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Cano v. Warden USP - Terre Haute

United States District Court, S.D. Indiana, Terre Haute Division

July 11, 2018

LUIS CANO, Petitioner,
v.
WARDEN USP - Terre Haute, Respondent.

          ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL JUDGMENT

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT

         Luis Cano, an inmate at Terre Haute U.S. Penitentiary, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). For the reasons explained in this Entry, his petition for writ of habeas corpus is denied.

         I. Background

         Mr. Cano contests the accuracy of the respondent's rendition of the facts in his return to the order to show cause and has moved to strike pages 1-4 of the return. Because the facts disputed by Mr. Cano do not affect the Court's analysis of the claims in his petition, his motion to strike pages 1-4 of the return, dkt. [21], is denied as moot. Consistent with this decision, the Court will not recount the underlying facts of the case in this Entry.

         In September 1998, following a three month jury trial in the Southern District of Florida, Mr. Cano was convicted of 69 counts related to a nationwide cocaine and marijuana trafficking and money laundering network. The district court sentenced Mr. Cano to one mandatory life sentence, 12 concurrent life sentences, and 56 concurrent sentences of 240 months' imprisonment.

         With the assistance of counsel, Mr. Cano appealed. Among other things, he argued that he was entitled to a new trial or resentencing based on the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000). United States v. Cano, 289 F.3d 1354, 1357 n. 4 (11th Cir. 2002). The Eleventh Circuit rejected Mr. Cano's Apprendi claim without discussion. Id. However, it did order the district court to vacate and dismiss one count of possession with intent to distribute marijuana, but otherwise it affirmed Mr. Cano's convictions and sentences on the other 68 counts. The dismissal of Count 13 had no practical effect on Mr. Cano's sentence, it merely removed one of the life sentences ordered to run concurrently.

         In November 2004, Mr. Cano, with retained counsel, filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Among other things, he renewed his argument that he was entitled to a new trial based on Apprendi. Cano v. United States, No. 1:04-cv-22767-JAL, 2008 WL 4755676, at *1 (S.D. F.L. Oct. 27, 2008). Recognizing that the Eleventh Circuit had summarily dismissed the Apprendi claim, and noting that Apprendi was not retroactive on collateral review, the district court denied the § 2255 motion after also finding that his remaining claims had no merit. Id.

         In July 2009, Mr. Cano filed a petition for writ of habeas corpus, 28 U.S.C. § 2241, in the Middle District of Florida. He argued for collateral relief on two grounds attacking the jurisdiction of the district court over his criminal prosecution. The Middle District dismissed the petition because Mr. Cano previously had been denied § 2255 relief and § 2255's saving clause did not apply. The Eleventh Circuit affirmed the district court's dismissal of the petition. Cano v. Warden, FCC Coleman- USP I, 358 Fed.Appx. 107 (11th Cir.2009).

         Now, in this § 2241 petition, Mr. Cano alleges that:

1) under Rosemond v. United States, 134 S.Ct. 1240 (2014), he is factually innocent of his convictions for aiding and abetting;
2) under United States v. Santos, 553 U.S. 507 (2008), his money laundering convictions and sentences are invalid;
3) under Blakely v. Washington, 124 S.Ct. 2531 (2004) and United States v. Booker, 543 U.S. 220 (2005), his mandatory life sentences are unconstitutional;
4) under Glover v. United States, 531 U.S. 198 (2001), his attorneys were ineffective for failing to address Amendments 505 and 506 of the Sentencing Guidelines;
5) his sentences were imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), because the superseding indictment only identified a ...

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