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Lee v. United States

United States District Court, D. Maine

April 20, 2017

BENJAMIN LEE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          John C. Nivison, U.S. Magistrate Judge

         In this action, Petitioner Benjamin Lee moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 158.) Following a jury trial, Petitioner was convicted of two counts of interstate stalking; the Court sentenced Petitioner to a total of 100 months in prison. (Judgment, ECF No. 126 at 1-2.) The First Circuit affirmed the conviction and sentence on appeal. United States v. Lee, 790 F.3d 12 (1st Cir. 2015).

         In support of his section 2255 motion, Petitioner contends that counsel's performance was ineffective because counsel (1) failed to move for a continuance of the trial, abandoned Petitioner at a critical stage of the proceedings, and failed to present a complete defense; (2) failed to ensure that Petitioner had the opportunity to exercise his right to testify in his own defense; (3) failed to move to suppress evidence for violations of the Fourth and Fifth Amendments; (4) failed to argue for the exclusion of evidence of prior bad acts; and (5) failed to advise Petitioner regarding sentencing exposure. In addition, Petitioner alleges cumulative error.

         The Government has moved to dismiss the section 2255 motion. (Response, ECF No.172.) Following a review of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         The facts of the case are set forth in detail in the First Circuit's opinion on Petitioner's appeal. Lee, 790 F.3d at 13-15. They are repeated in this recommended decision only as necessary to the discussion of each of the issues raised in Petitioner's section 2255 motion.

         Following a jury trial, Petitioner “was convicted of two counts of interstate stalking with the intent to harm, or even kill, his estranged wife and her boyfriend, in violation of 18 U.S.C. §§ 2261A(1) and 2261(b)(5), ” for an offense that Petitioner committed in September 2012.[1] Lee, 790 F.3d at 13. (Judgment at 1.) The Court sentenced him to prison terms of 60 months on count one and 40 months on count two, to be served consecutively, followed by a term of three years of supervised release on each of the counts, to be served concurrently. (Judgment at 2-3.) Petitioner appealed from the conviction and sentence.

         On Petitioner's challenge to the conviction, the First Circuit held (1) that the Court did not abuse its discretion in denying Petitioner's motion in limine to exclude evidence of prior abuse of his estranged wife; (2) that the Court did not abuse its discretion with respect to the timing of the trial; and (3) that the evidence was sufficient to support the conviction. Lee, 790 F.3d at 16-18.

         On Petitioner's challenge to the sentence, the First Circuit held (1) that the Court did not misapply a sentencing enhancement for a pattern of activity when calculating the sentencing guidelines range; (2) that the Court did not abuse its discretion when it denied a downward departure for Petitioner's mental and physical condition; and (3) that the Court did not abuse its discretion with respect to the substantive reasonableness of the sentence. Id. At 18-19.

         Petitioner did not file a petition for a writ of certiorari. His section 2255 motion was filed on May 16, 2016; the Government concedes it was filed timely.[2] (Motion at 1; Response at 13 n.3.)

         II. Discussion

         A. Legal Standards

         A person may move to vacate his or her sentence on one of four different grounds: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) that the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

         A section 2255 petitioner must establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). “[A] habeas petitioner is not automatically entitled to a hearing and normally should not receive one if his allegations are ‘vague, conclusory, or palpably incredible.'” David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). The First Circuit has held that a Petitioner who “fails to reasonably substantiate his ineffective assistance of counsel claim with any material issues of fact . . . has not ‘overcome the presumption of regularity which the record . . . imports . . . .'” United States v. Butt, 731 F.2d 75, 80 (1st Cir. 1984) (quoting Walker v. Johnston, 312 U.S. 275, 286 (1941)). “[I]ssues disposed of in a prior appeal will not be reviewed again by way of a 28 U.S.C. § 2255 motion.” Singleton v. United States, 26 F.3d 233, 240 (1st Cir. 1994) (quotation marks omitted). When “a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing.” United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).

         When a petitioner raises “claims for the first time on habeas, he must show both ‘cause' that excuses the procedural default and ‘actual prejudice' resulting from the alleged error.” Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015) (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)). “One way to meet the cause requirement is to show constitutionally ineffective assistance of counsel under Strickland v. Washington,466 U.S. 668 (1984). Strickland requires a petitioner to demonstrate that “counsel's representation fell below an objective standard of reasonableness, ” and that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 688, 694. A court need not “address both components of the inquiry if the defendant makes an insufficient showing on one . . . .” Id. at 697.

         B. Claims and Analysis

         1. Claims regarding the timing of the trial, abandonment, and failure to call defense witnesses (Grounds One, Three, and Four)

         Petitioner argues the Court abused its discretion with respect to the timing of the trial. (Motion at 13.) In a related claim, Petitioner argues that counsel's performance was deficient, and Petitioner was prejudiced, due to counsel's failure to move to continue the trial in order to present a complete defense. (Motion at 4, 12-13.) Petitioner also alleges that counsel omitted favorable testimony from two witnesses. (Id. at 20-22.) More specifically, Petitioner asserts that if called as witnesses, a psychologist would have testified that Petitioner expressed an intent merely to take photographs related to his divorce, and a friend would have testified that he had invited Petitioner to go hunting in Colorado. Petitioner argues the testimony would have introduced reasonable doubt as to Petitioner's intent. (Id. at 20-21.) Petitioner also contends that counsel abandoned him at a critical stage of the proceedings in order to attend to a matter of personal business. (Id. at 6, 17.)

         Petitioner's claim that the Court abused its discretion regarding the scheduling of the trial is precluded, because the First Circuit decided the issue. Lee 790 F.3d at 17-18; see Singleton, 26 F.3d at 240. “Well before trial, ” the presiding judge designated the date on which the trial would conclude. Lee 790 F.3d at 17. Although defense counsel expressed some concern at one point about trial timing, on the court day before the day designated as the trial's final day, counsel said: “We are in very good shape. No further witnesses.” Id. The parties rested.[3] The First Circuit noted: “On appeal, [Petitioner] does not identify any evidence he was prevented from offering or any prejudice to him.” Id. at 18. The First Circuit concluded that Petitioner had not demonstrated that “the Court exhibited an unreasonable and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay.” Id. (quotation marks omitted). Given the First Circuit's determination, Petitioner cannot prevail on his claim based on the timing of the trial.

         Petitioner's related section 2255 ineffective assistance claims fail because the allegations are unsupported by the record. See David, 134 F.3d at 478. As the First Circuit noted, Petitioner's prior statements contradict the testimony Petitioner alleges the psychologist and the friend would have given: “[T]he pro se brief adds, he traveled to Maine only to take photos for use in the divorce, so he lacked the criminal intent required by statute. That, of course, is not what he said earlier, when he said that ‘he was going to kill [his estranged wife's partner, ] and if [his estranged wife] didn't come home, he would kill her too.'” Lee, 790 F.3d at 18. Under the circumstances, the fact that counsel did not call the psychologist as a witness at trial cannot reasonably constitute substandard performance by counsel.

         Petitioner's claim of abandonment is also unsupported by the record. In fact, on the day Petitioner maintains counsel abandoned the case, the record reflects that counsel was present in during the court proceedings, including during a chambers conference that concluded the proceedings for the day. (Trial Tr. IV at 139-66.) Petitioner thus has failed to demonstrate either substandard performance of counsel or prejudice. (Motion at 12-13.)

         2. Claim of failure adequately to advise Petitioner on the right to testify (Ground Two)

         Petitioner argues that counsel provided substandard advice when counsel advised him not to testify. (Motion at 5, 16-17.) Petitioner described counsel's actions as “coercive” and “incomplete.” (Id. at 16-17.) Petitioner alleges that, as a result of counsel's ineffective assistance, he did not testify that he lacked criminal intent. (Id. at 15.) The record lacks any support for Petitioner's claim.

         At trial, the Court informed Petitioner of his right to testify or not to testify:

Mr. Lee, you have a constitutional right to testify. If you decide to testify, you'll take the stand and you'll be put under oath and your lawyer will ask you questions and then the Government attorney . . . will be entitled to cross-examine you on all matters that are within the scope of your examination and you will not be able to claim your 5th Amendment right not to incriminate yourself.
You also have a constitutional right not to testify. If you decide not to testify, I will instruct the jury that they should draw no inference or suggestion of guilt from ...

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