United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Magistrate Judge Justin S.
Anand's Final Report and Recommendation 
(“R&R”), recommending that Movant Edgar
Cruz's (“Cruz”) Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody  (“§ 2255 Motion”) be
denied and that a certificate of appealability be denied.
Also before the Court are Cruz's Objections to Magistrate
Judge's Report and Recommendation 
August 2, 2011, a grand jury, in the Northern District of
Georgia, returned an Indictment  charging Cruz with one
count of possession with intent to distribute at least 5
kilograms of cocaine (Count 1), one count of possession with
intent to distribute at least 500 milligrams of
methamphetamine (Count 2), one count of possession of a
firearm in furtherance of the offenses charged in Counts 1
and 2 (Count 3), one count of possession of a firearm by a
convicted felon (Count 4), and one count of illegal re-entry
into the United States (Count 5). ().
February 12, 2013, Cruz entered into a written plea agreement
and pled guilty to Counts 2 and 3 of the Indictment. (;
[68.1]; ). His Guilty Plea and Plea Agreement [68.1]
included the following “Limited Waiver of Appeal”
LIMITED WAIVER OF APPEAL: To the maximum extent permitted by
federal law, the Defendant voluntarily and expressly waives
the right to appeal his conviction and sentence and the right
to collaterally attack his conviction and sentence in any
post-conviction proceeding (including, but not limited to,
motions filed pursuant to 28 U.S.C. § 2255) on any
ground, except that the Defendant may file a direct appeal of
an upward departure or a variance from the sentencing
guideline range as calculated by the district court. The
Defendant understands that this Plea Agreement does not limit
the Government's right to appeal, but if the Government
initiates a direct appeal of the sentence imposed, the
Defendant may file a cross-appeal of that same sentence.
([68.1] at 10-11). Cruz signed the plea agreement, ([68.1] at
12), and separately signed the following addendum:
I have read the Indictment against me and have discussed it
with my attorney. I understand the charges and the elements
of each charge that the Government would have to prove to
convict me at a trial. I have read the foregoing Plea
Agreement and have carefully reviewed every part of it with
my attorney. I understand the terms and conditions contained
in the Plea Agreement, and I voluntarily agree to them. I
also have discussed with my attorney the rights I may have to
appeal or challenge my conviction and sentence, and I
understand that the appeal waiver contained in the Plea
Agreement will prevent me, with the narrow exceptions stated,
from appealing my conviction and sentence or challenging my
conviction and sentence in any post-conviction proceeding. No
one has threatened or forced me to plead guilty, and no
promises or inducements have been made to me other than those
discussed in the Plea Agreement. The discussions between my
attorney and the Government toward reaching a negotiated plea
in this case took place with my permission. I am fully
satisfied with the representation provided to me by my
attorney in this case.
([68.1] at 13).
February 12, 2013, plea hearing, Cruz made the following
representations to the court:
(1) He understood the trial rights he was forfeiting by
pleading guilty. ( at 5-12).
(2) He understood his plea agreement, he had not received any
threats or promises-other than those in the plea
agreement-inducing him to plead guilty, and he had not
received any instruction or suggestion that he should tell
the court, at the plea hearing, anything other than the
truth. ( at 12-18).
(3) He understood the elements of the offenses to which he
was pleading guilty, and he understood what the government
was required to prove to convict him. ( at 21-23).
(4) He was factually guilty of the offenses to which he was
pleading guilty. ( at 37-41).
(5) He understood that the sentencing range for his drug
trafficking conviction was from 10 years to life in prison,
and that the sentencing range for his firearm conviction was
from 5 years to life in prison. ( at 23-24).
(6) He understood that the court was not bound by the
sentence recommended by the government or the sentencing
guidelines. ( at 25-29, 33-35).
(7) He understood that, under the appeal waiver in his plea
agreement, he was, subject to limited exceptions, waiving his
right to challenge his conviction or sentence on direct
appeal or in collateral proceedings. ( at 29-31).
(8) He was satisfied with his counsel's representation.
( at 20-21).
court accepted Cruz's guilty plea as knowing and
voluntary, and sentenced him to 208 months in prison . (
at 43-44; ...