Lee v. United States of America
MEMORANDUM OPINION as more fully set out therein. Signed by Judge C Lynwood Smith, Jr on 10/5/2018. (AHI)
2018 Oct-05 PM 02:46
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
UNITED STATES OF AMERICA,
This action is before the court on pleadings that have been recharacterized as
a motion to vacate, set aside, or correct sentence filed by Christopher Lee pursuant
to 28 U.S.C. § 2255.1
I. BACKGROUND AND PROCEDURAL HISTORY
Christopher Lee was sentenced by this court on October 28, 2009, to
imprisonment for a term of 195 months following his plea of guilty to one count of
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).2
A violation of that statute generally is punishable by a maximum sentence of ten years
imprisonment. See 18 U.S.C. § 924(a)(2). In Lee’s case, however, his sentence was
See doc. no. 1 in the present case: i.e., no. 7:16-cv-8038-CLS.
See doc. no. 16 in case no. 7:08-cr-297-CLS-TMP (Judgment in a Criminal Case (For
Offenses Committed On or After November 1, 1987)).
enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”),
which provides, in pertinent part, that:
In the case of a person who violates section 922(g) of this title and
has three previous convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious drug offense, or
both, committed on occasions different from one another, such person
shall be fined under this title and imprisoned not less than fifteen years,
and, notwithstanding any other provision of law, the court shall not
suspend the sentence of, or grant a probationary sentence to, such person
with respect to the conviction under section 922(g).
18 U.S.C. § 924(e)(1) (emphasis supplied). On the date of sentencing by this court,
Lee had three previous convictions under Alabama law for first degree unlawful
possession of marijuana under Alabama law: a crime that is defined by federal law
as a “serious drug offense.”3
Lee appealed his sentence, and the Eleventh Circuit Court of Appeals
dismissed the appeal on February 9, 2010.4 No further proceedings occurred for
nearly four years — i.e., until January 3, 2014, when Lee submitted to this court a
petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, challenging his two
2001 convictions in the Tuscaloosa County Circuit Court for unlawful possession of
marijuana and unlawful possession of a controlled substance.5 That petition was
See doc. no. 14 in case no. 7:08-cr-297-CLS-TMP (Pre-Sentence Investigation Report), at
See doc. no. 23 in case no. 7:08-cr-297-CLS-TMP (Eleventh Circuit Order of Dismissal).
See doc. no. 1 in case no. 7:14-cv-0012-VEH-HGD.
given case number 7:14-cv-0012-VEH-HGD, and assigned to Judge Virginia
Emerson Hopkins. Lee filed a second petition for habeas corpus relief pursuant to
28 U.S.C. § 2254 on December 1, 2014, challenging his 1998 conviction in the
Tuscaloosa County Circuit Court on two counts of unlawful possession of marijuana.6
That petition was given case number 7:14-cv-2309-RDP-SGC, and assigned to Judge
R. David Proctor.
Judge Hopkins — the jurist to whom the first of Lee’s § 2254 petitions was
assigned — entered an order on February 19, 2015, suggesting that Lee’s two § 2254
petitions should be consolidated and re-characterized as falling under 28 U.S.C. §
2255. Judge Hopkins reasoned that
the pending petitions attack the state court convictions that served to
enhance petitioner’s current federal sentence. However, a petition under
§ 2254 is not the appropriate vehicle to challenge these prior state court
convictions because “a petitioner who challenges an expired state
sentence that was used to enhance his current federal sentence must
bring his suit under 28 U.S.C. § 2255.” Means v. Alabama, 209 F.3d
1241, 1242 (11th Cir. 2000). Accordingly, it appears the two pending
§ 2254 petitions are due to be consolidated and re-characterized as a
single motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255. Once re-characterized, the § 2255 motion should be
filed in petitioner’s federal criminal case, United States of America v.
Lee, 7:08-cr-0297-CLS-RRA, and adjudicated by the sentencing court.
Doc. no. 15 in case no. 7:14-cv-0012-VEH-HGD. Judge Hopkins also advised Lee
that she had “serious concerns about the viability of his claims,” because the prior
See doc. no. 1 in case no. 7:14-cv-2309-RDP-SGC.
convictions used to enhance Lee’s federal sentence were no longer open to direct or
collateral attack in their own right, and also because it appeared that any § 2255
motion would be time-barred.7
to the consolidation and re-
characterization of his § 2254 petitions on March 9, 2015,8 but Judge Hopkins was
not persuaded by his objections. Instead, she entered an order on May 11, 2016,
directing the Clerk of Court
to re-characterize these matters as a single § 2255 motion, to file all the
pleadings and orders from each of these cases into a new file and close
both of these actions, and to assign the § 2255 file to the Honorable C.
Lynwood Smith, Jr., the federal judge who sentenced petitioner.
Doc. no. 1 in the present case, no. 7:16-8038-CLS, at 2; doc. no. 18 in case no. 7:14cv-0012-VEH-HGD; doc. no. 7 in case no. 7:14-cv-2309-RDP-SGC.
Lee moved for reconsideration of the consolidation and re-characterization
decision, but Judge Hopkins denied that motion on May 24, 2016.9 Lee also appealed
Doc. no. 15 in case no. 7:14-cv-0012-VEH-HGD, at 4-5; doc. no. 4 in case no. 7:14-cv2309-RDP-SGC, at 4-5. Lee was allowed twenty-one (21) days to either object to the
re-characterization of his petitions as a § 2255 motion, amend his petitions, or advise the court
whether he would prefer to withdraw the petitions altogether. Doc. no. 15 in case no.
7:14-cv-0012-VEH-HGD, at 4; doc. no. 4 in case no. 7:14-cv-2309-RDP-SGC, at 4.
Doc. no. 16 in case no. 7:14-cv-0012-VEH-HGD; doc. no. 5 in case no. 7:14-cv-2309-RDP-
See doc. nos. 19 & 20 in case no. 7:14-v-0012-VEH-HGD (Motion for Reconsideration and
Judge Hopkins’s decision, but the Eleventh Circuit Court of Appeals dismissed the
appeal for lack of jurisdiction on November 7, 2016.10
Lee did not submit any additional arguments in support of his claims after they
were consolidated, re-characterized as based upon § 2255, and reassigned to the
undersigned, but he did file a motion for appointment of counsel and request for a
copy of the docket sheet on February 9, 2017.11 Lee received a copy of the docket
sheet, but his request for appointment of counsel remains pending. The United States
filed an opposition to Lee’s re-characterized § 2255 motion on September 17, 2018.12
Challenge of Prior Convictions
Lee’s pleadings attempt to undermine his enhanced federal sentence by
attacking the validity of the prior state court convictions that served as the foundation
for the enhancement. Such an attack is not within the permissible scope of a § 2255
motion. As the Supreme Court held in Daniels v. United States, 532 U.S. 374 (2001):
Our system affords a defendant convicted in state court numerous
opportunities to challenge the constitutionality of his conviction. He
may raise constitutional claims on direct appeal, in postconviction
proceedings available under state law, and in a petition for a writ of
See doc. nos. 21 & 27 in case no. 7:14-v-0012-VEH-HGD (Notice of Appeal and Order
See doc. no. 3 in the present case, no. 7:16-cv-8038-CLS.
See doc. no. 8 in the present case, no. 7:16-cv-8038-CLS (Government’s Opposition to
Lee’s Section 2255 Motion).
habeas corpus brought pursuant to 28 U.S.C. § 2254 (1994 ed. and
Supp. V). See generally 1 J. Liebman & R. Hertz, Federal Habeas
Corpus Practice and Procedure § 5.1.a (3d ed. 1998). These vehicles for
review, however, are not available indefinitely and without limitation.
Procedural barriers, such as statutes of limitations and rules concerning
procedural default and exhaustion of remedies, operate to limit access
to review on the merits of a constitutional claim. See, e.g., United States
v. Olano, 507 U.S. 725, 731, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)
(“‘No procedural principle is more familiar to this Court than that a
constitutional right . . . may be forfeited in criminal as well as civil cases
by the failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it’” (quoting Yakus v. United States,
321 U.S. 414, 444, 64 S.Ct. 660, 88 L. Ed. 834 (1944))). One of the
principles vindicated by these limitations is a “presumption deeply
rooted in our jurisprudence: the ‘presumption of regularity’ that attaches
to final judgments, even when the question is waiver of constitutional
rights.” Parke[ v. Raley, 506 U.S. 20, 29 (1992)].
Thus we have held that if, by the time of sentencing under the
ACCA, a prior conviction has not been set aside on direct or collateral
review, that conviction is presumptively valid and may be used to
enhance the federal sentence. See Custis[ v. United States], 511 U.S.[
485, 497 (1994)]. This rule is subject to only one exception: If an
enhanced federal sentence will be based in part on a prior conviction
obtained in violation of the right to counsel, the defendant may
challenge the validity of his prior conviction during his federal
sentencing proceedings. Id., at 496, 114 S. Ct. 1732. No other
constitutional challenge to a prior conviction may be raised in the
sentencing forum. Id., at 497, 114 S. Ct. 1732.
After an enhanced federal sentence has been imposed pursuant to
the ACCA, the person sentenced may pursue any channels of direct or
collateral review still available to challenge his prior conviction. In
Custis, we noted the possibility that the petitioner there, who was still
in custody on his prior convictions, could “attack his state sentences [in
state court] or through federal habeas review.” Ibid. If any such
challenge to the underlying conviction is successful, the defendant may
then apply for reopening of his federal sentence. As in Custis, we
express no opinion on the appropriate disposition of such an application.
If, however, a prior conviction used to enhance a federal sentence
is no longer open to direct or collateral attack in its own right because
the defendant failed to pursue those remedies while they were available
(or because the defendant did so unsuccessfully), then that defendant is
without recourse. The presumption of validity that attached to the prior
conviction at the time of sentencing is conclusive, and the defendant
may not collaterally attack his prior conviction through a motion under
§ 2255. A defendant may challenge a prior conviction as the product of
a Gideon violation in a § 2255 motion, but generally only if he raised
that claim at his federal sentencing proceeding. See United States v.
Frady, 456 U.S. 152, 167-168, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982)
(holding that procedural default rules developed in the habeas corpus
context apply in § 2255 cases); see also Reed v. Farley, 512 U.S. 339,
354-355, 114 S. Ct. 2291, 129 L. Ed. 2d 277 (1994).
Daniels, 532 U.S. at 381-83 (emphasis supplied to second and final paragraphs, first
two alterations supplied, third alteration and ellipsis in original).
Here, the prior state convictions used to enhance Lee’s federal sentence are no
longer open to either direct or collateral attack.
Lee unsuccessfully pursued
challenges to those convictions in the Alabama trial and appellate courts.13 Therefore,
those prior convictions are conclusively presumed to be valid, and Lee cannot
collaterally challenge them through a motion under § 2255.
See doc. no. 7 in case no. 7:14-v-0012-VEH-HGD (Respondents’ Answer to Petition for
Writ of Habeas Corpus), at 2-4 (summarizing the procedural history of Lee’s state court challenges).
Even if Lee’s § 2255 motion were otherwise permissible, it was not timely
filed. Such a motion must be filed within one year of the latest of the following
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was initially recognized
by the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
28 U.S.C. § 2255(f ).
Lee’s conviction and sentence became final no later than May 10, 2010, ninety
days after the Eleventh Circuit dismissed his appeal on February 9, 2010. See Clay
v. United States, 537 U.S. 522, 532 (2003) (“We hold that, for federal criminal
defendants who do not file a petition for certiorari with this Court on direct review,
§ 2255’s one-year limitation period starts to run when the time for seeking such
review expires.”); Michel v. United States, 519 F.3d 1267, 1268 n.1 (11th Cir. 2008)
(“A petition for writ of certiorari must be filed within 90 days of the day the appellate
court’s judgment was entered.”) (citing Sup. Ct. R. 13). Because that was more than
one year before Lee filed his first habeas petition on January 3, 2014, his petition,
which has been recharacterized as a motion under § 2255, is untimely under §
2255(f)(1). There also is no indication that Lee was prevented by governmental action
from filing a petition or motion on an earlier date, that the right he asserts was newly
recognized by the Supreme Court, or that he has discovered new facts to support his
claim. Consequently, his motion cannot be considered timely under § 2255(f)(2), (3),
For all the foreging reasons, Lee is not entitled to relief pursuant to 28 U.S.C.
§ 2255. An appropriate final judgment will be entered contemporaneously herewith.
DONE and ORDERED this 5th day of October, 2018.
United States District Judge
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