Diaz v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

EDWARD JOSE DIAZ,

Petitioner,

v. Case No: 2:19-cv-419-FtM-29MRM

Case No. 2:05-CR-30-FTM-29MRM

UNITED STATES OF AMERICA,

Respondent.

OPINION AND ORDER

This matter comes before the Court on petitioner's Motion to

Vacate, Set Aside, or Correct Sentence (Cv. Doc. #1) filed on June

21, 2019. The United States’ Response (Cv. Doc. #10) was filed

on August 26, 2019. On October 7, 2019, petitioner filed a Motion

to Supplement § 2255 (Cv. Doc. #15), to which the United States

has not responded.

Also before the Court is the United States’ Motion to Compel

Former Defense Counsel to Disclose Substance of Communications

(Cv. Doc. #6), filed on July 2, 2019. Petitioner filed a Response

(Cv. Doc. #12) in opposition on September 11, 2019.

I.

Petitioner is serving a sentence based upon violations of his

supervised release. Petitioner asserts his attorney rendered

ineffective assistance of counsel at the final revocation hearing

by failing to challenge the legality of the traffic stop and the

admissibility of the resulting evidence. Petitioner also asserts

his attorney failed to consult with him about an appeal and failed

to file a direct appeal on his behalf. In the motion to

supplement, petitioner asserts that he should not have been

sentenced based on Grade A violations in light of certain Supreme

Court decisions which made that determination a matter for a jury,

not the judge.

II.

In a Fourth Superseding Petition (Cr. Doc. #99), petitioner

was charged with four violations of his supervised release, all

occurring on March 23, 2017: (1) New criminal conduct consisting

of battery on a law enforcement officer; (2) new criminal conduct

consisting of fleeing to elude a law enforcement officer; (3) new

criminal conduct consisting of aggravated assault on a law

enforcement officer; and (4) new criminal conduct consisting of

resisting an officer with violence. At the final revocation

hearing, petitioner admitted the first and second violations, and

the Court heard testimony of Deputy Corey Edmond as to the third

and fourth violations. (Cr. Doc. #143.) The Court determined

that Violations One and Two were Grade B violations, while

Violations Three and Four were Grade A violations. (Id.) The

Court adjudicated petitioner guilty of all four violations, and

sentenced him to twenty-four months imprisonment to run

concurrently with each other and consecutively with a state court

conviction. (Cr. Doc. #142.) No direct appeal was filed.

A. Failure to Challenge Legality of Traffic Stop

Petitioner argues that his attorney should have challenged

the legality of the traffic stop and the admissibility of the

resulting conduct, which formed the bases for violations three and

four. Failure to do so, petitioner asserts, constituted

ineffective assistance of counsel.

(1) Ineffective Assistance of Counsel - General Legal

Principles

The legal standard for ineffective assistance of counsel

claims in a habeas proceeding is well established. To prevail on

a claim of ineffective assistance of counsel, a habeas petitioner

must demonstrate both that (1) counsel's performance was deficient

because it fell below an objective standard of reasonableness and

(2) prejudice resulted because there is a reasonable probability

that, but for the deficient performance, the result of the

proceeding would have been different. See Hinton v. Alabama, 571

U.S. 263, 272-73 (2014) (citing Strickland v. Washington, 466 U.S.

668, 687, 694 (1984) and Padilla v. Kentucky, 559 U.S. 356, 366

(2010)). “Because a petitioner's failure to show either deficient

performance or prejudice is fatal to a Strickland claim, a court

need not address both Strickland prongs if the petitioner fails to

satisfy either of them.” Kokal v. Sec'y, Dep't of Corr., 623 F.3d

1331, 1344 (11th Cir. 2010) (citations omitted).

The proper measure of attorney performance is “simply

reasonableness under prevailing professional norms” considering

all the circumstances. Hinton, 571 U.S. at 273 (internal

quotations and citations omitted). “A fair assessment of attorney

performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances

of counsel's challenged conduct, and to evaluate the conduct from

counsel's perspective at the time.” Strickland, 466 U.S. at 689;

see also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (stating

courts must look to the facts at the time of counsel’s conduct).

This judicial scrutiny is highly deferential, and the Court adheres

to a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance. See Strickland,

466 U.S. at 689-90.

To be objectively unreasonable, the performance must be such

that no competent counsel would have taken the action. See Rose

v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); see also Hall v.

Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010). Additionally, an

attorney is not ineffective for failing to raise or preserve a

meritless issue. See United States v. Winfield, 960 F.2d 970, 974

(11th Cir. 1992); see also Ladd v. Jones, 864 F.2d 108, 109-10

(11th Cir. 1989).

(2) Final Revocation Hearing Testimony

At the final revocation hearing, Deputy Corey Edmond

testified that on March 23, 2017, he was a deputy with the Lee

County Sheriff’s Office. (Cr. Doc. #146.) Deputy Edmond

testified that he was a duly appointed law enforcement officer

with the State of Florida and was engaged in the lawful performance

of his official duties by assisting narcotics officers with an

investigation. Deputy Edmond was wearing a full uniform and

driving a marked patrol vehicle.

Sergeant Park, one of the narcotics officers, informed Deputy

Edmond by radio that they were following a vehicle which had

committed the traffic infraction of failure to maintain lane.

Sgt. Park requested Deputy Edmond to pull the vehicle over for the

infraction and to identify the driver. Deputy Edmond did not

personally see the traffic violation being committed, but relied

on information provided by Sgt. Park.

Deputy Edmond activated his emergency lights and caught up to

the vehicle as it was making a U-turn at the dead end of a cul-

de-sac. The vehicle stopped, and Deputy Edmond exited his

vehicle, approached the driver’s side, and made contact with the

driver. As Deputy Edmond was approaching, he saw the driver,

identified as petitioner Edward Diaz, crouch down then sit back

up. Deputy Edmond told the driver why he had been stopped, then

asked for his driver’s license, registration and proof of

insurance. During the conversation Deputy Edmond noticed an

unmarked orange pill bottle in the vehicle, and asked petitioner

what was in the bottle. Petitioner shook the bottle and said

“nothing.” Deputy Edmond opened the door and told petitioner to

step out of the car.

Petitioner paused, shook his head, turned the car back on,

and put the vehicle into drive. Deputy Edmond tried

unsuccessfully to wrestle petitioner out of the vehicle.

Petitioner kept hitting the deputy as Deputy Edmond told him to

get out of the vehicle. The vehicle began moving forward, dragging

Deputy Edmond with it. Deputy Edmond hopped into the vehicle to

avoid being dragged under it, as petitioner continued to punch

him. Deputy Edmond lost his grip, and fell backwards out of the

vehicle. The vehicle’s tire was coming at Deputy Edmond as he lay

on the ground, and would have crushed his head had Deputy Edmond

not rolled away. Petitioner sped away driving the vehicle.

Deputy Edmond notified dispatch, then pursued petitioner in

his marked patrol vehicle. After a high-speed chase petitioner’s

vehicle came to a stop when it rolled over. Petitioner got out

of the vehicle and began to run away. Deputy Edmond tased

petitioner and arrested him. (Cr. Doc. #146.)

(3) Resolution of Ineffective Assistance Claim

Petitioner asserts that his attorney was constitutionally

obligated to challenge the legality of the traffic stop and the

admissibility of the resulting evidence, but failed to do so.

Applying the ineffective assistance of counsel standards

summarized above, the Court finds there was no violation of

petitioner’s right to effective assistance of counsel.

Even if petitioner’s attorney would have filed a motion to

suppress, and even if the evidence was insufficient to justify a

traffic stop under Whren v. United States, 517 U.S. 806, 810

(1996), petitioner has suffered no prejudice. The Fourth

Amendment’s exclusionary rule does not apply to supervised release

revocation proceedings. United States v. Hill, 946 F.3d 1239,

1242 (11th Cir. 2020); United States v. Diallo, 711 F. App’x 507,

512 (11th Cir. 2017). Because petitioner has suffered no

prejudice, he cannot establish ineffective assistance of counsel.

B. Failure to File Direct Appeal

Petitioner asserts that he wanted to appeal, but his attorney

“did not advise the Defendant about the advantages or disadvantages

of filing an appeal. Defense counsel made no reasonable effort

to discover the defendants[’] wishes.” (Cv. Doc. #1, p. 8.)

Somewhat inconsistently, petitioner also asserts that his attorney

“fail[ed] to follow the defendants[’] express instruction with

respect to an appeal” (Id.) and that defendant “expressed a desire

to appeal.” (Cv. Doc. #1, p. 9.)

If petitioner explicitly requested that his attorney file a

notice of appeal, the attorney was obligated to do so. Roe v.

Flores Ortega, 528 U.S. 470, 477-80 (2000). Prejudice is presumed

when counsel’s deficient performance deprives a defendant of an

appeal he otherwise would have taken. Garza v. Idaho, ––– U.S. ––

––, 139 S. Ct. 738, 744 (2019). Additionally, petitioner can

establish ineffective assistance by showing that counsel failed to

adequately consult with him about an appeal and that, had he

received reasonable advice from counsel about the appeal, he would

have instructed his counsel to file an appeal. Flores-Ortega, 528

U.S. at 478, 484, 486. “[A]dequate consultation requires

informing a client about his right to appeal, advising the client

about the advantages and disadvantages of taking an appeal, and

making a reasonable effort to determine whether the client wishes

to pursue an appeal, regardless of the merits of such an appeal.”.

Thompson v. United States, 504 F.3d 1203, 1206 (11th Cir. 2007)

(citation omitted). Petitioner must show that counsel had a

“constitutionally-imposed duty to consult with the defendant,”

Flores-Ortega, 528 U.S. at 480, which occurs when (1) a rational

defendant would want to appeal; or (2) the particular defendant

reasonably demonstrated an interest in appealing. Thompson, 504

F.3d at 1207. The court must take into account all the information

counsel knew or should have known. Flores-Ortega, 528 U.S. at

480. While there is no “bright-line rule” that counsel must always

consult with a defendant regarding an appeal, the Supreme Court

has recognized that counsel will have a duty to consult “in the

vast majority of cases.” Id. at 480 & 481.

Petitioner’s allegations are sufficient to justify an

evidentiary hearing, as the government concedes. See Rules

Governing § 2255 Cases in the United States District Courts, Rule

8(a). The Court will appoint counsel for the hearing. Id., 8(b),

(c). As petitioner was represented by the Federal Public

Defender’s Office for the revocation, the Court will appoint the

next available attorney from the CJA Panel.

C. Government’s Motion to Compel

The government has filed a Motion to Compel Former Defense

Counsel to Disclose Substance of Communications (Cv. Doc. #6) so

that it may adequately respond to the ineffective assistance of

counsel issues. The government asks the Court to order

petitioner’s former counsel to provide an affidavit of

conversations and other information with petitioner concerning the

matters petitioner raised in his § 2255 motion. The only matter

which remains outstanding is the issues involving a direct appeal

after the final revocation hearing.

It is clear that a defendant who files a motion claiming his

attorney provided ineffective assistance of counsel has waived his

attorney-client privilege as to matters relevant to the motion.

A party “waives its attorney-client privilege when it injects into

[ ] litigation an issue that requires testimony from its attorneys

or testimony concerning the reasonableness of its attorneys'

conduct.” GAB Bus. Servs., Inc. v. Syndicate, 627, 809 F.2d 755,

762 (11th Cir. 1987). See also Johnson v. Ala., 256 F.3d 1156,

1178 (11th Cir. 2001); Laughner v. United States, 373 F.2d 326,

327 (5th Cir. 1967) (“The [attorney-client] privilege is not an

inviolable seal upon the attorney's lips. It may be waived by the

client; and where, as here, the client alleges a breach of duty to

him by the attorney, we have not the slightest scruple about

deciding that he thereby waives the privilege as to all

communications relevant to that issue.”)

Here, petitioner has waived his attorney-client privilege as

to all matters relevant to whether his attorney consulted with him

regarding filing an appeal and to petitioner’s decision and

instructions regarding such an appeal. Former counsel may not

assert the attorney-client privilege as to such matters, and will

be compelled to testify at the evidentiary hearing. The Court

also directs former counsel to provide a copy of any and all

documents relating to such issues to government counsel and to

counsel to be appointed for petitioner. The Court declines to

compel former counsel to provide an affidavit. Additionally,

while former counsel may not assert attorney-client privilege in

any interview with the government concerning petitioner’s motion,

former counsel, like all witnesses, need not submit to a pre-

hearing interview. United States v. Dryden, 423 F.2d 1175, 1177

(5th Cir. 1970) (“A witness may refuse to be interviewed or dictate

the circumstances under which he will submit to an interview.

Byrnes v. United States, 327 F.2d 825 (9th Cir. 1964)”).

D. Motion to Supplement

Petitioner seeks to supplement his §2255 motion to add a claim

that he should not have been sentenced based upon Grade A

violations without a jury trial. The Court will allow the issue

to be added to the § 2255 motion, but denies it on the merits.

The Eleventh Circuit recently described how the grade of the

violation impacts the determination of the Sentencing Guidelines

range:

The advisory sentencing range for violation of

supervised release is determined based on the

grade of the violation as set out in a policy

statement to the Sentencing Guidelines.

U.S.S.G. § 7B1.1. A Grade A violation of

supervised release is any conduct constituting

either: “(A) a federal, state, or local

offense punishable by a term of imprisonment

exceeding one year that” (i) is a crime of

violence, (ii) is a controlled substance

offense, or (iii) involves the “possession of

a firearm or destructive device of a type

described in 26 U.S.C. § 5845(a)”; or “(B) any

other federal, state, or local offense

punishable by a term of imprisonment exceeding

twenty years.” U.S.S.G. § 7B1.1(a)(1). A Grade

B violation is “any other federal, state, or

local offense punishable by a term of

imprisonment exceeding one year.” U.S.S.G. §

7B1.1(a)(2). A Grade C violation is “a

federal, state, or local offense punishable by

a term of imprisonment of one year or less, or

... a violation of any other condition of

supervision.” U.S.S.G. § 7B1.1(a)(3). If there

is more than one violation of the conditions

of supervised release, the grade of the

defendant’s violation is determined by the

violation with the highest grade. U.S.S.G. §

7B1.1(b). The commentary to U.S.S.G. § 7B1.1

provides that the grade of the violation “does

not depend upon the conduct that is the

subject of criminal charges or of which the

defendant is convicted in a criminal

proceeding. Rather, the grade of the violation

is to be based on the defendant’s actual

conduct.” U.S.S.G. § 7B1.1, comment. (n.1).1

United States v. Cade, F. App’x , 18-12123, 2019 WL

6170790, at *2 (11th Cir. Nov. 20, 2019). The determination of

the grade of an offense is a matter for the judge. The Eleventh

Circuit has recently addressed both the concept raised by

petitioner based on prior decisions and the recent decision of

United States v. Haymond, 139 S. Ct. 2369 (2019):

In Apprendi, the Supreme Court held that,

“[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a

crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond

a reasonable doubt.” 530 U.S. at 490, 120 S.

Ct. 2348. Similarly, in Alleyne v. United

States, 570 U.S. 99, 133 S. Ct. 2151, 186 L.

Ed. 2d 314 (2013), the Supreme Court held that

any fact that “aggravates the legally

prescribed range of allowable sentences” for

a crime is an “element” that must be submitted

to a jury. Alleyne, 570 U.S. at 115-16, 133 S.

Ct. 2151. But the Supreme Court and this Court

both have held that, although supervised-

release violations often lead to

reimprisonment, the violative conduct need

only be found by a judge under the

preponderance of the evidence standard, and

not by a jury beyond a reasonable doubt.

Johnson v. United States, 529 U.S. 694, 700,

120 S. Ct. 1795, 146 L.Ed.2d 727 (2000);

United States v. Cunningham, 607 F.3d 1264,

1268 (11th Cir. 2010) (“[W]e hold [that] §

3583(e)(3) does not violate the Fifth or Sixth

Amendments because the violation of supervised

release need only be proven by a preponderance

of the evidence, and there is no right to trial

by jury in a supervised release revocation

hearing.”). We are bound by this precedent.

See United States v. Brown, 342 F.3d 1245,

1246 (11th Cir. 2003) (explaining that a prior

panel precedent binds subsequent panels unless

or until it is overruled or undermined to the

point of abrogation by this Court sitting en

banc or by the Supreme Court).

United States v. Horne, 789 F. App’x 139, 142–43 (11th Cir. 2019).

Accordingly, the Court finds there was no violation of the various

Supreme Court cases when the Court determined the grade of the

violations.

Accordingly, it is hereby

ORDERED:

1. Petitioner's Motion to Vacate, Set Aside, or Correct

Sentence (Doc. #1) is DENIED as to the alleged ineffective

assistance of counsel for failing to raise Fourth Amendment

challenges.

2. Petitioner’s Motion is TAKEN UNDER ADVISEMENT as to the

failure to consult or take a direct appeal after the final

revocation.

3. Petitioner’s Motion to Supplement (Cv. Doc. #15) is GRANTED

to the extent that the Court considered the issue, and the

issue is DENIED on the merits. Judgment is withheld

pending the resolution of the remaining issue taken under

advisement.

4.The Clerk of the Court is directed to appoint the next

available attorney on the CJA Panel who qualifies under 18

U.S.C. § 3006A to represent petitioner in this matter, and

to add counsel on the docket.

5. The Motion to Compel Former Defense Counsel to Disclose

Substance of Communications (Cv. Doc. #6) is GRANTED IN

PART AND DENIED IN PART as set forth above.

6. The evidentiary hearing will be scheduled by separate

notice before the undersigned.

7. The United States Attorney’s Office shall take appropriate

steps to obtain petitioner’s presence in the Fort Myers

Division forthwith.

DONE and ORDERED at Fort Myers, Florida, this 3rd day of

March, 2020.

[) p 4 LEC

E. STEELE

Sq IGOR UNITED STATES DISTRICT JUDGE

Copies:

Petitioner

FPD

AUSA