Deem v. Director, TDCJ-CID

Filing 8

ORDER OF DISMISSAL adopting 4 Report and Recommendation. A certificate of appealability is denied. All motions not previously ruled on are denied. The Clerk is directed to return unfiled any new petitions for writ of habeas corpus submitted by Mr. Deem regarding his conviction unless he shows he has received permission from the Fifth Circuit to file it. Signed by Judge Ron Clark on 9/27/17. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

STEVEN LYNN DEEM, #16418-035

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:17cv515

ORDER OF DISMISSAL
Petitioner Steven Lynn Deem, proceeding pro se, brings this petition for a writ of habeas
corpus challenging his 1997 Smith County conviction for the offense of aggravated sexual assault
of a child. The petition was referred to United States Magistrate Judge K. Nicole Mitchell, who
issued a Report and Recommendation concluding that the petition should be dismissed for lack of
subject matter jurisdiction as an unauthorized second or successive petition. Mr. Deem has filed
objections.
Mr. Deem previously filed a petition for a writ of habeas corpus in this court challenging
his conviction, which was dismissed with prejudice as time-barred. Deem v. Director, TDCJCID, No. 6:04cv554 (E.D. Tex. March 4, 2005). The Fifth Circuit denied his motion for a
certificate of appealability. Deem v. Daughty, No. 05-40604 (5th Cir. 2005).
The present petition was filed on September 11, 2017. The petition contains five grounds
for relief, including an actual innocence claim. It is noted that his previous petition likewise
included an actual innocence claim.

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Judge Mitchell found that the petition should be dismissed as an unauthorized or successive
petition in light of 28 U.S.C. § 2244(b). Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
Mr. Deem stresses in his objections that he is claiming actual innocence, and he argues that he
should be permitted to proceed with his petition in light of McQuiggin v. Perkins, 569 U.S. ___,
133 S. Ct. 1924 (2013). He correctly observes that the Supreme Court found that a claim of actual
innocence serves as a “gateway” through which a petitioner may pass with respect to a petition
that would otherwise be dismissed as time-barred. Id. at ___, 133 S. Ct. at 1928. The issue of
whether a petition is time-barred is not the same as the question of whether a petition is second or
successive.

The Fifth Circuit has found that McQuiggin does not permit a “petitioner to

circumvent the statutory restrictions of § 2244(b)(1) and (2) upon a showing of ‘actual
innocence.’” In re Warren, 537 F. App’x 457, 457-58 (5th Cir. 2013). See also Blanton v. Davis,
688 F. App’x 260, 261 (5th Cir. 2017) (“His contention that he may pursue federal habeas relief
on account of actual innocence is unavailing.”). Mr. Deem must still receive permission from the
Fifth Circuit to file a second or successive petition based on actual innocence. The petition should
be dismissed for lack of subject matter jurisdiction.
The Report of the Magistrate Judge, which contains her proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration, and
having made a de novo review of the objections raised by Mr. Deem to the Report, the court is of
the opinion that the findings and conclusions of the Magistrate Judge are correct, and Mr. Deem’s
objections are without merit. Therefore, the court adopts the findings and conclusions of the
Magistrate Judge as the findings and conclusions of the court. It is accordingly

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ORDERED that the petition for a writ of habeas corpus is DISMISSED without prejudice
for lack of subject matter jurisdiction. A certificate of appealability is DENIED. All motions
not previously ruled on are DENIED. It is finally
ORDERED that the Clerk of Court shall return unfiled any new petitions for a writ of
habeas corpus submitted by Mr. Deem regarding his conviction unless he shows he has received
permission from the Fifth Circuit to file it.
So ORDERED and SIGNED this 27 day of September, 2017.

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Ron Clark, United States District Judge

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