Diaz v. United States
| Decision Date | 10 May 2012 |
| Docket Number | Civil No. 11-2232 (JAF),Crim. No. 10-251 |
| Parties | ARMANDO DIAZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Petitioner, Armando Díaz, brings this pro-se petition for relief from a federal court conviction pursuant to 28 U.S.C. § 2255. (Docket No. 1.) Respondent, the United States of America, opposes. (Docket No. 8.)
We draw the following narrative from Petitioner's motions, the Government's response, and the docket of the related criminal case. Petitioner was indicted as a drug seller on narcotics trafficking and firearms charges on July 14, 2010. (Crim. No. 10-251, Docket No. 3.) After protracted plea negotiations, Petitioner decided he no longer wanted to plead guilty. On December 16, 2010, through his counsel, Ismael Rodríguez-Izquierdo ("Rodríguez"), Petitioner filed a motion requesting withdrawal of legal representation, which explained that Petitioner had told counsel that "he would not sign the outstanding plea offer nor go to trial," and had requested that Rodríguez resign as counsel. (Crim. No. 10-251, Docket No. 857.) Rodríguez agreed, stating that he believed Petitioner rejected his advice and that Petitioner appeared "tobe very vulnerable to external influences from [his fellow] inmates who . . . continuously bombard him . . . with incorrect legal advice." (Id.) The change of plea hearing was cancelled, and this court met with Petitioner and counsel to discuss the matter. (Crim. No. 10-251, Docket No. 891.) We refrained from deciding the withdrawal motion and, on December, 17, 2010, we appointed attorney José Aguayo ("Aguayo") to "discuss the case and plea agreement with the defendant," offering an independent second opinion and further information that would allow Petitioner to better evaluate his choices. (Id.) On December 22, 2010, Aguayo filed a motion with this court explaining that he had reviewed the outstanding plea agreement, as well as the indictment and the corresponding sentencing guidelines following a conviction in each scenario. (Crim. No. 10-251, Docket No. 911). Subsequently, he had visited Petitioner and discussed several topics, including: The evidence against him, the "potential sentencing guidelines with a criminal history III should he be found guilty at trial versus the plea offer," his right to reject the plea offer, and the government's right to negotiate a plea offer (and right not to negotiate one), as well as the possibility of taking a straight plea. (Id.) Aguayo also explained that he gave Petitioner his address and phone number should he have any further questions. (Id.) At his rescheduled change of plea hearing on January 29, 2010, Petitioner informed this court that he would stand trial. (Crim. No. 10-251, Docket No. 942.) The same day, Aguayo was terminated as counsel, leaving Rodríguez as sole trial counsel. After we set the trial date, a tentative change of plea hearing was set for January 12, 2011. Petitioner pleaded guilty the following day.
On January 13, 2011, Petitioner pleaded guilty to one count of conspiracy to possess with intent to distribute narcotics within 1,000 feet of housing facilities owned by a public housingauthority, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 860, stipulating to at least 300 grams but less than 400 grams of cocaine.1 (Crim. No. 10-251, Docket No. 1009 at 1-3.) He also pleaded guilty to a second count—the knowing carrying and use of a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A). (Id.) In exchange, the government agreed to dismiss the counts remaining against him. (Id. at 8.) We took Petitioner's plea colloquy on January 13, 2011, and we denied the attorney withdrawal motion on January 21, 2011. (Crim. No. 10-251, Docket No. 1056.) On May 19, 2011, we sentenced Petitioner to 106 months' imprisonment (forty-six months for the narcotics count served consecutively with sixty months for the firearms count) and a supervised release term of six years for the first count (to run concurrently with five years for the firearms count). (Crim. No. 10-251, Docket Nos. 1805; 1806.) Petitioner did not file a direct appeal. (Docket No. 8 at 2.) On December 20, 2011, Petitioner submitted his motion seeking § 2255 relief.
(Docket No. 1.)
A federal district court has jurisdiction to entertain a § 2255 petition when the petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A federal prisoner may challenge his or her sentence on the ground that, inter alia, it "was imposed in violation of the Constitution or laws of the United States." Id. The petitioner is entitled to an evidentiaryhearing unless the "allegations, accepted as true, would not entitle the petitioner to relief, or . . .'are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" United States v. Rodríguez Rodríguez, 929 F.2d 747, 749-50 (1st Cir. 1991) (quoting Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st Cir. 1990)); see 28 U.S.C. § 2255(b).
Because Petitioner appears pro se, we construe his pleadings more favorably than we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, Petitioner's pro-se status does not excuse him from complying with procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). Petitioner argues that: 1) there was insufficient evidence to support his conviction for the firearms count; 2) this court ignored his allegations of insufficient evidence and coercion; 3) this court refused his request for new counsel; and 4) he received ineffective assistance of counsel because he was coerced into pleading guilty to the firearms count. We discuss each argument in turn below and, finding each lacking in merit, dismiss this petition.
Petitioner first argues that the government lacked evidence to prove he carried and used firearms as detailed in the firearms count. (Docket No. 1-1 at 2.) We first note that normally, a "significant bar on habeas corpus relief is imposed when a prisoner did not raise claims at trial or on direct review." Owens v. United States, 483 F.3d 48, 56-57 (1st Cir. 2007). This court may consider such "claims for the first time on habeas corpus review only if the petitioner has 'cause' for having procedurally defaulted his claims, and if the petitioner suffered 'actualprejudice' from the errors. " Id. (quoting United States v. Frady, 456 U.S. 152, 168 (1982)). The government has not raised the issue of procedural default, which "is an affirmative defense, and a plaintiff generally is not required to negate an affirmative defense unless and until the defendant has placed it in issue." Oakes v. United States, 400 F.3d 92, 98 (1st Cir. 2005). This court can raise procedural default sua sponte, but we must first provide Petitioner with notice and an adequate opportunity to show cause and prejudice existed (apart from ineffective assistance of counsel). Id. at 97 ().
However, we need not resort to such a measure here because we reject Petitioner's argument on the merits without resorting to the affirmative defense. See Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (citations omitted) ("But because we are persuaded that each of these claims is meritless, we need not decide whether any of them is immune to principles of default, or, alternatively, whether [the petitioner] can establish cause and actual prejudice . . . to excuse any such default.")
Petitioner argues that there was insufficient evidence to show that he carried or used firearms within the meaning of § 924(c)(1)(A). (Docket No. 1-1 at 7.) He argues that he did not possess a firearm and was not charged with possession of one, and he also cites scattered caselaw regarding the meanings of "use" and "carry" of a firearm within the statute. (Id.) However, Petitioner's argument misses the mark. In a similar case, the First Circuit rejected the arguments of a defendant who, like our Petitioner, pointed to "a passage in the PSI Report, which informed the sentencing court that the appellant 'denied ownership of the firearm,' contradicted his admissions and so undermined the factual basis for his plea as to require thecourt to take corrective action." United States v. Negron-Narvaez, 403 F.3d 33, 40 (1st Cir. 2005). Likewise, regardless of whether Petitioner "disavowed owning the gun, ownership was not an element of the offense of conviction[, and] the statement did nothing to call into question" his aiding and abetting the use and carry of firearms.2 Id. (citations omitted). Beyond his denial of firearm possession, Petitioner's argument consists of hazy claims that the allegations were "Totally Devoid of Evidentiary support" and that the government did not present "any evidence whatsoever." (Docket No. 1-1 at 7-8.) We reject this argument, as the stipulated facts obviated the need for evidence such that might be required in a trial.
However, "Rule 11 requires that 'before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.'" United States v. Matos-Quinones, 456 F.3d 14, 21 (1st Cir. 2006) (quoting Fed. R. Crim. P. 11(b)(3)). In plea proceedings, the district court must discharge its duty to verify whether the "record permits a conclusion that the plea has a rational basis in fact.'" Id. (quoting Negron-Narvaez, 403 F.3d at 37). Rule 11 requires "a reasoned basis to believe that the defendant actually committed the crime to which he is admitting guilt," but it does not require the court to conduct a mini-trial during the plea colloquy, and...
To continue reading
Request your trial