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Cuevas v. United States

United States District Court, M.D. Florida, Tampa Division

November 1, 2017

FRANKIE CUEVAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES D. WHITTEMORE, UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT are Petitioner's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (CV Dkt. 4), Petitioner's memorandum in support (CV Dkt. 4 Ex. 1), the Government's Response (CV Dkt. 8), and Petitioner's Reply (CV Dkt. 9). Upon review, Petitioner's Section 2255 motion is DENIED. A review of the record shows that his claims are procedurally defaulted.[1]

         Procedural Background

         Pursuant to a plea agreement, Petitioner pleaded guilty to Count One of the Indictment, in which he was charged with conspiracy to possess with intent to distributer and to distribute cocaine (CR Dkts. 47, 50, 53, 54). He was sentenced to 180 months in prison, followed by six years of supervised release. (CR Doc. 61). He did not appeal, but filed a § 2255 motion. (CR Dkts. 67, 68; 8:11-cv-240-T-27AEP, Dkts. 1, 2). In his petition, he raised three claims of ineffective assistance of counsel. Grounds One and Three, which alleged that he was incorrectly sentenced as a career offender and that he was prejudiced by cumulative errors in the case, were denied. (8:11-cv-240~T-27AEP, Dkt 15). An evidentiary hearing was held on Ground Two, in which he alleged that his attorney failed to file an appeal after being requested to do so, and failed to consult with him about an appeal. (Id. at Dkt. 14). The motion was granted on Ground Two, the same sentence was imposed, and he was granted the right to appeal (Id. at Dkt. 19).

         On appeal, he argued that the Government "breached its obligations in the plea agreement to (1) provide him with an opportunity to earn a substantial assistance motion pursuant to [United States Sentencing Guidelines Section] 5K1.1 prior to sentencing, and (2) to make known to the district court the nature and extent of his cooperation with the [G]overnment, " and "that the district court plainly erred by failing to determine that the [G]overnment breached the plea agreement." United Stales v. Cuevas, 507 Fed.Appx. 901, 902 (11th Cir. 2013). He also challenged his sentence as grossly disproportionate to his offense in violation of the Eighth Amendment. Id. at 903. The Eleventh Circuit affirmed. Id. at 903-904.

         Petitioner then filed two motions in his criminal case challenging his career offender enhancement. (CR Dkts. 22, 24). The motions were denied as unauthorized successive Section 2255 motions and dismissed for lack of jurisdiction. (CR Dkt. 26). On reconsideration, the order denying the motions was vacated and Petitioner was ordered to notify the Court "whether he (1) withdraws his motions ..., (2) intends to amend the motions, or (3) desires that the motions be considered, collectively, a Section 2255 motion as filed." (CR Dkt. 27).

         In compliance with the Order, Petitioner filed the instant Petition[2] (8:1 l-cv-240-T-27AEP Dkt. 31; CV Dkt. 4), which presents the following six grounds for relief:

Ground One:
FLORID[]A STATUTES CHAPTER 893 IS OVERB[RO]AD AND NOT A CATEGORICAL GENERIC FELONY DRUG OFFENSE[.]

(CV Dkt. 4 Ex. 1 at 1).

Ground Two:
FLORIDA STATUTE § 893.13-AS MODIFIED BY § 893.101-IS AN INDIVISIBLE STATUTE WHICH DOES NOT PERMIT A COURT TO USE THE MODIFIED CATEGORICAL APPROACH TO FIND THE MISSING GENERIC ELEMENT (KNOWLEDGE OF THE ILLIC[I]T NATURE OF THE SUBSTANCE)[.]

(CV Dkt. 4 Ex. 1 at 19).

Ground Three:
UNDER THE "CATEGORICAL APPROACH" MOVANT'S CONVICTION UNDER THE NOW STRICT LIABILITY FLORIDA DRUG STATUTE IS NOT A DRUG TRAFFICKING OFFENSE AND IS NOT A CONTROLLED SUBSTANCE OFFENSE UNDER § 4B1.2.

(CV Dkt. 4 Ex. Iat21).

Ground Four:
BECAUSE MOVANT'S FLORIDA DRUG PRIORS DID NOT MEET THE DEFINITION OF A "CONTROLLED SUBSTANCE. OFFENSE" IN § 4B1.2 THEY DID NOT QUALIFY AS PREDICATE DRUG OFFENSES UNDER THE CAREER OFFENDER PROVISIONS OF THE GUIDELINES [.]

(CV Dkt. 4 Ex. 1 at 22).

Ground Five:
THE CAREER CRIMINAL ENHANCEMENT IMPOSED ON MOVANT PURSUANT TO § 4B1.2 IS NULL AND VOID BECAUSE IT CONFLICTS WITH TITLE 21 U.S.C. § 851(a)(1)
WHERE THE SENTENCING GUIDELINES CANNOT SUPERSEDED A FEDERAL STATUTE WITH WHICH IT CONFLICTS[.]

(CV Dkt. 4 Ex. 1 at 21)[3]

Ground Six:
MOVANT'S CAREER OFFENDER ENHANCEMENT WAS IMPOSED IN VIOLATION OF THE FULL FAITH AND CREDIT ACT.

(CV Dkt. 4 Ex. 1 at 30).

         Discussion

         All of these grounds relate to Petitioner's classification and enhanced sentence as a career offender, which he argues was applied in ...


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