Opinion
02 Civ. 3887 (JSM)
November 4, 2002
MEMORANDUM OPINION AND ORDER
Robert Dupes, who pleaded guilty to charges of possession of child pornography petitions under 28 U.S.C. § 2255 to set aside his conviction. The application is denied.
Petitioner contends that that the statute he was charged with violating is unconstitutional under the recent decision of the Supreme Court inAshcroft v. Free Speech Coalition, 122 S.Ct. 1389 (2002).
Ashcroft held unconstitutional portions of 18 U.S.C. § 2256 et seq. which involved virtual child pornography, i.e., computer generated images that appeared to depict children engaged in sexual activity but which did not involve real children. Here, however, the Defendant was charged with violations involving pictures of actual children engaged in sexually explicit conduct. Such conduct is not constitutionally protected. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). As Justice Kennedy observed, in Ashcroft:
The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children. See Simon Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (Kennedy, J., concurring).122 S.Ct. at 1399.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2255 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915 (a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.