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KEE v. U.S.

United States District Court, S.D. New York

July 8, 2004.

U.S., Respondent.

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 imprisonment.

  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 officials.

 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. ยง 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, sentencing.
Rule 32(c)(1), Fed.R.Crim.P. (emphasis supplied).*fn1 A "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 Cir. 1993).

  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) (citation omitted).

  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 require more.

  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.


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