UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Delvis D. Villa Diaz

v. Civil No. 07-cv-81-SM

Opinion No. 2007 DNH 049

United States of America

O R D E R

Petitioner challenges his sentence on several grounds under

the provisions of 28 U.S.C. § 2255. Although his reasoning is

unclear, the gist of the petition seems to be that defense

counsel provided him with constitutionally deficient

representation by

“advising petitioner to enter into a plea agreement on

an enhanced drug amount that was never charged in the

indictment, instead of petitioner pleading to the

amount charged by the grand jury in the indictment.”

Petition (document no. 1) at 3. Petitioner also says counsel

should not have advised him to waive a venue issue, or waive his

rights (with exceptions) to directly appeal or collaterally

attack his conviction or sentence.

Pursuant to written plea agreements in two cases (04-cr-211-

SM and 06-cr-55-SM), petitioner pled guilty to five separate

offenses: conspiracy to possess with the intent to distribute,

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and to distribute, the controlled substances cocaine base or

“crack,” and cocaine (Indictment Count VII, 04-cr-211-SM);

possession with intent to distribute crack cocaine (Information

Count I, 06-cr-55-SM); possession with intent to distribute

cocaine (Information Count II, 06-cr-55-SM); possession with

intent to distribute heroin (Information Count III, 06-cr-55-SM);

and possession of a firearm during and in relation to a drug

trafficking crime (Information Count IV, 06-cr-55-SM).

His plea agreements provided for dismissal of Counts II,

III, and VI of the indictment (06-cr-55-SM), and included a

number of stipulations. Specifically, petitioner waived venue

issues with regard to disposition in this district of the charges

in 06-cr-55-SM; agreed that he was accountable for conspiring to

distribute at least 5 but less than 20 grams of crack; agreed not

to seek a downward departure under the Sentencing Guidelines; and

waived his right to directly appeal or subsequently collaterally

attack his conviction or sentence, with some notable exceptions. 

One of the exceptions to petitioner’s waiver of his right to file

a petition under § 2255, covers allegations of ineffective

assistance of counsel, which he does assert in this case.

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Having considered the petition, and having reviewed the

record, including transcripts of the plea colloquy and sentencing

hearing, and the written plea agreement in each case, I conclude

that petitioner is plainly not entitled to relief.

The ineffective assistance of counsel test described in

Strickland v. Washington, 466 U.S. 668 (1984), applies to the

guilty-plea process. Hill v. Lockhart, 474 U.S. 52, 56 (1985). 

For petitioner to prevail on his claim, he must show that

counsel’s representation fell below the range of competence

expected of counsel in criminal cases and that he suffered

prejudice as a result of counsel’s failures. “Prejudice,” in the

context of a guilty plea proceeding generally means “a reasonable

probability that, but for counsel’s errors, [petitioner] would

not have pleaded guilty and would have insisted on going to

trial.” Id. at 59. In addition, sentencing errors attributed to

ineffective assistance take on a constitutional dimension, so may

be considered under 28 U.S.C. § 2255. See Smullen v. United

States, 94 F.3d 20 (1st Cir. 1996); Knight v. United States, 37

F.3d 769, 774 (1st Cir. 1994).

The petition fails both parts of the Strickland test. There

is no hint that had counsel not advised petitioner to “enter into

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a plea agreement on an enhanced drug amount that was never

charged in the indictment,” he would not have pled guilty. And,

in fact, the enhanced drug amount to which petitioner stipulated,

both in his plea agreement and under oath during the plea

colloquy, was charged in the indictment. The indictment

specifically provides, under “Notice of Applicability of

Sentencing Guidelines,” that:

The defendants are subject to U.S.S.G.

§ 2D1.1(c)(7) because each is responsible for one

distribution of at least 5 but less than 20 grams of

cocaine base pursuant to U.S.S.G. § 1B1.3(a)(1)(B).

Petitioner knowingly, intelligently, and voluntarily agreed that

he was accountable for that amount, and he admitted every

essential element of each crime of conviction in full compliance

with Fed. R. Cr. P. 11. So, counsel’s advice was not deficient

in the way petitioner seems to assert, and certainly no prejudice

was suffered by petitioner.

Similarly, counsel’s advice to waive venue issues so both

sets of federal charges against petitioner could be resolved in a

single proceeding in this district poses no issue of ineffective

representation. That advice seems eminently reasonable in that

petitioner thereby obtained plea agreements disposing of all

charges in a manner favorable to him.

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And, counsel’s advising petitioner to waive (with

exceptions) his right to appeal, or collaterally challenge his

conviction or sentence, falls well within the range of competent

legal representation, since that waiver served as an inducement,

in part, for the government to enter into the plea agreements

with petitioner. No possible prejudice resulted to petitioner

from that advice, since he points to no legal issues of merit

that he otherwise would have raised on direct appeal, or

meritorious issues he might otherwise have raised in a § 2255

petition but for the waiver.

Finally, petitioner was sentenced to the minimum period of

incarceration allowed by statute: a 5-year minimum mandatory

sentence on Count VII in 04-cr-211-SM, 5-year sentences on each

of Counts I, II, and III in 06-cr-55-SM (to be served

concurrently with each other and with the 5-year minimum

mandatory sentence on Count VII), and a mandatory minimum 5-year

sentence on Count IV in 06-cr-55-SM, which was required to be

served consecutively to the sentence imposed on Count VII. In

other words, petitioner received the minimum period of

incarceration (10 years) permitted by statute. Thus, he cannot

have been prejudiced by any asserted sentencing irregularity, or

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by any alleged failure of counsel to provide adequate

representation at sentencing.

Conclusion

The petition, files, and records of the case conclusively

show that the petitioner is entitled to no relief. The petition

is dismissed.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

April 12, 2007

cc: Delvis D. Villa Diaz, pro se

Aixa Maldonado-Quinones, Esq.

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