U.S. v. De Armas Diaz, 2:13-cr-00148-JAD-GWF. (2019)
Court: District Court, D. Nevada
Number: infdco20190410e80
Visitors: 17
Filed: Apr. 08, 2019
Latest Update: Apr. 08, 2019
Summary: Order Denying 28 U.S.C. 2255 Petition and Certificate of Appealability and Denying all other Motions as Moot [ECF Nos. 386-88] JENNIFER A. DORSEY , District Judge . After a ten-day jury trial, Julio de Armas Diaz was found guilty of numerous federal crimes, 1 and I sentenced him to 103 months of incarceration. 2 He now moves to vacate his sentence under 28 U.S.C. 2255, asserting a single claim for ineffective assistance of counsel. 3 To prevail, de Armas Diaz must demonstrate that h
Summary: Order Denying 28 U.S.C. 2255 Petition and Certificate of Appealability and Denying all other Motions as Moot [ECF Nos. 386-88] JENNIFER A. DORSEY , District Judge . After a ten-day jury trial, Julio de Armas Diaz was found guilty of numerous federal crimes, 1 and I sentenced him to 103 months of incarceration. 2 He now moves to vacate his sentence under 28 U.S.C. 2255, asserting a single claim for ineffective assistance of counsel. 3 To prevail, de Armas Diaz must demonstrate that hi..
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Order Denying 28 U.S.C. § 2255 Petition and Certificate of Appealability and Denying all other Motions as Moot
[ECF Nos. 386-88]
JENNIFER A. DORSEY, District Judge.
After a ten-day jury trial, Julio de Armas Diaz was found guilty of numerous federal crimes,1 and I sentenced him to 103 months of incarceration.2 He now moves to vacate his sentence under 28 U.S.C. § 2255, asserting a single claim for ineffective assistance of counsel.3 To prevail, de Armas Diaz must demonstrate that his attorneys performed deficiently and that he was therefore prejudiced.4 De Armas Diaz "bears the burden of showing `that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'"5 But he merely alleges that his "counsel did not properly inform [him] of [the] outcomes of [trial] and did not properly prepare [themselves] for [his] case[.]"6 This conclusionary statement fails to satisfy the claim's performance prong or to even address the prejudice prong.7 I therefore deny de Armas Diaz's petition and deny as moot his motions for appointment of counsel and to proceed in forma pauperis.
To appeal this order, de Armas Diaz needs a certificate of appealability from a circuit or district judge.8 In deciding whether to grant one, I consider if "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further."9 Although this standard is "lenient,"10 I find that de Armas Diaz's failure to allege any facts to support his ineffective-assistance-of-counsel claim clearly precludes relief, and I therefore deny him the certificate. Accordingly,
IT IS HEREBY ordered that de Armas Diaz's § 2255 petition [ECF No. 386] and a certificate of appealability are DENIED. The Clerk of Court is directed to enter a separate civil judgment denying de Armas Diaz's § 2255 petition and denying a certificate of appealability. The Clerk must also file this order and the civil judgment in this case and in the related civil case: 2:19-cv-00078-JAD.
IT IS FURTHER ORDERED that de Armas Diaz's motions for appointment of counsel and to proceed in forma pauperis [ECF Nos. 387-88] are DENIED as MOOT.
FootNotes
1. ECF Nos. 239, 254.
2. ECF Nos. 372 (amended judgment), 382 (Ninth Circuit decision affirming amended sentence).
3. ECF No. 386.
4. Strickland v. Washington, 466 U.S. 668, 687 (1984).
5. Hurles v. Ryan, 752 F.3d 768, 779 (9th Cir. 2014) (quoting Strickland, 466 U.S. at 687).
6. ECF No. 386 at 3.
7. See Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982) ("Mere conclusory statements by the petitioner do not justify a [§ 2255 evidentiary] hearing. On the other hand, the petitioner need not detail his evidence, but must only make specific factual allegations which, if true, would entitle him to relief." (citations omitted)).
8. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1).
9. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (quotation marks omitted).
10. Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc).
Source: Leagle
