Diaz v. USA

Filing 9

Memorandum Opinion and Order denying 1 MOTION to Vacate under 28 U.S.C. 2255: The court ORDERS that all relief sought by movant in his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody, as amended, be, and is hereby, denied. Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts, and 28 U.S.C. § 2253(c) (2), for the reaso ns discussed herein, the court further ORDERS that a certificate of appealability be, and is hereby, denied, as movant has not made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 4/3/2015) (mdf)

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UNITED STATES OF AMERICA,
Respondent.

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CLERK, U.S. DISTRKT

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Movant,

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AGUSTEN DIAZ,

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NO. 4:15-CV-023-A
(NO. 4:11-CR-180-A)

§

MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion filed by movant, Agusten Diaz, to vacate, set aside, or
correct sentence by a person in federal custody.

After having

considered such motion, the government's response thereto,
movant's reply, pertinent parts of the record in Criminal Case
No. 4:11-CR-180-A, and relevant legal authorities, the court has
concluded that such motion should be denied.
1.

Background
On January 6, 2012, movant pleaded guilty to the offense of
conspiracy to distribute, and to possess with intent to
distribute a controlled substance, in violation of 21 U.S.C.
§§

846 and 841 (a) (1)

&

(b) (1) (B).

He was sentenced on April 20,

i

2012, to a term of imprisonment of 480 months, to be followed by
a term of supervised release of five years.
Movant appealed his sentence to the united States Court of
Appeals for the Fifth Circuit, which affirmed by an opinion
issued April 22, 2013.

After having unsuccessfully sought a writ

of certiorari by the Supreme Court, movant filed his
motion on January 12, 2015.

§

2255

He amended his motion by a document

filed January 22, 2015, which is the version of his motion now
under consideration.

The government responded to the amended

motion on February 17, 2015, and movant filed his reply on
February 27, 2015.
II.
The Grounds of Movant's

§

2255 Motion

Movant asserted four grounds for relief in his

§

2255

motion, which, as stated in the motion together with the
supporting facts recited in the motion as to each ground, are as
follows:
GROUND ONE:

Ineffective Assistance of Counsel
(a) Supporting facts . .
Counsel was ineffective in that counsel failed to
properly inform the Petitioner, a spanish speaker
who did not read or write in either Spanish or
English as of the time in question, of the potential

2

sentencing range or the very real potential
consequences of entering a guilty plea.
Counsel repeatedly told the Petitioner that he would
face a possibility of 13 to 15 years incarceration
after entering a [sic] open plea with no plea
agreement in place. Counsel made unrealistic
promises due to lack of preparation and
investigation.
Counsel was emphatic that the Petitioner should not
go to trial and continuously reiterated that the
Petitioner should enter a plea and allow the court
to determine his sentence despite no plea agreement
being in place between the Petitioner and the
government.
Counsel repeatedly rejected the Petitioner's request
to go to trial in the instance that no plea
agreement was in place and continued to encourage
and direct the Petitioner to plea [sic] guilty.
Doc. 5 at 5. 1
GROUND TWO:
Involuntarily/Unknowingly Entered Plea Induced by
Counsel's Ineffective Assistance
(a) Supporting facts
The Petitioner was not properly informed of the
consequences of entering a plea by his trial counsel
(See Ineffective Assistance of Counsel-Ground One) .
The Petitioner did not fully comprehend the premise
of his plea or entrance of his plea in open court as
he is a Spanish speaker who neither read nor wrote
in either Spanish or English as of the period in
question.

lThe "Doc. _ " references are to entries on the clerk's docket in this Case No. 4: 15-CV-023-A.
3

The Petitioner's plea was induced through
unrealistic promises of potential terms of
incarceration and was entered despite the
Petitioner's insistence that in the instance that no
actual plea agreement was in place between the
Petitioner and the government, he would choose to
challenge his charges through the trial process.
Id. at 6.
GROUND THREE:
Violation of Eighth Amendment Right under the united
States Constitution
(a) Supporting facts .
The Petitioner is a non-violent offender with
virtually no criminal history. The period of
illegal activity in question was of very short
duration and the Petitioner showed great remorse as
well as community support reflecting a very strong
likelihood of rehabilitation via a reasonable term
of incarceration. The Petitioner was 32 years at
the time of his offense and statistically a term of
incarceration of 13 to 15 years would even be harsh
under the circumstances of the offense alleged.
Detailed examination of recidivism and terms of
incarceration throughout the united States have
revealed that offenders in there [sic] mid-forties
and beyond are highly unlikely to face the prospects
of recidivism. In light of this, a sentence that
punishes so excessively beyond the premise of
rehabilitation and the goals of the criminal justice
system is both cruel, and in the Petitioner's case,
far from necessary. However, despite the fact that
there is little to no likelihood of recidivism on
the Petitioner's part, the court sentenced him to
the statutory maximum of 480 months and did so after
giving no more consideration to mitigating factors
than a cursory brushing over. The Petitioner's
counsel on appeal was ineffective for failing to
raise this issue. The Petitioner did not waive his
right to appeal and did not forfeit his right to
argue this issue on appeal.
4

rd. at 8.

GROUND FOUR:
The District Court failed to Properly Consider
Mitigating Factors Pursuant to 18 U.S.C. § 3553
(a) Supporting facts
The Petitioner raised several factors in
consideration of mitigation at his sentencing
hearing. The Petitioner pointed out that he was 32
years old, a husband as well as a father to two
young children, and his Criminal History Category
was r with no Criminal History Category points at
all. The Petitioner accepted responsibility and the
government agreed that he had done so. And, the
Petitioner showed that he had great familial and
community support despite the great error in
decision-making that occurred on his part. Actions
for which the Petitioner expressed great remorse
before the court. Despite these many factors for
consideration in mitigation of sentencing the court
simply stated that it did not "think a sentence
below the bottom of the advisory guideline range
would adequately address the defendants [sic]
conduct."
The Petitioner also entered an open plea. with no
plea agreement in place, the court should make a
thorough review of all facts surrounding the
Petitioner's plea in light of the goals of
sentencing and should do so before the court and the
accused. The Petitioner did not receive a response
regarding inquiry into the various factors posed
under 18 U.S.C. § 3553 as he should have based upon
the facts and circumstances of his case and in view
of his decision to plead guilty.
The
for
not
his

Petitioner's counsel on appeal was ineffective
failing to raise this issue. The Petitioner did
waive his right to appeal and did not forfeit
right to argue this issue on appeal.

rd. at 9.
5

III.
Analysis
A.

Pertinent Legal Principles
1.

Principles Applicable to a 2255 Motion

After conviction and exhaustion, or waiver, of any right to
appeal, courts are entitled to presume that a defendant stands
fairly and finally convicted.
152, 164-165 (1982)
(5th Cir. 1991).

i

united states v. Frady, 456 U.S.

United States v. Shaid, 937 F.2d 228, 231-32

A defendant can challenge her conviction or

sentence after it is presumed final on issues of constitutional
or jurisdictional magnitude only, and may not raise an issue for
the first time on collateral review without showing both "cause"
for her procedural default and "actual prejudice" resulting from
the errors.

Shaid, 937 F.2d at 232.

Section 2255 does not offer recourse to all who suffer trial
errors.

It is reserved for transgressions of constitutional

rights and other narrow injuries that could not have been raised
on direct appeal and would, if condoned, result in a complete
miscarriage of justice.

united States v. Capua, 656 F.2d 1033,

1037 (5th Cir. unit A Sept. 1981).

In other words, a writ of

habeas corpus will not be allowed to do service for an appeal.
Davis v. united States, 417 U.S. 333, 345 (1974).

6

2.

Ineffective Assistance of Counsel Claims

To prevail on an ineffective assistance of counsel claim,
movant must show (I) that counsel's performance fell below an
objective standard of reasonableness and (2) that there is a
reasonable probability that, but for his counsel's unprofessional
errors, the result of the proceedings would have been different.
strickland v. Washington, 466 U.S. 668, 687 (1984).

Both prongs

of the Strickland test must be met to demonstrate ineffective
assistance.

Id. at 697.

Further,

"[a] court need not address

both components of an ineffective assistance of counsel claim if
the movant makes an insufficient showing on one."
v. Stewart, 207 F.3d 750, 751 (5th Cir. 2000).

united States

"The likelihood

of a different result must be substantial, not just conceivable,"
Harrington v. Richter, 131 S. Ct. 770, 792

(2011), and a movant

must prove that counsel's errors "so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result."
Pinholster, 131 S. Ct. 1388, 1403 (2011)
U.S. at 686).

Cullen v.

(quoting Strickland, 466

Judicial scrutiny of this type of claim must be

highly deferential and the defendant must overcome a strong
presumption that his counsel's conduct falls within the wide
range of reasonable professional assistance.
U.S. at 689.
7

Strickland, 466

B.

The Grounds of the Motion Are without Merit
1.

Grounds One and Two

Movant's Grounds One and Two are treated together under this
heading because they raise essentially the same points.
The lack of proficiency on movant's part in reading or
writing either Spanish or English are not relevant considerations
in this action on the issue as to whether he should have entered
a plea of guilty as he did.

The following exchange occurred at

the rearraignment hearing after movant had been put under oath:
THE COURT: Do you understand that you're now
under oath and that if you answer any of my questions
falsely, your answers could later be used against you
in a prosecution for perjury or making a false
statement?
DEFENDANT A. DIAZ:

Yes, Your Honor.

THE COURT: And I take it you read, write,
understand, and speak the English language
proficiently?
DEFENDANT A. DIAZ:
THE COURT:
proficiently?

Well, do you not speak it

DEFENDANT A. DIAZ:
THE COURT:
interpreter.
MS. BARBARE:

Yes.

I'm trying to find out if you need an

Do you need an interpreter?

DEFENDANT A. DIAZ:
THE COURT:

A little bit.

No.

Pardon?
8

DEFENDANT A. DIAZ:

No.

THE COURT: Okay. You can read, write,
understand, and speak the English language well enough
to participate in this proceeding and know exactly
what's happening?
DEFENDANT A. DIAZ:
English.
THE COURT:

Pardon?

DEFENDANT A. DIAZ:
English.
THE COURT:
read today.

I don't know how to read

Okay.

I don't know how to read

I'm not sure you will need to

MS. BARBARE:
I've read these to him, Your Honor.
He speaks English very well; understands everything
very well.
I have had no problems with him
understanding anything that we've addressed.
THE COURT: But you have read to him the things
that he needs to be aware of?
MS. BARBARE:

Yes, I have.

Case No. 4:11-CR-180-A, Doc. 193 at 2-3. 2
The court is satisfied from the court's verbal exchanges
with movant at his rearraignment and sentencing hearings that
movant clearly understands the spoken English language and
clearly speaks the English language.

Movant does not deny that

he is proficient in speaking and understanding the English
language.

Those are the things that are important to whether

2The "Case No.4: ll-CR-180-A, Doc.
" citations have reference to the numbers assigned on
the clerk's docket to items on file in Case No.4: ll-CR-180-A.
9

movant understood the consequences of his entry of a plea of
guilty, which were clearly explained to him at the rearraignment
hearing. 3

Case No. 4:11-CR-180-A, Doc. 193 at 23-24.

At the

rearraignment hearing the court carefully explained to movant the
penalties he was sUbject to if he entered a plea of guilty, and
movant informed the court under oath that he understood that he
was sUbjecting himself to all those penalties if he pleaded
guilty to the offense charged by the indictment.

rd. at 23-24,

30.
The record shows that movant's contention that he was
relying on promises or representations of his attorney when he
entered his plea of guilty is without merit.

He stated under

oath at the rearraignment hearing that he understood that he
should never depend or rely upon any statement or promise by
anyone as to what penalty would be assessed against him if he
were to plead guilty, that his plea of guilty must not be induced
or prompted by any promises, mental pressure, threats, force,
coercion, or pressure of any kind, and that he should plead
guilty only because he was guilty and for no other reason.
at 11-13.

rd.

Movant testified that no one had made any promise or

3Movant's ability to understand the English language is further established by the declarations of
his attorney and a DEA Task Force Officer. Doc. 7 at 041-043,001-002.

10

assurance to him of any kind in an effort to induce him to enter
a plea of guilty.

Id. at 29-30.

Moreover, movant testified under oath at the rearraignment
hearing that he had read and fully understood the factual resume
and that he had discussed it with his attorney before he signed
it so he would know the legal meaning of everything in it and
that he understood what his attorney told him.

Id. at 28-29.

Directly at odds with movant's contention that he did not
know the effect of entering a plea of guilty was the following
exchange that occurred at the rearraignment hearing:
THE COURT: And I take it, Ms. Barbare, that the
willingness of your client to plead guilty without a
plea agreement results from the fact that it's just a
one count indictment?
MS. BARBARE:

That's correct, Your Honor.

THE COURT: Mr. Agusten Diaz, has anyone made any
promise or assurance to you of any kind in an effort to
induce you to enter a plea of guilty in this case?
DEFENDANT A. DIAZ:

No, Your Honor.

THE COURT: Has anyone mentally, physically, or in
any other way attempted in any way to force you to
plead guilty in this case?
DEFENDANT A. DIAZ:

No, Your Honor.

THE COURT: Do you understand that if you plead
guilty and if that plea is accepted by the Court, you
will be adjudged guilty of the offense charged by the
indictment in this case, and your punishment will be
assessed somewhere within the range of punishment
provided by statute, and your sentence will be within
11

the range provided by statute.
things?
DEFENDANT A. DIAZ:

Do you understand those

Yes, Your Honor.

THE COURT: Do you understand that if you plead
guilty and if the Court accepts that plea and you end
up getting a sentence that's more severe than you hoped
it would be, you will still be bound by your plea of
guilty and will have no right to withdraw it?
DEFENDANT A. DIAZ:

Yes, Your Honor.

Id. at 29-30.
Added evidence that movant's Grounds One and Two are without
merit is the unchallenged testimony by affidavit of his attorney
that she fully discussed with movant his guideline range,
statutory range, and the consequences of pleading guilty, and
that she at no time made any promise to movant regarding his
sentence, much less a promise of 13-15 years in prison.

Doc. 7

at 042-044.
"[A] defendant ordinarily will not be heard to refute [his]
testimony given at a plea hearing while under oath."

united

states v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998).
"Solemn declarations in open court carry a strong presumption of
verity, forming a formidable barrier in any subsequent collateral
proceedings."

rd.

(omitting internal quotation marks) (citing,

and quoting from, Blackledge v. Allison, 431 U.S. 63,
(1977}).

73~74

For a defendant who seeks habeas relief on the basis of

12

alleged promises inconsistent with representations he made in
open court when entering his plea of guilty to prevail, he must
prove "(I) the exact terms of the alleged promise,

(2) exactly

when, where, and by whom the promise was made, and (3) the
precise identity of the eyewitness to the promise."

Id.

To be

entitled to an evidentiary hearing, the defendant must produce
"independent indicia of the likely merit of [his] allegations,
typically in the form of one or more affidavits from reliable
third parties.

Id.

"If, however, the defendant's showing is

inconsistent with the bulk of [his] conduct or otherwise fails to
meet [his] burden of proof in the light of other evidence in the
record, an evidentiary hearing is unnecessary."

Id.

See also,

united States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985).
Movant has failed to provide any evidence other than his own
conclusory assertions in support of his contentions that are at
variance with the record of his criminal case, as referenced
above.

Therefore, movant has not shown entitlement to a hearing,

much less to any relief related to his entry of a plea of guilty.
The court is not persuaded that movant's attorney made any
representation to him concerning the level of punishment he would
receive if he entered a plea of guilty or that his attorney
rejected any request of movant to go to trial rather than to
plead guilty.

Moreover, movant has not provided information that
13

would persuade the court that he was not properly informed of the
consequences of entering a plea of guilty before he entered it,
that he did not fully comprehend the consequences of entering a
plea of guilty, or that his plea of guilty was induced through
unrealistic promises of potential terms of incarceration.
The court finds, as the record reflects, that movant was
fully competent and capable of entering an informed plea and that
his plea of guilty to the offense charged by the indictment was a
knowing and voluntary plea supported by an independent basis in
fact containing each of the essential elements of the offense
charged by the indictment, and that his plea of guilty did not
result from force, threats, or promises.

Case No. 4:11-CR-180-A,

Doc. 193 at 35.
For the reasons stated, movant's Grounds One and Two are to
be denied.
2.

Grounds Three and Four

Movant's Grounds Three and Four complain of matters that
were the sUbjects of issues resolved against him in his appeal to
the Fifth Circuit, or that should have been raised in that
appeal.

The Fifth Circuit described the issues before it in

movant's appeal as follows:
He argues that the district court improperly calculated
his guidelines range by (1) denying him a two-level
reduction pursuant to U.S.S.G. § 3E1.1 based on
14

acceptance of responsibility, (2) applying a two-level
adjustment pursuant to U.S.S.G. § 2D1.1(b) (1) for
possession of a dangerous weapon during the offense,
and (3) applying a four-level adjustment pursuant to
U.S.S.G. § 3B1.1(a) based on a finding that he was a
leader or organizer of the criminal activity. Diaz
also argues that the district court erred by finding
that he was a member of the Tango Blast gang.
United States v. Diaz, 532 F. App'x 527, 527 (5th Cir. 2013),
cert. denied 134 S. ct. 905 (2014).
Movant has provided no evidence in support of Grounds Three
and Four that would provide basis for affording him any relief as
to either of those grounds.

To the extent he is complaining as

to issues resolved against him on his direct appeal, he simply is
not permitted to do that in this collateral proceeding.

To

whatever extent movant is seeking to raise in this collateral
proceeding sentencing issues that were not presented to the Fifth
Circuit on his direct appeal, movant has failed to provide any
legal excuse for not having sought Fifth Circuit review as to
those matters.

Even if the issues presented constitutional or

jurisdictional questions, movant is not permitted to raise them
in this

§

2255 proceeding "without showing both 'cause' for his

procedural default, and 'actual prejudice' resulting from the
error.

II

United States v. Segler, 37 F.3d 1131, 1133

1994) (citation omitted).

(5th Cir.

He has shown neither in his motion or

supporting documentation.

15

He complains that his counsel on appeal was ineffective for
failing to raise certain issues, but he has provided nothing that
would cause the court to conclude that his appellate outcome
would have been any different if other issues had been raised.-He has provided no factual basis for a conclusion that he was
prejudiced by his appellate counsel's failure to raise other
issues.
For the reasons stated, movant's Grounds Three and Four are
to be denied.
IV.
Order
For the reasons stated above,
The court ORDERS that all relief sought by movant in his
motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence by a person in federal custody, as amended, be, and is
hereby, denied.

* * * * *
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
§

2253(c) (2), for the reasons discussed herein, the court further

ORDERS that a certificate of appealability be, and is hereby,

16

denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED April 3, 2015.

/1

VI

Z

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