United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS. JUDGES
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.
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.
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.
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.
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.
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.
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
Id. at 691.
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).
Objection One: Failure to Advise about Consular Rights or to
Inquire about the Government's Compliance with ...