McKinney v. Parsons

• Citation: 513 F.2d 264
• Decision Date: 23 May 1975
• Docket Number: No. 74-2106,74-2106
• Parties: Chester McKINNEY Petitioner-Appellant, v. James C. PARSONS, Chief of Police, etc., Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 264

513 F.2d 264

Chester McKINNEY Petitioner-Appellant, v. James C. PARSONS, Chief of Police, etc., Respondent-Appellee.

No. 74-2106

United States Court of Appeals, Fifth Circuit

May 23, 1975

Rehearing Denied June 20, 1975

Ferris S. Ritchey, Jr., Birmingham, Ala., D. Freeman Hutton, Robert E. Smith, Gilbert H. Deitch, Atlanta, Ga., for petitioner-appellant.

William J. Baxley, Atty. Gen., Montgomery, Ala., Herbert Jenkins, Jr., Asst. City Atty., Birmingham, Ala., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before BELL, THORNBERRY and GEE, Circuit Judges.

GEE, Circuit Judge:

In May of 1971, Chester McKinney was convicted by the Circuit Court of Jefferson County, Alabama, of six violations of the obscenity ordinance of the City of Birmingham. ¹ He appeals the Northern District of Alabama's second ² denial of habeas corpus relief. Since we find no constitutional infirmity in his convictions, we affirm.

Upon first filing his habeas corpus petition McKinney advanced three grounds upon which the writ should issue. It was his contention (1) that the four magazines and two films involved in the case are not, as a matter of constitutional law, obscene but rather are protected by the First and Fourteenth Amendments, (2) that the trial court denied him due process of law by convicting him without having received any expert testimony on the question of whether the magazines and movies were obscene ³ and (3) that the trial court violated his First, Fifth and Fourteenth Amendment rights by applying a local community standard rather than a national community standard in determining the obscenity vel non of the materials. McKinney now complains, in addition, (4) that the ordinance under which he was convicted is incurably void for vagueness, (5) that it is repugnant to Article 1, Sec. 4 of the Constitution of the State of Alabama, and, also (6) that the district court, upon reconsideration following remand, failed to follow the instructions of this court.

We deal but briefly with four of these six contentions. The want-of-expert-testimony argument is answered by Paris Adult Theatre I. v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 37 L.Ed.2d 446 91973) and Kaplan v. California, 413 U.S. 115, 121, 83 S.Ct. 2680, 37 L.Ed.2d 492 (1973). ⁴ The local-versus-national community standards question has been resolved against McKinney by Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), and by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). As federal courts, neither we nor the district court has habeas corpus jurisdiction to consider whether McKinney's convictions violated rights secured to him by the Constitution of the State of Alabama. ⁵ 28 U.S.C. Sec. 2241. Finally, the district court correctly interpreted and followed our remand instructions.

Only rarely does a state conviction for distributing or exhibiting obscene material arrive for review, via habeas corpus proceedings, on the doorstep of a United States Court of Appeals. So far as we know, this is only the second post-Miller instance of such an occurrence, ⁶ and the first in our circuit. Not only is this our first post-Miller habeas/obscenity case, it is also the first time we have been called upon to review, post-Miller, a conviction which was final pre-Miller. We have held that a federal defendant indicted, tried and convicted pre-Miller is, on direct appeal, entitled to all of the benefits of the Miller definition of obscenity but is free of its detriments. United States v. Thevis, 484 F.2d 1149, 1155, fn. 7 (5th Cir.1973), cert. denied, 418 U.S. 932, 94 S.Ct. 3222, 41 L.Ed.2d 1170 (1974), explained in United States v. Wasserman, 504 F.2d 1012, 1014 (5th Cir.1975). The Supreme Court has similarly ruled that state court defendants whose convictions were on direct appeal at the time that the Miller series was handed down are due any benefits of those decisions. Jenkins v. Georgia, supra. Moreover, we have concluded that a federal defendant indicted pre-Miller but prosecuted post-Miller must be tried under the Roth-Memoirs ⁷ definition of obscenity, at least insofar as it is more restrictive than the Miller definition. United States v. Wasserman, supra. None of these cases decides what substantive definition of obscenity should apply when a state-court defendant attacks a final, pre-Miller conviction via federal habeas corpus, the more restrictive Roth-Memoirs definition or the current Miller definition.

Both we and the district court, as required, have viewed the materials to test whether, in our independent judgment, they are constitutionally protected. Jacobellis v. Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); United States v. Thevis, supra, 484 F.2d at 1155; cf. Jenkins v. Georgia, supra. And both we and the district court agree with the Alabama trial court that these wretched and pathetic materials are well without the broadcast reading of the protection afforded by the Roth-Memoirs formulation of obscenity. That is, (a) the dominant themes of the materials taken as a whole appeal to the prurient interests in sex, (b) the materials are patently offensive because they affront the contemporary standards relating to the description or representation of sexual matters of any and all American communities and (c) they are utterly without redeeming social value. ⁸

There remains only the problem of whether a state defendant whose conviction was final prior to the Miller series is entitled to the benefits of those decisions, if any. We conclude, in the spirit of Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), Jenkins, Thevis and Wasserman, that he is. This does not mean, however, as he strenuously maintains, that McKinney's conviction was illegal as based upon a statute void for vagueness. McKinney asserts Miller promises that no conviction can be sustained unless based upon a statute which, prior to conviction, whether as written or construed, proscribes only works depicting or describing, in a patently offensive way, sexual conduct which has been specifically defined. Miller, supra, 413 U.S. at 24, 27 93 S.Ct. 2607. He points out that the Birmingham ordinance had never been authoritatively construed before his conviction and is not, on its face, limited to specifically-defined sexual conduct. He concludes from this that Miller's promise has been breached, that he was convicted under a vague statute, and that his conviction, therefore, must be overturned. This analysis, however, reflects the hope of McKinney and not the promise of Miller.

In deciding Amato v. Divine, 496 F.2d 441 (7th Cir.), vacated, 419 U.S. 1014, 95 S.Ct. 487, 42 L.Ed.2s 288 (1974), the Seventh Circuit adopted almost exactly the line of reasoning advanced by McKinney on the vagueness issue. Its decision, however, was vacated by the Supreme Court, and the case was remanded for reconsideration in light of Hamling v. United States, supra, and the decision of the Supreme Court of Wisconsin in State ex rel. Chobot v. Circuit Court, 61 Wis.2d 354, 212 N.W.2d 690 (1973). Chobot is a case which, long after Amato's conviction for selling obscene materials in violation of Wisc.Stat. Sec. 944.21(1)(a), construes the words "lewd, obscene, or indecent," which are undefined in the statute, as restricted to sexual conduct "defined to be acts of sexual intercourse between humans, normal or preverted, actual or simulated, acts of masterbation, fellatio, cunnilingus, and acts of excretory function, lewd exhibition of the genitals especially in a stimulated condition and sexual relations between humans and animals." Chobot, supra, 61 Wis.2d at 370, 212 N.W.2d at 698. ⁹

Hamling, in an extended discussion of Miller and the relationship of that decision to the issue of the vagueness of a given obscenity statute, points out that

At no point does Miller or any of the other obscenity decisions decided last term intimate that the constitutionality of pre-Miller convictions under statutes such as 18 U.S.C. Sec. 1461 was to be cast in doubt. Indeed, the contrary is readily apparent from the opinions in those cases. We made clear in Miller, 413 U.S., at 24, n. 6, 93 S.ct. [2607], at 2615 , that our decision was not intended to hold all state statutes inadequate, and we clearly recognized that existing statutes "as construed heretofore or hereafter, may well be adequate." That recognition is emphasized in our opinion in United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).

Hamling, 418 U.S. at 112, 94 S.Ct. at 2905, 41 L.Ed.2d at 617-18, and that

Miller, in describing the type of material which might be constitutionally proscribed, 413 U.S., at 25, 93 S.Ct. [2607], at 2615 , was speaking in terms of substantive constitutional law of the First and Fourteenth Amendments. See Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642. While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is "patently offensive" within the meaning of the obscenity test set forth in the Miller cases. And, while the Court in Miller did refer to "specific prerequisites" which "will provide fair notice to a dealer in such materials," 413 U.S., at 27, 93 S.Ct. [2607], at 2616 , the Court immediately thereafter quoted the language of the Court in Roth v. United States, 354 U.S., at 491-492, 77 S.Ct. [1304], at 1312-1313 [1 L.EWd.2d 1498], concluding with these words: "That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense...." 413 U.S., at 28 n. 10, 93 S.Ct. [2607], at 2617 .

Hamling, 418 U.S. at 114, 94...