Vasquez v. NH State Prison Warden

2002 DNH 196

• Court: District Court, D. New Hampshire
• Decided: October 30, 2002
• Docket: CV-02-283-M
• Status: Published

Opinion

Vasquez v. NH State Prison Warden CV-02-283-M 10/30/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Alfredo Vasquez, Petitioner

v. Civil No. 02-283-M Opinion No. 2002 DNH 196 Warden, New Hampshire State Prison, Respondent

O R D E R

Petitioner, Alfredo Vasquez, a state prisoner, throuqh his

counsel, Paul J. Haley, Esq., seeks habeas corpus relief under

the provisions of 28 U.S.C. § 2254. The petition is not drafted

with sufficient clarity to permit a confident determination that

the petitioner has exhausted remedies available in state court,

as required. However, even qivinq petitioner the benefit of the

doubt on that point, and assuminq exhaustion, the petition is

facially without merit.

Takinq the petition at face value, Vasquez suqqests that his

imprisonment is in violation of riqhts secured by the United

States Constitution, in that he was not tried upon an indictment

returned by a qrand jury. Essentially, he arques that the state

trial judqe unlawfully amended the indictments returned aqainst him prior to his guilty pleas, and thus "the court substantially

changed the charge to which the defendant plead, and clearly did

not have the authority and/or jurisdiction to do so." Petition,

at 3. He seems to argue, in effect, that he entered pleas of

guilty to offenses for which the grand jury never actually

indicted him.

A New Hampshire grand jury (Hillsborough County) charged, by

way of indictment, that Vasguez committed the following offenses:

1) conspiracy to sell the controlled substance cocaine, in

violation of N.H. Rev. Stat. Ann. Ch. ("RSA") 629:3 and 318-B:2;

2) sale of the controlled substance cocaine on June 2, 1998, in

violation of RSA 318-B:2; 3) sale of the controlled substance

cocaine on June 9, 1998, in violation of RSA 318-B:2, and

4) apparently another drug-related offense (petitioner does not

append a copy of the indictment related to the fourth charge, as

he does for the first three, but, substantively, the issues

presented are identical with respect to each charge). In

addition to specifying the essential elements of the crimes

charged, each indictment also included an allegation that

petitioner had previously been convicted in the Lawrence

2 (Massachusetts) District Court of a violation of the Controlled

Substance Act of Massachusetts.

At petitioner's plea hearing the prosecutor advised the

court that she had come to learn that Vasquez's earlier drug case

in Lawrence, Massachusetts (in which he had apparently pled

guilty) had been dismissed. See Petition Exhibit D:

M S . YOUNG [Prosecutor] These are subsequent offense indictments upon receipt of his prior record, he did have - he pled guilty to a possession of a drug in Massachusetts. Following the history of the case, the bottom line is it's dismissed, so we need to amend the indictment. Defense indicates they have no problem so we'll strike the prior conviction language from the indictment.

THE COURT: From the three subsequent indictments ?

MS YOUNG: From all four. Your Honor.

Id. Accordingly, with petitioner's consent, the court directed

that references in the indictments to petitioner's having

previously been convicted of a drug offense were deleted.

Petitioner now complains that by deleting those references, the

court unlawfully amended the indictments, and he entered pleas of

3 guilty to offenses different from those charged in the original

indictments.

Petitioner is incorrect. Under New Hampshire law it is

settled that an allegation of a previous drug conviction in an

indictment does not describe an element of the substantive

criminal offense charged under RSA 318-B:2. State v. Gonzalez,

143 N.H. 693 (1999). Rather, language referring to a defendant's

prior drug offense in an indictment charging a violation of RSA

318-B:2 merely serves as formal notice that, "if proven, the

charged crimes would constitute subseguent offenses and thus

subject him to enhanced penalties." Id.; See RSA 318-B:26 1(b)

and 27. So, petitioner is incorrect in suggesting that by

"amending" the indictments at issue, by striking the prior

offense references, the state court "eliminated an element and

thus charged the defendant to [sic] a different offense." The

deletions merely removed notice of a potentially enhanced

sentence - for petitioner's benefit. The elements of the charged

criminal offenses under RSA 318-B:2 remained the same, and

petitioner providently pled guilty to those offenses, admitting

each and every essential element.

4 The petition also does not describe any violation of

Vasquez's federal constitutional rights. While he certainly was

constitutionally entitled to be tried only upon an indictment

returned by the grand jury, nothing deleted from the returned

indictments changed any of the allegations necessary to charge

the essential elements of the drug offenses described in RSA 318-

B:2, or the conspiracy charged under RSA 629:3. See United

States v. Anqiulo, et al., 847 F.2d 956, 963-66 (1st Cir. 1988).

So, he was properly indicted, the indictments were not unlawfully

amended, and his pleas were providently entered.

Perhaps more to the point, petitioner has not asserted, and

cannot show, that he is entitled to § 2254 relief under the

applicable standard. Nothing in the petition suggests that the

state court's adjudication "resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established federal law, as determined by the Supreme Court of

the United States." 28 U.S.C. § 2 2 5 4 (d)(1). See also Williams

v. Tavlor, 529 U.S. 362, 399 (2000). Here, the state court's

decision denying relief was entirely consistent with clearly

established federal law.

5 Accordingly, the petition is dismissed. The Clerk shall

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 30, 2002

cc: Paul J. Haley, Esg. Nancy J. Smith, Esg.