Demink v. United States
| Decision Date | 20 July 2015 |
| Docket Number | Crim. No. 10-cr-20676,Civ. No. 12-cv-13456 |
| Court | U.S. District Court — Eastern District of Michigan |
| Parties | STEVEN DEMINK, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
Hon. Gerald E. Rosen
Petitioner Steven Demink is currently serving a life sentence for various crimes involving the sexual exploitation of minors. Following his conviction and sentencing, on August 6, 2012, Demink filed the instant §2255 Motion to Vacate, Set Aside, or Correct Judgment. The Government has responded to Petitioner Demink's Motion. Petitioner has replied and, by leave, the Government has sur-replied. Having reviewed and considered the Petitioner's and the Government's briefs, and the entire record of this matter, the Court finds that a hearing is unnecessary. Therefore, in accordance with Rule8 of the Rules Governing Section 2255 Proceedings and Local Rules 7.1(f)(1) and (2), Petitioner's § 2255 motion will be decided "on the briefs." This Opinion and Order sets forth the Court's ruling.
On November 10, 2010, Petitioner Steven Demink was charged in a thirteen-count Indictment with Conspiracy to Sexually Exploit Children (Counts 1, 5, and 9), Aiding and Abetting the Sexual Exploitation of Children (Counts 2, 6, and 10), Coercion and Enticement of Minors (Counts 3, 7, and 11), Receipt of Child Pornography (Counts 5 and 12), Accessing Child Pornography with Intent to View (Count 8), and Possession of Child Pornography (Count 13). The charges against Demink stemmed from his orchestration of the sexual assaults of 16 child-victims, nationwide, who ranged in age from three to fifteen and included both boys and girls. Several of the victims were also special needs children. Demink perpetrated the crimes by utilizing the fictitious online persona of a psychologist, "Dalton St. Clair," to convince the children's mothers to sexually assault the minors for his own sexual gratification under the pretense of therapy. Demink met and befriended single mothers from all over the country on an internet dating website, "singleparentmeet.com." He ultimately persuaded nine women to sexually assault their own children and stream the acts via a webcam so that Demink could observe and direct their actions online. In some cases, Demink had the mothers take still pictures of this sexual conduct and send these pornographic pictures to Deminkvia email. Thousands of images of child pornography were discovered on Demink's home computer.
On February 16, 2011, Demink pleaded guilty pursuant to a Rule 11 Plea Agreement to Counts 2-3, 6-7, and 10-11 of the Indictment, which charged Aiding and Abetting the Sexual Exploitation of Children (Counts 2, 6 and 10) and online Coercion and Enticement (Counts 3, 7 and 11), for the sexual assaults of children committed by three of the mothers at Demink's direction. The remaining charges in the Indictment were dismissed.
On August 5, 2011, Demink was sentenced to concurrent sentences of 360 months on Counts 2, 6, and 10, and Life on Counts 3, 7, and 11. Demink did not appeal his conviction or sentence. (Pursuant to the terms of his plea agreement, Demink waived any right to a direct appeal.) On August 6, 2012, Demink filed the instant Motion to Vacate, Set Aside, or Correct Judgment, pursuant to 28 U.S.C. § 2255.
In his 2255 Motion, Demink asserts three claims for relief, all predicated upon allegations of ineffective assistance of counsel. First, Demink argues that his counsel was ineffective for failing to explain that Demink was charged in Counts 3, 7 and 11 "with actually speaking with the minors," to persuade, induce, entice or coerce them to engage in the prohibited conduct, "and not [merely] aiding and abetting that conduct." [2255 Motion, p. 5, Ground One]. Second, Petitioner claims that his counsel was ineffective "for failing to object to the application of the sentencing guidelines to Mr. Demink." [Motion, p. 6, Ground Two]. Specifically, Demink argues that his counts"should have been grouped by victims" and that "he should not have received the enhancements" for the use of a computer, for distribution, or for the ages of the victims. Id. For his third and final contention, Demink alleges that his counsel was ineffective for not explaining the law in relation to the plea i.e., he claims that his lawyer did not explain the Sentencing Guidelines or their application to him, nor did he explain the requirements of proof to sustain a conviction on Counts 3, 7 and 11. [Motion, p. 8, Ground Three].
A. PETITIONER HAS NOT DEMONSTRATED THAT HE WAS AFFORDED INEFFECTIVE ASSISTANCE OF COUNSEL
In all three grounds for relief claimed in his § 2255 motion, Petitioner Demink alleges that he was denied the effective assistance of counsel during the plea process. To establish that he was denied effective assistance of counsel under federal constitutional standards, Demink must satisfy a two-pronged test and overcome the strong presumption that counsel's conduct did not fall below the range of reasonable assistance.
The United States Supreme Court set forth the two-pronged test for ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 689 (1984). First, a petitioner must show that his counsel's performance was deficient by showing that counsel made errors so serious that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. To do so, a petitioner must identify acts that were "outside the wide range of professionally competent assistance."Id. at 690. The burden to "show that counsel's performance was deficient" always rests squarely on the defendant. Burt v. Titlow, ___ U.S. ___, 134 S. Ct. 10, 17 (2013).
Second, the petitioner must show that the attorney's deficient performance prejudiced his defense, which requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial. Strickland, 466 U.S. at 690. In order to show prejudice, the petitioner must show that there is a reasonable probability that, absent his counsel's errors, the result of the proceeding would have been different, and the factfinder would have had a reasonable doubt respecting guilt. Id. at 695. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Id. at 694. Counsel's errors must have been so great that they deprived the petitioner of a fair trial. Id. at 687.
The Strickland test not only applies to trials but also where the ineffective assistance of counsel claim involves a guilty plea. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366 (1985). Where a guilty plea is involved, the movant must present proof that but for the counsel's acts or omissions and under all of the circumstances, he would not have pled guilty and would have insisted upon a trial. Id. at 59.
The two-pronged Strickland test, however, need not be satisfied in order of the prongs. If the petitioner "makes an insufficient showing" on one of the prongs, the Court need not consider both components of the inquiry. Strickland, 466 U.S. at 697. In cases where "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id.
A criminal defendant, however, is "not entitled to the most canny lawyer available, only an adequate one." United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (en banc). Simply alleging that an attorney's performance was inadequate is not enough to warrant relief. "[T]he threshold issue is not whether [Petitioner's] attorney was inadequate; rather it is whether he was so manifestly ineffective that defeat was snatched from the hands of probable victory." Id. at 229 (emphasis in original). "Counsel is only constitutionally ineffective if performance below professional standards caused the defendant to lose what he otherwise would probably have won." Id. Surmounting Strickland's high bar is never an easy task. Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1408 (2011).
Furthermore, a reviewing court's scrutiny of defense counsel's performance is highly deferential, and defense counsel is presumed to have rendered adequate assistance by exercising reasonable professional judgment and sound trial strategy. Wong v. Money, 143 F.3d 313, 319 (6th Cir. 1998); Austin v. Bell, 126 F.3d 843, 848 (6th Cir. 1997), cert. denied, 523 U.S. 1088 (1998). The petitioner must overcome the presumption that the challenged actions might be considered sound strategy under the circumstances. Strickland, 466 U.S. at 689; Tucker v. Prelesnik, 181 F.3d 747, 754 (6th Cir. 1999). "Strategic choices made after investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.C. at 690. "Judicial scrutiny of a counsel's performance must be highly deferential" and "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel'schallenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.
In this case, Petitioner first faults his trial attorney for not explaining that he was not charged as aiding and abetting in counts 3, 7, and 11. Demink claims that he never had any contact with the minor children and consequently he should not have been charged with coercion and enticement under 18 U.S.C. § 2422(b). Demink further argues that his attorney was ineffective in failing to object to the manner in which he was scored under the Sentencing Guidelines. Demink also argues that his trial counsel was ineffective for failing to explain the application of the Sentencing Guidelines to him or the...
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