Diaz v. USA

Filing 9

MEMORANDUM DECISION AND ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). No certificate of appealability shall issue. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

NOEL DIAZ,

Case No. 1:12-cv-00144-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

INTRODUCTION
Pending before the Court is Noel Diaz’s Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (Dkt. 1). Having reviewed the record, including
the record in the underlying criminal case, the Court will deny the petition.
BACKGROUND
Diaz was indicted on February 9, 2011, on one count of conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846; and
one count of distributing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), and 846. (Dkt. 1.) Diaz entered into a plea agreement with the Government,
in which he agreed to plead guilty to count one, and the Government agreed to dismiss
count two. In that agreement, Diaz agreed to waive his appellate and 28 U.S.C. § 2255
rights. Plea Agreement, Ex. A, ¶ VI. On June 15, 2011, Diaz entered a knowing and
voluntary plea before Magistrate Judge Ronald E. Bush. (Dkt. 33.) On September 14,
2011, Diaz was sentenced to 108-months imprisonment, four years of supervised release,
and a $100 special assessment on Count One. (Dkt. 54.) Count Two was dismissed by the
Government.
Diaz then filed a motion to vacate his sentence under 28 U.S.C. § 2255 on March
20, 2012.
LEGAL STANDARD
Section 2255 provides four grounds that justify relief for a federal prisoner who
challenges the fact or length of his detention: (1) “that the sentence was imposed in
violation of the Constitution or laws of the United States;” (2) “that the court was without
jurisdiction to impose such sentence;” (3) “that the sentence was in excess of the
maximum authorized by law;” and (4) that the sentence is otherwise “subject to collateral
attack.” 28 U.S.C. § 2255(a). Despite this seemingly broad language, “the range of claims
which may be raised in a § 2255 motion is narrow.” United States v. Wilcox, 640 F.2d
970, 972 (9th Cir.1981).
A response from the government and a prompt hearing are required “[u]nless the
motion and the files and records of the case conclusively show that the prisoner is entitled
to no relief ....“ 28 U.S.C. § 2255(b); United States v. Leonti, 326 F.3d 1111, 1116 (9th

Cir. 2003) (quotation omitted). To obtain an evidentiary hearing, a defendant “must make
specific factual allegations which, if true, would entitle him to relief on his claim.”
United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990). Conclusory statements,
without more, are insufficient to require a hearing. United States v. Johnson, 988 F.2d
941, 945 (9th Cir. 1993).
ANALYSIS
Diaz moves to vacate his sentence based on two ineffective-assistance-of-counsel
claims. Diaz alleges that his counsel was ineffective because: (1) his counsel failed to
argue any mitigating factors that would have persuaded the court to impose a lesser
sentence; and (2) his counsel failed to inform him of the Fast Track Program, which
would have allowed him to be deported sooner rather than serving his entire 108-month
sentence before deportation. Def.’s Mot., Dkt. 1. Even accepting the truth of Diaz’s
factual allegations, no hearing is warranted. The Court will decide the motion based on
the briefing and the record.
1. Waiver of Appeal Rights
The Government contends that Diaz waived his right to bring the claims alleged in his
§ 2255 Motion. A review of the Plea Agreement and the plea colloquy supports this
contention.
Pursuant to the Plea Agreement, in return for the concessions made by the
Government, Diaz agreed to waive his right to appeal or to seek relief under § 2255

except under certain limited circumstances.1 Plea Agreement ¶ VI, Dkt. 5. More
specifically, Diaz agreed to waive his right to file a § 2255 motion except for one alleging
ineffective assistance of counsel based solely on information not known to his at the time

1

The full waiver provision provides as follows:
In exchange for this Agreement, and except as provided in subparagraph B, the
defendant waives any right to appeal or to collaterally attack the conviction, entry of
judgment, and sentence.
The defendant acknowledges that this waiver shall result in the dismissal of any
appeal or collateral attack the defendant might file challenging the plea, conviction or
sentence in this case. Further, if the defendant violates this waiver it will be a breach of
this Agreement and the Government may withdraw from this Plea Agreement and take
other remedial action.
If the defendant believes the Government has not fulfilled its obligations under
this Agreement, the defendant will object at the time of sentencing; further objections are
waived.
Notwithstanding subparagraph A, the defendant shall retain the right to file one direct
appeal only if one of the following unusual circumstances occur; the defendant
understands that these circumstances occur rarely and that in most cases this Agreement
constitutes a complete waiver of all appellate rights:
1. the sentence imposed by the District Court exceeds the statutory maximum;
2. the District Court arrived at an advisory Sentencing Guidelines range by
applying an upward departure under Chapter 5K of the Guidelines; or
3. the District Court exercised its discretion under 18 U.S.C. § 3553(a) to impose
a sentence that exceeds the advisory Sentencing Guidelines range as determined
by the District Court.
Notwithstanding subparagraph A, the defendant may file one habeas petition (motion
under 28 U.S.C. § 2255) for ineffective assistance of counsel only if: (1) the motion is
based solely on information not known to the defendant at the time the District Court
imposed sentence; and (2) in the exercise of reasonable diligence, the information could
not have been known by the defendant at that time.

sentence was imposed and which, in the exercise of reasonable diligence, could not have
been known by him at that time. Id. at ¶ VI.B at 10.
A defendant may waive his statutory right to file a § 2255 motion challenging his
sentence. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.), cert. denied, 508 U.S.
979 (1993). However, the plea agreement must expressly state that the right to bring a §
2255 motion is waived in order for the waiver to be valid. United States v. Pruitt, 32 F.3d
431 (9th Cir.1994) (finding that language in plea agreement that “he will not appeal
whatever sentence is imposed by the court” did not constitute a waiver of the right to
bring a § 2255 motion). Nevertheless, even an express waiver may not bar an ineffective
assistance of counsel claim challenging the knowing and voluntary nature of the plea
agreement or the voluntariness of the waiver itself. United States v. Jeronimo, 398 F.3d
1149, 1156 n. 4 (9th Cir.2005). See also Washington v. Lampert, 422 F.3d 864, 871 (9th
Cir.2005) (finding waiver of right to file § 2254 petition is unenforceable with respect to
an ineffective assistance of counsel claim challenging the voluntariness of the waiver
itself).
Here, the waiver provision specifically states that the right to file a § 2255 motion is
waived except for a § 2255 motion alleging ineffective assistance of counsel based solely
on information not known to his at the time sentence was imposed. None of the
allegations Diaz advances was unknown to his at the time his sentence was imposed.
Therefore, unless his waiver was unknowing and involuntary, all of his claims are barred.
Diaz does not claim that the ineffective assistance of counsel rendered the waiver
provision in his plea agreement unknowing, involuntary, or invalid. Diaz first claims that

his counsel was ineffective based on an allegation that counsel failed to raise any
mitigating evidence. Diaz fails to specify what mitigating evidence should have been
presented, and he does not say that it was not known to him at the time of his sentencing.
Diaz next claims that counsel was ineffective because he failed to seek a fast-track
departure. But, as described below, the fast-track option was not available to Diaz, and
this was known to Diaz at the time because he pleaded guilty to a drug offense.
Regardless, however, Diaz’s ineffective assistance of counsel claims would fail.
2. Ineffective Assistance of Counsel
A. Legal Standard
To prevail on an ineffective assistance of counsel claim, a defendant must show
(1) that his representation fell below objectively “reasonabl[e] effective service” and (2)
the reasonable probability that the result was prejudiced by counsel’s actions. Strickland
v. Washington, 466 U.S. 668, 687-688 (1984). The Strickland two-part test is applicable
to cases where a defendant claims ineffective assistance of council during a guilty plea.
Hill v. Lockhart, 474 U.S. 54, 58 (1985). Allegations that are merely conclusory are
insufficient to support a claim for ineffective assistance of counsel. United State v.
Johnson, 988 F.2d 941, 945 (9th Cir. 1993). The Court may evaluate the elements of
ineffective counsel in either order, and need not show that both elements are not if there
is insufficient showing of one. Id. at 697.
Generally, there is no rule that defines the basis for a finding of ineffective
counsel; rather it is based on case specific circumstances. Strickland, 466 U.S. at 690.
However, there is a presumption that “counsel’s conduct falls within a wide range of

reasonable professional assistance.” Id. To show that counsel did not perform reasonably
effective service, Diaz must show that counsel made errors that no reasonable attorney
would have made under the same circumstances. Id. In evaluating counsel performance,
the court should analyze performance throughout the case to determine if the alleged
erroneous conduct “overcomes the presumption that counsel rendered reasonable
professional assistance.” Kimmelman v. Morrison, 477 U.S. 365, 386 (1986).
To show prejudice, a defendant must show that without counsel’s errors, there is a
“reasonable probability” that the result of the case would be different. Hill v. Lockhart,
474 U.S. 52, 58 (1985). A reasonable probability is “a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The burden to show
prejudice is on the moving party. Id. The standard to show prejudice is “highly
demanding.” Kimmelman, 477 U.S. at 381-82. Even if there were an unreasonable error
by counsel, if it does not affect the outcome, the judgment should not be set aside.
Strickland, 466 U.S. at 62.
B. Mitigating Factors
Diaz does not specify which mitigating factors that counsel failed to raise. Without
knowing what those mitigating factors are, the Court cannot say that Diaz suffered
prejudice for counsel’s alleged failure to raise them. More importantly, a sentencing court
is required by Sentencing Guideline section 1.B1.2(b) to factor relevant conduct, as
described in section 1B1.3, into the sentencing determination. Because section 1.B1.2(b)
instructs the sentencing judge to apply the factors in section 1B1.3, they are automatically
applicable, and therefore counsel’s alleged failure to raise them with the sentencing judge

is harmless, and therefore counsel's alleged failure to raise the issue did not constitute
ineffective assistance. Therefore, even if Diaz could raise this claim, it would fail.
C. Fast-Track Program
The defendant must meet certain minimum requirements to be eligible for a
downward departure under a fast-track sentencing program. Id. at 319–20. First, the
defendant must promptly plead guilty to the charges. Second, the defendant must enter a
written plea agreement that contains an accurate factual description of the offense
conduct, an agreement not to file pretrial motions under Federal Rule of Criminal
Procedure 12(b)(3), and a waiver of the right to appeal or challenge the conviction,
except on the issue of ineffective assistance of counsel. Id.
Here, Diaz, relying specifically on the fast-track program and the Justice
Department's 2012 policy change, appears to argue that his attorney was ineffective for
failing to seek a fast-track departure based merely on the fact he is in this country
illegally without regard to his offense of conviction. This argument must fail.
Fast-track sentencing was not available to Diaz at sentencing. First, the fast-track
downward departure is not available in the District of Idaho or in any district for the drug
offenses of which Diaz was convicted under 21 U.S.C. §§ 841 and 846. Therefore, Diaz
did not suffer prejudice because of the failure of his counsel to make the motion.
Diaz has failed to meet Strickland's deficient performance prong as well. His trial
counsel's failure to request a fast-track departure cannot be characterized as unreasonable
by prevailing professional standards. As noted above, Diaz was ineligible for a fast-track
reduction based on the crime with which he was charged and convicted. Based on his

obvious ineligibility, this Court cannot hold that any reasonable lawyer would have made
a request for a fast-track departure at the sentencing hearing. Because Diaz has not shown
unreasonable performance by his attorney or prejudice this Court must dismiss this claim.
CERTIFICATE OF APPEALABILITY
A § 2255 movant cannot appeal from the denial or dismissal of his § 2255 motion
unless he has first obtained a certificate of appealability. 28 U.S.C. § 2253(c); Fed.
R.App. P. 22(b). A certificate of appealability will issue only when a movant has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this standard when the court has dismissed a § 2255 motion (or claims within a §
2255 motion) on procedural grounds, the movant must show that reasonable jurists would
find debatable (1) whether the court was correct in its procedural ruling, and (2) whether
the motion states a valid claim of the denial of a constitutional right. Slack v. McDaniel,
529 U.S. 473, 484 (2000). When the court has denied a § 2255 motion or claims within
the motion on the merits, the movant must show that reasonable jurists would find the
court's decision on the merits to be debatable or wrong. Id.; Allen v. Ornoski, 435 F.3d
946, 951 (9th Cir.2006).
After carefully considering the record and the relevant case law, the Court finds
that reasonable jurists would not find the Court's rulings on Diaz’s claims to be debatable
or wrong. Accordingly, a certificate of appealability will not issue.

ORDER
O
IT IS OR
RDERED th
hat:
1. Defendant Rafeal Diaz’ Motion to Vacate, S Aside, or Correct Sentence
D
R
’s
o
Set
pursuant to 28 U.S.C. § 2255 (Dkt 1) is DEN
2
t.
NIED; and
2. No certificat of appeal
N
te
lability shal issue. Dia is advised that he m still requ
ll
az
may
uest
a certificate of appealab
bility from the Ninth C
t
Circuit Cour of Appea pursuant to
rt
als,
t
Federal Rule of Appella Procedu 22(b) an Local Ni
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e
ate
ure
nd
inth Circuit Rule 22–1. To
t
do so, he mu file a tim notice of appeal.
d
ust
mely
3. If Diaz files a timely no
f
otice of app
peal, and not until such time, the C
h
Clerk of Court
sh forward a copy of the notice of appeal, t
hall
d
f
together wit this Orde to the Ni
th
er,
inth
Circuit Cour of Appeal The distr court's file in this c
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rict
case is avai
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id.uscourts.gov

DAT
TED: October 15, 201
14

__________
__________
_____
___
B. L
Lynn Winm
mill
Chief Judge
ited
District Cou
urt
Uni States D