Ex Parte Silvio Bosco LUNA
2013 Tex. App. LEXIS 3206
| Tex. App. | 2013Background
- Luna, a Nicaragua citizen, became a permanent resident in 2000 and pled guilty to theft (a state jail felony) in August 2000 under a plea agreement.
- He received restitution, a fine, court costs, and 250 hours of community service, plus five years of community supervision; he did not appeal and completed supervision in 2005.
- In 2010, Luna allegedly consulted an immigration attorney who advised that his prior felony would prevent renewal of residency and could lead to removal.
- In 2011, Luna filed a habeas corpus petition arguing his trial counsel failed to inform him of immigration consequences, rendering the plea involuntary under Padilla v. Kentucky.
- A hearing featured testimony from immigration-law expert Grace, Luna’s mother Chamorro, and Luna’s trial attorney Contreras, with conflicting views on what was advised.
- The trial court denied relief; on appeal, the court held Padilla does not retroactively apply to Luna’s pre-Padilla conviction, and Luna failed to show prejudice under Strickland.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| retroactivity of Padilla in collateral review | Luna | State | Padilla not retroactive; Chaidez controls |
| prejudice under Strickland for pre-Padilla counsel | Luna | Contreras would have ensured valid plea/defense | No reasonable probability of different outcome; Luna not prejudiced |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (prescriptions for immigration consequences of guilty plea)
- Chaidez v. United States, 133 S. Ct. 1103 (2013) (Padilla not retroactive on collateral review)
- Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) (deference to trial court factual findings in habeas review)
- Hill v. Lockhart, 474 U.S. 52 (1985) (Strickland standard for ineffective assistance in guilty-plea context)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance; prejudice requires probability of different outcome)
- Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997) (pre-Padilla standard; collateral immigration consequences are non-constitutional)
- Ex parte Moody, 991 S.W.2d 856 (Tex. Crim. App. 1999) (prejudice assessment in plea context)
- Aguilar v. State, 375 S.W.3d 518 (Tex. App.—Houston [14th Dist.] 2012) (retroactive application of Padilla in Texas)
- United States v. Ramirez, 367 F.3d 274 (5th Cir. 2004) (definition of conviction for immigration purposes; collateral considerations)