Ex Parte Enrique P. Gomez v. State, 14-16-00499-CR

Background

In 2008 Enrique P. Gomez pleaded guilty to aggravated assault with a deadly weapon; the trial court deferred adjudication and placed him on six years’ community supervision.
At plea time Gomez was a lawful permanent resident for fewer than five years; under federal immigration law his plea constituted a conviction subjecting him to removal.
In 2012 immigration authorities initiated removal proceedings based solely on the guilty plea.
Gomez filed an initial state habeas application in 2012 invoking Padilla v. Kentucky; he alleged both that counsel failed to advise (omission) and (in affidavits/testimony) that counsel told him completing probation would avoid immigration problems (affirmative misadvice).
The habeas court found counsel warned Gomez in writing and orally about immigration consequences and that counsel was effective; the First Court of Appeals later affirmed the denial as Padilla was held nonretroactive.
Gomez filed a subsequent Article 11.072 habeas application in 2016 asserting (1) affirmative misadvice, (2) Guerrero is unconstitutional, and (3) Martinez/Trevino make the application equivalent to a direct appeal; the habeas court denied relief and this appeal followed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether affirmative misadvice claim may be considered in subsequent Article 11.072 application	Gomez: Claim was not properly presented earlier and thus is available now; cites authorities allowing collateral attack for affirmative misadvice	State: Claim was previously available and litigated; habeas court found no affirmative misadvice and effective counsel	Court: Denied — claim was available and in fact litigated previously; court defers to habeas findings that counsel warned Gomez, so no relief
Whether Guerrero is unconstitutional and can provide new legal basis for relief	Gomez: Guerrero wrongly treats noncitizens differently and misapplies retroactivity principles; thus it should be overruled and allow relief	State: Guerrero is binding precedent from Court of Criminal Appeals; lower courts must follow it; federal immigration distinctions are for Congress	Court: Denied — petitioner cites no valid new legal basis; lower courts must follow Guerrero; federal immigration policy is not for this forum
Whether Martinez/Trevino render the subsequent habeas equivalent to a direct appeal (excusing prior availability)	Gomez: Martinez/Trevino allow equitable treatment so the claim can be raised now as if on direct appeal	State: Martinez/Trevino do not allow re-raising claims that were available and litigated in an earlier state habeas under Article 11.072	Court: Denied — Martinez/Trevino do not permit litigating previously available and actually litigated claims in a later Article 11.072 application
Standard of review for habeas judge findings	Gomez: (implicit) challenges legal availability; seeks de novo review of legal issues	State: Habeas court is sole factfinder; credibility determinations get deference; pure legal questions reviewed de novo	Court: Applied deference to factual findings (credibility) and concluded legal bases were not newly available; affirmed denial

Key Cases Cited

Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise noncitizen client of deportation risks; failure can be ineffective assistance)
Chaidez v. United States, 133 S. Ct. 1103 (2013) (Padilla does not apply retroactively to cases on collateral review)
State v. Guerrero, 400 S.W.3d 576 (Tex. Crim. App. 2013) (Padilla applies to noncitizens but not retroactively; distinguishes state deferred adjudication from federal immigration treatment)
Martinez v. Ryan, 566 U.S. 1 (2012) (equitable exception allowing cause to excuse procedural default when ineffective assistance of post-conviction counsel prevented raising trial-ineffectiveness claims)
Trevino v. Thaler, 133 S. Ct. 1911 (2013) (extends Martinez to certain state procedural frameworks where direct appeal is an unlikely vehicle for ineffectiveness claims)