USA v. Diaz-Hernandez

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25-cv-2221 W
25-cr-0966 W
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
SERGIO DIAZ HERNANDEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
Case No.: 25-cv-2221 W
25-cr-0966 W
ORDER DENYING (1) PETITION FOR
WRIT OF HABEAS CORPUS [DOC. 36]
(2) DENYING CERTIFICATE OF
APPEALABILITY AND
(3) TERMINATING MOTON FOR
STATUS [DOC. 40]
Pending before the Court is Petitioner Sergio Diaz Hernandez’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
(the “Petition”). Petitioner is proceeding pro se. Respondent United States of America
opposes.
The Court decides the matter on the papers submitted and without oral argument.
See Civil Local Rule 7.1 (d.1). For the reasons stated below, the Court DENIES the
Petition [Doc. 36], DENIES a Certificate of Appealability, and TERMINATES the
motion for status [Doc. 40].
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I. BACKGROUND
According to the Complaint, on or about March 5, 2025, Petitioner was arrested on
a panga-style vessel while attempting to enter the United States without authorization and
after having been previously excluded, deported and removed from the United States.
(Compl. [Doc. 1] p. 2.) A routine record check of Petitioner revealed a criminal and
immigration history. (Id.) This included immigration records from the Department of
Homeland Security stating that Petitioner was previously deported to Mexico through
Brownsville, Texas. (Id.) The records also showed that Petitioner has not applied for
permission to return to the United States after being removed. (Id.)
On May 14, 2025, Petitioner signed a Plea Agreement in which he pled guilty to a
one-count Superseding Information charging him with an Illegal Reentry violation under
8 U.S.C. § 1326(a). (Plea Agree. [Doc. 25] ¶ A.1) The Plea Agreement included an
appellate and collateral attack waiver. (Id. ¶ XI.)
On June 16, 2025, this Court sentenced Petitioner to 46 months in prison. (See
Judgment [Doc. 31].) On June 27, 2025, Petitioner filed a notice of appeal, which was
then voluntarily dismissed on July 15, 2025. (See Notice of Appeal [Doc. 32]; USCA
Dispositive Order [Doc. 35].)
On August 25, 2025, Petitioner filed the Petition arguing ineffective assistance of
counsel based on two theories. First, Petitioner argues that he was never previously
ordered removed from the United States and his attorney failed to move to dismiss.
(Petition [Doc. 36] p.4.) Second, Petitioner argues his attorney coerced him into
dismissing his appeal. (Id. p.6.)
On September 22, 2025, this Court issued a briefing schedule on the Petition. (See
Scheduling Order [Doc. 37].) On October 20, 2025, the United States filed an opposition.
(See Opp’n [Doc. 38].) Petitioner did not respond to the United States’ opposition but on
1 All docket references are to the criminal case, 25-CR-0966. A copy of the Plea Agreement is also
attached to the Government Response [Doc. 38] as Exhibit 1.
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December 22, 2025, he filed a “motion” notifying the Court that he was transferred to
Lompoc and requesting a status on the Petition. (Motion Re. 2255 [Doc. 40] p.1.)
For the reasons that follow, the Court will deny the Petition.
II. DISCUSSION
To prevail on an ineffective assistance of counsel claim, Petitioner must prove that
his attorney’s performance was grossly deficient, and that Petitioner’s defense was
prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687
(1984). Petitioner bears the burden of establishing both elements. U.S. v. Quintero-
Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995).
Given the “distorting effects of hindsight,” in evaluating an ineffective assistance
of counsel claim, courts must “indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
Petitioner may establish prejudice only by demonstrating a reasonable probability that but
for his attorney’s error, the outcome of his trial would have been different. Id. at 694. A
reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Id.
With regard to Petitioner’s first claim, it clearly lacks merit. It is premised on the
theory that he had not previously been ordered removed from the United States. (Petition
[Doc. 36] p.4.) But in the Plea Agreement, Petitioner admitted that he was removed or
deported from the United States on June 11, 2024, approximately nine months before his
most recent arrest. (Plea Agree. ¶ II.B.1.) Moreover, the United States’ opposition details
Petitioner’s prior ordered removals. Specifically, the opposition explains that Petitioner
was administratively removed after a 2010 conviction for an aggravated felony and was
then removed again in 2016 and 2024 based on the reinstatement of the final
administrative removal order. (Opp’n [Doc. 38] 3:19–4:7, citing Exhibits 6 – 11 [Docs.
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38-6 through 38-11].) In light of these removals, Petitioner’s first ineffective assistance of
counsel claim lacks merit. 2
Regarding the theory that Petitioner’s attorney coerced him into dismissing the
appeal, it is first important to emphasize that Petitioner is not contending his attorney’s
performance was deficient in relation to the Plea Agreement. As a result, the Plea
Agreement and all of its terms, including the appellate and collateral attack waiver, are
valid. Because Petitioner waived his right to appeal, his defense could not have been
prejudiced by his attorney’s alleged “coercion” to withdraw the appeal.
III. CONCLUSION & ORDER
For the foregoing reasons, the Court DENIES the Petition [Doc. 36]. Because
reasonable jurists would not find the above assessment of the claims debatable or wrong,
the Court DENIES a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473,
484 (2000). The Clerk of the Court shall close the district court file and TERMINATE
the motion for a status [Doc. 40].
IT IS SO ORDERED.
Dated: February 5, 2026
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.)
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