1 2
3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 BRIAN DIAZ, CASE NO. C21-1285JLR 11 Petitioner, ORDER DENYING v. PETITIONER’S MOTION 12 UNDER 28 U.S.C. § 2255 AND PETITIONER’S THIRD MOTION UNITED STATES OF AMERICA, 13 TO APPOINT COUNSEL Respondent. 14
15 I. INTRODUCTION 16 Before the court are pro se Petitioner Brian Diaz’s motion to vacate, set aside, or 17 correct his sentence pursuant to 28 U.S.C. § 2255 (Mot. (Dkt. # 1); Reply (Dkt. # 11); 18 Preface to Reply (Dkt. # 12)) and third motion to appoint counsel (3d Mot. to Appoint 19 (Dkt. # 10)). Respondent the United States of America (“the Government”) opposes Mr. 20 Diaz’s § 2255 motion. (Resp. (Dkt. # 7).) The court has considered the motions, all 21 submissions filed in support of and in opposition to the motions, the relevant portions of 22 // 1 the record, and the applicable law. Being fully advised, the court DENIES Mr. Diaz’s 2 § 2255 motion and DENIES Mr. Diaz’s third motion to appoint counsel.
3 II. BACKGROUND 4 In January 2019, federal agents arrested Mr. Diaz after an investigation revealed 5 that he used filesharing software to trade child sexual abuse imagery over the internet. 6 (See Plea Agreement (CR Dkt. # 32); Indictment (CR Dkt. # 14).1) On November 20, 7 2019, Mr. Diaz pled guilty to one count of possession of child pornography in violation 8 of 18 U.S.C. § 2252(a)(4)(B), (b)(2). (See Plea Agreement at 1.) Although he was
9 initially released on bond following his arrest, the court revoked his bond just before his 10 sentencing hearing after a series of bond violations that culminated in his arrest while in 11 possession of a loaded firearm and an unauthorized digital device. (See generally CR 12 Dkt.; 8/21/20 Min. Entry (CR Dkt. # 80) (ordering Mr. Diaz detained); 9/14/20 Min. 13 Entry (CR Dkt. # 87) (revoking bond).)
14 The U.S. Probation Office found Mr. Diaz’s total offense level to be 28 based on 15 several factors, including: a base offense level of 18; a two-level upward deviation for 16 material involving minors; a four-level upward deviation for material that portrays 17 sadistic or masochistic conduct or other violence; a two-level upward deviation for an 18 offense that involved the use of a computer to commit the offense; a five-level upward
19 deviation for an offense that involved more than 600 images; and a three-level downward 20 deviation for acceptance of responsibility. (See Am. Presentence Investigation Report 21
1 The court uses “Dkt.” to refer to docket entries in this case and “CR Dkt.” to refer to 22 docket entries in Mr. Diaz’s criminal case, United States v. Diaz, CR19-0038JLR. 1 (“Am. PSR”) (CR Dkt. # 85) (sealed) at 6-7 (noting that his criminal history category was 2 I).) Thus, it calculated the applicable sentencing guidelines range to be 78-97 months.
3 (See id. at 12.) Pursuant to the terms of the plea agreement, however, the Government 4 agreed to a three-level downward variance for Mr. Diaz’s participation in a psychosexual 5 evaluation, which established an advisory guideline range of 57-71 months. (See id.) 6 On September 15, 2020, the court sentenced Mr. Diaz to thirty-six months of 7 imprisonment followed by ten years of supervised release. (See 9/15/20 Min. Entry (CR 8 Dkt. # 89); Judgment (CR Dkt. # 90); Am. Judgment (CR Dkt. # 92); see also Ex. 1 to
9 Resp. (“Sentencing Tr.”) (Dkt. # 7-1) at 25:19-23 (noting that the court considered the 10 guideline range to be 57-71 months).) He did not appeal his conviction and remains in 11 federal custody as of the date of this order, with a projected release date of April 26, 12 2023. (See generally CR Dkt.; Mot.; Resp. at 5.) 13 Mr. Diaz filed the instant 28 U.S.C. § 2255 motion on September 20, 2021. (See
14 generally Mot.2) He asserts eight grounds for reducing his sentence,3 including: 15 1. “Counsel failed to challenge the number of images. The number cited during sentencing, and used as a factor in sentencing, was 12,000 + but the 16 actual number was round about 2,300.” (Mot. at 4.)
17 2.“My brother, Daniel Diaz and [my mental health therapist, Aaron] Knell told me they did not make various comments in the PSR. I was told by 18 counsel it was too late to make additional corrections. It had only been two days.” (Id. at 5.) 19 20 2 The court cites to the page numbers appearing in the CM/ECF header when referring to Mr. Diaz’s motion. 21
3 Mr. Diaz characterizes his requested relief as a “[r]eduction of sentence and/or 22 probation time.” (Mot. at 16.) 1 3. “No comments from [his mental health counselor] Lonnie Kaman should have been included; she should never have been contacted. I never signed a 2 release of information document with her; and all of our sessions were private – paid for by me – and therefore confidential.” (Id.) 3 4. “[Counsel] told me he would challenge the enhancements listed in the 4 PSR; and challenged only a few errors and a single comment by Kaman during my first round of corrections. When I asked why he failed to 5 challenge the enhancements, he told me the time to do it was at sentencing which is – as I now know – far too late. The judge had already seen the PSR 6 complete with errors and enhancements.” (Id. at 5-6.)
7 5. “Counsel failed to have allegations made by [the person he believes to have been an anonymous source] . . . or one of her lickspittles expunged from 8 my record. . . . I prevailed in all hearings; but the damage to my otherwise excellent record on home detainment was irreparably damaged and 9 contributed greatly to [Magistrate Judge] Tsuchida’s decision to later sign an arrest warrant for simply not appearing to provide a [urinalysis] sample.” (Id. 10 at 6-7.)
11 6. “Counsel failed to challenge allegations with-out [sic] merit made by [my Pretrial Officer] until said allegations had been seen by both Magistrate 12 [Judge] Brian Tsuchida and Judge Robart.” (Id. at 7.)
13 7. “Counsel failed to challenge the statement I made to [Homeland Security Investigations (“HSI”)] agents on the night of my arrest.” (Id. at 8.) 14 8. “Counsel failed to challenge jurisdiction despite my status as a public 15 figure who served on the Gold Bar City Council for 3 years and was still a member at the time of my arrest.” (Id. at 8.) 16 Mr. Diaz categorizes each of the above grounds as instances of ineffective assistance of 17 counsel. (See Mot. at 4.) 18 Since filing his § 2255 motion, Mr. Diaz has filed three motions requesting that 19 the court appoint counsel to represent him in this action. (See Mot. to Appoint (Dkt. # 5); 20 2d Mot. to Appoint (Dkt. # 8); 3d Mot. to Appoint.) The court denied his first two 21 requests, finding that “discovery and an evidentiary hearing are unnecessary” and that 22 1 Mr. Diaz had not demonstrated “that the ‘interests of justice’ warrant appointment of 2 counsel.” (See 12/15/21 Order (Dkt. # 9); see also 11/10/21 Order (Dkt. # 6).) Because
3 Mr. Diaz submitted his third motion to appoint counsel contemporaneously with his reply 4 brief (see generally Dkt.), the court addresses his third motion to appoint counsel in the 5 instant order. 6 III. ANALYSIS 7 The court begins by addressing the legal standard for motions under 28 U.S.C. 8 § 2255. It then discusses whether an evidentiary hearing is necessary before turning to its
9 analysis of Mr. Diaz’s ineffective assistance of counsel claims and the issue of whether 10 Mr. Diaz is entitled to a certificate of appealability. The court concludes by discussing 11 Mr. Diaz’s third motion to appoint counsel. 12 A. Legal Standard for Motions Under 28 U.S.C. § 2255 13 A petitioner seeking relief under 28 U.S.C. § 2255 must prove the existence of an
14 error rendering his conviction unlawful. See Simmons v. Blodgett, 110 F.3d 39, 42 (9th 15 Cir. 1997); see also Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938); Bell v. United 16 States, No. C19-2018JCC, 2020 WL 3542503, at *2 (W.D. Wash. June 30, 2020). A 17 prisoner in custody for a federal law violation may move to vacate, set aside, or correct 18 the sentence under four circumstances: where (1) “the sentence was imposed in violation
19 of the Constitution or laws of the United States”; (2) “the court was without jurisdiction 20 to impose such sentence”; (3) “the sentence was in excess of the maximum authorized by 21 law”; or (4) the sentence is otherwise “subject to collateral attack.” 28 U.S.C. § 2255(a). 22 // 1 Pursuant to § 2255(f), a petition for habeas relief must be brought within one year of the 2 date on which the judgment of conviction became final. See id. § 2255(f)(1).
3 Mr. Diaz seeks to reduce his sentence pursuant to § 2255, asserting that he was 4 denied his Sixth Amendment right to effective assistance of counsel at sentencing based 5 on eight alleged errors by counsel. (See generally Mot.) Because he is currently 6 incarcerated, he meets § 2255’s “custody” requirement. See Matus-Leva v. United States, 7 287 F.3d 758, 761 (9th Cir. 2002). Moreover, the court finds that Mr. Diaz timely filed 8 the instant motion. His judgment of conviction became final on September 29, 2020,
9 which was 14 days after entry of judgment on September 15, 2020, and he filed the 10 instant motion on September 20, 2021.4 See Fed. R. App. P. 4(b)(1); 28 U.S.C. 11 § 2255(f); United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001); (see also 12 Judgment; Mot.). Accordingly, Mr. Diaz’s motion is properly before the court. 13 B. Evidentiary Hearing
14 As a preliminary matter, the court determines that an evidentiary hearing on the 15 merits of this matter is unnecessary. Under § 2255, the court must hold an evidentiary 16 hearing unless “the motion and the files and records of the case conclusively show that 17 the prisoner is entitled to no relief.” 28 U.S.C. § 2255; see Frazer v. United States, 18 18 F.3d 778, 781 (9th Cir. 1994). However, “[n]o hearing is required if the allegations,
19 viewed against the record, either fail to state a claim for relief or are so palpably 20
21 4 Mr. Diaz did not appeal his conviction, nor is his motion based on newly discovered facts or newly-issued Supreme Court case law. (See generally Mot.) Accordingly, § 2255(f)(1) 22 governs the timeliness of his motion. 1 incredible or patently frivolous as to warrant summary dismissal.” Shah v. United States, 2 878 F.2d 1156, 1158 (9th Cir. 1989); United States v. Howard, 381 F.3d 873, 879 (9th
3 Cir. 2004) (holding that no evidentiary hearing is required unless the petitioner raises 4 “detailed and controverted issues of fact”). Here, the court concludes that the detailed 5 record in this matter is a sufficient basis on which to decide Mr. Diaz’s claims and 6 determine that he is entitled to no relief. Accordingly, the court exercises its discretion 7 not to hold an evidentiary hearing. See Shah, 878 F.2d at 1158. 8 C. Ineffective Assistance of Counsel
9 Mr. Diaz’s ineffective assistance of counsel claims5 are controlled by Strickland v. 10 Washington, 466 U.S. 668 (1984). To show ineffective assistance under Strickland, a 11 petitioner must prove that (1) counsel’s performance was deficient; and (2) the deficient 12 performance prejudiced the defense. Id. at 688, 694. To establish that counsel’s 13 performance was deficient, a petitioner must show that counsel’s performance “fell below
14 an objective standard of reasonableness.” Id. at 688. The court considers whether, “in 15 light of all the circumstances, the identified acts or omissions were outside the wide range 16 of professionally competent assistance.” Id. at 690; see also id. at 687 (noting that 17 “counsel [must have] made errors so serious that counsel was not functioning as the 18 ‘counsel’ guaranteed the defendant by the Sixth Amendment”). At this step, judicial
20 5 Because Mr. Diaz’s § 2255 motion consists entirely of ineffective assistance of counsel claims, his failure to raise the issues on direct appeal does not preclude the court from reviewing the merits of his motion. See United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) 21 (stating that claims of ineffective assistance of counsel can be raised for the first time in a § 2255 motion); Massaro v. United States, 538 U.S. 500, 504 (2003) (same); United States v. Ross, 206 22 F.3d 896, 900 (9th Cir. 2000) (same). 1 scrutiny is highly deferential: there is a strong presumption that counsel’s performance 2 fell within the wide range of reasonably effective assistance. Id. at 689. To establish that
3 counsel’s performance prejudiced the defense, a petitioner “must show that there is a 4 reasonable probability that, but for counsel’s unprofessional errors, the result of the 5 proceeding would have been different. A reasonable probability is a probability 6 sufficient to undermine confidence in the outcome.” Id. at 694; see also id. at 693 (“It is 7 not enough for the defendant to show that the errors had some conceivable effect on the 8 outcome of the proceeding.”). Thus, even if counsel made a professionally unreasonable
9 error, it does not warrant setting aside the judgment if the error had no effect on the 10 judgment. Id. at 691. 11 The Strickland two-prong analysis applies to ineffective assistance of counsel 12 challenges concerning sentencing. See Daire v. Lattimore, 812 F.3d 766, 767-68 (9th 13 Cir. 2016) (first citing Glover v. United States, 531 U.S. 198, 203-04 (2001); and then
14 citing Lafler v. Cooper, 566 U.S. 156 (2012)); see also Treddenbarger v. United States, 15 No. C20-1755JCC, 2021 WL 1854934, at *2 (W.D. Wash. May 10, 2021). A court 16 addressing a claim of ineffective assistance of counsel need not address both prongs of 17 the Strickland test if the petitioner’s showing is insufficient as to one prong. Strickland, 18 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of
19 lack of sufficient prejudice, which we expect will often be so, that course should be 20 followed.” Id. Moreover, allegations that are speculative and conclusory are insufficient 21 to prove that counsel provided ineffective assistance. Blackledge v. Allison, 431 U.S. 63, 22 74 (1977); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). 1 The court has thoroughly reviewed each of the eight alleged instances of 2 ineffective assistance of counsel that Mr. Diaz alleges in his motion and concludes that
3 each lacks merit. The court will now address each claim in turn. 4 1. Claim 1 5 Mr. Diaz first claims that defense counsel should have objected to the U.S. 6 Probation Office’s calculation of the number of child pornography images involved in his 7 case. (See Mot. at 4-5.) He alleges that the PSR calculated the number of images he 8 possessed to be over 12,000, but the number was actually closer to 2,300. (See id.; Reply
9 at 10.) Mr. Diaz says that he pointed out this alleged error to counsel, but that counsel 10 failed to correct the number before or during sentencing. (See Mot. at 4-5.) He claims 11 that, had his counsel corrected the number, he “would have been viewed in a more 12 favorable light.” (See Reply at 9.) 13 Mr. Diaz cannot, however, demonstrate that counsel’s alleged failure to object to
14 the calculation caused him to suffer any cognizable prejudice under Strickland. As the 15 Government correctly acknowledges, the calculation of the applicable sentencing 16 guidelines range would have been the same even if the PSR had used his number. (See 17 Resp. at 9; Am. PSR at 6 (citing U.S.S.G. § 2G2.2(b)(7)(D).) Moreover, the court’s 18 analysis in determining the appropriate sentence would have been the same regardless of
19 whether the case involved 12,000 or 2,300 images. (See Sentencing Tr. at 26:7-18.) The 20 nature of the images, which depicted minors and sexually explicit conduct, was a 21 significant factor in the court’s conclusion that the nature and circumstances of Mr. 22 Diaz’s offense were “very significant and very serious.” (See id. (noting that “it makes a 1 difference, at least to me, what the nature of those photographs are”).) It also noted that 2 Mr. Diaz’s case involved thousands of images in considering the seriousness of his
3 offense, a conclusion that would remain the same even if the court had considered his 4 number. (See id.) Additionally, Mr. Diaz admitted in his plea agreement that he 5 possessed “thousands of images and videos.” (See Plea Agreement at 6.) 6 In sum, even if defense counsel had told the court that the number of images was 7 closer to 2,300, the court’s assessment of Mr. Diaz’s offense would have remained the 8 same, as would his sentence. Accordingly, Mr. Diaz fails to prove that there “is a
9 reasonable probability that, but for counsel’s [alleged] unprofessional errors, the result of 10 the [sentencing] proceeding would have been different.” See Strickland, 466 U.S. at 688. 11 Further, the court cannot conclude that defense counsel’s failure to object to the 12 number of images fell outside the “wide range of reasonably effective assistance.” See 13 Strickland, 466 U.S. at 689. “Even if a potentially viable defense [does] exist, ‘[t]he law
14 does not require counsel to raise every available nonfrivolous defense.’” See Walls v. 15 United States, No. CR11-5408RJB, 2017 WL 823300, at *4 (W.D. Wash. Mar. 2, 2017) 16 (quoting Knowles v. Mirzayance, 129 S. Ct. 1411, 1422 (2009)) (“An attorney may 17 reasonably choose not to pursue a particular defense, and ‘is not required to have a 18 tactical reason . . . beyond a reasonable appraisal of a claim’s dismal prospects.’”).
19 Because the number of images would have had no impact on the applicable guidelines, 20 the court concludes that Mr. Diaz’s attorneys were reasonable in spending their time 21 focusing on the evidence of mitigation at sentencing and attempting to portray Mr. Diaz 22 // 1 as someone who accepted responsibility for what he had done and deserved a second 2 chance. (See Sentencing Tr.; Def. Sentencing Memo. (CR Dkt. # 64) (sealed).)
3 2. Claim 2 4 Mr. Diaz next alleges that he prepared additional corrections to the PSR regarding 5 certain statements it included from Aaron Knell and Daniel Diaz, but that his counsel told 6 him it was “too late to make additional corrections.” (See Mot. at 5.) He seems to find 7 fault with counsel’s failure to make those additional corrections to the PSR. (See id.) 8 However, Mr. Diaz fails to allege what those statements were, how they affected his
9 sentence, or that they were even considered at his sentencing. (See id.; see also 10 Sentencing Tr.); James, 24 F.3d at 26 (“Conclusory allegations which are not supported 11 by a statement of specific facts do not warrant habeas relief.”). The sentencing hearing 12 transcript is devoid of any mention or consideration of statements made by Mr. Knell or 13 Mr. Daniel Diaz, and Mr. Diaz fails to show that he suffered any prejudice from defense
14 counsel’s failure to correct such statements. (See generally Sentencing Tr.; Mot.) 15 Moreover, the local criminal rules establish a deadline for the parties to object to the 16 PSR, and Mr. Diaz fails to establish why his counsel’s adherence to those deadlines was 17 “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 18 690; Local Rules W.D. Wash. LCrR App. A; (see also Am. PSR at 18 (noting that
19 defense counsel did submit one set of corrections to the PSR and that the Probation 20 Office incorporated those corrections where appropriate)). 21 Therefore, the court is unable to conclude that defense counsel’s performance “fell 22 below an objective standard of reasonableness” when they declined to make the 1 additional corrections that Mr. Diaz proposed. Strickland, 466 U.S. at 688. Nor can it 2 conclude that defense counsel’s correction of such statements would have changed the
3 outcome of Mr. Diaz’s sentencing. 4 3. Claim 3 5 Mr. Diaz next alleges that he never signed a release permitting the comments from 6 Lonnie Kaman, his mental health counselor, to be considered as part of his sentencing. 7 (See Mot. at 5.) While he does not say what these “comments” are, the court assumes 8 that he is referring to Ms. Kaman’s statements in the PSR because the record is devoid of
9 any other mention of Ms. Kaman. (See id.; Reply at 11; Am. PSR; see also CR Dkt.; 10 Sentencing Tr.) Similar to claim 2, Mr. Diaz seems to argue that defense counsel’s 11 performance was deficient and prejudicial because they failed to object to the inclusion of 12 her statements in the PSR. (See Mot. at 5.) 13 However, the only comments of Ms. Kaman that were included in the PSR were
14 those confirming that Mr. Diaz was a client at one time, that she met with him twice, and 15 that she was no longer working with him. (See Am. PSR at 9-10 (noting that Mr. Diaz 16 told the Probation Office that he was meeting with her during his presentence interview, 17 and they contacted her as a result).) Mr. Diaz makes no effort to show why those 18 statements are prejudicial nor can he demonstrate that they were considered during
19 sentencing. (See generally Mot.; Sentencing Tr. (making no mention of Ms. Kaman).) 20 Accordingly, Mr. Diaz’s claim fails under Strickland because he does not point to any 21 specific prejudice that was caused by counsel’s alleged failure to object. See United 22 States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998), as amended (Sept. 4, 1998) 1 (noting that while detailed evidence is not required, the petitioner must at least “make 2 specific factual allegations which, if true, would entitle him to relief” (citations omitted)).
3 4. Claim 4 4 Mr. Diaz also finds deficient defense counsel’s failure to challenge the sentencing 5 enhancements that applied to his case under U.S.S.G. § 2G2.2. (See Mot. at 5-6; Am. 6 PSR at 6.) Those enhancements included: (1) a two-level upward deviation for material 7 involving minors; (2) a four-level upward deviation for material that portrays sadistic or 8 masochistic conduct or other violence; (3) a two-level upward deviation for an offense
9 that involved the use of a computer to commit the offense; and (4) a five-level upward 10 deviation for an offense that involved more than 600 images. (See Am. PSR at 6.) Mr. 11 Diaz seems to find fault with the fact that counsel did not prevent the court from seeing a 12 version of the PSR that included those enhancements. (See Mot. at 6.) This argument 13 fails because defense counsel could not have prevented the court from seeing that version
14 of the PSR; the Probation Office had a duty to submit the PSR to the court and to include 15 in it the enhancements applicable to his case under the sentencing guidelines. (See Am. 16 PSR at 6-7, 12); U.S.S.G. § 2G2.2; Local Rules W.D. Wash. LCrR 32(d); see also United 17 States v. Cronic, 466 U.S. 648, 656 n.19 (1984) (“[T]he Sixth Amendment does not 18 require that counsel do what is impossible or unethical.”). Thus, while Mr. Diaz wished
19 for the court never to know about the possibility these enhancements might apply, such a 20 wish could never come true. Moreover, defense counsel made every effort to negate 21 those applicable enhancements by urging the court to discount the impact of the various 22 sentencing enhancements and the resulting guideline range in Mr. Diaz’s sentencing 1 memorandum. (See Def. Sentencing Memo. at 2-9; see also Resp. at 10 (alleging that 2 defense counsel also urged the court to discount the impact of the various sentencing
3 enhancements in its objections to the draft PSR).) Even if defense counsel had objected 4 to the application of the enhancements during sentencing, such objections would not have 5 changed the court’s conclusion that those enhancements properly applied to Mr. Diaz’s 6 offense. 7 Accordingly, the court cannot conclude that defense counsel “made errors that a 8 reasonably competent attorney acting as a diligent and conscientious advocate would not
9 have made.” See Butcher v. Marquez, 758 F.2d 373, 375-76 (9th Cir. 1985). 10 5. Claim 5 11 Mr. Diaz claims that defense counsel failed to expunge allegations leveled against 12 him via an anonymous tip from his record. (See Mot. at 6-7.6) He essentially argues that 13 defense counsel’s failure to expunge the allegations “irreparably damaged” his
14 “otherwise excellent record on home detainment” and allegedly contributed to the 15 ultimate revocation of his bond. (See id. Compare id., with Order Revoking Bond (CR 16 Dkt. # 88) (citing 9/10/20 Violation Pet. (CR Dkt. # 84); 2/20/20 Violation Pet. (CR Dkt. 17 # 47); 3/5/20 Violation Pet. (CR Dkt. # 53); 8/19/20 Violation Pet. (CR Dkt. # 75); 18 8/21/20 Violation Pet. (CR Dkt. # 78)) (noting all of the bond violations and factors that
19 ultimately contributed to the revocation of Mr. Diaz’s bond).) However, such allegations 20
6 As the Government notes in its response, although Mr. Diaz identifies a specific 21 individual who he believes is responsible for the tip, “the nature of the tip that gave rise to the series of bond revocation hearings he alludes to in his petition was anonymous.” (See Resp. at 22 10 n.5; Ex. 2 to Gov. Mot. to Revoke Bond (Dkt. # 41-1) (sealed) at 3.) 1 became part of the record and were not something that defense counsel could have 2 prevented the court from seeing. Defense counsel could not “expunge” such allegations
3 from his record because there is no mechanism for doing so.7 Thus, the court declines to 4 find defense counsel’s performance deficient merely because it failed to do the 5 impossible. See Cronic, 466 U.S. at 656 n.19. 6 Mr. Diaz also fails to present any evidence that he was prejudiced by defense 7 counsel’s alleged errors. He cannot establish that the events surrounding the anonymous 8 tip and the hearings that followed had any bearing on his sentencing proceeding. See
9 Strickland, 466 U.S. at 694. While the court discussed its concerns about Mr. Diaz’s 10 performance on pretrial supervision, it did not address the anonymous tip. (See 11 Sentencing Tr. at 27-30.) Instead, the court’s comments centered on the record of 12 noncompliance that followed, including drug use, anger management issues, failure to 13 respect the law, a tendency to blame others, and the unauthorized possession of a firearm.
14 (See id.) Accordingly, even if defense counsel could have expunged the anonymous tip 15 from Mr. Diaz’s record, there is no evidence that doing so would have changed how the 16 court viewed Mr. Diaz or his ultimate sentence. 17 6. Claim 6 18 Mr. Diaz contends that defense counsel failed to challenge the alleged meritless
19 claims of bond violations leveled by his supervising pretrial officer and prevent those 20
21 7 Moreover, it is worth noting that defense counsel were actually successful in preventing Mr. Diaz’s bond from being revoked after the anonymous tipster reported certain threats he 22 allegedly made. (See 12/20/19 Min. Entry (CR Dkt. # 44).) 1 allegations from being presented to the court. (See Mot. at 7; Reply at 13-18 (detailing 2 the alleged meritless claims of bond violations).) As the court noted above, such
3 allegations were not something that defense counsel could have expunged from his record 4 or prevented the court from seeing, and counsel’s performance was not deficient for 5 failing to do the impossible. See Cronic, 466 U.S. at 656 n.19. Mr. Diaz does not 6 provide the court with any evidence that would lead it to conclude that defense counsel’s 7 advocacy was objectively unreasonable. To the contrary, the record supports the 8 Government’s claim that defense counsel performed effectively in addressing Mr. Diaz’s
9 supervising pretrial officer’s claims of bond violations. (See Resp. at 14.) While his 10 bond was ultimately revoked due to Magistrate Judge Tsuchida’s crediting of those 11 claims of bond violations during Mr. Diaz’s September 2020 bond revocation hearing, 12 defense counsel painted Mr. Diaz in as favorable a light as possible at sentencing despite 13 the evidence of his misconduct while on bond. (See Sentencing Tr.; Def. Sentencing
14 Memo.; 9/14/20 Min. Entry (CR Dkt. # 87); Order Revoking Bond (citing 9/10/20 15 Violation Pet.; 2/20/20 Violation Pet.; 3/5/20 Violation Pet.; 8/19/20 Violation Pet.; 16 8/21/20 Violation Pet.).) 17 7. Claim 7 18 Mr. Diaz next argues that defense counsel should have challenged the
19 admissibility of his statement to law enforcement on the night of his arrest, presumably 20 through a motion to suppress. (See Mot. at 8.) However, he offers no explanation how 21 any statements he made to law enforcement had any material effect on the sentencing 22 outcome. Mejia-Mesa, 153 F.3d at 929 (stating that a petitioner must “make specific 1 factual allegations which, if true, would entitle him to relief”). Moreover, Mr. Diaz 2 pleaded guilty and “[a]n unconditional guilty plea constitutes a waiver of the right to
3 appeal all nonjurisdictional antecedent rulings and cures all antecedent constitutional 4 defects.” (See Plea Agreement); United States v. Rodriguez, No. CR17-0229TOR, 2020 5 WL 7038590, at *3 (E.D. Wash. Nov. 30, 2020) (citing Tollett v. Henderson, 411 U.S. 6 258, 267 (1973)); see also United States v. Lopez–Armenta, 400 F.3d 1173, 1175 (9th 7 Cir. 2005); United States v. Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012); Daza-Cortez 8 v. United States, No. C18-1608RAJ, 2021 WL 673486, at *4 (W.D. Wash. Feb. 22,
9 2021). Thus, he waived the issue of the admissibility of his statement to law enforcement 10 by pleading guilty and by the express terms of his plea agreement. See Tollett, 411 U.S. 11 at 267. In light of his plea, defense counsel had no avenue through which to challenge 12 the admission of that statement. See id. Therefore, the court finds that defense counsel 13 were not deficient under Strickland for failing to do so. Cronic, 466 U.S. at 656 n.19;
14 Rodriguez, 2020 WL 7038590, at *3. 15 8. Claim 8 16 Finally, Mr. Diaz alleges that defense counsel failed to challenge “jurisdiction” in 17 his case, despite his status as a “public figure” and the media coverage of his arrest. (See 18 Mot. at 8.) Because Mr. Diaz did not explain what he meant by challenging
19 “jurisdiction,” the Government interpreted his claim as “suggesting [that] defense counsel 20 failed to argue that his status as a local elected official somehow immunized him from 21 federal prosecution or otherwise cast doubt on this [c]ourt’s jurisdiction over his case.” 22 (See Resp. at 12 (citing Mot. at 8).) In his reply, Mr. Diaz clarifies that he meant that his 1 counsel should have challenged jurisdiction because “there would be less prejudice 2 against [him] in another jurisdiction” given that his case had been publicized in an
3 Everett newspaper and on a local news radio station. (See Reply at 19.) This argument, 4 however, is entirely without merit. First, the court does not lack jurisdiction over Mr. 5 Diaz’s case merely because there might be “less prejudice against [him] in another 6 jurisdiction.” (Reply at 19.) Second, under the Federal Rules of Criminal Procedure a 7 defendant may request that the court transfer the proceeding to another district for trial if 8 “so great a prejudice against the defendant exists in the transferring district that the
9 defendant cannot obtain a fair and impartial trial there.” Fed. R. Crim. P. 21. Here, 10 however, Mr. Diaz pled guilty. (See generally Plea Agreement.) Thus, even if he did 11 produce evidence that “so great a prejudice against [him] exists” in this district, there was 12 no reason for his counsel to move to transfer venue for trial because there was not going 13 to be a trial following his guilty plea.8 Defense counsel were entirely reasonable to
14 refuse to raise such an argument, and their refusal cannot be said to have prejudiced Mr. 15 Diaz. “If there is no bona fide defense to the charge, counsel cannot create one and may 16 disserve the interests of his client by attempting a useless charade.” Cronic, 466 U.S. at 17 // 18
19 8 To the extent that Mr. Diaz wished for his counsel to file a motion to transfer this case to another judge or magistrate judge because of the possibility that “there would be less prejudice 20 against him,” his ineffective assistance of counsel claim still fails. Mr. Diaz offers no evidence that would support a finding that Magistrate Judge Tsuchida or the undersigned had prejudice against him and therefore fails to establish that his counsel were deficient for failing to challenge 21 “jurisdiction” or that his counsel’s alleged error had any material effect on the sentencing outcome. (See Mot. at 8; Reply at 19); Mejia-Mesa, 153 F.3d at 929; Strickland, 466 U.S. at 22 689-94. 1 656 n.19. Accordingly, defense counsel’s performance as to this point fell within the 2 wide range of reasonably effective assistance. See Strickland, 466 U.S. at 689-94.
3 In sum, there is nothing to suggest to the court that Mr. Diaz’s counsel were 4 constitutionally deficient for failing to address the issues listed in his § 2255 motion. 5 Even if his counsel were ineffective in some way, nothing in the record suggests that 6 there is a reasonable probability that, but for counsel’s alleged deficiencies, the result of 7 the sentencing proceeding would have been different. Therefore, the court DENIES Mr. 8 Diaz’s § 2255 motion.
9 D. Certificate of Appealability 10 As a final matter, the court notes that a petitioner seeking post-conviction relief 11 may appeal a district court’s dismissal of a 28 U.S.C. § 2255 motion only after obtaining 12 a certificate of appealability. A certificate of appealability may issue only where a 13 petition has made “a substantial showing of the denial of a constitutional right.” 28
14 U.S.C. § 2253(c)(2). A petitioner satisfies this standard “by demonstrating that jurists of 15 reason could disagree with the district court’s resolution of his constitutional claims or 16 that jurists could conclude the issues presented are adequate to deserve encouragement to 17 proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Under this standard, 18 the court concludes that Mr. Diaz is not entitled to a certificate of appealability.
19 E. Mr. Diaz’s Third Motion to Appoint Counsel 20 Mr. Diaz’s third motion to appoint counsel requests that this court appoint counsel 21 to represent him in this action “in the interest of justice” because he does “[n]ot know[]” 22 // 1 if his reply brief was “prepared correctly, or if it could be detrimental rather than 2 advantageous to [his] litigation.” (See 3d Mot. to Appoint at 1.)
3 There is no constitutional right to counsel in a post-conviction 28 U.S.C. § 2255 4 proceeding. See Sanchez v. United States, 50 F.3d 1448, 1456 (9th Cir. 1995). However, 5 the Rules Governing Section § 2255 Cases mandate appointment of counsel when an 6 evidentiary hearing is required, United States v. Duarte-Higareda, 68 F.3d 369 (9th Cir. 7 1995), and when necessary for effective discovery pursuant to Rule 6(a). See Rules 8 Governing Section § 2255 Cases Rule 8(c), Rule 6(a). As discussed above, the court
9 concludes that discovery and an evidentiary hearing are unnecessary because the detailed 10 record in this matter is a sufficient basis on which to decide Mr. Diaz’s claims and 11 determine that he is entitled to no relief. See supra Section III.B. 12 Additionally, a district court may appoint counsel in a case brought under § 2255 13 at any time in the “interest of justice.” 18 U.S.C. § 3006A(a)(2)(B); Weygandt v. Look,
14 718 F.2d 952, 954 (9th Cir. 1983); Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 15 1990). In determining whether to appoint counsel, “the district court must evaluate the 16 likelihood of success on the merits as well as the ability of the petitioner to articulate his 17 claims pro se in light of the complexity of the legal issues involved.” See Weygandt, 718 18 F.2d at 954. Having reviewed the record in this case, the court does not find that justice
19 requires the appointment of counsel. The issues presented in Mr. Diaz’s § 2255 motion 20 do not appear to be particularly complex, and his § 2255 motion and reply demonstrate 21 that he is able to effectively articulate his claims. (See generally Mot. (setting forth 22 ineffective assistance of counsel claims); Reply (discussing the same).) Thus, the court 1 DENIES Mr. Diaz’s third motion to appoint counsel because Mr. Diaz has not 2 demonstrated that the “interest of justice” warrants appointment of counsel in this case.
3 IV. CONCLUSION 4 For the foregoing reasons, the court DENIES Mr. Diaz’s 28 U.S.C. § 2255 motion 5 to vacate, set aside, or correct his sentence (Dkt. # 1) and DENIES Mr. Diaz’s third 6 motion to appoint counsel (Dkt. # 10). The court DISMISSES this matter with prejudice 7 and DECLINES to issue a certificate of appealability. 8 Dated this 3rd day of February, 2022.
9 A 10 11 JAMES L. ROBART United States District Judge 12 13 14 15 16 17 18 19 20 21 22