Flores-Diaz v. U.S.

Citation516 F.Supp.2d 818
Decision Date14 May 2007
Docket NumberCrim. Case No. L-03-cr-1449.,Civil Action No. L-05-cv-177.
PartiesJuan Gerardo FLOREDIAZ, Petitioner, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — Southern District of Texas

Page 818

516 F.Supp.2d 818
Juan Gerardo FLOREDIAZ, Petitioner,
UNITED STATES of America, Respondent.
Civil Action No. L-05-cv-177.
Crim. Case No. L-03-cr-1449.
United States District Court, S.D. Texas, Laredo Division.
May 14, 2007.

Page 819


Page 820

Financial Litigation, US Attorney's Office, Southern District of Texas, Houston, TX, US Pretrial Svcs., US Probation, Mary Ellen Smyth, Assistant US Atty., Laredo, TX, for Respondent.


MICAELA ALVAREZ, District Judge.

Pending before the Court is Juan Gerardo Flores Diaz's ("Flores") Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Under 28 U.S.C. § 2255. [Dkt. No. 1].1 Having duly considered the petition, supporting memorandum, and applicable law, Flores's motion is DENIED. Also denied is a certificate of appealability.


Flores is a national and citizen of Mexico.2 He entered the United States in 1966. Records reflect Flores was granted legal permanent status in 1966. On July 13, 1989, Flores pled guilty to possession with the intent to distribute 22.72 kilograms of marijuana. He was released, but failed to appear for sentencing. Flores was later arrested, and also charged with failure to appear. On February 5, 1990, he was sentenced in both cases. The court sentenced Flores to 21 months in custody for the narcotics offense and six months for failing to appear, followed by five years of supervised release. Flores was released from custody and deported to Mexico on August 20, 1991.

On July 5, 1992, Flores attempted to reenter the United States by claiming to be a United States citizen. After a brief interview at the Lincoln-Juarez Port of Entry in Laredo, Texas, Flores admitted his true identity and nationality. He was processed for exclusion and returned to Mexico.

Just two months later, in late September of 1992, Flores, along with other individuals, traveled from Dallas, Texas, to Tennessee, carrying approximately 18 pounds of marijuana. PSR ¶ 39. The purpose of the trip was for Flores to sell the marijuana. Id. In Tennessee Flores unsuccessfully attempted to sell the marijuana to an undercover agent. Id. He was subsequently arrested and charged with intent to distribute 18 pounds of marijuana and for having been found in the United States as an illegal alien without permission from the Attorney General. On February 22, 1993, the U.S. District Court in Knoxville, Tennessee, sentenced Flores to 60 months incarceration and four years of supervised release. On October 18, 1994, an immigration judge ordered Flores deported.3 Flores, after serving his sentence, was deported to Mexico on December 18, 1997.

Page 821

On July 27, 1998, Flores attempted to reenter the United States by claiming to be a United States citizen. During secondary inspection, he admitted his true identity, nationality, and admitted to having been previously deported to Mexico. Flores was processed for expedited removal and returned to Mexico.

On October 26, 1998, Flores was apprehended attempting to reenter the United States. The U.S. District Court in McAllen, Texas sentenced Flores on February 26, 1999, to 37 months in custody for attempting to reenter the United States after, being deported. Flores was once again deported to Mexico following his release from custody on June 2, 2001.

On September 16, 2003, Flores, an alien who had been previously deported, was indicted on charges that he was found in the United States without having obtained consent from the' Secretary of the Department of Homeland Security. [Crim. Dkt. No. 1]. While in custody, Flores unsuccessfully attempted to escape. See Indictment Case No. 5:03-cr-1946.

On March 11, 2004, Flores and his counsel appeared before Magistrate Judge Adriana Arce-Flores. [Crim. Dkt. No. 16 at 1]. Judge Arce-Flores addressed Flores personally in open court and carefully provided a litany of admonishments and explanations, including the elements of the charges against him, the consequences of the plea, and the offense's maximum punishment. Judge Arce-Flores also explained Flores's appellate rights, his right to plead not guilty and to force the government to prove their case beyond a reasonable doubt, and his right to have counsel represent him in all proceedings. Judge Arce-Flores then asked whether he understood his rights, and Flores answered that he did. After the Government read the factual basis of the case, Judge Arce-Flores asked Flores how he was pleading. Flores answered "guilty." Subsequently,

Judge Arce-Flores found that Flores "fully underst[ood] the nature of the charges and penalties; ... defendant's plea [was] made freely and voluntarily; ... defendant [was] competent to enter this plea of guilty; and [t]here [was] an adequate factual basis for this plea." Id. at 2. Based on this, Judge Arce-Flores recommended this Court to accept Flores's guilty plea, and this Court ultimately adopted the recommendation. [Crim. Dkt. No. 17].

The Court ordered a PSR which the U.S. Probation Department prepared. The PSR calculated Flores's base offense level to be eight, but increased by 16 levels. PSR ¶ ¶ 24, 25. The increase was due to Flores's 1993 conviction of possession with intent to distribute marijuana. Id. ¶ 25. The PSR also increased Flores's score by two levels for obstruction of justice in connection with Flores's attempted escape. Id. ¶ 28. Based on a total offense level of 26, Id. ¶ 31, and a criminal history category of V, Id. ¶ 42, Flores's range was 110 to 137 months incarceration.

Judge Keith P. Ellison sentenced Flores on July 23, 2004, to 110 months incarceration for the section 1326 violation and 60 months for the attempted escape from custody. These were to run concurrent. Flores's incarceration was to be followed by a three-year term of supervised release. A notice of non-appeal was filed on the same date as sentencing. [Crim. Dkt. No. 21]. Judgment was entered August 5, 2004. [Crim. Dkt. No. 22].

On August 1, 2005, in conjunction with a § 2255 petition, Flores requested an extension of time to file a more detailed petition. [Dkt. No. 1 & 2]. The Court granted the extension of time and instructed Flores that his "Memorandum of Support must be filed [with the Court] no later than October 21, 2005." [Dkt. No. 4]. On October 31, 2005, Flores filed a petition titled Initial Memorandum of Points and

Page 822

Authorities for Motion to Vacate, Set Aside, or Correct Sentence Pursuant to Title 28, U.S.C., Section 2255.4 [Dkt. No. 6].


Under Title 28, United States Code, Section 2255 (" § 2255") a federal prisoner who claims that his "sentence was imposed in violation of the Constitution or laws oil the United States ... or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. Upon the filing of such a petition, the sentencing court must order a hearing to determine the issues and findings of fact "Winless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief...."

It appears Flores's § 2255 is properly before this Court. Flores is a federal prisoner currently incarcerated in a federal institution in Forrest City, Arkansas, arid he has moved this Court — the Court that imposed his sentence — to set aside, vacate, or correct his illegal reentry and escape sentence. Flores's motion appears to allege he is being held in violation of the Constitution and laws of the United States for the following reasons:

1. He was denied the right to seek discretionary relief under Section 212(c) of the Immigration and Nationality Act (" § 212(c)");

2. The sentencing Court abused its discretion by not considering Flores's cultural assimilation and extraordinary family circumstances and thus not applying a downward guideline departure;

3. The sentencing Court abused its discretion by enhancing Flores's sentence;

4. Flores was denied effective assistance of counsel at sentencing in that counsel: (i) failed to research and argue for § 212(c) relief; (ii) failed to investigate Flores's cultural assimilation and extraordinary family circumstances and as a result did not seek a downward departure from the sentencing guidelines; (iii) failed to argue against imposition of Flores's enhancements; (iv) failed to preserve the sentence enhancements for appeal; (v) failed to file a notice of appeal and did not appeal Flores's case; (vi) failed to advice Flores regarding the consequences of accepting the plea agreement; and (vii) performed under a conflict of interest.

In determining whether Flores is entitled to a hearing, the Court will first address the allegations made by Flores in his § 2255 petition. To fully address the aforementioned allegations, the Court has combined Flores's claims into three distinct causes of action and/or allegations. In Part ILA., the Court will address Flores's contention relating to § 212(c) relief. Part II.B. will consider Flores's alleged sentencing violations. Flores's ineffective assistance of counsel contentions will be entertained in Part II.C. The Court commences its discussion with the first allegation.

Page 823

A. Section 212(c) Discretionary Relief

The Immigration and Nationality Act ("INA") of 1952 provided, as interpreted by the Immigration and Naturalization Service ("INS"), that if an alien had been lawfully domiciled in the United States for seven consecutive years, without relinquishment, he could apply, under INA § 212(c), for discretionary waiver of deportation from the Attorney General. INS v. St. Cyr, 533 U.S. 289, 294-95, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (citing 8 U.S.C. § 1182(c)). If granted, deportation proceedings were terminated arid the alien remained a permanent resident.5 Id.

In 1990, Congress amended and narrowed §...

To continue reading

Request your trial
4 cases
  • Moore v. United States
    • United States
    • U.S. District Court — Southern District of Alabama
    • March 21, 2014
    ...that they did not wish to appeal, based on evidence in addition to a signed Notice of Non-Appeal. See Flores-Diaz v. United States, 516 F. Supp. 2d 818, 830 (S.D. Tex. 2007) ("On June 23, 2004, Flores filed a Notice of Non-Appeal. Said notice, written in both English and Spanish, states: 'I......
  • Withers v. United States
    • United States
    • U.S. District Court — Western District of Tennessee
    • March 26, 2015
    ...resulted in a division of loyalties adversely affecting the trial counsel's performance."); see also Flores-Diaz v. United States, 516 F. Supp. 2d 818, 831 (S.D. Tex. 2007) (denying 2255 motion in which alien defendant arguedthat his attorney had a conflict of interest because his brother w......
  • United States v. Chestang
    • United States
    • U.S. District Court — Southern District of Alabama
    • January 22, 2014
    ...tells counsel not to file an appeal, counsel is not ineffective for following his client's instructions"); Flores-Diaz v. United States, 516 F. Supp.2d 818, 830 (S.D. Tex. 2007) (petitioner's lawyer "cannot be faulted for not filing a notice of appeal since [defendant] expressly conveyed he......
  • United States v. De Paz-Fuentes
    • United States
    • U.S. District Court — Southern District of Texas
    • September 1, 2015
    ...that he discussed his case with his attorney and decided not to pursue an appeal. (Dkt. No. 26); cf. Flores-Diaz v. United States, 516 F. Supp. 2d 818, 830 (S.D. Tex. 2007) (finding that a defendant who signed an identical Notice of Non-Appeal could not maintain a cause of action against hi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT