James Faulds, Jr. v. United States of America

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 26, 2015*
Decided July 8, 2015
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-3262
JAMES FAULDS, JR.,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District
Court for the Central District of Illinois.
No. 11-3037
Richard Mills,
Judge.
O R D E R
James Faulds is serving a 360-month sentence for possessing and distributing
child pornography. In this collateral attack under 28 U.S.C. § 2255, Faulds argues that he
was deprived of effective assistance of counsel in his direct appeal. The district court
denied Faulds’s motion to vacate, correct, or set aside his sentence. Because Faulds
identifies no prejudice from his appellate counsel’s assistance, we affirm.
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. The appeal is therefore submitted on the briefs and record. See F ED. R.
A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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I
In July 2006 an undercover investigator downloaded 12 still images and one video
that Faulds had made available in an Internet chatroom. The downloaded images depict
the sexual abuse of two prepubescent females. Federal agents executed a search warrant
on Faulds’s home and seized computers, CDs, and a DVD, which the agents later
discovered contained 9,869 still images and 719 videos of child pornography. Faulds was
charged with one count of possessing child pornography, see 18 U.S.C. § 2252(a)(4)(B),
and one count of distributing child pornography, see id. § 2252(a)(2). Faulds represented
himself during the four-day trial. He attempted to defend himself by testifying that
federal agents and third-party hackers had planted the contraband on his computers and
discs, but the jury did not believe him and returned guilty verdicts on both counts.
At sentencing, the district court calculated a total offense level of 42, which
included upward adjustments because Faulds had possessed images depicting
prepubescent minors and sadistic or masochistic conduct, see U.S.S.G. § 2G2.2(b)(2),
(b)(4); distributed child pornography to a minor, see id. § 2G2.2(b)(3)(C); used a
computer to commit the offenses, see id. § 2G2.2(b)(6); possessed more than 600 images,
see id. § 2G2.2(b)(7)(D); and obstructed justice by falsely testifying at trial, see id. § 3C1.1.
The intersection of his adjusted offense level and his criminal-history category I
produced a recommended imprisonment range of 360 months to life. The court
sentenced Faulds to a total term of 360 months’ imprisonment—the statutory maximum
for the two counts when served consecutively, see 18 U.S.C. § 2252(b)(1), (2). It also
imposed a lifetime term of supervised release with 13 standard conditions and eight
special conditions. Three special conditions are at issue in this appeal: first, Faulds may
“not receive or transmit any sexually arousing material, including child pornography,
via the internet nor visit any website, including chat rooms or bulletin boards,
containing any sexually arousing material”; second, he may not “possess nor have under
[his] control any material, legal or illegal, that contains nudity or that depicts or alludes
to sexual activity or depicts sexually arousing material”; and third, he must “refrain
from any use of alcohol.”
After unsuccessfully arguing on direct appeal in 2010 that the Double Jeopardy
Clause barred convictions for both possessing and distributing child pornography,
United States v. Faulds, 612 F.3d 566 (7th Cir. 2010), Faulds challenged his convictions and
sentence under 28 U.S.C. § 2255. He raised a variety of theories of ineffective assistance
at both the trial and appellate levels, including that his appellate counsel was ineffective
for failing to object to some of his conditions of supervised release. The district court

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denied his motion, but we determined that Faulds had “made a substantial showing as
to whether his appellate attorney rendered constitutionally ineffective assistance” and
granted Faulds a certificate of appealability. We directed the parties to “address, in
addition to any other grounds they may identify, whether Faulds’s appellate counsel
was ineffective for failing to challenge the district court’s imposition of special
conditions of supervised release including lifetime bans on consuming alcohol and
receiving or transmitting sexually arousing material.”
II
We begin our consideration of Faulds’s appeal with the question whether Faulds
received ineffective assistance of appellate counsel because of counsel’s failure to
challenge the three identified conditions of supervised release. Faulds must show first
that his attorney’s performance was deficient. To do so, he must demonstrate that a
challenge to the supervised-release conditions on appeal was both “significant and
obvious,” see Stallings v. United States, 536 F.3d 624, 627 (7th Cir. 2008), and “clearly
stronger,” see id., than the double-jeopardy issue that appellate counsel actually raised.
Second, Faulds “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland
v. Washington, 466 U.S. 668, 694 (1984). For this purpose, “a reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. Faulds contends that
appellate challenges to the conditions restricting alcohol use and sexual materials were
significant, obvious, and clearly stronger than the double-jeopardy challenge. He argues
that the district court erred by not warning him before sentencing that it was considering
imposing these special conditions of supervised release. In particular, Faulds contends
that the alcohol ban bears no relation to his personal history and crimes and that the
prohibition on possessing legal depictions of nudity is vague and overbroad.
Neither the record nor the law supports Faulds’s position on the alcohol
condition. An appellate challenge to the alcohol ban was neither significant nor obvious.
Faulds reported to his probation officer that he drank “like a fish” for years. An
admission of a history of alcohol abuse is sufficient to support a discretionary
supervised-release condition that bans alcohol consumption, because the ban can assist
rehabilitation. See United States v. McKissic, 428 F.3d 719, 722–23 (7th Cir. 2005);
United States v. Schave, 186 F.3d 839, 841–43 (7th Cir. 1999). Counsel thus could
reasonably have chosen not to challenge that ruling on appeal. See Lilly v. Gilmore, 988
F.2d 783, 786 (7th Cir. 1993) (explaining that Sixth Amendment does not require counsel
to “press meritless arguments before a court”). And though the district court should

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have given Faulds a chance to challenge this condition before imposing it, see McKissic,
428 F.3d at 726, that misstep was harmless. In light of his personal history of alcohol
abuse, an appellate challenge to the discretionary alcohol ban would have been
unsuccessful.
We will assume, however, that an appellate challenge to the district court’s
decision to impose the sexual-material conditions was “significant and obvious” and
stronger than the double-jeopardy argument. When Faulds appealed in 2010, many of
our sister circuits had vacated similar conditions as vague and overly broad.
See United States v. Antelope, 395 F.3d 1128, 1141–42 (9th Cir. 2005) (vacating condition
that forbade possession of “any pornographic, sexually oriented or sexually stimulating
materials”); United States v. Cabot, 325 F.3d 384, 386 (2d Cir. 2003) (similar); United States
v. Phipps, 319 F.3d 177, 192–93 (5th Cir. 2003) (narrowing ban on “sexually oriented or
sexually stimulating materials” in order to avoid vagueness concerns); United States v.
Loy, 237 F.3d 251, 261–62, 264–65 (3d Cir. 2001) (striking condition that forbade
possession of “all forms of pornography”). Though we had not yet ruled on the
constitutionality of these conditions in 2010, these decisions reflected a substantial
appellate question about the constitutionality of bans on legal pornography and other
sexually stimulating materials. See United States v. Otero, 502 F.3d 331, 336 (3d Cir. 2007)
(“[C]ounsel’s failure to cite favorable decisions from other courts of appeals indicates
deficient performance.”); United States v. Franks, 230 F.3d 811, 814 (5th Cir. 2000) (same).
A challenge to these conditions may have been more worthwhile than counsel’s
argument that counts charging separate violations of the same statute at different times
violated the Double Jeopardy Clause. See United States v. Snyder, 189 F.3d 640, 647 (7th
Cir. 1999); see also Faulds, 612 F.3d at 571.
Even so, Faulds cannot show that he suffered prejudice from appellate counsel’s
omission of any challenge to these conditions. Faulds did not preserve a challenge to
these conditions by objecting to them in the district court when he was acting pro se. See
United States v. Fluker, 698 F.3d 988, 997 (7th Cir. 2012) (explaining that parties must state
specific grounds for objection to preserve issue for appeal); United States v. Wynn, 845
F.2d 1439, 1442 (7th Cir. 1988) (same). We recognize that this may have something to do
with the lack of a warning before sentencing that the judge was considering imposing
these conditions. And “[w]e recently recognized some tension in our cases as to the
proper standard of review in these circumstances.” United States v. Shannon, 743 F.3d 496,
499 (7th Cir. 2014) (observing that some cases review for abuse of discretion and others
review under the more demanding plain-error standard); see United States v. Kappes, 782
F.3d 828, 844 (7th Cir. 2015); United States v. Goodwin, 717 F.3d 511, 522 (7th Cir. 2013). But

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the district court did provide an opportunity for Faulds to object after imposing the
sentence. And in similar circumstances we have observed that “it is far better to air and
resolve the matter in the district court than to bypass available opportunities for
correction and save the issue for appeal.” United States v. Bartlett, 567 F.3d 901, 910 (7th
Cir. 2009); see Kappes, 782 F.3d at 844.
Given the absence of a trial-court objection, the uncertainty of the standard of
appellate review, and the uncertainty of the validity of the conditions, we cannot say
that, had his attorney raised in 2010 an appellate challenge to these conditions, there is a
reasonable likelihood that we would have vacated them. See United States v. Silvious, 512
F.3d 364, 371 (7th Cir. 2008) (on plain-error review, refusing to vacate overbroad
conditions of supervised release because they can be modified at any time); United States
v. Tejeda, 476 F.3d 471, 475 (7th Cir. 2007) (same); McKissic, 428 F.3d at 726 (same).
(Though recent cases from this circuit have vacated supervised-release conditions on
plain-error review, see, e.g., United States v. Cary, 775 F.3d 919, 923–26 (7th Cir. 2015);
United States v. Adkins, 743 F.3d 176, 193–94 (7th Cir. 2014), we analyze the performance
of Faulds’s appellate counsel based on the law as it existed at the time of his direct
appeal, see Strickland, 466 U.S. at 689; Valenzuela v. United States, 261 F.3d 694, 700 (7th
Cir. 2001); Lilly, 988 F.2d at 786.) Applying the correct perspective, we conclude that
Faulds has not shown prejudice.
Faulds has also pointed to seven additional ways in which he believes appellate
counsel rendered ineffective assistance. The government, relying on a recent decision
from this court, urges us to ignore them as outside the scope of the certificate of
appealability. See Peterson v. Douma, 751 F.3d 524, 529 n.1 (7th Cir. 2014) (rejecting
argument that, “in certifying one theory of ineffective assistance we opened the door to
all others,” because statute explaining certification requirement “speaks of certifying
‘issues’ rather than ‘claims,’ and our cases treat separate theories of ineffective assistance
as separate issues”). But Peterson is distinguishable because the certificate there limited
the petitioner to a specific issue. The certificate stated that the petitioner had “made a
substantial showing as to whether he was denied his Sixth Amendment right to counsel
when his defense attorney at trial failed to move to suppress Peterson’s statement to an
off-duty police officer.” The certificate here, in contrast, notes that Faulds had “made a
substantial showing as to whether his appellate attorney rendered constitutionally
ineffective assistance,” and directs the parties to address the supervised-release
conditions and “any other grounds that the parties may identify.” Moreover, we have
explained before that “a certificate based on ineffective assistance of counsel brings up
for appellate review all actions of counsel that the petitioner addressed in the district

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court.” Gardner v. United States, 680 F.3d 1006, 1009 (7th Cir. 2012); see Thompson v.
Battaglia, 458 F.3d 614, 616 (7th Cir. 2006); Peoples v. United States, 403 F.3d 844, 848 (7th
Cir. 2005).
Although we do not reject Faulds’s additional points on the technical ground
suggested by the government, only one of them warrants comment. Faulds raises a
troubling contention about an ex parte communication between the judge and the jury.
He argues that his appellate attorney should have called this to our attention on direct
appeal. See United States v. Smith, 31 F.3d 469, 471 (7th Cir. 1994) (criticizing ex parte
communications between judge and jury as “pregnant with possibilities for error”)
(internal quotation marks and citation omitted); United States v. Collins, 665 F.3d 454, 460
(2d Cir. 2012) (same). The record reveals that, before jury selection, the judge explained
that he needed to “go talk to the jurors about last-minute questions.” He was gone for 20
minutes outside the presence of Faulds and the prosecutor, and the content of that
conversation is not in the record. But Faulds would have had a difficult time pressing
this argument on appeal because he was aware of the communication when it occurred
and yet did not object, thereby depriving the judge of a chance to cure the problem by
creating a record of the communication or conducting his conversation in open court.
See United States v. Walker, 160 F.3d 1078, 1083 (6th Cir. 1998) (explaining that defendant
who waits until appeal to object to extraneous influences on jury “bears a heavy
burden, since the defendant has thereby effectively deprived this court of any basis for
concluding that a hearing would be necessary”). We would have reviewed this claim
only for plain error, see United States v. Rivera-Rodriguez, 617 F.3d 581, 600 (1st Cir. 2010);
United States v. McDonald, 933 F.2d 1519, 1524 (10th Cir. 1991), and given the absence of
any indication of prejudice in the record, we would not have remanded Faulds’s case on
this basis.
We have examined the remainder of Faulds’s theories of ineffectiveness, and
none merits further discussion.
A FFIRMED.

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