The opinion of the court was delivered by: Hon. Marianne O. Battani
OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Before the Court is Petitioner Jose Cruz's Objection to the Magistrate Judge's Report and Recommendation ("R&R") that this Court Deny Petitioner's § 2255 Motion to Vacate, Set Aside, or Correct His Sentence. (Doc. 168; see doc. 167). For the reasons that follow, the Court adopts the Magistrate Judge's R&R and denies Cruz's § 2255 motion.
Cruz was indicted on three counts: (1) conspiracy to distribute and distribution of marijuana, 21 U.S.C. § 846; (2) aiding and abetting the use of an explosive device during or in relation to a drug trafficking crime, 18 U.S.C. §§ 924(c)(1)(B)(ii) and 2; and (3) aiding and abetting the use of firearms during or in relation to a drug trafficking crime, 18 U.S.C. §§ 924(c) and 2. At trial, the government presented evidence indicating that Cruz conspired with others to rob various "drug houses" using weapons and, in one instance, a Molotov cocktail. Following trial, a jury found Cruz guilty of all three charges against him. The Court sentenced Cruz to one day imprisonment on Count 1, 360 months' imprisonment on Count 2, and 60 months' imprisonment on Count 3, all to run consecutively. Cruz appealed his convictions to the Sixth Circuit and raised issues involving the Court's failure to instruct on a lesser-included offense and vouching for a witness. The Sixth Circuit affirmed Cruz's convictions.
Cruz subsequently filed the present Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. In this motion, Cruz claimed the following:
1. The jury erred by convicting him of conspiring to distribute and distribution of marijuana despite the fact that there was insufficient evidence;
2. The evidence presented in support of the aforementioned charge "amounted to a variance of what was charged in the indictment";
3. He was improperly denied effective assistance of counsel when the district court denied both his motion to substitute counsel and his counsel's motion to withdraw;
4. He was denied due process of law at sentencing when he was sentenced twice for violating 18 U.S.C. § 924(c)(1); and
5. He was denied effective assistance of counsel by his trial counsel's failure to object at sentencing to the aforementioned denial of Cruz's right to due process.
(Docs. 148, 157). The Magistrate Judge recommended that this Court deny the Motion to Vacate. In particular, the Magistrate Judge determined that Issues 1 - 4 were procedurally barred and Cruz had not shown both prejudice and good cause for failing to raise the claims on direct appeal. (Doc. 167). Furthermore, the Magistrate Judge found that Cruz's claim of ineffective assistance of trial counsel failed because it would have been futile for trial counsel to raise Cruz's objection to being sentenced twice under the same statute. Now before the Court are Cruz's objections that the Magistrate Judge's R&R is mistaken because (1) he has established cause and prejudice due to the fact that there was no testimony that he sold drugs; and (2) he was improperly sentenced twice under 18 U.S.C. § 924(c)(1).
As an initial matter, the Court notes that pro se pleadings - such as Cruz's - are to be liberally construed. See Williams v. Browman, ...