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Stanley E. Algee, No. 05221-025 v. United States of America

August 15, 2012


The opinion of the court was delivered by: G. Patrick Murphy United States District Judge


MURPHY, District Judge:

This matter is before the Court on Petitioner's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion isdenied.


Petitioner was sentenced on April 30, 2001, to a total of 300 months on four counts: conspiracy to distribute crack cocaine, conspiracy to distribute marijuana, possession of a firearm by a felon, and use of a firearm during a drug trafficking offense (Doc. 147, SDIL Case No. 00-40023-GPM). His conviction and sentence were affirmed on direct appeal. United States v. Algee, 309 F.3d 1011, 1014-16 (7th Cir. 2002), cert denied, 538 U.S. 925 (2003). On February 18, 2004, Petitioner filed a § 2255 motion (Case No. 04-cv-4029-GPM), to vacate, set aside, or correct his sentence. In this initial § 2255 motion, Petitioner alleged that his trial and appellate counsel provided constitutionally ineffective assistance in numerous ways, and claimed that his conviction should be vacated because it was the result of prosecutorial vindictiveness and violated double jeopardy. He also claimed that he was entitled to relief pursuant to Blakely v. Washington, 542 U.S. 296 (2004). After the Government responded and Petitioner filed a reply, this Court denied the § 2255 motion on November 1, 2005 (Doc. 23 SDIL Case No. 04-4029-GPM).

Petitioner filed the instant motion under § 2255 on October 26, 2011 (Doc. 1), seeking to challenge his sentence on the basis that the "851 enhancement" was improperly based on two prior convictions that are not felonies under the Controlled Substances Act, pursuant to CarachuriRosendo v. Holder, 130 S. Ct. 2577 (2010). He also asserts that trial counsel was ineffective for giving him improper advice regarding the effect of those prior convictions on his potential sentence, and for failing to challenge the use of the convictions to enhance his sentence (Doc. 1, pp 4-5). He asserts that he is entitled to a new one-year limitations period to file the instant motion, under § 2255 ¶6(4),*fn1 because the recent case law he relies on qualifies as "a new factual predicate which could not previously have been discovered" (Doc. 1, p. 11). He argues that under Stewart v. United States, 646 F.3d 856 (11th Cir. 2011), the instant motion should not be considered "second or successive."


On June 12, 2012 (Doc. 3), petitioner submitted another § 2255 motion, which the Court has construed as a motion to amend his original pleading. This June 12, 2012, § 2255 motion has not been docketed, pending a decision on whether to grant the motion to amend. The June 12 motion does not include the grounds petitioner raised in the October 26, 2011, motion. Instead, it raises an entirely new ground: that his sentence should be vacated because the Government failed to prove beyond a reasonable doubt that the quantity of cocaine base involved was greater than 50 grams. For this proposition, petitioner cites DePierre v. United States, 131 S. Ct. 2225 (2011), claiming that it represents a substantive change in the law made retroactive to cases on collateral review, pursuant to § 2255(f)(3).*fn2

If this Court were to accept petitioner's tendered June 12, 2012, motion as an amended pleading, it would supersede the October 26, 2011, § 2255 motion and render it void, such that no consideration would be given to the grounds raised in the October 26 motion. See Flannery v. Recording Indus. Ass'n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court will not accept piecemeal amendments to pleadings. It does not appear that petitioner intended to abandon the grounds in his October 26 motion so as to proceed only on the grounds presented in the June 12 motion. The Court has wide discretion in determining whether to grant leave to amend a pleading. Vitrano v. United States, 643 F.3d 229, 234 (7th Cir. 2011) (citing Rutledge v. United States, 230 F.3d 1041, 1051 (7th Cir. 2000); Johnson v. United States, 196 F.3d 802, 805 (7th Cir. 1999)). Accordingly, petitioner's request to file an amended § 2255 motion (Doc. 3) is DENIED.

Even if the Court were to grant leave to amend, the key issue that must be resolved is whether the instant action constitutes a "second or successive" § 2255 motion.


Although district courts have jurisdiction over a prisoner's first § 2255 motion, the ability to pursue a "second or successive" motion is subject to strict limitations:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder ...

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