In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-2515

MICHAEL D. FAUCETT,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division.

No. 1:13-cv-01434-TWP-TAB — Tanya Walton Pratt, Judge.

____________________

ARGUED SEPTEMBER 28, 2016 — DECIDED SEPTEMBER 22, 2017

____________________

Before KANNE, SYKES, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge. Michael Faucett possessed large 

quantities of child pornography, some of which he produced 

himself. His collection included 59 sexually explicit photos

of his five-year-old granddaughter that he took while she 

was sleeping. When investigators searched his computer and 

found the collection, he initially denied knowledge of it. But 

he confessed when they confronted him with the pornographic pictures of his granddaughter. Faucett pleaded 
2 No. 15-2515

guilty to three federal crimes: two counts of producing 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.

This 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 ineffective for

failing to advise him that involuntary intoxication was an 

available defense. In an alternative but overlapping claim, he 

alleged that counsel at least should have developed an

argument about diminished capacity as a mitigating factor at 

sentencing. The district judge denied the § 2255 motion

without a hearing, reasoning that neither defense strategy 

would have had any chance of success as a factual matter. 

The judge also ruled that involuntary intoxication is a defense 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 defense is available in a case like this one. We have no need to 

decide that legal question because Faucett did not articulate

a viable factual basis for the defense even if it applies in this 

context. Nor was his counsel constitutionally ineffective 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 her
No. 15-2515 3

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 pictures 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 uploaded the 59 photos to his computer, adding 

them to his stored collection of child pornography—more 

than 600 images and videos on three computers. Many of the

images in his collection depicted minor girls being raped by 

adult men. Faucett advertised some of this material online.

Investigators tracked the online images to Faucett’s 

IP address and obtained a search warrant for his home and 

computers. Initial on-site forensic analysis revealed the

pornography collection, including the photos of Faucett’s

granddaughter. Investigators questioned Faucett during the 

search, but he initially denied any knowledge of the child 

pornography. When they confronted him with the photos of 

his granddaughter, he confessed to his crimes and provided 

a detailed account of when and how he took the photos.

A federal grand jury indicted Faucett on two counts of 

production of child pornography and one count of possession of child pornography. He pleaded guilty as charged. His

presentence report detailed his struggle with alcoholism and 

certain mental-health issues, including ADHD, insomnia, 

depression, and anxiety. At various times Dr. Donald 

Wagoner of the Wagoner Medical Center had prescribed 

several different medications to treat these conditions, 

including Adderall, Ambien, Paxil, Xanax, and Abilify. 

According to Faucett’s medical records, however, only two 
4 No. 15-2515

prescriptions were active between February and April of

2010 when he took the pornographic pictures of his granddaughter: Adderall (for ADHD) and Paxil (an antidepressant). Faucett’s attorney submitted a sentencing memorandum addressing his client’s alcoholism and mental-health

issues, but the overall defense strategy at sentencing was to 

demonstrate acceptance of responsibility.

At the sentencing hearing, Faucett apologized for his 

conduct, expressed remorse, and acknowledged the wrongfulness of his actions. The judge noted his remorse and early 

guilty plea and awarded a full three-level downward adjustment for acceptance 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 

sentence of life. The judge imposed a 30-year prison term 

followed by a life term of supervised release. Faucett appealed, 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 employees at his clinic with conspiracy 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 listed as a victim 

in the probable-cause affidavit. Dr. Wagoner pleaded guilty.

Faucett moved to vacate his conviction and sentence under § 2255, pointing to the Wagoner prosecution and arguing 

that his attorney never told him that a defense of involuntary 

intoxication was available and that he would not have 

pleaded guilty had he been aware of such a defense. Faucett

also claimed that his attorney did not develop an adequate 
No. 15-2515 5

argument about diminished capacity as a mitigating factor at

sentencing.

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 

affirmative defense but rather serves to negate the mens rea

required of specific-intent crimes. She concluded that the 

defense was unavailable in Faucett’s case because childpornography offenses are general-intent crimes. Finally, the 

judge explained that she had thoroughly considered

Faucett’s psychiatric history and alcohol abuse in determining 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. His 

fallback argument is a procedural point. He claims that the 

judge should have held an evidentiary hearing before ruling 

on his § 2255 motion.

We review the denial of a § 2255 motion under a split 

standard of review, accepting the judge’s factual findings 
6 No. 15-2515

unless they are clearly erroneous and deciding legal questions de novo. Webster v. United States, 667 F.3d 826, 830 (7th 

Cir. 2011). We review the judge’s decision to forgo an evidentiary 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 ineffective 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 deferential; we presume that counsel was effective and evaluate his

performance under an objective standard of reasonableness. 

Id. To establish prejudice, Faucett had to demonstrate a 

reasonable probability that but for counsel’s deficient performance, 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 developed a sentencing argument about diminished capacity.

Faucett’s primary attack on his attorney’s performance 

rests on his allegation that counsel should have developed a 

defense of involuntary intoxication or at least informed him 

that such a defense was available. We agree with the district 

judge that the defense was not remotely viable in Faucett’s 

case and that it was entirely reasonable for counsel to forgo a 

meritless defense strategy.

The defense of involuntary intoxication is rarely used 

and has received scant attention from federal courts. Our 

circuit has not addressed it. The circuits that have directly 
No. 15-2515 7

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 (8th Cir. 1998)

(explaining that the involuntary-intoxication defense “reliev[es] a defendant of criminal responsibility” and is “essentially the same ... as [the] insanity [defense]”); see also United 

States v. Bindley, 157 F.3d 1235, 1241–43 (10th Cir. 1998) 

(distinguishing involuntary intoxication, which demonstrates a “lack of culpability,” from voluntary intoxication).

An affirmative defense excuses a defendant’s criminal 

responsibility; it does 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 excuse 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 involuntary intoxication, then it does not 

matter whether the charged offense is a general-intent crime

or a specific-intent crime. A successful defense of involuntary intoxication would excuse criminal responsibility either 

way.

Although we have never addressed involuntary intoxication as a defense to criminal liability, we have on a few 

occasions dealt with a claim of voluntary intoxication; each 

time we’ve treated it as a “negative” defense to a specificintent 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, 541 

(7th Cir. 1995) (“Voluntary intoxication is a negative defense 
8 No. 15-2515

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 childpornography offenses as general-intent or specific-intent 

crimes does make a difference.

We have not yet had occasion to decide whether production of child pornography or possession of child pornography are general-intent or specific-intent crimes. Other circuits generally treat receipt and possession of child pornography as general-intent crimes. 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 production of child pornography. Compare United States v. Palomino-Coronado, 805 F.3d 127, 130 (4th 
No. 15-2515 9

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 possession and production offenses. Rather, she concluded as a 

general matter that because child-pornography offenses are 

general-intent crimes, the defense of involuntary intoxication 

is legally unavailable.

We do not need to decide whether the judge was right to 

characterize the crimes and the proposed intoxication defense in this way. The judge’s alternative factual holding was 

entirely sound. She noted that Faucett had not alleged any 

facts that would support a viable defense of involuntary 

intoxication. An intoxication defense requires evidence 

demonstrating that the defendant’s “mental faculties were so 

overcome by intoxicants” that he was rendered “incapacitated.” Nacotee, 159 F.3d at 1076. In other words, simply showing that the defendant was intoxicated is not enough. Id.

Here, Faucett alleged no facts tending to show that he was 

intoxicated at the time of his crimes, much less that his 

mental faculties were so overcome that he was incapacitated.

Faucett’s claim rests primarily on the successful prosecution of Dr. Wagoner for illegally dispensing narcotics to 

drug-seeking addicts. For additional support he points to an 

FDA warning that the drug Abilify is linked with compulsive behavior and “uncontrollable urges to ... have sex.”

FDA, FDA Warns About New Impulse-Control Problems Associated with Mental Health Drug Aripiprazole (Abilify, Abilify 

Maintena, Aristada) (May 3, 2016) (http://www.fda.gov/
10 No. 15-2515

Drugs/DrugSafety/ucm498662.htm). He also cites an FDAapproved guide for Ambien that contains a side-effects 

warning about “complex behaviors while not being fully 

awake.” Sanofi-aventis U.S., LLC, Highlights of Prescribing 

Information: Ambien at 20 (Rev. Dec. 2016)

(http://www.accessdata.fda.gov/drugsatfda_docs/label/

2016/019908s037lbl.pdf).

None of this matters in light of Faucett’s medical records

and the contents of his confession. His medical records 

establish that he did not have active prescriptions for Abilify 

or Ambien at any time at or near the commission of these

crimes; his only active psychotropic prescriptions at the 

relevant time were for Adderall and Paxil. And Faucett’s 

confession defeats any possible defense 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 

granddaughter, providing specific details about how and 

when he took the photos and acknowledging that he knew 

what he was doing. He also told investigators that he had 

been actively pursuing his interest in child pornography for 

about a year. Faucett’s attorney cannot be faulted for failing

to explore a futile defense strategy.

For the same reasons, Faucett’s attorney was not constitutionally ineffective for failing to develop an argument about 

diminished capacity as a mitigating factor at sentencing. 

Refraining from a meritless sentencing argument cannot be 

characterized as objectively unreasonable. And here, an 

argument about diminished capacity would have undermined the defense effort to show acceptance of responsibility. In any event, Faucett’s attorney discussed his client’s 
No. 15-2515 11

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.

Finally, we reject Faucett’s argument that the judge 

should have held an evidentiary hearing before ruling on the 

§ 2255 motion. An 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 alleged no set of facts that would support a 

viable defense of involuntary intoxication or an argument 

about diminished capacity in mitigation of his sentence.

Accordingly, it was clear from the face of Faucett’s motion that he was not entitled to relief on his Strickland claim. 

The judge was well within her discretion to decide the 

motion without an evidentiary hearing.

AFFIRMED.