United States District Court, S.D. New York
OPINION AND ORDER
KIMBA M. WOOD, District Judge.
Petitioner Maximo Pena brings this pro se petition, pursuant to 28 U.S.C. § 2255, asking the Court to vacate, set aside, or correct his sentence. For the reasons set forth below, the petition is DENIED.
On August 27, 1990, Petitioner was charged in a four-count indictment. Count One charged Petitioner with conspiracy to distribute and to possess with intent to distribute more than 50 grams of cocaine base (or "crack" cocaine), in violation of 21 U.S.C. § 846. Count Two charged Petitioner with engaging in a continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848. Count Three charged Petitioner with possession with intent to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. § 841. Count Four charged Petitioner with using and carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). Following an April 11, 1991 jury trial, Petitioner was convicted of all four counts. On October 7, 1991, the Court sentenced Petitioner to three concurrent terms of life imprisonment on Counts One, Two, and Three, followed by a consecutive term of five years' imprisonment on Count Four. The Second Circuit affirmed Petitioner's judgment of conviction on March 20, 1992. United States v. Arias, 962 F.2d 4 (2d Cir. 1992). The Supreme Court denied Petitioner's petition for writ of certiorari on October 5, 1992. Pena v. United States, 506 U.S. 857 (1992).
On April 17, 1997, Petitioner filed his first motion pursuant to 28 U.S.C. § 2255. On June 2, 1999, the Court vacated Petitioner's Count One narcotics conspiracy conviction, in light of the Supreme Court's decision in Rutledge v. United States, 517 U.S. 292, 300, 307 (1996) (holding that conspiracy is a lesser included offense of CCE). This Court held that "[r]esentencing is not necessary, however, because the validity of petitioner's conviction for CCE is unaffected by Rutledge. " United States v. Pena, 90-CR-553, at 16 [Dkt. No. 30] (S.D.N.Y. June 2, 1999). The Court also rescinded the $50 special assessment attributable to the narcotics conspiracy conviction. Id. The petition in all other respects was denied. Id. at 18. No amended judgment of conviction was entered subsequent to the Order.
The Court issued a certificate of appealability on October 8, 1999, with respect to two issues (1) whether the Supreme Court's decision in Richardson v. United States, 526 U.S. 813 (1999), required Petitioner's conviction on Count Two to be vacated because the Indictment failed to allege the specific three violations constituting the "continuing series"; and (2) whether Petitioner's sentence on Count Two should be vacated because the Indictment improperly stated the elements of a CCE offense. Pena v. United States, 242 F.3d 367, 2000 WL 1761889, at *1 (2d Cir. 2000).
On appeal, Petitioner presented two additional claims (1) that the jury charge for Count Two was improper, under the dissenting opinion in Richardson, because it did not instruct the jury that each violation comprising the CCE must have been undertaken in concert with five or more individuals and must have generated substantial income; and (2) that in applying Rutledge, the Court should have vacated his conviction on Count Two rather than Count One. See id. On May 17, 2000, the Second Circuit (1) construed Petitioner's new arguments regarding Richardson as a motion to consider a successive motion pursuant to 28 U.S.C. § 2255; and (2) denied that motion because it was not based on newly discovered evidence or a new rule of constitutional law. See id. However, the Second Circuit ruled that Petitioner's appeal could proceed on all issues other than those arising from Richardson. See id.
By Summary Order dated November 27, 2000, the Second Circuit affirmed Petitioner's judgment. See id. With respect to Petitioner's argument that Count Two of the Indictment improperly stated the elements of a CCE offense, the Second Circuit concluded that Petitioner was precluded from raising this argument because he had fully litigated the argument on direct appeal. Id. at *2. With respect to Petitioner's argument that the Court should have vacated his conviction on Count Two rather than Count One, the Second Circuit concluded that it was well within the Court's discretion to vacate Count One in lieu of Count Two. Id.
Petitioner now moves, once again, for relief under 28 U.S.C. § 2255. See Motion, No. 12 Civ. 7856, [Dkt. No. 1] ("Motion"). In this second motion for relief, Petitioner argues (1) that he is entitled to file another § 2255 motion challenging the amended portion of his conviction, relying upon Magwood v. Patterson, 561 U.S. 320 (2010) and Garza v. United States, 131 S.Ct. 1469 (2011); (2) that he is factually innocent of the CCE offense charged in Count Two and that the jury's verdict on Count Two was not unanimous; (3) ineffective assistance of counsel; and
(4) that the Supreme Court's decision in Richardson requires his conviction on Count Two to be vacated because the Indictment failed to allege the specific three violations constituting a "continuing series." Motion 5-8, 13.
Section 2255 allows a convicted person being held in federal custody to petition the sentencing court for an order vacating, setting aside, or correcting his sentence. 28 U.S.C. § 2255. Relief pursuant to § 2255 is available "only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). The Court construes Petitioner's pro se submissions to raise the strongest arguments possible. See Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995).
Petitioner argues that, in light of Magwood and Garza, he is entitled to file another § 2255 motion challenging the amended portion of his conviction. Courts are divided as to whether an amendment to the judgment of the type issued in this case permits a Petitioner to file a second § 2255 motion. The Court need not resolve this issue, ...