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Cruz v. United States

United States District Court, N.D. Georgia, Atlanta Division

April 10, 2017

EDGAR CRUZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Magistrate Judge Justin S. Anand's Final Report and Recommendation [107] (“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 [101] (“§ 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 [116] (“Objections”).[1]

         I. BACKGROUND [2]

         On August 2, 2011, a grand jury, in the Northern District of Georgia, returned an Indictment [1] 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). ([1]).

         On February 12, 2013, Cruz entered into a written plea agreement and pled guilty to Counts 2 and 3 of the Indictment. ([68]; [68.1]; [96]). His Guilty Plea and Plea Agreement [68.1] included the following “Limited Waiver of Appeal” provision:

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).

         At his 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. ([96] 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. ([96] 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. ([96] at 21-23).
(4) He was factually guilty of the offenses to which he was pleading guilty. ([96] 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. ([96] at 23-24).
(6) He understood that the court was not bound by the sentence recommended by the government or the sentencing guidelines. ([96] 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. ([96] at 29-31).
(8) He was satisfied with his counsel's representation. ([96] at 20-21).

         The court accepted Cruz's guilty plea as knowing and voluntary, and sentenced him to 208 months in prison . ([96] at 43-44; ...


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