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Pena v. United States

United States District Court, C.D. Illinois, Urbana Division

June 14, 2017

JOSUE PENA, JR., Petitioner,



         Before 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.


         An 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.

         On July 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.

         Later, 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.

         He was 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).

         On June 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.

         Pena filed the instant motion to vacate his sentence on July 28, 2016.


         I. Legal Standard on a Motion to Vacate Sentence Under 28 U.S.C. § 2255

         28 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).

         Pursuant 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 ...

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