Diaz v. United States of America

Filing 15

ORDERED that the Deputy Clerk shall schedule an evidentiary hearing on Petitioner's "lost appeal" claim and select counsel to represent her. The Clerk shall also ensure that a translator be available at the hearing. Signed by Magistrate Judge G. R. Smith on 12/2/2015. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
NEURBY CELENIA DIAZ,
Movant,
Case No. CV414-272
CR413450

V.

UNITED STATES OF AMERICA,
Respondent.

ORDER
Neurby Diaz moves to vacate her conviction and sentence for
conspiring to transport women in interstate commerce for purposes of
prostitution and for harboring illegal aliens. Doe. 25;' 28 U.S.C. § 2255.
She raises four grounds for relief, including a claim that her attorney,
Arvo Henifin, failed to preserve her appellate rights. Doe. 25 at 4.
Because there exists a material factual dispute regarding that claim, Diaz
is entitled to an evidentiary hearing. It is therefore unnecessary to
address at this time the other grounds asserted in her § 2255 motion.
Two years ago, Diaz was indicted for her role in a sex trafficking
ring.

1

United States v. Mendez-Hernandez, CR413-004, doe. 3. She

All record cites are to the criminal docket in CR413-150 unless otherwise noted,
and all page numbers cited are those created by the Court's electronic docketing
software.

ultimately pled guilty on July 18, 2013 to conspiracy to transport a
person in interstate commerce for purposes of prostitution, and
harboring an illegal alien. Docs. 7, 20.
Henifin represented Diaz at her plea hearing and at sentencing.
Docs. 7, 17. She did not file a direct appeal but timely filed the instant
motion on December 16, 2014. Doc. 25. Her third ground for relief (in
raw, unedited form):
My lawyer he said he didn't care about my outcome he was going to
be paid anyways all this was told to me by my interpreter who in
turn told me I was a b***h 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 my probation.
Doc. 25 at 5.
In a supporting brief, Diaz's story shifted a bit. There, she alleged
that 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."
Doc. 33 at 7-8. Because Henifin failed to file a Notice of Post-Conviction
Consultation Certification ("Notice"),' the Court, in response to Diaz's

2

The Notice is a form developed by the Court to (1) remind counsel of the general
duty to "consult" with the client about an appeal by "advising the defendant about
2

appellate rights claim, directed him to attest to whether he consulted
with her about an appeal. Doc. 40 at 4.
Henifin averred that:
[i]mmediately after sentencing and without an interpreter, I spoke
to Diaz about the benefits and consequences of filing an appeal.
Diaz answered my questions appropriately and appeared to be able
to understand me and to communicate with me without the
assistance of an interpreter. I read Diaz the [Notice] and asked her
which option (to appeal or not to appeal) she wanted to check. Diaz
decided that she did not want to appeal her sentence and the option
not to file an appeal was checked.
Doc. 42 at 2-3. Per the Court's instructions, Diaz responded to Henifin's
version of events:
I asked Mr. Hen[i]fin about an appeal. He told me not to worry
about an appeal and with such appeal I could face more time. He
then proceeded to pass a piece of paper and pen through the door
telling me to sign the paper. He did not read the paper to me. I did
not comprehend everything that was being said, the little that I did
understand was that the paper was not to appeal. He told me not
to appeal; that I would not get a court appointed attorney and that
his job was done; that I would have to hire an attorney and I did
not have the means to do so.
Doc. 44 at 1. According to Diaz, that amounts to ineffective assistance of
counsel. Doc. 25 at 5.
the advantages and disadvantages of taking an appeal, and making a reasonable
effort to discover the defendant's wishes," and (2) memorialize that consultation. Roe
v. Flores-Ortega, 528 U.S. 470, 478 (2000); see also United States v. Zhukov, CR414196, 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).
3

Diaz never specifically instructed Henifin to file an appeal on her
behalf.' But a complete failure to appeal is not the only appellate rights
claim available. Attorneys also may commit the ineffective assistance sin
by failing to consult regarding the advantages and disadvantages of an
appeal. 4
At a minimum, the Court faces a factual dispute over whether
Henifin properly consulted with Diaz regarding her appellate rights.
Henifin says he did. Doc. 42. Diaz, on the other hand, says that he
threatened to walk away from her case (something he could not do) and
forced her to sign the Notice stating that she elected not to appeal. Doc.
44 at 1. That's enough to warrant an evidentiary hearing.

See Rosin v.

United States, 786 F.3d 873, 878 (11th Cir. 2015) (entitlement to an
"[A]n attorney's failure to file a requested notice of appeal is per se ineffective
assistance of counsel." Roe v. Flores-Ortega, 528 U.S. 470, 483-84 (2000); Gaston v.
United States, 237 F. App'x 495, 495 (11th Cir. 2007). And a defendant claiming
ineffective assistance on that score need not demonstrate an ability to raise
meritorious issues on appeal. Roe, 528 U.S. at 477-78. Diaz, in response to Henifin
specifically denying ever being asked to file an appeal (doc. 42 at 2), says only that
she "asked about an appeal," not that she instructed Henifin to file one. Doe. 44 at 1.
Roe provides the analytical framework for this claim, too. Where a defendant does
not clearly express her wishes regarding an appeal, courts must ask three separate
questions: "(1) did counsel properly consult with his client about an appeal; (2) if not,
did counsel have a duty to consult under the particular circumstances of the case; and
(3) if counsel had, but failed to honor, a duty to consult, did the defendant suffer any
prejudice as a result of counsel's deficient performance." Reed v. United States, 2014
WL 2465563 at * 1 (S.D. Ga. June 2, 2014) (citing Roe, 528 U.S. at 478-84), adopted,
2014 WL 2930619.
4

evidentiary hearing requires "credible allegation[s]" of attorney
ineffective assistance).
Hence, the Deputy Clerk shall schedule an evidentiary hearing on
Neurby Diaz's "lost-appeal" claim and select counsel to represent her.

See Rule 8(c) of the Rules Governing Section 2255 Cases. 5 The Clerk
shall also ensure that a translator be available at the hearing. The Court
will reach Diaz's remaining § 2255 grounds for relief in a post-hearing
ruling.
SO ORDERED this,? day of December, 2015.

UNfT1IFATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

This is required where the movant qualifies for appointment of counsel under 18
U.S.C. § 3006A, which Diaz does (she qualified at the inception of this case). See
Nguyen v. United States, 487 F. App'x 484, 4845 (11th Cir. 2012) (directing district
court to appoint counsel for § 2255 movant, then resolve ineffective-assistance claim
during required evidentiary hearing).
5