Lee v. USA

Filing 8

MEMORANDUM AND ORDER - Accordingly,IT IS HEREBY ORDERED that George Lee's motion to vacate, set aside or correct his sentence under 28 U.S.C. Section 2255 1 is denied. IT IS FURTHER ORDERED that this Court will not issue a certificate of appealability, as Lee has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Catherine D. Perry on October 23, 2018. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GEORGE LEE,
Movant,

v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:17 CV 779 CDP

MEMORANDUM AND ORDER
George Lee seeks to vacate, set aside or correct his sentence under 28 U.S.C.
§ 2255. Lee was convicted by a jury of conspiracy to distribute cocaine and
marijuana (Count I), conspiracy to launder the proceeds of drug trafficking (Count
II), and possession of a firearm in furtherance of a drug trafficking crime (Count
III). Case No. 4:13 CR 355 CDP. Lee was sentenced to 180 months imprisonment
on Counts I and II and 60 months imprisonment on Count III, to be served
consecutively for an aggregate sentence of 240 months imprisonment. Lee
appealed, and the Eighth Circuit Court of Appeals affirmed his conviction and
sentence. United States v. Haire, 806 F.3d 991 (8th Cir. 2015).

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Lee then filed this timely § 2255 motion pro se, raising the following
claims:
1) Counsel was ineffective for failing to challenge the seizure of the gun and
drug paraphernalia from his home;
2) Counsel was ineffective for failing to investigate and prepare for trial
because he presented no witnesses or evidence at trial; and
3) the wiretaps should have been suppressed.
Lee’s ineffective assistance of counsel claims are conclusively refuted by the trial
record. The evidence against him was very strong, as set forth in great detail in the
appellate opinion affirming his conviction and sentence. Lee’s remaining claim is
procedurally defaulted. I will deny Lee’s motion without an evidentiary hearing
for the reasons that follow.
Background Facts
The Eighth Circuit Court of Appeals summarized the evidence against Lee
and his co-defendants as follows:
In November 2011 DEA agents learned that Juan Williams was supplying
cocaine to a drug dealer in St. Louis. In January 2012 postal inspectors
intercepted a package sent from Houston to St. Louis containing 3 kilograms
of cocaine and arrested the intended recipient, Carl King. In King’s
possession were two phones that had been in contact with cell phones used
by Williams. DEA agents applied for and received a Title III warrant to
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Respondent’s argument that the motion is untimely is denied as the record conclusively
demonstrates that the motion was signed and verified by Lee under penalty of perjury and
deposited in the prison mail system on March 10, 2017 [Doc. # 3 at 12], which, as respondent
admits, was within the one-year limitations period. See Moore v. United States, 173 F.3d 1131,
1135 (8th Cir. 1999) (prison mailbox rule applies to § 2255 motions).
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wiretap Williams’s phones and later received a warrant to wiretap Lee’s
phone. See 18 U.S.C. § 2518.
During the wiretapped conversations Lee arranged to ship drugs to Williams
and to other distributors in Mississippi and South Carolina. Lee discussed
the price of the cocaine and how much money he was owed. Lee also called
his own suppliers to order cocaine.
In April 2012 the DEA learned from the wiretap that Williams and Jamiel
Johnson were bringing cash from St. Louis to Lee in Houston. The DEA
had local police stop the car. A search of the car revealed a hidden
compartment containing $69,910 in a vacuum sealed plastic bag. Although
police seized the money, Williams and Johnson did not realize it until after
they were released and checked the compartment. Williams called Lee to
discuss the stop and the missing money. Lee in turn called an unnamed man
to ask for advice. Later that month the DEA learned that Lee was mailing a
package to South Carolina. Police obtained a search warrant and intercepted
the package, which contained 3 kilograms of cocaine, crack cocaine, and
marijuana. After the intercept Lee made a phone call to discuss retrieving
the package from the post office, presuming that there was a problem with
the delivery. Johnson testified at trial about other shipments of cocaine and
marijuana that Lee had sent to Williams in exchange for cash. Johnson
personally saw Williams receive a total of over 10 kilograms of cocaine and
over 100 pounds of marijuana from Lee.
In May 2012 Lee and Williams made a series of phone calls about sending
Haire from St. Louis to Houston with “sealed up” money. Williams was to
get him a one way train ticket to Houston, and Lee would purchase a one
way plane ticket back to St. Louis. Williams spelled Haire’s name for Lee
so he could purchase the plane ticket and then called Haire to get his date of
birth. Lee and Williams also discussed giving Haire a phone to use during
the trip. In these conversations, Williams referred to Haire as his uncle or
“Unc,” and said he had “already told him the deal” and that Haire “already
[knew] what's going on.” Lee stated that “Unc 100,” meaning that Haire
was reliable or solid. At trial Johnson identified Haire as Williams’s uncle
and testified that Williams said that he had paid Haire to receive packages of
drugs at Williams’s father’s address.
On June 1, 2012 a DEA agent spotted Haire boarding a train in St. Louis
carrying a black backpack. Early the next morning at the train station in
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Longview, Texas, where passengers bound for Houston transfer to a bus,
DEA officer Chad Lanier saw Haire anxiously looking at a drug sniffing
dog. Lanier stopped Haire as he attempted to board a bus to Houston.
Lanier said he was looking for a possible terrorist, and asked Haire if he was
carrying any narcotics or large sums of currency. Haire said he had a little
bit of money, and pulled a roll of about ten $20 bills out of his pocket.
Lanier asked if he had any more money in his bag and Haire replied, “Yeah,
I do have a little bit of money.” When asked how much, Haire first stated
that he had a few thousand dollars, but then clarified that he had $25,000.
Haire told Lanier that the money was his and that he was going to buy a car.
Lanier obtained Haire’s consent to search his backpack, which contained
clothing and two nested vacuum sealed plastic bags containing rubber
banded stacks of bills totaling $33,530. A canine alerted to an odor of
narcotics on the backpack, and the currency smelled of marijuana when
officers later opened the sealed bags. The DEA seized the currency. After
the dog alerted on the backpack, Haire told Lanier that he smoked marijuana
but did not have any on him. Haire also changed his story about planning to
buy a car, stating that he was going to fly back to St. Louis instead. Later
that day Williams called Lee to report that “they hit Unc” and relayed what
Haire had told him about the stop and seizure.
In February 2013 the DEA obtained a seizure warrant for Lee’s car. When
agents executed the warrant Lee gave them consent to search his house,
where they found marijuana, electronic scales, $5,000 in currency, chemicals
used to dilute cocaine, and several firearms.

Haire, 806 F.3d at 994-95.
Discussion
A. No Evidentiary Hearing is Required
The records before me conclusively demonstrate that Lee has no right to
relief. I will not hold an evidentiary hearing on this matter. “A petitioner is entitled
to an evidentiary hearing on a section 2255 motion unless the motion and the files

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and records of the case conclusively show that he is entitled to no relief.” AnjuloLopez v. United States , 541 F.3d 814, 817 (8th Cir. 2008) (internal quotation marks
omitted). “No hearing is required, however, where the claim is inadequate on its
face or if the record affirmatively refutes the factual assertions upon which it is
based.” Id. (internal quotation marks and citations omitted). The record here
conclusively refutes the claims, so I will not hold an evidentiary hearing.
B. Lee Did Not Receive Ineffective Assistance of Counsel
Lee brings claims of ineffective assistance of trial counsel. The Sixth
Amendment establishes the right of the criminally accused to the effective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To
state a claim for ineffective assistance of counsel, Lee must prove two elements of
the claim. First, he “must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id.
at 687. In considering whether this showing has been accomplished, “judicial
scrutiny of counsel’s performance must be highly deferential.” Id. at 689. The
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. Second, Lee “must show that the deficient performance prejudiced the
defense.” Id. at 687. This requires him to demonstrate “a reasonable probability

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that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. The court need not address both components if
the movant makes an insufficient showing on one of the prongs. Engelen v. United
States, 68 F.3d 238, 241 (8th Cir. 1995). Under these standards, Lee did not
receive ineffective assistance from his attorney.
In his first ground for relief, Lee alleges that his attorney was
constitutionally ineffective because he did not argue for the suppression of
evidence seized from his home. Lee claims he was “bombarded and manipulated
into his home” and, as a result, the consent he gave to search his home was not
voluntary. This claim is summarily rejected as Lee’s attorney made this
argument in pretrial proceedings by filing a motion to suppress evidence seized
from his home. [Doc. #162 in Case No. 4:13 CR 355]. In the motion, counsel
argued that Lee’s consent to search was not voluntary.

After an evidentiary

hearing, United States Magistrate Judge Nannette A. Baker recommended that the
motion to suppress be denied, finding that Lee voluntarily consented to the search.
[Doc. #172 in Case No. 4:13 CR 355]. I adopted Judge Baker’s recommendation
and denied the motion to suppress because I agreed that Lee voluntarily consented
to the search of his home. [Doc. # 188 in Case No. 4:13 CR 355]. In addition to
challenging the admission of the evidence in pre-trial filings, at trial counsel
vigorously cross-examined respondent’s witnesses regarding the search of Lee’s

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home. Counsel cannot be ineffective for failing to re-raise or win a meritless
argument, so Lee’s claim fails as a matter of law. Ground 1 of Lee’s § 2255
motion is denied.
In Ground 2, Lee alleges that his attorney was ineffective for failing to
adequately prepare for trial. Lee complains that his attorney did not “call any
witnesses or present evidence.” Yet Lee does not specify any witnesses he
instructed counsel to call or provide any information about what their alleged
testimony would have been or how their testimony would have assisted his
defense. “Decisions relating to witness selection are normally left to counsel’s
judgment, and this judgment will not be second-guessed by hindsight.” Hanes v.
Dormire, 240 F.3d 694, 698 (8th Cir. 2001) (internal citations and quotation marks
omitted). “Trial counsel has a duty to conduct a reasonable investigation or to
make a reasonable determination that an investigation is unnecessary. When a
claim for ineffective assistance of counsel is alleged on the basis of failing to
investigate or act, the reasonableness of the nonfeasance must be assessed in light
of all circumstances, and a significant degree of deference given to counsel and his
or her professional judgment.” Griffin v. Delo, 33 F.3d 895, 901 (8th Cir. 1994).
Lee’s claim fails because he cannot demonstrate that he was prejudiced by
counsel's failure to investigate or call witnesses. Lee has not provided any
independent evidence as to the identity of any witnesses or what they would have

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allegedly said had they been interviewed or called to testify. See United States v.

Vazquez-Garcia, 211 Fed. Appx. 544, 546 (8th Cir. 2007). He provided no
affidavit from any alleged witness or any other information supporting his claims.
The only information about what the potential testimony of unidentified witnesses
would have been is pure speculation on the part of Lee, which is not enough to
undermine confidence in the outcome of the trial as required by Strickland. See id.
“Recognizing the deferential standard when reviewing the conduct of counsel, [I]
decline to find prejudice in this situation when there is no evidence other than
speculation to support the finding.” Id.
The only evidence Lee specifically identifies that counsel should have
introduced is a video allegedly showing officers “bombarded and manipulated into
his home” during the search of his home. Again, Lee offers nothing more than
self-serving speculation as to the existence and content of this video, which is
insufficient to demonstrate prejudice from any alleged error of counsel. Moreover,
the issue of the voluntariness of Lee’s consent to search his home was thoroughly
litigated by counsel during pretrial proceedings.
Lee also complains generally that counsel was ineffective simply because he
did not put on evidence, choosing instead to mount a defense through vigorous
cross-examination of the respondent’s witnesses. Yet Lee does not identify how
the result of his trial would have been different but for counsel’s alleged errors.

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The evidence of Lee’s guilt was overwhehning. Moreover, Lee’s co-defendant
called no witnesses at trial either, and there was nothing unusual or ineffective
about counsel’s decision to do the same. Lee cannot demonstrate either deficient
performance or resulting prejudice from counsel’s alleged failure to introduce
evidence.
To the extent Lee suggests that his attorney was ineffective for preventing
him from testifying at trial, the claim is conclusively refuted by the record. A
criminal defendant has a constitutional right to testify in his own defense, see Rock
v. Arkansas, 483 U.S. 44, 49 (1987), and only the defendant is empowered to
knowingly and voluntarily waive that right. United States v. Bernloehr, 833 F.2d
749, 751 (8th Cir. 1987). Advice from counsel not to testify is not ineffective
assistance if it might be considered sound trial strategy. See King v. Roper, No.
4:04 CV 1672 CDP, 2005 WL 1518291, at *8 (E.D. Mo. June 24, 2005) (internal
citations and quotation marks omitted).
Here, I clearly and unequivocally addressed the right to testify with Lee on
the record during the trial. Specifically, I held the following exchange with Lee:
THE COURT: Mr. Lee, do you understand you have a right to testify in this
case if you wish to do so?
DEFENDANT LEE: Yes, Your Honor.
THE COURT: And do you understand that although your lawyer can advise
you on whether that's a good idea and what he thinks you should do, it is
actually your decision whether you testify or not? Do you understand that?
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DEFENDANT LEE: Yes, Your Honor.
THE COURT: And without revealing any communications with your
lawyer, have you had enough time to discuss this issue with your lawyer?
DEFENDANT LEE: Yes, Your Honor.
THE COURT: And is it your decision not to testify in this case?
DEFENDANT LEE: Yes, Your Honor.
[Doc. # 317 at 98-99 in Case No. 4: 13 CR 355]. The record conclusively
demonstrates that Lee knowingly waived his right to testify on his own behalf after
being fully advised by the Court of that right, and he cannot contradict his
statements made to me on the record by claiming now that his lawyer somehow
prevented him from testifying. He did not. Lee was fully advised of his right to
testify and chose not to. Lee cannot blame his attorney for a choice he knowingly
made. See United States v. Orr, 636 F.3d 944, 955 (8th Cir. 2011) (rejecting claim
that counsel was ineffective for discouraging defendant from testifying where the
Court engaged defendant in elaborate discussion regarding his right to testify, and
defendant knowingly waived that right). As Lee has failed to show any resulting
prejudice from counsel’s allegedly deficient performance, Ground 2 of Lee’s §
2255 motion fails.

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C. Ground 3 is Procedurally Defaulted
“A collateral challenge may not do service for an appeal.” United States v.
Frady, 456 U.S. 152, 165 (1982). “[N]ormally a collateral attack should not be
entertained if defendant failed, for no good reason, to use another available avenue
of relief.” Poor Thunder v. United States, 810 F.2d 817, 823 (8th Cir. 1987)
(internal citation omitted). If a claim could have been raised on direct appeal but
was not, it cannot be raised in a § 2255 motion unless the movant can show both
(1) a “cause” that excuses the default, and (2) “actual prejudice” resulting from the
errors of which he complains. See Ramey v. United States, 8 F.3d 1313, 1314 (8th
Cir. 1993); Mathews v. United States, 114 F.3d 112, 113 (8th Cir. 1997).2
In Ground 3, Lee argues that the wiretaps should not have been admitted at
trial. This claim is procedurally barred. Although counsel filed a motion to
suppress the contents of electronic surveillance [Doc. # 100 in Case No. 4: 17 CR
355], Lee voluntarily withdrew that motion. [Doc. # 116 in Case No. 4: 17 CR
355]. Lee also knowingly and voluntarily waived his right to file pretrial motions
as well as his right to have a hearing on those motions. [Doc. # 121 Case No. 4: 17
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A movant can also avoid procedural default by demonstrating actual innocence. Johnson v.
United States, 278 F.3d 839, 844 (8th Cir. 2002) (“In order to obtain collateral review of a
procedurally defaulted issue, a § 2255 movant must show either cause and actual prejudice, or
that he is actually innocent.”) (internal quotation marks and citations omitted). Actual innocence
is a strict standard that generally cannot be met “where the evidence is sufficient to support a
conviction on the charged offense.” Id. (internal quotation marks and citation omitted). Where,
as here, the Court of Appeals has found that the evidence was sufficient to support his
conviction, Lee cannot claim actual innocence.

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CR 355]. Having voluntarily waived this issue, Lee cannot raise it here now. As
Lee provides no attempt to allege sufficient cause and prejudice necessary to
overcome the procedural default of this claim, Ground 3 of his § 2255 motion will
be denied.3
D. I Will Not Issue a Certificate of Appealability
As Lee has not made a substantial showing of the denial of a federal
constitutional right, this Court will not issue a certificate of appealability. See Cox

v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878,
882-83 (8th Cir. 1994)) (substantial showing must be debatable among reasonable
jurists, reasonably subject to a different outcome on appeal or otherwise deserving
of further proceedings).
Accordingly,
IT IS HEREBY ORDERED that George Lee’s motion to vacate, set aside
or correct his sentence under 28 U.S.C. § 2255 [1] is denied.

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To the extent Lee attempts to avoid the procedural bar by blaming his attorney, the record
conclusively refutes this claim. Lee appeared before Judge Baker and knowingly withdrew the
motion himself. Moreover, even if this claim could be considered by this Court, it would be
rejected as meritless because the wiretaps were properly obtained and lawfully issued.
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IT IS FURTHER ORDERED that this Court will not issue a certificate of
appealability, as Lee has not made a substantial showing of the denial of a federal
constitutional right.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 23rd day of October, 2018.

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