Rann v. Hulick

Filing 31

ORDER DISMISSING CASE, adopting 28 REPORT AND RECOMMENDATIONS re 2 Petition for Writ of Habeas Corpus filed by Steven R. Rann. Signed by Chief Judge David R. Herndon on 10/19/2011. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

STEVEN R. RANN,
Petitioner,
v.

No. 08-cv-792-DRH

DONALD HULICK, Warden,
Menard Correctional Center
Respondent.

MEMORANDUM AND ORDER

HERNDON, Chief Judge:
Introduction
Before the Court is a Report and Recommendation (“R&R”) (Doc. 28) of
United States Magistrate Judge Williams, issued pursuant to 28 U.S.C. §
636(b)(1)(B), recommending denial of petitioner Steven R. Rann’s § 2254 habeas
petition (Doc. 2). The R&R was sent to the parties, with a notice informing them
of their right to appeal by way of filing “objections” within fourteen days of service
of the R&R. In accordance with the notice, petitioner filed timely objections to the
R&R (Doc. 29).

Because petitioner filed timely objections, this Court must

undertake de novo review of the objected-to portions of the R&R. 28 U.S.C. §
636(b)(1)(B); FED. R. CIV. P. 72(b); SOUTHERN DISTRICT

OF

ILLINOIS LOCAL RULE

73.1(b); Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999);

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Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may “accept,
reject, or modify the recommended decision.” Willis, 199 F.3d at 904. In making
this determination, the Court must look at all the evidence contained in the
record and give fresh consideration to those issues for which specific objection
has been made. Id. However, the Court need not conduct a de novo review of the
findings of the R&R for which no objections have been made. Thomas v. Arn, 474
U.S. 140, 149-52 (1985). For the reasons discussed herein, the Court adopts the
findings of the R&R.
Background
On November 14, 2006, a Saline County jury convicted petitioner of two
counts of criminal sexual assault and one count of child pornography.

On

February 2, 2008, petitioner received a sentence of consecutive terms of twelve
years of imprisonment on each sexual assault conviction and fifteen years for the
child pornography conviction.

Petitioner filed a direct appeal in state court

alleging he received ineffective assistance of counsel as his counsel did not seek to
suppress images obtained without a warrant from a zip drive and camera memory
card.1 After exhausting his state remedies, petitioner filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 on November 10, 2008 (Doc. 2).
Similarly to the R&R, the Court finds the Illinois Appellate Court’s Rule 23
Order affirming petitioner’s conviction on direct appeal recites the relevant facts
giving rise to petitioner’s claim as follows:
1

Petitioner also alleged he did not receive a fair trial as the court refused to sever the separate charges of child
pornography and sexual assault. However, only the ineffective assistance of counsel claim forms the basis of
petitioner’s § 2254 petition (See Doc. 2).

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In January 2006, the defendant’s biological daughter, S.R.,
who was then 15 years old, reported to the Eldorado police
department that she had been sexually assaulted by the defendant
and that he had taken pornographic pictures of her. Following her
interview by the police, S.R. returned to her home, retrieved an
Olympus digital camera memory card from the top of a big-screen
television set in her parents’ bedroom, and took the memory card to
the police. The officer to whom she delivered the memory card,
Deputy Sheriff Investigator Mike Jones of the Saline County Sheriff’s
Department, testified at the defendant’s subsequent trial that no law
enforcement officers accompanied S.R. on her return to her home,
and there is no evidence in the record to suggest that S.R. was
directed to attempt to recover evidence for the police or even to
return home at all. Images downloaded from the memory card depict
the defendant sexually assaulting S.R. and were introduced into
evidence at the defendant’s trial . . . The images, taken in 2005, were
admitted as propensity evidence . . . and do not relate directly to the
charges of which the defendant was convicted in this case.
Sometime subsequent to S.R.’s initial interview with the police,
S.R.’s mother brought Deputy Jones a computer zip drive that
contained additional pornographic images of S.R. and pornographic
images of K.G., who is the defendant’s stepdaughter and S.R.’s halfsister. The images on the zip drive are from 1999 and 2000, when
S.R. was approximately 9 years old and K.G. was approximately 15
years old, and are directly related to the charges of which the
defendant was convicted in this case. Four of the images, taken
around Christmas of 1999, were admitted into evidence at the
defendant’s trial... Deputy Jones testified that no law enforcement
officers were present when S.R.’s mother procured the zip drive, and
there is no evidence in the record to suggest that S.R.’s mother was
directed to attempt to recover evidence for the police.
(Doc. 17-3, pp. 1-2).
Petitioner asserts one ground for habeas relief.

Petitioner contends his

counsel’s failure to move to suppress the digital memory card and zip drive the
police obtained from S.R. and her mother denied him of effective assistance of
counsel. Petitioner objects to the R&R’s finding that the government’s warrantless
opening of the digital storage devices did not violate the Fourth Amendment as it

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did not exceed the scope of the initial private searches. Petitioner also contends
the government did not meet its initial burden of proving an exception to the
warrant requirement existed (Doc. 29, pp. 1-4). Further, petitioner objects to the
R&R’s finding that failure to motion to suppress did not prejudice his sexual
assault counts as considerable independent evidence of guilt exists (Doc. 29, pp.
4-5).
Discussion
A. § 2254 Review
The standards of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) govern the Court’s review of petitioner’s § 2254 petition. AEDPA permits
a federal court to issue a writ of habeas corpus if the state court reached a
decision on the merits of a claim that was either (1) “contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States,” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” Martin v. Grosshans, 424 F.3d 588, 590 (7th Cir. 2005) (citing 28
U.S.C. § 2254(d)). The clauses “contrary to” and “unreasonable application”
stated within § 2254 have independent meaning. Bell v. Cone, 535 U.S. 685, 694
(2002) (citing Williams v. Taylor, 529 U.S. 362, 404-05 (2000)); see also
Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000) (also citing Williams).
However, a federal court is not allowed to grant habeas relief to a state
prisoner when a violation of state law is at issue. Bloyer v. Peters, 5 F.3d 1093,
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1098 (7th Cir. 1993) (a federal court cannot reexamine state court determinations
on state law questions in order to grant habeas relief) (citing Estelle v. McGuire,
502 U.S. 62, 67-8 (1991); Reed v. Clark, 984 F.2d 209, 210 (7th Cir. 1993)). For
a state court’s decision to be “contrary to . . . clearly established federal law as
established by the United States Supreme Court,” it must be “substantially
different from relevant [Supreme Court] precedent.” Washington, 219 F.3d at 628
(citation omitted). Typically, this would involve the state court “appl[ying] a rule
different from the governing law set forth in [cases of the Supreme Court], or if it
decides a case differently than [the Supreme Court] on a set of materially
indistinguishable facts.” Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 4045).
A state court’s decision “involve[s] an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United
States,” if it is “objectively unreasonable.” Id. at 694-95. It is important to note
that “an unreasonable application is different from an incorrect one” – meaning
that a district court is not allowed to merely substitute its own judgment as to
what it believes is the correct outcome, absent a finding that the state court’s
decision was unreasonable. Id.; see also Washington, 219 F.3d at 628. Notably,
an “objectively unreasonable” state court decision need not cite or even
demonstrate awareness of relevant Supreme Court cases, “so long as neither the
reasoning nor the result of the state court decision contradicts them.” Early v.
Packer, 537 U.S. 3, 8 (2002).

As the Supreme Court has recently reiterated,

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“Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for ordinary
error correction through appeal.”

Harrington v. Richter, 131 S. Ct. 770, 786

(2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979)).
Petitioner contends he received ineffective assistance of counsel; a claim
pursued under Strickland v. Washington, 466 U.S. 668 (1984).

The Illinois

Appellate Court determined petitioner’s counsel was not ineffective as a motion to
suppress would not have been successful (See Doc. 17-3).

When reviewing a

claim of ineffective assistance of counsel in habeas petitions, the federal court
must honor any “reasonable” state court decision as “only a clear error in
applying Strickland’s standard would support a writ of habeas corpus.” Holman
v. Gilmore, 126 F.3d 876, 882 (7th Cir. 1997). Thus, although the standards
governing review under § 2254 and Strickland are “highly deferential,”
Strickland, 466 U.S. at 689; Lindh v. Murhphy, 521 U.S. 320, 334 n. 7 (1997),
when applying the standards “in tandem, review is ‘doubly’ so.” Harrington, 131
S. Ct. at 788 (citing Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009)).
Moreover, as petitioner’s ineffective assistance of counsel claim arises from
his counsel’s failure to move to suppress evidence, petitioner “must also prove
‘that his Fourth Amendment claim is meritorious and that there is a reasonable
probability that the verdict would have been different absent the excludable
evidence in order to demonstrate actual prejudice.’” Ebert v. Gaetz, 610 F.3d
404, 411 (7th Cir. 2010) (citing Kimmelman v. Morrison, 477 U.S. 365, 375

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(1986); United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005)). This
standard requires proof “over and above” the Strickland standard. Johnson v.
Thurmer, 624 F.3d 786, 792-93 (7th Cir. 2010). As “Strickland requires that
[the Court] presume counsel ‘rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment,’” this is
an admittedly difficult standard to meet.

Ebert, 610 F.3d at 411 (citing

Strickland, 466 U.S. at 690).
B. Analysis
a. Child Pornography Count
1. The Zip Drive and Camera Memory Card2
a. Police Search did not Exceed Scope of Private
Searches
Petitioner objects to the finding in the R&R that the police viewing of the zip
drive and camera memory card did not constitute a “significant expansion” of the
private searches S.R. and her mother conducted.

Thus, petitioner argues the

police needed a warrant to open the digital storage devices. Basically, petitioner
contends the record contains no evidence S.R. or her mother knew the zip drive
and camera memory card held images of child pornography prior to the police
viewing. Thus, petitioner argues the Illinois Appellate Court merely speculated as
to its belief that S.R. and her mother knew the contents of the digital storage
devices.

Petitioner relies on the statement, “it seems highly likely that S.R.’s

2

Petitioner makes two separate objections pertaining to the R&Rs findings regarding the zip drive and camera
memory card. However, as petitioner makes essentially the same arguments within the two separate objections, the
Court addresses the objections simultaneously.

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mother compiled the images on the zip drive herself, downloading them from the
family computer,” as the basis of his contention (Doc. 28) (citing Doc. 17-3, p. 6).
Accordingly, petitioner contends that as the Illinois Appellate Court based its
reasoning on a lack of evidence regarding the knowledge of S.R. and her mother,
the police viewing of the digital storage devices constituted unconstitutional
warrantless searches as the police exceeded the scope of the private searches. As
such, petitioner argues the Illinois Appellate Court unreasonably applied Supreme
Court precedent as a motion to suppress would have proven successful.
The Court agrees with the reasoning of the R&R in its finding that the police
viewing of the digital storage devices did not constitute a “significant expansion” of
the admittedly private searches of S.R. and her mother. It is well-settled that the
Fourth Amendment does not apply to private searches. Burdeau v. McDowell,
256 U.S. 465, 475 (1921).

Thus, if a private party presents law enforcement

personnel with evidence obtained in the course of a private search it is “not
incumbent on the police to stop her or avert their eyes.”

Coolidge v. New

Hampshire, 403 U.S. 443, 489 (1971). The relevant inquiry becomes whether the
police exceeded the scope of the private search. See United States v. Jacobsen,
466 U.S. 109 (1984). In Jacobsen and its predecessor, Walter v. United States,
447 U.S. 649 (1980), the Supreme Court clarified that an individual can retain a
legitimate expectation of privacy after a private individual conducts a search.
However, “additional invasions of [an individual’s] privacy by the government

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agent must be tested by the degree to which they exceeded the scope of the private
search.” Jacobsen, 466 U.S. at 115.
The Seventh Circuit has not addressed the application of Jacobsen to a
subsequent police search of privately searched digital files. However, the Fifth
Circuit has applied the Jacobsen standard to facts similar to the case at hand.
See United States v. Runyan, 275 F.3d 449 (5th Cir. 2001).

In Runyan,

Runyan’s ex-wife and several of her friends entered Runyan’s residence and
conducted a pre-warrant search, recovering compact disks, ZIP disks, and floppy
disks containing child pornography. Although Runyan’s ex-wife and friend only
examined a “randomly selected assortment of the floppy disks and CDs . . . [and
none] of the ZIP disks,” the government examined all of the CDs and disks
Runyan’s ex-wife provided. Id. at 460.
Applying Jacobsen, the Fifth Circuit partially upheld the government
search holding a search of any material on a computer disk valid if a private party
had viewed at least one file on the disk. Id. at 465 (“[W]e find that the police do
not exceed the scope of a prior private search when they examine particular items
within a container that were not examined by the private searchers.”). However,
the court also held “[t]he mere fact that the disks that [the private searchers] did
not examine were found in the same location in Runyan’s residence as the disks
they did examine is insufficient to establish with substantial certainty that all of
the storage media in question contained child pornography.” Id. at 464. Thus,
the court concluded:

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[P]olice exceed the scope of a prior private search when they examine
a closed container that was not opened by the private searchers
unless the police are already substantially certain of what is inside
that container based on the statements of the private searchers, their
replication of the private search, and their expertise.
Id. at 463. Therefore, as the court held the private searchers had not previously
breached Runyan’s privacy interest in the unviewed disks, the subsequent search
the police conducted of the unviewed disks violated the Fourth Amendment as it
was warrantless.

However, the subsequent, more thorough search of the

previously viewed disks did not violate the Fourth Amendment as the police were
substantially certain of the disks’ contents based on communications with the
private searchers. Id. at 465.
Application of the holdings of Jacobsen and Runyan to the case at hand
clearly demonstrates the police did not exceed the scope of the searches S.R. and
her mother conducted.

The crux of petitioner’s argument is that the Illinois

Appellate Court did not sufficiently find S.R. or her mother had knowledge of the
zip drive and camera memory cards’ contents; thus, the subsequent search the
police conducted exceeded the scope of the initial private searches. However, the
Illinois Appellate Court succinctly stated:
Although the defendant suggests that S.R. and her mother did not
know what was on the memory card and zip drive, the defendant’s
argument defies common sense and is not at all supported by the
record. This is not a case where multiple pieces of potential evidence
were turned over to the police, who then had to sift through the
potential evidence to discover if any factual evidence existed. To the
contrary, in this case S.R. turned exactly one memory card over to
the police, and her mother gave the police exactly one zip drive. We
cannot imagine more conclusive evidence that S.R. and her mother
knew exactly what the memory card and zip drive contained.
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(Doc. 17-3, p. 6).
State court factual findings are presumed correct in a federal habeas
corpus proceeding unless rebutted by clear and convincing evidence.

See 28

U.S.C. § 2254(e)(1); Mahaffey v. Schomig, 294 F.3d 907, 915 (7th Cir. 2002). As
petitioner has not offered evidence in rebuttal of the Illinois Appellate Court’s
factual findings, the Court accepts as correct the finding that S.R. and her mother
knew the contents of the digital storage devices.

Thus, S.R. and her mother

opened the devices prior to delivering them to the police.

Accordingly, a

subsequent police search of the digital storage devices did not require a warrant.
Petitioner further argues that if in searching the computer files, the police
“learned specifics they did not know before . . . [they] expanded the scope of the
previous search” (Doc. 29, p. 4). However, as Runyan illustrates, even in the
unlikely event the police more thoroughly searched the files than S.R. and her
mother, or viewed files S.R. and her mother had not previously viewed, the police
search did not exceed the scope of the private searches. S.R. and her mother
delivered digital storage devices containing previously viewed images of child
pornography to the police.

Thus, the police were “substantially certain” the

entirety of the stored files contained child pornography. Runyan, 275 F.3d at
463.
In direct contrast to Runyan, S.R. and her mother did not deliver
numerous digital storage devices to the police; some unviewed. In the case at
hand, the police were certain S.R. and her mother knew the files contained child
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pornography as each individually delivered exactly one digital storage device; a zip
drive from S.R.’s mother and a camera memory card from S.R. The police did
not search previously unopened containers as in Runyan. Accordingly, the police
search did not violate the Fourth Amendment and a motion to suppress would
not have been successful. Therefore, the Illinois Appellate Court did not render
an unreasonable decision in light of relevant Supreme Court precedent. As such,
the Court adopts the R&R’s finding that the police search of the zip drive and
camera memory card did not exceed the scope of the private searches.
b. The Fourth Amendment Does not Apply to the Police
Search at Issue
Petitioner also argues that as a warrantless search is at issue, the police
have not met their burden of demonstrating an exception to the warrant
requirement existed (Doc. 29, p. 2). However, as stated previously, the Fourth
Amendment does not apply to private searches.

Burdeau, 256 U.S. at 475.

Petitioner does not object to the R&R’s finding that the searches at issue were
private searches as S.R. and her mother did not act under direction of the police.
Thus, petitioner is presumably restating his argument that the police search
exceeded the scope of the private search. As previously held, the police search
did not exceed the scope of the private search.

Accordingly, the warrantless

search did not violate the Fourth Amendment as it does not apply to private
searches. Thus, the Court adopts the R&R’s finding that the Illinois Appellate
Court reasonably applied Strickland and Jacobsen in its determination that a
warrant was not required.
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2. Sexual Assault Counts
a. Failure to Motion to Suppress did not Prejudice
Petitioner’s Sexual Assault Counts
Finally, petitioner objects to the R&R’s finding that counsel’s failure to
motion to suppress did not prejudice his sexual assault counts.

Petitioner

contends that “[g]iven the graphic nature of the pictures at issue, and their likely
impact on a trier of fact, their use would inevitably have been prejudicial” (Doc.
29, p. 5).

However, under the prejudice prong of Strickland, petitioner must

demonstrate a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”

Id.

As stated previously, as petitioner’s claim is

based on a failure to motion to suppress evidence, he must also prove “over and
above his Strickland showing, ‘that his Fourth Amendment claim is meritorious
and that there is a reasonable probability that the verdict would have been
different absent the excludable evidence.’” Johnson v. Thurman, 624 F.3d 786,
792-93 (7th Cir. 2010) (citing United States v. Aghedo, 159 F.3d 308, 310 (7th
Cir. 1998)).

Moreover, when considerable evidence supports a conviction, an

error is less likely to be deemed prejudicial. See Harding v. Sternes, 380 F.3d
1034, 1045 (7th Cir. 2004).
As the Court holds petitioner’s Fourth Amendment claim is not
meritorious, his claim of prejudice under Strickland is similarly without merit.
Further, the Court finds that absent the excludable evidence at issue, considerable
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evidence supports the convictions.

As the Illinois Appellate Court noted, the

evidence against petitioner included “graphic testimony” from both minors
describing the sexual abuse petitioner inflicted (Doc. 17-3, p. 3).

Thus, as

considerable evidence independent of the pornographic images offered from the
digital storage devices supports the convictions, counsel’s failure to motion to
suppress the images did not prejudice petitioner’s sexual assault counts.
Accordingly, the Court finds the Illinois Appellate Court did not render an
unreasonable decision in light of the relevant Supreme Court precedent.
Therefore, the Court adopts the R&R’s finding that counsel’s failure to motion to
suppress did not prejudice petitioner’s sexual assault counts.
Conclusion
For the reasons discussed herein, the Court ADOPTS the findings of the
R&R (Doc. 28) over petitioner’s objections (Doc. 29). Thus, petitioner’s § 2254
Habeas Petition (Doc. 2) is DENIED. Accordingly, petitioner’s claim is hereby
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Signed this 19th day of October, 2011.
Digitally signed by David R.
Herndon
Date: 2011.10.19 09:40:11
-05'00'

Chief Judge
United States District Court

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