STATE OF MINNESOTA
IN COURT OF APPEALS
A10-1395
Rene Reyes Campos, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed May 16, 2011
Reversed and remanded
Stoneburner, Judge
Hennepin County District Court
File No. 27CR0933865
Bruce D. Nestor, De León & Nestor, LLC, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Ross, Judge; and
Bjorkman, Judge.
SYLLABUS
The holding in Padilla v. Kentucky, 559 U.S.___, ___, 130 S. Ct. 1473, 1486
(2010), that to be constitutionally effective, counsel in a criminal matter has an
affirmative duty to inform the defendant whether his or her plea carries a risk of
deportation, is not a new rule of constitutional criminal procedure, and therefore its
holding applies retroactively to cases on collateral review.
OPINION
STONEBURNER, Judge
Appellant challenges the denial of his post-sentencing motion to withdraw his
guilty plea, arguing that under Padilla, 559 U.S. at ___, 130 S. Ct. at 1486, his counsel
was constitutionally ineffective by failing to advise him that his plea carried a risk of
deportation. Appellant argues that the district court erred by concluding that Padilla does
not apply retroactively to cases on collateral review. We reverse and remand.
FACTS
Appellant Rene Reyes Campos was 17 years old when he was charged with felony
simple robbery committed for the benefit of a gang in May 2009. Campos has been a
lawful permanent resident of the United States since 2002. The state moved for adult
certification.
In July 2009, Campos, who was represented by counsel, waived his right to a
certification hearing and pleaded guilty to an amended charge of simple robbery under an
agreement that resulted in a stay of imposition of sentence for three years and
probationary conditions, including 365 days in the workhouse. Campos did not discuss
his immigration status with his attorney and was not advised by his attorney of the effect
of the plea agreement on his immigration status. The record does not reflect that Campos
was provided with the general immigration advisory required by Minn. R. Crim. P. 15.01,
subd. 1(6)(l).
In March 2010, the United States Supreme Court held that federal-constitutional
law requires counsel to advise his or her client whether his or her plea carries a risk of
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deportation. Id. at ___, 130 S. Ct. at 1486. Failure to so advise renders counsel
constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052 (1984). Id.
In June 2010, Campos moved to withdraw his guilty plea, arguing that he was
prejudiced by ineffective assistance of counsel, resulting in an invalid plea, the
acceptance of which constitutes a manifest injustice. In an affidavit supporting his
motion, Campos asserts that, as a result of the plea agreement, he will lose, and never be
able to regain, permanent-resident status and is very likely to be deported. Campos
asserts that the factor triggering mandatory deportation is the condition that he serve 365
days in the workhouse and that had he been required to serve only 364 days in the
workhouse, he would not be deported. Campos asserts that if he had known about the
deportation consequences, he would not have pleaded guilty under the terms of the
agreement.
The district court held that Padilla does not apply retroactively and because
Minnesota law, as it existed at the time of the plea, did not require counsel to inform
Campos of the immigration consequences of his plea, Campos was not deprived of
effective assistance of counsel. The district court concluded that Campos had not proved
by a preponderance of the evidence that a manifest injustice occurred, warranting
withdrawal of his guilty plea, which was, the district court found, accurate, voluntary and
intelligent. Campos’s motion to reconsider was denied, and this appeal followed.
3
ISSUE
Does Padilla, which holds that an attorney’s failure to advise a client that his or
her plea carries a risk of deportation is constitutionally deficient representation, apply
retroactively?
ANALYSIS
I.
Standard of review
A district court’s decision to grant a plea withdrawal is reviewed for an abuse of
discretion. Barragan v. State, 583 N.W.2d 571, 572 (Minn. 1998). A criminal defendant
does not have an absolute right to withdraw a plea of guilty once it has been entered but
may withdraw a guilty plea after sentencing on a timely motion and proof to the
satisfaction of the court that withdrawal of the plea is necessary to correct a manifest
injustice. Minn. R. Civ. P. 15.05, subd. 1.
II.
Ineffective assistance of counsel
Campos argues that he is entitled to withdraw his guilty plea to correct a manifest
injustice because he received constitutionally ineffective assistance of counsel when
counsel failed to advise him of the immigration consequences of his plea, rendering his
plea invalid. When an accused is represented by counsel, the validity of a plea “depends
on whether counsel’s advice was within the range of competence demanded of attorneys
in criminal cases.” State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (quotations
omitted). In determining claims of ineffective assistance of counsel, Minnesota courts
apply the standard set by the United States Supreme Court in Strickland, 466 U.S. 668,
104 S. Ct. 2052. Alanis, 583 N.W.2d at 577.
4
Under the Strickland test, the petitioner must demonstrate:
(1) that the counsel’s representation fell below an objective
standard of reasonableness and (2) that there is a reasonable
probability that, but for the counsel’s errors, the outcome of
the proceedings would have been different.
Id. In Alanis, the Minnesota Supreme Court rejected the argument that a guilty plea was
not voluntary and plea withdrawal was necessary to correct a manifest injustice where
trial counsel failed to warn defendant of the possible immigration consequences of the
plea. Id. at 578. The cornerstone of the Alanis decision is that such a warning is not
required because a criminal defendant is only entitled to be informed of the direct
consequences of a guilty plea, defined as “those [consequences] which flow definitely,
immediately and automatically from the guilty plea, namely the maximum sentence to be
imposed and the amount of any fine.” Id. The supreme court concluded that deportation
is not a definite, immediate, or automatic consequence of a plea, and because Alanis was
warned about the maximum sentence and fine to be imposed, the district court did not err
in determining that plea withdrawal was not necessary to correct a manifest injustice. Id.
at 578–79. And the supreme court held that, because immigration consequences are
collateral consequences of the plea, counsel had no obligation to advise Alanis of the
deportation possibility and his representation could not have fallen below the objective
standard of reasonableness required by Strickland. Id. at 579.
A.
Padilla v. Kentucky
In Padilla, the United States Supreme Court noted that it had never applied a
distinction between direct and collateral consequences to define the scope of
5
constitutionally effective assistance of counsel under Strickland. The Supreme Court
stated that the “collateral versus direct distinction is . . . ill-suited to evaluating a
Strickland claim concerning the specific risk of deportation.” Padilla, 559 U.S. at ___,
130 S. Ct. at 1482. The Supreme Court held in Padilla that “advice regarding deportation
is not categorically removed from the ambit of the Sixth Amendment right to counsel.”
Id. at __; 130 S. Ct. at 1481–82. Applying Strickland to Padilla’s postconviction
challenge to the validity of his guilty plea, the Supreme Court noted that the first prong of
the Strickland analysis “is necessarily linked to the practice and expectations of the legal
community” and cited numerous sources of professional standards to support its
statement that “[t]he weight of prevailing professional norms supports the view that
counsel must advise her client regarding the risk of deportation.” Id. at __; 130 S. Ct. at
1482–83.
Noting that, in Padilla’s case, “the terms of the relevant immigration statutes are
succinct, clear, and explicit in defining the removal consequence for Padilla’s
conviction,” the Supreme Court stated that “[t]his is not a hard case in which to find
deficiency” in counsel’s performance. Id. at __; 130 S. Ct. at 1483. The Supreme Court
held that “counsel must inform her client whether his plea carries a risk of deportation”
and concluded that Padilla had “sufficiently alleged that his counsel was constitutionally
deficient.” Id. at __; 130 S. Ct. at 1486, 1487. But the Court remanded for a
determination of whether Padilla could demonstrate prejudice as a result of the
deficiency. Id. at __; 130 S. Ct. at 1487. The Supreme Court specifically rejected the
argument that its holding would cause a “flood” of guilty-plea challenges, noting that
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“[t]hose who collaterally attack their guilty pleas lose the benefit of the bargain obtained
as a result of the plea.” Id. at ___; 130 S. Ct. at 1485. The Supreme Court stated that “a
different calculus informs whether it is wise to challenge a guilty plea in a habeas
proceeding because, ultimately, the challenge may result in a less favorable outcome for
the defendant, whereas a collateral challenge to a conviction obtained after a jury trial has
no similar downside potential.” Id. at ___; 130 S. Ct. at 1485–86.
B.
Effect of Padilla
Padilla effectively overruled Alanis’s holding as it pertains to the risk of
deportation arising from a guilty plea. Whether Padilla applies in Minnesota to
convictions final at the time Padilla was decided is a purely legal issue, reviewed de
novo. See State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005) (citing O’Meara v. State,
679 N.W.2d 334, 338 (Minn. 2004)), for the proposition that the determination of
whether a decision applies retroactively or non-retroactively is a legal question that is
reviewed de novo).
The Minnesota Supreme Court in Danforth v. State, 761 N.W.2d 493, 500 (Minn.
2009), adopted the retroactivity principles outlined in Teague v. Lane, 489 U.S. 288, 109
S. Ct. 1060 (1989). In Teague, which was “tailored to the unique context of federal
habeas,” the Supreme Court adopted the approach that a new rule of criminal procedure
would not “be retroactively applied to a defendant’s case once the defendant’s case had
become final,” except in two circumstances: “(1) when the rule places specific conduct
beyond the power of the criminal law-making authority to proscribe, or (2) when the rule
is a watershed rule of criminal procedure, and is a rule without which the likelihood of an
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accurate conviction would be seriously diminished.” Danforth, 761 N.W.2d at 496, 497
(quotation omitted).
The first consideration under Teague is whether the holding in Padilla announces
a new rule of criminal procedure “or whether it is merely a predictable extension of a preexisting doctrine.” See Houston, 702 N.W.2d at 270. If the former, it will not apply in
this case; if the latter, it will apply in this case. See O’Meara, 679 N.W.2d at 339–40.
Campos argues that Padilla merely applied the long-standing principles regarding
ineffective assistance of counsel enunciated in Strickland to specific facts and did not
announce a new rule of constitutional criminal procedure. We agree. Given (1) the
procedural posture of Padilla (a collateral attack on a guilty plea); (2) the clear references
in the opinion to its application to collateral proceedings attacking guilty pleas; (3) the
analysis under long-standing principles of the right to effective assistance of counsel; and
(4) the absence of any mention of retroactivity, the conclusion that the opinion does not
announce a new rule of criminal procedure seems self-evident to this court. See Padilla,
559 U.S. at ___, 130 S. Ct. at 1478 (stating “[i]n this postconviction proceeding . . . );
1485–86 (discussing “nature of relief secured by a successful collateral challenge to a
guilty plea” and “collateral challenge to a conviction”). Nonetheless, we recognize that
some courts that have addressed whether Padilla applies retroactively have concluded
that it does announce a new rule of criminal procedure. See Marroquin v. United States,
No. M-10-156, 2011 WL 488985, at *2 & nn.3–4 (S.D. Tex. Feb. 4, 2011) (holding that
Padilla does not announce a new rule of constitutional criminal procedure and listing in
8
footnotes three cases finding that Padilla announced a new rule of criminal procedure
and seven cases finding that Padilla is simply the application of an old rule).
Because Padilla’s holding effectively overrules the result of the “collateral
consequences” label that many state and federal courts have given to the risk of
deportation, we recognize the temptation to conclude that it announces a new rule of
criminal procedure. But, in addition to the fact that the Supreme Court applied the rule
established in Padilla to a collateral attack on a final conviction, we find the reasoning of
the United States District Court for the Southern District of Texas in Marroquin to be
persuasive in explaining why application of Teague’s “new rule” analysis does not
support a finding that Padilla announced “new ground”1 for evaluating the effectiveness
of counsel. Id. at *4–6.
In Marroquin, the court rejected the government’s argument that “Strickland’s
application in Padilla yields a result so novel that it forges a new rule, one not dictated by
precedent.” Id. at *5 (quotation omitted). The court noted that prior Supreme Court
cases have applied Strickland to new sets of facts and the resulting holdings, relying on
professional standards and expectations, did not establish new rules. Id.
Since 2006, Minnesota has required a district court judge to ensure that defense
counsel has told the defendant and that the defendant understands that “[i]f the defendant
is not a citizen of the United States, a guilty plea may result in deportation, exclusion
1
In Padilla, the United States Supreme Court acknowledged that it must be careful about
“recognizing new grounds for attacking the validity of guilty pleas” but noted that “in the
25 years since we first applied Strickland to claims of ineffective assistance at the plea
stage, practice has shown that pleas are less frequently the subject of collateral challenges
than convictions obtained after a trial.” 559 U.S. at
, 130 S. Ct. at 1485.
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from admission to the United States, or denial of naturalization as a United States
citizen,” before accepting a criminal defendant’s guilty plea. Minn. R. Crim. P. 15.01,
subd.1(6)(l). Additionally, comments to this rule have long contained some of the same
information cited by the Supreme Court regarding the importance of immigration
information to a criminal defendant contemplating a guilty plea.
In the Antiterrorism and Effective Death Penalty Act of
1996, . . . and the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, . . .Congress extensively amended
the Immigration and Nationality Act and greatly expanded the
grounds for deportation of non-citizens convicted of crimes.
Consequently, many non-citizens pleading guilty to felony
charges and even to a number of non-felony charges will
subject themselves to deportation proceedings.
The
consequences of such proceedings will often be more severe
and more important to the non-citizen defendant than the
consequences of the criminal proceedings. It is therefore
appropriate that defense counsel advise non-citizen
defendants of those consequences and that the court inquire to
be sure that has been done. As to the obligation of defense
counsel in such situations, see ABA Standards for Criminal
Justice, Pleas of Guilty, 14-3.2 (2d ed. 1982).
The
requirement of inquiring into deportation and immigration
consequences does not mean that other unanticipated noncriminal consequences of a guilty plea will justify later
withdrawal of that plea.
Minn. R. Crim. P. 15 cmt. (2006).2
2
At oral argument on appeal, Campos argued that violation of Rule 15.01, mandating
that a non-citizen defendant be advised of immigration consequences of a plea is a
separate ground for reversal in this case. See State v. Lopez, 794 N.W.2d 379, 380
(Minn. App. 2011) (holding that an unrepresented defendant who entered a plea without
signing a written plea petition and who had limited experience with the criminal-justice
system satisfied the fair-and-just standard for pre-sentence plea withdrawal). But
Campos only asserted the Rule 15 violation in a motion to reconsider; the district court
never addressed the Rule 15 violation, and Campos did not raise the Rule 15 violation as
an issue on appeal. We therefore decline to address the merits of this argument. See
10
We recognize that, under Teague, a rule is generally considered “new” if it is not
“dictated” by precedent existing at the time a conviction became final. 489 U.S. at 301,
109 S. Ct. at 1070. This principle ensures that reasonable, good-faith interpretations of
existing precedent are validated even if those interpretations are later deemed to conflict
with the holdings in subsequent cases. Houston, 702 N.W.2d at 271. The test is whether
“reasonable jurists hearing petitioner’s claim at the time of his conviction became final
would have felt compelled by existing precedent to rule in his favor.” Id. (quotation and
emphasis omitted).
But the rule of criminal procedure at issue embodies the constitutional entitlement
to effective representation. What constitutes effective assistance of counsel is examined
under Strickland, and, as the state acknowledges in this case, a defense attorney’s duty to
properly advise his client before a guilty plea is hardly new. Given developments in
immigration policy and the post-Alanis changes to the Minnesota Rules of Criminal
Procedure, we conclude that reasonable jurists, at the time Campos was sentenced, could
have concluded that Campos’s counsel was ineffective.
Because we conclude that Padilla does not announce a new rule of criminal
procedure, we do not reach the argument that, even if a new rule was announced, it is a
watershed rule that should be applied retroactively.3
Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts will
generally not consider matters not argued to and considered by the district court); State v.
Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating that issues not briefed on
appeal are waived), review denied (Minn. Aug. 5, 1997).
3
We note, however, that the Minnesota Supreme Court, in adopting the retroactivity
principles established in Teague, declined to be bound by the United States Supreme
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DECISION
Because Padilla does not announce a new rule of criminal procedure, the district
court erred by concluding that Padilla does not apply to Campos’s ineffective-assistanceof-counsel claim based on counsel’s failure to advise him that his plea carries the risk of
deportation. We reverse and remand for consideration of Campos’s claim of ineffective
assistance of counsel under Strickland, consistent with the holding in Padilla.
Reversed and remanded.
Court’s determinations of when fundamental fairness might require retroactive
application of a new constitutional safeguard. Danforth, 761 N.W.2d at 500.
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