Cochran v. Thomas et al

Filing 23

ORDER directing that the court finds Petitioner's objections to be without merit, and they are hereby OVERRULED; the court ADOPTS the Recommendation of the Magistrate Judge, and it is hereby ORDERED that this petition for habeas corpus relief under 28 U.SC. § 2254 is DENIED, and this case is DISMISSED with prejudice, as further set out. Signed by Honorable Judge W. Harold Albritton, III on March 17, 2015. (scn, )

IN THE UNITED STATES DISTRICT COURT
FORTHE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION

JEFFREY OLEN COCHRAN, #275739,
Petitioner,
vs.
KIM TOBIAS THOMAS, et al.,
Respondents.

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CASE NO. 1:12-cv-1054-WHA
(WO)

ORDER
This case is before the court on the Recommendation of the Magistrate Judge (Doc. #21)
and the Petitioner’s Objections thereto (Doc. #22). Following an independent evaluation and de
novo review of the file in this case, the court finds as follows:
Cochran was convicted of, among other things, possession of obscene material containing
a visual depiction of a person under 17 years of age engaged in an obscene act, a violation of
§13A-12-192(b), Ala. Code 1975.

In state court, he claimed that § 13A-12-192(b) is

unconstitutional as applied to him.

He argued that the photograph forming the basis of his

conviction depicted noncriminal consensual sexual conduct because C.K. (the minor in the
photograph) was 16 years old at the time the photograph was taken and 16 years is the age when
a person is capable of sexual consent under Alabama law
Cochran specifically argued that his possession of the photograph was protected by the
Due Process Clause. He based his argument on Lawrence v. Texas, 539 U.S. 558 (2003), which
held that a Texas statute making it a crime for two persons of the same sex to engage in certain

intimate sexual conduct violated the persons’ liberty interests protected by the Due Process
Clause of the Fourteenth Amendment.
The Alabama Court of Criminal Appeals rejected Cochran’s claim, relying in part on the
reasoning of the Eighth Circuit Court of Appeals in United States v. Bach, 400 F.3d 622 (8th Cir.
2005), where an argument very similar to Cochran’s about a similar Minnesota statute was
rejected by the court. The Alabama Court of Criminal Appeals and the Bach court noted that the
liberty interest recognized in Lawrence was for adults engaging in consensual sexual relations in
private, but in this case the defendant engaged in sex with a minor and had the minor pose nude
for a photograph.

The courts found no support in Lawrence to prevent the defendant’s

prosecution. The Alabama Court of Criminal Appeals concluded, as did the Eighth Circuit in
Bach, that Lawrence is inapplicable to defendants in Cochran’s situation and that the legislative
choice to proscribe the possession of a visual depiction of a person under the age of 17 years
engaged in sexual conduct is rationally related to the State’s legitimate interest in protecting
children and enforcing child-pornography laws.
The court agrees with the finding of the Magistrate Judge that Cochran fails to
demonstrate that the decision of the Alabama state court was contrary to, or an unreasonable
application of, clearly established federal law or that the state court’s decision was based on an
unreasonable determination of the facts in light of the evidence presented.
Therefore, the court finds Petitioner’s objections to be without merit, and they are hereby
OVERRULED. The court ADOPTS the Recommendation of the Magistrate Judge, and it is
hereby
ORDERED that this petition for habeas corpus relief under 28 U.SC. § 2254 is DENIED,
and this case is DISMISSED with prejudice.

DONE this 17th day of March, 2015.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE