Ex Parte: Juan Carpio-Cruz Appeal from Criminal District Court No. 1 of El Paso County (opinion )

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COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS EX PARTE: JUAN CARPIO-CRUZ. § § § § § § § § § § No. 08-10-00240-CR Appeal from the Criminal District Court No. 1 of El Paso County, Texas (TC# 20090D02854-DCR-1) OPINION ON REMAND In June 2009, Juan Carpio-Cruz, a Mexican national, was indicted for the state jail felony offense of possession of cocaine. In November 2009, Carpio-Cruz pleaded guilty pursuant to a plea agreement, to a lowered, class A misdemeanor possession offense. The trial court deferred adjudication and placed Carpio-Cruz on community supervision for eleven months. Following his plea, the Department of Homeland Security detained Carpio-Cruz and an immigration judge ordered he be deported to Mexico. In May 2010, Carpio-Cruz filed a petition for writ of habeas corpus alleging ineffective assistance of counsel arising from his plea counsel s failure to advise him that a guilty plea would lead to his deportation. The trial court granted Carpio-Cruz s requested habeas corpus relief, and the State appealed to this Court. We affirmed the trial court s order and determined Carpio-Cruz met his burden of establishing ineffective assistance of counsel based on Padilla v. Kentucky, 559 U.S. 356, 373, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010). Ex parte Carpio-Cruz, No. 08-10-00240-CR, 2011 WL 5460848 (Tex. App. El Paso Nov. 9, 2011), judgment vacated, No. PD-1872-11, 2013 WL 1149964 (Tex.Crim.App. Mar. 20, 2013). The Court of Criminal Appeals subsequently vacated our judgment and remanded the case for our consideration in light of its opinion in Ex parte De Los Reyes, which addressed the issue of Padilla s retroactivity. Ex parte Carpio-Cruz, No. PD-1872-11, 2013 WL 1149964, at *1 (Tex.Crim.App. Mar. 20, 2013). See Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013). BACKGROUND The trial court heard Carpio-Cruz s writ application and entered written findings of fact and conclusions of law. The trial court found that Carpio-Cruz and his wife had informed plea counsel that Carpio-Cruz had been a legal permanent resident in the United States for less than five years at the time of his arrest. The trial court further found plea counsel only advised Carpio-Cruz his guilty plea could affect his immigration status, not that it would lead to immigration proceedings and deportation. Applicable immigration law clearly states an alien is deportable after being convicted of any violation of a law or regulation relating to a controlled substance, and a plea under deferred adjudication is considered a conviction for immigration law purposes. 8 U.S.C. § 1101(a)(48)(A); 8 U.S.C. § 1227 (a)(2)(B)(i). The trial court concluded Carpio-Cruz received ineffective assistance of counsel under Padilla v. Kentucky, because his trial counsel misadvised him of the immigration consequences of his guilty plea. The trial court concluded that counsel was ineffective because the terms of the immigration statute are succinct, clear, and explicit that Carpio-Cruz would be deported from the United States if he entered a 2 guilty plea to the cocaine charge as he was ineligible for cancelation of removal since he had not been a legal permanent resident for at least five years, and counsel failed to advise him of this fact. Padilla, 559 U.S. at 368-69, 130 S.Ct. at 1483. The trial court granted Carpio-Cruz s requested relief, withdrew his November 30, 2009 guilty plea, and vacated the order of deferred adjudication. The State appealed to this Court and we affirmed the trial court s determination applying Padilla retroactively. Ex parte Carpio-Cruz, No. 08-10-00240-CR, 2011 WL 5460848 (Tex. App. El Paso Nov. 9, 2011), judgment vacated, No. PD-1872-11, 2013 WL 1149964 (Tex.Crim.App. Mar. 20, 2013). The State then petitioned the Texas Court of Criminal Appeals for discretionary review. Ex parte Carpio-Cruz, PD-1872-11, 2013 WL 1149964 (Tex.Crim.App. Mar. 20, 2013). We reconsider the trial court s determination of ineffective assistance of counsel on remand. DISCUSSION Standard of Review We review a trial court s ruling on an application for writ of habeas corpus for an abuse of discretion, examining the evidence in a light most favorable to the trial court s ruling, affording almost total deference to the trial court s determination of historical facts. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006). When claiming ineffective assistance of counsel in entering a plea, a defendant must establish that: (1) defense counsel s performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel s ineffectiveness, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 88, 694, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ex parte Moussazadeh, 361 S.W.3d 3 684, 691 (Tex.Crim.App. 2012). The claimant bears the burden of establishing both prongs of the Strickland test by a preponderance of the evidence. 2011). Ex parte Martinez, 330 S.W.3d 891, 901 (Tex.Crim.App. Failure to meet the burden for either prong defeats the ineffectiveness claim. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069-70. Our review of the actions taken by counsel is highly deferential and carries a strong presumption that counsel s conduct was not deficient. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; see Ex parte Moussazadeh, 361 S.W.3d at 691. To prevail, a defendant must overcome the presumption that, under the circumstances, counsel s conduct fell within an objective standard of reasonable professional norms. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Ex parte Moussazadeh, 361 S.W.3d at 691. Pre-Padilla, trial counsel did not violate a defendant s Sixth Amendment right to effective assistance of counsel by failing to properly advise his client about collateral consequences of the prosecution. 1997). Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. Immigration consequences, including deportation have traditionally been considered collateral consequences of a guilty plea. State v. Jimenez, 987 S.W.2d 886, 888 89 (Tex.Crim.App. 1999); see also Ex parte Morrow, 952 S.W.2d at 536. In Padilla, the United States Supreme Court held that trial counsel must advise a non-citizen client whether a guilty plea carries a risk of immigration consequences including deportation. Padilla, 559 U.S. at 373-74, 130 S.Ct. at 1486. depends on the applicable immigration law. Id. The nature of this advice When an immigration consequence is truly clear, counsel s failure to give correct advice is sufficient to satisfy the first prong of a Strickland ineffective assistance claim. Id. at 369, 130 S.Ct. at 1483-84. Post-Padilla, we and 4 many of our sister courts have determined that Padilla s holding applied retroactively. The Supreme Court clarified the issue of Padilla s retroactive application in Chaidez v. United States, holding that Padilla announced a new rule regarding counsel s obligations to provide immigration advice, and therefore, Padilla does not apply retroactively to convictions made final prior to its ruling. Chaidez v. United States, 133 S.Ct. 1103, 1113 (2013). The Texas Court of Criminal Appeals adhered to the Chaidez analysis in determining Padilla also does not apply retroactively as a matter of state habeas law. Ex parte De Los Reyes, 392 S.W.3d at 679. The Texas Court of Criminal Appeals further clarified, while normally an order of deferred adjudication is not considered a final conviction for state law, it is for the purposes of federal immigration law. State v. Guerrero, 400 S.W.3d 576, 587 88 (Tex.Crim.App. 2013). Therefore, for purposes of a Padilla analysis, a final conviction occurs at the time a defendant pleaded guilty and was placed on deferred adjudication. Id. Analysis Because Carpio-Cruz s ineffective assistance of counsel claims relied on Padilla, we review the timing of his plea to determine whether or not the standards established in Padilla apply to his case. Ex parte De Los Reyes, 392 S.W.3d at 679. November 30, 2009. Carpio-Cruz pleaded guilty on Carpio-Cruz took no further action regarding the order of deferred adjudication, therefore his conviction became final on November 30, 2009, for purposes of federal immigration law and our review. See Guerrero, 400 S.W.3d at 587 88. Because the United States Supreme Court did not issue Padilla until March 31, 2010, Carpio-Cruz may not benefit from the retroactive application of Padilla s holding. Ex parte De Los Reyes, 392 S.W.3d at 679. See Chaidez, 133 S.Ct. at 1113; See also Guerrero, 400 S.W.3d at 587 88. 5 Pre-Padilla, counsel did not have an obligation to advise clients on the possible immigration consequences of a plea. Ex parte Morrow, 952 S.W.2d at 536; Jimenez, 987 S.W.2d at 888 89. We defer to the trial court s undisputed finding that plea counsel advised Carpio-Cruz he could be subject to immigration consequences, including deportation, based on his guilty plea and conclude that counsel did not render ineffective assistance. See Kniatt, 206 S.W.3d at 664; see also Jimenez, 987 S.W.2d at 888 89; Ex parte Morrow, 952 S.W.2d at 536. Because Carpio-Cruz cannot satisfy the first Strickland prong, we need not address the second Strickland prong. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069-70. Accordingly, the trial court s grant of habeas corpus relief on the basis of ineffective assistance of counsel constitutes an abuse of discretion. Id. See also Kniatt, 206 S.W.3d at 664. CONCLUSION The trial court s judgment is reversed and judgment is rendered denying the application for writ of habeas corpus. TEX.R.APP.P. 43.2(c). YVONNE T. RODRIGUEZ, Justice October 17, 2014 Before McClure, C.J., Rivera, and Rodriguez, JJ. Rivera, J., not participating (Do Not Publish) 6

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