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United States v. Diaz

United States District Court, W.D. Arkansas, Fayetteville Division

June 21, 2016

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
ANDRES DIAZ DEFENDANT/PETITIONER

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS. JUDGES

         Currently before the Court are the Report and Recommendation ("R & R") (Doc. 82) filed in this case on April 28, 2016, by the Honorable James R. Marschewski, United States Magistrate Judge for the Western District of Arkansas, regarding Andres Diaz's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Doc. 56); the Government's Response in Opposition (Doc. 72); Mr. Diaz's Reply to the Government's Response (Doc. 79);[1] and Mr. Diaz's Objections to the R & R (Doc. 84). In light of the Objections to the R & R, the Court has conducted a de novo review of the record in accordance with 28 U.S.C. § 636(b)(1)(C) and now finds that the Objections offer neither law nor fact requiring departure from the Magistrate Judge's findings. Accordingly, the R & R (Doc. 82) is ADOPTED IN ITS ENTIRETY and the § 2255 Motion to Vacate (Doc. 56) is DENIED for the reasons explained herein.

         I. BACKGROUND

         On May 7, 2014, Mr. Diaz, a Mexican national, was charged in a five-count Indictment (Doc. 13) filed in the Western District of Arkansas for crimes involving methamphetamine distribution. On September 29, 2014, Mr. Diaz entered a Plea Agreement (Doc. 33) during a change of plea hearing in which he was represented by counsel. Pursuant to the Plea Agreement, Mr. Diaz agreed to plead guilty to Count Four of the Indictment charging him with distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1), and the United States agreed to consider moving for a downward departure pursuant to U.S.S.G. § 5K1.1 if Mr. Diaz provided substantial cooperation. (Doc. 33, ¶¶ 1, 21). The Government's counsel recited in open Court the facts surrounding Count Four of the Indictment that the Government contended it could prove if the case went to trial. Mr. Diaz stated his agreement that all of those facts were true and that the Government could prove those facts if the case went to trial. The Court then accepted Mr. Diaz's guilty plea and found that it was made knowingly and voluntarily, based on an independent basis of fact containing all the essential elements of the offense.

         January 27, 2015, the Court sentenced Mr. Diaz on Count Four to 180 months imprisonment. The Government did not move for, and the Court did not award, a downward departure under U.S.S.G. § 5K1.1.

         On September 25, 2015, Mr. Diaz filed the present § 2255 Motion to Vacate his conviction, asserting two separate claims of ineffective assistance of counsel. After the Motion was fully briefed, the Magistrate Judge recommended denying the Motion, and Mr. Diaz filed two objections to the R & R. First, Mr. Diaz objects to the Magistrate Judge's finding that his counsel was not ineffective for: (1) failing to advise Mr. Diaz of his Vienna Convention Article 36 right to consular notification and/or (2) failing to determine whether the United States notified the Mexican Consulate about Mr. Diaz's arrest, indictment, or detention. Second, Mr. Diaz objects to the finding that his counsel was not ineffective for either promising Mr. Diaz that the United States would move to file a § 5K1.1 motion for substantial assistance, or for failing to compel the United States to file such a motion.

         II. LEGAL STANDARD

         The Sixth Amendment provides criminal defendants the right to effective assistance of counsel. U.S. Const, amend. VI; McMann v. Richardson, 397 U.S. 759, 771 (1970). To prove ineffective assistance of counsel, a movant must show both that his counsel's performance was deficient and that his counsel's deficient performance prejudiced him. Strickland v. Wasiiington, 466 U.S. 668, 687 (1984). "A defendant faces a heavy burden to establish ineffective assistance of counsel pursuant to section 2255, " since a strong presumption exists that counsel's conduct was reasonable. DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000) (internal quotations omitted); Strickland, 466 U.S. at 689.

         A showing of deficiency requires the movant to establish that his counsel was not the counsel "guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688. The Strickland Wand Court continued:

In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

Id. at 691.

         A showing of prejudice requires the movant to show there is a reasonable probability that, but for his counsel's incompetent act or omission, the result of the proceedings would have been different. Id. at 694; Alaniz v. United States, 351 F.3d 365, 367 (8th Cir. 2003). The focus of this inquiry is on whether the "reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A defendant's contention that his counsel's act or omission had some conceivable effect on the result of the proceedings is not enough to meet the burden of prejudice. Id. at 693; Odem v. Hopkins, 382 F.3d 846, 850 (8th Cir. 2004). Moreover, when a defendant's claim involves an act or omission during the plea process, the defendant must show that, but for his counsel's act or omission, there is a reasonable probability that he would have not pled guilty and would have insisted on going to trial instead. Hill v. Lockhart, 474 U.S. 52, 60 (1985); United States v. Prior, 107 F.3d 654, 661 (8th Cir. 1997). Lastly, to warrant an evidentiary hearing, the defendant must "provide some credible indication of facts reasonably available to him to support his claim." Osagiede v. United States, 543 F.3d 399, 413 (7th Cir. 2008).

         III. DISCUSSION

         A. Objection One: Failure to Advise about Consular Rights or to Inquire about the Government's Compliance with ...


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