Delgado v. State of New Mexico et al

Filing 22

REPORT AND RECOMMENDATIONS by Magistrate Judge Kevin R. Sweazea re 1 Petition for Writ of Habeas Corpus; 13 Motion for Status Conference; & 19 Motion to Appoint Counsel. Objections to R&R due by August 28, 2019. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ANDREW JOEY DELGADO,
Petitioner,
v.

No. 17-cv-01004-KG-KRS

RAYMOND SMITH,
Respondent.
PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
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
1

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 postconviction 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).

1
The counts are as follows: (1) vehicular homicide either by intoxication or reckless driving, see N.M. Stat. Ann. §
66-8-101(A) & (C); (2) DWI or aggravated DWI, see N.M. Stat. Ann. §§ 66-8-102, 66-8-113; (3) aggravated fleeing
from police, see N.M. Stat. Ann. § 30-22-1.1; (4) driving with a suspended or no driver’s license, see N.M. Stat.
Ann. §§66-5-39; 66-5-2; (5) possession of an open container, see N.M. Stat. Ann. § 66-8-138; (6) speeding, see
N.M. Stat. Ann. § 66-7-301; and (7) failing to use headlights at night, see N.M. Stat. Ann. § 66-3-802.

2

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.

2

For exhaustion, “the crucial inquiry is whether the ‘substance’ of the petitioner's claim has been presented to the
state courts in a manner sufficient to put the courts on notice of the federal constitutional claim.” Prendergast v.
Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) (citation omitted). This rule of “fair presentation” requires more
than supplying facts to the state court or citing law without facts. Grant v. Royal, 886 F.3d 874, 890-91 (10th Cir.
2018). Instead, the state inmate must “provide the state courts with a ‘fair opportunity’ to apply controlling legal
principles to the facts bearing upon his constitutional claim.” Id. at 891 (citation omitted). In any event, the
“petitioner cannot assert entirely different arguments [in his or her request for habeas relief] from those raised before
the state court." Id. (citation omitted). Even where the state claim is “somewhat similar” a state inmate does not
satisfy his fair-presentation burden. Id. Moreover, exhaustion also means the petitioner must seek review by the
state’s highest court, either directly or by collateral attack. Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534
(10th Cir. 1994).
In his first application for post-conviction relief in the state court, Delgado claimed ineffective assistance of
counsel. The sole factual basis was the trial judge thought twelve years was mandatory and it was not. Even if this
claim equates to his present ineffective assistance of counsel challenge—that counsel should have objected when the
trial judge thought twelve years was mandatory incarceration time—Delgado did not seek review of the trial court’s
denial of his collateral challenge by the New Mexico Supreme Court. Thus, it was never exhausted. See id. at 1534
In his second application, Delgado claimed his due-process rights were violated because he did not understand he
would receive a mandatory twelve years. The legal theory in this federal petition differs—the trial court lacked
jurisdiction to sentence him to more than the basic sentence for vehicular homicide. Delgado’s ineffective
3

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.

assistance challenge in the second application was factually premised on his attorney’s advice, not as here, his
failure to object during sentencing. Even though Delgado sought review from the New Mexico Supreme Court on
this issue, it contains a different factual basis and therefore does not satisfy exhaustion requirement. In his third and
final application in the state court, Delgado equated his due process claim with his attorney’s ineffectiveness:
because he got bad advice from his attorney, his plea was unknowing an involuntary. Delgado’s stand-alone
ineffective assistance claim likewise was premised on advice of counsel and failure to object to lack of notice of an
enhancement. These are not the claims before this Court, and Delgado failed to exhaust as AEDPA requires.
4

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. § 66-8101(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
jurisdictional challenge, construed liberally, Delgado’s petition contests the sufficiency of the
notice he received on due-process grounds. 3

3

The Court construes Delgado’s claim in this manner because the specific statutes he cites offer no help. Generally,
violation of state law does not support a federal habeas’ claim and deadlines for providing notice are all matters of
state law. See Richmond v. Embry, 122 F.3d 866, 870 (10th Cir. 1997). Even assuming a violation of a notice period
contained in a statute constitutes a federal due-process violation, Section 31-18-15.1 cited by Delgado governs
alteration of a basic sentence based on aggravating or mitigating factors not otherwise provided for in the vehicular5

Due process requires “reasonable notice of, and opportunity to be heard, concerning the
prior convictions” that will form the basis of an enhancement for recidivism. United States v.
Martinez, 30 F. App’x 900, 907 (10th Cir. 2002) (citing Oyler v. Boles, 368 U.S. 448, 452
(1962)). Even if a statute specifies a deadline, due process does not require pretrial notice so
long as there is an opportunity to be heard before sentencing. See Pittman v. Smith, 2018 U.S.
Dist. LEXIS 189429, *10-11 (D.N.M. Nov. 6, 2018), recommendation adopted, 2018 U.S. Dist.
LEXIS 206713) (rejecting due-process claim where “the state filed supplemental criminal
information seeking habitual offender enhancements after his conviction”).
Here, Delgado had constitutionally adequate notice of a potential sentence increase. On
December 19, 2011, the state, gave “notice to the defendant of the applicability in this cause of
the penalty required by Section 66-8-101(D) . . . that a defendant upon conviction [of this
offense] . . . who has incurred a prior Driving While Intoxicated conviction within ten years of
the occurrence for which he is being sentenced in this case will have his basic sentence increased
by two years [for each prior DWI conviction].” (Doc. 9-1). The notice misstates the precise
increase—two years as opposed to four years per conviction. Delgado also says this filing has
no bearing on his case. He does not, however, deny he received the document and that it
provided notice of an enhanced sentence for recidivism. Further, the plea agreement signed by
Delgado on April 17, 2013 and filed that same day correctly recited that Delgado’s “sentence is

homicide statute. See N.M. Stat. Ann. § 31-18-15.1(A)(1); State v. Roper, 34 P.3d 133, 137 (N.M. App. 2001)
(noting the double jeopardy concerns of using Section 31-18-15.1 together with the same aggravating circumstances
found in the statute of conviction but allowing an enhanced sentence for aggravating factors identified in the offense
of conviction aggravating circumstances and related but different Section 31-18-15.1 considerations). The notice
period, therefore, relates not to prior DWI’s that are explicitly mentioned in Section 66-8-101(D) as a basis for
increasing a sentence, but separate, “aggravating circumstances” “surrounding the offense or concerning the
offender.” Because Section 31-18-15.1 does not apply here, Delgado’s alternative argument that the trial court
could sentence him only to two years above the basic sentence for vehicular homicide lacks merit. Section 31-115.1(G) allows the judge to alter the basic sentence for non-capital felonies based on aggravating factors, but no
more than “one third of the basic sentence.” As above, however, the vehicular-homicide statue permitted the
enhancement the trial court utilized independent of the modification process in Section 31-18-15.1.
6

subject to a four (4) year enhancement for each prior DWI convictions [sic] [.]” (Doc. 9-1).
Thus, Delgado knew about the actual possible enhancement to his sentence that could be
imposed prior to pleading guilty to vehicular homicide.
Before Delgado’s plea, the prosecutor presented the trial court with the supplemental
information that identified Delgado’s three DWI convictions along with the potential sentence
increase. (Doc. 9-2, at 45-46). True, the supplemental information was formally filed after the
plea and sentencing proceedings, but the trial court acknowledged the document on the record
and had the prosecutor swear to its accuracy, all before accepting Delgado’s plea. (Id.).
Moreover, the trial court specifically discussed each of the prior convictions with Delgado from
the supplemental information and asked whether he had committed each. Delgado responded,
“Yes, ma’am” to each offense. (Id., at 47-49).
The plea agreement itself provided further notice to Delgado that his sentence could be
enhanced. The title —“DWI REPEAT OFFENDER PLEA AND DISPOSITION
AGREEMENT”—portends recidivist effect. Delgado expressly admitted in the agreement that
“he is the person convicted of the [crimes] listed in the Supplemental Information . . . and is
subject to a four (4) year enhancement for each prior DWI within ten (10) years.” (Doc. 9-2).
Delgado also agreed the prior convictions “are valid and free from fundamental error” and to
“waive[] any collateral attack on the validity of the above felony and misdemeanor convictions.”
(Id.). Thus, even if Delgado did not receive the supplemental information before pleading guilty
the same convictions and penalties were set forth in the written plea deal. Contrary to Delgado’s
contentions, due process guarantees notice, not a specific form of notice.
During the plea hearing, the trial court observed that Delgado would be subject to twelve
years’ incarceration for his prior convictions. (Doc. 9-2 at 54) (“THE COURT: According to
this agreement, there is a twelve-year habitual time, though, correct? MR. BENNETT: . . . .
7

According to the statute, each of the prior convictions within ten years preceding the event do
allow for an enhancement of four years each”); (Doc. 9-2, at 60) (“THE COURT: . . . I think
what we have in front of us is a sentence anywhere from zero to 18 years, 12 years is the habitual
time just for the prior DWIs.”). In short, Delgado cannot plausibly argue he lacked notice that he
faced an enhanced sentence based on his DWI recidivism.
Although the trial court sentenced Delgado the same day as accepting his plea, the court
took a forty-eight-minute break to allow Delgado and his attorney to prepare. To be fair,
Delgado requested a continuance, but the reason for his requested continuance had nothing to do
with a lack of notice related to the past DWIs; Delgado’s attorney wanted to explore substance
abuse issues, not contest the validity of previous convictions. Most significantly, when the
proceedings reconvened, neither Delgado himself nor his attorney raised any issue as to the prior
convictions despite both being afforded an opportunity to speak. Under the circumstances,
Delgado had adequate notice that his DWI recidivism could and would be used again him.
Delgado chose not to contest the past convictions, and nothing in the record, including Delgado’s
arguments here, suggests any basis for doing so. See Pittman, 2018 U.S. Dist. LEXIS 189429, at
*11 (“[N]othing in the record indicate[s] that Petitioner challenged the . . . prior convictions”). 4

4

Delgado’s due-process theory continues to change. The Court has addressed Delgado’s due-process claim as
presented his federal petition. In his Reply, however, Delgado adds a new gloss on the notice argument. He claims
he did not receive, and his lawyer did not present him with, the supplemental information. Delgado says had he
received the notice, he would not have pleaded guilty. This argument does not persuade the Court, assuming it was
properly raised in the first place. Even if Delgado did not receive the supplemental information, the plea agreement
itself, which Delgado signed, accurately stated the recidivist effect of the prior DWI convictions and the potential for
the enhancements. Additionally, the trial court discussed the past DWIs and the sentence on the record. Delgado
admitted he committed each of the past DWIs on the record. Also, for the first time in the Reply, Delgado argues
that the prosecutor breached the plea agreement, the prosecutor and Delgado’s attorney agreed on a sentence, and
Delgado did not have enough time to discuss the plea agreement with his lawyer considering the untimely filing of
the supplemental information. These arguments were not presented to the state courts, exhaustion was not waived
by the Warden, and the Court declines to entertain an entirely new theory in the reply. See, e.g., United States v.
Archuleta, 2017 U.S. Dist. LEXIS 99805, at *15 (D.N.M. June 28, 2017) (explaining that “district courts within the
circuit have recognized the rule of waiver in habeas proceedings and applied it”).
8

Ineffective Assistance of Counsel
During the plea colloquy, the trial judge voiced her understanding that Delgado faced
twelve years of “habitual time.” Delgado maintains that his attorney should have objected at
“the very first mention of habitual time” and alerted the court that twelve years was not
mandatory. Counsel’s failure to object, Delgado argues, amounts to constitutionally ineffective
assistance in violation of the Sixth Amendment. 5 The Court rejects this contention.
To prove ineffective assistance of counsel, Delgado must demonstrate that his attorney’s
performance was deficient, and Delgado suffered prejudice as a result. See Strickland v.
Washington, 466 U. S. 668, 687 (1984). In the context of sentencing and plea agreements,
prejudice means the petitioner must show that the outcome of the plea process would have been
different, i.e. that he would have received a more favorable sentence. See Missouri v. Frye, 566
U.S. 134, 148 (2012) (holding that where plea offer has lapsed or been rejected due to ineffective
assistance, defendant must show the end result would have been more favorable); Lafler v.
Cooper, 566 U.S. 156, 163 (2012) (“In the context of pleas, a defendant must show the outcome
of the plea process would have been different with competent advice.”).

5

Delgado’s ineffective assistance-of-counsel claim morphs in his reply brief to include the argument that he would
not have pleaded guilty and insisted on trial had his lawyer advised “you are receiving a 0-18 year plea, however, in
the statute [it] states your enhancements will give you a minimum exposure of 12 years.” (Doc. 10, at 6). The
problem with this argument and the various glosses on the alleged bad-advice theories Delgado asserted in the state
court proceedings, but not his federal petition, is Delgado’s inability to show prejudice. The Tenth Circuit has held
the petitioner’s “mere allegation that he would have insisted on trial but for his counsel's errors, although necessary,
is ultimately insufficient to entitle him to relief.” Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001)
(internal quotation marks and citation omitted). “[C]ourts applying this standard will often review the strength of
the prosecutor's case as the best evidence of whether a defendant in fact would have changed his plea and insisted on
going to trial.” Id. (citing Hill v. Lockhart, 474 U.S. 52 at 59-60 (1985)). In this case, the evidence was
overwhelming, and Delgado lacked an apparent defense. It is undisputed that Mr. O’Daniel died as result of the
automobile collision Delgado caused when he drove his pickup through a red light. A blood draw showed Delgado
was drunk. Delgado does not challenge his past DWI convictions. Nor does he explain how he would offer a
plausible challenge to the facts in this case. Despite Delgado’s protestations to the contrary, when measured against
the case again him, Delgado’s claim he would not have pleaded guilty and insisted on going to trial is not
reasonable.
9

As explained above, Delgado faced a basic sentence of six years with an enhancement of
four years for each of his three qualifying DWI convictions. See N.M. Stat. Ann. §§ 66-8-101(D)
(2004), 31-18-15(7) (2007). Under the vehicular-homicide statue, enhancement of a basic
sentence, however, does not mean mandatory incarceration. In other words, the vehicularhomicide statute, Section 66-8-101(D), allows the trial court to suspend, defer, or impose a
sentence so that the defendant serves all, none, or some portion of the total term in confinement.
See id. (not requiring any mandatory period of incarceration for a third-degree felony or
vehicular homicide).
The crux of Delgado’s argument is that by using the term “habitual time,” the judge
thought she had to incarcerate Delgado for a minimum of twelve years. 6 “Habitual time” in
New Mexico does generally refer to a sentencing enhancement whereby a defendant receives a
mandatory term of incarceration for recidivism that may not be suspended or deferred. See, e.g.,
N.M. Stat. Ann. § 31-18-17(B) (“A person convicted of a noncapital felony in this state whether
within the Criminal Code [30-1-1 NMSA 1978] or the Controlled Substances Act [30-31-1
NMSA 1978] or not who has incurred two prior felony convictions that were parts of separate
transactions or occurrences or conditional discharge under Section 31-20-13 NMSA 1978 is a
habitual offender and his basic sentence shall be increased by four years. The sentence imposed
by this subsection shall not be suspended or deferred.”).

6

In his Reply, Delgado also claims that an objection would have interrupted the trial judge’s train of the thought and
apparently distracted her from the tough stance she was taking as to the sentencing. From the Court’s perspective,
Delgado’s implication is rank speculation. See Strickland, 466 U.S. at 687 (explaining that prejudice must be show
by a “reasonable probability”). The record reflects a robust exchange with defense counsel and multiple
interruptions during the proceedings. As explained below, the trial judge ultimately considered suspending at least
some portion of Delgado’s sentence and declined to do so as the plea agreement and law allowed.
10

Admittedly, the trial judge’s use of the term “habitual time” to describe the enhanced
sentencing scheme in Section 66-8-101(D) was not ideal. 7 While Delgado may have faced an
enhanced basic sentence, any portion of it could have been suspended or deferred. If the judge
did not understand her discretion in this regard, there could well be an argument that Delgado’s
attorney should have objected. The Court, however, is persuaded that the judge understood she
could impose less than the potential maximum sentence of eighteen years that Delgado faced
pursuant to his plea agreement, and instead chose to impose the sentence of eighteen years’
incarceration. As a result, Delgado fails the prejudice prong of his ineffective assistance claim.
See Hale v. Gibson, 227 F.3d 1298, 1314 (10th Cir. 2000) (“Courts may address the performance
and prejudice components in any order and need not address both if a defendant fails to make a
sufficient showing of one.”).
For example, the plea agreement informed the trial court, the prosecutor, and Delgado
that Delgado was subject to a range of sentencing. (See Doc. 9-2. at 40) (“If the court accepts this
agreement, the defendant may be ordered to serve a period of incarceration of zero to eighteen at
initial sentencing only”). To ensure the judge understood her discretion, Delgado’s attorney
corrected the range, handwriting in the “zero to” portion. (Doc. 9-2, at 86). During the plea
hearing, the trial court made note of that range. (See Doc. 9-2, at 65) (“[W]hat we have in front
of us is a sentence anywhere from zero to 18 years, 12 years is the habitual time just for the prior
DWIs.”).

7

In the judgement and sentence, a preprinted form, the trial judge filled in “6” for the “Sentence” portion and circled
“Habitual” as the “Enhancement Code.” Under “Habitual,” the trial court wrote in “12” for the “Years.” (Doc. 9-1,
at 32). Delgado does not challenge the form itself, but the term “habitual” is not a fully accurate statement of the
enhancement framework of the vehicular homicide statute as discussed above. At the same time, because the
judgement-and-sentence form was preprinted, the judge was limited in what type of enhancement she could choose:
“Firearm”; “Other”; “H[ate] C[rime]”; and “Habitual.” (Id.). Without other choices, “Habitual” most resembles the
appropriate enhancement category. In any event, as discussed below, despite the choice of wording, the trial judge
understood she could have suspended Delgado’s sentence to a term of supervised probation and chose not to, instead
opting to sentence him to confinement as permitted under the law and the plea agreement.
11

Moreover, despite the trial court’s repeated mention of twelve years for the DWIs alone,
Delgado did not raise the issue when afforded an opportunity to speak at sentencing. Delgado’s
silence is noteworthy because he claimed in earlier correspondence filed in state postconviction
proceedings that his attorney promised him before the plea hearing that the twelve-year
enhancement to his sentence did not mean the sentencing judge would be compelled to sentence
him to twelve years’ incarceration for those enhancements. (Doc. 9-1). But instead of seeking
clarification during the sentencing hearing, Delgado said, “I’m taking full responsibility” and
“will respectfully accept any and all consequences you put on me, Your Honor.” 8 (Doc. 9-2, at
65).
Most significantly, before imposing the eighteen-year sentence, the trial court explained:
I don’t think supervision is the right thing to do in this matter. Again, based on just
the sequence of facts that took place, based on the fact that this is a fourth DWI that
did cost somebody his life, there is not much else I can do for you, Mr. Delgado,
other than to take away your freedom, sir, just like the freedom of Mr. O’Daniel
was taken away. The only difference, though, sir, is you’re going to regain your
freedom and he is not. I am going to sentence you to at term of 18 years. Of course,
its not going to be the entire 18 years, because you are going to be given good time
on a portion of that. That is just the way our system works, but it’s the maximum
I could sentence you.
(Id.). In context, supervision refers to the suspension of all or a part of a sentence to a term of
supervised probation. Thus, under the totality of the circumstances, the trial judge’s use of the
term “12-years habitual time” was shorthand for the enhancement of the basic sentence under
Section 66-8-101 for vehicular homicide with three prior DWI convictions, with each sentence
being run consecutive to the other, but not representing a required period of incarceration. The
trial judge understood that pursuant to the plea agreement, Delgado could be sentenced to a term

8

In his reply in this Court, Delgado says he “meant . . . [he] would accept any and all punishment within the plea I
accepted.” (Doc. 10). This observation does not assist Delgado. The plea agreement provided for an exposure of
zero to eighteen years and the trial court sentenced Delgado within that range as permitted by law and the
agreement.
12

of imprisonment ranging from zero years to eighteen years, and that she could have suspended at
least some of the sentence to supervised probation. As she was permitted to do by law and under
the agreement, however, the trial judge determined supervised probation was not the appropriate
sentence for Delgado and he should be sentenced to incarceration for the entire sentence of
eighteen years. Accordingly, Delgado cannot demonstrate the necessary prejudice under
Strickland: that he would have received a lesser prison term had his attorney objected.
CONCLUSION
For the reasons stated above, Delgado is not entitled to habeas relief under 28 U.S.C. §
2254. Even under a de novo standard of review and liberal construction of his petition, the Court
concludes that Delgado had constitutionally adequate notice his sentence could be increased
based on his history of DWIs and that no due process violation occurred. Additionally, despite
the trial court’s use of the imprecise term, “habitual time,” the totality of the circumstances
demonstrate that the trial court understood it could suspend Delgado’s eighteen-year sentence to
a term of supervised probation. This understanding means Delgado cannot demonstrate he
suffered prejudice from his attorney’s alleged failure to object at the trial court’s mention of
“habitual time” despite the connotation of mandatory incarceration.
IT IS, THEREFORE, RECOMMENDED that Delgado’s petition for a writ of habeas
corpus (Doc. 1) be DENIED and this matter be DISMISSED with prejudice.
IT IS FURTHER RECOMMENDED that Delgado’s motion for a status conference
(Doc. 13) and motion to appoint counsel (Doc. 19) be DENIED as moot.

_____________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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WITHIN FOURTEEN (14) DAYS AFTER A PARTY IS SERVED WITH A COPY OF
THESE PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, THAT PARTY MAY,
PURSUANT TO 28 U.S.C. § 636(B)(1), FILE WRITTEN OBJECTIONS TO SUCH PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION. A PARTY MUST FILE ANY OBJECTIONS
WITH THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
NEW MEXICO WITHIN THE FOURTEEN (14) DAY PERIOD ALLOWED IF THAT PARTY
WANTS TO HAVE APPELLATE REVIEW OF THE PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION. IF NO OBJECTIONS ARE FILED, NO APPELLATE
REVIEW WILL BE ALLOWED. PURSUANT TO FED. R. CIV. P. 72(B)(2), A PARTY MAY
RESPOND TO ANOTHER PARTY’S OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER
BEING SERVED WITH A COPY OF THE OBJECTIONS.

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