United States District Court, C.D. Illinois, Urbana Division
DARROW, UNITED STATES DISTRICT JUDGE
the Court are Petitioner Pena's motion for relief from
his sentence pursuant to 28 U.S.C. § 2255, ECF No. 1;
his motion for leave to supplement his reply to the
government's response, ECF No. 6; and his motion for
leave to file an amended supplemental reply, ECF No. 7.
Pena's motions for leave are GRANTED, and his § 2255
petition is DENIED.
informant told the police that Pena was selling drugs in
Decatur, Illinois. On May 1, 2013, the informant received
about five pounds of marijuana from Pena, apparently on
consignment. Following this controlled buy, the police put a
tracking device on Pena's truck, and at some point later,
on a Hyundai Sonata that Pena indicated to the informant was
involved in his drug trafficking. Later, on June 25, 2013,
the informant met with Pena again and paid him $1, 500 for
the marijuana, and inquired about buying some cocaine. On
July 9, 2013, the informant bought an ounce of cocaine from
Pena, and again, on July 12, the informant bought five ounces
of cocaine, for which the informant paid $5, 000.
21, 2013, a gunshot victim appeared at Huck's gas station
in Decatur. He claimed to have been the victim of a drive-by
shooting, but when the police went to the scene, they found a
baggie in the middle of the road with 505.7 grams of cocaine.
It later emerged, in conversations between Pena and the
informant and in police interviews with Pena, that the
gunshot victim had tried to steal the cocaine from Pena
during a sale, and Pena or someone else had shot him. As he
fled the scene, Pena admitted to having fired a gun either at
the victim, or into the air.
on August 3, 2013, the Sonata was stopped by a Phelps County,
Missouri sheriff's deputy, who eventually discovered four
kilograms of cocaine in the car in hidden compartments. On
April 25, 2014, Pena was arrested pursuant to a warrant.
charged by criminal complaint on April 25, 2014 with the
conduct described above. Compl. 2-6. CR ECF No. 1. An
indictment, CR ECF No. 8, followed on May 8, 2014, charging
Pena with (I) distributing the marijuana to the informant on
May 1, 2013, Indictment 1- 2; (II) distributing the cocaine
to the informant on July 9, 2013, id. at 2; (III)
distributing the cocaine to the informant on July 12, 2013,
id., all in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C); (IV) possession with intent to
distribute of the at least 500 grams of the cocaine that was
found lying in the road on July 21, 2013, Indictment 3, in
violation of 21 U.S.C.§§ 841(a)(1) and
841(b)(1)(B); (V) discharging a gun during and in relation to
a drug trafficking crime, Indictment 3, in violation of 18
U.S.C. § 924(c)(1)(A)(iii); and (VI) attempted
possession of at least 500 grams of the cocaine found in the
Hyundai on August 3, 2013, Indictment 4, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(B).
11, 2014, the government filed a notice that it would seek to
enhance Pena's sentence with a prior conviction for the
manufacture or delivery of a controlled substance, pursuant
to 21 U.S.C. § 851. On June 18, 2014, Pena pleaded
guilty to Counts IV-VI before a magistrate judge, Jun. 18,
2014 CR Minute Entry, and filed a written plea agreement, CR
ECF No. 14. The magistrate judge recommended that Pena's
plea be accepted, Report and Recommendation, CR EC No. 17,
and on January 9, 2015, the district judge accepted the plea
and sentenced Pena to the statutory minimum of 120 months on
Counts IV and VI, to run concurrently, and to the statutory
minimum of 120 months on Count V, to run consecutively as
required by the statute, for a total of 240 months, with
eight years of supervised release to follow. Jan. 9, 2015 CR
Minute Entry. The government dismissed Counts I-III.
Id. Written judgment entered the same day. CR ECF
No. 25. On January 12, 2016, the government filed a sealed
motion, CR ECF No. 29, and on February 2, 2016, Pena's
sentence was reduced to ten years, CR ECF No. 33.
filed the instant motion to vacate his sentence on July 28,
Legal Standard on a Motion to Vacate Sentence Under 28 U.S.C.
U.S.C. § 2255, “the federal prisoner's
substitute for habeas corpus, ” Brown v. Rios,
696 F.3d 638, 640 (7th Cir. 2012), permits a prisoner
incarcerated pursuant to an Act of Congress to seek that his
sentence be vacated, set aside, or corrected if “the
sentence was imposed in violation of the Constitution or laws
of the United States, or . . . the court was without
jurisdiction to impose such sentence, or . . . the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack[.]” 28 U.S.C.
§ 2255(a). See Webster v. Daniels, 784 F.3d
1123, 1124 (7th Cir. 2015) (“As a rule, the remedy
afforded by section 2255 functions as an effective substitute
for the writ of habeas corpus that it largely
replaced.”). When presented with a § 2255 motion,
a district court must hold an evidentiary hearing on the
applicant's claim, and make findings of fact and
conclusions of law. 28 U.S.C. § 2255(b). However,
“[i]t is well-established that a district court need
not grant an evidentiary hearing in all § 2255
cases.” Martin v. United States, 789 F.3d 703,
706 (7th Cir. 2015). The court need not hold a hearing if
“the motion and the files and records of the case
conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b).
to the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a federal prisoner seeking to vacate
his sentence typically has one year to do so, from the date
upon which the judgment of his conviction became final. 28
U.S.C. § 2255(f)(1). However, if the right he asserts
has been newly recognized and made retroactively applicable
by the Supreme Court to cases on ...