunity of pedophiles" and that a pedophile would be aroused by the videos in this case. As such, the trial court found that the first, third, fourth and sixth Dost factors were present. Sven was convicted of one count of child pornography and thereafter sentenced to eight years of imprisonment on the child pornography count to run concurrent to one year of imprisonment on the unauthorized videotaping counts. Sven has since served his prison sentence and is serving a term of supervised release in Illinois.
Sven appealed his conviction to the Illinois Appellate Court ("Appellate Court"), arguing that 1) the videotapes did not amount to child pornography because they contained only innocent, non-sexual conduct; 2) the Illinois legislature did not intend to include conduct such as Sven's under the child pornography statute because such conduct is already proscribed by the unauthorized videotaping statute; 3) the trial court erred in allowing evidence of the circumstances surrounding the production of the videotapes; and 4) Sven's eight year sentence was excessive. The Appellate Court affirmed Sven's conviction. Most notably, it conducted a de novo review as to whether the image at issue was lewd and therefore child pornography not protected by the First Amendment.
See People v. Sven, 848 N.E.2d 228, 232 (Ill.App.Ct. 2006).
The Appellate Court found that three of the six Dost factors were present and therefore that the videotape was lewd and qualified as child pornography within the Illinois statute. Id. at 240. Specifically, the Appellate Court found that portions of the video focused on the victim's genitalia (factor 1), that the victim was completely nude (factor 4) and that the depiction was intended to illicit a sexual response in the viewer (factor 6). Id. As to factor 6, the court found that the video was intended to illicit a sexual response because the video places the viewer in the role of a voyeur, thus sexualizing the images. Id. at 239. Notably, the court found that "the viewer stands in relation to the victim as would a peeping tom" and the victim does not in any way react to the cameras. Id. Based on these findings, the Appellate Court found that the video constituted a lewd exhibition of the genitals and thus constituted child pornography. Id. at 240. Also, the Appellate Court found that the trial court incorrectly relied on evidence as to how the video was produced in determining whether it was lewd but that this did not provide a basis for reversal following the Appellate Court's de novo review. Id. at 241.
Sven then filed a petition for leave to appeal ("PLA") to the Supreme Court of Illinois arguing that the Appellate Court failed to apply the proper objective standard in determining whether the images on the tapes constituted child pornography. The Illinois Supreme Court denied Sven's PLA. See People v. Sven, 861 N.E.2d 663 (table) (Ill. 2006). Sven did not pursue post-conviction remedies in state court; instead, he filed the petition for writ of habeas corpus in this Court on October 22, 2007. He argues that 1) the Illinois Courts' conclusions that the videos depicted child pornography amounted to an unreasonable application of federal law as set forth in New York v. Ferber, 458 U.S. 747; and 2) the Illinois Courts' determinations of the fact were objectively unreasonable. Sven does not raise claims related to his guilty pleas to unlawful videotaping.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief may be granted to a person in custody pursuant to the judgment of a state court only if the decision of the state court was 1) contrary to or an unreasonable application of federal law as clearly established by the Supreme Court or 2) an unreasonable determination of the facts in light of the evidence presented in the state court. See 28 U.S.C. § 2254 (d). The "unreasonable application" prong of AEDPA applies where a petitioner argues that a state court decision correctly identified the governing federal legal rule but unreasonably applied it to the facts of the case. See Boss v. Pierce, 263 F.3d 734, 739 (7th Cir. 2001) citing Williams v. Taylor, 529 U.S. 362, 407-08 (2000). "An unreasonable application of federal law is different from an incorrect application of federal law." Id. As such, a federal habeas court may not grant a petition of habeas corpus simply because it disagrees with a state court's application of clearly established federal law; rather it must find the application "so erroneous as to be unreasonable." Id. Put differently, a "state court decision is reasonable if it is 'minimally consistent with the facts and circumstances of the case.'" Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) quoting Schaff v. Snyder, 190 F.3d 513, 523 (7th Cir. 1999).
In addressing whether a state court rendered a decision based on an unreasonable determination of the facts, this Court presumes that factual determinations by state courts are correct absent clear and convincing evidence to the contrary. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The state court decision must be not only incorrect but also unreasonable. See Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003). "A state court decision that rests upon a determination of fact that lies against the clear weight of the evidence is, by definition, a decision 'so ...