Lee v. United States

JAE LEE, Movant, v. UNITED STATES OF AMERICA, Respondent.

Case No. 2:10-cv-02698-JTF-dkv

Case No. 2:09-cr-20011-BBD

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION

Dated: March 20, 2014

ORDER ADOPTING IN PART AND REJECTING IN PART

REPORT AND RECOMMENDATION,

DENYING MOTION PURSUANT TO 28 U.S.C. § 2255

AND

GRANTING A LIMITED CERTIFICATE OF APPEALABILITY

Before the Court is the amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") and the Report and Recommendation ("R&R") issued by United States Magistrate Judge Diane K. Vescovo (ECF No. 59). The Government filed its Objections to Report and Recommendation on August 27, 2013 (ECF No. 13), and Movant filed his Response to Government's Objections to Magistrate's Report and Recommendation on September 30, 2013 (ECF No. 68). For the reasons stated below, the Court ADOPTS the R&R in part and REJECTS it, in part, and DENIES the § 2255 Motion.

I. PROCEDURAL HISTORY

A. Case Number 09-20011

On January 28, 2009, a federal grand jury returned a single-count indictment charging Lee with possessing a mixture and substance containing a detectable amount of controlled 3,4-methylenedioxymethamphetamine, commonly known as "MDMA" and/or "ecstasy," on or about January 7, 2009, with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1).¹ The factual basis for this charge is stated in the presentence report ("PSR"):

6. The following information was gathered from a review of materials contained in the files of the United States Attorney, including the investigative reports of the Memphis Drug Enforcement Administration (DEA) Task Force.

7. According to the investigative file, a Confidential Informant (CI) advised agents that Jae Lee, whom he/she had known for the last twelve years, was involved in drug trafficking since 1999. The CI indicated that between January 2001 and December 2008, the CI had purchased approximately 200 Ecstasy (MDMA) pills from Lee. The CI stated that all the transactions had occurred at Lee's residence. The CI provided the following, which is [a] list of the years and approximate number of purchases conducted by the CI with Lee. No exact dates or the amounts involved are available for the transactions which are as follows: 5 occasions in 2001; 5 occasions in 2002; 5 occasions in 2003; 5 occasions in 2004; 7 occasions in 2005; 5 occasions in 2006; 6 occasions in 2007; and 2 occasions in 2008. The CI advised agents that he/she purchased one ounce of hydroponic marijuana from Lee on two occasions for $350 an ounce.

8. The CI reported to the agents that he/she owed Lee $150 for an existing "drug debt" for which Lee had "fronted" to the CI. On December 2, 2008, the CI was provided $150 in official government funds and was instructed to meet with Lee and settle the debt. Agents conducting surveillance observed the CI proceed to Lee's residence, where he/she remained for approximately ten minutes. Agents later met with the CI, who informed that while in Lee's residence, the CI observed Lee packaging 15 Ecstasy tablets into a cellophane wrapper.

9. On December 11, 2008, agents provided the CI with $300 in official government funds to conduct a buy of approximately 15 Ecstasy pills from Lee. The CI was outfitted with a recording device and was under surveillance of the agents during the transaction. The CI was observed to proceed to Lee's residence and conduct the transaction. Lee indicated to the CI that he was now charging $20 a pill instead of $15. Lee and the CI agreed on the $20 per pill price and made the exchange. Agents later met with the CI who provided the agents with the 15 Ecstasy pills purchased from Lee.

10. On January 6, 2009, DEA Task Force Officers and Agents executed a federal search warrant at the residence located at 8288 George BrettDrive, Memphis, Tennessee. Agents had to make forced entry into the residence where they located Lee and his girlfriend, Amy Chu, in the bedroom. Agents searched Lee's residence and located $32,432 in U.S. Currency located in a blue bag next to the couch; 8 Ecstasy tablets recovered from a cigarette box located in the book case in the dining room; 80 Ecstasy tablets found in a plastic bag in the book case in the dining room; 3 Valium tablets recovered from a box hidden underneath the bed in the master bedroom; and a loaded Norinco, Model 90, serial #616901, 7.62 caliber rifle, loaded with 25 live rounds from the master bedroom closet.

11. The drug calculations are as follows:

200 Ecstasy Tablets (purchased from the CI from January 2001 to December 2008)

15 Ecstasy Tablets (controlled purchase by the CI on December 11, 2008)

88 Ecstasy Tablets (seized on January 7, 2009 at Lee's residence)

Total = 303 Ecstasy Tablets * 250 mg = 75,750 milligrams (75.75 grams)

75.75 grams of Ecstasy * 500 grams (marijuana equivalent) = 37,875 grams

Total = 37.87 kilograms of marijuana equivalent

12. It should be noted that the Valium tablets and the hydroponic marijuana did not affect the guideline calculations.

(PSR ¶¶ 6-12.)

On June 17, 2009, pursuant to a written plea agreement, Lee appeared before then-United States District Judge Bernice B. Donald to plead guilty to the sole count of the Indictment.² The Plea Agreement did not mention that, by pleading guilty, Lee would automatically be deported after service of his sentence. It also contained the following provision:

This writing constitutes the entire Plea Agreement between the Defendant and the Government with respect to his plea of guilty. No additional promises, representations or inducements other than those referenced in this Plea Agreement have been made to the Defendant or to his attorney with regard to this Plea, and none will be made or entered into unless in writing and signed by all parties.

(Plea Agreement ¶ 6, id., ECF No. 21.)

During the plea colloquy, the following exchange occurred:

Q. And are you a U.S. citizen?

A. No, Your Honor.

Q. Okay. A conviction on this charge then could result in your being deported. It could also affect your ability to attain the status of a United States citizen. If you do become a United States citizen, it could affect your rights to participate in certain federal benefits, such as student loans.

Does that affect at all your decision about whether you want to plead guilty or not?

A. Yes, Your Honor.

Q. Okay. How does it affect your decision?

A. I don't understand.

Q. Okay. Well, knowing those things do you still want to go forward and plead guilty?

A. Yes, Your Honor.³

Movant testified that nobody had made any promises to him that were not in the Plea Agreement.⁴ He also accepted the factual basis for the guilty plea recited by the Government, including the statement that the quantity of drugs seized was consistent with distribution rather than personal use.⁵

At a sentencing hearing on September 28, 2009, Judge Donald adopted the PSR and sentenced Lee to a term of imprisonment of twelve months and one day, to be followed by athree-year period of supervised release. Judge Donald also imposed a fine of $5000.⁶ Judge Donald emphasized that the offense was serious despite the relatively small number of pills that were involved:

As you and your attorney and the government has all recognized, this is a very . . . serious offense, and it's one that has been ongoing for some period of time. It was not simply one aberrant act, but apparently one time getting caught.

And while we, you know, the number of pills that we are looking at is just under 300. There is nothing to suggest that that's the universe of pills that were involved in this ten year period.

And I think it would be fool hardy to believe that the ten year term included only the three hundred.⁷

Judgment was entered on September 29, 2009.⁸ A corrected judgment, which delayed service of the sentence until after January 30, 2010, was entered on October 22, 2009.⁹ Lee did not take a direct appeal.

B. Procedural History of Lee's § 2255 Motion

On September 24, 2010, Lee filed a pro se § 2255 Motion that argued that his trial counsel, Larry Fitzgerald, rendered ineffective assistance by

1. "not only failing to inform LEE that a collateral consequence of his pleading guilty would subject him to deportation, but actuallyaffirmatively misadvising him that he would not be deported if he pleaded guilty";

2. "failing to conduct any pretrial investigation into possible defenses, evidence, witnesses, discovery or search warrant deficiencies, potential lesser offense options, and/or ensuring LEE received proper consideration for the undisclosed benefits the Government received as a result of his plea"; and

3. "confusing the Court at sentencing by misrepresenting LEE was a 'citizen of the United States,' when he was not, and thus, depriving the Court of the knowledge and consideration of a factor (the consequence of deportation) that is commonly relied upon as part of a Court's sentencing discretion."

(ECF No. 1 at PageID 34.) On October 18, 2010, Lee filed an Emergency Motion for Order to Expedite Proceedings. (ECF No. 2.) In an order issued on October 19, 2010, Judge Donald directed Lee to submit an amended motion on the official form. (ECF No. 3.)

On October 28, 2010, Lee filed his amended § 2255 Motion, which asserted the same issues that were presented in the original § 2255 Motion. (ECF No. 5.) On November 2, 2010, Judge Donald denied the Motion to Expedite and directed the Government to respond to the § 2255 Motion. (ECF No. 7.) On November 22, 2010, the Government filed its Response of the United States to Defendant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Answer"). (ECF No. 9.) Movant filed his Reply to Response of the United States Re: Motion Pursuant [to] 28 U.S.C. § 2255 ("Reply") on December 6, 2010. (ECF No. 10.)

On November 17, 2010, Movant filed an Emergency Motion to Bypass Referral to Magistrate, and Order Directing Government to Provide Response Via Facsimile....