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United States of America v. Stephen Marc O'berry

July 9, 2012


The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court


Before the Court is defendant Stephen O'Berry's motion for writ of error coram nobis filed on April 18, 2012. See Docket No. 126. The Government filed a brief in opposition to the motion on April 26, 2012. See Docket No. 127. O'Berry filed a reply brief on May 14, 2012. See Docket No. 128. The Court denies O'Berry's motion for the reasons set forth below.


In 2006, a jury convicted Stephen O'Berry of receipt and possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(2), (a)(4)(B), (b)(1), and (b)(2). See Docket Nos. 1 and 49. On November 10, 2006, O'Berry was sentenced to a prison term of 63- months on the possession count and 63-months on the receipt count, to run concurrently. See Docket No. 72. The Court ordered O'Berry to pay a $200 special assessment, $100 for each count. O'Berry moved unsuccessfully for a judgment of acquittal. See Docket Nos. 62 and 65. He then appealed to the Eighth Circuit Court of Appeals asserting the evidence was insufficient to support the jury's verdict. The Eighth Circuit affirmed the judgment in an unpublished opinion. See Docket No. 103. It is undisputed that O'Berry failed to raise a double jeopardy defense to the charges at trial or on appeal.

O'Berry completed the prison term and began to serve time on supervised release. While on supervised release, a probation officer discovered images depicting child pornography on his mobile telephone. On February 23, 2011, the Court revoked O'Berry's supervised release, and he was sentenced to an additional 3-months in prison and 36-months supervised release, extending his 2006 original sentence. See Docket No. 123.

Based on the same images, O'Berry was separately charged with receipt of child pornography. See Case No. 1:11-cr-041, Docket No. 1. He pled guilty to the charge. On August 22, 2011, the Court sentenced O'Berry to 180-months in prison to run concurrent with the 3-month revocation sentence, and 180-months supervised release to run concurrent with the revocation sentence. See Case No. 1:11-cr-041, Docket No. 26. O'Berry is currently an inmate in Federal Correctional Institution (FCI) Sandstone in Minnesota.

On February 17, 2011, the Eighth Circuit, as a matter of first impression, held that possession of child pornography was a lesser included offense of receipt of child pornography under 18 U.S.C. § 2252. United States v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011). The Eighth Circuit held that the Fifth Amendment of the United States Constitution's Double Jeopardy clause prohibits a conviction of possession and receipt of the same images depicting child pornography.

On April 18, 2012, O'Berry filed an "Application for Writ of Error Coram Nobis Filed Pursuant to Title 28 U.S.C. § 1651(a)." See Docket No. 126. O'Berry contends he is entitled to relief based on Muhlenbruch because the Government relied on the same images to support his convictions for possession and receipt of child pornography back in 2006. See Docket No. 126. He specifically requests "that this Honorable Court grants his Application for Writ of Error Coram Nobis, vacate his conviction on the lesser count of Possession of Child Pornography, refund his excess $100 special assessment fee, and grant whatever other relief the Court deems appropriate."

O'Berry also filed a motion for discovery, seeking to obtain material concerning his convictions. See Docket No. 129.


A writ of error coram nobis provides relief from the most fundamental errors in criminal proceedings in circumstances where the defendant has completely served an invalid sentence. United States v. Morgan, 346 U.S. 502 (1954). The "extraordinary remedy [is to be used] only under circumstances compelling such action to achieve justice." Morgan, 346 U.S. at 511. The writ provides a remedy after a person has served their criminal sentence because "[a]lthough the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, [and] civil rights may be affected." Id. at 512-13. A balance exist between the strong policy favoring finality in criminal matters, and a recognition that there must be a vehicle to correct errors "of the most fundamental character[.]" Id. at 509 n.15. Accordingly, "[i]t is presumed the proceedings were correct and the burden rests on the accused to show otherwise." Id. at 512.


Before addressing the merits of O'Berry's petition, the Court must determine whether he is procedurally barred from seeking a writ of error coram nobis because he is a federal inmate.

The All Writs Act [of which the writ of error coram nobis is granted] is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is ...

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