United States v. Lee

U.S. Court of Appeals for the Tenth Circuit
United States v. Lee, 637 F. App'x 525 (10th Cir. 2016)

United States v. Lee

Opinion

ORDER DENYING CERTIFICATE OF APPEALABILITY *

NANCY L, MORITZ, Circuit Judge.

Tijuan Lee pled guilty to conspiring to manufacture, possess with intent to distribute, and distribute five grams or more of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(l)(B)(iii). He received a 235-month sentence. After his direct appeal proved unsuccessful, Lee sought relief under 28 U.S.C. § 2255. The district court overruled his motion and denied his request for a certificate of appeal-ability (COA).

Proceeding pro se, 1 Lee asks us for a COA so he can appeal the district court’s denial of his § 2255 motion. But we may issue a COA only if Lee “demonstrate^] that reasonable jurists would find the district court’s assessment of [his] constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed,2d 542 (2000).' Lee hasn’t made that showing here.

In his application, Lee first asserts the trial court erred in refusing to let him withdraw his plea. But a panel of this court squarely rejected that argument in Lee’s direct appeal. See United States v. Lee, 535 Fed.Appx. 677, 680-81 (10th Cir. 2013) (unpublished). And “[ajbsent an intervening change in the law of a circuit, *526 issues disposed of on direct appeal generally will not be considered on a collateral attack by a motion pursuant to § 2255.” United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989).

In a related argument, Lee asserts trial counsel was ineffective in failing to cite certain authority in support of his request to withdraw his plea. We decline to address that assertion because Lee didn’t present it to the district court. See United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012). For the same reason, we decline to address Lee’s argument that the prosecutor perpetrated a fraud on the trial court.

Next, Lee argues his sentence is illegal and that appellate counsel was ineffective in failing to argue as much on direct appeal. The district court rejected these arguments, noting Lee waived his right to appeal from or collaterally attack his sentence as part of his plea deal. Lee cursorily suggests the district court erred in enforcing the appeal waiver because he received ineffective assistance of trial counsel. But the district court squarely rejected this assertion too, and Lee makes no effort to “demonstrate that reasonable jurists would find the district court’s assessment” on that point to be “debatable or wrong.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Nor does Lee make any effort to demonstrate reasonable jurists would reach that conclusion about the district court’s,assessment of his claim that trial counsel was ineffective in failing to investigate and prepare for sentencing. Accordingly, we deny Lee’s request for a COA and his motion to proceed in forma pau-peris, and we dismiss the appeal.

*

This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value. See Fed. R.App. P. 32.1; 10th Cir. R. 32.1.

1

. Because Lee proceeds pro se, we liberally construe his filings and apply a more forgiving standard than we apply to attorney-drafted filings. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But we won’t act as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Tijuan A. LEE, Defendant-Appellant
Status
Unpublished