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Cruz v. United States

United States District Court, M.D. Alabama, Southern Division

July 16, 2018

ANTONIO LANDAVERDE CRUZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE.

         This case is before the court on Antonio Landaverde Cruz's construed motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 2. For the reasons that follow, the magistrate judge finds Landaverde-Cruz's § 2255 motion should be denied and this case dismissed with prejudice.

         I. BACKGROUND

         On October 29, 2014, Landaverde-Cruz pleaded guilty to one count of illegal reentry after his 2005 deportation following his 2003 Alabama conviction for an aggravated felony (trafficking in methamphetamine), in violation of 8 U.S.C. § 1326(a) & (b)(2). Landaverde-Cruz's presentence investigation report (“PSI”) noted that his 2003 conviction for trafficking in methamphetamine triggered a 16-level specific offense characteristic enhancement to his offense level under U.S.S.G. § 2L1.2(b)(1)(A)(i).[1] Doc. No. 8-2 at 4, ¶ 13. Landaverde-Cruz faced a Sentencing Guidelines range of 57 to 71 months. Id. at 13, ¶ 56. On March 17, 2015, the district court imposed a sentence of 57 months' imprisonment.

         Landaverde-Cruz appealed, asserting claims that (1) the district court erred when it increased his offense level by 16 levels under U.S.S.G. § 2L1.2(b)(1)(A)(i), based on his 2003 conviction for trafficking in methamphetamine; and (2) the district court violated his right to due process by considering the government's unproven proffer that he had an outstanding arrest warrant in Florida for his alleged participation in a 2011 methamphetamine sale. On October 19, 2015, the Eleventh Circuit issued an unpublished opinion rejecting Landaverde-Cruz's claims for relief and affirming his conviction and sentence. United States v. Landaverde-Cruz, 629 Fed.Appx. 854 (11th Cir. 2015).

         On about June 9, 2016, Landaverde-Cruz, acting pro se at the time, sent a letter-motion to this court essentially reasserting the claims he raised on appeal and also seeking a sentence reduction based on the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Doc. No. 2.

         Because Landaverde-Cruz's letter-motion presented claims attacking his sentence, this court found it should be treated as a motion for relief under 28 U.S.C. § 2255. A “Castro order” was entered[2] notifying Landaverde-Cruz that his letter-motion was recharacterized as a § 2255 motion and warning him that this meant any subsequent § 2255 motions would be subject to the restrictions on “second or successive” motions. Doc. No. 3. The order also gave Landaverde-Cruz an opportunity to withdraw his motion, or amend it so it contained all the § 2255 claims he wanted to assert. Id. The court entered a separate order appointing the Federal Defender to represent Landaverde-Cruz regarding his attempt to obtain relief under Johnson v. United States. Doc. No. 4. Landaverde-Cruz filed no response to the court's Castro order. Thus, this case is before the court on the three claims in Landaverde-Cruz's construed § 2255 motion.

         II. DISCUSSION

         A. Claims Already Decided on Direct Appeal

         Landaverde-Cruz claims that (1) the district court erred when it increased his offense level by 16 levels under U.S.S.G. § 2L1.2(b)(1)(A)(i) based on his 2003 conviction for trafficking in methamphetamine, and (2) the district court violated his right to due process by considering the government's unproven proffer that he had an outstanding arrest warrant in Florida for his alleged participation in a 2011 methamphetamine sale. Doc. No. 2.

         Landaverde-Cruz asserted these same claims on direct appeal, where they were considered and denied on the merits by the Eleventh Circuit Court of Appeals. See 629 Fed.Appx. 854. “The district court is not required to reconsider claims of error that were raised and disposed of on direct appeal.” United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000); see also United States v. Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981). If a claim has previously been raised on direct appeal and decided adversely to a defendant, it cannot be relitigated in a collateral attack under § 2255. Nyhuis, 211 F.3d at 1343. Furthermore, “[a] rejected claim does not merit rehearing on a different, but previously available, legal theory.” Id. Because the Eleventh Circuit has already rejected these claims by Landaverde-Cruz, they cannot be relitigated in this § 2255 action.

         B. Claim Under Johnson and Welch

         Landaverde-Cruz also seeks a sentence reduction based on the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Doc. No. 2. However, he doesn't say why these decisions entitle him to a sentence reduction.

         In Johnson, the Supreme Court held that the Armed Career Criminal Act's (“ACCA”) residual clause-which included in the definition of “violent felony” any offense that “otherwise involves conduct that presents a serious potential rise of physical injury to another”-was unconstitutionally vague.[3] 135 S.Ct. at 2557. Based on that holding, the Court concluded that “imposing an increased [ACCA] sentence under the residual clause . . . violates the Constitution's guarantee of due ...


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