Cobb v . Warden, NHSP CV-03-071-M 12/08/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

David Cobb, Petitioner

v. Civil N o . 03-017-M Opinion N o .

Jane Coplan, Warden New Hampshire State Prison, Respondent

O R D E R

David Cobb, a state prisoner, seeks habeas corpus relief

from his multiple state court convictions for attempted felonious

sexual assault, exhibiting or displaying child pornography, and

possession of child pornography. He complains that he was denied

effective assistance of trial counsel and that at least some of

his convictions were obtained in violation of First Amendment

guarantees. See generally

.

Specifically, Cobb says that some of the pornographic

depictions of children that led to his convictions were actually

“collages that contained components made by juxtaposing adult

nude bodies with cut-outs [of children’s faces taken] from

children’s catalogs.” Petitioner’s memorandum in support of habeas petition (document n o . 1 ) at 1 . Thus, says Cobb, “there

were no actual children used or exploited in the creation of the

collages.”

Consequently, he asserts that, at least as to

those particular pornographic depictions of children, his conduct

is protected by the First Amendment and cannot serve as the basis

for a criminal prosecution or conviction. Moreover, Cobb says

his trial counsel’s performance was constitutionally deficient

insofar as she failed to raise any defense based upon the First

Amendment (at least as to charges based upon collages).

The State, asserting that Cobb is not entitled to the relief

he seeks, moves for summary judgment. Cobb Objects. While

Cobb’s petition implicates interesting questions concerning the

scope of First Amendment protections afforded pornography in

general and, in particular, so-called “virtual” child

pornography, he has failed to point to any genuine issues of

material fact that, if resolved in his favor, might preclude

summary judgment in favor of the State.

2 Background

In May of 1996, Cobb was convicted of one count of attempted

felonious sexual assault, fifty-three counts of displaying child

pornography, and two hundred and sixty-seven counts of possessing

child pornography. He was sentenced to serve eight to fifteen

years in the New Hampshire State Prison, where he is presently

incarcerated.

Following trial, Cobb appealed his convictions to the New

Hampshire Supreme Court, raising twelve distinct issues for the

court’s review. After addressing and rejecting each of Cobb’s

assertions of error, the court affirmed his convictions. State

v . Cobb,

(1999). The state court’s opinion was

issued on June 2 4 , 1999. Cobb had 90 days from that date - until

September 2 2 , 1999 - to file a petition for a writ of certiorari

in the United States Supreme Court. He did not. Accordingly, at

that point, his convictions became final.

On September 2 2 , 2000, the one-year limitations period

established by the Antiterrorism and Effective Death Penalty Act

(“AEDPA”),

, et seq., during which Cobb could

3 file a federal petition for habeas corpus, lapsed. He did not

file a federal petition before the statutorily prescribed window

of opportunity closed (nor did he file any state collateral

attack on his convictions during that period).

On May 2 , 2002, more than two and one-half years after his

convictions became final, Cobb filed a “Motion for New Trial and

Petition for Habeas Corpus” in the state superior court. In that

petition, Cobb raised two issues he did not advance in his direct

appeal: that his convictions violate the First Amendment, and a

derivative claim that he received ineffective assistance of trial

counsel - the claims he now seeks to pursue in this forum. In

August of 2002, the state superior court issued a written order

denying his habeas petition. State v . Cobb, N o . 95-S-535-F (N.H.

Super. C t . Aug. 1 5 , 2002) (the “State Habeas Decision”), attached

to petitioner’s amended petition (document n o . 4 ) . Subsequently,

on November 1 8 , 2002, the New Hampshire Supreme Court declined to

accept Cobb’s appeal. Approximately two months later, on January

1 4 , 2003, Cobb filed the presently-pending petition for federal

habeas corpus relief under

.

4 Discussion

I. Cobb’s Habeas Corpus Petition is Untimely.

In support of its motion for summary judgment, the State

says Cobb’s petition is untimely, since it was filed after the

deadline established by AEDPA. Accordingly, says the State, the

petition must be dismissed.

With regard to the pertinent limitations period, the court

of appeals for this circuit has observed:

AEDPA, which became effective on April 2 4 , 1996, fixes a one-year limitations period for federal habeas petitions by state prisoners. Statutory exceptions exist where the state impeded relief, new constitutional rights were created by the Supreme Court, or newly discovered facts underpin the claim, but [petitioner] does not claim to fall within any of these exceptions. Absent an exception, AEDPA’s one- year limit runs from the time that the state court judgment of conviction became final by the conclusion of direct review or the expiration of the time for seeking i t .

David v . Hall,

(1st Cir.) (citations omitted)

(emphasis supplied), cert. denied, 157 L . Ed. 2d 30 (2003). Like

the petitioner in David, Cobb does not claim that any of the

statutory exceptions apply to him. See

(d)(1)(B) through ( D ) . Consequently, barring any tolling of

5 the statutory limitations period, the time within which Cobb

could have filed a federal habeas corpus petition expired on

September 2 2 , 2000 - that i s , one year after he could no longer

file a timely petition for a writ of certiorari to the United

States Supreme Court.

Importantly, AEDPA does provide that the one-year

limitations period applicable to state inmates is tolled for that

period of time during which “a properly filed application for

State post-conviction or other collateral review with respect to

the pertinent judgment or claim is pending.”

(d)(2). In this case, however, Cobb did not file a state

petition seeking collateral review of his convictions until well

after AEDPA’s limitations period had already expired. As noted

above, that period lapsed on September 2 2 , 2000. Cobb did not

file his state habeas petition until May 2 , 2002 - more than one

and one-half years later. Consequently, AEDPA’s limitation

period was not (nor could it have been) tolled by the pendency of

Cobb’s state habeas petition; that period had already lapsed well

before Cobb ever filed his state petition and there was nothing

left of it to toll. See, e.g., Voravongsa v . Wall, __ F.3d ___,

6

(1st Cir. Nov. 1 2 , 2003) (“With no

predicate State post-conviction application having been filed in

a timely manner, [petitioner] is not entitled to have the time-

limitations period of § 2244(d)(1) tolled by virtue of §

2244(d)(2).”).

II. AEDPA’s Limitation Period and Equitable Tolling.

Although Cobb’s argument is unclear, he seems to acknowledge

(at least implicitly) that his federal petition for habeas corpus

relief is untimely. Nevertheless, he appears to assert that

AEDPA’s one-year limitations period should be equitably tolled,

since he advances a claim that he is “actually innocent” of some

of the charges for which he was convicted and sentenced. The

court disagrees.

Typically, a federal habeas petitioner raises a claim of

“actual innocence” when he or she seeks to advance a claim that

was procedurally defaulted in state court and the petitioner

cannot otherwise meet the “cause and prejudice” prerequisite to

federal review of defaulted claims. “Whether a claim of ‘actual

innocence’ can also serve to avoid AEDPA’s statute of limitations

7 is a more cloudy issue that few courts have directly addressed.”

McLaughlin v . Moore,

(D.N.H. 2001).

In this case, Cobb’s claim to the benefit of equitable

tolling suffers from several shortcomings. The first, and

perhaps most substantial, is that neither the Supreme Court nor

the court of appeals for this circuit has held that AEDPA’s one

year limitations period applicable to state prisoners may be

equitably tolled. See, e.g., David,

(noting that

“section 2244(d) comprises six paragraphs defining its one-year

limitations period in detail and adopting very specific

exceptions. Congress likely did not conceive that the courts

would add new exceptions and it is even more doubtful that it

would have approved of such an effort.”). See also Donovan v .

State of Maine,

7 , 92 (1st Cir. 2002).

Nothing is changed here by David’s claim of actual innocence, a claim itself derived from his mistaken- colloquy argument. In general, defendants who may be innocent are constrained by the same explicit statutory or rule-based deadlines as those against whom the evidence is overwhelming: pre-trial motions must be filed on time, timely appeals must be lodged, and habeas claims must conform to AEDPA. In particular, the statutory one-year limit on filing initial habeas petitions is not mitigated by any statutory exception

8 for actual innocence even though Congress clearly knew how to provide such an escape hatch.

David,

(noting that Congress did adopt a form of

“actual innocence” test with regard to the statutory provisions

governing the filing of second or successive petitions).

Second, even assuming that AEDPA’s one-year limitations

period is subject to equitable tolling, such extraordinary relief

is available only in the most compelling of circumstances. As

the David court observed:

If equitable tolling is available to extend section 2244(d)’s limitations period, it can only do so for the most exceptional reasons. One of AEDPA’s main purposes was to compel habeas petitions to be filed promptly after conviction and direct review, to limit their number, and to permit delayed or second petitions only in fairly narrow and explicitly defined circumstances. To bypass these restrictions for reasons other than those given in the statute could be defended, if at all, only for the most exigent reasons.

(citations omitted)(emphasis supplied). See also

Donovan,

(“We have made it pellucid that equitable

tolling, if available at all, is the exception rather than the

rule; and that resort to its prophylaxis is deemed justified only

in extraordinary circumstances.”) (citations and internal

9 punctuation omitted); Delaney v . Matesanz,

, 15 (1st

Cir. 2001) (“In short, equitable tolling is strong medicine, not

profligately to be dispensed.”). Cobb’s case does not present

the sort of compelling or extraordinary circumstances that might

justify equitable tolling.

Cobb has wholly failed to justify (or even explain) why his

petition was filed more than a year and one-half after the

pertinent limitations period expired. While he relies heavily on

the Supreme Court’s recent opinion in Ashcroft v . Free Speech

Coalition,

(2002), in support of his actual

innocence claim, he acknowledges that Ashcroft did not recognize

a new constitutional right. See Petitioner’s memorandum in

support of habeas petition at 7 (“Ashcroft has not established a

‘new rule’ of constitutional law, but rather has reaffirmed the

First Amendment rights of individuals.”). See generally

(d)(1)©) (providing that AEDPA’s one-year limitation

period begins to run on the date “on which the constitutional

right asserted was initially recognized by the Supreme Court, if

the right has been newly recognized by the Supreme Court and made

10 retroactively applicable to cases on collateral review.”)

(emphasis supplied).

Although Cobb does not specifically invoke the tolling

provisions of sections 2254(d)(1) or ( 2 ) , he seems to suggest

that the constitutional protections afforded to “virtual

pornography” were only recently recognized, in Ashcroft. He i s ,

however, incorrect. The Supreme Court recognized, more than

twenty years ago, that some types of so-called “virtual

pornography” fall within the protections of the First Amendment:

We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance or scientific or educational work. . . . [I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside the prohibition of the statute could provide another alternative.

New York v . Ferber,

4 7 , 762-63 (1982) (footnote

omitted). As the Ashcroft court noted, “Ferber, then, not only

referred to the distinction between actual and virtual child

pornography, it relied on it as a reason supporting its holding.”

Ashcroft,

.

11 Thus, the claims Cobb seeks to raise in his untimely section

2254 petition - both of which are based on his assertion that

“virtual” child pornography of the sort he possessed is protected

by the First Amendment - were available to him long before

AEDPA’s one-year limitations period expired. Cobb tends to

acknowledge the point when he asserts that his trial counsel’s

performance was constitutionally deficient insofar as she failed

to raise that First Amendment defense during his trial.

Consequently, the court can discern no equitable basis to excuse

his failure to raise those available claims in a timely manner.

See, e.g., Donovan,

4 . As this court recently

observed, even assuming an “actual innocence” claim can, under

appropriate circumstances, toll AEDPA’s limitations period, it is

unlikely that a petitioner can avail himself of such equitable

relief if he fails to present known claims within AEDPA’s one-

year limitations period.

Further complicating [petitioner’s] claim is the fact that the evidence upon which he relies to demonstrate his asserted innocence has been available to him for several years . . . Accordingly, he easily could have presented that evidence in support of a timely section 2254 petition. While it is unclear whether a claim of actual innocence can operate to toll AEDPA’s statute of limitations, it is even less clear that such an

12 equitable tolling principle can be invoked by a petitioner who failed to exercise reasonable diligence in pursuing his federal claims.

McLaughlin,

(emphasis in original). See

also Delaney v . Matesanz,

, 15 (1st Cir. 2001) (“Even

where available, equitable tolling is normally appropriate only

when circumstances beyond a litigant’s control have prevented him

from filing on time. In the usual case, a court may deny a

request for equitable tolling unless the proponent shows that he

was actively misled or prevented in some extraordinary way from

asserting his rights.”) (citation and internal quotation marks

omitted).

In sum, then, even assuming AEDPA’s one-year limitations

period may, in appropriate cases, be subject to equitable

tolling, this is not such a case.

III. Cobb’s Petition Lacks Merit.

Finally, even if the court were to conclude that Cobb’s

situation presents sufficiently compelling circumstances to

warrant equitable tolling of AEDPA’s limitations period, Cobb

would not be entitled to the habeas relief he seeks.

13 A. AEDPA’s Standard of Review.

Since passage of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”),

(d), the power to

grant federal habeas relief to a state prisoner with respect to

claims adjudicated on the merits in state court has been

substantially limited. A federal court may not disturb a state

conviction unless the state court’s adjudication “resulted in a

decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.”

(d)(2). Alternatively, habeas

relief may be granted if the state court’s resolution of the

issues before it “resulted in a decision that was contrary t o , or

involved an unreasonable application o f , clearly established

Federal law, as determined by the Supreme Court of the United

States.”

(d)(1). See also Williams v . Taylor,

6 2 , 399 (2000).

Here, Cobb attacks the underlying state court decision

pursuant to section 2254(d)(1). S o , to prevail on his petition,

he must demonstrate that the state habeas court’s rejection of

his ineffective assistance claim and/or his First Amendment claim

14 was contrary t o , or involved an unreasonable application o f ,

clearly established Federal law, as determined by the Supreme

Court.

The United States Supreme Court recently explained the

distinction between decisions that are “contrary to” clearly

established federal law, and those that involve an “unreasonable

application” of that law.

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.

Williams, 529 U.S. at 412-13. The Court also noted that an

“incorrect” application of federal law is not necessarily an

“unreasonable” one.

[T]he most important point is that an unreasonable application of federal law is different from an incorrect application of federal law . . . . Under § 2254(d)(1)’s ‘unreasonable application’ clause, then, a federal habeas court may not issue the writ simply

15 because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Id. at 410-11 (emphasis in original).

B. Cobb’s “Collages” and Supreme Court Precedent.

Cobb asserts that, in light of the Supreme Court’s opinion

in

the collages that led to at least some of his

convictions are protected by the First Amendment. Consequently,

he says the state court’s rejection of his First Amendment claim

was contrary to or involved an unreasonable application of

clearly established federal law, as interpreted by the Supreme

Court, entitling him to federal habeas relief. Again, however,

he is incorrect.

Because the central thesis of Cobb’s argument is that the

collages leading to some of his convictions constituted “virtual

pornography” (which he claims is protected by the First

Amendment), it is appropriate to examine the nature of the child

pornography at issue in this case. The pornographic material

underlying Cobb’s convictions fell into two categories:

16 photographs of actual naked children and the so-called collages.

At least some of the photographs of actual children were obtained

from black market child pornography books and magazines. See

State Habeas Decision at 9. The collages were described by the

state supreme court as follows:

The items at issue are Polaroid photographs. The photographs generally fall into the following categories: adult nude bodies juxtaposed with fully clothed children; composite images containing the sexually immature bodies or body parts of children either depicted by themselves, with or without a face, or juxtaposed with the faces of adults or other children, some altered by the addition of hand-drawn pubic hair; and nude bodies that have been altered by the addition of children’s heads.

State v . Cobb,

. Later in its opinion, the court

concluded that, “[a] review of all the photos at issue supports

the conclusion that each depicts a child engaged in sexual

activity as defined [by state law].”

(emphasis

supplied).

In Ashcroft, the Supreme Court considered challenges to

various provisions of the Child Pornography Prevention Act of

1996,

, et seq. (the “CPPA”). In particular, the

Court addressed whether

(8)(B) and (D) could

17 withstand constitutional scrutiny. The litigants did not

challenge, nor did the Court speak to the constitutionality of

section 2256(8)(C).

In describing the scope of section 2256(8)(B), the Court

observed that i t :

prohibits “any visual depiction, including any photograph, film, video, picture, or computer oro computer-generated image or picture” that “is, or appears to b e , of a minor engaging in sexually explicit conduct.” The prohibition on “any visual depiction” does not depend at all on how the image is produced. The section captures a range of depictions, sometimes called “virtual child pornography,” which include computer-generated images, as well as images produced by more traditional means. For instance, the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology, a “picture” that “appears to b e , of a minor engaging in sexually explicit conduct.” The statute also prohibits Hollywood movies, filmed without any child actors, if a jury believes an actor “appears to be” a minor engaging in “actual or simulated . . . sexual intercourse.”

Ashcroft,

. As to the sort of images embraced by

that particular section of the CPPA, the Court noted that they

“do not involve, let alone harm, any children in the production

process.”

Consequently, unless those images are also

obscene, “virtual pornography” of that particular type is

18 protected by the First Amendment.

(“As a general

rule, pornography can be banned only if obscene, but under

Ferber, pornography showing minors can be proscribed whether or

not the images are obscene.”).

Cobb’s collages are not the sort of “virtual pornography”

described by the Court as falling within the scope of section

2256(8)(B), since those collages did involve real children.

Images of that sort (or, perhaps more accurately, their computer-

age analog) are addressed in section 2256(8)(C), which “prohibits

a more common and lower tech means of creating virtual images,

known as computer morphing.” Ashcroft,

. Like

Cobb’s collages, computer morphing involves altering photographs

of actual children to make it appear that those children are

engaged in sexually explicit conduct. See

(describing

“computer morphing” as follows: “Rather than creating original

images, pornographers can alter innocent pictures of real

children so that the children appear to be engaged in sexual

activity.”).

19 While the Court did not specifically address the

constitutionality of section 2254(8)(C)’s ban on that particular

type of “virtual pornography,” it did note that “[a]lthough

morphed images may fall within the definition of virtual child

pornography, they implicate the interests of real children and

are in that sense closer to the images in Ferber.”

Although

not part of the Court’s holding, that dictum strongly suggests

that Cobb’s collages are not protected by the First Amendment.1

Unlike a Renaissance painting of a fictitious subject or a

Hollywood movie that employs adult actors who simply

1 In Ferber, the Court upheld the constitutionality of New York’s statutory ban on the distribution of materials that depict a sexual performance by a child. In reaching the conclusion that child pornography is outside the scope of the protections afforded by the First Amendment, the Court noted that the “prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Id. at 757. In support of that conclusion, the Court observed:

The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children . . . . [T]he materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.

Id. at 759 (emphasis supplied).

20 appear to be minors, Cobb’s collages involved pornographic images

of real children. In that regard, they implicate concerns

identified in both Ferber and Ashcroft, insofar as a lasting

record has been created of those children seemingly engaged in

sexual activity.

In light of the foregoing, Cobb has not sustained his burden

of establishing that the state court’s decision rejecting his

habeas petition was contrary to or involved an unreasonable

application of federal law as determined by the Supreme Court.

First, as noted above, the Supreme Court has not held that

collages of the sort possessed by Cobb are protected by the First

Amendment. See Ashcroft,

(“Respondents do not

challenge this provision, and we do not consider i t . ” ) . In fact,

the Court has suggested just the opposite. See generally Ferber,

supra. Accordingly, Cobb cannot demonstrate that the state

court’s decision was “contrary to” Supreme Court precedent.

Nor has he demonstrated that the state court’s decision

involved an “unreasonable application” of Supreme Court

precedent, particularly in light of the Ashcroft dictum noting

21 that morphed images of real children made to appear as though

they are engaged in sexual activity likely fall outside the scope

of the First Amendment’s protections. Cobb’s First Amendment

claims regarding his collages were resolved by the state superior

court as follows:

[T]he photographs including so-called “morphed” images [i.e., the “collages”] are not protected by the United States Supreme Court’s decision in Ashcroft. The Ashcroft Court specifically declined to consider the federal statute dealing with “morphing” and noted that although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children and are in that sense closer to the images in Ferber.”

Although the people whose photographs have been “morphed” were not made to engage in the behavior displayed in the photographs, they are nonetheless victimized each time photographs containing their image are displayed or exhibited.

Whereas the United States Supreme Court considered the mere possession of virtual child pornography a “victimless” crime, the same cannot be said of the defendant’s possession of the charged photographs in this case. Although in the pictures being contested by the defendant live naked children were not made to engage in the particular activities displayed in the photographs, the images of real children were edited to appear as though the children were engaged in sexual conduct. While the children in the morphed photographs may belong to a different class of victims than children made to actually engage in sexual behavior in the production process of child pornography, the

22 children in the morphed photographs are nonetheless actual identifiable human victims, rather than computer-generated virtual images. In other words, morphed photographs create direct and identifiable child victims of sexual exploitation, whereas purely computer-generated virtual child pornography does not, absent additional criminal conduct, directly victimize any particular children. The underlying concerns which informed the Ferber decision, therefore, are implicated by the facts of this case in a manner they were not in Ashcroft.

State Habeas Decision at 13-16. In resolving Cobb’s First

Amendment claim, then, the state habeas court: (1) properly

identified the applicable Supreme Court precedent; and (2)

applied that precedent in a thorough and thoughtful way that

cannot be deemed “unreasonable.” Accordingly, Cobb is not

entitled to federal relief under section 2254.

C. Ineffective Assistance and the “Strickland” Standard.

To prevail on his second claim - that his trial counsel’s

performance was constitutionally deficient - Cobb must satisfy

both elements of a two-part test. First, he must “show, by a

preponderance of the evidence, that [his] trial counsel’s conduct

fell below the standard of reasonably effective assistance.”

Gonzalez-Soberal v . United States,

(1st Cir.

2001) (citing Strickland v . Washington,

6 8 , 687

23 (1984)). Next, he must demonstrate that counsel’s errors

actually prejudiced his defense. Id. See also Cofske v . United

States,

(1st Cir. 2002).

With regard to the first prong of the Strickland test, the

court employs a highly deferential standard of review in

assessing the quality of trial counsel’s representation, and

“must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that

i s , the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound

trial strategy.” Strickland, 466 U.S. at 689 (citation and

internal quotation marks omitted). In other words, to satisfy

his burden, Cobb must demonstrate that his trial attorney made

errors that were “so serious that [she] was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id. at 687.

To satisfy the second prong of the Strickland test, a

petitioner must show “actual prejudice.” That is to say, a

petitioner must demonstrate that “there is a reasonable

24 probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694.

A “reasonable probability” is one “sufficient to undermine

confidence in the outcome.” Id.

Here, Cobb can satisfy neither one of the two essential

elements of a Strickland claim. First, his defense was not

prejudiced by trial counsel’s decision not to raise a First

Amendment defense to some of the crimes with which Cobb was

charged. As noted earlier, that defense lacks merit, since

Cobb’s collages were made of photographs of real children altered

to appear as though the children were engaged in sexual conduct.

He does not claim (nor would the record support a finding) that

any of his collages involved computer-generated “virtual”

subjects or adults who simply appeared to be children.

Even if Cobb’s First Amendment defense had some merit, his

trial counsel articulated a reasonable and thoughtful basis for

her tactical decision not to attack the so-called “morphed”

images or “collages” on First Amendment grounds. See State

Habeas Decision at 4-5 (noting, among other things, that Cobb’s

25 trial counsel testified that she “thought about and analyzed

whether the collage could be considered art or otherwise

protected speech. She explained, however, that a number of the

photographs included pictures of live, naked children and,

therefore, she and her co-counsel made a tactical decision not to

draw focus to the content of particular photographs.

Specifically, [counsel] was concerned that arguing that some of

the photographs were not of live, naked children would guarantee

conviction on the charges related to photos that were of live,

naked children.”).2

In the context of defending a complex criminal case

involving over two hundred pieces of child pornography (some

involving pictures of actual children engaged in sexual behavior

and others involving the so-called collages), counsel’s tactical

decision certainly fell well within the range of reasonable trial

strategies and, therefore, cannot form the basis of an

ineffective assistance claim under Strickland.

2 Cobb does not challenge any of these factual findings made by the state habeas court.

26 Finally, Cobb’s related claim - that his attorney provided

constitutionally deficient representation by failing to call an

expert witness to establish that the collages in question were

not “obscene” - is entirely without merit. See Petitioner’s

memorandum in support of habeas petition at 5-6. As the Supreme

Court has clearly stated, the manufacture, possession, and

distribution of depictions of real children engaged in sexual

conduct may be proscribed absent any additional showing that they

are also obscene. See Ashcroft,

(“As a general

rule, pornography can be banned only if obscene, but under

Ferber, pornography showing minors can be proscribed whether or

not the images are obscene.”) (citation omitted).

Conclusion

AEDPA’s one-year limitations period applicable to state

inmates seeking federal habeas corpus relief expired more than

one and one-half years before Cobb filed his federal habeas

petition. Consequently, that petition is untimely.

As for his assertion that AEDPA’s limitation period should

be tolled, Cobb does not rely upon the discovery of any new (and

27 exculpatory) evidence, nor does he seek the benefit of a new rule

of constitutional law, made retroactively applicable to his case

by the Supreme Court. Nor does he assert any state-created

impediment to the filing of a timely federal petition.

Accordingly, he is not entitled to the benefit of any statutorily

prescribed tolling. See generally

(d).

Although it may be that AEDPA’s limitations period is not

subject to equitable tolling, even assuming equitable relief is

available in extraordinary cases, this is not such a case. The

record reveals no sound basis upon which to rest any decision

excusing Cobb’s failure to comply with AEDPA’s one-year filing

deadline. Cobb offers no plausible excuse (or explanation) for

his failure to file a timely petition under section 2254.

Instead, he merely seeks equitable relief on the basis of an

incorrect assertion that he is “actually innocent” of some of his

crimes of conviction. Under the circumstances presented, he is

not entitled to equitable tolling of AEDPA’s one-year limitations

period, and his petition must be dismissed as untimely. See 28

U.S.C. 2244(d).

28 Finally, even if this court were to conclude that Cobb is

entitled to the benefit of equitable tolling, his habeas petition

would still fail on the merits. It cannot be said that the state

court decision rejecting his First and Sixth Amendment claims

yielded a result that was contrary t o , or involved an

unreasonable application o f , clearly established federal law as

interpreted by the United States Supreme Court. See

(d)(1). Accordingly, respondent’s motion for summary

judgment (document n o . 11) would be granted on the merits.

The petition is dismissed as untimely. The Clerk of Court

shall close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

December 8 , 2003

cc: Paul J. J. Haley, Esq. NH Attorney General

29