Articles Posted in Ex Parte

*4 Under the second prong of Strickland, Olvera must show by a preponderance of the evidence that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a jury trial. At the habeas hearing, Olvera testified that he and his sister asked counsel several times about the immigration consequences of a guilty plea. Olvera testified that if he had known he would be deported or denied reentry into this country by pleading guilty he “would have never pled guilty, ever” and would have gone to trial.

The record shows that Olvera was a legal permanent resident. At Olvera’s request, his supervision officer gave him written permission to travel to Mexico with family for the Christmas holidays. Although the record does not show that Olvera was deported,FN1 he was denied reentry because of his guilty plea when he tried to return to the United States after the holidays. In his writ application, Olvera argued that because he is a legal permanent resident, he would not have pleaded guilty if he had known he would be deported or denied reentry. In addition, he argued that he would have tried the case because he had “a great defense” to the charge. He argued that he did not know that the officer, who was working as security at a dance hall, was a police officer because the officer approached him from behind. And the officer testified at the habeas hearing that, as he was arresting Olvera, Olvera said, “I didn’t know you were the police. I didn’t know you were the police.”

We conclude that Olvera met his burden to show a reasonable probability that, but for his counsel’s erroneous advice, he would not have pleaded guilty and would have insisted on going to trial. See Moody, 991 S.W.2d at 857-58. We also conclude that Padilla and Martinez apply retroactively to the time of the guilty plea. See Ex parte Tanklevskaya, 361 S.W.3d 86, 95 (Tex.App.-Houston [1st Dist.] 2011, pet. filed); Ex parte De Los Reyes, 350 S.W.3d 723, 729 (Tex.App.-El Paso 2011, pet. granted); accord United States v. Orocio, 645 F.3d 630, 641 (3d Cir.2011); but see United States v. Amer, No. 11-60522, 2012 WL 1621005, at *3 (5th Cir. May 9, 2012) (holding Padilla does not apply retroactively); Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.2011) (same), cert. granted, — U.S. —-, 132 S.Ct. 2101, —L.Ed.2d —-, 80 U.S.L.W. 3429, 2012 WL 1468539, at *1 (U.S. Apr. 30, 2012).

*3 In 2010, the Supreme Court issued its opinion in Padilla v. Kentucky, — U.S. —-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in which it explained a criminal defense attorney’s duty to advise his client about the potential immigration consequences of a plea. In that case, Padilla pleaded guilty to an offense that subjected him to automatic deportation. The Supreme Court recognized that immigration law is complex and stated that when “the deportation consequences of a particular plea are unclear or uncertain … a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. at 1483. But the Court also held that “when the deportation consequence is truly clear, the duty to give correct advice is equally clear.” Id. The Court held that “constitutionally competent counsel would have advised [Padilla] that his conviction … made him subject to automatic deportation.” Id. at 1478, 1486-87. Because counsel did not so advise Padilla, the Court concluded that counsel was not constitutionally competent and that Padilla satisfied the first prong of Strickland. Id.; see Ex parte Martinez, No. PD-1338-11, 2012 WL 1868492, at *4-5 (Tex.Crim.App. May 16, 2012) (not designated for publication) (when deportation and exclusion from this country are automatic consequences of a guilty plea, it is not enough to advise noncitizen client that he faces the possibility of deportation or exclusion).

It is undisputed that a conviction for an aggravated felony results in automatic deportation or exclusion from the country. 8 U .S.C. § 1227(a)(2)(A)(iii) (2005) (stating that an alien “admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is … convicted of an aggravated felony”); see Martinez, 2012 WL 1868492, at *4. It is also undisputed that the offense of assault of a public servant is an aggravated felony for federal immigration law purposes. See 8 U .S.C. § 1101(a)(43) (stating that a “crime of violence” is an aggravated felony); 18 U.S.C. § 16(a) (2000) (defining “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”); TEX. PENAL CODE ANN. § 22.01(a) (West 2011) (defining “assault” offense to include causing or threatening to cause bodily injury to another). And it is undisputed that when a defendant is placed on deferred adjudication and some form of punishment is assessed, the deferred adjudication is a “conviction” for federal immigration law purposes. Martinez, 2012 WL 1868492, at *4 (citing 8 U.S.C. § 1101(a)(48)(A)).

Because the immigration consequences of a guilty plea to the assault offense in this case were clear, counsel’s duty under Padilla and Martinez was to give Olvera clear advice about those consequences. See Padilla, 130 S.Ct. at 1478, 1486-87; Martinez, 2012 WL 1868492, at *4-5; Moody, 991 S.W.2d at 858. The record supports Olvera’s argument that counsel did not satisfy his duty to give adequate advice about the immigration consequences. Counsel testified that he told Olvera he could be deported or denied reentry into this country, not that a guilty plea would result in automatic deportation and denial of reentry. Consequently, we conclude that Olvera satisfied his burden under the first prong of Strickland to show that counsel’s performance fell below an objective standard of reasonableness. See Padilla, 130 S.Ct. at 1478, 1486-87.

STANDARD OF REVIEW [1] An applicant for habeas corpus relief must prove his claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 665 (Tex.Crim.App.2006). In reviewing a trial court’s order denying a writ application, we view the facts in the light most favorable to the trial court’s ruling and uphold the trial court’s ruling absent an abuse of discretion. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App.2007). We afford almost total deference to the court’s determination of the historical facts that are supported by the record, especially when those facts are based on an evaluation of credibility and demeanor. Id. If a trial court does not make explicit findings, we grant deference to implicit findings that support the court’s ruling. Id. We will reverse the trial court’s ruling only if we conclude that it is arbitrary, unreasonable, and made without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g).

DISCUSSION *2 [2] In issue two, Olvera contends that his trial counsel was ineffective because counsel did not adequately advise him about the immigration consequences of a guilty plea. Because this issue is dispositive, we address it first.

We evaluate the effectiveness of trial counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999). The appellant bears the burden of proving that counsel was ineffective by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). We indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). To prevail, the appellant must show (1) counsel’s performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel’s errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694.

— S.W.3d —-, 2012 WL 2336240 (Tex.App.-Dallas)

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Court of Appeals of Texas, Dallas.