NEHER v. USA

Filing 16

ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255) - For the reasons explained in this Order, Mr. Neher has not shown that his counsel was ineffective. Accordingly, his motion for relief pursuant to § 2255 is DENIED and this ac tion is dismissed with prejudice. Judgment consistent with this Entry shall now issue and the Clerk shall docket a copy of this Order in No. 2:21-cr-7-JPH-CMM-1. The motion to vacate, cr. dkt. 44 , shall also be terminated in the underlying criminal action. The Court therefore denies a certificate of appealability (SEE ORDER FOR DETAILS). Signed by Judge James Patrick Hanlon on 2/7/2024. Copy to Petitioner via US Mail. (DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
CRAIG ADAM NEHER,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 2:22-cv-00024-JPH-MJD

ORDER DENYING MOTION FOR RELIEF PURSUANT TO
28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY
Criag Neher was convicted of two counts of Sexual Exploitation of a
Child/Attempted Sexual Exploitation of a Child in violation of 18 U.S.C. § 2251(a)
and (e) and thereafter sentenced to 240 months' imprisonment. In the petition
filed in this § 2255 proceeding, Mr. Neher challenges his convictions. For the
reasons explained in this Order, Mr. Neher's petition is denied. In addition, the
Court finds that a certificate of appealability should not issue.
I. The § 2255 Motion
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which
a federal prisoner can challenge his conviction or sentence. See Davis v. United
States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal
conviction or sentence pursuant to § 2255 "upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). "Relief under this statute is available only
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in extraordinary situations, such as an error of constitutional or jurisdictional
magnitude or where a fundamental defect has occurred which results in a
complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79
(7th Cir. 2013) (citing Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996);
Barnickel v. United States, 113 F.3d 704, 705 (7th Cir. 1997)).
II. Factual Background
In March 2021, Mr. Neher was charged with two counts of Sexual
Exploitation of a Child/Attempted Sexual Exploitation of a Child, in violation of
18 U.S.C. § 2251(a) and (e) (Counts 1 and 2). United States v. Neher, 2:21-cr-7JPH-CMM-1 (Cr. Dkt.), dkt. 18. The same day, the parties filed a plea agreement
in which Mr. Neher agreed to plead guilty to both counts and the United States
agreed to recommend a sentence of 300 months' imprisonment and stipulate to
a three-level reduction to Mr. Neher's guideline offense level based on his
acceptance of responsibility. Cr. Dkt. 24 ¶¶ 1, 9, 33. The images supporting the
charges were described as follows:
Count 1:
7088jpg: Image depicts the lasciviously displayed genitals of Minor
Victim 1. The child is nude and laying in a bathtub and a filter has
been applied to the image to display hearts at the edges of the photo.
This photo appears to be a cropped version of one of multiple photos
taken of Minor Victim 1 while she is nude and laying down in or
getting out of the bathtub.
Count 2:
7288jpg: image depicts an adult hand pulling back the underwear
of Minor Victim I to display her uncovered genital and pubic area.
Id. ¶ 25G.i.
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As part of the Plea Agreement, the parties agreed to a detailed factual basis
in support of Mr. Neher's plea. Id. ¶ 25. This included statements Mr. Neher
made in an online private chat group for stepfathers, in which members would
share and receive nude photos of their stepdaughters. Id. ¶ 25(E)(ii). In that chat
group, Mr. Neher described Minor Victim 1 and wrote that he "spies" and "creeps"
on her for purposes of sexual gratification. Id. ¶ 25(A)(i). He "admitted to sneaking
into Minor Victim 1's room while she was sleeping, moving the front of her
underwear to the side, and taking a photograph of her bare vagina." Id. ¶ 25(E)(ii).
He also stated that he gave Minor Victim 1 Nyquil for the purpose sexually
abusing her as she slept. Id. ¶ 25(A)(i).
The Court held Mr. Neher's change of plea and sentencing hearing on June
23, 2021. Cr. Dkt. 37. At the hearing, Mr. Neher acknowledged that he read the
entire plea agreement, discussed the charges with his counsel, and was pleading
guilty because he was, in fact, guilty. Cr. Dkt. 46 at 5:24-7:19. The Court
reviewed with Mr. Neher the elements of the offense, and he stated that he
understood that the government would need to prove those elements at trial. Id.
at 7:20-9:1. In addition, Mr. Neher agreed that the factual basis set forth in the
plea agreement was "accurate and true." Id. at 11:11-22. The Court found the
parties' stipulated factual basis was an adequate basis for the plea, that it
contained "each of the essential elements of the offense," and that Mr. Neher was
entering his plea knowingly and voluntarily. Id. at 17:23-18:6. Accordingly, the
Court accepted Mr. Neher's guilty plea. Id. at 18:4-6.

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The Court then sentenced Mr. Neher to 240 months' imprisonment each
on Counts 1 and 2 to be served concurrently. Cr. Dkt. 38.
Mr. Neher did not appeal. He then filed this § 2255 motion.
III. Discussion
Mr. Neher argues that the images described in Counts 1 and 2 were
insufficient to show a violation of 18 U.S.C. § 2251. He cites United States v.
Howard, 968 F.3d 717 (7th Cir. 2020), United States v. Sprenger, 14 F.4th 785
(7th Cir. 2021), and United States v. Hillie, 14 F.4th 677 (D.C. Cir. 2021), as the
principal authorities in support of his argument. Mr. Neher argues that his
counsel was ineffective by failing to seek dismissal of the Information based on
Howard—which was decided before the change of plea hearing—and failing to
advise him properly regarding his guilty plea. In an amendment to his petition,
Mr. Neher also argues that his counsel was ineffective by failing to advise him to
withdraw his plea and pursue an appeal. Finally, Mr. Neher suggests that,
because he was improperly advised, his plea was not knowing and voluntary.
A. Ineffective assistance of counsel
A petitioner claiming ineffective assistance of counsel bears the burden of
showing (1) that trial counsel's performance fell below objective standards for
reasonably effective representation and (2) that this deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Resnick v.
United States, 7 F.4th 611, 619 (7th Cir. 2021). The right to effective counsel
"extends to the plea-bargaining process." Lafler v. Cooper, 566 U.S. 156, 162
(2012). "In the plea bargaining context, a reasonably competent lawyer must
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attempt to learn all of the relevant facts of the case, make an estimate of the
likely sentence, and communicate the results of that analysis to the client before
allowing the client to plead guilty." Brock-Miller v. United States, 887 F.3d 298,
308 (7th Cir. 2018) (citing cases); see also Moore v. Bryant, 348 F.3d 238, 241
(7th Cir. 2003) (to demonstrate deficient performance in the context of a guilty
plea, a petitioner must demonstrate that his counsel's advice regarding the plea
was objectively unreasonable). In addition, to show prejudice, Mr. Neher must
demonstrate "a 'reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to trial." Id. (citing Hill
v. Lockhart, 474 U.S. 52, 59 (1985)). "Surmounting Strickland's high bar is never
an easy task." Lee v. United States, 582 U.S. 357, 367 (2017) (citing Padilla v.
Kentucky, 559 U.S. 356, 371 (2010)). "[A]nd the strong societal interest in finality
has 'special force with respect to convictions based on a guilty plea.'" Id. (quoting
United States v. Timmreck, 441 U.S. 780, 784 (1979)). Thus, "Courts should not
upset a plea solely because of post hoc assertions from a defendant about how
he would have pleaded but for his attorney's deficiencies." Id.
1. Howard and Sprenger
Mr. Neher bases his claims on the Seventh Circuit decisions in Howard
and Sprenger, in which the court found that the images at issue did not violate
18 U.S.C. § 2251(a). That statute, which provides a minimum 15-year sentence,
covers: "[a]ny person who employs, uses, persuades, induces, entices, or coerces
any minor to engage in . . . any sexually explicit conduct for the purpose of
producing any visual depiction of such conduct." "Sexually explicit conduct"
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includes "lascivious exhibition of the anus, genitals, or pubic area of any person,"
18 U.S.C. § 2256(2)(A)(v)—i.e., a display "that calls attention to the genitals or
pubic area for the purpose of eliciting a sexual response in the viewer." United
States v. Russell, 662 F.3d 831, 843 (7th Cir. 2011); United States v. Al-Awadi,
873 F.3d 592, 600 (7th Cir. 2017).
In Howard and Sprenger, the Seventh Circuit found that certain images
on which the charges were based were not within the scope of § 2251(a) and
§ 2256(2)(A)(v). Dkt. 2 at 3–4, 16–17 (citing 968 F.3d 717 (7th Cir. 2020); 14
F.4th 785 (7th Cir. 2021)). Mr. Neher contends that the images on which Counts
1 and 2 were based were similarly not within the scope of § 2251(a) and
§ 2256(2)(A)(v), and his counsel was therefore ineffective for not pointing this out.
Id. The United States responds that Howard and Sprenger are distinguishable
and do not provide a basis for relief. Dkt. 14 at 17–20.
In Howard, the images showed the defendant "masturbating next to a fully
clothed and sleeping child." 968 F.3d at 718. The court found that these images
did not violate the statute. Because the child was asleep and fully clothed, the
images fell outside of § 2251(a) which prohibits a person from "employ[ing],
us[ing], persuad[ing], induc[ing], or coerc[ing] any minor to engage in any
sexually explicit conduct." Id. The court rejected the government's position that
it does not matter if the child is engaged in sexually explicit conduct as long as
the defendant "uses" the child as an object of sexual interest. Id. at 721. The
court explained that such an interpretation "does not require the presence of the
child at all." Id.
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Similarly, in Sprenger, the defendant "took photographs of Victim A while
she was sleeping." 14 F.4th at 788. In one of these photos, he "photographed his
naked, erect penis next to Victim A's face," and in another, he "photographed his
own face, with his tongue sticking out, next to Victim A's clothed groin." Id. The
Seventh Circuit held that, "because the photographs Sprenger took depicted
himself but not Victim A engaged in sexually explicit conduct, Sprenger's
conduct does not qualify as a violation of § 2251(a)." Id. at 791.
The crux of Howard and Sprenger is "that § 2251(a) requires that the
offender create images that depict a minor, and not the offender alone, engaged
in sexually explicit conduct." Sprenger, 14 F.4th at 791 (citing Howard, 968 F.3d
at 721). But those holdings do not help Mr. Neher. Unlike the fully clothed
victims in Howard and Sprenger, Minor Victim 1's genitals were exposed in both
photos in a sexually suggestive manner. That is enough to find that the minor
was depicted in sexually explicit conduct. See United States v. Miller, 829 F.3d
519, 525 (7th Cir. 2016) (affirming convictions under § 2251(a) and finding that
a reasonable jury could have found that the videos depicted lascivious exhibition
where they contained scenes in which the minor was nude in a shower, which is
a "frequent host[ ] to fantasy sexual encounters as portrayed on television and
in film"). And Mr. Neher points to no case finding, based on Howard or Sprenger,
that images in which the minor's nude genitals were exposed and depicted in a
sexually explicit manner were not within the scope of § 2251(a) and
§ 2256(2)(A)(v).

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Indeed, after Mr. Neher's petition was fully briefed, the Seventh Circuit
decided United States v. Donoho, 76 F.4th 588 (7th Cir. 2023), which limited
Howard's holding. Mr. Donoho was convicted by a jury on one count of attempted
production of child pornography and several counts of production of child
pornography. Id. at 591. The images at issue in that case displayed minor girls
sitting on the toilet and getting in and out of the shower. Id. at 591. Like Mr.
Neher, Mr. Donoho relied on Howard to argue that the images at issue did not
amount to a "lascivious exhibition of the anus, genitals, or pubic area" of the
minors. Rejecting this argument, the Donoho court explained that Howard "was
concerned with the particular facts presented in that case, where 'it was the
defendant who was engaged in sexually explicit activity' rather than the minor."
76 F.4th at 596. The court further stated: "So long as the visual depiction at
issue depicts a minor engaged in sexually explicit conduct, a defendant may 'use'
the minor within the meaning of § 2251(a) without causing the minor to act in
any particular way." Id. at 597.
The court also rejected Mr. Donoho's argument that the district erred in
instructing the jury that it could consider his intent in deciding whether the
images were lascivious. The court explained that "the purpose for which certain
conduct is captured in an image is a relevant factor in an objective assessment
of the lasciviousness of the depicted conduct." Id. Thus, by excluding the
subject's face and instead focusing on the genitals, the producer of the image
alters the relationship between the image and the portrayed conduct. Id. The
images in this case—the first of Minor Victim 1 naked in a bathtub and the
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second of an adult hand pulling back her underwear to display her uncovered
genitals—are like the images in Donoho that depicted minors getting in and out
of the shower and were focused on the minor victims' genitals. Moreover, the
context is enough to allow a conclusion that the depictions of otherwise innocent
activity are lascivious. Here, the context includes Mr. Neher's statements in an
online private chat group for stepfathers who share and receive nude photos of
their stepdaughters.

In those chats, Mr. Neher stated that he "spies" and

"creeps" on Minor Victim 1 for purposes of sexual gratification; "admitted to
sneaking into Minor Victim 1's room while she was sleeping, moving the front of
her underwear to the side, and taking a photograph of her bare vagina."; and
stated that he gave Minor Victim 1 Nyquil for the purpose sexually abusing her
as she slept. ¶¶ 25(A)(i); 25(E)(ii).
Mr. Neher therefore has failed to demonstrate that his counsel performed
deficiently by failing to argue that the images at issue were not lascivious.
2. Hillie
Mr. Neher also compares the photos at issue in this case to the videos in
Hillie, which depicted a minor engaged in "ordinary grooming activities, some
dancing, and nothing more," and that the District of Columbia Circuit Court of
Appeals held not to be "lascivious exhibition" of a minor. 14 F.4th at 688.
As the United States points out, Hillie's holding relied on a definition of
"lascivious exhibition" under 18 U.S.C. § 2256(2)(A)(v) that's different than the
Seventh Circuit's interpretation, which is binding on the Court. Id. at 687; see
Miller, 829 F.3d at 524-25; dkt. 14 at 20. In Hillie, court stated that "lascivious
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exhibition" covers "visual depictions in which a minor, or someone interacting
with a minor, engages in conduct displaying their anus, genitalia, or pubic area
in a lustful manner that connotes the commission of sexual intercourse,
bestiality, masturbation, or sadistic or masochistic abuse." Hillie, 14 F.4th at
687 (emphasis added). But the Seventh Circuit has given a less stringent
requirement, interpreting "lascivious" to mean "tending to arouse sexual desire,"
which requires "more than nudity" but is satisfied by an image whose focus is
"on the genitals" or is "otherwise sexually suggestive." Miller, 829 F.3d at 52425.
Using its more rigorous definition of "lascivious," the District of Columbia
Circuit Court of Appeals found that, even though the minor victim in the case
was nude and the video contained "fleeting views of her pubic area," no rational
trier of fact could find the video was made "in a lustful manner that connotes the
commission of sexual intercourse." Hillie, 14 F.4th at 688. However, under the
Seventh Circuit's definition of "lascivious," courts in this circuit have affirmed
convictions under § 2251(a) where the images, like the images at issue here,
focused on the minor's genitals. See Donoho, 76 F.4th at 599 (rejecting argument
that jury should have been instructed that it should convict only if the images
depicted "conduct that connotes sex acts involving a minor…."); Miller, 829 F.3d
at 524-25; cf. United States v. Porter, No. 20 CR 837, 2022 WL 375512, at *5
(N.D. Ill. Feb. 8, 2022) (distinguishing Hillie and denying motion to dismiss
indictment based on images of minors preparing for a shower and showering);

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United States v. Skaggs, 412 F. Supp. 3d 958, 961 (S.D. Ind. 2019) (finding
defendant guilty of violating § 2251(a) when victim's genitals are focus of images).
Here, the focus of the images were the minor victim's unclothed genitals.
Under Seventh Circuit precedent, that's enough to count as "lascivious." Miller,
829 F.3d at 524-25.
* * *
In short, Mr. Neher has failed to show that the images that formed the
basis of his guilty plea do not violate 18 U.S.C. § 2251(a). Accordingly, he cannot
show that his counsel performed deficiently by failing to move to dismiss the
Information, failing to advise him that the images did not violate § 2251(a) during
plea negotiations, or failing to appeal this issue.1 See Warren v. Baenen, 712
F.3d 1090, 1104 (7th Cir. 2013) ("Counsel is not ineffective for failing to raise
meritless claims."); United States v. Carter, 355 F.3d 920, 924 (7th Cir. 2004)
("First, counsel cannot be said to be deficient for failing to take frivolous action,
particularly since a frivolous effort takes attention away from non-frivolous
issues. Second, it is evident that failing to make a motion with no chance of
success could not possibly prejudice the outcome.").
B. Guilty plea
Mr. Neher also suggests that his guilty plea was not knowing and
voluntary. For a plea to be valid, it must be made voluntarily, knowingly, and
intelligently. United States v. Schaul, 962 F.3d 917, 922 (7th Cir. 2020).

The Court notes that Mr. Neher does not argue that he asked counsel to file a notice
of appeal and counsel failed to do so.
1

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At his change of plea hearing, Mr. Neher affirmed that he understood the
accusations against him, had read the entire plea agreement and discussed it
with counsel, and understood the terms of the plea agreement. Cr. Dkt. 46 at
5:24-7:19. The Court reviewed with Mr. Neher the elements of the offense, and
he stated that he understood that at trial the government would need to prove
those elements. Id. at 7:20-9:1. In addition, Mr. Neher agreed that the factual
basis set forth in the plea agreement was "accurate and true." Id. at 11:11-22.
Mr. Neher is bound to the statements he made under oath at his plea hearing.
See

Hurlow

v.

United

States,

726

F.3d

958,

968

(7th

Cir.

2013)

("[R]epresentations made to a court during a plea colloquy are presumed to be
true.") (citation and internal quotation marks omitted). Mr. Neher bases his claim
that his guilty plea was not knowing and voluntary on his argument that the
images at issue did not violate § 2251(a). But, as discussed above, he was
properly advised by counsel that the creation of these images violated the
statute. Because the plea colloquy shows that Mr. Neher did in fact understand
the charges against him and the applicable law, he has not shown that his guilty
plea was not knowing and voluntary.
IV. Conclusion
For the reasons explained in this Order, Mr. Neher has not shown that his
counsel was ineffective. Accordingly, his motion for relief pursuant to § 2255 is
DENIED and this action is dismissed with prejudice. Judgment consistent with
this Entry shall now issue and the Clerk shall docket a copy of this Order in

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No. 2:21-cr-7-JPH-CMM-1. The motion to vacate, cr. dkt. [44], shall also be
terminated in the underlying criminal action.
V. Denial of Certificate of Appealability
A habeas petitioner does not have the absolute right to appeal a district
court's denial of his habeas petition, rather, he must first request a certificate of
appealability. See Miller–El v. Cockrell, 537 U.S. 322, 335 (2003); Peterson v.
Douma, 751 F.3d 524, 528 (7th Cir. 2014). Pursuant to Federal Rule of Appellate
Procedure 22(b), Rule 11(a) of the Rules Governing § 2255 proceedings, and 28
U.S.C. § 2253(c), the Court finds that Mr. Neher has failed to show that
reasonable jurists would find "it debatable whether the petition states a valid
claim of the denial of a constitutional right" and "debatable whether [this Court]
was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court therefore denies a certificate of appealability.
SO ORDERED.
Date: 2/7/2024

Distribution:
CRAIG ADAM NEHER
19896-509
ASHLAND – FCI
ASHLAND FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 6001
ASHLAND, KY 41105
Kristina M. Korobov
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]
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