Sergio Diaz Hernandez v. United States of America
- Proceeding
- district
- Area
- civil
- Panel
- Thomas J. Whelan (author)
Analysis
The court considered a pro se Petitioner's 28 U.S.C. § 2255 motion to vacate his sentence for illegal reentry, based on claims of ineffective assistance of counsel. The court denied the petition, denied a certificate of appealability, and terminated a related motion for status.
| What the court decided | The model |
|---|---|
Denial of Petition for Writ of Habeas Corpus (28 U.S.C. § 2255)“For the foregoing reasons, the Court DENIES the Petition [Doc. 36].” | agree with court The court correctly applied the Strickland v. Washington standard for ineffective assistance of counsel. Regarding the first claim (failure to move to dismiss based on lack of prior removal order), the court found the claim meritless because the Petitioner admitted to prior removal in the plea agreement and the government provided evidence of administrative removals. Regarding the second claim (coercion to dismiss appeal), the court correctly noted that the Petitioner did not challenge the validity of the plea agreement itself, meaning the appellate waiver was valid. Consequently, the Petitioner could not show prejudice from the dismissal of the appeal because he had waived the right to appeal. The reasoning is sound and supported by the record cited in the order. |
Denial of Certificate of Appealability“Because reasonable jurists would not find the above assessment of the claims debatable or wrong, Court DENIES a certificate of appealability.” | agree with court The court applied the standard from Slack v. McDaniel, which requires that reasonable jurists could debate the merits of the appeal. Given that the court found the ineffective assistance claims meritless based on the admission in the plea agreement and the validity of the appellate waiver, the conclusion that reasonable jurists would not find the assessment debatable is consistent with the underlying denial of the petition. |
Termination of Motion for Status“The Clerk of the Court shall close the district court file and TERMINATE motion for a status [Doc. 40].” | agree with court The motion for status was rendered moot by the court's decision to deny the underlying petition. Terminating the motion is a proper procedural step. |
The order itself: sound — The order correctly identifies the legal standard for ineffective assistance of counsel and applies it to the specific facts presented. It addresses both of the petitioner's claims: the first is rejected based on the factual admission in the plea agreement and government evidence, and the second is rejected based on the validity of the appellate waiver. The denial of the certificate of appealability follows logically from the denial of the petition. The reasoning is complete and supported by the cited authorities.
Opinion
1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 SERGIO DIAZ HERNANDEZ, Case No.: 25-cv-2221 W 25-cr-0966 W 14 Petitioner, 15 v. ORDER DENYING (1) PETITION FOR WRIT OF HABEAS CORPUS [DOC. 36] 16 UNITED STATES OF AMERICA, (2) DENYING CERTIFICATE OF 17 Respondent. APPEALABILITY AND (3) TERMINATING MOTON FOR 18 STATUS [DOC. 40] 19 20 Pending before the Court is Petitioner Sergio Diaz Hernandez’s Motion Under 28 21 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody 22 (the “Petition”). Petitioner is proceeding pro se. Respondent United States of America 23 opposes. 24 The Court decides the matter on the papers submitted and without oral argument. 25 See Civil Local Rule 7.1 (d.1). For the reasons stated below, the Court DENIES the 26 Petition [Doc. 36], DENIES a Certificate of Appealability, and TERMINATES the 27 motion for status [Doc. 40]. 28 1 I. BACKGROUND 2 According to the Complaint, on or about March 5, 2025, Petitioner was arrested on 3 a panga-style vessel while attempting to enter the United States without authorization and 4 after having been previously excluded, deported and removed from the United States. 5 (Compl. [Doc. 1] p. 2.) A routine record check of Petitioner revealed a criminal and 6 immigration history. (Id.) This included immigration records from the Department of 7 Homeland Security stating that Petitioner was previously deported to Mexico through 8 Brownsville, Texas. (Id.) The records also showed that Petitioner has not applied for 9 permission to return to the United States after being removed. (Id.) 10 On May 14, 2025, Petitioner signed a Plea Agreement in which he pled guilty to a 11 one-count Superseding Information charging him with an Illegal Reentry violation under 12 8 U.S.C. § 1326(a). (Plea Agree. [Doc. 25] ¶ A.1) The Plea Agreement included an 13 appellate and collateral attack waiver. (Id. ¶ XI.) 14 On June 16, 2025, this Court sentenced Petitioner to 46 months in prison. (See 15 Judgment [Doc. 31].) On June 27, 2025, Petitioner filed a notice of appeal, which was 16 then voluntarily dismissed on July 15, 2025. (See Notice of Appeal [Doc. 32]; USCA 17 Dispositive Order [Doc. 35].) 18 On August 25, 2025, Petitioner filed the Petition arguing ineffective assistance of 19 counsel based on two theories. First, Petitioner argues that he was never previously 20 ordered removed from the United States and his attorney failed to move to dismiss. 21 (Petition [Doc. 36] p.4.) Second, Petitioner argues his attorney coerced him into 22 dismissing his appeal. (Id. p.6.) 23 On September 22, 2025, this Court issued a briefing schedule on the Petition. (See 24 Scheduling Order [Doc. 37].) On October 20, 2025, the United States filed an opposition. 25 (See Opp’n [Doc. 38].) Petitioner did not respond to the United States’ opposition but on 26 27 1 All docket references are to the criminal case, 25-CR-0966. A copy of the Plea Agreement is also 28 1 December 22, 2025, he filed a “motion” notifying the Court that he was transferred to 2 Lompoc and requesting a status on the Petition. (Motion Re. 2255 [Doc. 40] p.1.) 3 For the reasons that follow, the Court will deny the Petition. 4 5 II. DISCUSSION 6 To prevail on an ineffective assistance of counsel claim, Petitioner must prove that 7 his attorney’s performance was grossly deficient, and that Petitioner’s defense was 8 prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 9 (1984). Petitioner bears the burden of establishing both elements. U.S. v. Quintero- 10 Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). 11 Given the “distorting effects of hindsight,” in evaluating an ineffective assistance 12 of counsel claim, courts must “indulge a strong presumption that counsel’s conduct falls 13 within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. 14 Petitioner may establish prejudice only by demonstrating a reasonable probability that but 15 for his attorney’s error, the outcome of his trial would have been different. Id. at 694. A 16 reasonable probability is “a probability sufficient to undermine confidence in the 17 outcome.” Id. 18 With regard to Petitioner’s first claim, it clearly lacks merit. It is premised on the 19 theory that he had not previously been ordered removed from the United States. (Petition 20 [Doc. 36] p.4.) But in the Plea Agreement, Petitioner admitted that he was removed or 21 deported from the United States on June 11, 2024, approximately nine months before his 22 most recent arrest. (Plea Agree. ¶ II.B.1.) Moreover, the United States’ opposition details 23 Petitioner’s prior ordered removals. Specifically, the opposition explains that Petitioner 24 was administratively removed after a 2010 conviction for an aggravated felony and was 25 then removed again in 2016 and 2024 based on the reinstatement of the final 26 administrative removal order. (Opp’n [Doc. 38] 3:19–4:7, citing Exhibits 6 – 11 [Docs. 27 28 1 through 38-11].) In light of these removals, Petitioner’s first ineffective assistance of 2 || counsel claim lacks merit. * 3 Regarding the theory that Petitioner’s attorney coerced him into dismissing the 4 || appeal, it is first important to emphasize that Petitioner is not contending his attorney’s 5 || performance was deficient in relation to the Plea Agreement. As a result, the Plea 6 || Agreement and all of its terms, including the appellate and collateral attack waiver, are 7 || valid. Because Petitioner waived his right to appeal, his defense could not have been 8 || prejudiced by his attorney’s alleged “coercion” to withdraw the appeal. 9 10 || TT. CONCLUSION & ORDER 11 For the foregoing reasons, the Court DENIES the Petition [Doc. 36]. Because 12 ||reasonable jurists would not find the above assessment of the claims debatable or wrong, 13 Court DENIES a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 14 (2000). The Clerk of the Court shall close the district court file and TERMINATE 15 motion for a status [Doc. 40]. 16 IT IS SO ORDERED. 17 || Dated: February 5, 2026 \ 19 Hn. 7 omas J. Whelan 20 Unted States District Judge 21 22 23 24 25 26 27 28 2 As the Government notes, the appellate and collateral attack waiver in the Plea Agreement also bars his first claim. (Gov. Opp’n [Doc. 38] 4:15—5:4.)