Lee v. Beasley

          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 (6^th 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 ...