                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-3502

S TEVEN R. R ANN,
                                           Petitioner-Appellant,
                               v.

M ICHAEL P. A TCHISON, Warden,

                                          Respondent-Appellee.


           Appeal from the United States District Court
                 for the Southern District of Illinois.
         No. 08 CV 00792—David R. Herndon, Chief Judge.



      A RGUED A PRIL 4, 2012—D ECIDED A UGUST 3, 2012




 Before E ASTERBROOK, Chief Judge, and F LAUM and
M ANION, Circuit Judges.
  M ANION, Circuit Judge. In 2006, Steven Rann was con-
victed of two counts of criminal sexual assault and one




  Michael P. Atchison, the current warden of the Menard
Correctional Center, has been substituted for Donald Hulick
as respondent pursuant to Fed. R. App. P. 43(c).
2                                            No. 11-3502

count of possession of child pornography. He was sen-
tenced to consecutive terms of twelve years’ imprison-
ment on each sexual assault conviction and fifteen years’
imprisonment on the child pornography conviction.
Rann filed a direct appeal in state court arguing that he
received ineffective assistance of counsel because his
attorney did not seek to suppress incriminating evi-
dence in the form of digital images obtained without a
warrant from a zip drive and a camera memory card.
The Illinois Appellate Court upheld his conviction, and
the Illinois Supreme Court denied his petition to appeal.
Having exhausted his state court remedies, Rann filed a
petition for a writ of habeas corpus. The district court
denied his writ, but did issue a Certificate of Appeal-
ability, allowing Rann to bring this appeal. Because we
find that his ineffective assistance of counsel claim
lacks merit, we affirm the district court’s denial of
Rann’s habeas petition.


                           I.
  In November 2006, following a jury trial in the Circuit
Court of Saline County, Illinois, Steven Rann was con-
victed 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 con-
viction on direct appeal. They are as follows:
No. 11-3502                                              3

     In January 2006, the defendant’s biological daughter,
   S.R., who was then 15 years old, reported to the Eldo-
   rado 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 down-
   loaded 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 evi-
   dence . . . 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 porno-
   graphic 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
4                                                 No. 11-3502

    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 evi-
    dence 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 28 U.S.C. § 2254(a) in the
United States District Court for the Southern District of
Illinois. The matter was referred to the magistrate judge,
who filed a report recommending that the petition be
denied. The district court adopted the report and recom-
mendation of the magistrate judge and entered judg-
ment denying Rann’s habeas petition. The district court
subsequently granted Rann a Certificate of Appealability
to consider whether the Illinois Appellate Court rea-
sonably applied United States Supreme Court precedent
when it held that Rann’s trial counsel was not ineffec-
tive for failing to move to suppress the images recov-
ered from the digital storage devices, and whether
the police’s viewing of those images constituted a sig-
nificant expansion of a private search such that a war-
rant was required to permit police to view the images.
This appeal followed.
No. 11-3502                                                5

                             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 § 2254
petition. When, as here, a state court adjudicates a peti-
tioner’s ineffective assistance of counsel claim on the
merits, a federal court can issue a writ of habeas corpus
only if the state court’s decision was either “contrary to,
or involved an unreasonable application of clearly estab-
lished federal law, as determined by the Supreme
Court of the United States,” or “was based on an unrea-
sonable determination of the facts in light of the
evidence presented in the State court proceeding.” Martin
v. Grosshans, 424 F.3d 588, 590 (7th Cir. 2005) (citing
28 U.S.C. § 2254(d)). The state court’s application of
federal law must not only be incorrect, but “objectively
unreasonable.” See Renico v. Lett, 130 S. Ct. 1855, 1862
(2010) (citing Williams v. Taylor, 529 U.S. 362, 409-10
(2000)). Typically, this would involve the state court
“apply[ing] a rule different from the governing law set
forth in [Supreme Court cases], or if it decides a case
differently than the [Supreme Court] on a set of materially
indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002).
  Rann contends that he received ineffective assistance
of counsel under Strickland v. Washington, 466 U.S. 668
(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
6                                                  No. 11-3502

assistance of counsel. The Illinois Appellate Court deter-
mined that these failures did not render Rann’s counsel
ineffective because any motion to suppress the evi-
dence would have been unsuccessful.
  Under Strickland, Rann must show that his counsel’s
performance was deficient and that the deficient per-
formance prejudiced his defense. Grosshans, 424 F.3d at
590 (citing Strickland, 466 U.S. at 687). 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 Strick-
land’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 (1986)).1 Strickland requires that we presume counsel


1
   As the court pointed out during oral argument, the Supreme
Court ruled in Stone v. Powell, 428 U.S. 465 (1976), that where
a state court has provided an opportunity for a full and fair
litigation of a Fourth Amendment claim, a state prisoner
cannot be granted habeas relief on the ground that evidence
obtained through an unconstitutional search and seizure was
introduced at his trial. See id. at 494. The Illinois Appellate
                                                  (continued...)
No. 11-3502                                                     7

“ ‘rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judg-
ment.’ ” Ebert, 610 F.3d at 411 (quoting Strickland, 466
U.S. at 690).
  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 unrea-
sonably 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


1
   (...continued)
Court, however, did not assert the benefit of Stone, and we
have authority to decide Rann’s argument on its merits. See,
e.g., Wood v. Milyard, 132 S. Ct. 1826, 1832-34 (2012) (procedural
forfeitures by a state should be enforced unless strong
reasons justify dismissing a collateral attack on the forfeited
procedural ground).
8                                               No. 11-3502

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 (1971). 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 (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
(1984). In Jacobsen, the Supreme Court ruled that indi-
viduals retain a legitimate expectation of privacy even
after a private individual conducts a search, and “addi-
tional 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.
  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
No. 11-3502                                                     9

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 con-
tainer based on the statements of the private searches,
their replication of the private search, and their exper-
tise.” Id. at 463. Since the police could be substantially
certain, based on conversations with Runyan’s ex-wife
and her friends, what the privately-searched disks con-
tained, they did not exceed the scope of the private
search when they searched those specific disks. Id. at 465.2



2
  The Fifth Circuit ruled that the police did, however, exceed the
scope of the initial private search when they searched the
disks on which Runyan’s ex-wife and her friends had not
viewed at least one file. Id. at 464. There was no way the police
could have known the contents of all the disks because the
disks were unlabeled and because Runyan’s ex-wife admitted
she did not search all of the disks before she turned them
over to the police. Id. The court reasoned that “[t]he mere
fact that the disks that [the private individuals] did not
examine were found in the same location in Runyan’s
residence as the disks they did examine is insufficient to
establish with substantial certainty that all of the storage
media in question contained child pornography.” Id.
                                                    (continued...)
10                                                No. 11-3502

  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 objec-
     tives underlying the Fourth Amendment’s protec-
     tions against warrantless police searches. A defen-
     dant’s expectation of privacy with respect to a con-
     tainer unopened by the private searchers is
     preserved unless the defendant’s expectation of pri-
     vacy in the contents of the container has already
     been frustrated because the contents were rendered
     obvious by the private search. M oreover, this rule
     discourages police from going on “fishing expedi-
     tions” 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.



2
   (...continued)
   Since S.R. and her mother knew the contents of both of the
digital media devices they provided to the police, that problem
is not implicated here. For a full and thoughtful discussion of
the applicability of Jacobsen to police searches performed
subsequent to a private search of digital storage devices,
see generally Runyan, 275 F.3d at 462-64.
No. 11-3502                                                 11

   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. 28 U.S.C. § 2254(e)(1). The Illinois Appellate
Court specifically found that
    [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 dis-
    cover 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 con-
    clusive 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 testi-
mony. S.R. testified that she knew Rann had taken porno-
12                                              No. 11-3502

graphic 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 porno-
graphic 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 con-
trary 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 whatso-
ever—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
No. 11-3502                                             13

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 A FFIRMED and Rann’s application for a writ
of habeas corpus is D ENIED.




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