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Valdez-Aguilar v. Zenk

United States District Court, D. New Hampshire

March 4, 2019

Edwin Valdez-Aguilar
Michael Zenk, Warden, New Hampshire State Prison

          Edwin Valdez-Aguilar, pro se Elizabeth C. Woodcock, Esq.



         Before 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.

         I. BACKGROUND

         In July 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.

         After 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.

         Five 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.

         Valdez-Aguilar 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.”[1] See Doc. No. 1 at 5-8.


         In 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)).

         I make 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.

         III. ANALYSIS

         All 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.[2]

         The New 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. ...

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