Pena v. United States

Background

Jose Pena is incarcerated and was convicted under 18 U.S.C. § 924(j) and § 1958 for offenses involving murder through use of a firearm during a crime of violence, use of interstate commerce in murder-for-hire, and conspiracy to use interstate commerce in murder-for-hire. The court sentenced him to concurrent life sentences on December 19, 2014, and the Second Circuit affirmed the conviction.

Pena previously filed a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence, and the court denied that motion in 2016. In 2020, the Second Circuit allowed him to file a later § 2255 motion. The district court then granted that motion in part, vacating his convictions on counts seven and eight and entering an amended judgment. The Second Circuit affirmed the amended judgment in 2023.

In January 2024, the Second Circuit denied as unnecessary Pena’s request for permission to file another later § 2255 motion because he had not previously challenged the amended judgment. The appellate court directed him to present his claims about that amended judgment to the district court.

The February 2024 filing

On February 12, 2024, Pena filed a document titled “Notice of Appeal.” The document stated that he intended to file a § 2255 motion and asked the court to send him the appropriate forms and rules. The Clerk of Court opened the submission as a § 2255 motion.

Under Rule 2(b) of the Rules Governing Section 2255 Proceedings, such a motion must identify every available ground for relief, provide the facts supporting each ground, and state the relief requested. The court found that Pena’s submission did none of those things. Under Rule 4(b), the court may deny a § 2255 motion before requiring a response if the motion and existing record show that the prisoner is not entitled to relief. Instead of denying the submission at this stage, the court gave Pena an opportunity to correct it.

Order

The court directed the Clerk of Court to send Pena the instructions and forms for an amended § 2255 motion. It ordered Pena to file an amended motion within 60 days of February 28, 2024, captioned “Amended Motion” and bearing the same docket number. The amended motion must state the grounds for relief and the facts supporting them so the court can evaluate the claims. The court emphasized that Pena has only one opportunity to assert all grounds for relief from the amended judgment.

No response from the Government was required at that time. If Pena filed a proper amended motion, the court would review it for substantive sufficiency and, if appropriate, order the Government to respond. If he failed to comply within the allowed time and could not show good cause for the failure, the motion would be denied.

Other rulings and classification

The court stated that Pena had not made the required substantial showing of a constitutional violation, so a certificate of appealability would not issue. It also certified that an appeal would not be taken in good faith and denied permission to proceed without paying the appeal filing fees.

This was a procedural order. The court did not decide the merits of any claim challenging Pena’s convictions or sentence; it required him to provide a legally sufficient motion before the claims could be reviewed.