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Lee v. United States

August 17, 2010

KASH DESHAWN LEE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

Now before the Court is Petitioner Kash Deshawn Lee's ("Lee") Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, and the Government's Motion to Dimiss. For the reasons set forth below, the Government's Motion [#4] is GRANTED and Lee's Motion [#1] is DISMISSED.

BACKGROUND

On May 16, 2007, Lee was charged with one count of Conspiracy to Distribute Crack Cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, one count of Possession with Intent to Distribute Crack Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), one count of Distribution of Crack Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and one count of Distribution of Crack Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). On October 29, 2007, Lee pleaded guilty to Counts 1 (Conspiracy to Distribute Crack Cocaine), 5 (Possession with Intent to Distribute Crack Cocaine), and 6 (Distribution of Crack Cocaine in violation of §§ 841(a)(1) and 841(b)(1)(B)). In his written plea agreement, filed on October 29, 2007, Lee agreed to waive the right to appeal and/or collaterally attack his conviction and/or sentence. On November, 16, 2007, the Court filed its Acceptance of Plea of Guilty, Adjudication of Guilt and Notice of Sentencing. At his sentencing on February 15, 2008, Lee was sentenced to a mandatory term of life in prison for Count 1, and 188 months of imprisonment for each of Counts 5 and 6, all of which were to run concurrently. He was also sentenced to 10 years of supervised release. Judgment was entered against Lee on February 21, 2008, and he did not file a direct appeal.

Although he waived his right to appeal and pursue collateral relief pursuant to § 2255 in ¶¶ 11-12 of the written plea agreement , Lee has now filed the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. In his motion, Lee claims: 1) that his counsel failed to represent Lee to the best of his ability, 2) that from the start, his counsel threatened that Lee would spend the rest of his life in prison if he did not work with the government, 3) Lee never saw any evidence against him because his counsel just wanted him to plead guilty, and 4) Lee's counsel never filed a motion for leave to appeal within the required time period. This Order follows.

DISCUSSION

There are statutory time limits which govern whether a district court can entertain a collateral attack on a federal sentence. The present case is covered by 28 U.S.C. § 2255, which states in relevant part:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of –

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

In the present case, Lee alleges that he is entitled to relief because he did not understand his appeal rights and they were never really taught to him. Though it is not entirely clear, Lee appears to further allege that because he did not know any better, he relied upon the "smart people" in proceeding with his case and that his attorney "sold" him to the government because he did not want to represent Lee. Lee makes no assertion that he was unable to discover his claim, that there is any newly recognized federal right made retroactively applicable to cases on ...


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