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United States v. Deem

United States District Court, W.D. Louisiana, Shreveport Division

April 23, 2018





         Before 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.


         In 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,, 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.

         The 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.

         Deem 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 id.

         Deem 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.

         On 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.

         On 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).

         A 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.



         A. Motions to Vacate, Set Aside, or Correct a Sentence Under 28 U.S.C. § 2255

         The 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.

         Consequently, 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).

         Even if 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.

         II. ...

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