United States District Court, E.D. Arkansas, Eastern Division
FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The
following proposed Findings and Recommendation have 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
The
record reflects that in December of 2005, petitioner Sean
William Lee (“Lee”) pleaded guilty in the United
States District Court for the Western District of Tennessee
(“Western District of Tennessee”) to using a
computer/telephone system for the purposes of persuading a
minor to engage in sexual acts. Because Lee had four prior
convictions from the State of Tennessee for attempted
aggravated sexual battery, he was sentenced as a
“repeat sex offender” to the Federal Bureau of
Prisons (“BOP”) for a term of 188 months
imprisonment. See Docket Entry 1 at CM/ECF 32. He
was also sentenced to a lifetime on supervised release. He
appealed his sentence and challenged one of the conditions of
his supervised release. The United States Court of Appeals
for the Sixth Circuit (“Sixth Circuit”) dismissed
the appeal without prejudice because his claim was not ripe
for review. See United States v. Lee, 502 F.3d 447
(6th Cir. 2007).
Lee
thereafter began a series of legal proceedings in the Western
District of Tennessee and the United States District Court
for the Eastern District of Arkansas (“Eastern District
of Arkansas”) in which he challenged his guilty plea
and sentence. In July of 2013, he filed a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. 2255
in the Western District of Tennessee. See Docket
Entry 1 at CM/ECF 32. In the motion, he challenged the
effectiveness of his trial attorney's representation and
the prosecutor's conduct before the grand jury. Lee also
maintained that he is actually innocent. The motion was
denied because it was not timely, and he failed to present a
valid reason for tolling the limitations period. The Sixth
Circuit subsequently denied a certificate of appealability,
and the United States Supreme Court denied his request for a
writ of certiorari.
In
March of 2015, Lee filed a second motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. 2255 in
the Western District of Tennessee but withdrew it. He then
filed a motion for authorization with the Sixth Circuit.
See Docket Entry 1 at CM/ECF 32. In the motion, he
asked that he be allowed to file a second or successive
motion pursuant to 28 U.S.C. 2255 on the ground that his
sentence was unconstitutional in light of Johnson v.
United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d
569 (2015). See Docket Entry 1 at CM/EF 32. The
motion for authorization was denied.
In
October of 2016, Lee filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. 2241 in the Eastern District of
Arkansas. See Lee v. Rivera, 2:16-cv-00144 JM/PSH.
In the petition, he maintained that a change in the law
rendered his sentence invalid. United States District Judge
James M. Moody, Jr., dismissed the petition because Lee did
not obtain permission from the Sixth Circuit to file the
petition. The United States Court of Appeals for the Eighth
Circuit summarily affirmed, and the United States Supreme
Court denied his request for a writ of certiorari. See
Lee v. Rivera, 2017 WL 1217222 (E.D.Ark. 2017), report
and recommendation approved, 2017 WL 1217164 (E.D.Ark. 2017),
aff'd, 2017 WL 4535950 (8th Cir. 2017),
cert. denied sub nom., Lee v.
Beasley, ___ U.S. ___, 138 S.Ct. 2662, 86 USLW 3629
(2018).
In
November of 2016, Lee filed a second petition for writ of
habeas corpus pursuant to 28 U.S.C. 2241 in the Eastern
District of Arkansas. See Lee v. Rivera,
2:16-cv-00162 JM/PSH. In the petition, he maintained,
inter alia, that his guilty plea should be set aside
because he was not informed he was pleading guilty to a crime
of violence, thereby subjecting him to the notification
requirements of 18 U.S.C. 4042(b). Judge Moody dismissed the
petition because Lee failed to pursue his administrative
remedies.
In
2017, Lee filed another motion for authorization with the
Sixth Circuit. See Docket Entry 1 at CM/ECF 33. In
the motion, he asked that he be allowed to file a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. 2255 because he is no longer a repeat offender. The
Sixth Circuit denied the motion for authorization.
In
October of 2017, Lee filed a motion to vacate the judgment of
conviction and withdraw his guilty plea in the Western
District of Tennessee. See Docket Entry 1 at CM/ECF
14. In the motion, Lee maintained the following:
... [Lee] has “new evidence” that could not have
been discovered previously, permitting the courts to consider
his proposed successive 2255 motion under 28 U.S.C.
2255(f)(4). Specifically, Lee claims that he was only
recently informed that federal law requires him to register
as a sex offender upon his release from prison in December
2018 and that the failure to notify him of this statutory
requirement at his plea hearing or at his sentencing hearing
violated his right to due process. ...
See Docket Entry 1 at CM/ECF 33. United States
District Judge J. Daniel Breen construed the motion as a
second or successive motion pursuant to 28 U.S.C. 2255 and
transferred it to the Sixth Circuit for its consideration.
The Sixth Circuit denied the motion in April of 2018 and gave
the following reasons for doing so:
Lee must obtain this court's [i.e., the Sixth
Circuit's] permission to file a second or successive
motion to vacate his sentence under 2255. ... He must make a
prima facie showing: 1) that there is newly discovered
evidence that, if proven and viewed in light of the evidence
as a whole, sufficiently establishes that no reasonable
factfinder would have found him guilty; or 2) that a new rule
of constitutional law applies to his case which the Supreme
Court has made retroactive to cases on collateral review. ...
As the government points out, Lee's claim regarding the
...