Steven R. RANN, Petitioner-Appellant, v. Michael P. ATCHISON, Warden, Respondent-Appellee.
No. 11-3502.
United States Court of Appeals, Seventh Circuit.
Argued April 4, 2012. Decided Aug. 3, 2012.
689 F.3d 832
A deprivation of liberty without fair notice of the acts that would give rise to such a deprivation violates the due process clause, but was there a deprivation of liberty? A sanction of segregated confinement means moving an inmate from the general prison population to the near equivalent of solitary confinement. That is a change in the character rather than length of confinement, and is unlikely to be deemed a deprivation of liberty (the inmate having already been lawfully deprived of his liberty) unless the period of segregated confinement is protracted, Rowe v. DeBruyn, 17 F.3d 1047, 1053-54 (7th Cir.1994); Williams v. Fountain, 77 F.3d 372, 374 n. 3 (11th Cir.1996), or the conditions in segregation unusually harsh. E.g., Wilkinson v. Austin, 545 U.S. 209, 221-24, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005); Marion v. Columbia Correctional Institution, 559 F.3d 693, 696-99 (7th Cir. 2009); Lekas v. Briley, 405 F.3d 602, 610-13 and n. 7 (7th Cir.2005). The district judge made no findings that would enable an inference that the plaintiff‘s 90-day sentence to segregation was, or was not, a deprivation of liberty within the meaning of the cases. So while affirming the grant of summary judgment in favor of the defendants with regard to the plaintiff‘s free-speech claim, we vacate the dismissal of his due process claim and remand the case for further proceedings concerning it.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
William A. Schroeder (argued), Attorney, Carbondale, IL, for Petitioner-Appellant.
Erica Seyburn (argued), Attorney, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.
Before EASTERBROOK, Chief Judge, and FLAUM and MANION, Circuit Judges.
MANION, Circuit Judge.
I.
In November 2006, following a jury trial in the Circuit Court of Saline County, Illinois, Steven Rann was convicted of two counts of criminal sexual assault and one count of child pornography. He received consecutive sentences of twelve years’ incarceration on each sexual assault charge and fifteen years’ incarceration on the child pornography charge. The facts relevant to Rann‘s habeas petition have been laid out in the Illinois Appellate Court‘s Rule 23 Order affirming Rann‘s conviction on direct appeal. They are as follows:
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 half-sister. 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.
Rann‘s trial counsel did not move to suppress the images found on the zip drive and camera memory card when they were introduced into evidence.
On these facts, the Illinois Appellate Court affirmed the convictions and sentence, and the Illinois Supreme Court denied Rann‘s petition for leave to appeal. In November 2008, Rann filed a petition for a writ of habeas corpus pursuant to
II.
We review the district court‘s denial of habeas relief de novo. Crockett v. Hulick, 542 F.3d 1183, 1188 (7th Cir.2008). The Antiterrorism and Effective Death Penalty Act (“AEDPA“) governs our review of Rann‘s
Rann contends that he received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), specifically arguing that his trial counsel‘s failure to move to suppress the images found on the zip drive and camera memory card constituted ineffective assistance of counsel. The Illinois Appellate Court determined that these failures did not render Rann‘s counsel ineffective because any motion to suppress the evidence would have been unsuccessful.
Under Strickland, Rann must show that his counsel‘s performance was deficient and that the deficient performance prejudiced his defense. Grosshans, 424 F.3d at 590 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). When reviewing claims of ineffective assistance of counsel in habeas petitions, however, we must honor any reasonable state court decision, since “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). As Rann‘s ineffective assistance of counsel claim arises from his counsel‘s failure to move to suppress evidence, Rann must 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) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986)).1 Strickland
Rann‘s argument centers on his contention that, when the police searched the digital storage devices and viewed the images on them, they exceeded the scope of the private search conducted by S.R. and her mother. Since the subsequent search by the police exceeded the scope of the initial private search, so his argument runs, the police needed a warrant to “open” the digital storage devices and search them because the record contains no evidence that S.R. or her mother knew the digital storage devices contained images of child pornography prior to the police viewing. Since the police did not obtain a warrant prior to opening the digital storage devices and viewing the images, he claims their doing so constituted an unconstitutional warrantless search in violation of the Fourth Amendment. Rann thus argues that the Illinois Appellate Court unreasonably applied Supreme Court precedent when it found that the police did not expand the initial private search performed by S.R. and her mother and ruled that any motion to suppress the images obtained via that search would have been unsuccessful.
Long-established precedent holds that the Fourth Amendment does not apply to private searches. See Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). When a private party provides police with evidence obtained in the course of a private search, the police need not “stop her or avert their eyes.” Coolidge v. New Hampshire, 403 U.S. 443, 489, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Rather, the question becomes whether the police subsequently exceed the scope of the private search. See United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In Jacobsen, the Supreme Court ruled that individuals retain a legitimate expectation of privacy even after a private individual conducts a search, and “additional invasions of privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.” Id. at 115, 104 S.Ct. 1652.
We have not yet ruled on the application of Jacobsen to a subsequent police search of privately searched digital storage devices, but the Fifth Circuit has in United States v. Runyan, 275 F.3d 449 (5th Cir. 2001). There, Runyan was convicted on child pornography charges after his ex-wife and several of her friends entered his residence and assembled a collection of digital media storage devices, which they turned over to the police. Id. at 456. Even though Runyan‘s ex-wife and her friends had only viewed a “randomly selected assortment” of the disks, the police searched each disk and found a trove of child pornography images. Id. at 460. The court applied Jacobsen to these facts and partially upheld the government search, holding that a search of any material on a computer disk is valid if the private party who conducted the initial search had viewed at least one file on the disk. Id. at 465. Analogizing digital media storage devices to containers, the Fifth Circuit ruled that “police exceed the scope of a prior private search when they examine a closed container that was not opened by the private searches unless the police are already substantially certain of what is inside that container based on the state-
We find the Fifth Circuit‘s holding in Runyan to be persuasive, and we adopt it. As the Fifth Circuit reasoned, their holding
is sensible because it preserves the competing objectives underlying the Fourth Amendment‘s protections against warrantless police searches. A defendant‘s expectation of privacy with respect to a container unopened by the private searchers is preserved unless the defendant‘s expectation of privacy in the contents of the container has already been frustrated because the contents were rendered obvious by the private search. Moreover, this rule discourages police from going on “fishing expeditions” by opening closed containers.
Id. at 463-64. We find that Runyan‘s holding strikes the proper balance between the legitimate expectation of privacy an individual retains in the contents of his digital media storage devices after a private search has been conducted and the “additional invasions of privacy by the government agent” that “must be tested by the degree to which they exceeded the scope of the private search.” Jacobsen, 466 U.S. at 115, 104 S.Ct. 1652.
Under Runyan‘s holding, police did not exceed the scope of the private searches performed by S.R. and her mother when they subsequently viewed the images contained on the digital media devices. Rann argues that the Illinois Appellate Court relied on conjecture when it found that S.R. and her mother knew the contents of the devices they delivered to the police, pointing to the Illinois Appellate Court‘s finding that “[a]lthough no testimony exists regarding how the images on the zip drive came to be there ... it seems highly likely that S.R.‘s mother [compiled] the images on the zip drive herself, downloading them from the family computer.” Rann argues that this is conjecture, yet he offers nothing but conjecture and speculation in its place.
Factual determinations of a state court are “presumed to be correct” and the petitioner bears the burden of rebutting that presumption by clear and convincing evidence.
[t]his 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 the zip drive contained.
These findings were reasonable based on the trial testimony. S.R. testified that she knew Rann had taken pornographic pictures of her and brought the police a memory card that contained those pictures. S.R.‘s mother also brought the police a zip drive containing pornographic pictures of her daughter. Both women brought evidence supporting S.R.‘s allegations to the police; it is entirely reasonable to conclude that they knew that the digital media devices contained that evidence. The contrary conclusion—that S.R. and her mother brought digital media devices to the police that they knew had no relevance to S.R.‘s allegations—defies logic. For these reasons, the Illinois Appellate Court‘s factual findings are reasonable, and Rann has failed to present clear and convincing evidence—indeed, any evidence whatsoever—to overcome the presumption of correctness we give to the state court‘s finding.
Likewise, even if the police more thoroughly searched the digital media devices than S.R. and her mother did and viewed images that S.R. or her mother had not viewed, per the holding in Runyan, the police search did not exceed or expand the scope of the initial private searches. Because S.R. and her mother knew the contents of the digital media devices when they delivered them to the police, the police were “substantially certain” the devices contained child pornography. See Runyan, 275 F.3d at 463. Accordingly, the subsequent police search did not violate the Fourth Amendment, and Rann‘s ineffective assistance of counsel claim must fail.
III.
Rann‘s claim that the police‘s warrantless search of digital media devices brought to them by his victim and his victim‘s mother violated the Fourth Amendment is without merit. Because he cannot prevail on his Fourth Amendment argument, Rann‘s ineffective assistance of counsel claim under Strickland must fail. Thus, the Illinois Appellate Court did not unreasonably apply federal law when it denied his appeal. The district court‘s decision is AFFIRMED and Rann‘s application for a writ of habeas corpus is DENIED.