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).

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3502

STEVEN R. RANN,

Petitioner-Appellant,

v.

MICHAEL P. ATCHISON, 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.

ARGUED APRIL 4, 2012—DECIDED AUGUST 3, 2012

Before EASTERBROOK, Chief Judge, and FLAUM and

MANION, Circuit Judges.

MANION, Circuit Judge. In 2006, Steven Rann was convicted of two counts of criminal sexual assault and one
2 No. 11-3502

count of possession of child pornography. He was sentenced to consecutive terms of twelve years’ imprisonment 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 evidence 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 Appealability, 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 convicted 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 conviction 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 Eldorado 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 downloaded 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 evidence . . . 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 pornographic 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 evidence 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 recommendation of the magistrate judge and entered judgment denying Rann’s habeas petition. The district court

subsequently granted Rann a Certificate of Appealability

to consider whether the Illinois Appellate Court reasonably applied United States Supreme Court precedent

when it held that Rann’s trial counsel was not ineffective for failing to move to suppress the images recovered from the digital storage devices, and whether

the police’s viewing of those images constituted a significant expansion of a private search such that a warrant 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 petitioner’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 established federal law, as determined by the Supreme

Court of the United States,” or “was based on an unreasonable 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

As the court pointed out during oral argument, the Supreme 1

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...)

assistance of counsel. The Illinois Appellate Court determined that these failures did not render Rann’s counsel

ineffective because any motion to suppress the evidence would have been unsuccessful.

Under Strickland, Rann must show that his counsel’s

performance was deficient and that the deficient performance 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 Strickland’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)). Strickland requires that we presume counsel 1
No. 11-3502 7

(...continued) 1

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).

“ ‘rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.’ ” 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 unreasonably 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
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 individuals retain a legitimate expectation of privacy even

after a private individual conducts a search, and “additional 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

The Fifth Circuit ruled that the police did, however, exceed the 2

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...)

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 container based on the statements of the private searches,

their replication of the private search, and their expertise.” 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 contained, they did not exceed the scope of the private

search when they searched those specific disks. Id. at 465.2
10 No. 11-3502

(...continued) 2

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.

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 objectives underlying the Fourth Amendment’s protections against warrantless police searches. A defendant’s expectation of privacy with respect to a container unopened by the private searchers is

preserved unless the defendant’s expectation of privacy in the contents of the container has already

been frustrated because the contents were rendered

obvious by the private search. Moreover, this rule

discourages police from going on “fishing expeditions” 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.
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 discover 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 conclusive 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 testimony. 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 pornographic 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 contrary 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 whatsoever—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 AFFIRMED and Rann’s application for a writ

of habeas corpus is DENIED.

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