The opinion of the court was delivered by: DENISE COTE, District Judge
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 ...