United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
MAURICE HICKS, JR. JUDGE
the Court is Petitioner Steven Deem's
(“Deem”) “Application for a Federal Writ of
Habeas Corpus Under 28 U.S.C. § 2255” (Record
Document 119). Deem asks the Court to vacate his conviction
on the following grounds: (1) the unconstitutionality of his
1998 Texas state court conviction; (2) the unconstitutional
search and seizure; (3) ineffective assistance of counsel;
and (4) factual innocence. For the reasons discussed herein,
Deem's Motion is DENIED.
AND PROCEDURAL BACKGROUND
mid-2011, Microsoft and YouTube discovered that child
pornography had been uploaded to their systems; both
companies reported this to the National Center for Missing
and Exploited Children (the Center) and alerted law
enforcement. See Record Document 30 at 7-9.
Investigators determined the email address associated with
both the Microsoft SkyDrive and the YouTube account,
StevenDeem@hotmail.com, was connected to Steven Deem of
Mooringsport, Louisiana. See id. at 7, 9, 14; Record
Document 39 at 3. Investigators obtained a search warrant for
Deem's home and found approximately 43 images of child
pornography on his desktop computer. See Record
Document 30 at 9-10. The images included “[n]ude
prepubescent kids 3 to 12 years old in sexual acts with
adults and with kids, and then just pictures of nude kids,
males, approximately 12 years old.” Id. at 11.
video uploaded to YouTube initially showed Deem sitting and
talking to the camera before transitioning to images of
children. See id. at 12-13. These images ranged from
classical artwork depicting nude, or partially nude boys, to
young boys in swim trunks and underwear to naked young boys
with exposed genitalia. See id. at 13. Approximately
three or four of the images in the video were pornographic;
the boys were approximately 12 years of age, and they were
posed with their penises exposed. See id. These
images were among the 43 found on Deem's computer.
See id. at 14.
admitted to investigators that he possessed the images and
created the YouTube video. See id. at 9-10, 14-15.
He also admitted his email address was linked to the SkyDrive
and YouTube accounts. See id. at 14. He told
investigators he found the pornographic images on the
internet by searching for “nude children” or
“nude boys.” See id. Deem said he liked
to look at nude photos of boys and masturbate. See
was charged by the federal grand jury for the Western
District of Louisiana with distribution of child pornography,
in violation of 18 U.S.C. § 2252A(a)(2) (Count 1), and
possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) (Count 2). See Record Document
1. He pled guilty to Count 1. See Record Document
25. Shortly thereafter, Deem filed a pro se motion
to withdraw his guilty plea and to represent himself but both
were denied. See Record Document 28. He was
sentenced to a 240-month term of imprisonment. See
Record Documents 35 and 38. On appeal, Deem only challenged
the district court's denial of his motion to represent
himself to which the Government conceded error. See
United States v. Deem (“Deem I”), 582
Fed.Appx. 553 (5th Cir. 2014). The Fifth Circuit affirmed
Deem's conviction, but remanded to allow Deem to
represent himself at sentencing. See id. at 554.
remand, Deem filed another motion to withdraw his guilty
plea. See Record Document 46. In this motion Deem
asserted, among other things, that he was factually innocent
and had received ineffective assistance of counsel. See
id. The motion was denied. See Record Document
77. Deem also filed a motion to suppress but it was denied
because the case was remanded “for the limited purpose
of allowing the defendant a chance to represent himself on
resentencing.” See Record Documents 51 and 58.
Deem was again sentenced to a 240-month term of imprisonment.
See Record Document 78.
appeal, Deem challenged the validity of the search warrant,
the denial of his motions to withdraw guilty plea, and the
voluntariness of his plea. See United States v. Deem
(“Deem II”), 623 Fed.Appx. 206, 207 (5th Cir.
2015). Because each of these issues went “to the
validity of Deem's guilty plea and conviction …
[which] was affirmed in [Deem I], the validity of his plea
and conviction was not subject to reexamination by the
district court on remand; nor [would the Fifth Circuit]
examine it in this subsequent appeal.” Id. at
207 (citation omitted). Deem also challenged the
constitutionality of his prior Texas state conviction for
aggravated sexual assault of a child. See id. The
Fifth Circuit rejected that challenge because it “will
not entertain collateral attacks on prior state convictions
made during federal sentencing proceedings when, as here, the
defendant does not allege that the prior conviction was
uncounseled.” Id. (citation and internal
quotation marks omitted). The Court declined to consider
Deem's “numerous and varied allegations that he
received ineffective assistance of counsel … without
prejudice to whatever right [he] has to assert them on
collateral review.” Deem II, 623 Fed.Appx. at
208 (citations omitted).
petition for a writ of certiorari was denied May 23, 2016.
See Record Document 118. On June 27, 2016, Deem
filed the instant Motion accompanied by a memorandum in
support. See Record Documents 119 and 119-1. It is
timely as it was filed within one year of the Supreme
Court's denial. See Clay v. United States, 537
U.S. 522, 527 (2003); 28 U.S.C. § 2255(f)(1). The
Government responded on July 22, 2016, to which Deem replied.
See Record Documents 125 and 126.
Motions to Vacate, Set Aside, or Correct a Sentence Under 28
U.S.C. § 2255
federal habeas corpus remedy is contained in 28 U.S.C. §
2255, which provides that a prisoner serving a federal
sentence may make a motion to vacate, set aside, or correct
his sentence within a year after his conviction has become
final. Review under Section 2255 is limited to four grounds:
(1) the sentence was imposed in violation of the Constitution
or laws of the United States; (2) the court was without
jurisdiction to impose the sentence; (3) the sentence exceeds
the statutory maximum sentence; or (4) the sentence is
otherwise subject to collateral attack. See 28
U.S.C. § 2255. However, after conviction and exhaustion
of a defendant's right to appeal, the Court is
“entitled to presume that the defendant stands fairly
and finally convicted.” United States v.
Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991), quoting
United States v. Frady, 456 U.S. 152, 164, 102 S.Ct.
1584 (1982). According to the Supreme Court, “our trial
and appellate procedures are not so unreliable that we may
not afford their completed operation any binding effect
beyond the next in a series of endless postconviction
collateral attacks . . . to the contrary, a final judgment
commands respect.” Frady, 456 U.S. at 164-65.
issues that can be presented in a motion filed under 28
U.S.C. § 2255 are limited. A defendant can challenge a
final conviction only on issues of constitutional or
jurisdictional magnitude. Shaid, 937 F.2d at 232. As
the Fifth Circuit has stated:
Relief under 28 U.S.C.A. § 2255 is reserved for
transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete
miscarriage of justice. Nonconstitutional claims that could
have been raised on direct appeal, but were not, may not be
asserted in a collateral proceeding.
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.
1992) (citations omitted).
a petitioner wishes to assert issues that are constitutional
or jurisdictional in nature, he may be procedurally barred
from raising them. In order to raise an issue for the first
time on collateral review, a petitioner must show both
“cause” for his procedural default and
“actual prejudice” resulting from the error.
Frady, 456 U.S. at 168; Shaid, 937 F.2d at
232. To establish “cause, ” defendant must show
that some external impediment prevented him from raising the
claim on direct appeal. See United States v. Flores,
981 F.2d 231, 235 (5th Cir. 1993) (applying the same
“cause” standard to a prisoner's second
Section 2255 motion). In order to meet the “actual
prejudice” test, he must demonstrate not just the
possibility of prejudice, “but an actual and
substantial disadvantage, infecting his entire trial with
error of constitutional dimension.” Shaid, 937
F.2d at 233.