### I n the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 2515
M ICHAEL D. F AUCETT , Petitioner

- Appellant ,

v.
U NITED S TATES OF A MERICA , Respondent

- Appellee

.

____________________ Appeal from the United States District Court for the Southern District of Indiana , Indianapolis Division

. No. 1:13

- cv

- 01434

- T W P

- TAB

— Tanya Walton Pratt , Judge

.

____________________
A RGUED S EPTEMBER 28, 2016

— D ECIDED S EPTEMBER 22, 2017

____________________

Before K ANNE , S YKES , and H AMILTON , Circuit Judges

. S YKES , Circuit Judge

. Michael Faucett possess ed large quantities of child pornography , some of which he produced himself. His collection includ ed 59 sexually explicit photos of his five

- year

- old granddaughte r that he took while she was sleeping

. W hen investigators searched his co mputer and found the collection , he initially denied knowledge of it . B ut h e confessed when they confronted him with the porn ographic pictures of his granddaugh ter

. Faucett pleaded2 No. 15

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guilty to three federal crimes: t wo counts of produc ing child pornography, see 18 U.S.C. § 2251(a), and one count of possessing child pornography, see id . § 2252(a)(4)(B). He is serving a 30

- year prison term.
Th is appeal concerns Faucett’s collateral attack on his sentence. In a pro se motion under 28 U.S.C. § 2255 , he claimed that his attorney was constitutionally ine ffective for failing to advise him that involuntary intoxication was an available defense

. In a n al ternative but overlapping claim , he alleged t hat counsel at least should have develop ed a n argument about diminished capacity as a mitigating factor at sentencing

. The district judge denied the § 2255 motion without a hearing , reasoning that neither de fens e strateg y would have had any chance of success as a factual matter

. The judg e also ruled that involuntary intoxica tion is a d efense to specific

- intent crimes only and child

- pornography offenses are general

- intent crimes

. We have not yet had occasion to address the defense of involuntary intoxication

. Limited authority exists in other circuits, but there’s no clear consensus on whether the d efense is available in a case like this one. We have no need to decide th at legal question becau se Faucett did not articulate

a viable factual basis for the defense even if it applies in this
context . Nor was his counsel constitutionally ineffec tive for
not arguing diminished capacity as a mitigating factor at sentencing

. I. Background

Faucett ’s five

- year

- old granddaughter stayed overnight at his house on March 16, 2010 . Just before midnight Faucett entered the room where she was sleeping , undressed herNo. 15

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from the waist down , and took 30 pornographic pictures of her. He repeated this conduct on April 10 , when she next stayed at his house , this time taking 29 pornographic pi ctures of her

. To stage the photos, Faucett posed his sleeping granddaughter in various sexually explicit positions

. In some of the images , he is seen attempting intercourse or performing oral sex on his granddaughter

. Faucett upload ed the 59 photos to his com puter , adding them to his stored collection of child pornography

— more than 600 images and videos on three computers. M any of th e images in his collection depicted minor gir ls being raped by adult men. Faucett advertised some of this material online

. Investigators track ed the online images to Faucett’s IP address and ob tained a search warrant for his home and computer s. I nitial on

- site f orensic analysis revealed the pornograph y collection, including the p hotos of Faucett’s granddaughter. Investigators questioned Faucett during the search, but he initially denied any knowledge of the child pornograph y

. When they confronted him with t he photos of hi s granddaugh ter , he confessed to his crimes and provided

a detail ed account of when and how he took the photo s. A federal grand jury indicted Faucett on two counts of production of child pornography and one count of posse ssion of child pornography

. He pleaded guilty as charge d. His presentence report detailed his struggle with alcoholism and certain men tal

- health issues , including ADHD, insomnia, de pression, and anxiety

. At various times Dr. Donald Wagoner of the Wagoner Medical Center had prescribed several different medicati ons to treat these conditions, including Adderal l , Ambien , Paxil, Xanax, and Abilify

. According to Faucett’s medi cal records , however, only two4 No. 15

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prescriptions were active b etween February and April of 2010 when he took the pornographic pictures of his gran ddaughter : Ad dera l l (for ADHD) and Paxil (an antidepre ssant)

. Faucett’s attor ney submitted a sentencing memora ndum addressing his client’s alcoholism and mental

- health issues , but the overall defense strategy at sentencing was to demonstrate acceptance of r esponsibility.
At the sentencing hearing , Faucett apologized for his conduct, ex pressed remorse, and acknowledged the wron gfulness of his actions. The judge noted hi s remorse and early guilty plea and award ed a full three

- level downward a djustment for acce ptance of responsibility under U.S.S.G. § 3E1.1(b). Still, with an off

- the

- charts offense level (45) and a category II criminal history , the guidelines recommended a
sentenc e of life . The judge imposed a 30

- year prison term followed by a life term of supervised re lease

. Faucett a ppealed, but his counsel filed an Anders brief and moved to withdraw. We granted the motion and dismissed the appeal.
About a year after sentencing, state prosecutors charged Dr. Wagoner and other employe es at his clinic wi th conspi racy to illegally traffic in narcotics and related drug crimes. The defendants were accused of operating a “pill mill”

— writing illegal prescriptions for drug

- seeking addicts, some of whom later overdosed

. Faucett was not lis ted as a victim in the probable

- cause affidavit. Dr. Wagoner pleaded guilty.

Faucett moved to vacate his conviction and sentence u nder § 2255 , pointing to the Wagoner prosecution and arguing that his attorney never told him that a defense of involunta ry intoxication was availabl e and that he would not have pleaded guilty had he b een aware of such a defense

. Faucett also claimed that his attorney did not develop an adequateNo. 15

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argument about diminished capacity as a mitigating factor at sentenc ing

. The judge denied relief without a hearing , reasoning that Faucett’s attorney cannot have been ineffective for failing to pursue defense strategies that had “no chance of success.” The judge held that there was no factual basis for a claim of involuntary intoxication because Faucett had not pointed to any evidence demonstrating that he was intoxicated at the time of his crimes. The judge also doubted the legal basis for the defense. She noted that involuntary intoxication is not an

a ffirmative defense but rather serves to negate the mens rea required of specific

- intent crimes

. She concluded that t he defense was unavaila ble in Faucett’s case because c hild

pornography offenses are general

- intent crimes

. Finally, the judge explained that she had thoroughly considered Faucett’s psychiatric histor y and alcohol abuse in determi ning his sentence , so a sentencing argument about diminished capacity would not have mattered

. II. Discussion
Faucett continues to maintain that his Sixth Amendment right to the effective assistance of counsel was violated in two separate but related ways : (1) his attorney failed to inform him about the defense of involuntary intoxication , and (2) his attorney failed to develop an argument about diminished capacity as a mitigating factor at sentencing. H is fallback argument is a procedural point

. H e claims that the judge should have held an evidentiary hearing before ruling

on his § 2255 motion.
We review the den ial of a § 2255 motion un der a split standard of review , accepting the judge ’s factual finding s6 No. 15

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unless they are clearly erroneous and deciding legal que stions de novo

. Webster v. United States , 667 F.3d 826 , 830 (7th Cir. 2011). W e review the judge’s decision to forgo an evide ntiary hearing for abuse of discretion. Martin v. United States , 789 F.3d 703, 705 (7th Cir. 2015).
Under the familiar Strickland standard for claims of ine ffective assistance of counsel, it was Faucett ’s burden to show that his attorney ’s performance was deficient and that he suffered prejudice as a result

. Id. at 706 (citing Strickland v. Washington , 466 U.S. 668 (1984 ) ). The test is highly defere ntial ; we presume that counsel was effective and evaluate his performance under an objective standard of reasonableness. Id. To esta blish prejudice , Fa ucett had to demonstrate a
reaso nable probabil ity that but for counsel’s defi cient pe rformance , the outcome of the proceeding would have been different

. Id

. More specifically , Faucett had to show that he would not have pleaded guilty but for counsel’s failure to advise him about the defense of involuntary intoxication or , alternatively, that he would have received a lesser sentence had counsel develo ped a sentencing argument about dimi nished capacity.

Faucett ’s primary attack on his a ttorney ’s performance
rests on his allegation that counsel should have developed a defense of involun tary intoxication or at least informed him that such a defense was available . We agree with the district judge that the defense wa s not remotely viable in Faucett’s

case and that it was entirely reasonable for counsel to for go a meritless defense strategy.
The defense of involuntary intoxication is rarely used and has received scant att ention from federal courts

. Our circuit has not addressed it. Th e circuits t hat have direct lyNo. 15

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confronted a claim of involuntary intoxication have treated it as an affirmative defense akin to temporary insanity. See , e.g. , United States v. F.D.L. , 836 F.2d 1113, 1116

– 17 (8 th Cir. 1998) ( explaining that the involuntary

- i ntoxication defense “ r eliev [es] a defendant of criminal responsibility ” and is “esse ntially the same ... as [the] insanity [defense] ” ) ; see also U nited States v. Bindley , 157 F.3d 1235, 1241

– 43 (10 th Cir. 19 9 8) ( distinguishing involuntary intoxica tion, which demo nstrates a “lack of culpability,” from voluntary intoxication)

. A n a ffirmati ve defense excuse s a defendant’s criminal responsi bility; it do es not negate criminal intent

. See United States v. Jumah , 493 F.3d 868, 874 (7th Cir. 2007) (explaining that “[a]ffirmative defenses of justification and excus e do not negate criminal intent ” but rather “excuse conduct otherwise punishable without controverting ... the elements of the underlying offense”). If this is the proper way to characterize the defense of in voluntary intoxica tion , then it does not matter whether the charge d offense is a general

- intent crime

or a specifi c

- intent crime . A successful defense of involu ntary intoxication would excuse criminal responsibility either way

. Although we have never addre ss ed involun tary intoxic ation as a defense to criminal liability, we have on a few occasions deal t with a claim of voluntary intoxication ; each time we’ve treated it as a “negative” defense to a specific

intent crime that negates the mens rea of the crime

. See United States v. Nacotee , 159 F.3d 1073, 1076 (7th Cir. 1998) (noting that a defendant’s “voluntary intoxication, if sufficient to negate the required intent to aid and abet, would provide her with a defense”); United States v. Boyles , 57 F.3d 535, 5 41 (7th Cir. 1995) (“Voluntary intoxication is a negative defense8 No. 15

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to specific intent crimes and a high degree of intoxication can conceivably, under limited circumstances, render the defendant incapable of attaining the required state of mind to commit the crime .” (citing United States v. Fazzini , 871 F.2d 635, 641 (7th Cir. 1989)) ) ; United States v. Reed , 991 F.2d 399, 400 (7th Cir. 1993) (noting that “voluntary intoxication[] is a defense only to specific intent crimes” (citing Fazzini , 871 F.2d at 641 ) )

. If involuntary intoxication is understood the same way , then the classification of Faucett’s child

pornography offenses as gen eral

- intent or specific

- intent crimes does make a difference.
We have not yet had occasion to decide whether produ ction of child pornography or possession of child pornogr aphy are general

- intent or specific

- intent crimes. O ther ci rcuits generally treat receipt and possession of child porno graphy as general

- intent crime s

. See, e.g. , United States v. Ballieu , 480 F. App’ x 494, 497 (10th Cir. 2012) (reception of child pornography under § 2252A(a)(2)(A) is a general

- intent crime) ; United States v. Walden , 478 F. App’x 571, 576 n.2 (11th Cir. 2012) (reception and possession of child pornography under § 2252A(a)(2) and (a) (5) (B) are general

- intent crimes) ; United States v. Larson , 346 F. App’x 166, 168 (9th Cir. 2009) (possession of child pornography under § 2252A(a)(5)(B) is a general

- intent crime); United States v. Benz , No. 4:13CR3121, 2015 WL 575094, at *1 (D. Neb. Feb. 11, 2015) (receipt of child pornography under § 2252A(a)(2) and possession of child pornography under § 2252(a)(4)(B) are general

- intent crimes)

. On the other hand, there’s no clear consensus on how to classify the crime of pro duction of child pornography

. Co mpare United States v. Palomino

- Coronado , 805 F.3d 127, 130 (4thNo. 15

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Cir. 2015) (indicating that production of child pornography under § 2251(a) is a specific

- intent crime) , with Klopfenstine v. United States , No. 2:13

- cv

- 04214

- NKL, 2014 WL 4055791 , at *4 ( W.D. Mo. Aug. 14, 2014) (holding that production of child pornography under § 2251(a) is a general

- intent crime).
The district judge did not separately analyze the posse ssion and production offenses . Rather, she conclud ed as a general matter that because child

- pornography offense s are general

- intent crimes , the defense of involuntary intoxica tion i s legally unavailable.
We do not need to decide whether the judge was right to characterize the crimes and the proposed intoxication d efense in this way. The ju dge’s alternative factual holding was entirely sound

. She noted that F aucett ha d not alleged a ny facts that would sup port a viable defense of involuntary intoxi cation. An intoxication defense requires evidence demonstrating that the defendant’s “mental fac ulties were so overcome by intoxicants” that he was rendered “incapacita ted.” Nacotee , 159 F.3d at 1076. In other words, s imply sho wing that the defendant was intoxicated is not enough. Id. Here, F aucett alleged no facts tending to show that he was intoxicated at the time of his crime s , much less that his mental faculties were so overcome that he was incapacitated.

Faucett ’s claim rests primarily on the successful prosec ution of Dr. Wagoner for i llegally dispensing narcotics to drug

- seeking addicts. For additional support h e points to an FDA warning that the drug Abilify is linked with compu lsive behavior and “unc ontrol lable urges to ... have sex. ” FDA, FDA Warns A bout New Impulse

- Control Problems Assoc iated with Mental Health Drug Aripiprazole (Abilif y, Abilify Maintena, Aristada ) (May 3, 2016) ( http://www.fda.gov/10 No. 15

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Drugs/DrugSafety/ucm498662.htm ). H e also cites an FDA

approved guide for Ambi en that contains a side

- effects

warn ing about “complex behaviors while not being fully awake

. ” Sanofi

- aventis U.S., LLC, Highlights of Prescribing Information: Ambien at 20 ( Rev. Dec. 2 01 6 ) ( http://www.accessdata.fda.gov/ drugsatfda_doc s /label/ 2 0 16/019908s037lbl.pdf )

. None of this matters in light of Faucett’s medical records and the contents of his confession. H is medical records establish that he did not have active prescriptions for Abilify or Ambien at any time at or near the commission of the se crimes ; h is only active psychotropic pre scriptions at the relevant time were for Addera l l and Paxil. And Faucett’s confession defeats any possible d efense of involuntary intoxication

. Though he initially denied knowledge of the child pornography on his computers, he quickly confessed when confronted with the pornographic pictures of his granddaugh ter , providing specifi c details about how and when he took the photos and acknowledg ing that he knew what he was doing . He also told investigators that he had been actively pursuing his interest in child pornogra phy for

a bout a year. Faucett’s attorney can not be faulted for fai l ing to explore a fu tile defense strategy

. For the same reasons, Faucett ’s attorney was not constit utionally ineffective for failing to develop an argument about diminished cap acity as a mitigating factor at sentencing. Refraining from a merit less sentencing argument cannot be characterized as objectively unreasonable

. And here, an argument about diminished capacity would have unde rmined the defense effort to show acceptance of responsibi lity

. In any event, Faucett’s attorney discussed his clien t’sNo. 15

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history of alcohol abuse and mental

- health problems in his sentencing memorandum, and the judge considered this evidence when she weighed the sentencing factors under 18 U.S. C. § 3553(a). Additional argument would not have made a difference.

F inally, we re ject Faucett’s argument that the judge should have held an evidentiary hear ing before ruling on the § 2255 motion

. A n evidentiary hearing is required “ [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. Faucett allege d no set of facts that would support a viable defense of involuntary intoxication or a n argument about diminished capacity in mitigation of his sentence

. Accordingly, i t was clear from the face of Faucett ’s m otion that he wa s not entitled to relief on his Strickland claim

. T he judge was well within her discretion to decide the motion without a n evidentiary hearing

. A FFIRMED

.