ALBRECHT v. WARDEN

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

NATHAN ALBRECHT, )

)

Petitioner, )

)

v. ) No. 2:22-cv-00344-JPH-MKK

)

WARDEN, )

)

Respondent. )

ORDER DENYING PETITION FOR HABEAS CORPUS

Nathan Albrecht challenges his Indiana conviction for possessing child

pornography under Cause No. 19C01-1910-F5-1109. He also moves to compel

the production of items outside the state court record. Dkt. 11. The motion to

compel and Mr. Albrecht's habeas petition are denied.

I. Background

A. Investigation and Trial

In 2019, a 12-year-old boy gave a forensic interview accusing Mr. Albrecht

of molesting him. Dkt. 7-6 (Direct Appeal Opinion). The Dubois County

Prosecutor obtained a search warrant for Mr. Albrecht's apartment and police

found in the bathroom a box of condoms, a bag of used condoms, and a bag

containing a large external hard drive. Id. at 3. Police obtained a search warrant

for the hard drive and found thousands of pictures and videos of child

pornography. Id. They later obtained three additional search warrants for Mr.

Albrecht's apartment and media devices. Id.

Mr. Albrecht filed a pretrial motion challenging the validity of the warrant

to search the external hard drive and the three additional warrants. Id. at 4. The

trial court denied the motion, and the Indiana Court of Appeals affirmed on

interlocutory appeal. Id.; see Albrecht v. State, 159 N.E.3d 1004 (Ind. Ct. App.

2020) (interlocutory opinion). The Indiana Supreme Court denied Mr. Albrecht's

petition to transfer. Albrecht v. State, 166 N.E.3d 911 (Ind. 2021).

At trial, Mr. Albrecht objected to evidence retrieved from the hard drive,

arguing that the initial warrant to search his apartment lacked probable cause

and that the seizure of the hard drive was fruit of the poisonous tree. Dkt. 7-6

at 4. The objection was overruled, and Mr. Albrecht was convicted on 10 counts

of possessing child pornography. Id.

B. Direct Appeal

On direct appeal, Mr. Albrecht challenged the initial search warrant on

two grounds. First, that the warrant was stale because the 12-year-old boy stated

in the interview that the molestation had occurred during the last 6 to 9 months.

Id. at 8-9. The Indiana Court of Appeals rejected that argument on the merits.

Id. at 9. Second, that the officer who conducted the forensic interview did not

establish the 12-year-old boy's credibility. Id. at 9-10. The Indiana Court of

Appeals held that this argument was waived for failure to present a cogent

argument. Id. at 10.

Mr. Albrecht also challenged the sufficiency of the evidence on two

grounds. First, with respect to all counts, he argued that the hard drive was

found in a common area of his apartment and that there is no evidence about

whether other people lived there. Id. at 12. The Indiana Court of Appeals engaged

in a two-step constructive possession analysis, considering whether he could

exercise dominion over the hard drive and whether he knew the hard drive was

in the apartment and what it contained. Id. at 13-14. The court reasoned that

Mr. Albrecht could exercise dominion over the hard drive because it was in his

residence. Id. at 13. The court also reasoned that he knew the hard drive was in

his apartment and knew what it contained because (1) it was found near

condoms matching a description given by the 12-year-old boy in the forensic

interview and (2) the hard drive contained a shortcut linked to Mr. Albrecht's

computer hard drive. Id. at 13-14.

Second, Mr. Albrecht argued that the evidence is insufficient with respect

to Count 9. Id. at 14-15. In the video underlying Count 9, the videographer slaps

a young boy across the face 12 times and fights off another adult trying to rescue

him. Id. At times, the boy's genitals are exposed. Id. Mr. Albrecht argued that the

video did not contain "sadomasochistic abuse," which Indiana law defines as

"flagellation or torture by or upon a person as an act of sexual stimulation or

gratification." Id. at 14-15 quoting Ind. Code § 35-49-1-8. The Court of Appeals

held that, "Given that the motion picture depicts an adult male repeatedly

striking a small child, who is crying the entire time, the trial court was free to

find this intentional infliction of pain to be torture" and an act of sexual

stimulation or gratification. Id. at 16. The court also held, as a second basis for

the sufficiency of the evidence, that the video qualified as child pornography

based on sexual conduct other than sadomasochistic abuse because it contained

the "exhibition of the uncovered genitals of the child." Id. at 15. While the State

had not made this argument below, the court reasoned that Indiana appellate

courts "will affirm a conviction on any basis fairly presented by the record." Id.

Finally, Mr. Albrecht argued that the statutory definition of

"sadomasochistic abuse" is unconstitutionally vague. Id. at 17-18. The court

rejected this argument on two grounds. First, the court held that it need not

address the argument on the merits "because Albrecht's conviction on count nine

can be affirmed on another basis," since the video contained sexual conduct

other than sadomasochistic abuse. Id. at 17. Second, the court held that the

issue was waived for appellate review "[b]ecause Albrecht neither moved to

dismiss on this ground or argued that the term 'sadomasochistic abuse' was

unconstitutionally vague at trial." Id. at 18.

Judge Crone concurred in part and dissented in part. Id. at 21-26. He

reasoned that the evidence is insufficient on Count 9 because "[t]here is simply

nothing from which a finder of fact could reasonably infer that the torture

depicted in the motion picture was an act of sexual stimulation or gratification

for either the torturer or the child." Id. at 22. He also disagreed with affirming

Count 9 based on "sexual conduct other than sadomasochistic abuse," because

he believed that approach presented "insurmountable due process concerns." Id.

at 24. He explained that while the charging information itself did not specifically

allege that the video contained sadomasochistic abuse, the defense attorney

understood sadomasochistic abuse to be the basis of the charge, as did the

deputy prosecutor and the judge presiding over the bench trial. Id. at 25.1

Mr. Albrecht petitioned to transfer to the Indiana Supreme Court. In his

petition, he did not include his Fourth Amendment claims or his claim that

"sadomasochistic abuse" is unconstitutionally vague. Dkt. 7-7. The petition

raised his constructive possession claim and his claim that the video underlying

Count 9 did not contain sadomasochistic abuse. Id. The petition also echoed the

dissenting judge's due process concern with respect to the majority's alternative

theory that the video contained sexual conduct other than sadomasochistic

abuse. Id. The Indiana Supreme Court denied the petition to transfer. Dkt. 7-10.

C. Federal Habeas Petition

Mr. Albrecht's habeas petition raises four issues. First, that the warrant

to search his hard drive "violated the 4th Amendment due to lack of probable

cause and failing to meet the particularity requirement." Dkt. 2 at 3. Second,

that the initial warrant to search his apartment "violated the 4th Amendment

due to the use of stale information." Id. Third, that the evidence is insufficient

on all counts because the state did not prove constructive possession. Id. at 4.

Fourth, that the majority violated his right to due process by affirming his

conviction on Count 9 based on its alternative theory that the video contained

sexual conduct other than sadomasochistic abuse. Id.

1 The dissent also suggested that the video might contain "serious literary, artistic,

political, or scientific value," as understood by Indiana Code Section 35-42-4-4(d), and

that it did not qualify as sexual conduct other than sadomasochistic abuse. Dkt. 7-6

at 24-26.

II. Legal Standard

A federal court may grant habeas relief only if the petitioner demonstrates

that he is in custody "in violation of the Constitution or laws . . . of the United

States." 28 U.S.C. § 2254(a). AEDPA directs how the Court must consider

petitions for habeas relief under § 2254. "In considering habeas corpus petitions

challenging state court convictions, [the Court's] review is governed (and greatly

limited) by AEDPA." Dassey v. Dittmann, 877 F.3d 297, 301 (7th Cir. 2017)

(en banc). "The standards in 28 U.S.C. § 2254(d) were designed to prevent federal

habeas retrials and to ensure that state-court convictions are given effect to the

extent possible under law." Id.

A federal habeas court cannot grant relief unless the state court's

adjudication of a federal claim on the merits:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d).

"The decision federal courts look to is the last reasoned state-court

decision to decide the merits of the case, even if the state's supreme court then

denied discretionary review." Dassey, 877 F.3d at 302. "Deciding whether a state

court's decision 'involved' an unreasonable application of federal law or 'was

based on' an unreasonable determination of fact requires the federal habeas

court to train its attention on the particular reasons—both legal and factual—

why state courts rejected a state prisoner's federal claims, and to give

appropriate deference to that decision[.]" Wilson v. Sellers, 138 S. Ct. 1188,

1191−92 (2018). "This is a straightforward inquiry when the last state court to

decide a prisoner's federal claim explains its decision on the merits in a reasoned

opinion." Id. "In that case, a federal habeas court simply reviews the specific

reasons given by the state court and defers to those reasons if they are

reasonable." Id.

"For purposes of § 2254(d)(1), an unreasonable application of federal law

is different from an incorrect application of federal law." Harrington v. Richter,

562 U.S. 86, 101 (2011). "A state court's determination that a claim lacks merit

precludes federal habeas relief so long as fairminded jurists could disagree on

the correctness of the state court's decision." Id. "If this standard is difficult to

meet, that is because it was meant to be." Id. at 102. "The issue is not whether

federal judges agree with the state court decision or even whether the state court

decision was correct. The issue is whether the decision was unreasonably wrong

under an objective standard." Dassey, 877 F.3d at 302. "Put another way, [the

Court] ask[s] whether the state court decision 'was so lacking in justification that

there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.'" Id. (quoting Richter, 562 U.S.

at 103). "The bounds of a reasonable application depend on the nature of the

relevant rule. The more general the rule, the more leeway courts have in reaching

outcomes in case-by-case determinations." Schmidt v. Foster, 911 F.3d 469, 477

(7th Cir. 2018) (en banc).

III. Discussion

A. Motion to Compel

Mr. Albrecht has filed a motion to compel, seeking the transcript from the

12-year-old boy's forensic interview, the police report from his child molesting

conviction in another case, and photos taken by the police pursuant to the initial

warrant to search his apartment. Dkt. 11.2 The respondent objects to producing

these items because they are not part of the state court record. Dkt. 14.

A writ of habeas corpus may issue "only on the ground that [the prisoner]

is in custody in violation of the Constitution or laws or treaties of the United

States." § 2254(a). To respect our system of dual sovereignty, see Printz v. United

States, 521 U.S. 898, 918 (1997), the availability of habeas relief is narrowly

circumscribed, see Brown v. Davenport, 142 S. Ct. 1510 (2022). "Among other

restrictions, only rarely may a federal habeas court hear a claim or consider

evidence that a prisoner did not previously present to the state courts in

compliance with state procedural rules." Shinn v. Ramirez, 142 S. Ct. 1718, 1730

(2022). "If a prisoner 'failed to develop the factual basis of a claim in State court

proceedings,' a federal court may admit new evidence, but only in two quite

limited situations." Shoop v. Twyford, 142 S. Ct. 2037, 2044 (2022) (quoting 28

§ 2254(e)(2)). "Either the claim must rely on a 'new' and 'previously unavailable'

'rule of constitutional law' made retroactively applicable by [the United States

Supreme Court], or it must rely on 'a factual predicate that could not have been

2 He also sought to compel other materials that were part of the state court record and

that Respondent has provided to him. See dkt. 14.

previously discovered through the exercise of due diligence.'" (Shoop, 142 S. Ct.

at 2044 (quoting 28 § 2254(e)(2)(A)).

Mr. Albrecht does not argue that his case fits either exception. His two-

page motion to compel merely lists the requested items and says, "If this motion

is not granted, the Petitioner will not have the exhibits to adequately present

their arguments before the court." Dkt. 11. Mr. Albrecht did not file a reply in

support of the motion to compel and his reply in support of his habeas petition

does not identify any need for additional evidence outside the state court record.3

Dkts. 17, 17-1.

Mr. Albrecht therefore has not shown a basis to compel the respondent to

produce evidence from outside the state court record, so the motion to compel is

DENIED. Dkt. 11.

B. Issues 1 and 2 – Fourth Amendment

The respondent argues that Issues 1 and 2 are non-cognizable because

Mr. Albrecht "was given a full and fair opportunity to litigate his search-and-

seizure claims in state court" and procedurally defaulted because Mr. Albrecht

did not present them to the Indiana Supreme Court in his petition to transfer.

Dkt. 7 at 11-13.

A habeas petitioner asserting Fourth Amendment claims must show more

than a mere constitutional violation; he must show that the state courts did not

provide "an opportunity for full and fair litigation" of his Fourth Amendment

3 It does, however, quote the 12-year-old boy's forensic interview, indicating that

Mr. Albrecht may have obtained the transcript elsewhere. Dkt. 17-1 at 7.

claim. Stone v. Powell, 428 U.S. at 465, 494 (1976). So long as the state court

"heard the claim, looked to the right body of case law, and rendered an

intellectually honest decision," federal habeas review of a Fourth Amendment

violation is precluded. Monroe v. Davis, 712 F.3d 1106, 1115 (7th Cir. 2013).

In deciding whether the petitioner had a "full and fair hearing" on his Fourth

Amendment claim in state court, federal courts look to the last reasoned state-

court decision to address the merits of the claim. Id. at 1115-16.

Under that rule, Issue 1 is non-cognizable. The Indiana Court of Appeals

heard his claim, identified Fourth Amendment precedent, applied that precedent

to the facts, and issued an intellectually honest decision. Albrecht, 159 N.E.3d

1004. Indeed, Mr. Albrecht does not argue that he was denied a full and fair

opportunity to litigate Issue 1, but "objects to the faulty precedent set forth

almost fifty years ago by Stone" and argues that "[t]his precedent needs to be

reviewed and reversed as it violates the safeguards put in place to protect citizens

from Constitutional violations perpetrated by state courts." Dkt. 17-1 at 5; see

dkt. 1 at 2. This Court cannot disregard Supreme Court precedent; it can only

acknowledge that Mr. Albrecht has made and preserved the argument. See

United States v. Faulkner, 793 F.3d 752, 756 (7th Cir. 2015). Issue 1 is non-

cognizable under Stone and must be dismissed.4

For Issue 2, it is "[i]nherent in the habeas petitioner's obligation to exhaust

his state court remedies before seeking relief in habeas corpus . . . to fairly

4 The Court therefore does not address Respondent's argument that Mr. Albrecht

procedurally defaulted this claim on direct appeal even though he raised it at all levels

of his interlocutory appeal. See dkt. 7 at 12–13.

present his federal claims to the state courts." King v. Pfister, 834 F.3d 808, 815

(7th Cir. 2016) (quoting Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004)

(in turn citing 28 U.S.C. § 2254(b)(1)(A)). To meet this requirement, a petitioner

"must raise the issue at each and every level in the state court system, including

levels at which review is discretionary rather than mandatory." Id. at 1025-26. A

federal claim is not fairly presented unless the petitioner "put[s] forward

operative facts and controlling legal principles." Simpson v. Battaglia, 458 F.3d

585, 594 (7th Cir. 2006).

Here, there is no dispute that Mr. Albrecht failed to include Issue 2 in his

petition to transfer on direct appeal. Mr. Albrecht relies on Rule 58(A) of the

Indiana Rules of Appellate Procedure, which states, "Upon the grant of transfer,

the Supreme Court shall have jurisdiction over the appeal and all issues as if

originally filed in the Supreme Court." Dkt. 17-1 at 12. But in this case, the

Indiana Supreme Court denied his petition to transfer. So even if Rule 58(A)

might rescue a claim when a transfer petition is granted, it has no effect on this

case. See Hinesley v. Knight, 837 F.3d 721, 735−36 (7th Cir. 2016) (holding

Indiana petitioner's claim procedurally defaulted because petitioner failed to fully

and fairly present the claim in his petition to transfer to the Indiana Supreme

Court). Issue 2 was not presented to the Indiana Supreme Court and is

dismissed for procedural default.5

5 The Court therefore does not address whether Issue 2 is non-cognizable under Stone.

C. Issue 3 – Constructive Possession

Mr. Albrecht claims that the evidence is insufficient to support all 10

convictions for possession of child pornography because he did not

constructively possess the external hard drive found in the bathroom of his

apartment. The respondent contends that the Indiana Court of Appeals'

constructive possession holding reasonably applied United States Supreme

Court precedent and is therefore entitled to deference under AEDPA. Dkt. 7 at

14-15.

Evidence is constitutionally sufficient to support a conviction if, "after

viewing the evidence in the light most favorable to the prosecution, any rational

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

reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[H]abeas

reviews of Jackson claims are subject to two levels of judicial deference creating

a high bar: first, the state appellate court determines whether any rational trier

of fact could have found the evidence sufficient; second, a federal court may only

overturn the appellate court's finding of sufficient evidence if it was objectively

unreasonable." Saxon v. Lashbrook, 873 F.3d 982, 987–88 (7th Cir. 2017).

"Federal review of these claims turns on whether the state court provided fair

process and engaged in reasoned, good-faith decisionmaking when applying

Jackson's 'no rational trier of fact' test." Gomez v. Acevedo, 106 F.3d 192, 199

(7th Cir. 1999) (cleaned up).

Here, the Indiana Court of Appeals recited Indiana's legal standard for

constructive possession claims and relied on the Indiana statute defining

"knowing" and "intentional" conduct. Dkt. 7-6 at 12–13 (citing Ind. Code § 35-

41-2-2(a), (b)). It then cited case law establishing that this mens rea may be

proven by circumstantial evidence. Dkt. 7-6 at 12 (citing Chastain v. State, 58

N.E.3d 235, 240 (Ind. Ct. App. 2016)). The Indiana Court of Appeals

also addressed Mr. Albrecht's argument that the State failed to prove his

exclusive control over the bathroom where the hard drive was found by citing

evidence that Mr. Albrecht knew the hard drive was in the apartment and what

it contained. Dkt. 7-6 at 13 (noting that "Jasper Police Department Detective

Martin Loya conducted a forensic examination of the external hard drive and

testified that he found a 'shortcut' on that drive that was linked to the internal

hard drive ('C drive') of a computer, and the shortcut indicated that 'Nathan' is

'the person who uses' that computer."). The court ultimately concluded that "a

trier-of-fact could reasonably infer that Albrecht, who lived in the apartment and

whose first name is Nathan, intended to maintain dominion and control over the

external hard drive and the motion pictures found on it, i.e., that he knowingly

or intentionally possessed them." Dkt. 7-6 at 13-14.

Given this thorough analysis and reliance on correct legal standards, the

Indiana Court of Appeals fairly and reasonably adjudicated Mr. Albrecht's

constructive possession argument. His request for relief on Issue 3 is denied.

D. Issue 4 – Due Process

Mr. Albrecht claims that his conviction on Count 9 violated the 5th

Amendment on due process grounds because the charging document did not

allege sadomasochistic abuse. The respondent contends that Mr. Albrecht was

not deprived of due process because the State was not required to and did not

attempt to obtain the conviction based on sadomasochistic abuse. Id. at 17.

Mr. Albrecht abandons Issue 4 in his reply. Dkt. 17 ("The petitioner will

abandon Ground 4 as, though it has merit, the Petitioner will choose to focus on

the first three grounds."). He therefore is not entitled to relief on this ground.

Moreover, the claim fails on the merits. The Indiana Court of Appeals

affirmed the conviction on Count 9 because the State was not required to prove

sadomasochistic abuse, the trial court found sadomasochistic abuse only after

Mr. Albrecht argued that it was not depicted, and the evidence was sufficient to

sustain the conviction under both the State's theory and the trial court's. Dkt.

7-6 at 15–16.

Even construing the petition in the light most favorable to Mr. Albrecht,

he does not dispute the state trial court's finding that the relevant video

contained sadomasochistic abuse. See dkt. 1.6 Nor does he cite any authority

challenging the Court of Appeal's finding that sufficient evidence supported his

conviction regardless of whether it was based on sadomasochistic abuse. See id.

In short, the trial court and the Court of Appeals majority found sufficient

evidence that the video contained sadomasochistic abuse and that Mr. Albrecht

was therefore guilty of possessing child pornography. Mr. Albrect has not shown

that the majority's holding could have violated his right to due process.

Mr. Albrecht's request for relief on Issue 4 is denied.

6 Mr. Albrecht did not challenge the sufficiency of his charging information in the

Indiana Court of Appeals. To the extent Mr. Albrecht seeks to raise such a claim now,

it is procedurally defaulted.

IV. Certificate of Appealability

"A state prisoner whose petition for a writ of habeas corpus is denied by

a federal district court does not enjoy an absolute right to appeal." Buck v. Davis,

137 S. Ct. 759, 773 (2017). Instead, a state prisoner must first obtain a certificate

of appealability. See 28 U.S.C. § 2253(c)(1). "A certificate of appealability may

issue . . . only if the applicant has made a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2). In deciding whether a certificate of

appealability should issue, "the only question is whether the applicant has

shown that jurists of reason could disagree with the district court's resolution of

his constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further." Buck, 137 S. Ct. at 773

(citation and quotation marks omitted).

Where a claim is resolved on procedural grounds, a certificate of

appealability should issue only if reasonable jurists could disagree about the

merits of the underlying constitutional claim and about whether the procedural

ruling was correct. Flores-Ramirez v. Foster, 811 F.3d 861, 865 (7th Cir. 2016)

(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Rule 11(a) of the Rules Governing Section 2254 Proceedings in the United

States District Courts requires the district court to "issue or deny a certificate of

appealability when it enters a final order adverse to the applicant."

Because reasonable jurists would all agree that Mr. Albrecht's claims are

procedurally defaulted, non-cognizable, moot, or otherwise without merit,

a certificate of appealability shall not issue.

V. Conclusion

The motion to compel is DENIED. Dkt. [11]. Mr. Albrecht's habeas petition

is DENIED. A certificate of appealability SHALL NOT ISSUE. The CLERK SHALL

issue final judgment in accordance with this Order.

SO ORDERED.

Date: 3/28/2024 Samu Patrick \bawlove

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

NATHAN ALBRECHT

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