United States v. Diaz , 598 F. App'x 591 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSFebruary 4, 2015
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 14-2121
v. (D.C. Nos. 1:12-CV-00482-LH-KBM
and 1:07-CR-00701-LH-KBM-1)
JESUS MANUEL DIAZ, (D.N.M.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
Defendant-Appellant Jesus Manuel Diaz seeks to appeal from the district
court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his
sentence. Because Mr. Diaz has not made “a substantial showing of the denial of
a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a
certificate of appealability (“COA”) and dismiss the appeal. See Slack v.
McDaniel, 529 U.S. 473, 483–84 (2000).
Background
On March 19, 2007, Mr. Diaz, the owner-operator of a one-rig trucking
company, arrived at the Gallup, New Mexico, Point of Entry (“POE”), near the
Arizona border. Mr. Diaz had arranged to haul goods in his tractor-trailer from
California to Georgia. Mr. Diaz claims that, in accordance with common practice,
he had not loaded the trailer himself; his role was merely to hook up the load,
carry it to another location, and drop it off. During the ensuing safety inspection
at the Gallup POE, a Motor Transportation Division officer, Officer Smid, made
several observations that led him to believe Mr. Diaz might be involved in
criminal activity. Officer Smid asked Mr. Diaz if he could perform a more
thorough search of the tractor-trailer, and Mr. Diaz provided both verbal consent
and a signed and dated “Consent to Search” form. A search revealed over 3000
pounds of marijuana.
Following a trial, Mr. Diaz was convicted of possession with intent to
distribute 1000 kilograms or more of marijuana, 21 U.S.C. § 841(b)(1)(A), and
sentenced to 121 months’ imprisonment. His conviction was affirmed on direct
appeal. United States v. Diaz, 356 F. App’x 117 (10th Cir. 2009). Mr. Diaz
subsequently filed a § 2255 motion. The case was referred to a magistrate judge,
who recommended denial. The district court adopted the magistrate judge’s
report and recommendation. On appeal, Mr. Diaz argues: (1) he was denied
effective assistance of trial counsel; (2) his conviction violates the Fourth
Amendment; and (3) the district court erred in denying his § 2255 motion without
an evidentiary hearing.
Discussion
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To obtain a COA, Mr. Diaz must demonstrate that “reasonable jurists would
find the district court’s assessment of [his] constitutional claims debatable or
wrong.” Slack, 529 U.S. at 484. Where the district court denied a claim on
procedural grounds, he must show that both the underlying constitutional claim
and the district court’s procedural ruling were reasonably debatable. Id.A. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Mr. Diaz must
demonstrate that counsel’s performance fell below an objective standard of
reasonableness and that Mr. Diaz was therefore prejudiced. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Bullock v. Carver, 297 F.3d 1036, 1044
(10th Cir. 2002). Prejudice occurs when, but for the deficient performance, there
is a reasonable probability that the result of the trial or sentencing would have
been different. Strickland, 466 U.S. at 694. In analyzing ineffective assistance
claims, we give considerable deference to counsel’s strategic choices and
“recognize that counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Id. at 690.
Mr. Diaz argues that his trial counsel provided constitutionally ineffective
assistance in five principal ways. He argues that counsel failed to show that the
POE officers (1) never fully performed a Level II safety inspection, (2) had a
subjective intent to conduct a criminal investigation in the guise of a routine
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administrative inspection, and (3) conducted a pretextual search in violation of his
rights under the Fifth Amendment’s “due process” clause and the Ninth
Amendment’s “retained rights” clause. He further faults counsel for (4) not
sufficiently attacking Officer Smid’s assertion that Mr. Diaz loaded the trailer
himself and (5) not enlisting a trucking expert at trial who could attack Officer
Smid’s “pronouncements” about trucking industry standards.
The magistrate judge and district court fully addressed Mr. Diaz’s
ineffective assistance claims, and their assessment is not reasonably debatable. In
particular, Mr. Diaz’s claims—which essentially contend that counsel failed to
adequately argue that the officers’ administrative safety inspection was a mere
pretext for a criminal investigation—do not account for Mr. Diaz’s knowing and
voluntary consent to the search which uncovered the marijuana. Additionally,
Mr. Diaz’s argument in favor of applying provisions of the New Mexico
Constitution to a federal prosecution through the Fifth and Ninth Amendments
wholly lacks merit. See United States v. Dickerson, 195 F.3d 1183, 1187 (10th
Cir. 1999) (holding that, in a federal prosecution, only federal law governs a
court’s inquiry into the reasonableness of a search); United States v. Hernandez-
Rodriguez, 352 F.3d 1325, n.1 (10th Cir. 2003) (holding that a potential violation
of state law is irrelevant if a search did not violate federal constitutional
standards). Thus, Mr. Diaz has not shown actual prejudice in counsel’s alleged
failure to argue these claims.
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B. Fourth Amendment Violations
Mr. Diaz next argues that his conviction violates the Fourth Amendment
because the court admitted evidence derived from an unreasonable warrantless
search. As Mr. Diaz concedes, clear precedent establishes that we may not
review alleged Fourth Amendment violations in a § 2255 motion when a
defendant has had a full and fair opportunity to litigate his Fourth Amendment
claims at trial and on direct appeal. United States v. Lee Vang Lor, 706 F.3d
1252, 1257 (10th Cir.), cert. denied 134 S. Ct. 679 (2013); see also Stone v.
Powell, 428 U.S. 465, 494–95 (1976). We are bound by this precedent, and Mr.
Diaz has not shown he lacked a full and fair opportunity to litigate his claims.
C. Evidentiary Hearing
Finally, Mr. Diaz argues that the district court erred in not conducting an
evidentiary hearing despite his presentation of substantial evidence to support his
claim of factual innocence. Because the motion, files, and records in this case
conclusively show that Mr. Diaz is entitled to no relief under § 2255, an
evidentiary hearing is not required. 28 U.S.C. 2255(b); United States v. Flood,
713 F.3d 1281, 1291 (10th Cir. 2013).
Accordingly, we DENY a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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