7 F.4th 611
7th Cir.2021Background
- Resnick, a long-haul trucker, sexually abused two boys (A.M., age 9; K.M., age 8), threatened one with a gun, and showed child pornography; investigators later seized his laptop and found extensive child pornography.
- He pleaded guilty in Florida to child-pornography-related conduct; later indicted in Northern District of Indiana for aggravated sexual abuse, transportation of child pornography, brandishing a firearm, and being a felon in possession of a firearm; convicted at trial and sentenced to life plus a consecutive seven years.
- On direct appeal this court affirmed the convictions and sentence. After his conviction became final, Resnick filed a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel during plea negotiations, trial, and sentencing.
- The district court denied the § 2255 motion; Resnick appealed. The Seventh Circuit reviews factual findings for clear error and legal conclusions de novo.
- The opinion examines alleged deficiencies: counsel’s failure to obtain specific performance of an initial plea agreement, rejection of a Rule 11(c)(1)(C) amended plea offering 20 years, multiple trial-stage tactical choices (expert handling, witness impeachment, objections), and sentencing strategies (use of psychologist Meagher, failure to present Sentencing Commission data).
- The court concluded none of the claimed errors met Strickland/Lafler prejudice or performance standards and affirmed the denial of § 2255 relief.
Issues
| Issue | Resnick's Argument | Government / Court Argument | Held |
|---|---|---|---|
| Ineffective assistance during plea (failure to seek specific performance of initial plea) | Counsel should have enforced the first plea agreement; enforcement likely would have avoided trial and life sentence | The amended Rule 11(c)(1)(C) offer Resnick rejected guaranteed the same 20-year outcome as the first deal; Resnick cannot show reasonable probability of a lower sentence under the first agreement | No prejudice — plea-related claim fails under Lafler; rejection of amended offer defeats prejudice showing |
| Strategy re: Government behavioral expert (Donaldson) | Counsel failed to investigate/rebut expert testimony linking child porn possession and contact offenses | Counsel pursued a deliberate strategy to downplay experts and attack victim credibility; dueling experts unlikely to change result given direct evidence | No deficient performance or prejudice; strategy was reasonable |
| Failure to call a rebuttal computer-forensics expert | Counsel should have presented an expert to dispute forensic testimony that files were knowingly deleted | No reasonably available expert identified; counsel effectively cross-examined the detective; defense admissions limited what an expert could refute | No deficient performance or prejudice |
| Failure to admit impeachment evidence about A.M.’s prior sexual conduct | Counsel should have impeached A.M. with prior conduct to attack credibility | Court excluded the evidence under Rule 412; counsel did move to admit but losing a meritless argument is not ineffective | No deficient performance; evidence properly excluded |
| Failure to object to admission of polygraph refusal | Counsel should have objected; lack of objection impeded appellate review | Law on admissibility was unsettled; failure to object was not unreasonable; plain-error review on direct appeal was comparable or more lenient than Strickland | No deficient performance or prejudice |
| Objections not made to various trial evidence (victim trauma testimony, employer "no-passenger" policy, unrelated conduct, Florida plea factual basis, written stories on computer) | These admissions were prejudicial; counsel should have objected or sought limiting instructions | Many items were admissible or of minor consequence; some were admissible under Rules 414/403 or not outcome-determinative given strong direct evidence | No deficient performance or prejudice for each item |
| Cumulative error | Even if individual errors are minor, combined they deprived Resnick of effective assistance | Court found no significant individual errors to accumulate; overwhelming evidence of guilt | No cumulative prejudice |
| Sentencing: use of Meagher psychological report and recidivism evidence | Counsel erred by submitting a report with harmful material and by failing to rebut Government recidivism evidence with other experts or data | Meagher also provided mitigating value (challenged pedophile label); counsel reasonably balanced harms/benefits; court objectively assessed prejudice and found abundant support for the sentence | No deficient performance or prejudice |
| Sentencing: failure to present Sentencing Commission mean/median data | Counsel should have shown mean/median sentences for similarly categorized offenders to argue for lower sentence | Resnick faced mandatory minimums and a combined mandatory exposure (444 months) that made average/median comparisons irrelevant | No deficient performance or prejudice |
Key Cases Cited
- Lafler v. Cooper, 566 U.S. 156 (2012) (plea-stage ineffective-assistance standard: performance + proof of reasonable probability of a plea and of a more favorable sentence)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance of counsel)
- Harrington v. Richter, 562 U.S. 86 (2011) (no requirement that defense produce an opposing expert for every prosecution expert)
- United States v. Resnick, 823 F.3d 888 (7th Cir. 2016) (direct appeal affirming convictions and addressing several trial issues)
- Day v. United States, 962 F.3d 987 (7th Cir. 2020) (clarifying prejudice inquiry in plea-context ineffective-assistance claims)
- United States v. Garthus, 652 F.3d 715 (7th Cir. 2011) (discussing relevance of type of child pornography to future dangerousness/recidivism)