Richardson, Thomas v. United States ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3786
THOMAS RICHARDSON,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 02 CV 4041—Suzanne B. Conlon, Judge.
____________
ARGUED JULY 7, 2004—DECIDED AUGUST 16, 2004
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Before CUDAHY, COFFEY, and ROVNER, Circuit Judges.
PER CURIAM. Thomas Richardson pleaded guilty to one
count of receiving child pornography, 18 U.S.C. § 2252(a)(2),
and one count of possession of child pornography, id.§ 2252(a)(4)(B), and was sentenced to a total of 108 months’
imprisonment. Richardson filed a direct appeal challenging
the calculation of his sentence, and we affirmed the sen-
tence imposed by the district court. See United States v.
Richardson, 238 F.3d 837 (7th Cir. 2001). Richardson then
moved to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255, arguing that his trial counsel was
constitutionally ineffective. The district court denied
2 No. 02-3786
Richardson’s motion, holding that he procedurally defaulted
his claim because he could have raised it on direct appeal,
but did not do so.
Richardson correctly argues that he did not procedurally
default his ineffective-assistance claim because Massaro v.
United States, 538 U.S. 500 (2003), holds that a federal
defendant can always wait and raise ineffective-assistance
claims on collateral attack. However, we nonetheless affirm
the district court’s denial of his § 2255 motion because
Richardson has failed to show that his trial counsel was
ineffective.
Background
In April 1999 an employee at a Park Ridge, Illinois, film
processing store alerted police that Richardson had left film
to be processed that appeared to contain images of child
pornography. Park Ridge police officers went to Richard-
son’s home to question him about the film, and Richardson
allowed them to enter his apartment. The officers asked
Richardson if he had any child pornography, and Richard-
son responded by pulling up three pictures on his computer,
including two that showed a young girl engaged in sexual
activity.
Richardson also pointed the officers to a box containing
twelve, high-capacity “jazz” and “zip” disks. The government’s
forensic experts examined the disks and determined that
they contained over 70,000 sexually explicit images down-
loaded from Internet websites, and that “the individuals
portrayed in those images are, in many instances, prepubes-
cent girls, many of whom are under the age of 12.” During
his plea colloquy, Richardson admitted that the disks
contained the images described by the government. Officers
also found several video clips that Richardson had put to-
gether from some of the downloaded pornographic images
and thousands of photographs Richardson had taken of
young girls without their knowledge.
No. 02-3786 3
In January 2002 Richardson filed his initial § 2255 motion
in which he identified twenty-nine grounds for his inef-
fective-assistance claim. The district court denied Richardson’s
§ 2255 motion on the ground that he procedurally defaulted
his ineffective-assistance claim by not raising it on direct
appeal. We granted Richardson’s request for a certificate of
appealability as to whether his trial counsel was ineffective
for failing to conduct an adequate investigation before
Richardson entered his guilty plea. We also instructed the
parties to address whether the district court properly found
that Richardson procedurally defaulted his ineffective-
assistance claim.
Analysis
Richardson first challenges the district court’s procedural
analysis. The district court, relying on our opinion in
Guinan v. United States, 6 F.3d 468 (7th Cir. 1993), held
that Richardson procedurally defaulted his ineffective-as-
sistance claim because he did not raise it on direct appeal.
Richardson argues that we should instead apply Massaro,
which overruled Guinan and holds that a federal prisoner
challenging a conviction under § 2255 can raise an inef-
fective-assistance-of-counsel claim in a collateral proceeding
even where the defendant could have, but did not, raise the
claim on direct appeal. 538 U.S. at 505. The government
agrees that Massaro controls, but even with this concession
we must still independently evaluate the correctness of the
procedural-default ruling. See United States v. Banks-
Giombetti, 245 F.3d 949, 952 (7th Cir 2001).
It is well-established that a court generally applies the
law in effect at the time of its decision, and that if the law
changes while the case is on appeal the appellate court
applies the new rule. See Thorpe v. Durham Hous. Auth., 393
U.S. 268, 281 (1969); Meghani v. INS, 236 F.3d 843, 846 (7th
Cir. 2001); United States v. Kimberlin, 776 F.2d 1344, 1346
4 No. 02-3786
(7th Cir. 1985). Because Massaro was issued after Richardson
brought this appeal, the decision is applicable to our anal-
ysis. Therefore, Richardson was not required to bring his
ineffective-assistance claim on direct appeal, and we will
address the merits of that claim on appeal. See Galbraith v.
United States, 313 F.3d 1001, 1008 (7th Cir. 2002).
Richardson contends that his lawyer was deficient in failing
to investigate the possibility that the images described in
the indictment are computer-generated and not really pic-
tures of human beings, purported discrepancies in the police
reports, and the chain of custody for part of the evidence the
government intended to use against Richardson at trial.1 To
be successful on an ineffective-assistance claim, Richardson
must show that his attorney’s performance fell below an
objective standard of reasonableness under prevailing
professional norms, Strickland v. Washington, 466 U.S. 668,
687 (1984), and prove that “but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to
trial,” Hill v. Lockhart, 474 U.S. 52, 58-60 (1985). We need not
consider the first prong of the standard if we conclude that
counsel’s alleged deficiency did not prejudice the defendant.
Strickland, 466 U.S. at 697; Berkey v. United States, 318 F.3d
768, 772 (7th Cir. 2003).
When the alleged deficiency is a failure to investigate, the
movant must provide “the court sufficiently precise informa-
tion, that is, a comprehensive showing as to what the
investigation would have produced.” Hardamon v. United
States, 319 F.3d 943, 951 (7th Cir. 2003) (internal quota-
tions and citation omitted). Whether a movant who pleaded
1
In Richardson’s reply brief, his lawyers state that Richardson
“instructed” them to add two arguments that were not included in
the opening brief. We will not address these arguments because
they were raised for the first time in the reply brief. United States
v. Jones, 278 F.3d 711, 717 (7th Cir. 2002).
No. 02-3786 5
guilty can establish prejudice from counsel’s failure to
investigate depends on whether the information that might
have been discovered “would have led counsel to change his
recommendation as to the plea,” Hill, 474 U.S. at 59. This is
an objective analysis that requires us to examine what a
reasonable person would do “without regard for the ‘idiosyn-
crasies of the particular decisionmaker.’ ” Id. at 60 (quoting
Strickland, 466 U.S. at 695).
First, Richardson argues that counsel should have inves-
tigated whether the images recovered from his house were
of actual children. Richardson is correct that receipt of
virtual child pornography is not illegal. See Ashcroft v. Free
Speech Coalition, 535 U.S. 234, 250 (2002). However,
Richardson offers no reason to believe that any of the pic-
tures found in his possession were not of real children; in
fact, nowhere in his § 2255 motion does he even allege that
some of the images were virtual and not real. See United
States v. Fudge, 325 F.3d 910, 924 (7th Cir. 2003) (movant did
not “offer[ ] a shred of evidence that supports his claim”);
Galbraith, 313 F.3d at 1008-09 (holding that denial of
§ 2255 motion is appropriate where movant provides no
evidence to support it). Without any evidence, or even an
allegation that the images he received and possessed were
not of real children, Richardson cannot show that he was
prejudiced by his counsel’s alleged failure to investigate
whether the images were of virtual or real children.
Richardson further argues that his trial counsel failed to
investigate two alleged errors the police made in handling
the evidence against him. First, Richardson claims that his
counsel should have investigated whether the police officers
who interviewed him were lying when they said he printed
two pictures from his computer files since the officers never
logged the receipt of those printed images. Second, Richard-
son contends his counsel should have investigated a
potential chain-of-custody issue because one of the zip disks
seized at Richardson’s house was inexplicably transferred
6 No. 02-3786
to the local fire department. Richardson argues that had his
attorneys investigated these matters they might have
“undermined the government’s case” and “changed their
recommendation as to the plea.”
Richardson’s theory is meritless. He was charged with one
count of receipt of child pornography and one count of
possession of child pornography although the government
had evidence that Richardson had downloaded and pos-
sessed over 70,000 images of children. Of those 70,000 images,
the government’s experts examined 1,300 and found that
688 depicted children engaging in sexually explicit conduct.
Any one of these images could have satisfied the factual
basis for the government’s case. 18 U.S.C. § 2252(a)(2),
(a)(4)(B). Even if we were to accept Richardson’s argument
that the two printed images and one zip drive were not
evidence the government could have used to prosecute him,
the government still possessed hundreds of images that
Richardson has not challenged. Since the government tested
less than two percent of the images recovered from Richardson
and found that more than fifty percent of those images
depict children in sexually explicit conduct, it is likely that
Richardson actually received and possessed tens of thou-
sands of pornographic images. Richardson is “required to
show through objective evidence that a reasonable probabil-
ity exists that he would have gone to trial,” Fudge, 325 F.3d
at 924 (citation omitted), and no reasonable person would
have chosen to go to trial if the government had hundreds
if not thousands of opportunities to prove its case.
Accordingly, we AFFIRM the judgment of the district court
on the grounds set forth in this opinion.
No. 02-3786 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-16-04