United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on petitioner Jennifer Lynn Krieger's Motion (Doc. 1) to Vacate, Set Aside or Correct her sentence pursuant to 28 U.S.C. § 2255. The Government filed a Response (Doc. 11) and Petitioner filed a timely Reply (Doc. 13).
On January 5, 2006, Jennifer Lynn Krieger was indicted on one count of knowingly and intentionally distributing divers amounts of fentanyl, a schedule II controlled substance, with death resulting from such distribution. The Government chose to supersede the original indictment on March 5, 2008, removing the "death resulting" language, and charging Ms. Krieger simply with knowingly and intentionally distributing fentanyl. On November 18, 2008, Ms. Krieger entered a plea of guilty to the charge of distribution of divers amounts of fentanyl and on February 2, 2009, she was sentenced to imprisonment for 240 months, 3 years supervised release, a special assessment of $100 and a $100 fine. United States v. Jennifer Lynn Krieger, Case No. 06-cr-40001.
Although the "death resulting" was not part of the superseding indictment, it was a sentencing factor proven by a preponderance of evidence at the sentencing hearing which resulted in a statutory minimum sentence of confinement of 20 years under § 841(b)(1)(C). The Petitioner appealed and the United States Court of Appeals affirmed the Petitioner's conviction and sentence. United States v. Krieger, 628 F.2d 857 (7th Cir. 2010).
The Court must grant a § 2255 motion when a defendant's "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. However, "[h]abeas corpus relief under 28 U.S.C. § 2255 is reserved for extraordinary situations." Prewitt v. United States, 83 F.3d 812, 816 (7th Cir. 1996). "Relief under § 2255 is available only for errors of constitutional or jurisdictional magnitude, or where the error represents a fundamental defect which inherently results in a complete miscarriage of justice." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted). It is proper to deny a § 2255 motion without an evidentiary hearing if "the motion and the files and records of the case conclusively demonstrate that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see Sandoval v. United States, 574 F.3d 847, 850 (7th Cir. 2009). Having closely examined the record and filings, the Court concludes that an evidentiary hearing is not necessary in this matter.
A petitioner seeking relief under § 2255 must file his motion within the one-year statute of limitations set forth in § 2255(f). Prisoners used to be able to file motions under § 2255 at any time during their sentences. However, on April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, tit. I, § 106 (codified at 28 U.S.C. §§ 2244(a) & (b), 2255(f)), which added a one-year limitations period for a motion attacking a sentence. The one-year limitations period runs from the latest of four events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
On June 30, 2014, the petitioner filed a § 2255 motion based upon two recent Supreme Court Decisions. The first is Alleyne v. United States, 133 S.Ct. 2151 (2013) and the second is Burrage v. United States, 134 S.Ct. 881 (2014). Petitioner argues that her § 2255 motion is timely as it was filed within one year from "the date on which the right asserted was initially recognized by the Supreme Court." (Doc. 1-1, page 9). Petitioner states that Alleyne and Burrage recognize new rights and that the cases should be applied retroactively. (Doc. 1-1. Page 10).
The first case, Alleyne, is an extension of Apprendi v. New Jersey, 530 U.S. 466 (2000) and held that, "Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt." Alleyne, at 2158. The Justices have decided that other rules based on Apprendi do not apply retroactively on collateral review. See Schriro v. Summerlin, 542 U.S. 348 (2004). This implies that the Court will not declare Alleyne ...