Duque, Ex Parte Jose E.
PD-1344-15
| Tex. App. | Nov 17, 2015Background
- Jose E. Duque, a lawful permanent resident and Honduran national, pleaded guilty at his first court appearance after only 30–60 minutes consultation with appointed counsel; counsel advised accepting a two-year deferred-adjudication plea without investigating immigration consequences.
- Duque later was placed in removal proceedings and ordered removed; he lost permanent-resident status and was separated from his U.S. citizen wife and four U.S. citizen children.
- Duque filed a habeas application under Tex. Code Crim. Proc. art. 11.072 alleging ineffective assistance for failure to advise about deportation consequences (Padilla claim); the trial judge found some testimony credible but recommended denial.
- The First Court of Appeals affirmed, concluding the prejudice prong of Strickland was dispositive and applying a four-factor test to find it would not have been rational for Duque to reject the plea or insist on trial.
- Duque petitions the Texas Court of Criminal Appeals for discretionary review, arguing the COA’s four-factor prejudice analysis is inconsistent with Strickland/Padilla because it failed to apply a totality-of-the-circumstances inquiry and ignored the reasonableness of rejecting the plea to pursue immigration-favorable alternatives.
Issues
| Issue | Plaintiff's Argument (Duque) | Defendant's Argument (State / COA) | Held (Court of Appeals) |
|---|---|---|---|
| Whether the COA applied the correct prejudice standard for a Padilla-based ineffective-assistance claim | COA used an overly narrow four-factor test and failed to apply the Strickland totality-of-the-circumstances approach | COA treated prejudice as whether it would be rational to insist on trial, focusing on guilt, defenses, immigration focus, and plea vs. trial penalties | COA held prejudice not shown and affirmed denial of habeas relief (no reversible Strickland prejudice) |
| Whether it was reasonable for Duque to reject the State’s plea to continue negotiating for an immigration-friendly plea | Duque argues he reasonably could have rejected the offer (no time pressure), pursued alternatives (e.g., misdemeanor plea) or insisted on trial to avoid deportation; counsel’s failure to advise prevented that | State argued the plea was reasonable and trial risks outweighed potential immigration concerns; COA emphasized merits-based factors | COA concluded it would not have been rational to reject the plea or continue negotiations; no prejudice found |
| Whether deferred adjudication in this case effectively foreclosed immigration-safe options | Duque contends deferred adjudication operated as a conviction for immigration purposes, making it not a viable option and rendering counsel’s advice especially harmful | State/COA viewed the plea as offered legitimately and relied on admonishments and plea context; COA did not treat deferred adjudication as dispositive of prejudice | COA did not find that the deferred-adjudication nature rendered counsel’s advice prejudicial under its analysis |
| Whether the COA’s approach conflicts with other appellate decisions and Supreme Court precedent requiring individualized inquiry | Duque points to other Texas COAs and federal circuits advocating totality-of-circumstances and recognition that negotiation (not only trial) can show prejudice | State relies on COA’s established four-factor application in this district | COA applied its four-factor test; Duque argues this creates intra-state conflict and warrants discretionary review by the Court of Criminal Appeals |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise about deportation consequences; prejudice assessed by whether it was rational to reject plea absent advice)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test; prejudice requires showing outcome would differ absent counsel error and totality-of-circumstances analysis)
- Missouri v. Frye, 132 S. Ct. 1399 (2012) (effective assistance applies during plea negotiations; prejudice can include failing to obtain a better plea)
- Hill v. Lockhart, 474 U.S. 52 (1985) (Strickland framework applied to guilty-plea challenges)
- INS v. St. Cyr, 533 U.S. 289 (2001) (deportation consequences can make plea rejection rational; immigration consequences central to plea decisions)
- Roe v. Flores-Ortega, 528 U.S. 470 (2000) (counsel’s duty to consult about appeal when reasonable defendant would want to appeal)
- Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014) (prejudice may be shown where counsel’s errors prevented pursuing continued plea negotiations)