Diaz v. United States

924 F. Supp. 898, 1996 U.S. Dist. LEXIS 5968, 1996 WL 225620
CourtDistrict Court, C.D. Illinois
DecidedApril 9, 1996
DocketNos. 96-1090, 88-10033
StatusPublished

This text of 924 F. Supp. 898 (Diaz v. United States) is published on Counsel Stack Legal Research, covering District Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Diaz v. United States, 924 F. Supp. 898, 1996 U.S. Dist. LEXIS 5968, 1996 WL 225620 (C.D. Ill. 1996).

Opinion

ORDER

MIHM, Chief Judge.

This matter is before the Court on Manuel Nicholas Diaz’ Motion under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 84.) Also before the Court is the Government’s Motion to Dismiss Petition for Writ of Habeas Corpus. (Doe. 87.) For the reasons set forth below, Diaz’ Motion is DENIED, and the Government’s Motion is GRANTED.

Background

On February 14, 1986, Diaz was convicted in a jury trial for five drug-related offenses which arose out of his cocaine sale to an undercover agent. (Docs. 35-39); United States v. Diaz, 814 F.2d 454, 455 (7th Cir.), cert. denied, 484 U.S. 857, 108 S.Ct. 166, 98 L.Ed.2d 120 (1987). Diaz appealed. (Doe. 47.) The Seventh Circuit affirmed the conviction on March 16,1987. Diaz, 814 F.2d at 454. In a published opinion, the Seventh Circuit rejected arguments regarding an alleged Fourth Amendment violation, a “‘taint’” to Diaz’ confession, a “plethora of objections to evidentiary rulings,” the trial court’s denial of a continuance to allow Diaz to “encourage a witness who was not under subpoena to appear,” and the sufficiency of Diaz’ indictment. Id., 460,460 n. 6.

On January 19, 1988, Diaz filed a Motion for Reduction of Sentence. (Doc. 59.) On February 11, 1988, this Court denied the Motion. (Doc. 61.)

On July 14, 1989, Diaz filed, pro se, his first § 2255 Motion, Case No. 89-1161. (Docs. 67, 68.) Diaz raised three grounds for relief. Diaz argued that the Government failed to prove two elements of the Continuing Criminal Enterprise statute under which he was convicted, that a Government witness made misleading statements at trial because she was threatened by the Government, and that this Court did not continue the trial to enable Diaz to have his former lawyer testify on his behalf. (Doc. 68.) This Court denied the motion, and judgment was entered on January 10,1990. (Docs. 73, 74.)

On January 25,1990, Diaz filed a Notice of Appeal. (Doc. 75.) On August 31, 1990, the Seventh Circuit dismissed the appeal for Want of Prosecution, pursuant to U.S.Ct. of App. 7th Cir.Rule 31(z)(2). (Doc. 82.)

On February 26, 1996, Diaz filed, again pro se, the § 2255 Motion currently pending before this Court. (Doc. 84.) Diaz raises two issues. First, Diaz argues ineffective assistance of trial counsel because his counsel, Terry Harn, made “numerous errors.” Id., at 5. Diaz argues that Mr. Harn sabotaged his only viable defense, failed to secure his only defense witness (his counsel at the arraignment and plea, Terry Sullivan), failed to request an entrapment instruction, and was an overall ineffective advocate. (Doc. 85, p. 2.) Second, Diaz argues ineffective assistance of “former counsel” because Terry Sullivan did not testify on his behalf. (Doc. 84, p. 5.) On March 15, 1996, the Government filed its Motion to Dismiss. (Doc. 87.) On April -4, 1996, Diaz filed a Traverse. (Doc. 90.)

Discussion

A second or successive [§ 2255] motion may be dismissed if the judge finds that it [901]*901fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

Rule 9(b) of the Rules Governing Section 2255 Proceedings in the United States District Courts. Thus, a second or successive § 2255 motion may be dismissed as an abuse of the writ. McCleskey v. Zant, 499 U.S. 467, 493-95, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991); Van Daalwyk v. United States, 21 F.3d 179, 182 n. 7 [7th Cir.1994).

Procedurally, the Government bears the burden of pleading abuse of the writ. McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470; Zavesky v. Miller, 79 F.3d 554, 555-56 (7th Cir.1995). The Government must explain the petitioner’s prior writ history, identify the claims that appear for the first time in the present motion, and allege that the petitioner has abused the writ. McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470; Zavesky, 79 F.3d at 555-56.

In the present case, the Government has pleaded the abuse of the writ defense. The Government explained that Diaz had filed a previous § 2255 motion in 1989 which was denied. (Doc. 88, p. 2.) It identified that the two claims raised in the present § 2255 Motion are raised for this first time and alleged that Diaz abused the writ. Id., at 4, 7. The Government also argued that Diaz could have raised ineffective assistance of counsel issues on direct appeal or in his previous § 2255 Motion and that Diaz previously specified that ineffective assistance of counsel was not an issue in his case. Id., at 4, 5. ■

However, a petitioner’s second motion will not be dismissed as an abuse of the writ if he disproves abuse by showing both cause and prejudice for his failure to raise an issue previously. McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470; Murray v. Carrier, 477 U.S. 478, 492-96, 106 S.Ct. 2639, 2648-49, 91 L.Ed.2d 397 (1986); Zavesky, 79 F.3d at 555-56. A demonstration of cause requires a showing that “some objective factor external to the defense impeded counsel’s efforts to comply” with the proper procedures. Murray, 477 U.S. at 488, 106 S.Ct’ at 2645.

Since Diaz’ conviction over 10 years ago, he has filed a Post Trial Motion (Doc. 41), an appeal from his conviction (Doc. 47), a Motion for Reduction of Sentence (Doc. 59), a § 2255 Motion (Does. 67, 68), and an appeal from the denial of that § 2255 Motion (Doc. 75). Diaz never raised an ineffective assistance of counsel argument in any of these pleadings. To the contrary, in its Order denying Diaz’ first § 2255 Motion, this Court stated that, “Petitioner has not argued that the cause of his procedural default was ineffective assistance of counsel. In fact the Petitioner expressly refutes that his counsel was ineffective.” (Doc. 73, p. 3.) Diaz argued in his Reply to Respondent’s Responses to his first § 2255 Motion that, “it is also important to note that Plaintiff has not maintain [sic] that he was not afforded effective assistance of courisle [sic] pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” (Doc. 71, p. 3.)

Thus, Diaz was aware that prisoners bring claims for ineffective assistance of counsel and of the seminal case defining this type of claim. Further, Diaz- has known since his trial of the substance of the arguments he now offers in support of his ineffective assistance of counsel claims. Diaz knew that he had testified at his trial, knew that entrapment was an issue discussed during his trial, and knew that his trial counsel (Terry Harn) had moved to continue the trial to secure the testimony of Diaz’ former lawyer (Terry Sullivan).

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Murray v. Carrier
477 U.S. 478 (Supreme Court, 1986)
McCleskey v. Zant
499 U.S. 467 (Supreme Court, 1991)
Herrera v. Collins
506 U.S. 390 (Supreme Court, 1993)
Charles N. Norris v. United States
687 F.2d 899 (Seventh Circuit, 1982)
Dennis Wayne Williams v. United States
805 F.2d 1301 (Seventh Circuit, 1986)
United States v. Manuel Nicholas Diaz
814 F.2d 454 (Seventh Circuit, 1987)
Herbert H. Dellenbach v. Craig A. Hanks
76 F.3d 820 (Seventh Circuit, 1996)
David A. Zavesky v. Charles B. Miller
79 F.3d 554 (Seventh Circuit, 1996)
Van Daalwyk v. United States
21 F.3d 179 (Seventh Circuit, 1994)
United States v. Leventopoulos
834 F. Supp. 989 (N.D. Illinois, 1993)
Foreman v. Internal Revenue Service
484 U.S. 857 (Supreme Court, 1987)
Lostutter v. Washington
516 U.S. 843 (Supreme Court, 1995)

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Bluebook (online)
924 F. Supp. 898, 1996 U.S. Dist. LEXIS 5968, 1996 WL 225620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diaz-v-united-states-ilcd-1996.