Diaz-Cortez v. United States of America

Filing 9

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

Download PDF
HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 ERIBAY DIAZ-CORTEZ, Plaintiff, 10 11 12 v. UNITED STATES OF AMERICA, 14 16 17 18 I. 21 22 23 24 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. 19 20 ORDER Defendant. 13 15 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 25 prison. Dkt. # 30. In doing so, the Court adopted the Presentence Investigation Report 26 (“PSR”), which recommended three sentencing enhancements: (1) a two-level 27 enhancement under U.S.S.G. § 2K2.1(b)(1)(A) because Diaz-Cortez possessed three 28 ORDER – 1 1 2 3 4 5 6 7 8 9 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 10 11 12 13 14 15 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 16 17 18 19 20 21 22 23 24 25 26 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 27 28 § 2255 Motion in Case No. C16-1248-RAJ ORDER – 2 1 2 3 4 5 6 (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 7 he received a sufficient opportunity for allocution at his sentencing hearing. Fourth, he 8 contends that counsel failed to file a notice of appeal. 9 A claim for ineffective assistance requires a showing that (1) counsel’s 10 representation fell below an objective standard of reasonableness, and (2) that the 11 claimant was prejudiced by counsel’s inadequate performance. Strickland v. Washington, 12 466 U.S. 668, 687 (1984). The first step requires showing “that counsel made errors so 13 serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 14 Sixth Amendment.” Id. In applying this first step, courts “must apply a strong 15 16 17 18 19 20 21 22 23 24 25 26 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 27 28 ORDER – 3 1 2 3 4 5 6 7 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 8 9 10 11 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). 12 13 DATED this 3rd day of May, 2017. 14 16 A 17 The Honorable Richard A. Jones United States District Judge 15 18 19 20 21 22 23 24 25 26 27 28 ORDER – 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?