Pena v. United States
- Victor Marrero
- 1:24-cv-01266
- U.S. District Court · Southern District of New York
- 11
In Pena v. United States, Judge Marrero denied Jose Pena’s sentence challenge and counsel request, ruling his arguments lacked merit.
Jose Pena, whose motion to overturn or correct his federal sentence and request for appointed counsel were both denied; the United States was the opposing party.
What happened
In Pena v. United States, Jose Pena asked the court to overturn or correct his life sentence and to appoint a lawyer to help with that request. His convictions on two firearm-related counts had previously been vacated, but his other convictions still required life imprisonment.
Pena argued that he should have been resentenced, that his trial lawyer was ineffective, that his presentence report was no longer accurate, and that his life sentence was unlawful or excessive. The court rejected these arguments, relying in part on the Second Circuit’s earlier rulings that resentencing was not required and that the jury-instruction error was harmless.
Judge Victor Marrero denied both Pena’s request to overturn or correct his sentence and his request for appointed counsel. The court also concluded that Pena had not shown enough likelihood of success to justify appointing a lawyer.
The detailed version
- Pena v. United States · No. 1:24-cv-01266
- Victor Marrero
- May 14, 2024
Background
Jose Pena, who was proceeding without a lawyer, filed a motion under 28 U.S.C. § 2255 asking the court to vacate, set aside, or correct his sentence. He also asked for appointed counsel under 18 U.S.C. § 3006A. The motions were filed in both the civil § 2255 case, No. 24 Civ. 1266, and the underlying criminal case, No. 09 Cr. 341.
A jury convicted Pena on five counts connected to the killings of Jose Suarez and Juan Carmona: conspiracy to commit murder for hire, two murder-for-hire counts, and two counts of using a firearm to commit murder. On December 19, 2014, the court sentenced him to five concurrent terms of life imprisonment. The Second Circuit affirmed the judgment in 2016, and the court denied Pena’s first § 2255 motion. In 2020, after a Supreme Court decision, the Second Circuit allowed Pena to pursue another § 2255 motion. The district court vacated the two firearm convictions, but determined that resentencing was unnecessary because each of Pena’s remaining convictions carried a mandatory life sentence. The Second Circuit later affirmed that decision.
Request for Appointed Counsel
The court denied Pena’s request for counsel. It explained that there is generally no constitutional right to a lawyer for a § 2255 proceeding, although a court may appoint counsel when justice requires it. The court considered whether Pena had made a threshold showing that his § 2255 motion had some likelihood of merit. Because the court found that his claims lacked merit, it declined to appoint counsel.
Section 2255 Claims
Pena raised five principal arguments:
- He argued that he should have been resentenced after the firearm convictions were vacated because erroneous jury instructions affected his remaining convictions.
- He argued that his trial lawyer was ineffective for failing to challenge those instructions.
- He argued that his presentence investigation report no longer matched his convictions and violated Federal Rule of Criminal Procedure
- 4. He argued that his life sentence did not comply with the offenses of conviction.
- He argued that the life sentence was excessive and unreasonable.
The court rejected the resentencing argument because the Second Circuit had already held that de novo, or from-the-beginning, resentencing was not mandatory and that the erroneous jury instructions were harmless. The district court treated that issue as unavailable for relitigation in the § 2255 proceeding.
The court also rejected the ineffective-assistance claim. Even assuming that counsel’s failure to challenge the instructions was objectively unreasonable, the Second Circuit’s conclusion that the error was harmless meant Pena could not show a reasonable probability that the proceeding would have produced a different result. The court also noted that the ineffective-assistance argument had been raised and rejected in connection with Pena’s first § 2255 motion.
The court found no violation of Rule 32 because a new presentence report might have been required if the court had resentenced Pena, but the court did not resentence him and the Second Circuit affirmed that decision. Finally, the court rejected Pena’s challenges to the life sentences because life imprisonment was the mandatory minimum sentence for each of the remaining convictions, leaving the court no discretion to impose a different sentence.
Disposition
The court DENIED Pena’s § 2255 motion to vacate, set aside, or correct his sentence. The court also DENIED his motion for appointment of counsel. The clerk was directed to mail a copy of the decision and order to Pena.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.