The opinion of the court was delivered by: Murphy, District Judge:
On July 22, 2010, United States District Judge Michael J. Reagan of the Southern District of Illinois ordered that Petitioner Kenneth Rogers's petition under 28 U.S.C. § 2241 be construed as an action seeking relief under 28 U.S.C. § 2255. The action was then transferred to the undersigned judge, and that § 2255 petition for relief is currently before the Court.
In 2006, Petitioner Rogers was sentenced by this Court after pleading to and being found guilty of the offenses of making counterfeit United States currency (Count 1), bank fraud (Count 2) and aggravated identity theft (Count 3). Mr. Rogers was sentenced to 24 months in prison for aggravated identity theft to run consecutive to 46 months imposed upon Mr. Rogers stemming from Counts 1 & 2 of his Information.*fn1 United States v. Rogers, So. Dist. Ill. Case No. 3:06-cr-30065, Doc. 14.
On January 4, 2010,Mr. Rogers filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 to challenge the mandatory
consecutive two-year sentence imposed on him by the Court based on a subsequent change in the law following his conviction
(Doc. 1). After carefully reviewing his petition, Judge Reagan
concluded that Mr. Rogers was not entitled to § 2241 relief, but that
he may be entitled to relief pursuant to 28 U.S.C. § 2255.*fn2
Accordingly, after advising Mr. Rogers of the consequences of
amending his petition, Judge Reagan issued an order construing Mr.
Rogers' petition under § 2241 as a petition for relief under § 2255.
On May 4, 2006, Mr. Rogers pleaded guilty to each of the three charges in the Information. United States v. Rogers, Case No. 3:06-cr-30065. Count 3 of the Information (aggravated identity theft) specifically charged that between January 1, 2006 and March 8, 2006, Mr. Rogers created "fraudulent payroll checks" using "personal identification numbers and financial institution account and routing numbers in order to cause the checks to appear authentic." (Doc. 1). In pleading guilty, Mr. Rogers signed a written stipulation of facts providing the following: first, that Mr. Rogers had "used a means of identification of another person during and in relation to the act constituting Bank Fraud;"and second, that he had used a home computer to "create unauthorized payroll checks purporting to be issued by Grossman Iron and Steele[sic]" allegedly drawn from the company's account and containing "personal identification numbers, financial institution account and routing numbers, as well as the personal identification numbers obtained from others who would cash the checks on behalf of Rogers." (Doc. 7).
The plea agreement further provided that Mr. Rogers waived his right to pursue either a direct appeal or collateral review subject to several exceptions. (Doc. 6). One such exception included a "subsequent change in the interpretation of the law by the United States Supreme Court or the United States Court of Appeals for the Seventh Circuit, which is declared retroactive by those Courts, and which renders the defendant actually innocent of the charges covered herein." Id.
On May 4, 2009, the Supreme Court resolved a circuit split in Flores-Figueroa v. United States, narrowing the interpretation of 18 U.S.C. § 1028A by construing the statute's knowledge requirement as extending to the "of another person" element of the offense. 556 U.S. 646, 657, (2009). Section 1028A provides a five-year term of imprisonment for anyone who "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person or a false identification document." 18 U.S.C. § 1028A(a)(1) (emphasis added). Thus, after FloresFigueroa, to convict a defendant of aggravated identity theft, the Government must prove not simply that a defendant invented a false identification; but that the defendant knew that the "means of identification" he or she unlawfully transferred, possessed, or used, in fact, belonged to "another person." Flores-Figueroa, 556 U.S. at 657, 129 S.Ct. at 1894. This requires a defendant to know that he or she has assumed the identity of a "real person" and "not simply a purely fictitious creation not tied to any person." United States v. Aslan, 644 F.3d 526, 550 (7th Cir. 2011).
Mr. Rogers claims the United States Supreme Court decision in Flores-Figueroa invalidates his conviction and sentence on Count 3 because the Government never established or identified a victim, and because he lacked specific knowledge of any such victim during the conduct for which he was convicted. Therefore, Mr. Rogers contends his conduct did not result in a violation under Section 1028A(a)(1). In support of this claim, he contends the Government referenced the use of personal identification numbers, but failed to disclose said numbers. Mr. Rogers alleges the Court's decision in Flores-Figueroa made the conduct for which he was convicted non-criminal, and that he is actually innocent of the charge for which he was convicted.
The Government argues Flores-Figueroa does not require that an actual victim or personal identification numbers be listed within an Information. To the contrary, the Government contends Federal Rules of Civil Procedure 5.2 and 49.1 require that personal identification numbers be redacted. The Government alleges Mr. Rogers's case is a "classic example of identity theft," as evidenced by his admissions in the Stipulation of Facts entered into by Mr. Rogers at the time of his plea (Doc. 7).
Section 2255 motions generally must be filed within a year of the date on which the judgment of conviction becomes final, subject to several exceptions. 28 U.S.C. § 2255(f). A new right recognized by the Supreme Court after a petitioner's conviction becomes final is one such exception. Id. (One-year limitation period runs from the latest of "the date on which the judgment of conviction becomes final . . . [or] 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."). See also Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality opinion) (holding a "new rule" of criminal procedure should not be applied retroactively on collateral review after a petitioner's conviction becomes final unless the new rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe;" or the rule is a "watershed" rule of criminal procedure implicating the fundamental fairness and accuracy of the proceeding). One cognizable ground for relief under Section 2255 is a challenge made by a federal prisoner that his or her sentence was "imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a); United States v. Carraway, 478 F.3d 845, 849 (7th Cir. 2007) ("[Petitioner's] lead argument, that his sentence is unconstitutional in light of the Supreme Court's 2005 opinion in Booker, obviously relies on new precedent, but the argument could properly be pursued . . . only if it relied on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.") (citing United States v. Booker, 543 U.S. 220, (2005)). Therefore, a habeas petitioner may allege as a ground for Section 2255 relief that his sentence is unconstitutional in light of a new rule of criminal procedure made retroactively applicable to cases on collateral review, provided that his motion is filed within a year of the date on which the right asserted was initially recognized by the Supreme Court.
Mr. Rogers filed his motion on January 4, 2010, which is more than a year after his conviction became final. Therefore, Mr. Rogers' motion is untimely under § 2255(f)(1). However, § 28 U.S.C. 2255(f)(3) provides that the year deadline for filing a § 2255 petition may begin at "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." In the instant case Mr. Rogers relies on the Supreme Court's reinterpretation of the knowledge requirement of 18 U.S.C. § 1028A set out in Flores-Figueroa. Since this Court finds in the foregoing analysis that Flores-Figueroa announced a new rule of substantive criminal law and is therefore retroactively applicable to all final ...