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Delgado v. Smith

United States District Court, D. New Mexico

August 14, 2019

ANDREW JOEY DELGADO, Petitioner,
v.
RAYMOND SMITH, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE

         Andrew Delgado, an inmate confined at the Lea County Correctional Facility in Hobbs, New Mexico, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). Following a guilty plea to vehicular homicide in 2013, the Second Judicial District Court for Bernalillo County sentenced Delgado to eighteen years in prison. Delgado's collateral attacks on his sentence failed in the state court, and he now seeks relief here. In his federal petition, Delgado challenges his conviction on due-process and ineffective-assistance-of-counsel grounds. Specifically, Delgado claims that the trial court lacked jurisdiction to impose more than six years confinement and his attorney neglected to object when the sentencing judge observed “[i]t seems like 12 years of time that's going to be mandatory on this. I don't know.” (Doc. 1). Pursuant to an order of reference, see 28 U.S.C. § 636; (Doc. 4), the Court has reviewed the parties' submissions and the record. Having done so, the Court recommends that Delgado's petition be DENIED, and the matter DISMISSED with prejudice.

         BACKGROUND

         On November 11, 2011, Delgado fled a traffic stop and ran a red light at the intersection of San Antonio Avenue and Pan American Freeway in Albuquerque. (Doc. 9-2, at 52-53). His pickup collided with another vehicle, killing the passenger, Danny O'Daniel. (Id.). When police removed Delgado from his truck, a bottle of Jägermeister fell out. (Id.). A later blood draw put his blood-alcohol level at .19. (Id.). Delgado had a history of diving drunk dating back to 2007, including three convictions for driving while intoxicated (“DWI”) in March 2008, May 2009, and September 2010. (Id., at 47-49).

         A grand jury subsequently returned a seven-count indictment against Delgado charging him with vehicular homicide, among other offenses.[1] See N.M. Stat. Ann. § 66-8-101(C); (Doc. 9-1, at 12-16). Ultimately, Delgado pleaded guilty to that charge pursuant to a written agreement. (Doc. 9-1, at 6-12). As part of the deal, Delgado admitted his past DWI convictions and that his “sentence [was] subject to a four (4) year enhancement for each prior DWI[.]” (Id.). In fact, Delgado would receive an enhancement of twelve years “for habitual purposes” but would face an “exposure” of “0 (zero) to eighteen (18) years followed by probation.” (Id.). A “potential incarceration” clause of the agreement confirmed “exposure” meant Delgado faced that range of incarceration. (Id.). In exchange for the plea of guilty to vehicular homicide, the prosecutor dropped the remaining counts. (Id.).

         The trial court accepted Delgado's plea on April 17, 2013. (Doc. 9-2 at 44-89). After hearing from the surviving victim and Mr. O'Daniel's adult son, and over Delgado's requests for a continuance, the court sentenced Delgado to eighteen years in prison subject only to any goodtime he might earn. (Doc. 9-2, at 55-89). Three unsuccessful applications for post-conviction relief followed in the state courts. (Docs. 9-1; 9-2). Delgado filed instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 4, 2017. (Doc. 1).

         STANDARD OF REVIEW

         A federal court may review a state court's judgment of conviction only after an inmate has raised his specific constitutional challenges in the state courts and given them an opportunity to correct errors. See Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th Cir. 2017) (describing exhaustion under Antiterrorism and Effective Death Penalty Act (“AEDPA”) as the requirement that an inmate fairly present each challenge to the state courts and give the courts a first opportunity to correct any constitutional errors). When a state court adjudicates an inmate's constitutional claims on the merits, this Court must afford that determination great deference. See Smith v. Aldridge, 904 F.3d 874, 880 (10th Cir. 2018) (a federal court may grant relief only “if the state court's decision was contrary to, or an unreasonable application of, clearly established federal law” or the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented”).

         In this case, Delgado did not exhaust in the state courts either ground for relief contained in his federal petition.[2] And necessarily, the state court did not decide these claims on the merits. Normally, this Court would be barred from reviewing Delgado's claims. The Warden, however, waived the exhaustion requirement for Delgado's due-process claim as AEDPA allows. See 28 U.S.C. § 2254(b)(1); (Doc. 9). As for Delgado's ineffective-assistance-of-counsel theory, the Warden asks the Court to reach the merits of the claim. The Court will do so because “[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2). In light of this procedural posture, the Court employs a de novo standard of review. See, e.g., Douglas v. Workman, 560 F.3d 1156, 1172 (10th Cir. 2009) (“When we are not bound by AEDPA deference, we review de novo[.]”).

         DISCUSSION

         Delgado asserts two grounds for federal post-conviction relief: (1) his eighteen-year sentence violates his due process rights because the trial court lacked jurisdiction to impose more than a term of six years and, in any event, could not alter Delgado's basic sentence by more than two years; and (2) his attorney was constitutionally ineffective for failing to object when the trial judge stated during the plea and sentencing proceedings that she understood twelve years of the potential eighteen-year range of confinement would be mandatory, when that term of confinement was not mandatory. Both grounds lack merit.

         Due Process

         Vehicular homicide carries a basic sentence of six years as a third-degree felony. See N.M. Stat. Ann. § 31-18-15(7) (2007). Section 68-8-101 of the New Mexico Statutes provides an enhancement of the basic sentence for vehicular homicide “by four years for each prior DWI conviction” incurred “within ten years” of the offense's commission. N.M. Stat. Ann. § 66-8-101(D) (2004). Delgado pleaded guilty to the vehicular-homicide charge and admitted three prior DWI convictions within the past ten years. (Doc. 9-1, at 6-11). As such, Delgado faced a basic sentence of six years for vehicular homicide and an enhancement of his basic sentence by three terms of four years for his prior DWI convictions. The trial court imposed an eighteen-year prison sentence, which consists of the basic sentence and the three, four-year enhancements. (Doc. 9-1, at 32). While not explicit in plea agreement and the judgment and sentence, the trial judge must have run the basic sentence and each of the enhanced sentences consecutively to arrive at a total term of eighteen years' incarceration. (Id. at 6-11; 33).

         Delgado does not attack the sentencing scheme or deny committing the past DWIs. Instead, he claims, and there is no dispute, on the day of the plea proceedings, the prosecutor filed a “supplemental information” apprising Delgado of the potential for an enhanced sentence. Delgado insists that without providing five days' notice under N.M. Stat. Ann. § 31-18-15.1, only the six-year basic sentence for vehicular homicide may stand. Although framed as a ...


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