Diaz-Cortez v. United States of America

Filing 9

ORDER denying petitioner's 2255 motion by Judge Richard A Jones. (RS) cc petitioner

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ERIBAY DIAZ-CORTEZ,
Plaintiff,

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v.
UNITED STATES OF AMERICA,

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I.

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INTRODUCTION

This matter comes before the Court on pro se Petitioner Eribay Diaz-Cortez’s
Motions Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence By a Person
in Federal Custody. Case No. C16-1248-RAJ (Dkt. # 1); Case No. C16-1687-RAJ
(Dkt. # 1). For the reasons that follow, the Court DENIES Diaz-Cortez’s motions.

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ORDER

Defendant.

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Case Nos. C16-1248-RAJ; C161687-RAJ

II. BACKGROUND
On December 3, 2015, Diaz-Cortez pleaded guilty to a charge that he violated 18
U.S.C. § 922(g)(5)(A), which prohibits the possession of a firearm by an alien who is
unlawfully in the United States. Case No. CR15-289-RAJ, Dkt. ## 22, 23 (W.D. Wash.
Dec. 3, 2015).
On March 4, 2016, the Court sentenced Diaz-Cortez to serve forty-two months in

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prison. Dkt. # 30. In doing so, the Court adopted the Presentence Investigation Report

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(“PSR”), which recommended three sentencing enhancements: (1) a two-level

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enhancement under U.S.S.G. § 2K2.1(b)(1)(A) because Diaz-Cortez possessed three

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ORDER – 1

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firearms, PSR ¶ 14; (2) a two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A)
because two of the firearms that Diaz-Cortez possessed had been stolen, PSR ¶ 15; and
(3) a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because Diaz-Cortez
possessed the firearms in connection with a separate felony offense, PSR ¶ 16.
On August 8, 2016, Diaz-Cortez filed a § 2225 motion to reduce his sentence
pursuant to the Supreme Court’s holding in Johnson v. United States, 135 S. Ct. 2551
(2015). On September 13, 2016, filed a second § 2255 motion claiming ineffective
assistance of counsel. The Court ordered that a separate cause number be opened for the
second motion.
III. LEGAL STANDARD

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Under 28 U.S.C. § 2255(a), a federal prisoner may file a motion to vacate, set
aside, or correct his or her sentence “upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack . . . .”
IV. DISCUSSION

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A.

In his first § 2255 motion, Diaz-Cortez contends he was sentenced improperly in
light of Johnson, 135 S. Ct. 2551. In Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminal Act (“ACCA”) violates the Due Process Clause
because it is unconstitutionally vague. Diaz-Cortez argues that the Supreme Court’s
holding in Johnson renders his sentencing enhancements illegal.
Johnson does not afford Diaz-Cortez the relief he requests. The Court did not
sentence him under the ACCA. Moreover, the U.S.S.G. enhancements applied to his
sentence are not similar to the residual clause of the ACCA. Even if they were, the
Supreme Court recently held that U.S.S.G. enhancements “are not subject to a vagueness
challenge under the Due Process Clause.” Beckles v. United States, 137 S. Ct. 886, 892

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§ 2255 Motion in Case No. C16-1248-RAJ

ORDER – 2

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(2017). The Court DENIES Diaz Cortez’s § 2255 motion in Case No. C16-1248-RAJ.
B.

§ 2255 Motion in Case No. C16-1687-RAJ

In his second § 2255 motion, Diaz-Cortez raises four ineffective assistance of
counsel claims. First, he contends that his trial counsel failed to advise him of his Fifth
and Sixth Amendment rights before he pleaded guilty. Second, he contends that counsel
failed to ensure that his guilty plea was supported by sufficient evidence that he
committed the crime of conviction. Third, he contends that counsel failed to ensure that

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he received a sufficient opportunity for allocution at his sentencing hearing. Fourth, he
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contends that counsel failed to file a notice of appeal.
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A claim for ineffective assistance requires a showing that (1) counsel’s
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representation fell below an objective standard of reasonableness, and (2) that the
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claimant was prejudiced by counsel’s inadequate performance. Strickland v. Washington,
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466 U.S. 668, 687 (1984). The first step requires showing “that counsel made errors so
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serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
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Sixth Amendment.” Id. In applying this first step, courts “must apply a strong
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presumption that counsel’s representation was within the wide range of reasonable
professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quotation
marks and citation omitted). The second step requires showing “that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687.
Diaz-Cortez cannot make the requisite showing under Strickland. First, he cannot
show he was improperly advised of his constitutional trial rights because the hearing
transcript shows that the Court carefully advised him of the rights he was waiving by
entering a guilty plea. Dkt. # 8-1 (Transcript of Felony Plea Hearing). Second, he cannot
show that his guilty plea was unsupported by sufficient evidence because he admitted to
engaging in conduct that meets the requisite elements of 18 U.S.C. § 922(g)(5)(A). Id. at
14. Third, he cannot show that he was deprived of the opportunity for allocution because

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ORDER – 3

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the transcript of the sentencing hearing shows that he was offered the opportunity to
address the Court, yet declined. Case No. CR15-289-RAJ, Dkt. # 33 at 17 (W.D. Wash.
March 4, 2016). Fourth, even if Diaz-Cortez were able to show that counsel acted
unreasonably by failing to heed his request to appeal, he cannot establish prejudice. As
part of his plea agreement he waived his right to appeal in exchange for the Government
not charging him with drug-related offenses. Id., Dkt. # 22 at 7-8 (Plea Agreement).
Diaz-Cortez’s ineffective assistance claims are without merit.
V. CONCLUSION

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For the foregoing reasons, the Court DENIES Diaz-Cortez’s Motions Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence By a Person in Federal
Custody. Case No. C16-1248-RAJ (Dkt. # 1); Case No. C16-1687-RAJ (Dkt. # 1).

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DATED this 3rd day of May, 2017.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 4