Dias v. Warden Caddo Corrtl

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 16, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30763
Summary Calendar
MARTIN L. DIAS,
Petitioner-Appellant,
versus
WARDEN, CADDO CORRECTIONAL CENTER,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CV-124
--------------------
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Martin L. Dias pleaded guilty in 1999 to possession of a
schedule II controlled dangerous substance, cocaine, with intent
to distribute in violation of LA. REV. STAT. ANN. § 40:967B (West
Supp. 2004), and he was sentenced to nine years’ imprisonment.
He appeals the district court’s denial of his 28 U.S.C. § 2254
application. The district court granted a certificate of
appealability on the issue whether the state court unreasonably

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applied Hill v. Lockhart, 474 U.S. 52, 59 (1985), and Strickland
v. Washington, 466 U.S. 668, 687-94 (1984), to the facts alleged
by Dias in light of the evidence presented in the state court
proceedings with respect to his claim of ineffective assistance
of counsel.
Dias contends that his counsel was deficient for failing
to file a motion to suppress containing specific allegations
concerning the speed limit on the road where Dias’ vehicle was
stopped. Counsel did file a motion to suppress challenging the
stop of Dias’ vehicle. The motion was set for hearing on the
Friday morning before trial. Dias appeared with counsel, but he
did not go forward with the hearing on the motion to suppress
because he pleaded guilty. Dias’ position is that the speed
limit was actually 55 miles per hour, and so there was no traffic
violation to support the stop of his vehicle. He allegedly gave
his attorney a letter from the Louisiana Department of Highways,
a map, and a photograph which prove his claim. According to the
police report, Dias was stopped on the portion of the road where
the speed limit is 40 miles per hour.
Dias did not include these specific allegations about the
speed limit in his pro se motion filed in the trial court on
April 19, 1999, but merely alleged that the police officer’s
stop was “a ruse.” The motion to suppress filed by counsel
was not denied by the trial court due to the lack of specific
factual allegations; Dias abandoned the motion and pleaded

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guilty. Dias asks this court to believe that he felt that he had
no choice but to plead guilty because he knew that counsel’s
motion was deficient and would be denied. Assuming that Dias had
told his lawyer about the discrepancy in the speed limit and had
provided him with the exhibits, Dias offers no explanation
for why counsel would not have presented this evidence at
the hearing had they decided to go forward with the motion.
The district court correctly noted, and Dias has conceded, that
he has made no specific factual allegations of deficiency
concerning the advice counsel gave him about the chances of
success of the motion to suppress and the decision to accept the
state’s offer of a plea bargain for nine years.
The state court’s conclusion that Dias failed to demonstrate
any deficiencies on the part of his attorney regarding the
filing of pretrial motions was not an objectively unreasonable
application of clearly established federal law. Williams v.
Taylor, 529 U.S. 362, 409-11 (2000). Because Dias has not
demonstrated deficient performance, the prejudice prong of
Strickland need not be addressed. Strickland, 466 U.S. at 697.
AFFIRMED.

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