This is аn appeal from a district court order granting the petition of Myron M. Amato for a writ of habeas corpus.
Petitioner was convicted by the County Court of Rock County, Wisconsin, on two counts of selling obscene material in violation of Wisconsin Statutes, § 944.-21(1)(a). Petitioner was sentenced to pay fines of $3000.00 and $2000.00, respectively, or in default thereof, to serve consecutive six-month and 120 day sentences in the county jail. The convictions were affirmed by the Supreme Court of Wisconsin, State of Wisconsin v. Amаto,
In the district court, petitioner submitted as evidence fоur magazines which the United States Supreme Court had previously determined as a matter of law to be not obscene, 1 and argued that the content of the materials sold by petitioner differed in no material way from the content of those publicаtions. Petitioner argued that, accordingly, the publications involved in his conviction were not obscene.
The district court agreed, stating that:
“[T]he publications before me and those involved in Bloss, Burgin, or *443 Wiener fall into sets so rеadily identifiable, so standardized, that the .comparison within the sets is similar to the comparison between two 1929 Model A Ford sedans or between two queens of hearts from two sets of playing cards produced in a single batch on a single day by a single manufacturer.”
The Court reasoned that
Bloss, Burgin
and
Wiener
were reversed on the basis of Redrup v. New York,
Subsequent to the district court’s decision in this case, the Supreme Court decided Miller v. California,
The Miller decision abandoned the Memoirs criteria for determining whether published material is obscene, and it is on the basis of Miller that we must now consider whether the petition for a writ of habeas corpus should have been granted.
Miller held that:
“The basic guidelines for a trier of fact must be: (a) whether ‘the average person, аpplying contemporary community standards’ would find that the work,' taken as a whole, appeals to the prurient interest . ; (b) whеther the work depicits or describes, in a patently offensive way, sexual conduct specifically defined by the apрlicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts,383 U.S. at 419 , . . .”.
With respect to statutes and regulations prohibiting the sale of obscene material, the court held that:
“State statutes dеsigned to regulate obscene materials must be carefully limited. ... As a result, we now confine the permissible scope of suсh regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.” (emphasis added)413 U.S. at 23, 24 .
Further in this regard, Miller advises that:
“Under the holdings announced today, no one will be subject to proseсution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” (emphasis added)413 U.S. at 27 .
Just as the issue of whether the materials sold were obscene must be determined on the basis of Miller, so also the guidelines prescribed in Miller for determining whether the statute is unconstitutionally vague must be applied. And if the statute under which petitioner was prosecuted is unconstitutionally vague, the convictions cannot stand, irrespective of whether the materials were, in fact, obscene.
The statute in question proscribes the sale оf materials which are
*444
“lewd, obscene or indecent.” It does not “specifically define” the sexual conduct prohibited, and quite obviously does not meet the standard annunciated in
Miller
for providing “fair notice to a dealer in such materials that his рublic and commercial activities may bring prosecution.”
Nor does the State argue to the contrary. Rather, the State contends that petitioner is precluded from raising the statute’s unconstitutionality as an issue on appeal becausе he did not do so in the state courts or in his petition for habeas corpus relief.
As a general rule, a petitioner for habeas corpus relief must have presented constitutional claims to the state courts and fully exhausted state remedies as a prerequisite to raising such issues in federal court. However, the circumstances of the instant case present аn exception to that rule, as well as to the limitations normally imposed upon this court with respect to scope оf review.
First of all, we note that the constitutionality of § 944.21 had been upheld by the Wisconsin Supreme Court prior to petitioner’s conviction, State v. Chobot,
More to the point, howevеr, it would be an anomalous result were we to apply the Miller standard of obscenity with respect to the publications sold by Amаto, while declining to apply the Miller standard for determining whether the statute he allegedly violated is unconstitutionally vague. The two standards are but parts of the same test — the materials must be found to be obscene and the obscenity statute must be speсific enough to adequately apprise the defendant of the conduct proscribed.
We need not speculate as to whether the publications here involved could properly be considered obscene under a statute specific enough to withstand constitutional attack. We find § 944.21 to be unconstitutionally vague under the standards set forth in Miller, and on this basis alonе, the judgment of the district court is affirmed.
Affirmed.
Notes
. The publications compared and the decisions under which they were declared not obscene as a matter of law are: (1) Gigi (1968 Tudor House, Inc.) — Bloss v. Dyke-ma,