Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 FRANCISCO BAEZ-DIAZ, Case No.: 3:24-cv-2217-JES 3:23-cr-1426-JES 13 Petitioner, 14 v. ORDER:

15 UNITED STATES OF AMERICA, (1) DENYING PETITIONER’S 16 Respondent. MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 17 28 U.S.C. § 2255; and 18 (2) DENYING MOTION TO 19 COMPEL COUNSEL TO PROVIDE 20 AFFIDAVIT RESPONSE AS MOOT 21 [ECF Nos. 1, 146, 148] 22 23 // 24 // 25 // 26 // 27 // 28 1 Before the Court is Francisco Baez-Diaz’ (“Petitioner”) motion to vacate, set aside, 2 or correct his sentence pursuant to 28 U.S.C. § 2255 (“Motion”), alleging ineffective 3 assistance of counsel by his attorney, Mara Gonzalez Souto (“Gonzalez Souto”). ECF No. 4 1461. The United States filed an opposition to the Motion and Petitioner filed a reply. ECF 5 Nos. 157, 158. The Court held an evidentiary hearing on October 28, 2025. ECF No. 163. 6 During the evidentiary hearing, the Court heard testimony from Petitioner and Gonzalez 7 Souto. ECF Nos. 164, 166. Having reviewed the parties’ briefs, hearing and observing the 8 testimony of Petitioner and Gonzalez Souto, and for the reasons set forth below, the Court 9 DENIES Petitioner’s Motion and DENIES the Motion to Compel Counsel to Provide 10 Affidavit Response as MOOT. 11 I. BACKGROUND 12 A. Procedural Background 13 On June 18, 2023, Petitioner was arrested in Imperial Beach near the Imperial Beach 14 Pier. Custom and Border Protection (“CBP”) Officers saw Petitioner jumping off the back 15 of a jet ski and swimming to shore. CBP Officers searched and found Petitioner hiding in 16 the backseat of a vehicle wearing a wet suit and life preserver. When questioned, Petitioner 17 admitted he was a citizen of Mexico and illegally entered the United States without 18 documentation and that he had previously been deported. Petitioner was arrested for 19 attempted reentry of a removed alien. Petitioner had been ordered removed from the United 20 States on four prior occasions, the most recent of which was on November 9, 2022. Post- 21 Miranda, Petitioner stated he illegally entered the United States because he was escaping 22 men who threatened to kill him if he didn’t sell drugs for them. 23 On July 18, 2023, Petitioner was arraigned on a one-count information for attempted 24 reentry of a removed alien and a trial date was eventually set for February 26, 2024, before 25 26 27 1 In Petitioner’s civil case, 3:24-cv-2217-JES, Petitioner’s § 2255 motion is ECF No. 1. In the underlying criminal case, 3:23-cr-1426-JES, the same motion is filed as ECF No. 146. The Court hereinafter cites 28 1 this Court. ECF Nos. 19, 55. At trial, Petitioner presented an acquired citizenship defense. 2 The jury ultimately found Petitioner guilty of the charge of attempted reentry by a removed 3 alien. ECF Nos. 105, 106. The Court notes that even though unsuccessful, the acquired 4 citizenship defense presented by Gonzalez Souto was not a frivolous defense. She 5 presented evidence in the form of Petitioner’s grandfather’s birth certificate and historical 6 railroad employment records. 7 On November 15, 2024, this Court held a sentencing hearing. ECF No. 144. 8 Considering the parties’ arguments, statutory factors, the applicable sentencing guidelines, 9 and the specific history and characteristics of Petitioner, the Court sentenced Petitioner to 10 48 months of imprisonment and supervised release for three years. ECF No. 145. 11 On November 22, 2024, Petitioner filed the instant section 2255 motion to vacate 12 his sentence. ECF No. 146. 13 B. Findings of Fact 14 During the evidentiary hearing, Petitioner and Gonzalez Souto testified. After 15 weighing and evaluating the credibility of the witnesses, the Court makes the following 16 findings of fact. See 28 U.S.C. § 2255(b). 17 Prior to proceeding to trial, Gonzalez Souto was presented a fast-track offer from the 18 Government for Petitioner. Reporter’s Transcript (“RT”), ECF No. 166, 38:18-24, 41:20- 19 22. Gonzalez Souto advised Petitioner that the Government’s fast track offer was 30-37 20 months. Id. at 45:9-12. Gonzalez Souto advised Petitioner that with the Government’s fast 21 track offer Petitioner would receive a sentence of 18-24 months. Id. at 24:14-16, 45:15-17. 22 Gonzalez Souto further advised Petitioner that with the fast-track offer, the Government 23 would likely recommend the low-end of the guideline range, which based on her 24 calculation would have been 18 months. Id. at 44:13-25. Gonzalez Souto further advised 25 Petitioner that if he rejected the fast-track offer and went to trial, his guideline range would 26 be 33-41 months without acceptance of responsibility and 27-33 months with acceptance 27 of responsibility. Id. at 45:18-22. In advising Petitioner of the fast-track offer, Gonzalez 28 1 Souto undercalculated Petitioner’s guideline range for sentencing purposes. Id. at 40:4- 2 41:2. 3 Petitioner testified that he told Gonzalez Souto that he was willing to do time if it 4 was less than 30 months. Id. at 20:16-18. Petitioner also testified that Gonzalez Souto 5 presented him with two fast-track offers, one for 24-30 months and another for 18-24 6 months. Id. at 17:16-20, 25:8-16, 31:23-32:2, 32:22-25. Petitioner further testified that he 7 rejected the 18-24 month fast-track offer because Gonzalez Souto promised him he would 8 get less time than the fast-track offer after trial and that he could get could 12 months 1 9 day. Id. at 19:2-7, 32:22-33:4. Additionally, Petitioner testified that Gonzalez Souto never 10 told him he could get up to 41 months after trial as he would not have gone to trial if she 11 told him that. Id. at 25:23-26:4. However, when questioned about his signed declaration 12 submitted in support of his motion, in which Petitioner stated “[w]hen Mara Gonzalez 13 Souto advised me about the government’s fast track offer, she advised me that my post- 14 trial sentencing range was 27-33 months or, at worst, 33-41 months,” Petitioner admitted 15 that he signed the declaration, but that the 33 to 41 months was not read to him in Spanish 16 before he signed it. Id. at 26:5-27:23. 17 Gonzalez Souto did not promise Petitioner that he would get less time than the fast- 18 track offer if he rejected it and went to trial. Id. at 46:17-20. Gonzalez Souto never promised 19 or assured Petitioner that he would get less than 30 months if he went to trial and was 20 convicted. Id. at 47:21-23. Gonzalez Souto told Petitioner there was a risk of receiving a 21 higher sentence if he rejected the fast-track plea offer. Id. at 47:24-48:2. Petitioner, alone, 22 made the decision to reject the fast-track offer. Id. at 50:6-9. 23 Having observed the witnesses and hearing their testimony, the Court does not find 24 Petitioner credible on several of his claims. The Court does not find Petitioner credible on 25 his claims that Gonzalez Souto advised him he would get less time than the fast-track offer 26 after trial or that he could get 12 months 1 day after trial. Additionally, the Court does not 27 find Petitioner credible on his claim that Gonzalez Souto did not advise him that he could 28 get at most 33-41 months after trial. Conversely, the Court finds Gonzalez Souto credible 1 on her testimony regarding the fast-track offers she advised Petitioner of and the fact that 2 Petitioner alone rejected the fast-track offer. 3 II. LEGAL STANDARD 4 A federal prisoner in custody under a sentence of a court may move to vacate, set 5 aside, or correct the sentence “upon the ground that the sentence was imposed in violation 6 of the Constitution or laws of the United States, or that the court was without jurisdiction 7 to impose such sentence, or that the sentence was in excess of the maximum authorized by 8 law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255. To warrant relief 9 under § 2255, a prisoner must allege a constitutional, jurisdictional, or otherwise 10 “fundamental defect which inherently results in a complete miscarriage of justice [or] an 11 omission inconsistent with the rudimentary demands of fair procedure.” United States v. 12 Timmreck, 441 U.S. 780, 783 (1979) (quoting Bowen v. Johnston, 306 U.S. 19, 27 (1939)). 13 III. DISCUSSION 14 In the instant Motion, Petitioner asserts that his Sixth Amendment right to effective 15 assistance of counsel was violated because his counsel misadvised him of the sentencing 16 guideline range prior to proceeding to trial. It is undisputed that Gonzalez Souto 17 miscalculated the sentencing guideline range that Petitioner was subject to after trial and 18 did not advise Petitioner of the correct guideline range he faced after trial. After trial, 19 Petitioner would be subject to a guideline range of 51-63 months. Petitioner was not 20 properly advised of a potential guideline range of 51-63 months. Contrary to Petitioner’s 21 argument, the miscalculation alone, does not resolve the Motion. The Court must conduct 22 a proper Sixth Amendment analysis under Strickland v. Washington. 23 “Defendants have a Sixth Amendment right to counsel, a right that extends to the 24 plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). “[T]he two-part 25 Strickland v. Washington test applies to challenges to guilty pleas based on ineffective 26 assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985) (referencing Strickland v. 27 Washington, 466 U.S. 668 (1984)). To prevail on a claim of ineffective assistance of 28 counsel, a petitioner must show that (1) counsel’s representation was deficient such that it 1 “fell below an objective standard of reasonableness,” and (2) counsel’s deficient 2 performance prejudiced the petitioner such that “there is a reasonable probability that, but 3 for counsel’s unprofessional errors, the result of the proceeding would have been 4 different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). “In the context of 5 pleas[,] a defendant must show the outcome of the plea process would have been different 6 with competent advice.” Lafler, 566 U.S. at 163. 7 The first prong of the Strickland test requires a showing that “counsel made errors 8 so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by 9 the Sixth Amendment.” Strickland, 466 U.S. at 687. “The reasonableness of counsel’s 10 performance is to be evaluated from counsel’s perspective at the time of the alleged error 11 and in light of all the circumstances, and the standard of review is highly deferential.” 12 Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); see also Strickland, 466 U.S. at 689 13 (noting there is “a strong presumption that counsel’s conduct falls within the wide range 14 of reasonable professional assistance”). 15 The second prong requires a showing “that there is a reasonable probability that, but 16 for counsel’s unprofessional errors, the result of the proceeding would have been 17 different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient 18 to undermine confidence in the outcome.” Id. In the context of a plea offer that was 19 rejected, “a defendant must show that but for the ineffective advice of counsel there is a 20 reasonable probability that the plea offer would have been presented to the court (i.e., that 21 the defendant would have accepted the plea and the prosecution would not have withdrawn 22 it in light of intervening circumstances), that the court would have accepted its terms, and 23 that the conviction or sentence, or both, under the offer’s terms would have been less severe 24 than under the judgment and sentence that in fact were imposed.” Lafler, 566 U.S. at 164. 25 The burden is on Petitioner to establish both Strickland prongs have been met. 26 Unless the Petitioner can make a showing for both prongs, “it cannot be said that the 27 conviction … resulted from a breakdown in the adversary process[.]” Strickland, 466 U.S. 28 at 687. 1 Assuming without deciding that Petitioner has satisfied the first Strickland prong, 2 the Court does not find that Petitioner was prejudiced by Gonzalez Souto’s guideline 3 miscalculation and there is not a reasonable probability that, but for counsel’s 4 unprofessional errors, the result of the proceeding would have been different. See Id. at 5 694. 6 In his initial motion to vacate the sentence, Petitioner stated he was denied effective 7 assistance of counsel because “my lawyer said I would get less time than the offer if I went 8 to trial.” Motion at 6. Further, Petitioner stated “my lawyer said I get than 30 months after 9 trial. I would have pled guilty had she not assured me of a lesser sentence after trial.” Id. 10 In his declaration, Petitioner stated “[w]hen Mara Gonzalez Souto advised me about the 11 government’s fast track offer, she advised me that my post-trial sentencing range was 27- 12 33 months, or at worst 33-41 months." ECF No. 155, Declaration of Francisco Baez-Diaz, 13 ¶ 1. During his testimony, Petitioner stated that had Gonzalez Souto told him he could get 14 up to 41 months after trial, he would not have to gone to trial. RT at 25:23-26:4. Further, 15 Petitioner testified that he told Gonzalez Souto that he would plead guilty as long as the 16 sentence was less than 30 months. RT at 20:16-18. Gonzalez Souto presented Petitioner 17 with a fast-track offer of 18-24 months and told Petitioner that the Government would 18 likely recommend the low range of 18 months. Id. at 44:13-25. Petitioner rejected that offer 19 and said that Gonzalez Souto told him he would get less time after trial, even getting 12 20 months 1 day. Id. at 19:2-7, 32:22-33:4. 21 Once again, the Court does not find Petitioner credible on his claims that Gonzalez 22 Souto promised he would receive a lesser sentence after trial than the fast-track offer. This 23 claim is incredulous and flies in the face of logic and common sense. Further, Gonzalez 24 Souto refutes this claim and the Court finds her credible. Additionally, the Court finds that 25 Gonzalez Souto did indeed inform Petitioner that he could get up to 41 months after trial 26 and presented an 18 month fast-track offer to Petitioner. RT at 44:13-25. Petitioner was 27 presented with an offer less than 30 months and rejected it on his own accord. He rejected 28 the 18 months offer despite Gonzalez Souto advising him of the risk of a higher sentence 1 if he rejected the fast-track offer. Petitioner fails to meet his burden to show prejudice. 2 Despite Gonzalez Souto’s guidelines miscalculation, Petitioner was not prejudiced because 3 he demonstrated that he would not plead guilty despite receiving an offer below 30 months. 4 It is clear that there was no “reasonable probability that the plea offer would have been 5 presented to the court,” as Petitioner rejected an 18 months fast-track offer. 6 Accordingly, the Court DENIES Petitioner’s motion to vacate, set aside, or correct 7 his sentence due to ineffective assistance of counsel. 8 IV. CERTIFICATE OF APPEALABILITY 9 Lastly, “[u]nder the Antiterrorism and Effective Death Penalty Act of 1996, there 10 can be no appeal from a final order in a § 2255 proceeding unless a circuit justice or judge 11 issues a certificate of appealability.” Welch v. United States, 578 U.S. 120, 127 (2016) 12 (citing 28 U.S.C. § 2253(c)(1)). A court may issue a certificate of appealability “only if the 13 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 14 § 2253(c)(2). “That standard is met when ‘reasonable jurists could debate whether (or, for 15 that matter, agree that) the petition should have been resolved in a different manner.’” 16 Welch, 578 U.S. at 127 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 17 Having reviewed the record, the Court finds that no reasonable jurist would dispute 18 that Petitioner was not prejudiced by Gonzalez Souto’s miscalculation of the guideline 19 range in light of the fact that he rejected an 18 months offer, below 30 months, in which he 20 indicated he would be willing to plead guilty. See Strickland, 466 U.S. at 689. The Court 21 therefore DENIES a certificate of appealability. 22 V. CONCLUSION 23 After careful consideration, the Court finds that Petitioner’s Motion, the briefs filed 24 in opposition thereto and support thereof, and the record as a whole conclusively show that 25 Petitioner is not entitled to relief. Accordingly, the Court DENIES Petitioner’s Motion to 26 vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255., and DENIES a 27 certificate of appealability because Petitioner has not “made a substantial showing of the 28 denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). The Clerk of Court is 1 || instructed to enter judgment in both the underlying criminal case and Petitioner’s civil case 2 close Petitioner’s civil case. 3 IT IS SO ORDERED. 4 ||Dated: January 5, 2026 5 □□ Sir, 6 Honorable James E. Sunmons Jr. 4 United States District Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28