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United States v. Cortez-Diaz

United States District Court, D. Kansas

June 21, 2017

JUAN MANUEL CORTEZ-DIAZ, Defendant. Civil No. 15-9284


          CARLOS MURGUIA United States District Judge.

         This matter comes before the court upon defendant Juan Manuel Cortez-Diaz's motion to vacate or correct his sentence under 28 U.S.C. § 2255 (Doc. 137) and defendant's motion for discovery and production of documents pursuant to Rule 6 (Doc. 151). Defendant alleges ineffective assistance of counsel. For the reasons set forth below, the court denies both motions.

         I. Factual Background

         Defendant was convicted by a jury of five separate counts of methamphetamine trafficking, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1). The Presentence Report (“PSR”) included a base offense level of 38 given defendant's responsibility for 7.07 kilograms of methamphetamine. It also recommended a two-level enhancement for maintaining a stash house and a four-level enhancement for defendant's leadership of a criminal activity with five or more participants. After hearing argument on defendant's objections and considering the 18 U.S.C. § 3553(a) sentencing factors and requested downward variance, the court ultimately imposed a life sentence in accordance with the guidelines recommendation. Defendant appealed to the Tenth Circuit, claiming procedural and substantive error at sentencing. The Tenth Circuit affirmed defendant's sentence, and defendant filed the present motion to vacate his sentence pursuant to 28 U.S.C. § 2255.

         II. Legal Standards

         Under 28 U.S.C. § 2255(a), a prisoner in custody has the right to challenge a sentence imposed by the district court if it is in violation of the Constitution or other law of the United States, or if the sentence imposed was in excess of the maximum authorized by law. If the court finds that defendant is being held in violation of federal law, the court “shall vacate and set the judgment aside and shall discharge the [defendant] or resentence him or grant a new trial or correct the sentence . . . .” 28 U.S.C. § 2255(b).

         Here, defendant challenges his sentence based on ineffective assistance of counsel. The government references the fact that defendant was appointed new counsel after trial, but before sentencing, and argues that defendant could have raised his claims of ineffective assistance of counsel on direct appeal. But the “failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.” Massaro v. United States, 538 U.S. 500, 509 (2003).

         The court applies the standard identified in Strickland v. Washington, 466 U.S. 668, 688 (1984), when determining whether a habeas petitioner's counsel provided ineffective assistance. See Romano v. Gibson, 278 F.3d 1145, 1151 (10th Cir. 2002) (applying Strickland ). Under Strickland, a petitioner bears the burden to demonstrate that (1) counsel's performance “fell below an objective standard of reasonableness, ” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 688, 694. “[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the [petitioner] makes an insufficient showing on one . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id. at 697.

         III. Defendant's claims

         Defendant alleges several claims involving plea negotiations and/or the lack thereof. In his motion, defendant claims that defense counsel was ineffective when he failed to (1) inform defendant that he was facing a life sentence; (2) pursue a plea deal to avoid a life sentence; and (3) inform defendant of other alternatives to and the actual consequences of proceeding with trial. Defendant proffers that had he been properly advised of the potential life sentence and consequences of proceeding to trial, he would have entered a guilty plea and avoided trial. In his supporting memorandum, defendant alleges that defense counsel failed to communicate the government's plea offer as well as advise defendant to accept the plea offer. Defendant claims that he did not learn about the offer until after trial. He further claims that defense counsel misunderstood the law, and there was a breakdown in communication that ultimately affected the plea negotiations and sentencing.

         Defendant also raises claims that trial counsel was ineffective pretrial and during trial. He argues trial counsel failed to challenge a speedy trial violation. Defendant alleges that trial counsel did not inform him of his right to testify at trial or explain the sentencing guidelines and potential enhancements. He claims that trial counsel failed to sequester the witnesses as well as object to a missing witness and Agent Matt Hall's (“Agent Hall”) testimony. Defendant also brings a claim of ineffective assistance of counsel against appellate counsel for failing to correct the appellate record.

         a. Failure to Communicate the Plea Offer

         Several of defendant's claims revolve around whether defense counsel informed and/or explained to defendant the government's plea agreement offering a below-life sentence. The Sixth Amendment right to the effective assistance of counsel “extends to the plea-bargaining process.” United States v. Watson, 766 F.3d 1219, 1225 (10th Cir. 2014) (quoting Lafler v. Cooper, 566 U.S. 156, 162 (2012)). When a defendant claims that counsel's deficient performance caused him to reject a plea offer and proceed to trial, he must show “a reasonable probability that a plea offer would have been presented to the court . . ., that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.” Lafler, 566 U.S. at 164.

         To establish prejudice under Strickland, defendant must begin by proving that a plea agreement was formally offered by the government. See United States v. Nguyen, 619 F. App'x 136, 141 (3d Cir. 2015) (petitioner's claim that he rejected favorable plea offer based on counsel's deficient performance necessarily fails if plea agreement was never formally offered by the government); United States v. Barajas, No. 10-20077-02-JWL, 2016 WL 427734, at *1 (D. Kan. Feb. 4, 2016) (denying defendant's original claim after evidence at hearing showed that the government did not extend a formal plea offer).

         Defendant refers to “plea offer” as a singular unit in all of his claims. In Ground Seven, defendant specifically identifies a plea offer for 236 months as the offer trial counsel failed to relay to him prior to trial. Therefore, the court ...

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