Diaz v. United States of America

Filing 7

MEMORANDUM OPINION AND ORDER: Diaz's motion is DENIED in its entirety. As Diaz has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253; see also Lozada v. United States, 107 F.3d 1011, 1015-16 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). Moreover, this Court certifies pursuant to Title 28, United States Code, Section 1915(a)(3 ) that any appeal from this Order would not be taken in good faith, so in forma pauperis status is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to close Docket No. 16-CV-6710, to terminate Docket No. 99 in 14-CR-442, and to mail a copy of this Memorandum Opinion and Order to Diaz. (As further set forth in this Memorandum Opinion and Order.) (Signed by Judge Jesse M. Furman on 1/11/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JUAN DIAZ,
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Petitioner,
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-v:
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UNITED STATES OF AMERICA,
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Respondent.
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01/11/2017
14-CR-442 (JMF)
16-CV-6710 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
Petitioner Juan Diaz was convicted, following a guilty plea, of conspiracy to commit
Hobbs Act robbery and using or carrying a firearm during and in relation to a crime of violence,
and sentenced principally to ninety months’ imprisonment. (Docket No. 99). 1 Proceeding pro
se, he now moves, pursuant to Title 28, United States Code, Section 2255, to vacate, set aside, or
correct his sentence, alleging that (1) he received ineffective assistance of counsel in connection
with his guilty plea and sentencing; and (2) his conviction for using or carrying a firearm during
and in relation to a crime of violence should be vacated because conspiracy to commit Hobbs
Act robbery does not qualify as a “crime of violence.” (Docket No. 100 (“Pet’r’s Mem.”)).
Section 2255 permits a prisoner in federal custody to challenge his sentence on the
ground that it “was imposed in violation of the Constitution or laws of the United States.” 28
U.S.C. § 2255(a). As a general matter, a Section 2255 motion requires a hearing unless files and
records conclusively show that the prisoner is entitled to no relief. See 28 U.S.C. § 2255(b); see
also Machibroda v. United States, 368 U.S. 487, 494 (1962); Pham v. United States, 317 F.3d
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Unless otherwise noted, all docket citations are to the criminal case, 14-CR-442 (JMF).

178, 184 (2d Cir. 2003). No hearing is required, however, where the petitioner’s allegations are
“vague, conclusory, or palpably incredible.” Machibroda, 368 U.S. at 495. Instead, to warrant a
hearing, the petitioner “must set forth specific facts supported by competent evidence, raising
detailed and controverted issues of fact that, if proved at a hearing, would entitle him to relief.”
Gonzalez v. United States, 722 F.3d 118, 131 (2d Cir. 2013).
Applying those standards here, and upon due consideration of all the parties’ submissions
(Docket Nos. 99-100, 102; 16-CV-6710 (JMF), Docket No. 6), Diaz’s petition is DENIED in its
entirety and without an evidentiary hearing, substantially for the reasons stated in the
Government’s memorandum of law in opposition. (Docket No. 102 (“Gov’t Mem.”)). As an
initial matter, Diaz waived many — if not most — of his claims in his plea agreement. (See
Gov’t Mem., Ex. B; Docket No. 71 (“Plea Tr.”), at 18-19). See Fernandez v. United States, No.
12-CR-445 (JMF), 2016 WL 4735370, at *3 (S.D.N.Y. Sept. 12, 2016) (“The Second Circuit has
repeatedly — and emphatically — held that a defendant’s knowing and voluntary waiver of the
right to appeal a sentence is generally valid and enforceable.” (citing cases)).
To the extent that Diaz did not waive his claims of ineffective assistance, he offers little
more than conclusory assertions and generalizations to support the claims. (See, e.g., Pet’r’s
Mem. 15 (alleging a “complete lack of communication” prior to the plea); id. at 17 (alleging that
counsel “failed to reasonably consult with Diaz,” “push[ed] him into pleading guilty,” and failed
to respond to Diaz’s unspecified “request for information”); id. at 24 (alleging that counsel
“failed to correctly familiarize himself with the relevant facts” and “applicable case law,” did not
advise Diaz of the “correct options available,” and made unspecified “misrepresentations of
materials facts”); id. at 26 (alleging that counsel “failed to properly review, explain and discuss”
the presentence report with Diaz)). The claims must be, and are, rejected on that basis alone.

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See, e.g., Fernandez, 2016 WL 4735370, at *4 (rejecting a Section 2255 claim where the
petitioner “proffer[ed] no facts that would support his claims”); Rosa v. United States, 170 F.
Supp. 2d 388, 399, 403 (S.D.N.Y. 2001) (dismissing a Section 2255 motion where the petitioner
gave “no explanation of precisely what his attorney failed to do,” offering “nothing but a list of
conclusory allegations of being ‘forced’ to sign the agreement, of some unidentified person
‘lying’ to him regarding his sentence, of his ‘rushing’ into the plea without investigation and the
plea not having been ‘knowingly and intelligently’ made”).
And in any event, Diaz’s assertions are flatly refuted by the record (including his own
sworn statements in connection with his guilty plea and his statements at sentencing), which
makes clear that counsel zealously fought on his behalf through and including sentencing. (See
Gov’t Mem. 13-20, 22-23 (discussing the record, including the transcript of Diaz’s plea and
sentencing)). See, e.g., Blackledge v. Allison, 431 U.S. 63, 74 (1977) (finding that a defendant’s
guilty plea statements “constitute a formidable barrier in any subsequent collateral proceedings”
because “[s]olemn declarations in open court carry a strong presumption of verity” and any
contrary “subsequent presentation of conclusory allegations unsupported by specifics is subject
to summary dismissal, as are contentions that in the face of the record are wholly incredible.”);
see also, e.g., Garafola v. United States, 909 F. Supp. 2d 313, 331 (S.D.N.Y. 2012) (summarily
dismissing a claim that “wholly contradicts the petitioner’s previous sworn statements in court at
the plea proceeding — that the petitioner understood the charges against him and that he had
adequate time to discuss the charges and the Plea Agreement with his attorney”).
Diaz’s second contention — that his conviction for using and carrying a firearm during
and in relation to a crime of violence, in violation of Title 18, United States Code, Section
924(c), should be vacated because conspiracy to commit Hobbs Act robbery is not a “crime of

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violence” (Pet’r’s Mem. 30-33) — is squarely foreclosed by Second Circuit precedent. See
United States v. Hill, 832 F.3d 135, 146 (2d Cir. 2016) (holding that Section 924(c)(3)(B) — the
“risk-of-force clause” — remains constitutional despite the Supreme Court’s decision in Johnson
v. United States, 135 S. Ct. 2551 (2015)); United States v. Elder, 88 F.3d 127, 129 (2d. Cir.
1996) (“[A] Hobbs Act conspiracy to commit robbery is by definition a conspiracy that involves
a substantial risk that physical force may be used against the person or property of another.”).
Accordingly, Diaz’s motion is DENIED in its entirety. As Diaz has not made a
substantial showing of the denial of a constitutional right, a certificate of appealability will not
issue. See 28 U.S.C. § 2253; see also Lozada v. United States, 107 F.3d 1011, 1015-16 (2d Cir.
1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir.
1997). Moreover, this Court certifies pursuant to Title 28, United States Code, Section
1915(a)(3) that any appeal from this Order would not be taken in good faith, so in forma
pauperis status is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to close Docket No. 16-CV-6710, to terminate Docket No.
99 in 14-CR-442, and to mail a copy of this Memorandum Opinion and Order to Diaz.

SO ORDERED.
Date: January 11, 2017
New York, New York

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