Diaz-Pellegaud v. United States of America

Filing 49

Memorandum Opinion and Order denying 48 Motion for discretionary relief. Signed by U.S. District Judge Lawrence L. Piersol on 9/25/2015. (JLS)

FILED

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

SEP 25 2015
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JESUS FABEL DIAZ-PELLEGUAD,
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CIV 13-4043
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CR 09-40029-23
Movant,
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-vs­
MEMORANDUM OPINION
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AND ORDER DENYING
UNITED STATES OF AMERICA,
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RULE 60(b) MOTION
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Respondent.
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Jesus Fabel Diaz-Pelleguad ("Diaz-Pelleguad") filed a pro se Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). In that motion, Diaz-Pelleguad alleged
ineffective assistance of his trial counsel. On March 24, 2014, this Court adopted the Magistrate's
Report and Recommendation and denied the motion to vacate with prejudice. (Doc. 39.) Later, the
Eighth Circuit dismissed Diaz-Pelleguad's appeal after denying his request for a certificate of
appealability. (Doc. 46.) Diaz-Pelleguad now asks the Court to allow him to reopen and reargue his

§ 2255 habeas motion under Federal Rule of Civil Procedure 60(b). (Doc. 48.) For the reasons
stated below, the Rule 60(b) motion will be denied.

BACKGROUND
Diaz-Pelleguad was indicted in three counts of a six count indictment for: (1) conspiracy to
distribute methamphetamine; (2) conspiracy to distribute marijuana and; (3) conspiracy to conduct
a financial transaction to conceal the proceeds and promote unlawful distribution of controlled
substances. In August, 2010, Diaz-Pelleguad was tried and convicted by a jury with four ofhis co­
defendants. The remaining twenty-one co-defendants entered into pre-trial plea agreements.

On December 13,2010, Diaz-Pelleguad was sentenced to 360 months imprisonment each
on Counts 1 and 2, and 240 months on Count 3, with the terms ofimprisonment to run concurrently.
He filed a direct appeal challenging the sufficiency ofthe evidence to sustain his convictions on all
three counts. On January 25,2012, the Eighth Circuit affirmed Diaz-Pelleguad's convictions and

sentence. See United States v. Diaz-Pelleguad, 666 F.3d492 (8th Cir. 2012). Next, Diaz-Pelleguad
filed a § 2255 motion to vacate, raising three ineffective assistance oftrial counsel claims: (l) failure
to investigate the Idaho traffic stop and move to suppress evidence obtained as a result of the stop;
(2) failure to object at sentencing to the leadership role and dangerous weapon enhancements; and
(3) failure to appeal the thirty year sentence imposed. After his § 2255 motion was denied and he
unsuccessfully appealed to the Eighth Circuit, Diaz-Pelleguad filed the pending Rule 60(b) motion.

Pursuant to Rule 60(b), Diaz-Pelleguad wants to bring the following two new ineffective
assistance ofcounsel claims: (1) failure to safeguard his right to appellate review by failing to notice
that the jury instructions are not included verbatim in the trial transcript, and (2) failure to ensure the
interpreter was certified and qualified to translate from English to Spanish so that Diaz-Pelleguad
could understand how the jury was instructed.

DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDP A), restricts filing second
or successive habeas applications in order to serve the AEDPA's goals of finality and prompt
adjudication. See Crawfordv. Minnesota, 698 F.3d 1086, 1090 (8th Cir. 2012). "Before a second or
successive application permitted by this section is filed in the district court, the applicant shall move
in the appropriate court of appeals for an order authorizing the district court to consider the
application." 28 U.S.C. § 2244(b)(3)(A); see also 28 U.S.C. § 2255(h). A petitioner's failure to seek
authorization from an appellate court before filing a second or successive habeas petition acts as a
jurisdictional bar. See Burton v. Stewart, 549 U.S. 147 (2007).

When a motion filed pursuant to § 2255 has been denied and the prisoner files a Rule 60(b)
motion, the district court must first determine whether the Rule 60(b) motion in fact amounts to a
second or successive collateral attack under § 2255. See Boyd v. United States, 304 F.3d 813, 814
(8th Cir. 2002). If the Rule 60(b) motion is actually a second or successive collateral attack, the
district court must dismiss the motion for failure to obtain authorization from the court of appeals
or, in its discretion, transfer the motion to the court of appeals. Id.

2

In Gonzalez v. Crosby, the Supreme Court addressed when a federal court should construe
a petitioner's motion for relief from judgment pursuant to Rule 60(b) as a second or successive
petition under AEDP A. I 545 U.S. 524, 526 (2005). The Court began its analysis by stating that "it
is clear that for purposes of § 2244(b) an 'application' for habeas relief is a filing that contains one
or more'claims.'" ld. at 530 (citations omitted). The Court acknowledged that "[i]n some instances,
a Rule 60(b) motion will contain one or more' claims,'" and held that "[a] habeas petitioner's filing
that seeks vindication of such a claim is, if not in substance a habeas corpus application, at least
similar enough that failing to subject it to the same requirements would be inconsistent with the
statute." ld. at 530-31 (internal quotations and citation omitted).

After noting that "[u]sing Rule 60(b) to present new claims for relief from a state court's
judgment of conviction--even claims couched in the language of a true Rule 60(b) motion-­
circumvents AEDPA's requirement that a new claim be dismissed unless it relies on either a new
rule ofconstitutional law or newly discovered facts," the Court provided guidance as to when a Rule
60(b) motion advances one or more "claims." ld. at 531-32 (internal citations omitted). The Court
stated that "[a] motion that seeks to add a new ground for relief' advances a claim, as does a motion
that "attacks the federal court's previous resolution of a claim on the merits, ... since alleging that
the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging
that the movant is, under the substantive provisions of the statutes, entitled to habeas relief." ld. at
532. No claim is presented, however, "when a Rule 60(b) motion attacks, not the substance of the
federal court's resolution of a claim on the merits, but some defect in the integrity of the federal
habeas proceedings," and courts should not construe such a motion as a second or successive
petition. See id. The Court explained that "an attack based on the movant's own conduct, or his
habeas counsel's omissions ... ordinarily does not go to the integrity ofthe proceedings, but in effect
asks for a second chance to have the merits determined favorably." ld. at n. 5. See also Ward v.

lAlthough Gonzalez considered "only the extent to which Rule 60(b) applies to habeas
proceedings under 28 U.S.C. § 2254," id. at 530 n. 3, the Eighth Circuit has applied the Gonzalez
rationale in habeas cases filed under 28 U.S.c. § 2255. See United States v. Washington, 211
Fed.Appx. 550, 550 (8th Cir. 2007) (per curiam) (unpublished).
3

Norris, 577 F.3d 925, 933-35 (8th Cir. 2009) (following Gonzales in holding that a Rule 60(b)
motion based on previous habeas counsel's ineffective assistance is a second or successive habeas
petition).

Diaz-Pelleguad's Rule 60(b) motion seeks to re-open his § 2255 proceedings in order to
assert two new ineffective assistance ofcounsel claims which he says were overlooked in his §2255
motion to vacate because he was not represented by a lawyer. 2 Everything in the Rule 60(b) motion
was discoverable to Diaz-Pelleguad at the time he filed his § 2255 motion. He had access to the
same transcripts at the time of the first filing. Diaz-Pelleguad's Rule 60(b) motion is in reality a
successive motion under § 2255 because the two new ineffective assistance allegations attack the
substance of the Court's prior resolution of a claim on the merits as opposed to a defect in the
integrity of the federal habeas proceedings. See Ward, 577 F.3d at 932. As such, pre-filing
authorization is required from the Eighth Circuit before this Court may address the merits ofDiaz­
Pelleguad's motion.

Diaz-Pelleguad attempts to avoid this conclusion by arguing that the Supreme Court's
recognition of an exception to the procedural default rule in § 2254 habeas cases could justify
reopening his case under Rule 60(b)(6). In Martinez v. Ryan, --- U.S. --- , 132 S.Ct. 1309 (2012),
a state prisoner filed a § 2254 habeas raising claims ofineffective assistance oftrial counsel. Because
those claims had been denied in state court based on a state procedural rule (the prisoner and his
lawyer failed to raise them in a previous collateral proceeding), federal court review oftheir merits
normally would have been precluded by the doctrine of procedural default. 3 Martinez, 132 S.Ct. at
2There is no constitutional or statutory right to counsel in habeas proceedings. See Morris v.
Dormire, 217 F.3d 556,558 (8th Cir. 2000); see also 18 U.S.C. § 3006A(a)(2)(B)("[w]henever... the
court determines that the interests ofjustice so require, representation may be provided" in a § 2255
proceeding) (emphasis added).
3In Coleman v. Thompson, 501 U.S. 722 (1991), after the prisoner's § 2254 habeas petition
was denied, his lawyer waited 33 days after entry ofthe judgment to file the notice ofappeal, which
was due, under the state-court rules, 30 days after entry of the judgment. [d. at 727. The state
supreme court dismissed the appeal because the notice was untimely. [d. at 727-28. The United
States Supreme Court held that the error by the prisoner's lawyer did not constitute cause to excuse
4

1316. The Supreme Court created an exception to its decision in Coleman so that a federal court may
review a state prisoner's defaulted ineffective assistance of counsel claims:
Where, under state law, claims of ineffective assistance of trial counsel must be
raised in an initial-review collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim ofineffective assistance at trial
if, in the initial-review collateral proceeding, there was no counselor counsel in that
proceeding was ineffective.
!d. at 1320. 4 In order for this Court to exercise jurisdiction over the claims in Diaz-Pelleguad's Rule
60(b) motion, he will need to convince the Eighth Circuit to apply the Martinez exception to the rule
against filing a second § 2255 motion. Accordingly,
IT IS ORDERED that the Motion for Discretionary Relief pursuant to Rule 60(b),
doc. 48, is dismissed for failure to obtain preauthorization from the Eighth Circuit.

tL

Dated this

Jb day of September, 2015.

awrence L. Piersol
nited States District Judge
ATTEST:

JOSEPH HAAS, CLERK

BY:

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- DEPUty

{jSEAL)

the procedural default. Id. at 752.
4Diaz-Pelleguad also cites Trevino v. Thaler,--- U.S.---, 133 S.Ct. 1911 (2013). There, the
Supreme Court expanded the holding in Martinez to cases in which the state procedures, by reason
of their design and operation, make it "highly unlikely in a typical case that a defendant will have
a meaningful opportunity to raise a claim of ineffective assistance oftrial counsel on direct appeaL"
Trevino, 133 S.Ct. at 1921.
5