United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
F. MOORER UNITED STATES MAGISTRATE JUDGE.
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
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). 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'
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2015, the Eleventh Circuit issued an unpublished opinion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).
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.
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 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.
Claims Already Decided on Direct Appeal
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.
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.
Claim Under Johnson and Welch
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
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. 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 ...