United States District Court, S.D. New York
July 8, 2004.
CHARLES MICHAEL KEE, Petitioner,
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION & ORDER
On September 28, 2003, Charles Michael Kee ("Kee") filed this
timely petition for a writ of habeas corpus pursuant to Title 28,
United States Code, Section 2255. For the following reasons, the
petition is denied.
This petition concerns a passage in the Presentence Report
("PSR") reflecting Kee's sexual assault on a young woman known as
Victim 1, whom it is undisputed Kee held against her will and attempted to ransom. Kee asked, and the Court refused, to remove
from the PSR its description of the assault.
Kee was charged in an indictment with death eligible offenses.
As a result, during the proceedings in the district court he was
represented not only by the Federal Defenders Office but also by
death qualified counsel. Kee pleaded guilty on June 30, 2000 to
four counts of an information pursuant to a plea agreement with
the Government. Count one charged Kee with participating in a
racketeering enterprise through three acts: conspiring to murder
Mark Bruce ("Bruce"), attempted larceny by extortion of Victim 1,
and conspiring to distribute crack cocaine. Count two charged Kee
with conspiring to murder Bruce. Count three charged Kee with
threatening to murder Victim 1, a violent act in aid of
racketeering. Count four charged Kee with using a firearm in
connection with the conspiracy to murder Bruce. The statutory
maximum sentence for these four counts, when run consecutively,
was 40 years in prison.
At his plea of guilty Kee explained that he and another person
had contacted the family of Victim 1, a young woman, and sought
by making threats of violence against Victim 1 to be paid $30,000
for her ransom and return. Kee admitted that Victim 1 had been
restrained through the use of handcuffs and threats and kept in
an apartment with him and another woman from June 22 to June 24,
and that both he and the female captor had sexual relations with
Victim 1 during that time. Kee asserted that Victim 1 consented
to engage in sexual relations with him. He reported that another person took Victim 1 out of the apartment
and had her perform sex acts for money on the street during this
three day period.
The PSR asserted that during the time that Victim 1 was held in
the apartment she was handcuffed, her ankles were tied with a
belt, and a gun was pointed at her. Kee's cousin repeatedly raped
Victim 1 and Kee forced her to perform oral sex on Kee's female
co-defendant. The PSR included the following passage: "Victim 1
was forced to have sex with Kee twice. Additionally, Kee forced
Victim 1 to perform oral sex on [Kee's co-defendant]. . . . The
next day, Kee and [his co-defendant] took Victim 1 to Kee's
cousin's house and forced her to have sex with Kee's cousin.
[Kee's co-defendant] later sold Victim 1 to a man in the street."
Kee objected to the Probation Department's description by
asserting that all sexual relations between either Kee or his
co-defendant and the victim were consensual. The Probation Office
refused to change its description, relying on Victim 1's
statement to the police, which was corroborated by Kee's
co-defendant. It noted that Kee refused to discuss his conduct
with the Probation Office. The PSR recommended a sentence of 40
years, noting that the guidelines sentence was a term of life
Before sentence, Kee wrote to the Court at least four times
regarding his plea and his representation by counsel. The Court
adjourned the sentence and at a conference on December 1, 2000, addressed the letters. The Court had provided copies of each of
the letters to Kee's attorneys. The Court redacted a portion of
Kee's November 14 letter from the set provided to the Government.
Among other things, the conference addressed whether Kee wished
to change his plea allocution or to assert that it was
involuntary. Kee reaffirmed his desire to plead guilty and that
he had not lied to the Court during his plea allocution.
In a written submission on the eve of sentence, defense counsel
requested that the PSR be redacted to remove any reference to
Kee's sexual assault of Victim 1. At the sentencing proceeding on
December 7, there was extensive discussion of the PSR and Kee's
contention that his sexual contact with Victim 1 was consensual.
The Court refused to redact the PSR to eliminate the three words
that identified Victim 1 as a 16 year old. The Court ordered that
defense counsel's ten pages of objections to the PSR be attached
to the PSR. Kee was sentenced to 480 months in prison.
Kee appealed. He asserted that his rights under Rule 32(c),
Fed.R. Crim. P., and the Due Process Clause were violated by the
district court's failure to rule on his challenge to assertions
in the PSR that he had kidnaped and raped a 16 year old girl. His
conviction was affirmed by summary order on January 9, 2002. The
case was remanded with the instruction that the sentencing
transcript be appended to the PSR. The order included the
following rejection of Kee's argument on appeal concerning the
PSR. [T]he district court declined to resolve Kee's
challenge to the PSR statements that Kee had kidnaped
and raped a 16 year old girl. The court stated that
it would not take the disputed allegations into
account in sentencing Kee. Accordingly, Rule 32 did
not require resolution of the dispute. Further,
because the district court is not permitted to render
advisory opinions, . . . we reject Kee's contention
that principles of due process required the court to
resolve the dispute despite its lack of materiality
to the court's calculation of sentence. Kee's
contention that the presence of such assertions in
his PSR will affect his conditions of confinement is
a matter more properly taken up with prison
Kee's petition for a writ of certiorari was denied.
Kee's petition concerns the Court's refusal to strike the
allegations from the PSR concerning the sexual assault. He
asserts a due process violation since he was sentenced on
disputed facts without an evidentiary hearing. He also asserts
that his counsel at sentence and on appeal were ineffective for
failing to get the disputed passage removed from the PSR.
Relief under Section 2255 may be sought where a prisoner is
claiming the right to be released upon the ground
that the sentence was imposed in violation of the
Constitution or laws of the United States, or that
the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack. . . .
28 U.S.C. § 2255. Thus, Section 2255 "allows a federal prisoner
to challenge only the legality of the original imposition of a
sentence." James v. Walsh, 308 F.3d 162
, 166 (2d Cir. 2002)
(emphasis in original).
To satisfy due process, "all that is required during sentencing is that the defendant have an effective opportunity to
rebut allegations likely to affect the sentence." United States
v. Moore, 968 F.2d 216, 225 n. 2 (2d Cir. 1992) (citation
omitted). The pertinent portion of Rule 32, Fed.R. Crim. P.,
which controlled at the time of Kee's sentencing, provided that:
At the sentencing hearing, the court must afford
counsel for the defendant . . . an opportunity to
comment on matters relating to the appropriate
sentence, and must rule on any unresolved objections
to the presentence report. . . . For each matter
controverted, the court must make either a finding on
the allegation or a determination that no finding is
necessary because the controverted matter will not be
taken into account in, or will not affect,
Rule 32(c)(1), Fed.R.Crim.P. (emphasis supplied).*fn1
"controverted" issue does not "affect sentencing" simply because
a defendant believes it will adversely affect his treatment in
prison. See United States v. Beatty, 9 F.3d 686
, 689 (8th
It is also well established that a Section 2255 petition cannot
be used to "relitigate questions which were raised and considered
on direct appeal." Cabrera v. United States, 972 F.2d 23, 25
(2d Cir. 1992) (citation omitted). Reconsideration is permitted
"only where there has been an intervening change in the law and
the new law would have exonerated a defendant had it been in
force before the conviction was affirmed on direct appeal."
United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001)
Kee's due process challenge can be swiftly rejected. The length
of Kee's sentence was not affected by the allegation that he had
sexually assaulted Victim 1. The Court of Appeals has already
addressed and rejected Kee's argument that there was a violation
of his due process rights at sentence in connection with this
disputed allegation. In any event, Kee and his attorney were
heard extensively on this issue and their arguments were
considered and rejected by the Court. Due process does not
Kee asserts in his reply memorandum that he would not have
pleaded guilty if he had known that the PSR would contain the
disputed allegations concerning Victim 1. At the December 1
proceeding, after Kee had seen the PSR and complained about its
description of the sexual assualt on Victim 1, Kee was placed
under oath and reaffirmed his desire to retain his plea of
guilty. Kee had ample opportunity to make a motion to withdraw
his plea and chose not to do so. He may not collaterally attack
his plea on this ground.
To establish ineffective assistance of counsel, a Section 2255
petitioner must show that his counsel's performance was
deficient, and that the deficiency prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Larrea v.
Bennet, 368 F.3d 179, 183 (2d Cir. 2004). This test applies to
claims of ineffective assistance of both trial and appellate
counsel. Murray v. Carrier, 477 U.S. 478, 485 (1986);
Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 197
(2d Cir. 2002). To establish that counsel's performance was
deficient, the petitioner must show that "counsel's
representation fell below an objective standard of reasonableness
under prevailing professional norms." United States v. Monzon,
359 F.3d 110, 119 (2d Cir. 2004) (citation omitted). To establish
prejudice, the petitioner must show that "there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Larrea,
368 F.3d at 183 (citation omitted).
Kee asserts that his trial counsel was ineffective in failing
to prevail with respect to Kee's claim that he did not sexually
assault Victim 1 and in failing to get the passage concerning
that assault removed from the PSR. In his reply memorandum, Kee
asserts that he was given incorrect legal advice when his
attorney told him that a guilty plea to the charges in the
Information would not require him to admit to a sexual assault on
Victim 1. Finally, Kee asserts that appellate counsel was
ineffective in failing to obtain a ruling from the Court of
Appeals that Kee could take the disputed issue "to trial."
Counsel at sentence and on appeal raised the issue of the
disputed passage in the PSR. Their failure to succeed on this
issue does not render their representation of Kee ineffective.
Kee's plea of guilty did not include any admission that he had
coerced Victim 1 to have sex with her, and such an admission was
not required to meet any of the elements of the crimes with which he was charged. In sum, Kee has not shown that his attorneys'
performance was deficient.*fn2 Moreover, Kee has not shown
that he was prejudiced by their performance. His sentence was not
affected by the inclusion of the disputed passage in the PSR. His
ineffective assistance of counsel claims must be denied.
Charles Michael Kee's petition for a writ of habeas corpus is
denied. The petitioner has not made a substantial showing of a
denial of a federal right and appellate review is, therefore, not
warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir.
1998). In addition, I find, pursuant to Title 28, United States
Code, Section 1915(a)(3), that any appeal from this Order would
not be taken in good faith. Coppedge v. United States,
369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss the petition
and close the case.