United States District Court, D. New Hampshire
Valdez-Aguilar, pro se Elizabeth C. Woodcock, Esq.
J. BARBADORO UNITED STATES DISTRICT JUDGE.
the court is pro se petitioner Edwin Valdez-Aguilar's
petition for a writ of habeas corpus. Valdez-Aguilar claims
that his Fifth, Sixth and Fourteenth Amendment rights to due
process and effective assistance of counsel were violated
during his July 2007 plea and sentencing for attempted
murder. Respondent Michael Zenk, Warden of New Hampshire
State Prison has moved to dismiss. Because
Valdez-Aguilar's claims depend upon the incorrect legal
theory that attempted murder is a “nonexistent”
crime in New Hampshire, I grant the Warden's motion.
2007, Valdez-Aguilar pled guilty to one count of attempted
murder and one count of second-degree assault. See Doc No.
12-4 at 12-13. The charges arose from his firing a rifle at a
woman, hitting her shoulder and neck. He was sentenced to
25-years-to-life for attempted murder and 3 1/2 to 7 years
for second-degree assault. Doc. No. 12-4 at 12-13.
Valdez-Aguilar waived sentence review. See Doc. No. 14-1.
the one-year statute of limitations had run on his federal
habeas claim, Valdez-Aguilar filed, in February 2010, a pro
se petition for a writ of habeas corpus in Merrimack County
Superior Court. He alleged that he did not understand the
terms of the plea agreement due to his lack of English, and
thus received substantially more prison time than he
expected. Doc. No. 12-1 at 5. After considering testimony
from Valdez-Aguilar, a deposition of his former counsel and a
recording of the original plea colloquy, the court found that
counsel's failure to secure an interpreter was not
ineffective assistance because Valdez-Aguilar had rebuffed
the idea of a translator, never requested one from the court,
and his counsel spoke and wrote fluent Spanish. Doc. No. 12-1
at 7-14. In dismissing Valdez-Aguilar's petition, the
court further found that his counsel had adequately explained
the proceedings to him. Doc. No. 12-1 at 15. In May 2011, the
New Hampshire Supreme Court declined his appeal from this
decision. See Doc. No. 12-2.
years later, in June 2016, Valdez-Aguilar moved to vacate his
sentence in superior court. See Doc. No. 12-4 at 3. He argued
that his “conviction for attempted murder [was] a
nonexistent offense.” Doc. No. 12-4 at 3. The court
denied that motion in October 2016, see Doc. No. 14-4 at 8-9,
and the New Hampshire Supreme Court declined his appeal on
January 17, 2017. See Doc. No. 14-5.
filed his petition in this case on February 16, 2017. See
Doc. No. 1. His petition states three grounds for relief:
first, that his conviction for attempted first degree murder
is a non-existent offense, second, that his plea was not made
knowingly, intelligently and voluntarily because he depended
upon erroneous advice of legal counsel in pleading to a
non-existent offense, and third, that “counsel was
ineffective for pleading plaintiff to a non-existent
offense.” See Doc. No. 1 at 5-8.
STANDARD OF REVIEW
ruling on a motion to dismiss a habeas corpus petition, I
apply a similar standard to the more familiar Fed.R.Civ.P.
12(b)(6) test. See Walker v. Kelly, 589 F.3d 127, 138-39 (4th
Cir. 2009). I decide whether the petition contains sufficient
factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
this determination in two steps. See Ocasio-Hernández
v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
First, I screen the complaint for statements that
“merely offer legal conclusions couched as fact or
threadbare recitals of the elements of a cause of
action.” Id. (citations, internal quotation
marks and alterations omitted). A claim consisting of little
more than “allegations that merely parrot the elements
of the cause of action” may be dismissed.
Medina-Velazquez v. Hernandez-Gregorat, 767 F.3d 103, 109
(1st Cir. 2014) (quoting Ocasio-Hernández, 640 F.3d at
12. Next, I credit as true all non-conclusory factual
allegations and the reasonable inferences drawn from those
allegations, and then to determine if the claim is plausible.
See Debnam v. FedEx Home Delivery, 766 F.3d 93, 97 (1st Cir.
2014). The plausibility requirement “simply calls for
enough fact to raise a reasonable expectation that discovery
will reveal evidence” of illegal conduct. Twombly, 550
U.S. at 556.
three of Valdez-Aguilar's substantive arguments are based
on the premise that New Hampshire does not recognize the
crime of attempted murder. As I explain below, because this
premise is incorrect, his claims necessarily fail, and his
petition must be dismissed.
Hampshire Supreme Court has squarely held that
“attempted murder is a generic crime comprising an act
committed with the purpose to cause the death of another,
when that act is a substantial step toward the causation of
death.” State v. Allen, 128 N.H. 390, 396 (1986)
(Souter, J.) (citing N.H. Rev. Stat. Ann. § 629:1). The
superior court relied on the Allen decision when it denied
Valdez-Aguilar's motion to vacate. See Doc. No. 14-4 at
9. When Valdez-Aguilar appealed the superior court decision,
the New Hampshire Supreme Court declined to hear his appeal,
which asked whether the court should “reconsider its
holding in State v. Allen, that Attempted Murder is a
‘generic crime' that includes all classifications
of murder.” See Doc. No. 14-4 at 6. ...