Detective Manis if he was Ricky. After Detective Manis responded in the affirmative, Scott
stated, “[Y]ou don’t like you’re twelve years old.” Police officers then arrested Scott.

Following his arrest, Scott was taken to the sheriff's department, where he gave oral and
written statements to the investigators. During the interview, Scott identified himself as
FarWestBoy and admitted his understanding that Ricky/XradboyX was 12 years old. He
confirmed that he had driven to the Denny’s restaurant to meet Ricky/XradboyX, and that he
would have had sex if Ricky/XradboyX had wanted to.

DISCUSSION

In his habeas petition, Scott argues that the Illinois trial and appellate courts improperly
expanded and applied the statutory definition of attempt, 720 ILCS 5/8-4(a), by finding that he
intended to commit and took a substantial step toward an act of sexual penetration with a minor,
even though the undercover police officer he contacted was not under the age of 13, he did not
request or offer an act of sexual penetration, and his conduct did not bring him within dangerous
proximity of sexually abusing a minor. Scott thus argues, in effect, that the evidence adduced at
trial was insufficient to sustain his conviction.”

The relevant inquiry for a federal habeas court reviewing a sufficiency of the evidence
claim is “whether, after viewing the evidence in light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

2Respondent contends that Scott’s claim is non-cognizable, because it is based on an incorrect interpretation
and application of Illinois law, which is not subject to federal habeas review. Like the Illinois Appellate Court, the
court elects to treat Scott’s claim as alleging that he was deprived of the Fourteenth Amendment, due process
guarantee that no person shall be made to suffer a criminal conviction except upon sufficient proof. See Jackson v.
Virginia, 443 U.S. 307, 316, 99 S, Ct. 2781, 61 L Ed. 2d 560 (1979). That allegation is, of course, subject to federal
habeas review. /d. Accordingly, the court considers Scott’s claim on its merits.


police officer but had been a 12 year old child that this defendant would indeed have gone
forward and had sex with him at that time.”

Scott’s conduct goes well beyond mere preparatory acts and leaves no doubt regarding the
firmness of his intent to commit the offense. As such, Scott’s internet communications, coupled
with his act of appearing at the meeting place, are sufficient to establish the substantial step
element of the offense.

In sum, a review of the record in the light favorable to the prosecution convinces the court
that a rational trier of fact could readily have found Scott guilty beyond a reasonable doubt of the
offense. Accordingly, Scott was not denied due process of law under the standard of Jackson v.
Virginia, 443 U.S. at 319)

CONCLUSION
For the foregoing reasons, Scott’s petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 [# 1] is denied. The case is terminated.

Dated: October 17, 2006 ENTER: Cpa ¢ Keoaglea

JOAN HUMPHREY LEFKOW
United States District Judge

3At times, Scott framed his argument in terms of the Equal Protection Clause of the Fourteenth Amendment.
On those occasions, he appeared to alternatively contend that if the court found evidence sufficient to support his
conviction, the court should then consider whether the attempt statute is unconstitutionally vague because it failed to
put people on notice as to what conduct was prohibited. To the extent that Scott separately presents this argument, it
fails because Scott failed to present it to the Illinois Appellate Court, see Baldwin v. Reese, 541 U.S. 27, 29, 124 S.
Ct. 1347, 158 L. Ed. 2d 64 (2004) (habeas petitioner must fully and fairly present to each appropriate state court his
constitutional claims before seeking review in federal court), and there is no evidence sufficient to excuse his
procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451, 120 S. Ct. 1587, 146 L Ed. 2d 518 (2000)
(federal court may still reach the merits of a procedurally defaulted claim if the petitioner establishes either cause for
his failure to follow a rule of state procedure and actual prejudice, or that the default wil! result in a fundamental
miscarriage of justice).


County, Illinois sheriff's detective, Richard White, who met Scott on the Internet. At the bench
trial, Detective White testified that, on July 13, 1998, he was conducting an investigation on the
Internet service provider America Online. Detective White used the screen name “XradboyX,”
the profile which indicated that the user was named “Ricky” and was born on December 12,
1986. On July 13, 1998, Detective White was in a chat room when he received an instant
message from Scott, who was using the screen name “FarWestBoy.” Scott asked
Ricky/XradboyX how old he was. An Internet instant message conversation then ensued, during
which Detective White represented that he was 12 years old, and Scott indicated that he was 34.

The conversation included references to sexual behaviors. Detective White and Scott
agreed to meet later that day at a Denny’s restaurant. At the appointed time, Detective White
appeared at the location, but Scott did not.

Detective White testified that, the following day, he received two e-mails from Scott. In
those e-mails, Scott apologized for not attending the meeting and expressed his desire to continue
the exchange of messages. When Detective White logged on to America Online, he received an
instant message from Scott. They engaged in a sexually suggestive computer dialogue for about
one hour. During that conversation, Detective White requested that Scott send him pictures via
e-mail of men engaged in sexual conduct. Scott complied with his request and forwarded images
of two young males engaged in acts of sexual penetration. Detective White and the defendant
again agreed to meet at the Denny’s restaurant.

At the agreed upon time on July 15, 1998, Lake County detectives arrived at the location.
After Scott arrived, he approached Detective Manis who had been dressed to attempt to match

the description of a 12-year-old boy that Detective White had conveyed to Scott. Scott asked


doubt.” Jackson v. Virginia, 443 U.S. at 319. See also United States v. Hoover, 175 F.3d 564,
570 (7" Cir. 1999) (“A defendant has a heavy burden in challenging a conviction based on the
sufficiency of the evidence.”).

Under Illinois law, to prove Scott guilty of attempted predatory criminal sexual assault of
achild (“the offense”), the State was required to establish beyond a reasonable doubt that Scott
intended to commit the offense and that he took a substantial step toward the commission of the
offense. 720 ILCS 5/8-4(a); People v. Smith, 148 Ill.2d 454, 458, 170 Ill. Dec. 644, 593 N.E.2d
533 (1992). The impossibility of completing the offense is not a defense. 720 ILCS 5/8-4(b). A
person commits the offense if the accused is at least 17 years of age and commits an act of sexual
penetration with a victim under 13 years of age. 720 ILCS 5/12-14.1(a)(1). For purposes of the
offense, sexual penetration is defined as:

“[A]ny contact, however slight, between the sex organ or anus of one person by an object,

the sex organ, mouth or anus of another person, or any intrusion, however slight, of any

part of the body of one person or any animal or object into the sex organ or anus of
another person, including but not limited to cunnilingus, fellatio or anal penetration.”
720 ILCS 5/12-12(f).

The determination by the trial court that the evidence adduced at trial was sufficient to
establish Scott’s intent to commit the offense was reasonable. Under Illinois law, intent may be
proved circumstantially by inferences reasonably drawn from the circumstances of the
defendant’s conduct. People v. McKinney, 260 Ill. App.3d 539, 197 Ill. Dec. 822, 631 N.E.2d
1281 (1994). In this case, the State presented evidence at trial establishing that Scott told the

undercover police officer on several occasions that he could “get into trouble” if he were to have

sex with “Ricky/XradboyX;” he sent “Ricky/XradboyX” two computer images of nude young


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
United States of America )
ex rel. Douglas Scott (#K-71048), )
)
Petitioner, )
)
vs. ) No. 03 C 9375
) Judge Joan H. Lefkow
TERRY McCANN

Warden,
Shawnee Correctional Center,

Respondent.

wwe eee

MEMORANDUM OPINION AND ORDER

In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner
Douglas Scott (“Scott”) challenges his conviction for attempted predatory criminal sexual assault
of achild. The Respondent Terry McCann, the Warden of the Shawnee Correctional Center
(“Respondent”), has filed an answer to the petition and moves that it should be denied.’ For the
reasons stated below, Scott’s petition is denied.

HABEAS STANDARD
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires this court to

deny Scott’s petition for a writ of habeas corpus with respect to any claim adjudicated on the

"At the time Scott filed his petition, he was incarcerated at the Centralia Correctional Center. As a result,
pursuant to Rule 2(a) of the Rules Governing Section 2254 cases in the United States District Courts, the warden of
that facility, Edwin Bowen, was the proper party respondent. Before Bowen could respond, however, Scott was
released from prison. Thus, the director of the Illinois Department of Corrections, Roger E. Walker, Jr., was
substituted as the proper party respondent. Following Walker's response to Scott’s petition, Scott was re-
incarcerated for violating his parole. Since Scott is now imprisoned at the Shawnee Correctional Center, Terry
McCann is the proper party respondent.


males, one of which depicted them engaging in anal sex; and he told police at the time of his
arrest that he would have had sex with “Ricky/XradboyX” if “Ricky/XradboyX” had wanted to.
Like the Illinois Appellate Court, this court finds that this conduct provided the trial court a
reasonable basis to infer that Scott possessed the intent to engage in an act of sexual penetration,
as defined in 720 ILCS 5/12-12(f), with a child under 13 years of age. And since Scott presented
no evidence at trial, those reasonable inferences were sufficient to support the trial court’s
finding that Scott possessed the requisite intent.

There was also ample evidence adduced at trial to support the trial court’s determination
that Scott took a “substantial step toward commission of the offense.” In Illinois, it is not
necessary that the defendant complete the last proximate act in order to be convicted of the
offense of attempt. People v. Wallace, 57 Ill.2d 285, 292, 312 N.E.2d 263 (1974). Mere
preparation, however, is not a substantial step. People v. Elmore, 50 Ill.2d 10, 12, 276 N.E.2d
325 (1971). Ultimately, what constitutes a substantial step toward the commission of an offense
can be determined only by evaluating the facts and circumstances of a particular case. Wallace,
57 Ill.2d at 292.

Here, Scott engaged on multiple occasions in sexually suggestive dialogue via the internet
with a person he believed to be a minor, forwarded him sexually explicit photographs, arranged
to meet him, and then appeared at the designated meeting place at the appointed time. Under
these circumstances, the mere fact that Scott did not participate in a criminal act or conduct with
a minor is of little consequence. As the trial court observed of Scott’s conduct,

“[I]t is more than just a fantasy transmission over the electronic media of thoughts and

desires. A child was solicited in the defendant’s mind, a date was made, and he drove to
meet the person to carry out the purposes of that encounter. And if this had not been a


merits in the state court unless the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d); Price v. Vincent, 538 U.S. 634, 638, 123 S. Ct. 1848,
155 L. Ed. 2d 877 (2003). A state court’s decision is contrary to clearly established Supreme
Court precedent “if the state court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law,” “if the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to
[it],” or if the state court either unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.
Ct. 1495, 146 L. Ed. 2d 389 (2000). In order for a state court decision to be considered
“unreasonable” under this standard it must be more than incorrect, it must lie “well outside the
boundaries of permissible differences of opinion.” Hardaway v. Young, 302 F.3d 757, 762 (7th
Cir. 2002); see also Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) (“The state court
decision is reasonable if it is minimally consistent with the facts and circumstances of the case.”).
BACKGROUND

A. Procedural History

Scott was convicted in Lake County, Illinois of attempted predatory criminal sexual
assault of a child, attempted aggravated criminal sexual abuse, and two counts of attempted
indecent solicitation of a child. The trial court sentenced Scott to twelve years in prison for
attempted predatory criminal sexual assault of a child and vacated the judgment on the charge of

attempted aggravated criminal sexual abuse. The trial court also sentenced Scott to concurrent


terms of 365 days in prison on two charges of attempted indecent solicitation of a child. Scott
appealed his conviction to the Illinois Appellate Court, Second District, which affirmed his
convictions and vacated his sentence in part. The court also remanded the case for a new
sentencing hearing. Scott filed a petition for leave to appeal his convictions to the Illinois
Supreme Court, but that petition was denied on April 4, 2001. On remand, the trial court again
imposed a twelve year sentence for attempted predatory criminal sexual assault. Scott appealed
to the Illinois Appellate Court, Second District, arguing that the trial court abused its discretion
by sentencing the defendant to 12 years in prison for attempt predatory criminal sexual assault of
a child where there was no child victim and it was impossible for the defendant to commit the
underlying offense. While his appeal was pending, Scott filed a habeas corpus petition in federal
court, which was dismissed because it was premature. The appellate court then affirmed the
judgment of the trial court. Scott elected not to file a petition for leave to appeal that decision
with the Illinois Supreme Court. Instead, on December 29, 2003, Scott filed the present habeas
petition with this court.
B. Facts

When considering a habeas petition, the court must presume that the state courts’ factual
determinations are correct unless the petitioner rebuts the presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7" Cir. 2002).
Lopez has no evidence to rebut this presumption. Therefore, the court adopts the Illinois
Appellate Court’s recitation of facts in People v. Scott, 318 Ill.App.3d 46, 740 N.E.2d 1201, 251
Ill.Dec. 630 (2000).

The charges against Scott arose from his communications with an undercover Lake