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KEE v. U.S.

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 ...

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