Diaz v. United States of America

Filing 11

ORDER directing Henifen to attest whether or not he consulted with client about an appeal and explain why he did not utilize and file the required Notice. Signed by Magistrate Judge G. R. Smith on 4/20/15. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
NEURBY CELENIA DIAZ,
Movant,
Case No. CV414-272
CR413- 150

V.

UNITED STATES OF AMERICA,
Respondent.

ORDER
Neurby Diaz has filed a 28 U.S.C. § 2255 motion attacking her
conviction and sentence for conspiring to transport women in interstate
commerce for purposes of prostitution and for harboring illegal aliens.
(Doe. 1.) She contends that her appointed attorney, Arvo Henifin, failed
to properly consult with her about her appellate rights. In her initial §
2255 filing, she states:
My lawyer he said he didn't care about my outcome he was going to
get paid anyways. All this was told to me by my interpreter who in
turn told me I was a [bitch] that sold women for sex. My lawyer
[told] me since I did not have money not to even bother to appeal
and to sign papers. I asked what they were for and [he] told [me] it
was to get me probation.

(Doe. 1 at 5-6.) In a supplemental filing, she changes her story a bit,
stating that after sentencing, Henifin told her "no[t] to attempt to
appeal[,] he would not represent me and no one else would. He told me
to sign papers that stated that he would not represent me and I did not
plan to appeal." (Doe. 5 at 7-8.)
Henifin failed to file a Notice' of Post-Conviction Consultation
Certification ("Notice"), a form developed by the Court to remind counsel
of the general duty to "consult" with the client about an appeal by
"advising the defendant about the advantages and disadvantages of
taking an appeal, and making a reasonable effort to discover the
defendant's wishes." Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000); see

also United States v. Zhukov, CR414-196, doe. 37 (S.D. Ga. Dec. 5, 2014)
(Notice filed); Eason v. United States, 2014 WL 4384652 (S.D. Ga. Sept.
3 ) 2014); Ortega v. United States, 2014 WL 3012657 at * 1 n. 2 (S.D. Ga.
July 2, 2014). The Notice requires that both the defendant and counsel
execute the form, thus memorializing their consultation and the
defendant's instructions regarding an appeal.

See Guyton v. United

States, 2013 WL 1808761 at * 2 n. 6 (S.D. Ga. Apr. 29, 2013).

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A lawyer's failure to complete and file the Notice can necessitate
costly, and unnecessary, evidentiary hearings to determine whether
there is any merit to a defendant's claim that his appellate rights were
not protected. Hayes v. United States, 2011 WL 3468799 at * 5 n. 5 (S.D.
Ga. Aug. 9, 2011) ("It is not difficult to estimate that § 2255 motions like
this cost the taxpayers $10,000 or more, and in a time of record national
debt."), adopted, 2011 WL 4704219 (S.D. Ga. Oct. 6, 2011). The costs
associated with conducting the hearing (appointment of counsel for
defendant, transporting him from a distant prison, burdening the court's
time and limited resources) are avoided where defense counsel simply
files the Notice reflecting his client's wishes regarding an appeal.

See

United States v. Henderson, 2014 WL 4063930 at *2 (E.D. La. Aug. 13,
2014) (citing this Court's Notice form in granting a second-chance
appeal).
Again, Diaz says that her attorney brushed aside her questions
about an appeal without any meaningful consultation. Now the Court
must deal with another "lost appeal" § 2255 claim.' See Ortega, 2014 WL

A similar claim in Eason was neutralized by that Notice, sparing counsel there
from being summoned to a "he said, she said" hearing:
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3012657 at * 1 n. 32 (collecting 15 such cases); see also Holland v. United
States, 2014 WL 5241531 at * 3 (S.D. Ga. Oct. 14, 2014) (directing
counsel to attest what became of the missing Notice in the record);

United States v. Jones, 2014 WL 2559980 at * 3 n. 4 (E.D. La. June 5,
2014) (granting lost-appeal relief due to attorney's failure to uphold his
duty-to-confer obligations).
The Court DIRECTS Henifin to attest whether or not he
consulted with client about an appeal and explain why he did not utilize
and file the required Notice. His affidavit is due (and the government
shall ensure that he files it) within 21 days of the date this Order is
served. Reed v. United States, 2014 WL 1347455 at * 2 (S.D. Ga. Apr. 4,
2014), cited in Henderson, 2014 WL 4063930 at * 2. Upon Henifin's
compliance, the Court will direct Diaz to declare, under penalty of
perjury, whether she disagrees with Henifin' attestations.

See Mingo v.

United States, 2014 WL 4926278 at * 1 (S.D. Ga. Oct. 1, 2014) ("Within
Independent grounds support denial of Ground Four of Eason's § 2255 motion,
where she faults her lawyer for failing to file the direct appeal that she claims,
under penalty of perjury, to have expressly requested. Doc. 39 at 8. In fact, she
expressly instructed him not to file a direct appeal. Doc. 41 at 4 ("Notice of
Post—Conviction Consultation Certification," a form bearing Eason's signature,
memorializing her informed decision not to take an appeal).

Eason, 2014 WL 4384652 at * 3.
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21 days of the date this Order is served, Mingo must -- on the attached
form to be returned -- affirm or rebut [his lawyer's] sworn assertions,
then sign it under 28 U.S.C. § 1746. . .
Diaz, who signed her § 2255 motion under penalty of perjury, is
reminded that § 2255 movants who lie to this Court may be prosecuted.'
Finally, the Court will address her remaining claims in a later ruling.
SO ORDERED this

ii
2O day of April, 2015.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN 'DISTRICT OF GEORGIA

Lying under oath, either live or "on paper," is illegal. See United States v.
Roberts, 308 F.3d 1147, 1155 (11th Cir. 2002) (defendant's falsely subscribing to
statement in his habeas petition that he had not previously filed a § 2255 motion was
"material" for purposes of perjury prosecution; statement fooled the clerk of the court
into accepting the "writ" for filing, and led the magistrate judge to consider its merits
until she discovered that the "writ" was a successive § 2255 motion in disguise);
United States v. Dickerson, CR608-36, doc. 1 (S.D. Ga. Dec. 11, 2008) (§ 2255 movant
indicted for perjury for knowingly lying in his motion seeking collateral relief from
his conviction); id., doc. 47 (guilty verdict), cited in Irick v. United States, 2009 WL
2992562 at * 2 (S.D. Ga. Sept. 17, 2009 (unpublished); see also Colony Ins. Co. v. 9400
Abercorn, LLC, 866 F. Supp. 2d 1376 ) 1378 n. 2 (S.D. Ga. 2012).
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