Lehi v. United States

• Decision Date: 05 March 2014
• Docket Number: Crim. No. 2:92-CR-00036 AJA,Civil No. 2:12-CV-00518 BSJ
• Parties: ABE LEHI, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — District of Utah

ABE LEHI, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civil No. 2:12-CV-00518 BSJ

Crim. No. 2:92-CR-00036 AJA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

FILED: March 5, 2014

MEMORANDUM OPINION& ORDER

On May 31, 2012, Abe Lehi filed a motion to vacate his guilty plea and sentence and dismiss the Superseding Indictment in his criminal case, footed upon several legal bases not including 28 U.S.C. § 2255.

We have traveled this road before.

PROCEDURAL HISTORY

As recounted this court's March 22, 2006 Memorandum Opinion & Order,¹ Abe Lehi is currently serving two consecutive criminal sentences based upon his conviction of the offenses charged in Counts III, IV, VI, XII and XIII of the fifteen-count Superseding Indictment in United States of America vs. Abe Lehi, Case No. 2:92-CR-00036 AJA (D. Utah), including violations of 18 U.S.C. §§ 2241(b)(1) (aggravated sexual abuse) & 2241(c) (sexual abuse of a child).

That proceeding began with the filing of a Criminal Complaint on January 13, 1992, accompanied by an affidavit alleging that Lehi had sexual relations or sexual contact with aseries of young boys, ranging in age from 5 through 16 years, and had done so with several victims over a period of several years. On February 5, 1992, a federal grand jury returned a ten-count Indictment against Lehi alleging facts reflecting several of those incidents.² On July 8, 1992, a federal grand jury returned a fifteen-count Superseding Indictment against Lehi, alleging that over a period of time from February 1987 through mid-September 1991, Lehi had sexually abused several children ranging from seven to fourteen years of age at the time of the alleged offense conduct.³

On September 9, 1992, Lehi entered a plea of guilty to Counts III, IV, VI, XII and XIII of the Superseding Indictment.⁴ In open court, on the record and under oath, Lehi admitted to the following offense conduct: (1) that as to Count III, on or about February 1, 1991 and June 30, 1991, he "did knowingly engage in a sexual act with a 10-year-old child, and did attempt to do so," all in violation of 18 U.S.C. § 2241(c); (2) that as to Count IV, in incidents separate from Count III, on or about February 1, 1991 and June 30, 1991, he "did knowingly engage in a sexual act with a 10-year-old child, and did attempt to do so," all in violation of 18 U.S.C. § 2241(c); (3) that as to Count VI, on or about February 5 and September 28, 1987, he "did knowingly engage in a sexual act with a 12-year-old child who he had rendered unconscious, and did attempt to do so," all in violation of 18 U.S.C. § 2241(b)(1); (4) that as to Count XII, on or about September1988 and March 17, 1991, he "did knowingly engage in a sexual act with a child under the age of 12 years, and did attempt to do so," all in violation of 18 U.S.C. § 2241(c); and (5) that as to Count XIII, in incidents separate from Count XII, on or about September 1988 and March 17, 1991, he "did knowingly engage in a sexual act with a child under the age of 12 years, and did attempt to do so," all in violation of 18 U.S.C. § 2241(c).

Lehi executed a written statement in advance of his guilty plea.⁵ In that statement, Lehi acknowledged, among other things, that as to Counts III, IV, XII and XIII, he understood that his sentence would be "imposed pursuant to the provisions of the Sentencing Reform Act of 1984 and the sentencing guidelines promulgated thereunder."⁶ He also acknowledged that as to Count VI, which alleged offense conduct prior to the effective date of the Sentencing Reform Act of 1984 and the Federal Sentencing Guidelines, "the possible penalty provided by law for a violation of 18 U.S.C. § 2241(b)(1), as alleged in Count VI of the Indictment is:"

a. Any term of years or life;

b. A fine of up to $250,000; or both; and

I also know that the Judge may order sentences on the above count(s) to run consecutively, that is, one after the other, rather than concurrently.⁷

On November 13, 1992, the late United States Senior District Judge Aldon J. Anderson imposed a provisional sentence of life imprisonment on Count VI, and did so pursuant to 18U.S.C. § 4205(c) (1982) (repealed 1987),⁸ to facilitate the further psychological examination and background study of the defendant to assist the court in determining the sentence ultimately to be imposed.⁹

Lehi returned to court on August 24, 1993 for imposition of sentence on all of his offenses of conviction. At the sentencing hearing, Lehi's counsel acknowledged that Lehi's § 4205(d) report "paints . . . a very sorry picture regarding Mr. Lehi and indeed a very sorry prognosis for any recovery from his present affliction, mental affliction of pedophilia,"¹⁰ and requested that as to Count VI, the court impose a minimum term of imprisonment pursuant to 18 U.S.C. § 4205(b)(1) (1982) (repealed 1987).¹¹ The Government urged the imposition of afederal guidelines sentence of 365 months' imprisonment on Counts III, VI, XII and XIII, and a sentence of life imprisonment on Count VI pursuant to 18 U.S.C. § 4205(b)(2) (1982) (repealed 1987).¹²

After hearing from counsel and from Lehi himself, Judge Anderson imposed sentence upon Lehi:

THE COURT: . . . The sentence is as follows. . . . On counts three, four, 12 and 13 he is sentenced to 365 months. Count six he is sentenced for 30 years to be consecutive to counts three, four, 12 and 13.

Supervised release, should he come out on those terms, he is under supervised release for five years and that will mean that he has to report to the probation office for regulation of his conduct and to give assistance when that may be available for them to provide. That is on three, four, 12 and 13. Count Six does not carry any supervised release. A fine of $5,000 on three, four, 12 and 13 and there is a special assessment of $50 on each count which in this case would total $200. Voluntary surrender, of course, is not approved and the marshals will be charged with returning him to the institution.

Anything further?

MR. McPHEE: Yes, Your Honor. On count six, the 30 years, I heard the Court say consecutive to [that] under three, four, 12 and 13? . . . Did the Court mean he is to do 365 and then 30?

THE COURT: Consecutive means following.

MR. MCPHEE: Thank you.

Could I know the provision of the code that count was sentenced under?

THE COURT: Count six what?

MR. MCPHEE: The provision of the code, was that 4205(b)(1) or 4205(b)(2) or what provision of the code the Court sentenced him under on count six?

THE COURT: Well, it is pre-guideline under the statute.

MR. LAMBERT: I think he means (b)(1).

MR. MCPHEE: What our confusion is, is under the pre-guidelines under 4205(b)(1) the Court would designate the minimum term of imprisonment.

THE COURT: Well, I have said 30 years.

MR. MCPHEE: Is that to be a minimum term?

THE COURT: That is the minimum term. . . .¹³

The Judgment and Commitment entered on August 25, 1993 set forth Lehi's sentence in these terms:

Defendant is sentenced to the custody of the Bureau of Prisons for 365 MONTHS as to Counts III, IV, XII, and XIII (Sentencing Guidelines counts). Defendant is sentenced to the Bureau of Prisons for a period of 30 YEARS on Count VI (Pre-Guideline count) pursuant to Title 18 U.S.C. [§] 4205(b)(1) which sentence is to run consecutive to the sentence imposed on Counts III, IV, XII, and XIII."¹⁴

Lehi did not appeal his conviction or his sentence.

Lehi's conviction and sentence became final upon the expiration of the time for filing of an appeal. See Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999) ("If a defendant does not pursue a timely direct appeal to the court of appeals, his or her conviction and sentencebecome final . . . on the date on which the time for filing such an appeal expired.").¹⁵

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which among other things, imposed a one-year statute of limitations on the filing of motions for relief pursuant to 28 U.S.C. § 2255, effective as of April 24, 1996. The court of appeals subsequently determined that federal prisoners whose convictions became final on or before April 24, 1996—such as Mr. Lehi—were thus required to file motions pursuant to 28 U.S.C. § 2255 on or before April 24, 1997. See United States v. Hurst, 322 F.3d 1256, 1261 (10th Cir. 2003).¹⁶

Mr. Lehi filed no motion expressly seeking relief pursuant to 28 U.S.C. § 2255 on or before that date. Nor has he filed one since.

Lehi's April 17, 2002 "Motion to Correct Judgment"

Indeed, there was no further docket activity until April 17, 2002, when Lehi filed his "Motion to Correct Judgment" in United States of America v. Abe Lehi, Case No. 2:92-CR-36A (D. Utah), which the court sua sponte treated in part as a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 (2000) based upon constitutional claims, commencing a parallel civil proceeding captioned as Abe Lehi v. United States of America, Civil No. 2:02-CV-00317 BSJ (D. Utah). Explicitly invoking Fed. R. Crim. P. 36 as its legal basis,¹⁷ Lehi's motion raised several questions concerning his sentence and the Judgment entered by the court as reflecting that sentence: (1) whether his total sentence constituted "cruel and unusual punishment" in violation of the Eighth Amendment to the United States Constitution, as well as a denial of due process and equal protection under the Fifth Amendment; (2) whether the Judgment should reflect that his "pre-guidelines" sentence on Count VI began running as of the same date as his "guidelines" sentence, January 13, 1992; and (3) whether the Judgment should be amended to reflect whether he was sentenced on Count VI pursuant to 18 U.S.C. § 4205(b)(1) (1982) (repealed 1987) to serve a minimum thirty-year term of imprisonment, or whether he should be eligible for parole after serving one-third of his thirty-year term as provided by 18 U.S.C. § 4205(a) (1982) (repealed 1987).¹⁸

As such, Lehi sought relief pursuant to Fed. R. Crim. P. 36 from...