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Hernandez v. United States

United States District Court, N.D. Illinois, Eastern Division

June 25, 2014

BRIAN HERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

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[Copyrighted Material Omitted]

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For United States of America, Plaintiff: Mark E. Schneider, LEAD ATTORNEY United States Attorney's Office (NDIL), Chicago, IL.

Brian Hernandez, Defendant, Pro se, Jonesville, VA.

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MEMORANDUM OPINION AND ORDER

Rubén Castillo, Chief United States District Judge.

Petitioner Brian Hernandez moved this Court to vacate, set aside, or correct his

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sentence pursuant to 28 U.S.C. § 2255, and the Court dismissed his petition for habeas corpus. Presently before the Court is Petitioner's pro se motion for findings and conclusions of law pursuant to Federal Rule of Civil Procedure 52(b) or, alternatively, relief from the Court's dismissal of his habeas petition pursuant to Federal Rule of Civil Procedure 60(b), (R. 8, Pet'r's Rule 52(b) Mot.); his motion to supplement his habeas corpus petition, (R. 18, Pet'r's Mot. Suppl.); and his motion to amend his habeas petition, (R. 20, Pet'r's Mot. Am.). For the reasons set forth below, Petitioner's Rule 52(b) motion is granted in part and denied in part, Petitioner's motions to supplement and amend his petition are denied, and this case is dismissed with prejudice.

RELEVANT FACTS

The relevant facts relating to Petitioner's criminal conviction are set forth in a published opinion by the Seventh Circuit Court of Appeals, see United States v. Morales, 655 F.3d 608 (7th Cir. 2011), and are repeated here only as they pertain to Petitioner's section 2255 petition.

Petitioner was one of sixteen individuals indicted by a federal grand jury on various racketeering-related charges in 2006. Petitioner and his codefendants were members of the Aurora Deuces, the Aurora, Illinois chapter of the Insane Deuce Nation street gang. Petitioner had risen through the ranks and was a supervisor of more junior members: he assigned missions, provided firearms for the missions, and enforced the Deuces' rules. He had been personally involved in at least three shootings and in the Deuces' narcotics activities. Petitioner was charged with racketeering conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (" RICO" ) (Count One) and narcotics conspiracy (Count Nine).

In an effort not to overwhelm the jury, and due to the logistical challenge of trying so many defendants in a single courtroom, this Court severed the case into two trials. Petitioner was grouped with the " less major players" and tried before Judge Leinenweber. After a three-month trial, a jury convicted Petitioner on both Counts. The jury made special findings that the narcotics conspiracy charged in Count One pursuant to 21 U.S.C. § § 841(a)(1) and 846 was proven as to Petitioner and involved at least five kilograms of mixtures containing cocaine, at least 50 kilograms of mixtures containing cocaine base in the form of crack cocaine, and at least 1000 kilograms of marijuana. Petitioner was sentenced to a term of life imprisonment for each Count, to run concurrently with each other.

Petitioner filed his notice of appeal, challenging both his conviction and his sentence, on August 27, 2009. The Seventh Circuit affirmed both on August 18, 2011.[1] Morales, 655 F.3d at 637-41. The Seventh Circuit held, as relevant to Petitioner, that (1) the district court's failure to state its reasons on the record for granting the government's motion for an anonymous jury empanelment was harmless error; (2) the district court did not abuse its discretion in declining to further sever the proceedings; (3) the district court did not abuse its discretion when it denied the defendants' motion for a hearing based on alleged juror misconduct; (4) the government presented sufficient evidence for a rational jury to find that Petitioner joined

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the Insane Deuces' narcotics conspiracy; and (5) the district court did not err in sentencing Petitioner. Id. The Supreme Court denied Petitioner's petition for writ of certiorari on January 17, 2012. Hernandez v. United States, 132 S.Ct. 1121, 181 L.Ed.2d 1000 (2012).

Petitioner filed his habeas petition pursuant to 28 U.S.C. § 2255 on December 18, 2012, (R. 1), along with a memorandum in support, (R. 3), and a supplemental pleading, (R. 4). Petitioner claimed that: (1) his sentence of life imprisonment on Count One inexcusably exceeded the 20-year statutory maximum; (2) his sentence of life imprisonment on Count Nine exceeded the 121-to-151-month statutory maximum; (3) he received ineffective assistance of counsel during the sentencing phase; (4) he was actually innocent of racketeering conspiracy; (5) he received ineffective assistance of counsel at trial; (6) he received ineffective assistance of counsel on appeal; and (7) he was " convicted of a non-existing offense" because the jury did not find that he agreed to commit two predicate acts under RICO. The Court dismissed the petition on February 6, 2013, for failure to assert any valid, constitutional error. (R. 7, Min. Entry.) The Court denied a certificate of appealability. ( Id. )

On February 20, 2013, Petitioner moved the Court to amend its findings pursuant to Rule 52(b) or, alternatively, to relieve Petitioner from the judgment pursuant to Rule 60(b). (R. 8, Pet'r's Rule 52(b) Mot.) Petitioner argues that as a pro se petitioner, he is entitled to a liberal construction of his pleadings. ( Id. at 2-3) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Petitioner contends that the Court should not have dismissed his petition because his factual allegations were not " clearly baseless." ( Id. ) (quoting Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992)).

A week later, on February 28, 2013, Petitioner filed his notice of appeal to the Seventh Circuit. (R. 9, Not. of Appeal.)

While his Rule 52(b) motion and the appeal were pending, Petitioner filed a motion for leave to supplement his petition, (R. 18), and a motion to amend his petition, (R. 20). In his motion to supplement his petition, filed on March 29, 2013, Petitioner argues that grounds one and two of his petition should be supplemented on the basis of the oral arguments made in Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and the decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). (R. 18, Pet'r's Mot. Suppl.) In his motion to amend, filed on October 10, 2013, Petitioner presents the following new grounds for relief: (1) that he was tried twice on Count One of the indictment because of the " erroneous penalty phase two of the trial" in violation of the Fifth and Seventh Amendments, (R. 20, Pet'r's Mot. Am. at 4); (2) that he was punished twice for the same offense in violation of the Fifth Amendment, ( id. at 9); (3) that his sentence was imposed in violation of 18 U.S.C. § 3553 and the decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), ( id. at 14); (4) that his sentence was imposed in violation of 18 U.S.C. § 3559(a)(3), ( id. at 24); (5) that his sentence was imposed in violation of 18 U.S.C. § 3553(a)(6), ( id. at 28); (6) that his sentence violates the Due Process clause and the doctrine against ex post facto, ( id. at 30); (7) that his sentence was imposed in violation of Alleyne, ( id. at 32); (8) that his convictions were invalid because the indictment failed to charge the offenses, ( id. at 35); and (9) that his convictions

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were obtained in violation of the Sixth Amendment, ( id. at 37).

Petitioner's three motions are presently ...


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