14-807
Diaz v. United States

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 9th day of December, two thousand fifteen.

Present:    ROBERT A. KATZMANN,
                  Chief Judge,
            RALPH K. WINTER,
            JOHN M. WALKER, JR.,
                  Circuit Judges.
____________________________________________________________

VICTOR DIAZ,

       Petitioner-Appellant,

              -v-                                        No. 14-807

UNITED STATES OF AMERICA,

       Respondent-Appellee.


For Petitioner-Appellant:          Jonathan I. Edelstein, Edelstein & Grossman, New York,
                                   NY.
For Respondent-Appellee:           Nola B. Heller, Michael A. Levy, Assistant United States
                                   Attorneys, of Counsel, for, for Preet Bharara, United States
                                   Attorney for the Southern District of New York, Attorney
                                   for the United States of America, New York, NY.




                                              1
     Appeal from the United States District Court for the Southern District of New York
(McMahon, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the District Court is AFFIRMED.

       Victor Diaz pleaded guilty to four counts of conspiracy to commit kidnapping and

robbery and was sentenced to 262 months’ imprisonment in 2009. This Court affirmed his

conviction and sentence on direct appeal. See United States v. Cedeno, 437 F. App’x 8, 12 (2d

Cir. 2011). Acting pro se, Diaz then filed a Section 2255 motion, arguing that his trial counsel

was ineffective. Diaz’s chief complaint appears to be a language barrier; Diaz’s trial counsel did

not speak Spanish, and Diaz’s understanding of English is apparently limited. The District Court

denied Diaz’s motion without a hearing and declined to issue a certificate of appealability.

       Diaz appealed and moved for a certificate of appealability. This Court granted his motion

on the “limited issue” of whether the district court should have construed Diaz’s § 2255 motion

as raising a claim of ineffective assistance of counsel under Missouri v. Frye, 132 S. Ct. 1399,

1409 (2012), in which the Supreme Court held that an attorney’s failure to communicate a plea

offer to a criminal defendant can constitute ineffective assistance of counsel. Diaz’s motion was

denied and his appeal dismissed in all other respects.

       Diaz now argues that we should construe his pro se claim broadly to encompass a claim

of ineffective assistance under Frye and remand for an evidentiary hearing on the merits. The

government responds that Diaz’s motion did not put forth any argument that can be read as a

Frye claim, but even if it had, “it would have been flatly contradicted by the record.” Red 17.

       We find that Diaz’s Section 2255 motion did not include a claim that his counsel failed to

inform him of the government’s plea offer. It is also clear from the record that Diaz’s trial

counsel did inform him of the government’s offer. Diaz, speaking on his own behalf to the Court,



                                                 2
rejected the deal and explained his reasoning in detail. Accordingly, we find that Frye is

inapplicable, and we affirm the District Court’s judgment.

                                          BACKGROUND

       In 2007, Diaz and several co-defendants were indicted on charges of kidnapping, armed

robbery, and conspiracy in connection with a scheme to kidnap tractor-trailer drivers and steal

their cargo for resale. The government initially offered a group plea deal to all of the defendants,

including Diaz, contingent on the entire group accepting it. After three joint defendant/counsel

meetings, the group rejected the offer.

       The government then offered Diaz an individual plea deal, under which he would plead

guilty to conspiracy to commit robbery only, and the kidnapping charge would be dropped. At

the same time, the government provided Diaz with a Pimental Letter, explaining the sentencing

guidelines if Diaz pled guilty to the entire indictment. See United States v. Pimental, 932 F.2d

1029, 1034 (2d Cir. 1991). Diaz informed his appointed counsel that he wanted to plead guilty,

but refused to accept the government’s terms.

       At a plea colloquy before the magistrate judge, with an interpreter present, Diaz’s trial

counsel explained to the Court that he was “in a bit of a predicament because I don’t want to

prevent my client from pleading guilty if, in fact, that’s what his desire is. However, I’ve

explained to him at length what the procedures are. So I don’t know if there’s—there seems to be

a breakdown in communication between myself and Mr. Diaz. However, I want to give him that

opportunity so that, later on, there’s never any question that he didn’t have an opportunity to

plead guilty.” G.A. 5.

       Diaz requested to speak to the Court directly, even though the magistrate judge warned

Diaz that anything he said could be used as evidence against him. Diaz’s counsel similarly




                                                 3
advised him against speaking. Diaz explained that he wanted to take responsibility for his

involvement in the robberies, but he did not want to plead guilty to a charge that included the use

of force. He indicated to his attorney that because he did not know that force would be used, he

would not plead guilty under the Government’s deal. Id.

       At the end of the proceeding, Diaz’s trial counsel attempted to clarify the situation:

       I was aware of what his—you know, that it was a partial—I don’t want to call it
       partial admission, but I didn’t want to prevent him from coming before the Court,
       because he’s indicated to me that he wanted to plead guilty. I did tell him that I
       didn’t believe it would be a sufficient allocution if, in fact, he pled to what he pled
       to here. It didn’t get us, therefore, based on what he’s charged with, a sufficient
       allocution, and that’s where I wanted to make sure he had his opportunity.

       I advised him against speaking for the very reason that now the government has
       additional information that they can use later on at trial against Mr. Diaz, but I
       was in a situation here he didn’t want to follow my advice. I also was in a
       situation where I wanted to have him have the opportunity to attempt to plead.

G.A. 19. The Court responded that “I think you were absolutely correct in what you did and the

manner in which it’s been conducted.” Id.

       Exactly one month after that proceeding—with less than one week to go before the

scheduled trial date—Diaz changed his mind and agreed to plead guilty to all charges, without

the benefit of a plea deal. At the plea colloquy, Diaz affirmed in response to the Court’s inquiry

that he understood “everything that’s happening here today, that we’re talking about.” J.A. 158–

59. Diaz also affirmed that he understood the charges against him and openly admitted his role in

the crime. During the colloquy, Diaz requested to speak with his counsel twice, and both times

counsel raised Diaz’s issue with the Court. Diaz confirmed that he was satisfied with his

counsel’s representation and that his counsel had explained the sentencing process to him.




                                                 4
       The District Court ultimately sentenced Diaz to 262 months on the kidnapping counts and

240 months on the robbery counts, to be served concurrently. The sentence was on the low end

of the Guidelines range, but more than Diaz’s counsel had advocated for.

       With the assistance of new counsel, Diaz appealed to this Court. We affirmed his

judgment of convictions and sentence by summary order. See Cedeno, 437 F. App’x at 12. Diaz

then filed a petition for a writ of certiorari, which the Supreme Court denied. See Diaz v. United

States, 132 S. Ct. 315 (2011).

       Acting pro se, Diaz next filed a Section 2255 motion, accompanied by a 13-page

memorandum of law. In his Section 2255 motion, Diaz claimed that his trial counsel “failed to

explain all the procedural elements of . . . Rule 11(a) and subsequent provisions[], [and] he also

failed to provide adequate assistance at [the] plea colloquy. . . .” J.A. 7. Diaz also alleged that his

appellate counsel was ineffective, and that the District Court judge was biased against him.

Those claims are not before us in this appeal.

       As relevant to the limited issue before us, Diaz claimed that his trial counsel “knowingly

and recklessly denied effective assistance during defendant’s most difficult decision: ‘Open Plea

of Guilty.’” J.A. 20. The gist of Diaz’s complaint seems to be that because his counsel could not

effectively communicate with him, Diaz did not understand the effect of pleading guilty without

a deal. Diaz further asserts that he had perceived his attorney as having “near biblical authority”

on legal issues, and was therefore disappointed that his counsel was not more effective in

negotiating a plea bargain on his behalf. J.A. 21.

       Diaz did not argue in his motion or memo that his trial counsel did not inform him of the

government’s plea deal. It is only in his reply brief to the government’s opposition memo that

Diaz raised that claim, albeit without any elaboration or citations to the record: “As shown on his




                                                   5
failure to communicate that the Government had a plea offer to Diaz, moreover he did not

discussed with defendant the merits of the government’s case, neither inform the terms of the

plea bargain.” J.A. 325.4.

       The District Court denied Diaz’s motion as without merit, finding that there was no need

for a hearing. The District Court also declined to issue a certificate of appealability because it

found that there was no “substantial showing of the denial of a constitutional right,” and any

appeal “would not be taken in good faith.” S.P.A. 8–9. Diaz appealed and moved for a certificate

of appealability. This Court granted his motion on the limited issue of whether Diaz had raised a

claim of ineffective assistance of counsel under Frye.

                                      STANDARD OF REVIEW

       We review a district court’s denial of a hearing on a Section 2255 motion for abuse of

discretion and the underlying question of whether defense counsel rendered ineffective

assistance de novo. See Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003). A defendant

alleging ineffective assistance must show first “that counsel’s representation fell below an

objective standard of reasonableness”; and second, “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). The Supreme Court clarified in Frye

that failing to inform the defendant of a formal plea offer constitutes ineffective assistance under

Strickland. See Frye, 132 S. Ct. at 1408 (“This Court now holds that, as a general rule, defense

counsel has the duty to communicate formal offers from the prosecution to accept a plea on

terms and conditions that may be favorable to the accused. . . . When defense counsel allowed

the offer to expire without advising the defendant or allowing him to consider it, defense counsel

did not render the effective assistance the Constitution requires.”).




                                                  6
       Because Diaz drafted his motion pro se, he is “entitled to a liberal construction of [his]

pleadings, which should be read ‘to raise the strongest arguments that they suggest.’” Green v.

United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d

Cir. 1996)). “The justification for this policy is apparent. If the writ of habeas corpus is to

continue to have meaningful purpose, it must be accessible not only to those with a strong legal

background or the financial means to retain counsel, but also to the mass of uneducated,

unrepresented prisoners.” Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983).

       But reviewing a pro se petition with a “lenient eye” does not mean that the defendant’s

case is always entitled to proceed: “Where . . . a petition fails even vaguely to suggest an

essential element of a claim for relief, the district court is not required to overlook the

deficiency.” Fleming v. United States, 146 F.3d 88, 90 (2d Cir. 1998) (per curiam). Similarly, we

have observed that the district court is not required to hold an evidentiary hearing if “the motion

and the files and records of the case conclusively show that a petitioner is entitled to no relief.”

Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013) (quoting 28 U.S.C. § 2255(a)).

“Airy generalities, conclusory assertions and hearsay statements will not suffice because none of

these would be admissible evidence at a hearing.” United States v. Aiello, 814 F.2d 109, 113-14

(2d Cir. 1987). “The critical question is whether the[] allegations, when viewed against the

record of the plea hearing, [a]re so palpably incredible, so patently frivolous or false, as to

warrant summary dismissal.” Blackledge v. Allison, 431 U.S. 63, 76 (1977) (citations and

internal quotation marks omitted).

                                             DISCUSSION

       Diaz contends that his difficulties in communicating with his trial attorney during the

pleading process amounted to a failure by his counsel to inform him of the government’s offer.




                                                   7
Although he did not explicitly raise this claim in his pro se pleading before the District Court,

Diaz contends that we should read that pleading as including the “suggestion” that Frye applies.

1.     On Its Face, Diaz’s Motion Did Not Suggest A Frye Claim

       Although Diaz contends that he did not understand his attorney, he did not argue or

suggest in his motion or supporting memorandum below that his counsel failed to inform him of

the government’s offer. Only in Diaz’s reply to the government’s opposition memorandum does

he mention a claim that could plausibly be interpreted as a Frye claim. This Court has long made

clear, though, that “[a]rguments may not be made for the first time in a reply brief.” Knipe v.

Skinner, 999 F.2d 708, 711 (2d Cir. 1993). This rule applies with the same force to pro se

litigants. See, e.g., Graham v. Henderson, 89 F.3d 75, 82 (2d Cir. 1996).

2.     Even Assuming Diaz’s Motion Suggested a Frye Claim, Though, the Record is Clear
that Diaz was Aware of the Government’s Offer and Rejected It

       Even if Diaz’s motion did not explicitly state a Frye claim, though, Diaz argues on appeal

that we should liberally read it as “suggesting” one. We note that it is plausible a defendant could

bring a successful Frye claim by arguing that trial counsel did not effectively communicate the

government’s plea offer because of a language barrier. That is, if the accused did not understand

that the government had offered a deal, even though counsel relayed the message (in English),

Frye might warrant relief. In such a case, the defendant could argue that he did not actually

receive the effective assistance of counsel required under the Sixth Amendment. Such a holding

would be consistent with the Court’s reasoning in Frye, as well as our precedent requiring that

defendants who need it have access to translation services. Cf. United States ex rel. Negron v.

State of N.Y., 434 F.2d 386, 390–91 (2d Cir. 1970) (“The least we can require is that a court, put

on notice of a defendant’s severe language difficulty, make unmistakably clear to him that he has




                                                 8
a right to have a competent translator assist him, at state expense if need be, throughout his

trial.”).

            But that is not what happened in this case: Diaz had the assistance of an interpreter at all

meetings with his counsel, and during his first plea colloquy, where Diaz personally rejected the

government’s offer and explained his reasoning to the Court. An interpreter was also present at

his second (successful) colloquy, where he affirmed that he was satisfied with counsel’s

representation and understood the proceedings; at a conference to discuss his difficulties in

communicating with his attorney; and at the sentencing proceeding. Although Diaz told the

Court that he was scared and confused, he also affirmed on multiple occasions that he understood

what was happening to him, and his fear stemmed from facing the consequences for his crime. It

is thus clear from the record that Diaz’s counsel informed him of the government’s plea deal,

advised him of the merits of the deal, and continued to provide assistance and guidance to Diaz

after he rejected it in open court. The Court’s holding Frye is thus not applicable.

            Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




                                                      9
