Diaz v. United States of America
Filing
37
ORDER granting Movant's 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Neurby Celenia Diaz, and her sentence VACATED re 34 REPORT AND RECOMMENDATIONS. Accordingly, the government is directed to produced Movant before this Court for resentencing on 8/1/16. Signed by Chief Judge Lisa G. Wood on 6/14/2016. (ca)
Iu the Entteb Otateo flittitt court
for the boutbern flitritt of georgia
'abannajj flibiion
NEURBY CELENIA DIAZ,
Movant,
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V.
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UNITED STATES OF AMERICA,
Respondent.
CV 414-272
CR 413-150
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ORDER
Diaz ("Movant") moves under 28 U.S.C. § 2255 to vacate her
sentence for conspiring to transport women in interstate
commerce for purposes of prostitution and for harboring illegal
aliens. Dkt. No. 25.1 She contends her attorney failed to
properly consult with her about her appellate rights. After a
careful de novo review of the record in this case and the
Magistrate Judge's Report and Recommendation, the Court VACATES
Diaz's sentence and ORDERS that she be resentenced.
Background
Two years ago, the Government indicted Diaz for her role in
a sex trafficking ring. United States v. Mendez-Hernandez
CR413-004, dkt. no. 3 (S.D. Ga. Jan. 11, 2013). She ultimately
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.
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pled guilty on July 18, 2013 to conspiracy to transport a person
in interstate commerce for purposes of prostitution and
harboring an illegal alien. Dkt. No. 7; Dkt. No. 20, p. 1. In
doing so, she waived her direct appeal and collateral review
rights except in two narrow circumstances, one of which was the
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imposition of a sentence above the range set forth in the U.S.
Sentencing Guidelines. Dkt. No. 20, p. 7.
Arvo Henif i-n represented Diaz throughout her case—including
during sentencing. In exchange for dropping her objections to
the presentence report, the Government recommended that the
district judge impose a sentence at the bottom end of the
Guidelines range, which was 57-71 months. Dkt. No. 29, p.
18:19-20, 19:18-22. Despite the Government's recommendation,
the sentencing judge upwardly departed from the advisory
Guidelines range and sentenced Diaz to 72 months imprisonment.
See Dkt. Nos. 7, 17, 21. Diaz never directly appealed, but she
timely filed the instant motion on December 16, 2014. Dkt. No.
25.
Henifin failed to timely file a Notice of Post-Conviction
Consultation Certification, so the Court, in response to Diaz's
appellate rights claim, directed him to attest to whether he
consulted with her about an appeal. Dkt. No. 40, p. 4. He
averred that he had done so immediately after sentencing, though
without an interpreter present. Dkt. No. 42, ¶ 8. Henifin also
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belatedly filed the Notice, which indicated that Diaz, after
consultation, declined to appeal. Id. 191 9-10; Dkt. No. 41.
Diaz then responded to Henifin's version of events. Dkt. No.
44. The Court held an evidentiary hearing on January 28, 2016.
Dkt. No. 57. At the evidentiary hearing, represented by new
counsel, Diaz argued that (1) Henifin's failure to have an
interpreter present immediately after sentencing when he
discussed an appeal with Diaz rendered her decision to forgo one
unknowing and involuntary, and (2) he gave incorrect advice, and
thus provided constitutionally ineffective assistance, by
telling her that she had no good grounds on which to appeal.
See Dkt. No. 61, p. 4. She then reasoned that she suffered
prejudice as a result of that advice because her aboveGuidelines sentence created a "reasonable probability that the
court of appeals. might have had a problem" with her term of
imprisonment. See id., p. 5.
A failure to properly consult with a defendant about an
appeal can constitute ineffective assistance.
"[W]hen there is
reason to think either (1) that a rational defendant would want
to appeal (for example, because there are nonfrivolous grounds
for appeal), or (2) that th[e] particular defendant reasonably
demonstrated to counsel that [s]he was interested in appealing,"
an attorney has a duty to consult. Roe v. Flores-Ortega, 528
U.S. 470, 480 (2000).
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If an attorney breaches his duty to consult (either by not
consulting at all or by failing to properly consult), the
defendant must still show prejudice from that breach. Id. at
481. That requires "demonstrate[ing] that there is a reasonable
probability that, but for counsel's deficient failure to consult
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with h[er] about an appeal, [s]he would have timely appealed."
Id. at 484. A reasonable probability, in turn, "is a
probability sufficient to undermine confidence in the outcome."
United States v. Bejarano, 751 F.3d 280, 285 (5th Cir. 2014)
(quoting Cullen v. Pinhlster, 563 U.S. 170, 190 (2011)).
"[W]hether a given -defendant has made the requisite
[prejudice] showing will turn on the facts of a particular
case." Roe, 528 U.S. at 485. Although the performance and
prejudice prongs often overlap in duty to consult claims - "both
may be satisfied if the defendant shows nonfrivolous grounds for
appeal," id. - "they are not in all cases coextensive." Id. at
486. If, for example, a defendant shows deficient performance
through evidence that she "sufficiently demonstrated to counsel
[her] interest in an appeal," she still needs something more to
establish that "[s]he would have instructed [her] counsel to
file an appeal" had he properly consulted about the prospect.
Id.
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DISCUSSION
The Magistrate Judge's Report and Recommendation recommends
denying Movant's § 2255 petition. Dkt. No. 61, p. 15. The
Magistrate found, among other things, that Henifin did not
improperly consult with Diaz post sentencing by discussing her
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appellate rights without a translator, and, even if his
performance was deficient, Diaz had not shown that she "would
have in.structed [Henlf in] to file an appeal." Id., pp. 7, 15.
The Magistrate Judge further found Diaz had not shown
nonfrivolous grounds for appeal, specifically, that there was
not a reasonable probability that the court of appeals might
have found Diaz's above-Guidelines sentence substantively
unreasonable or that the sentencing judge failed to sufficiently
articulate his reasons for sentencing her so harshly. Id., pp.
9-10. After a de novo review of the record, the Court finds
that a different analysis and outcome is appropriate.
One of the factors a court may consider when determining
whether an attorney has provided effective assistance when
consulting with his client about her appellate rights is whether
the court has also explained those rights to the defendant.
Said another way, when conducting the Strickland prejudice
analysis, even if a defendant's counsel's performance was
deficient, the defendant might not be able to meet the
Strickland prejudice requirement if the record shows defendant
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was informed of her appeal rights by the court, for example,
during the plea hearing and/or again at sentencing. See, e.g.,
Estrella-Garcia v. United States, No. C07-4030-MWB, 2009 WL
2751004 (N.D. Iowa Aug. 26, 2009) (holding that, even if
counsel's performance was deficient, the defendant was not
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prejudiced by any failure to notify on counsel's part because
defendant was advised of his rights by the court, with the help
of an interpreter). Indeed, Fed. R. Crim. P. 32(j) (1) (B)
requires the sentencing Court, regardless of a defendant's plea,
to "advise the defendant of any right to appeal the sentence."
As discussed below, the sentencing court did not do so in this
case.
A defendant's right to appeal her sentence is governed
by 18 U.S.C. § 3742(a), which provides:
(a) Appeal by a defendant.--A defendant may file a
notice of appeal in the district court for review of
an otherwise final sentence if the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect
application of the sentencing guidelines; or
(3) is greater than the sentence specified in the
applicable guideline range to the extent that the
sentence includes a greater fine or term of
imprisonment, probation, or supervised release than
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the maximum established in the guideline range, or
includes a more limiting condition of probation or
supervised release under section 3563(b) (6) or (b) (11)
than the maximum established in the guideline range;
or
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(4) was imposed for an offense for which there is no
sentencing guideline and is plainly unreasonable.
18 U.S.C. § 3742 (emphasis added) . Though Diaz pled guilty
pursuant to a plea agreement and thereby waived some appeal
rights, she did not waive her right to appeal the imposition of
a sentence above the range recommended by the U.S. Sentencing
Guidelines. Dkt. No. 7; Dkt. No. 20, p. 7.
At the sentencing hearing, the Court sentenced Diaz to
imprisonment with the Bureau of Prisons for a term of 72 months,
consisting of a term of 60 months' imprisonment as to Count 1
and 72 months imprisonment as to Count 2, to be served
concurrently. Dkt. No. 29, p. 21:2-10, 24:4. The Court
acknowledged that, "[w]ith a total offense level of 25, [and] a
criminal history category of I," the Sentencing Guidelines'
"advisory range would be 57 to 71 months." Id. at p. 11:8-10.
The 72-month sentence was one-month over the Sentencing
Guidelines recommendation, and, thus, an appealable sentence.
Pursuant to Fed. R. Crim. P. 32(j) (1) (B), the sentencing
court was required to advise Diaz of her "right to appeal the
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sentence." The following is the sentencing court's entire
explanation of Diaz's appeal rights, given at the end of
sentencing hearing.
THE COURT: The defendant has waived all rights
conferred by 18 U.S.C. 3742 to appeal the sentence.
She's waived the right to appeal the sentence on any
other ground and waived the right to attack the
sentence in any post-conviction proceeding.
Are there any objections to the Court's finding
of fact, conclusion of law or the manner in which the
sentence was pronounced, Ms. Groover [attorney for the
Government]?
MS. GROOVER: No, sir.
MR. HENIFIN: No, sir.
THE COURT: Thank you, Mr. Henif in.
MS. JACOBS [probation officer]: Your Honor,
since the Court has imposed an upward variance, I
believe that Ms. Diaz may have some appeal rights.
THE COURT: Thank you. Call the next case.
(Proceedings concluded at 10:20 a.m.)
Dkt. No. 29, p. 24:10-24. The sentencing court did not properly
or accurately inform Diaz of her rights to appeal. Furthermore,
neither Henifin nor the attorney for the Government corrected
the sentencing court's error when asked, on the record, whether
they had any objections to the court's pronouncement. See id.,
p. 24:14-18. Rather, the only person who made an effort to
correct the court's error was Ms. Jacobs, the probation officer.
Id., p. 24:20-22. Still, the sentencing court did not address
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Ms. Jacob's concern on the record but instead concluded the
hearing.
Id., p. 24:23.
In conjunction with this Court's consideration of Diaz's
motion to vacate her sentence based upon her attorney's alleged
failure to consult regarding her appeal rights, the Court must
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determine what effect the sentencing court's failure to advise
Diaz of her appeal rights has on her motion and sentence.
The Courts of Appeal that have considered a
criminal defendant's remedy when he has not properly
been advised of his right to appeal [by the court]
have split as to the appropriate remedy. The First,
Third, Sixth, and Seventh Circuits have adopted a per
se rule "that the failure to advise a defendant of the
right to appeal requires vacation of the sentence and
remand to the district court for resentencing and
notice as to the right of appeal." United States v.
Butler, 938 F.2d 702, 703 (6th Cir.1991); accord
United States v. Deans, 436 F.2d 596, 599 n. 3 (3d
Cir.), cert. denied, 403 U.S. 911, 91 S.Ct. 2211, 29
L.Ed.2d 688 (1971); United States v. Benthien, 434
F.2d 1031, 1032 (1st Cir.1970); Nance v. United
States, 422 F.2d 590, 592 (7th Cir.1970); see also
United States V. Padilla, 1990 WL 33761 at *1, 1990
U.S.Dist. LEXIS 2987 at 3 (S.D.N.Y. March 20, 1990)
(Sprizzo, J.) (vacating sentence and ordering
resentencing based on failure to advise of right to
appeal, aff'd, 956 F.2d 1159 (2d Cir.1992) . In
contrast, the Fourth, Fifth, and Eighth Circuits apply
a harmless error analysis to situations in which the
district court has not advised a criminal defendant of
his right to appeal. See United States v. GarciaFlores, 906 F.2d 147, 148-49 (5th Cir.1990) (per
curiam); United States v. Drummond, 903 F.2d 1171,
1173 (8th Cir.1990), cert. denied, 498 U.S. 1049, 111
S.Ct. 759, 112 L.Ed.2d 779 (1991). The Second Circuit
has not addressed this issue directly but in [United
States v.] Ferraro, [992 F.2d 10 (2d Cir. 1993),]
suggested that, if presented with the appropriate
case, it would adopt the strict compliance standard
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adopted by the First, Third, Sixth, and Seventh
Circuits.
Hernandez v. United States, 839 F. Supp. 140, 147 (E.D.N.Y.
1993). This Court is bound to follow the Fifth Circuit in
Garcia-Flores, 906 F.2d at 148-49, which applies the harmless
error doctrine. See Bonner v. City of Prichard, Ala., 661 F.2d
1206, 1209 (11th Cir. 1981) (holding that decisions of the
former Fifth Circuit handed down prior to the close of business
on September 30, 1981, are binding in the Eleventh Circuit).
Garcia-Flores provides that a defendant need not be informed "in
open court" of his right to appeal but must "merely be 'apprised
of his right to appeal in substantial compliance with the
rule.'" 906 F.2d at 149 (citing Godin v. United States, 495
F.2d 560, 561 (5th Cir.), cert denied, 419 U.S. 995 (1974)).
Garcia-Flores also provides that a court's failure to apprise a
defendant of his right to appeal was harmless error if the
defendant was notified of his rights by his attorney. Id.
(citing Chapman v. United States, 469 F.2d 634 (5th Cir. 1972)).
The Court finds that the sentencing court did not apprise
Diaz of her right to appeal in "substantial compliance" with
Fed. R. Crim. P. 32(j) (1) (B). To the contrary, the sentencing
court told Diaz she did not have any appeal rights and, when
corrected by Ms. Jacobs at the hearing, failed to correct
itself. The Court is left to determine whether the sentencing
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court's misstep should be deemed harmless as a result of Mr.
Henifin's efforts to inform Diaz of her appeal rights. As noted
above, Henifin did not correct the sentencing court's inaccurate
summary of Diaz's appeal rights during the sentencing hearing.
The Court then must analyze what Henifin did outside of the
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courtroom to inform Diaz of her appeal rights.
A key issue discussed in the parties' briefs and the
Magistrate Judge's Report and Recommendation is the absence of
an interpreter when Mr. Henifin spoke with Diaz after the
sentencing hearing to determine whether Diaz wanted to appeal.
Throughout the record, Mr. Henifin stated that while Diaz can
speak English for typical day-to-day topics, she requires an
interpreter for more complicated discussions. For example, at
the evidentiary hearing on the pending motion to vacate, Henifin
testified that Diaz speaks English, but he "would not attempt to
explain something legally sophisticated like the concept of
conspiracy or all the elements of a crime as indicted." See
also Dkt. No. 35, p. 3-4 (Henifin stating that Diaz "does speak
enough English for day-to-day life in the United States .
however, for anything complicated, such as the legal
ramifications of what she's doing, she's.much more comfortable
in Spanish"); see also Dkt. No. 29, p. 9:1-2 (Diaz testifying
that she cannot read English).
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After reviewing the record and various hearing transcripts,
the Court does not find that the sentencing court's failure to
properly advise Diaz of her appeal rights was harmless. Mr.
Henif in testified during the evidentiary hearing that he
discussed the Notice of Post-Conviction Consultation
Certification form and Diaz's potential appeal rights with her
before the sentencing hearing with the aid of an interpreter.
He also testified that he explained to Diaz, before sentencing,
that she had no appeal rights as long as she was sentenced
within guidelines. However, that discussion occurred before the
sentencing court misinformed Diaz that she had no appeal rights.
Moreover, Henif in's testimony does not indicate that he or Diaz
ever seriously contemplated that she would be given a sentence
above the guidelines. At the very least, the Court can see how
Diaz would be confused as to what, if any, appeal rights
remained after sentencing.
Henifin also testified that, after the sentencing hearing,
he informed Diaz that she could appeal because her sentence was
above guidelines. Mr. Henifin's testimony does not reflect that
Mr. Henif in addressed the sentencing court's misinformation.
The parties do not dispute that an interpreter was not present
for this meeting, and the Court is not convinced that this
discussion was not sufficiently sophisticated or complicated to
warrant one. As the Magistrate Judge noted in the Report and
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Recommendation when recommending a Certificate of Appealability
be issued, "the risks and benefits of appealing her sentence particularly given the interaction between the Guidelines, her
plea agreement, and what could happen on remand - could qualify
as complex enough to warrant a translator." Dkt. No. 61, P. 15
n.h. Thus, the Court is not convinced that Mr. Henif in's
explanation of Diaz's appeal rights—without an interpreter
present—is sufficient to undo the confusion undoubtedly caused
by the sentencing court's misinformation regarding Diaz's appeal
rights. Moreover, the Court finds there is a reasonable
probability that, but for the sentencing court's misinformation
in combination with Henifin's failure to consult with Diaz after
sentencing with the aid of an interpreter, Diaz would have
timely appealed. Roe, 528 U.S. at 484. As the Magistrate Judge
noted in the Report and Recommendation, Diaz's sentence was
somewhat surprising because both Henif in and the Government
recommended to the sentencing court a within-Guidelines, and
thus unappealable, sentence; an appeal would have cost Diaz
nothing financially; and it was reasonably likely that she would
have been resentenced at the top of the sentencing range and not
above it. See Dkt. No. 61, p. 15-16 n.h.
Accordingly, the sentencing court's failure to advise Diaz
of her appeal rights was not harmless. Garcia-Flores, 906 F.2d
at 148-49. The Court therefore finds it appropriate under these
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limited circumstances to vacate Diaz's sentence and order that
she be resentenced.
CONCLUSION
For the reasons set forth above, Plaintiff's § 2255 motion,
dkt. no. 25, is GRANTED, and her sentence VACATED.
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Accordingly,
the government is directed to produce Movant before this Court
for resentencing on August 1, 2016.
SO ORDERED, this 14th day of June, 2016.
LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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