Lee v. United States of America

Filing 17

OPINION, MEMORANDUM AND ORDER re: 1 ORDERED that the Motion to Vacate, Set aside orCorrect Sentence, [Doc. 1], is DENIED. FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right. A separate judgment is entered this same date.. Signed by District Judge Henry E. Autrey on 12/10/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTOPHER JAMES LEE,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:10CV578 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Movant’s Motion under 28 U.S.C. § 2255
by a Person in Federal Custody, [Doc. No. 1]. Pursuant to this Court’s Order, the
government has responded to the motion to vacate. For the reasons set forth
below, the Motion is denied without a hearing.
Movant’s Claims
Movant makes the following claims:
Ground One: The District Court failed to provide adequate reasons for its
decision to impose consecutive Section 1028A sentences. Also, that the Court
incorrectly calculated the restitution amount.
Ground Two: Trial counsel was ineffective; Plea Agreement is void; Restitution
order miscalculation; Number of Victims was miscalculated; Actions did not meet
statutory definition of offenses charged; Criminal History Score miscalculated;

Sentence was unreasonable based upon USSG Policy Statements.
Facts and Background
On February 23, 2006, Movant was indicted by a federal grand jury which
charged Movant with 25 counts of bank fraud in violation of 18 U.S.C. § 371and
11 counts aggravated identity theft, in violation of 18 U.S.C. § 1028A. Movant
plead guilty, pursuant to a written plea agreement on June 12, 2006. The
government dismissed 20 of the bank fraud counts and 6 of the aggravated identity
theft counts in exchange for Movant’s plea to 5 counts of bank fraud and 5 counts
of aggravated identity theft. The probation office prepared a presentence
investigation report (PSR) to which Movant filed objections.
The Court sentenced Movant to 118 months incarceration, five years
supervised release, and restitution in the amount of $58,217.85. Movant filed his
notice of appeal on November 20, 2007. On October 29, 2008, the Court of
Appeals for the Eighth Circuit affirmed the Court’s sentence.
Standards for Relief Under 28 U.S.C. 2255
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a
sentence imposed against him on the ground that “the sentence was imposed in
violation of the Constitution or law of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
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the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255. Claims brought under § 2255 may also be limited by procedural
default. A Movant “cannot raise a nonconstitutional or nonjurisdictional issue in a
§ 2255 motion if the issue could have been raised on direct appeal but was not.”
Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even
constitutional or jurisdictional claims not raised on direct appeal cannot be raised
collaterally in a § 2255 motion “unless a petitioner can demonstrate (1) cause for
the default and actual prejudice or (2) actual innocence.” United States v. Moss,
252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). Claims based on a federal statute or rule, rather than on a specific
constitutional guarantee, “can be raised on collateral review only if the alleged
error constituted a ‘fundamental defect which inherently results in a complete
miscarriage of justice.’” Reed v. Farley, 512 U.S. 339, 354 (1994)(quoting Hill v.
United States, 368 U.S. 424, 477 n. 10 (1962)).
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “unless the motion, files and records of the case conclusively show that the
prisoner is entitled to no relief.” Shaw v. United States, 24 F.3d 1040, 1043 (8th
Cir. 1994)(citing 28 U.S.C. § 2255). Thus, a “[movant] is entitled to an
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evidentiary hearing ‘when the facts alleged, if true, would entitle [movant] to
relief.’” Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996)(quoting Wade v.
Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim
“without an evidentiary hearing if the claim is inadequate on its face or if the
record affirmatively refutes the factual assertions upon which it is based.” Shaw,
24 F.3d at 1043. Since the Court finds that Movant’s remaining claims can be
conclusively determined based upon the parties’ filings and the records of the
case, no evidentiary hearing will be necessary.
Discussion
Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner’s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal.
United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648,
658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail
on an ineffective assistance of counsel claim, a convicted defendant must first
show counsel’s performance “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
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establish prejudice by showing “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a “showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Review of
counsel’s performance by the court is “highly deferential,” and the Court
presumes “counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. The court does not “second-guess” trial strategy or
rely on the benefit of hindsight, id., and the attorney’s conduct must fall below an
objective standard of reasonableness to be found ineffective, United States v.
Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the
alleged deficient performance) would have been rejected, counsel's performance is
not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
“eliminate the distorting effects of hindsight” by examining counsel’s performance
from counsel’s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
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was prejudiced by counsel’s error, and “that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. When determining if
prejudice exists, the court “must consider the totality of the evidence before the
judge or jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir.
2006).
The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice
prong, however, is different in the context of guilty pleas. Instead of merely
showing that the result would be different, the defendant who has pled guilty must
establish that “there is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.
Ground One
Movant argues that the Court failed to provide adequate reasons for its
decision to impose consecutive Section 1028A sentences. Movant also argues that
the Court incorrectly calculated the restitution amount.
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The United States Appellate Court for the Eighth Circuit addressed this
ground in its Opinion of October 29, 2008. The Appellate Court found that this
Court did not abuse its discretion in running several of Movant’s counts
consecutively to each other. Moreover, Movant waived all of his rights to appeal
non-jurisdictional issues and the right to appeal his sentence, directly or
collaterally on any other ground. Ground One is without merit, pursuant to
Movant’s plea agreement.
Ground Two
Movant argues that trial counsel was ineffective; Plea Agreement is void;
Restitution order miscalculation; Number of Victims was miscalculated; Actions
did not meet statutory definition of offenses charged; Criminal History Score
miscalculated; Sentence was unreasonable based upon USSG Policy Statements.
Movant presents vague and conclusory arguments in support of his motion.
He argues that counsel was ineffective because he has subsequently learned that
several things were askew in his plea agreement that were the product of bullying
by the government and failure of his trial counsel to explain these matters to him.
However, the record before the Court belies Movant’s position. Throughout the
course of the proceedings, Movant acknowledged that he committed the crimes
charged, he admitted that he entered into the plea voluntarily and was not forced
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or coerced to do so. Movant admits that he reviewed the government’s evidence
and that he discussed the case and all possible defenses and witnesses with his
counsel. Indeed, counsel’s affidavit reaffirms the sworn statements made by
Movant to the Court and the acknowlegements Movant made in the Plea
Agreement.
The record before the Court, including counsel’s affidavit establish that
Movant’s plea was well advised, it was not the result of “bullying” by the
government and was a fully informed, voluntary agreement entered into by
Movant. Movant has failed to establish that counsel’s representation fell below an
objective standard of reasonableness.
Conclusion
Based upon the foregoing analysis, Movant’s claims of unreasonable
sentence and ineffective assistance of counsel fail to afford him relief.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). A substantial showing of the denial of a constitutional right requires
that “issues are debatable among reasonable jurists, a court could resolve the
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issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997). Based on the record, and the law as discussed
herein, the Court finds that Movant has not made a substantial showing of the
denial of a constitutional right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. 1], is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 10th day of December, 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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