United States v. Diaz
| Decision Date | 02 July 2014 |
| Docket Number | CR 07-0701 LH/KBM,CIV 12-0482 LH/KBM |
| Court | U.S. District Court — District of New Mexico |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. JESUS MANUEL DIAZ, Defendant/Movant. |
THIS MATTER comes before the Court on Defendant/Movant Jesus Manuel Diaz's Motion to Expand the Record Pursuant to Rule 7 of the Rules Governing 2255 Proceedings for the United States District Courts (Doc. 42)1 filed March 17, 2014, which was fully briefed on March 30, 2014,2 and his Objections to the Chief Magistrate Judge's Report and Recommendations3 (Doc. 46) filed March 28, 2014. The Court has reviewed the briefing of the parties, conducted a de novo review of the record, and finds that Diaz's Motion to Expand the Record is not well taken and that his objections to the R & R are without merit.
Diaz seeks to expand the record to include "information regarding the illegal data funnel from the NSA [National Security Agency] through the DEA's [Drug Enforcement Agency] SOD [Special Operations Division] to local and state police for non-national security purposes" so that Diaz may "be afforded the opportunity to ascertain whether his case was one of the cases where this illegal data funnel took place." Doc. 42 at 11.
Rule 7(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts allows for the expansion of the record to include materials relating to the Section 2255 motion. These materials may include Rules Governing § 2255 Cases, Rule 7(b).
Diaz recites news articles, commentary, and examples of other cases outside of this district in support of his position that the DEA has been funneling NSA data to certain local law enforcement agencies. Diaz argues that:
It is likely that Mr. Diaz's apprehension at the Gallup POE was the tainted fruit of illegal use of NSA eavesdropping, which was accessed by the DEA, which relayed the information to the Motor Transportation Division of the New Mexico Department of Public Safety, in accordance with the shady practices that have recently come to light.
Doc. 42 at 1 (emphasis added). However, Diaz does not present any evidence that Officer Smid, or any of the officers involved in this case, were given information by any federal agency, such as information obtained through eavesdropping by NSA, as described in his examples.
On the other hand, the United States submits a sworn statement from OfficerSmid that states:
During the arrest of Mr. Diaz on March 19, 2007, I had no prior knowledge of Mr. Diaz having control of the marijuana in the trailer he was hauling. I had no prior knowledge from any federal entity, state, county, or city entity of Mr. Diaz, his tractor, his trailer, nor the marijuana that was seized from the trailer that Mr. Diaz was in control of during this time frame. I did not receive any phone calls from any confidential informants either. My contact was neither planned, nor scheduled by any parties who may be considered before, during, or after the arrest of Mr. Diaz.
Doc. 47-1. In light of this testimony, Diaz's belief that he was a victim of a conspiracy between the federal government and the New Mexico Motor Transportation Division is no more than rank speculation. News articles and the like do not assist the Court in determining whether Diaz suffered a violation of his constitutional rights or whether the Chief Magistrate Judge erred in her conclusions. Accordingly, Diaz' motion to expand the record will be denied.
Diaz urges this Court to reject the R & R because the Magistrate Judge: (1) ignored new evidence; (2) did not address Diaz's arguments; (3) failed to find that consent of the search of the trailer was "tainted by a prior illegal search"; and (4) was mistaken about key facts. Doc. 46 at 2. Although the Chief Magistrate Judge's R & R does contain some errors, those errors do not change the result, as she was correct in her ultimate decision that this case should be dismissed.
When a party files timely written objections to the Magistrate Judge's recommendation, the district court will conduct a de novo review and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge." 28 U.S.C.A. § 636(C). De novo review requires the district court toconsider relevant evidence of record and not merely review the Magistrate Judge's recommendation. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). "[A] party's objections to the Magistrate Judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review. United States v. One Parcel of Real Prop., with Buildings, Appurtenances, Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Following a de novo review of the evidence in the record, the Court finds that Diaz's objections are without merit and will adopt the R & R.
The bulk of Diaz's claim for habeas relief rests on the argument that the administrative Level II safety inspection was a mere pretext for a criminal investigation and that trial counsel was ineffective for not pursuing a suppression motion on that basis. Doc 46 at 4. Diaz contends that the Magistrate Judge erred by ignoring evidence brought for the first time in this habeas action that "Officer Smid never conducted a Level II safety inspection." Doc. 46 at 4.
Specifically, Diaz faults the Magistrate Judge for failing to address the affidavit of his trucking industry expert. Doc. 46 at 5-8. Diaz apparently concedes that by entering the State of New Mexico, the truck was lawfully subject to a safety inspection by authorized officers at the Gallup Port of Entry. Rather, Diaz relies on the expert's affidavit to point to perceived irregularities in the way that Officer Smid conducted his inspection when compared with a "typical" Level II safety inspection.
Diaz maintains the expert's testimony demonstrates that Officer Smid'sinspection was sham, performed not for the legitimate purpose of administrative safety checks, but instead with a motive to obtain evidence of criminal activity. Diaz contends that "Officer Smid repeatedly went beyond the steps of a Level II safety inspection and made observations that were later relied on as justification of the second and more detailed search of the trailer's contents." Doc. 17 at 32. "Without these observations," Diaz argues, "there is not sufficient indicia of criminal activity to constitute reasonable suspicion [and] the search would not have been justifiable." Id.
The Magistrate Judge also did not address the affidavit of an audio recording expert whose analysis, Diaz asserts, demonstrates that the government witnesses lied in testimony in the district court and that his trial counsel failed to point it out and seek appropriate relief under Brady v. Maryland, 373 U.S. 83 (1963). Doc. 17 at 46-54. The audio expert proclaims that two devices recorded Diaz's encounter with Officer Smid. Cr. Doc. 184. Officer Smid testified that he was not using a recording device during the encounter, so Diaz concludes that this testimony must be a lie and that trial counsel was ineffective in bringing this to the Court's attention as it would have impacted Officer Smid's credibility.
However, Diaz is unable to confirm that Officer Smid did, in fact, lie about whether he had a recording device. The expert affidavit only confirms that two devices were recording at the Port of Entry. Cr. Doc. 184. Diaz merely speculates that one of the tapes was "evidently in use by Officer Smid" and concludes that "one recording is on Officer Halona's device; the other is apparently on Officer Smid's device." Doc. 17 at 52 (emphasis added).
Most importantly, these arguments ignore that one of the grounds for finding thesearch to be lawful was not based on a finding of reasonable suspicion or probable cause; rather, the validity of the search was premised on Diaz's knowing and voluntary consent to the search. Thus, any irregularities in the Level II inspection that the expert identifies were of no consequence to the ultimate question - whether the search uncovering the marijuana was supported by valid consent. The audio expert's belief that two rather than one recording devices were used during the encounter at the port of entry similarly fails to attack the Court's finding that valid consent was given for the search.
Thus, the Magistrate Judge correctly found that Diaz could not establish actual prejudice for trial counsel's failure to bring those arguments. Indeed, a court need not address whether counsel's performance was deficient if defendant fails to prove actual prejudice. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984) ().
As the Magistrate Judge explained, Officer Smid had concluded the inspection before requesting consent to search the trailer, and the marijuana was discovered only after the officer had received permission from Diaz for that search. Doc. 39 at 9. Trial counsel's strategy to suppress the marijuana by attacking the validity of Diaz's consent to search therefore was reasonable under the circumstances. It was only after a full evidentiary hearing that the Court expressly found that Diaz' consent was knowingly and voluntarily given. See Cr. Doc. 91 at 14-17. With that finding, the motivation of...
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