                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-1974
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                JOHN HAMMES FRITZ,
                                             Appellant
                                   _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 2-07-cr-00629)
                       District Judge: Hon. Mary A. McLaughlin
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    March 3, 2016

           Before: JORDAN, GREENBERG, and SCIRICA, Circuit Judges.

                                  (Filed: March 8, 2016)
                                    _______________

                                       OPINION
                                    _______________




       
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       John Fritz appeals an order of the United States District Court for the Eastern

District of Pennsylvania denying his motion under 28 U.S.C. § 2255 to vacate his

conviction. We will affirm.

I.     BACKGROUND

       In 2009, Fritz represented himself during a jury trial and was convicted of two

counts of possession and transportation of child pornography. He was sentenced to the

mandatory minimum term of fifteen years’ imprisonment. On direct appeal – by which

time Fritz had legal counsel – his attorney raised only a challenge to the sufficiency of the

evidence used to convict him. That evidence consisted of hundreds of images and

movies containing child pornography taken from Fritz’s home computer, which could

only be accessed with a password. Also, because Fritz wore an electronic monitoring

device as a condition of his parole for a prior offense, a government expert was able to

testify that the illicit pictures and videos on his computer were downloaded at times when

Fritz was at home. Given the strength of the evidence, we affirmed his conviction.

United States v. Fritz, 453 F. App’x 204 (3d Cir. 2011).

       The following year, we decided United States v. Cunningham, 694 F.3d 372 (3d

Cir. 2012). In that decision, we clarified that, in child pornography cases when an

objection is made under Federal Rule of Evidence 403, the district courts of this Circuit

have an obligation to examine the images to which the objection pertains and which the

prosecution intends to show to the jury. Id. at 386. We reasoned that the court must do

so to ensure that the use of those images does not run afoul of the requirement in Rule

                                             2
403 that the danger of unfair prejudice be weighed against the probative value of the

evidence. Id. Especially in child pornography cases, that obligation cannot be ignored

because the images are inherently vile, obscene, and repulsive, and “the aggregate risk of

unfair prejudice [is] tremendous.” Id. at 390. Of course, the court may still permit the

government to show such images to the jury, even when the defendant offers to stipulate

that they contain child pornography. Id. at 391. But the government may not pile on to

such a degree that the probative value of the images is substantially outweighed by the

danger of unfair prejudice that they can create. District courts are best equipped to strike

the appropriate balance by reviewing the images that the government intends to show the

jury, rather than merely relying on the government’s description of the images.

       Two months after we released our decision in Cunningham, Fritz filed a motion to

vacate his conviction pursuant to 28 U.S.C. § 2255. He argued that his appellate counsel

was constitutionally ineffective for failing to raise a challenge to the use of the images of

child pornography at his trial. Overall, Fritz’s computer contained 749 photographs and

107 videos of child pornography, some of it violent. During the trial, the government

showed a slideshow of seventeen photographs, in which each was displayed for about

two seconds, and played clips from five videos, each about fifteen seconds in length,

without audio. Fritz did not object to the admission of the photographs and videos, and it

appears that, as in Cunningham, the district court did not personally review them before

showing them to the jury. Nonetheless, the District Court denied Fritz’s § 2255 motion.

We granted a certificate of appealability to address whether his appellate counsel “was



                                              3
ineffective for failing to challenge the trial court’s admission of images depicting child

rape, bondage and actual violence … .”

II.    DISCUSSION1

       To establish a constitutional violation for ineffective assistance of counsel, a

defendant has the burden to show that his counsel’s representation both “fell below an

objective standard of reasonableness” and “prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). Strickland also provides a practical

suggestion that, “[i]f it is easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, . . . that course should be followed.” Id. at 697. We have

followed that advice when appropriate, see, e.g., United States v. Lilly, 536 F.3d 190, 196

(3d Cir. 2008), and do so again here.

       To prove prejudice in the context of a claim of appellate counsel’s ineffectiveness,

the defendant has the burden to “show a reasonable probability that, but for his counsel’s

unreasonable failure” to raise the disputed issue on appeal, “he would have prevailed on

his appeal.” Smith v. Robbins, 528 U.S. 259, 285 (2000). Here, Fritz must show that he

would have had a reasonable probability of success on appeal if his appellate counsel had

challenged the admission of the various images and videos of child pornography used at

his trial. But Fritz would have lost that hypothetical appeal.

       At the outset, his appellate claim would have been significantly weakened by the

fact that, during the trial, Fritz never objected to the admission of the images.2 The

       1
         The District Court had jurisdiction under 28 U.S.C. § 2255. We exercise
jurisdiction pursuant to 28 U.S.C. § 2253.

                                              4
District Court gave Fritz every opportunity to object, as it explained the process of

making an objection to him prior to trial and asked him before the playing of each video

whether he had any objection. Representing himself, Fritz demurred each time.3 Given

the lack of objection, if his appellate counsel had raised the issue on appeal, it would have

been subject to the stringent plain error standard of review under Rule 52(b) of the

Federal Rules of Criminal Procedure. United States v. Olano, 507 U.S. 725, 732 (1993).

“For reversible plain error to exist, there must be (1) an error; (2) that is plain; (3) that

affects substantial rights; and (4) which seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Paladino, 769 F.3d 197, 201 (3d

Cir. 2014) (internal quotation marks omitted). “The Rule’s requirement that an error be

‘plain’ means that lower court decisions that are questionable but not plainly wrong (at

       2
         Because Fritz represented himself during the trial, he cannot claim that he acted
ineffectively on his own behalf by failing to object. See Faretta v. California, 422 U.S.
806, 834 n.46 (1975) (“[A] defendant who elects to represent himself cannot thereafter
complain that the quality of his own defense amounted to a denial of ‘effective assistance
of counsel.’”).
       3
         In his briefing to this Court, Fritz argues that he in fact did object, and thus
preserved the issue for appellate review, but he cites primarily a pretrial colloquy in
which his standby counsel discussed the admissibility of his prior criminal conviction.
That discussion, connected to an entirely different piece of evidence, has no bearing here.
        He also cites his objection to the audio portion of the videos, which the district
court accepted by not allowing the government to play any of the audio. In making that
objection, however, Fritz specifically noted that he was not challenging the admissibility
of the images on the videos, because they “are what the charge is surrounded by” (Supp.
App. at 80) and the use of anything beyond the images “would be establishing facts
which aren’t necessary for the charge” (Supp. App. at 91). Given that Fritz’s objection
was specific to the audio and explicitly disclaimed any challenge to the images, it cannot
be treated as having preserved a challenge to the images for appellate review. See United
States v. Russell, 134 F.3d 171, 179 (3d Cir. 1998) (“[A]n objection must be specific
enough not only to put the judge on notice that there is in fact an objection, but to serve
notice as to the underlying basis for the objection.”).
                                                5
time of trial or at time of appeal) fall outside the Rule’s scope.” Henderson v. United

States, 133 S. Ct. 1121, 1130 (2013) (emphasis in original). Given that heightened

standard of review, “[t]he decision to forgo a plain error claim is usually the result of a

reasonable winnowing of weaker appellate claims,” and a court will “rarely conclude that

an appellate attorney’s performance was constitutionally deficient for not raising such a

claim.” Roe v. Delo, 160 F.3d 416, 418 (8th Cir. 1998).

       Even assuming that the admission of the images of child pornography at his trial

constituted error – which is, we note, a very large assumption – that error was not

“plain.” For the purposes of plain error review, the term “‘[p]lain’ is synonymous with

‘clear’ or, equivalently, ‘obvious.’” Olano, 507 U.S. at 734. The error must be so

obvious that “the trial judge and prosecutor were derelict in countenancing it, even absent

the defendant’s timely assistance in detecting it.” United States v. Frady, 456 U.S. 152,

163 (1982). For example, an error is “plain” where the decisional law on which it is

based was on the books well before the error occurred “and its applicability to the case at

hand [was] obvious.” United States v. Dobson, 419 F.3d 231, 239 (3d Cir. 2005).

Moreover, a decision not to include a claim on direct appeal must be “viewed as of the

time of counsel’s conduct,” Strickland, 466 U.S. at 690, endeavoring not to apply the

distorting perspective of hindsight, Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). See

also Smith v. Murray, 477 U.S. 527, 536 (1986) (considering a claim of an appellate

attorney’s ineffectiveness by reference to the “law at the time [the attorney] submitted his

opening brief”). In light of those controlling standards, Fritz cannot establish plain error

by reference to the general need for a balancing of prejudice and probative value under

                                              6
Rule 403, because, “when a trial court is not given the opportunity to exercise its

discretion in striking the balance, we will seldom find plain error … .” United States v.

Gatto, 995 F.2d 449, 457 (3d Cir. 1993). Instead, to have prevailed on appeal, Fritz

would have had to show that the District Court violated an established decisional rule by

admitting the pornographic images, and then, on top of that, he would have had to show

that, at the time his appellate counsel chose not to make that claim of error, the error

should have been obvious to him.

       But our opinion in Cunningham – which is the beginning and end of Fritz’s claim

of error – did not arrive until many months after resolution of Fritz’s direct appeal. And

in Cunningham itself we took pains to emphasize the relative novelty of the question

presented by that case, noting that it had “seldom been addressed.” 694 F.3d at 383. Our

existing precedent did not dictate the outcome. We looked primarily to two decisions

from our sister circuits for guidance. Id. In other words, the outcome of Cunningham

was not so “obvious” that a failure to foresee it amounted to ineffective assistance of

counsel. That case represented a development in our law concerning the admissibility of

pornographic images, and Fritz’s appellate counsel did not have a duty to anticipate that

doctrinal step. See Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (“[I]n making

litigation decisions, there is no general duty on the part of defense counsel to anticipate

changes in the law” (internal quotation marks omitted).).

       Fritz’s hypothetical appeal would have been particularly weak because his case is,

in important ways, different from Cunningham. The procedural error Fritz complains of

(the failure to view the videos) could have been cured by an objection, but a district court,

                                              7
even after Cunningham, is not obligated to preview pornographic images if their

admission into evidence is not in dispute. In other words, the lack of any objection

begets the procedural error alleged here. Although it did not view the videos, the District

Court in this case did try to strike a balance between their probative value and prejudicial

effect, admonishing the government to only show “something that you feel is necessary

and important for your case” (Supp. App. at 7), and questioning the government at length

about the need for all of the images used during the trial.4 During jury selection, the

District Court also warned potential jurors of the graphic nature of the case and asked

whether any juror would be “unable to decide this case fairly and impartially on the

evidence presented.” (Supp. App. at 85-86.)

       Further, in Cunningham, the defendant stipulated that the disputed images

contained visual depictions of children engaged in sexually-explicit conduct. 694 F.3d at

388. That stipulation, of course, limited the probative value of the videos in question. Id.

at 389. But Fritz only stipulated that the images here showed children, without conceding

that those children were engaged in sexual acts. The fact that the images showed

“minor[s] engaging in sexually explicit conduct” was an indispensable element of the

charges against Fritz. 18 U.S.C. §§ 2252(a)(1), (a)(4)(B). Given the limitation of Fritz’s

stipulation, displaying the images to the jury had much more probative force in this case

than it did in Cunningham.




       4
       It bears mention that Fritz himself apparently did not review all of the videos
when given the opportunity before their admission.
                                             8
       In short, Fritz may very well have lost his appeal even if it had come after

Cunningham. He certainly has not shown that any failing of his appellate counsel

prejudiced the outcome of the appeal.

III.   CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s denial of Fritz’s

motion.




                                             9
