Diaz-Melquiades v. USA, No. 3:2011cv01588 - Document 2 (S.D. Cal. 2011)
Court Description: ORDER Denying Petitioner's Motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. The Court also denies a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Signed by Judge Irma E. Gonzalez on 12/29/11.(All non-registered users served via U.S. Mail Service)(ecs)
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Diaz-Melquiades v. USA Doc. 2 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GUSTAVO DIAZ-MELQUIADES, Petitioner 12 13 CASE NO. 10cr3090 – IEG Related Case: 11cv1588 – IEG ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY vs. 14 UNITED STATES OF AMERICA, 15 Respondent. [Doc. No. 29 in 10cr3090] 16 17 18 Petitioner, a federal inmate proceeding pro se, submitted a motion under 28 U.S.C. § 2255 19 to vacate, set aside, or correct his sentence of 46 months in custody, resulting from his conviction 20 of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. He seeks 21 relief on two grounds: (1) ineffective assistance of counsel, and (2) qualification for United States 22 citizenship under 8 U.S.C. § 1431. Having considered the parties’ arguments, and for the reasons 23 set forth below, the Court DENIES Petitioner’s motion to vacate, set aside, or correct his sentence. 24 BACKGROUND 25 Petitioner was charged with, and ultimately pleaded guilty to, being a deported alien found 26 in the United States in violation of 8 U.S.C. § 1326(a) and (b). [Doc. Nos. 1, 18.] As part of his 27 Plea Agreement, Petitioner stated that he understood that he was pleading guilty to a count, which 28 had as one of its elements that “Defendant was not a citizen of the United States,” (Plea Agr’t ¶ -1- 10cr3090-IEG; 11cv1158-IEG Dockets.Justia.com 1 II.A.1 [Doc. No. 18]), and he agreed that this fact was “true and undisputed,” (id. ¶ II.B.1). In his 2 Plea Agreement, Petitioner also indicated that he “had a full opportunity to discuss all the facts and 3 circumstances of this case with defense counsel, and has a clear understanding of the charges and 4 the consequences of this plea.” (Id. ¶ VI.A.) Finally, as part of the Plea Agreement, Petitioner 5 expressly “waive[d], to the full extent of the law, any right to appeal, or to collaterally attack the 6 conviction and sentence.” (Id. ¶ XI.) On April 4, 2011, the Court sentenced Petitioner to 46 7 months of custody, followed by 3 years of supervised release. [Doc. No. 27.] 8 9 Petitioner filed the present motion on July 14, 2011. [Doc. No. 29.] Petitioner first contends that he was denied effective assistance of counsel because his court-appointed counsel: 10 (1) failed to file timely objections to the Pre-Sentence Report (“PSR”); (2) failed to properly 11 investigate the case or request Petitioner’s background history to determine if Petitioner qualified 12 for 8 U.S.C. § 1431; (3) failed to file a timely notice of appeal or preserve issues for appellate 13 review; and (4) failed to argue for the application of 8 U.S.C. § 1431, where the record would have 14 demonstrated that Petitioner’s father was a United States citizen. In the alternative, Petitioner 15 contends he is actually innocent of being a deported alien found in the United States in violation of 16 8 U.S.C. § 1326 because he can demonstrate that he qualifies for application of 8 U.S.C. § 1431, 17 and therefore was erroneously classified as an illegal alien. Following the Court’s Order to Show 18 Cause, [Doc. No. 30], the Government filed a response in opposition to the motion, [Doc. No. 32]. 19 The Court decides this motion without oral argument pursuant to the Civil Local Rule 7.1(d)(1). 20 21 DISCUSSION Section 2255 authorizes the Court to “vacate, set aside or correct” a sentence of a federal 22 prisoner that “was imposed in violation of the Constitution or laws of the United States.” 28 23 U.S.C. § 2255(a). Claims for relief under § 2255 must be based on some constitutional error, 24 jurisdictional defect, or an error resulting in a “complete miscarriage of justice” or in a proceeding 25 “inconsistent with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 26 U.S. 780, 783-84 (1979). If the record clearly indicates that a petitioner does not have a claim or 27 that he has asserted “no more than conclusory allegations, unsupported by facts and refuted by the 28 record,” a district court may deny a § 2255 motion without an evidentiary hearing. United States -2- 10cr3090-IEG; 11cv1158-IEG 1 v. Quan, 789 F.2d 711, 715 (9th Cir. 1986); see also United Stats v. Chacon-Palomares, 208 F.3d 2 1157, 1159 (9th Cir. 2000) (“When a prisoner files a § 2255 motion, the district court must grant an 3 evidentiary hearing ‘unless the motion and the files and records of the case conclusively show that 4 the prisoner is entitled to no relief.’” (quoting 28 U.S.C. § 2255)). 5 I. 6 Ineffective assistance of counsel The Sixth Amendment to the United States Constitution guarantees the effective assistance 7 of counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984). In order to succeed on an 8 ineffective assistance of counsel claim, the petitioner must demonstrate that: (1) counsel’s 9 performance was deficient; and (2) the deficient performance prejudiced his defense. Id. at 687. 10 There is “a strong presumption that counsel’s conduct falls within the wide range of reasonable 11 professional assistance,” id. at 689, and the petitioner bears the burden of establishing both prongs 12 of the standard, see Silva v. Woodford, 279 F.3d 825, 836 (9th Cir. 2002). 13 To show that his counsel’s performance was deficient, the petitioner must show that it “fell 14 below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. In this regard, 15 “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and the petitioner must 16 overcome a strong presumption “that, under the circumstances, the challenged action ‘might be 17 considered sound trial strategy.’” Id. at 689 (citation omitted). 18 To establish prejudice, the petitioner must demonstrate that “there is a reasonable 19 probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 20 been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine 21 confidence in the outcome.” Id. 22 A. 23 Petitioner first contends that his counsel was ineffective because he failed to file timely Failure to file timely objections to the PSR 24 objections to the PSR. Even assuming the objections were untimely filed, Petitioner has failed to 25 show any resulting prejudice. The docket demonstrates that on February 14, 2011, Petitioner’s 26 counsel filed a motion for a downward departure based on cultural assimilation. [Doc. No. 21.] 27 The docket further demonstrates that Petitioner’s counsel did file a sentencing memorandum one 28 week before sentencing, objecting to the PSR’s recommendation that Petitioner be sentenced to 51 -3- 10cr3090-IEG; 11cv1158-IEG 1 months in custody. [See Doc. No. 24.] At the sentencing hearing, the Court considered both of 2 these documents, although it ultimately denied the motion for a downward departure. [Doc. No. 3 27.] Because Petitioner failed to demonstrate how the result of the sentencing would have been 4 different, his ineffective assistance claim fails on this ground. See Strickland, 466 U.S. at 694. 5 B. Failure to file a timely notice of appeal 6 Petitioner next contends that his counsel was ineffective because he failed to file a timely 7 notice of appeal or preserve issues for appellate review. It is well-established that “a lawyer who 8 disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is 9 professionally unreasonable,” and, as a result, the “‘defendant is entitled to a new appeal without 10 showing that his appeal would likely have had merit.’” Roe v. Flores-Ortega, 528 U.S. 470, 477 11 (2000) (citations omitted). In the present case, however, Petitioner expressly “waive[d], to the full 12 extent of the law, any right to appeal . . . the conviction and sentence.” (See Plea Agr’t ¶ XI.) 13 “‘A defendant’s waiver of his appellate rights is enforceable if (1) the language of the 14 waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and 15 voluntarily made.’” United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011) (citation 16 omitted). In this case, the language of the appellate waiver in the Plea Agreement clearly 17 encompasses Petitioner’s right to appeal his sentence and conviction. There is also no indication 18 that the waiver was not knowingly and voluntarily made. Indeed, Petitioner acknowledged that he 19 “had a full opportunity to discuss all the facts and circumstances of this case with defense counsel, 20 and has a clear understanding of the charges and the consequences of this plea.” (Plea Agr’t ¶ 21 VI.A.) Accordingly, because Petitioner expressly waived any right to appeal, his counsel’s alleged 22 failure to file a timely notice of appeal or preserve issues for appellate review does not “f[a]ll 23 below an objective standard of reasonableness.” See Strickland, 466 U.S. at 688. 24 C. 25 Finally, Petitioner contends that his counsel’s performance was ineffective because he Failure to investigate and argue the application of 8 U.S.C. § 1431 26 failed to properly investigate the case or request Petitioner’s background history to determine if 27 Petitioner qualified for 8 U.S.C. § 1431, and because he failed to argue for the application of 8 28 U.S.C. § 1431, where the record would have demonstrated that Petitioner’s father was a United -4- 10cr3090-IEG; 11cv1158-IEG 1 States citizen. Section 1431 provides that a child born outside of the United States is an automatic 2 United States citizen if all of the following conditions are fulfilled: (1) at least one of his parents is 3 a United States citizen, whether by birth or naturalization; (2) the child is under the age of eighteen 4 years; and (3) the child is residing in the United States in the legal and physical custody of the 5 citizen parent pursuant to a lawful admission for permanent residence. 8 U.S.C. § 1431(a). 6 In the present case, Petitioner failed to show that his counsel’s performance was deficient. 7 Apart from Petitioner’s conclusory statement that his father is a United States citizen by 8 naturalization, having been naturalized at the INS district office of Pomona, California under the 9 name of Maclovio Diaz Rufino, (see Pl. Motion, at 4 [Doc. No. 29]), there is no evidence that 8 10 U.S.C. § 1431 applies to Petitioner. In fact, Petitioner’s claim that he is a United States citizen is 11 refuted by the record. For example, the indictment indicates that official immigration records from 12 the Department of Homeland Security show that Petitioner was previously deported from the 13 United States on October 21, 2009 through Nogales, Arizona. (See Gov’t Response to Motion, Ex. 14 2 [Doc. No. 32].) Likewise, in the Plea Agreement, Petitioner acknowledged that he understood 15 that he was pleading guilty to a count, which had as one of its elements that “Defendant was not a 16 citizen of the United States,” (Plea Agr’t ¶ II.A.1), and he agreed that this fact was “true and 17 undisputed,” (id. ¶ II.B.1). Accordingly, because Petitioner expressly admitted in the Plea 18 Agreement that he was not a United States citizen, and because there is no indication that the Plea 19 Agreement was not knowingly and voluntarily entered into, Petitioner failed to show that his 20 counsel’s failure to investigate and argue the applicability of 8 U.S.C. § 1431 “fell below an 21 objective standard of reasonableness.” See Strickland, 466 U.S. at 688. 22 II. Qualification for U.S. citizenship under 8 U.S.C. § 1431 23 In the alternative, Petitioner contends he is actually innocent of being a deported alien 24 found in the United States in violation of 8 U.S.C. § 1326 because he can demonstrate that he 25 qualifies for application of 8 U.S.C. § 1431, and therefore was erroneously classified as an illegal 26 alien. As discussed above, however, the record refutes Petitioner’s claim that he is a United States 27 citizen. Accordingly, Petitioner failed to demonstrate that he qualifies for application of 8 U.S.C. 28 § 1431, and therefore he failed to demonstrate that his conviction for being a deported alien found -5- 10cr3090-IEG; 11cv1158-IEG 1 in the United States in violation of 8 U.S.C. § 1326 was “imposed in violation of the Constitution 2 or laws of the United States.” See 28 U.S.C. § 2255(a). 3 III. 4 Evidentiary hearing Because Petitioner has asserted “no more than conclusory allegations, unsupported by facts 5 and refuted by the record,” see Quan, 789 F.2d at 715, and because “‘the motion and the files and 6 records of the case conclusively show that [Petitioner] is entitled to no relief,’” see Chacon- 7 Palomares, 208 F.3d at 1159 (citing 28 U.S.C. § 2255), the Court denies Petitioner’s § 2255 8 motion without an evidentiary hearing. See 28 U.S.C. § 2255(b). 9 10 CONCLUSION For the foregoing reasons, the Court DENIES Petitioner’s motion to vacate, set aside, or 11 correct his sentence. The Court also denies a certificate of appealability because Petitioner has not 12 “made a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). 13 14 15 IT IS SO ORDERED. Date: December 29, 2011 ________________________________ IRMA E. GONZALEZ, Chief Judge United States District Court 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- 10cr3090-IEG; 11cv1158-IEG
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