Padilla rule in Texas

2018Padilla v. Kentucky, 559 U.S. 356, 369 , 130 S.Ct. 1473, 1483 , 176 L.Ed.2d 284 (2010); Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013)(Padilla’s rule does not retroactively apply in habeas or similar proceeding to benefit defendant whose conviction was already final when Padilla was handed down); but see Ex parte Garcia, 547 S.W.3d 228, 230 (Tex.Crim.App. 2018)(affirmative misadvice claim, where attorney is under no duty to render immigration-consequence advice but renders incorrect advice to client, is cognizable and differs from Padilla’s imposition of affirmative duty to ad

2015While the State points us to a four-factor approach to prejudice that our sister circuit in Houston has taken that assesses a defendant’s probability of success at trial, Ex parte Murillo, 389 S.W.3d 922, 928-31 (Tex.App.--Houston [14th Dist.] 2013, no pet.), abrogated on retroactivity grounds by Ex parte Chaidez, 133 S.Ct. at 1113 , and Ex parte De Los Reyes, 392 S.W.3d at 679 , we have previously rejected a solely merits-based prejudice analysis, recognizing that HN8 ″[d]eprivation of a trial″ stemming from a Padilla violation ″is a structural defect, which amounts to a serious denial of the

2024Given the clarity of the immigration statute at issue in making Padilla “eligible for deportation” as a result of his guilty plea, the Court explained that this was “not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and –5– his counsel’s advice was incorrect.” Id. at 368–69.

2023Thus, to establish a Padilla claim for deficient performance, Mr. Imran must show his counsel nevertheless failed to specifically inform him of a deportation consequence that was “truly clear” under law that was “succinct” and “straightforward.” Padilla, 559 U.S. at 369 .

2015While the State points us to a four-factor approach to prejudice that our sister circuit in Houston has taken that assesses a defendant’s probability of success at trial, Ex parte Murillo, 389 S.W.3d 922, 928-31 (Tex.App.--Houston [14th Dist.] 2013, no pet.), abrogated on retroactivity grounds by Ex parte Chaidez, 133 S.Ct. at 1113 , and Ex parte De Los Reyes, 392 S.W.3d at 679 , we have previously rejected a solely merits-based prejudice analysis, recognizing that HN8 ″[d]eprivation of a trial″ stemming from a Padilla violation ″is a structural defect, which amounts to a serious denial of the

2015While the State points us to a four-factor approach to prejudice that our sister circuit in Houston has taken that assesses a defendant’s probability of success at trial, Ex parte Murillo, 389 S.W.3d 922, 928-31 (Tex.App.--Houston [14th Dist.] 2013, no pet.), abrogated on retroactivity grounds by Ex parte Chaidez, 133 S.Ct. at 1113 , and Ex parte De Los Reyes, 392 S.W.3d at 679 , we have previously rejected a solely merits-based prejudice analysis, recognizing that HN8 ″[d]eprivation of a trial″ stemming from a Padilla violation ″is a structural defect, which amounts to a serious denial of the

2017The Court noted that its first order of business in Padilla was “to consider whether the widely: accepted distinction between direct and collateral consequences categorically foreclosed Padilla’s claim, whatever.the level of his attorney’s performance.” Id. (emphasis added).

2015The list of deportable offenses, although extensive, 3 Prior to the United States Supreme Court’s decision in Chaidez v. United States, U.S. , 133 S.Ct. 1103 , 185 L.Ed.2d 149 (2013), Texas courts routinely applied the Padilla standard retroactively to convictions made final before March 31, 2010 (the date of the decision in Padilla was announced).

2020Prejudice Under the second prong, in the context of a defendant’s claim that his counsel’s ineffective assistance rendered his plea involuntary, the defendant must demonstrate a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see Lee v. United States, 137 S. Ct. 1958, 1965 (2017) (holding that “Hill test” governs Padilla analysis); Miller, 548 S.W.3d at 499 ; Torres, 483 S.W.3d at 47 .

2015See Santos- Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008), United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005), United States v. Couto, 311 F.3d 179 (2nd Cir 2002), Hill v. Lockhart, 474 U.S. 52 (1985), James v. Cain, 56 F. 3d. 662 (5th Cir. 1995) and Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014). 17 It should be noted that the two cases which may be viewed as negative authority to this argument are Ex Parte De Los Reyes and U.S. v. 17 In Chaidez the Court held that Padilla’s rule was new for Teague purposes because the almost unanimous consensus among lower courts, until Padil

2015Under pre-Padilla law, immigration consequences were collateral consequences of a guilty plea, and “the constitutional guarantee to effective assistance of counsel does not extend to ‘collateral’ aspects of the prosecution; thus, a pre-Padilla plea is not involuntary even if counsel [was] deficient in advising his client regarding the immigration consequences.” Roldan, 418 S.W.3d at 147 ; see Jimenez, 987 S.W.2d at 888–89; Morrow, 952 S.W.2d at 536 ; Carpio- Cruz, 2014 WL 5316988 , at *2–3; Olvera, 2013 WL 4052467 , at *7.

2015Under pre-Padilla law, immigration consequences were collateral consequences of a guilty plea, and “the constitutional guarantee to effective assistance of counsel does not extend to ‘collateral’ aspects of the prosecution; 6 thus, a pre-Padilla plea is not involuntary even if counsel [was] deficient in advising his client regarding the immigration consequences.” Roldan, 418 S.W.3d at 147 ; see Jimenez, 987 S.W.2d at 888–89; Morrow, 952 S.W.2d at 536 ; Carpio- Cruz, 2014 WL 5316988 , at *2, 3; Olvera, 2013 WL 4052467 , at *7.

2015Accordingly, “a pre-Padilla plea is not involuntary even if counsel were deficient in advising his client regarding the immigration consequences.” Ex parte Roldan, 418 S.W.3d 143,146 (Tex. App. –Houston [14th Dist.] 2013, no pet.) (citing Ex parte Sudhakar, 406 S.W.3d 699, 702 (Tex. App.–Houston [14th Dist.] 2013, pet. ref’d)).

2015Accordingly, “a pre-Padilla plea is not involuntary even if counsel were deficient in advising his client regarding the immigration consequences.” Ex parte Roldan, 418 S.W.3d at 146 (citing Ex parte Sudhakar, 406 S.W.3d 699, 702 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)).

2015While the State points us to a four-factor approach to prejudice that our sister circuit in Houston has taken that assesses a defendant’s probability of success at trial, Ex parte Murillo, 389 S.W.3d 922, 928-31 (Tex.App.--Houston [14th Dist.] 2013, no pet.), abrogated on retroactivity grounds by Ex parte Chaidez, 133 S.Ct. at 1113 , and Ex parte De Los Reyes, 392 S.W.3d at 679 , we have previously rejected a solely merits-based prejudice analysis, recognizing that HN8 ″[d]eprivation of a trial″ stemming from a Padilla violation ″is a structural defect, which amounts to a serious denial of the

2015While the State points us to a four-factor approach to prejudice that our sister circuit in Houston has taken that assesses a defendant’s probability of success at trial, Ex parte Murillo, 389 S.W.3d 922, 928-31 (Tex.App.--Houston [14th Dist.] 2013, no pet.), abrogated on retroactivity grounds by Ex parte Chaidez, 133 S.Ct. at 1113 , and Ex parte De Los Reyes, 392 S.W.3d at 679 , we have previously rejected a solely merits-based prejudice analysis, recognizing that HN8 ″[d]eprivation of a trial″ stemming from a Padilla violation ″is a structural defect, which amounts to a serious denial of the

2013See Allen v. Hardy, 478 U.S. 255 , 258 n. 1, 106 S.Ct. 2878 , 92 L.Ed.2d 199 (1986) (“Final” means judgment of conviction rendered, the availability of appeal exhausted, and the time for petition for certiorari has elapsed.); see also Ex parte Luna, 401 S.W.3d 329 (Tex.App.-Houston [14th Dist.] 2013, no pet. h.) (not yet released for publication). 1 *316 We presume for the purpose of our analysis that the Padilla rule imposed in 2010 does not apply to the 2008 plea hearing.

2013See Allen v. Hardy, 478 U.S. 255 , 258 n. 1, 106 S.Ct. 2878 , 92 L.Ed.2d 199 (1986) (“Final” means judgment of conviction rendered, the availability of appeal exhausted, and the time for petition for certiorari has elapsed.); see also Ex parte Luna, 401 S.W.3d 329 (Tex.App.-Houston [14th Dist.] 2013, no pet. h.) (not yet released for publication). 1 *316 We presume for the purpose of our analysis that the Padilla rule imposed in 2010 does not apply to the 2008 plea hearing.

2013See Aguilar v. State, 375 S.W.3d 518 , 526 n.8 (Tex.App.--Houston [14th Dist.] 2012, no pet.)(ongoing deportation proceedings not necessary to assert Padilla claim); cf. Strickland, 466 U.S. at 689 , 104 S.Ct. at 2065 (adequacy of representation should not be evaluated with “the distorting effects of hindsight”). 8 If the case had been prosecuted as a state jail felony, Cisneros faced a possible jail sentence of 180 days up to two years.

2012See Aguilar, 375 S.W.3d at 526 n. 8 (ongoing deportation proceedings not necessary to assert Padilla claim); cf. Strickland, 466 U.S. at 690 , 104 S.Ct. 2052 (adequacy of representation should not be evaluated with “the distorting effects of hindsight”).

2015Accordingly, “a pre-Padilla plea is not involuntary even if counsel were deficient in advising his client regarding the immigration consequences.” Ex parte Roldan, 418 S.W.3d 143,146 (Tex. App. –Houston [14th Dist.] 2013, no pet.) (citing Ex parte Sudhakar, 406 S.W.3d 699, 702 (Tex. App.–Houston [14th Dist.] 2013, pet. ref’d)).

2015Under pre-Padilla law, immigration consequences were collateral consequences of a guilty plea, and “the constitutional guarantee to effective assistance of counsel does not extend to ‘collateral’ aspects of the prosecution; 6 thus, a pre-Padilla plea is not involuntary even if counsel [was] deficient in advising his client regarding the immigration consequences.” Roldan, 418 S.W.3d at 147 ; see Jimenez, 987 S.W.2d at 888–89; Morrow, 952 S.W.2d at 536 ; Carpio- Cruz, 2014 WL 5316988 , at *2, 3; Olvera, 2013 WL 4052467 , at *7.

2021In a Padilla claim, the applicant must show that “but for counsel’s errors, the applicant would have rejected the plea bargain and instead pursued a trial.” Ex [p]arte Torres, 483 S.W.3d 35, 46 (Tex. Crim.

2021In a Padilla claim, the applicant must show that “but for counsel’s errors, the applicant would have rejected the plea bargain and instead pursued a trial.” Ex [p]arte Torres, 483 S.W.3d 35, 46 (Tex. Crim.

2015Under pre-Padilla law, immigration consequences were collateral consequences of a guilty plea, and “the constitutional guarantee to effective assistance of counsel does not extend to ‘collateral’ aspects of the prosecution; thus, a pre-Padilla plea is not involuntary even if counsel [was] deficient in advising his client regarding the immigration consequences.” Roldan, 418 S.W.3d at 147 ; see Jimenez, 987 S.W.2d at 888–89; Morrow, 952 S.W.2d at 536 ; Carpio- Cruz, 2014 WL 5316988 , at *2–3; Olvera, 2013 WL 4052467 , at *7.

2015Under pre-Padilla law, immigration consequences were collateral consequences of a guilty plea, and “the constitutional guarantee to effective assistance of counsel does not extend to ‘collateral’ aspects of the prosecution; 6 thus, a pre-Padilla plea is not involuntary even if counsel [was] deficient in advising his client regarding the immigration consequences.” Roldan, 418 S.W.3d at 147 ; see Jimenez, 987 S.W.2d at 888–89; Morrow, 952 S.W.2d at 536 ; Carpio- Cruz, 2014 WL 5316988 , at *2, 3; Olvera, 2013 WL 4052467 , at *7.

2020Prejudice Under the second prong, in the context of a defendant’s claim that his counsel’s ineffective assistance rendered his plea involuntary, the defendant must demonstrate a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see Lee v. United States, 137 S. Ct. 1958, 1965 (2017) (holding that “Hill test” governs Padilla analysis); Miller, 548 S.W.3d at 499 ; Torres, 483 S.W.3d at 47 .

2020We note the Supreme Court decided Lee five years after Rodriguez filed her first application seeking habeas relief. 7 See Padilla v. Kentucky, 559 U.S. 356 (2010). 8 See Ex parte Rodriguez, 2013 WL 4773934 , at *3-4. 9 The record shows Rodriguez relied on Padilla when she filed her original petition seeking relief. 10 See Lee v. U.S., 137 S.Ct. 1958 (2017). 4 When the habeas court considered Rodriguez’s second application, it disagreed with her claim that Lee changed the law.

2020See Ex parte Garcia, 547 S.W.3d 228 , 229–30 (Tex. Crim.

2018Padilla v. Kentucky, 559 U.S. 356, 369 , 130 S.Ct. 1473, 1483 , 176 L.Ed.2d 284 (2010); Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex.Crim.App. 2013)(Padilla’s rule does not retroactively apply in habeas or similar proceeding to benefit defendant whose conviction was already final when Padilla was handed down); but see Ex parte Garcia, 547 S.W.3d 228, 230 (Tex.Crim.App. 2018)(affirmative misadvice claim, where attorney is under no duty to render immigration-consequence advice but renders incorrect advice to client, is cognizable and differs from Padilla’s imposition of affirmative duty to ad

2013See Aguilar v. State, 375 S.W.3d 518 , 526 n.8 (Tex.App.--Houston [14th Dist.] 2012, no pet.)(ongoing deportation proceedings not necessary to assert Padilla claim); cf. Strickland, 466 U.S. at 689 , 104 S.Ct. at 2065 (adequacy of representation should not be evaluated with “the distorting effects of hindsight”). 8 If the case had been prosecuted as a state jail felony, Cisneros faced a possible jail sentence of 180 days up to two years.

2013See Aguilar v. State, 375 S.W.3d 518 , 526 n.8 (Tex.App.--Houston [14th Dist.] 2012, no pet.)(ongoing deportation proceedings not necessary to assert Padilla claim); cf. Strickland, 466 U.S. at 689 , 104 S.Ct. at 2065 (adequacy of representation should not be evaluated with “the distorting effects of hindsight”). 8 If the case had been prosecuted as a state jail felony, Cisneros faced a possible jail sentence of 180 days up to two years.

2021See In re Fain, 83 S.W.3d 885 , 889 n.4 (Tex. App.—Austin 2002, no pet.); see also Tex. Civ.

2019See id. (concluding, in habeas proceeding stemming from marijuana possession case, that credibility determination supported denial of applicant’s Padilla claim).

2019Ex parte Beck, 541 S.W.3d 846, 852 (Tex.Crim.App. 2017); Ex parte Carpio-Cruz, No. 08-10-00240- 3 We need not address the merits of Issue Five dealing with the merits of the Padilla claim because the subsequent application bar resolves the question of whether the trial court could have granted relief on Aguilar’s Padilla claim. 5 CR, 2014 WL 5316988 , at *2 (Tex.App.—El Paso Oct. 17, 2014, no pet.).

2019Ex parte Beck, 541 S.W.3d 846, 852 (Tex.Crim.App. 2017); Ex parte Carpio-Cruz, No. 08-10-00240- 3 We need not address the merits of Issue Five dealing with the merits of the Padilla claim because the subsequent application bar resolves the question of whether the trial court could have granted relief on Aguilar’s Padilla claim. 5 CR, 2014 WL 5316988 , at *2 (Tex.App.—El Paso Oct. 17, 2014, no pet.).

2018However, that statute applies only to offenses committed on or after January 1, 2014.21 Padilla’s offenses were committed in 1994.22 17 Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). 18 See State ex rel.

2018“When a motion is properly filed and pending before a trial court, 12 Haile, 451 S.W.3d at 857–58 (quoting Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim.

2016See, e.g., United States v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir.2015) (“To obtain relief on- this type of claim, a petitioner must convince the. court that a decision to reject the plea bargain would have been rational under the circumstances.

2016Encarnacion v. State, 295 Ga. 660 , 763 S.E.2d 463, 466 (Ga.2014) (observing in context of Padilla claim that, with respect to the likelihood of deportation after a plea of guilty to an aggravated *46 felony, ‘‘[i]t'is riot enough for counsel to say ‘maybe’ when the correct advice is ‘almost certainly will’ ”). 6 .

2016Encarnacion v. State, 295 Ga. 660 , 763 S.E.2d 463, 466 (Ga.2014) (observing in context of Padilla claim that, with respect to the likelihood of deportation after a plea of guilty to an aggravated *46 felony, ‘‘[i]t'is riot enough for counsel to say ‘maybe’ when the correct advice is ‘almost certainly will’ ”). 6 .