United States v. Cruz, Criminal No. 96-76-P-C (D. Me. 8/22/2000), Criminal No. 96-76-P-C.
| Decision Date | 22 August 2000 |
| Docket Number | (Civil No. 00-119-P-C).,Criminal No. 96-76-P-C. |
| Parties | UNITED STATES OF AMERICA, v. JAMES CRUZ, Defendant. |
| Court | U.S. District Court — District of Maine |
The defendant, appearing pro se, moves this court to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. The defendant was convicted by a jury of conspiracy to possess cocaine base with the intent to distribute, using a firearm in connection with a drug trafficking crime, possession of a firearm by a felon (two counts), possession of ammunition by a felon, possession of an unregistered firearm and possession of a firearm in and affecting commerce, in violation of 18 U.S.C. § 922(g)(1), 922(g)(3), 924(c)(1) and 924(e)(1); 21 U.S.C. § 841(a)(1), 841(b)(1)(B), and 846; and 26 U.S.C. § 5841, 5861(d) and 5871. Judgment (Docket No. 97) at 1. He was sentenced to a term of 420 months. Id. at 3. He contends that he received constitutionally insufficient assistance of counsel at trial and on appeal. Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Petition") (Docket No. 120) at 5-6A.
A section 2255 petition may be dismissed without an evidentiary hearing if "(1) the motion is inadequate on its face, or (2) the movant's allegations, even if true, do not entitle him to relief, or (3) the movant's allegations need not be accepted as true because they state conclusions instead of facts, contradict the record, or are inherently incredible." David v. United States, 134 F.3d 470, 477 (1st Cir. 1998) (internal quotation marks and citation omitted). In this instance, each of the defendant's allegations meets one or more of these criteria and I accordingly recommend that the petition be denied without an evidentiary hearing.
As the First Circuit stated in its opinion on the defendant's direct appeal,
[a]t approximately 1:22 a.m. on August 23, 1996, [the defendant] was detained by a state policeman for driving at 88 mph, which is in excess of the legal speed limit of 65 mph for the Maine Turnpike. As the officer approached [the defendant's] vehicle, he observed a commotion among the occupants. . . . The officer asked [the defendant] to step outside the vehicle and to produce his driver's license, vehicle registration and insurance documentation. While this was taking place, the officer noticed that [the defendant's] shirt was untucked, whereupon he asked [the defendant] to lift his shirt so that his waistband was exposed. Nothing unusual was revealed. The officer then conducted a patdown search of [the defendant], during the course of which he discovered a jackknife and a syringe and needle in his pants pockets. [The defendant] was placed under arrest for possession of illegal drug paraphernalia.
After [the defendant] was arrested, the officer proceeded to search the other occupants of the car. The sum of $5,000 cash was discovered in the purse of the female passenger, who was later identified as [the defendant's] then-girlfriend Ericka Thibodeau, and a 9-mm pistol was recovered from her person. Thereafter, the officer found an ammunition magazine for the pistol on the floor of the car between the front and back seats. An additional magazine and three loose rounds were later found on the floor of the officer's car, directly behind where [the defendant] had been placed after his arrest. Two rounds of 9-mm ammunition were also found tucked between the cushions of the seat that [the defendant] had occupied.
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In Count I of the indictment, [the defendant] was charged with engaging in a conspiracy to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 846. At least 8 witnesses testified that throughout the summer of 1996, they and others purchased crack cocaine from [the defendant]. Each of these witnesses corroborated the other seven, and their testimony was also confirmed by the introduction of evidence seized from [the defendant's] premises, which included cash, drugs, and drug paraphernalia. .. .
[T]he evidence is equally overwhelming that [the defendant] carried the 9-mm pistol that was introduced into evidence during the various phases of his drug deals, including during purchases, transportation, and, most bone-chillingly described by several witnesses, during drug-debt-collection episodes.
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Count X is again a variation of the prior felon-in-possession theme, this one involving a sawed-off shotgun. Witnesses testified that the shotgun was purchased and paid for at [the defendant's] behest, and that thereafter he took possession of this weapon. [The defendant] was a felon and he was in possession of a firearm. . . .
In Count XI, [the defendant] was charged with possessing an unregistered sawed-off shotgun in violation of 26 U.S.C. § 5841, 5861, and 5871. A witness testified to helping [the defendant] to saw the barrel off the shotgun referred to in Count X, which in fact he thereafter used to terrorize this same witness. This weapon was less than 26" overall, with a barrel shorter than 18", and was not registered in [the defendant's] name in the National Firearms Registration and Transfer Record.
United States v. Cruz, 156 F.3d 22, 25-27 (1st Cir. 1998). Evidence was "seized from [the defendant's] premises" in connection with his arrest on September 4, 1996 in Auburn, Maine after Thibodeau reported that he had assaulted her. Trial Transcript, Volume I ("Tr. I") (Docket No. 105) at 28-32, 39-54, 157-62. The defendant's direct appeal was unsuccessful. 156 F.2d at 31.
In its opposition to the petition, the government points out that the defendant failed to sign the form petition which sets forth his seven specific claims and that the memorandum he submitted with the petition was signed but not sworn. Government Opposition to Motion to Vacate, Set Aside or Correct Sentence, etc. ("Government's Opposition") (Docket No. 128) at 6-7; see Petition at 7 and Memorandum of Law in Support of § 2255 Motion ("Defendant's Memorandum"), attached thereto, at 36. The government argues that the petition should be dismissed due to the absence of any sworn factual allegations, citing United States v. LaBonte, 70 F.3d 1396, 1413 (1st Cir. 1995). Government's Opposition at 6-7. After receiving the government's opposition, the defendant filed Petitioner's Declaration in Support of Petitioner's Supplemental Pleading, and Affidavit (Docket No. 129), in which he declares pursuant to 28 U.S.C. § 1746 that all of the allegations in his initial pleadings are true, correct and accurate, id. at 3. The defendant also filed an affidavit (Docket No. 130) adding factual allegations in support of his petition and a revised form petition with his signature (attached to the original petition).
Because the defendant cured the significant procedural deficiencies in his petition before the court was able to consider the petition, it would exalt form over substance to an untenable degree to dismiss the petition without consideration of its merits.
The defendant contends that his trial and appellate counsel provided constitutionally insufficient assistance in the following specific ways: (i) failing to challenge the constitutionality of a New York state conviction that was used to enhance the defendant's sentence; (ii) failing to request a competency examination and hearing; (iii) withdrawing a motion to suppress the evidence found at the Auburn apartment where the defendant was arrested on the state assault charge; (iv) failing to inspect discovery material provided by the government before trial; (v) failing to argue on appeal that trial counsel had been constitutionally ineffective in three specific ways; (vi) failing to request a jury instruction on the limited significance of the defendant's prior convictions;1 and (vii) failing to challenge the court's refusal to give a particular requested jury instruction.
Strickland v. Washington, 466 U.S. 668 (1984), provides the applicable standard for assessing whether a defendant has received ineffective assistance of counsel such that his Sixth Amendment right to counsel has been violated. First, the defendant must show that his counsel's performance was deficient, i.e., that the attorney "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Second, the defendant must make a showing of prejudice, i.e., "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. The court need not consider the two elements in any particular order; failure to establish either element means that the defendant is not entitled to relief. Id. at 697. The "prejudice" element of the test presents the defendant with a high hurdle. He must show more than a possibility that counsel's errors had some conceivable effect on the outcome of the proceeding. Rather, he must affirmatively prove a reasonable probability that the result of the proceeding would have been different if not for counsel's errors. Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996).
The defendant contends that his trial counsel provided constitutionally deficient assistance at sentencing by failing to challenge the constitutionality of a New York conviction for attempted sale of a controlled substance that was used to enhance his sentence. Petition at 5; Defendant's Memorandum at 8-12. This conviction, along with one for attempted aggravated battery, was used pursuant to section 4B1.1 of the United States Sentencing Commission Guidelines ("U.S.S.G.") to find that the defendant was a career offender, resulting in an offense level of 37 rather than the level of 36 calculated in the absence of such status, and was used, again in concert with the...
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