United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
A jury found Stephen Rogers guilty on three charges of sex offenses involving minors and acquitted him on a fourth charge. The Court sentenced Rogers to concurrent prison sentences of ten years on Count 2, fifteen years on Count 3, and twenty-five years on Count 4. The Seventh Circuit affirmed Rogers's conviction on Counts 2 and 4 but reversed on Count 3. United States v. Rogers, 474 F.Appx. 463 (7th Cir. 2012).
Rogers has filed a motion under 28 U.S.C. § 2255 asking the Court to vacate his remaining convictions and sentences. He alleges that he received ineffective assistance of trial and appellate counsel. Rogers has also requested an evidentiary hearing to further develop his claims. For the reasons stated below, the Court denies Rogers's motion and his request for an evidentiary hearing.
On January 30, 2008, a grand jury returned a second superseding indictment charging Rogers with four counts of sex offenses involving minors. Count 1 charged Rogers with attempting to entice a minor to engage sexual activity, in violation of 18 U.S.C. § 2422(b). Count 2 charged Rogers with using the Internet to transfer obscene material to a minor under the age of sixteen, in violation of 18 U.S.C. § 1470. Count 3 charged Rogers with knowingly receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). Count 4 charged Rogers with employing, using, persuading, inducing, and enticing a minor under the age of eighteen to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct, in violation of 18 U.S.C. § 2251(a).
Counts 1 and 2 involved an undercover police officer who had posed as a thirteen-year old girl in interactions with Rogers. Counts 3 and 4 involved an actual victim, a girl named Andrea who was fourteen years old at the relevant time. Both the undercover police officer and Andrea testified at trial about their interactions with Rogers. The government also presented e-mails that Rogers had exchanged with the officer and with Andrea. The evidence showed that Rogers e-mailed the officer a sexually explicit photo of himself and that he had pressured Andrea to take and send him sexually explicit photos of herself via AOL Instant Messenger, where he used the screen name, "Hotthockey27."
On July 22, 2010, a jury found Rogers not guilty on Count 1 and guilty on Counts 2, 3, and 4. The Court later denied Rogers's motion for judgment of acquittal or for a new trial. Rogers later filed a motion for a new trial based on newly discovered evidence. The Court denied this motion as well. In February 2011, the Court held a sentencing hearing and imposed concurrent prison sentences of ten years on Count 2, fifteen years on Count 3, and twenty-five years on Count 4.
On appeal, Rogers argued that: 1) the image on which Count 2 was based did not satisfy the legal definition of obscenity; 2) the Court should have severed Counts 3 and 4 from Counts 1 and 2 for purposes of trial; and 3) the Court erred in omitting a knowledge element from the jury instructions for Counts 3 and 4. The Seventh Circuit affirmed Rogers's convictions on Counts 2 and 4 but reversed his conviction on Count 3 and ordered a new trial. United States v. Rogers, 474 F.Appx. 463 (7th Cir. 2012). On remand, the government dismissed Count 3. Because the Court had sentenced Rogers to a twenty-five year prison term on Count 4, the dismissal of Count 3 did not change the overall length of his sentence. On October 1, 2012, the U.S. Supreme Court denied Rogers's petition for writ of certiorari.
On September 30, 2013, Rogers filed a motion under 28 U.S.C. § 2255 seeking to vacate his convictions and sentences on Counts 2 and 4. Rogers asserts that his trial counsel rendered ineffective assistance by failing to: 1) challenge the sufficiency of the evidence on Count 4 at trial and on appeal; 2) object at trial and on appeal to allegedly improper jury instructions for Count 4; and 3) challenge the ten-year sentence on Count 2 at trial and on direct appeal. The Court notes that the same counsel represented Rogers both on trial and on direct appeal.
A defendant is entitled to relief under 28 U.S.C. § 2255 only in cases involving "an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013). In this case, Rogers contends his lawyers rendered ineffective assistance of counsel at trial and on appeal. Under the Sixth Amendment, "all defendants facing felony charges are entitled to the effective assistance of competent counsel." Hill v. Lockhart, 474 U.S. 52, 57 (1985) (internal quotations omitted). See also Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009) ("The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel.").
To determine whether a defendant's right to effective assistance counsel was violated, the Court applies the two-part test described in Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test, the defendant establishes ineffective assistance of trial or appellate counsel by demonstrating that: 1) his attorney's performance "fell below an objective standard of reasonableness" and that 2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694. Courts entertain a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " and the Court considers the totality of evidence in determining whether the defendant was prejudiced by counsel's actions or inaction. Id. at 689, 695. Thus the Court's review of counsel's performance is "highly deferential, " and it need not "address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 689, 697.
A. Failure to challenge sufficiency of evidence on Count 4
Count 4 charged that Rogers "employed, used, persuaded, induced, and enticed a minor under the age of eighteen... to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, " in violation of 18 U.S.C. § 2251(a). At trial, the government offered testimony by Andrea, the minor who was the subject of Count 4, that Rogers repeatedly asked her to take sexually explicit photos of herself even after she indicated that she did not want to do so; that Rogers's nagging caused her to take two sexually explicit photos of herself; and an e-mail she sent to Rogers, which attached one of these photos and stated, "Here. I hope you [sic] happy" Trial Tr. 391.
Rogers argues that his counsel rendered ineffective assistance by failing to challenge the sufficiency of the evidence to convict him on Count 4. He contends that this Court or the court of appeals would have vacated his conviction had it been presented with the opportunity to do so. Thus to assess the performance of Rogers's counsel, the Court examines the strength of the evidence against him on Count 4.
1. Inducement to send vs. inducement to produce
Rogers says that his strongest argument that the government's evidence was insufficient is that the government proved, at most, that he induced Andrea to send him sexually explicit photos. Section 2251(a), he argues, is limited to production of child pornography; it does not cover inducing a minor "to send ... pornographic self-portraits.'" Rogers Opening Br. at 5 (quoting United States v. Broxmeyer, 616 F.3d 120, 126-127 (2nd Cir. 2010)).
Rogers suggests that he should prevail on this argument because the government ignores it completely. "Given that the production v. sending argument is the Petitioner's best... yet ignored entirely by the Government, this Court can only take the Government's silence as a tacit admission that the Petitioner's argument is legally correct.... the issue has now been forfeited." Rogers Reply at 4. It is true that the government does not discuss Broxmeyer in its reply. But that does not mean that the government ignored or overlooked the point. In summarizing the evidence, the government specifically noted that it showed that Rogers "specifically asked Andrea to take pictures of her breasts and genitalia"; that he "kept nagging' her for them" even after she said she did not want to take such pictures; and that she took the pictures that Rogers had been asking for so that he would stop asking. Gov't Resp. at 3. And in the argument section of its brief, ...