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Lee v. Rivera

United States District Court, E.D. Arkansas, Eastern Division

March 13, 2017

SEAN LEE PETITIONER
v.
C.V. RIVERA, Warden, FCI Forrest City RESPONDENT

PROPOSED FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following recommended disposition has been sent to United States District Judge James M. Moody, Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         Sean Lee (“Lee”) is an inmate in federal custody after pleading guilty in 2005 to using a computer/telephone system for the purpose of persuading a minor to engage in sexual acts. See 18 U.S.C. § 2422(b). In June 2006 Lee was sentenced by the United States District Court, Western District of Tennessee, to 188 months' imprisonment, with supervised release for life. This sentence was based in part upon the finding in the Pre-Sentence Investigation Report that Lee had four 2004 convictions in Tennessee state court for attempted aggravated sexual battery. Lee appealed the conviction to the United States Court of Appeals, Sixth Circuit, challenging one of the conditions of release. This appeal was dismissed without prejudice, as the Court held Lee's challenge was not ripe for determination. Docket entry no. 13-2.

         In 2013, Lee filed a 28 U.S.C. § 2255 motion to vacate his sentence with the trial court. He alleged his counsel was ineffective, he was actually innocent, and the prosecutor misled the grand jury. The trial court denied relief in an Order dated March 4, 2015, finding Lee failed to comply with the applicable statute of limitation, and failed to demonstrate the limitation period should be equitably tolled. Docket entry no. 13-5. The trial court explicitly found Lee's claim of actual innocence was “illusory.” Id. The trial court denied Lee a certificate of appealability and certified that any appeal would not be taken in good faith. In 2016, Lee asked the trial court for leave to appeal its decision. Citing the March 2015 Order, the trial court denied Lee's request. Docket entry no. 13-6. The Court of Appeals also denied Lee's request for a certificate of appealability. Docket entry no. 13-8.

         Lee later sought permission from the United States Court of Appeals, Sixth Circuit, to file a second or successive motion to vacate his sentence pursuant to 28 U.S.C. § 2255. This request was denied, based upon a finding that Lee did not show that a new constitutional law, deemed retroactively applicable on collateral review by the Supreme Court, applied to his case. 28 U.S.C. § 2255(h).[1] Docket entry no. 13-7. The Court noted Lee was not sentenced under the Armed Career Criminal Act (“ACCA”)[2] or under USSG § 4B1.2(a), the career offender guideline. Id.

         Lee, who is in custody at the Federal Correctional Complex in Forrest City, Arkansas, filed this petition for relief on October 31, 2016. The petition seeks relief pursuant to 28 U.S.C. § 2241, alleging that “new, intervening changes” in the law render his sentence invalid. Docket entry no. 2, page 2. He argues that he “is therefore factually innocent of his increased sentence under new law and his illegal sentence results in a fundamental miscarriage of justice.” Id.

         In his response, respondent C.V. Rivera (“Rivera”) contends the petition should be dismissed because Lee should have pursued his relief in a § 2255 petition rather than a § 2241 petition. Typically, § 2241 petitions address either the execution of a sentence or the conditions of confinement, not the imposition of a sentence. Cain v. Petrovsky, 798 F.2d 1194, 1198 n. 3 (8th Cir. 1986). See also United States v. Lurie, 207 F.3d 1075 (8th Cir. 2000). According to Lurie, § 2241 relief may be pursued only if Lee demonstrates § 2255 relief is inadequate or ineffective.

         The Lurie Court addressed the issue of the inadequacy or ineffectiveness of section 2255 relief:

While courts have not thoroughly defined what is meant by “inadequate or ineffective, ” recent cases from our sister circuits make clear that more is required than demonstrating that there is a procedural barrier to bringing a § 2255 motion. . . (citation omitted). Specifically, the § 2255 motion is not inadequate or ineffective merely because § 2255 relief has already been denied . . . (citations omitted), or because petitioner has been denied permission to file a second or successive § 2255 motion, . . . (citations omitted), or because a second or successive § 2255 has been dismissed, . . . (citation omitted), or because petitioner has allowed the one year statute of limitations and/or grace period to expire.

         The Court further noted that Lee bears the burden of showing § 2255 relief inadequate or ineffective. See also Charles v. Chandler, 180 F.3d 753 (6th Cir. 1999), and DeSimone v. Lacy, 805 F.2d 321 (8th Cir. 1986). The claim Lee raises, an invalid sentence, is a classic challenge to the imposition of a sentence, and is not related to the execution of the sentence or to the conditions of confinement. As such, this claim is typically cognizable in a § 2255 petition filed with the trial court, not in a § 2241 petition filed with this Court, absent Lee's demonstration that § 2255 is inadequate or ineffective.

         When Lee previously sought the permission of the Sixth Circuit Court of Appeals to file a second or successive § 2255 petition, he cited Johnson v. United States, 135 S.Ct. 2551 (2015) as a new rule of constitutional law. The Sixth Circuit Court of Appeals denied the request, finding “Lee was not sentenced in accordance with any provision that could arguably be affected by Johnson.” Docket entry no. 13-7, page 3. Lee did not argue other cases which he now relies upon, i.e., Descamps v. United States, 133 S.Ct. 2276 (2013), Mathis v. United States, 136 S.Ct. 2243, and United States v. Dahl, 833 F.3d 345 (3rd Cir. 2016), in his earlier effort.

         Lee, citing Johnson, Descamps, Mathis, and Dahl, now asks this Court to find § 2255 inadequate or ineffective and proceed to the merits of his § 2241 petition. Lee's circumstances are similar to the petitioners in U.S. ex rel. Perez v. Warden, FMC Rochester, 286 F.3d 1059 (8th Cir. 2002), where petitioners filed a § 2241 petition rather than a request for permission to file a second or successive § 2255 petition. They sought a decrease in their sentences for drug convictions based upon Apprendi v. New Jersey, 530 U.S. 466 (2000), and argued that § 2255 was inadequate or ineffective, thereby opening the door to raising their claims in a § 2241 petition. The Eighth Circuit Court of Appeals addressed this claim:

We believe this argument is flawed because it attributes blame to the wrong source. Perez and Ruotolo contend § 2255 is inadequate or ineffective because it is the impediment to the relief they seek. But this is not so. Their true impediment is Apprendi itself, not the remedy by § 2255 motion. To be more precise, appellants are hamstrung because the Supreme Court has not yet ruled (and indeed may never rule) that Apprendi applies retroactively to past criminal convictions. Neither Perez nor Ruotolo may raise an Apprendi claim in a second § 2255 motion unless and until Apprendi applies ...

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