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United States v. Lee

United States District Court, D. Kansas

July 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TIJUAN A. LEE, Defendant. Civil Action No. 17-2428-KHV

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL United States District Judge

         This matter is before the Court on defendant's Motion For Fed. Rule Of Civ. Pro. 60(b)(6) Reconsideration To Correct Error In [A] 28 U.S.C. § 2255 Proceeding (Doc. #158) filed March 9, 2017, which the Court construes as both a motion to reconsider under Rule 60(b)(6), Fed. R. Civ. P., and a second or successive motion to vacate sentence under 28 U.S.C. § 2255. For reasons stated below, the Court overrules defendant's motion to reconsider and dismisses defendant's motion to vacate for lack of jurisdiction.

         Factual Background

         On October 7, 2010, a grand jury charged defendant with conspiracy to distribute 50 or more grams of crack cocaine (Count 1), being a felon in possession of a firearm (Count 2) and three counts of distribution of crack cocaine (Counts 3-5). Kirk Redmond initially represented defendant. On February 3, 2011, the Court granted defendant's pro se motion to have Redmond withdraw as defense counsel. On February 4, 2011, Carl Cornwell entered an appearance on behalf of defendant. On February 25, 2011, defendant pled guilty to one count of a superseding information which charged him with conspiracy to manufacture, to possess with intent to distribute and to distribute five grams or more of “crack” cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii).

         The initial Presentence Investigation Report (“PSIR”) found defendant responsible for 41.08 grams of crack cocaine and noted that he qualified for a three-level reduction of his offense level for acceptance of responsibility. See PSIR (Doc. #32) filed May 24, 2011, ¶ 19. Defendant therefore had a total offense level of 25 with a criminal history category III for a guideline range of 70 to 87 months. See id., ¶ 77.

         Defendant objected to the drug quantity in the initial PSIR. At the first sentencing hearing, Lakesha Wesley and Tynisha Mays testified that defendant's conduct involved a greater quantity of crack cocaine than the PSR estimated. Defendant testified that he should be held accountable for less than 41.08 grams. Based on the testimony at the hearing, the Court ordered a revised PSIR. The revised PSIR held defendant accountable for 189.78 grams of crack cocaine, removed the reduction for acceptance of responsibility and assessed defendant a two-level enhancement for obstruction of justice. See Amended PSIR (Doc. #41) filed June 30, 2011, ¶¶ 21, 24-28, 34.

         On August 17, 2011, the Court allowed Cornwell to withdraw and appointed Jeffrey Morris to represent defendant. At a hearing on defendant's motion to withdraw his plea of guilty, defendant testified that he has a learning disability and that before the plea hearing, Cornwell did not review with him the superseding information, the plea agreement or the petition to enter a plea of guilty. Defendant testified that Cornwell told him to falsely tell the Court that he had reviewed those documents. Defendant stated that he was confused during the plea hearing and did not understand that the superseding information charged him with conspiracy. Defendant testified that he thought that he was pleading guilty to simple possession. He also asserted that he did not understand the potential effect of relevant conduct on his sentence. The Court found that viewed as a whole, the plea colloquy did not demonstrate that defendant was so confused about the potential sentence as to render his plea unknowing or involuntary. Based on all relevant factors, the Court found that defendant did not show a “fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).

         At sentencing on March 30, 2012, the Court sustained defendant's objection to the two-level enhancement for obstruction of justice. Defendant had a revised total offense level of 36 with a criminal history category III for a guideline range of 235 to 240 months. See Transcript Of Motions And Sentencing (Doc. #106) at 25, 53. The Court sentenced defendant to 235 months. The Tenth Circuit affirmed. See United States v. Lee, 535 F. App'x 677 (10th Cir. Sept. 5, 2013).[1]

         On July 23, 2014, defendant filed a motion to vacate his sentence under 28 U.S.C. § 2255. Defendant's motion asserted that (1) the superseding indictment was defective because it failed to charge an offense; (2) the Court lacked subject matter jurisdiction; (3) Cornwell provided ineffective assistance; (4) the Court imposed an illegal sentence and (5) Morris provided ineffective assistance. On October 15, 2015, the Court overruled defendant's motion and denied a certificate of appealability. See Memorandum And Order (Doc. #140). On March 4, 2016, the Tenth Circuit denied a certificate of appealability and dismissed his appeal. See United States v. Lee, 637 F. App'x 525 (10th Cir. 2016).

         On October 13, 2016, defendant filed a second motion to vacate his sentence under 28 U.S.C. § 2255. Defendant asserted that he was entitled to be resentenced in light of Amendment 794 to the Sentencing Guidelines which took effect November 1, 2015. On October 25, 2016, the Court dismissed defendant's motion to vacate for lack of jurisdiction. See Memorandum And Order (Doc. #150).

         On March 9, 2017, defendant filed the instant motion under Rule 60(b), Fed.R.Civ.P. Defendant asks the Court to reconsider its order which overruled his first Section 2255 motion, i.e. the Court's Memorandum And Order (Doc. #140) filed October 15, 2015. In his motion, defendant raises multiple claims including many of which the Court previously addressed. First, defendant alleges that Cornwell provided ineffective assistance because (1) he did not anticipate that the government would change its policy on the retroactivity of the amendment to the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (“FSA”), (2) he did not ask to continue the case so that defendant could receive the benefit of the FSA amendment, (3) he did not litigate the retroactivity of the FSA amendment before defendant pled guilty and (4) he advised defendant to accept the plea offer based on a misunderstanding of the structure and mechanics of the Guidelines. Motion For Fed. Rule Of Civ. Pro. 60(b)(6) Reconsideration To Correct Error In [A] 28 U.S.C. § 2255 Proceeding (Doc. #158) at 2-4. Defendant alleges that Morris provided ineffective assistance because (1) at sentencing, he did not object to the proposed statutory and guideline ranges and (2) on appeal, he did not raise the FSA claim. Id. at 6. Defendant maintains that the Court erred because (1) it did not comply with Rule 11 at the change of plea hearing by misadvising defendant of the statutory minimum, (2) it did not correctly apply the FSA amendment and (3) it did not allow defendant to withdraw his plea of guilty before sentencing. Id. at 4, 7; Supplement To Defendant's Rule 60(b)(6) Reconsideration Motion (Doc. #152) filed March 9, 2017 at 1-2. Defendant also alleges fraud on the Court and prosecutorial misconduct because the prosecutor misadvised the Court on the statutory minimum during the Rule 11 plea colloquy. Motion For Fed. Rule Of Civ.

         Pro. 60(b)(6) Reconsideration To Correct Error In [A] 28 U.S.C. § 2255 Proceeding (Doc. #151) at 5.

         Analysis

I. Basis For Relief Requested In ...


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