United States District Court, W.D. Louisiana, Lafayette Division
WHITEHURST, MAGISTRATE JUDGE
ELIZABETH E. FOOTE, UNITED STATES DISTRICT JUDGE
the Court is a 28 U.S.C. § 2255 motion to vacate
sentence filed by Defendant Thomas Dessoye
("Dessoye"). [Record Document 98]. For the reasons
given below, Dessoye's § 2255 motion is
was initially indicted on four counts: one count of
possession of child pornography, two counts of receipt of
child pornography, and one count of use of a facility of
interstate commerce to attempt to entice a minor to engage in
criminal sexual activity. [Record Document 10]. A superseding
indictment added a count of distribution of child
pornography. [Record Document 49 at 2-3]. The Government
subsequently dismissed the enticement charge. [Record
Documents 70 and 71]. Dessoye then pleaded guilty to the
distribution count; the undersigned accepted this plea on the
Magistrate's recommendation. [Record Documents 74 and
80]. In return for Dessoye's guilty plea, the Government
agreed to dismiss the remaining counts at sentencing. [Record
Document 77 at 1].
connection with his guilty plea, Dessoye and the Government
stipulated that he had communicated with a sixteen-year-old
boy (subsequently identified as D.S.) who lived in Minnesota.
[Record Document 77-2 at 3]. In late October 2012, Dessoye
sent D.S. a link to a Dropbox account to which Dessoye had
uploaded child pornography. [Id. at 4]. After he
sent the Dropbox link, he followed up to ensure that D.S.
viewed the Dropbox contents. [Record Document 90 at 5]. D.S.
eventually opened the Dropbox and viewed the child
pornography. [Record Document 77-2 at 4].
April 21, 2013, D.S.'s parents reported to Minnesota law
enforcement that he had run away. [Record Document 90 at 4].
A ping of D.S.'s cell phone placed it in Dessoye's
residence in Lafayette, Louisiana. [Id.]. It was
later determined that Dessoye and D.S. had been in regular
communication for some months, that Dessoye had sent D.S.
money, and that Dessoye had traveled to Minnesota from
Louisiana in order to help D.S. run away. [Id. at
4-5]. During their communications, Dessoye discussed the
possibility of himself and D.S. having sexual activity with
other juveniles and encouraged D.S. to begin a sexual
relationship with a thirteen-year-old boy. [Id. at
learning from Minnesota police that D.S. was likely in
Dessoye's home, the Lafayette Parish Sheriffs Office
entered the home, where they encountered D.S. as well as
evidence of marijuana use. [Id. at 4]. D.S. was
arrested for possession of marijuana and held until his
parents could pick him up. [Id.]. Meanwhile,
Minnesota police asked D.S.'s father if he would consent
to a search of the family's computers for evidence
related to D.S.'s running away. [Id. at 4-5].
His father consented, but noted that several family computers
were currently being repaired. [Id. at 5].
Separately, the repair center had contacted law enforcement
after discovering child pornography on the computers.
[Id.]. When confronted by police, D.S.'s parents
denied prior knowledge of the child pornography.
[Id.]. Subsequent investigation of the parents'
computers discovered 119 images of child pornography.
on the discovery of D.S. in Dessoye's home, a search
warrant was issued for the residence. [Record Document 105 at
5-6]. In the search, law enforcement seized Dessoye's
computer, multiple thumb drives, and two non-working cell
phones. [Record Document 90 at 5]. A review of the thumb
drives yielded over 900 images and 382 videos of prepubescent
child pornography. [Id.].
Presentence Report ("PSR") calculated an advisory
guideline range of 235 to 293 months incarceration.
[Id. at 12]. Because Dessoye pleaded guilty to
distribution of child pornography, his statutory maximum term
of incarceration was 20 years. 18 U.S.C. § 2252A(b)(1).
As a result, the adjusted advisory range was 235 to 240
months incarceration. [Record Document 90 at 12]. On July 10,
2015, this Court sentenced Dessoye to 240 months
incarceration and $5, 095.00 in restitution. [Record
Documents 84 and 85].
appeal, Dessoye argued that it should not be presumed that
the advisory guidelines range established by U.S.S.G. §
2G2.2 is reasonable because the guidelines for child
pornography are not based on empirical data and lead to
sentencing disparities. See United States v.
Dessoye, 648 Fed.Appx. 433, 434 (5th Or. 2016). He also
argued that his sentence was "substantively unreasonable
in light of his age, lack of recent or significant criminal
history, and the circumstances of the offense."
Id. The Fifth Circuit rejected these arguments and
affirmed his sentence. Id. The instant motion
followed. [Record Document 98].
U.S.C. § 2255
federal prisoner may challenge the legality of his detention
by "mov[ing] the court which imposed the sentence to
vacate, set aside or correct the sentence." 28 U.S.C.
§ 2255(a); see United States v. Grammas, 376
F.3d 433, 436 (5th Or. 2004) (quoting Kuhn v. United
States, 432 F.2d 82, 83 (5th Cir. 1970)). Where there
has been a "denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable
to collateral attack, the court shall vacate and set the
judgment aside and shall discharge the prisoner or resentence
him or grant a new trial or correct the sentence as may
appear appropriate." 28 U.S.C. § 2255(b). Relief
under § 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."
Kinder v. Purdj, 222 F.3d 209, 213 (5th Cir. 2000)
(quoting United States v. Vaughn, 955 F.2d 367, 368
(5th Cir. 1992)).
district court may deny a § 2255 motion without
conducting any type of evidentiary hearing if the defendant
fails to "present 'independent indicia of the
likely merits of [his] allegations.'" United
States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013)
(quoting United States v. Cavitt, 550 F.3d 430, 442
(5th Cir. 2008)). A hearing is also unnecessary if the issues
were raised on direct appeal or do not describe
constitutional violations. United States v.
McCollom, 664 F.2d 56, 59 (5th Cir. 1981) (citing
Buckelew v. United States, 575 F.2d 515 (5th Cir.
section 2255 movant who fails to raise a constitutional or
jurisdictional issue on direct appeal waives the issue for a
collateral attack on his conviction, unless there is cause
for the default and prejudice as a result." United
States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000)
(citing United States v. Patten, 40 F.3d 774, 776-77
(5th Cir. 1994) (per curiam); United States v.
Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992); United
States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A
1981)). Ineffective assistance of appellate counsel can
constitute cause, but the Strikland test must still
be met-that is, appellate counsel must have been objectively
unreasonable in failing to raise this issue, and Dessoye must
have been prejudiced by that failure. See Higgins v.
Cain, 720 F.3d 255, 260-61 (5th Cir. 2013) (quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Failure to raise a legally meridess claim is neither
objectively unreasonable nor prejudicial. Smith v.
Pickett, 907 F.2d 581, 585 n.6 (5th Cir. 1990).
certain exceptions not relevant here, a § 2255 motion
must be made within one year of the date on which the
movant's conviction became final. 28 U.S.C. §
2255(f). Following an unsuccessful appeal after which the
defendant does not seek a writ of certiorari, a conviction
becomes final when the time expires for seeking the writ.
Clay v. United States, 537 U.S. 522, 525 (2003). A
petition for a writ of certiorari must be filed within ninety
days of the entry of judgment. Id. (citing Supreme
Court Rule 13(1)). The Fifth Circuit denied Dessoye's
appeal on May 16, 2016. Dessoye, 648 Fed.Appx. at
433. Because he placed his § 2255 motion in the prison
legal mail on May 1, 2017, [Record Document 98 at 5], his
motion is timely.
first claim is that this Court lacked
"jurisdiction" over him. [Id. at 2].
Because Dessoye failed to bring this claim on direct appeal,
it is procedurally barred absent cause and resulting
prejudice. United States v. Lopez 248 F.3d 427, 433
(5th Cir. 2001) (citing United States v.
Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998)). Thus,
it must have been objectively unreasonable for appellate
counsel to attack only the reasonableness of Dessoye's
sentence, and Dessoye must have suffered prejudice from that
not entirely clear what Dessoye means by his use of the term
jurisdiction. He initially describes jurisdiction by
reference to "geographical location." [Record
Document 98 at 2]. Dessoye's crime was sending child
pornography to a child located in Minnesota.
Dessoye, 648 Fed.Appx. at 433. To the extent that
Dessoye is arguing that the Western District of Louisiana was
the incorrect venue, this argument is meritiess. In the
factual basis of his guilty plea, Dessoye stipulated that
venue was proper in the Western District. [Record Document
77-2 at 4]. Even if he had not done so, "the government
must prosecute an offense in a district where the offense was
committed." Fed. R. Crim. P. 18. Given that Dessoye was
located in the Western District when he sent D.S. the Dropbox
link, [Record Document 77-2 at 3], venue was proper.
reply memorandum, Dessoye attempts to clarify his focus on
"geographical location" by arguing, without
authority, that his prosecution was illegal because his
conduct did not occur on federal land. [Record Document 105
at 2]. However, federal district courts have original
jurisdiction "of all offenses against the laws of the
United States." 18 U.S.C. § 3231. Dessoye was
convicted of violating a federal ...