Richardson v. U.S.

• Decision Date: 16 August 2004
• Docket Number: No. 02-3786.,02-3786.
• Citation: 379 F.3d 485
• Parties: Thomas RICHARDSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

379 F.3d 485

Thomas RICHARDSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 02-3786.

United States Court of Appeals, Seventh Circuit.

Argued July 7, 2004.

Decided August 16, 2004.

Appeal from the United States District Court for the Northern District of Illinois, Suzanne B. Conlon, J Ellen M. Avery (argued), Shefsky & Froelich, Chicago, IL, for Petitioner-Appellant.

Lela D. Johnson (argued), Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

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 sentence 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 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, 123 S.Ct. 1690, 155 L.Ed.2d 714 (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 Richardson'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 Richardson 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 downloaded from Internet websites, and that "the individuals portrayed in those images are, in many instances, prepubescent 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 together from some of the downloaded pornographic images and thousands of photographs Richardson had taken of young girls without their knowledge.

In January 2002 Richardson filed his initial § 2255 motion in which he identified twenty-nine grounds for his ineffective-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-assistance 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 ineffective-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, 123 S.Ct. 1690. 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, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); Meghani v. INS, 236 F.3d 843, 846 (7th Cir.2001); United States v. Kimberlin, 776 F.2d 1344, 1346 (7th Cir.1985). Because Massaro was issued after Richardson brought this appeal, the decision is applicable to our analysis. 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 pictures 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 106 S.Ct. 366, 88 L.Ed.2d 203 (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, 104 S.Ct. 2052; 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 information, 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 quotations and citation omitted). Whether a movant who pleaded 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, 106 S.Ct. 366. This is an objective analysis that requires us to examine what a reasonable person would do "without regard for the `idiosyncrasies of the particular decisionmaker.'" Id. at 60, 106 S.Ct. 366 (quoting Strickla...