Baez-Diaz v. USA

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