STATE of New Mexico, Respondent-Appellee,
v.
Martin RAMIREZ, a/k/a Richard G. Sanchez, Petitioner-Appellant.
Court of Appeals of New Mexico.
*570 Gary K. King, Attorney General, William Lazar, Assistant Attorney General, Santa Fe, NM, for Appellee.
Dane Eric Hannum, Attorney at Law, Dane Eric Hannum, Albuquerque, NM, for Appellant.
The Appellate Law Office of Scott M. Davidson, Scott M. Davidson, Albuquerque, NM, Amicus Curiae for New Mexico Criminal Defense Lawyers Association.
OPINION
KENNEDY, Judge.
{1} Martin Ramirez, a/k/a Richard Sanchez, (Petitioner) appeals the district court's denial of his writ of coram nobis, which sought to vacate Petitioner's twelve-year-old conviction due to ineffective assistance of counsel under State v. Paredez,
I. BACKGROUND
{2} In 2009, Petitioner filed a writ of coram nobis, requesting the district court to vacate his 1997 misdemeanor convictions for possession of marijuana (under one ounce), possession of drug paraphernalia, and concealing identity. In his writ, Petitiоner contended that he was denied his right to effective assistance of counsel because his appointed counsel failed to instruct him about any immigration consequences of pleading guilty to the crimes as required by Paredez,
{3} At the hearing, Petitioner proffered evidence to prove that his attorney failed to instruct him about the immigration consequences and that this failure prejudiced him. The State did not contest thе evidence, arguing only that it was irrelevant and that Petitioner was not entitled to relief because Paredez was not retroactive. The district court, accordingly, found that Petitioner's proffer was "essentially admitted . . . [and] not disputed" and proceeded to hear argument on whether Paredez was retroactive. The district court subsequently denied Petitioner's request on the ground that Paredez did not apply retroactively. Petitioner now apрeals the district court's denial of his writ of coram nobis. We interpret such actions as motions pursuant to Rule 1-060(B) NMRA. State v. Barraza,
II. DISCUSSION
A. Paredez and Padilla Apply Retroactively
{4} In Paredez, the New Mexico Supreme Court held that "criminal defense *571 attorneys are obligated to determine the immigration status of their clients. If a client is a non-citizen, the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain."
{5} Although this is an issue of first impression in New Mexico, a number of state and federal appellate decisions have addressed the issue of retroactivity, causing a national split. A number have held that Padilla is retroactive. United States v. Orocio,
{6} New Mexico has adopted the approach set out by the United States Supreme Court in Teague v. Lane,
{7} Thus, the threshold issue here is whether the rule that attorneys must inform their clients about immigration consequences is new or old. "[A] court establishes a new rule when its decision is flatly inconsistent with the prior governing precedent and is an explicit overruling of an earlier holding." Id. ¶ 35 (internal quotation marks and citation omitted). This typically results in the court "break[ing] new ground or impos[ing] a new obligation on the [s]tates or the [f]ederal [g]overnment. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Kersey,
{8} In Paredez,
{9} Even while applying an individualized inquiry, the United States Supreme Court has stated that a defendant's right to effective assistance of counsel as stated in Strickland is a clearly established rule. In concluding that a defendant was entitled to relief for ineffective assistance of counsel on collateral review, the Supreme Court stated that "it can hardly be said that recognizing the right to effective counsel breaks new ground or imposes a new obligation on the [s]tates[.]" Williams v. Taylor,
{10} We conclude that Paredez and Padilla forge no new rule. Neither imposed a new obligation on counsel or directly contradicted precedent because defendants in New Mexico have been guaranteed effective assistance of counsel as set forth in Strickland since 1984. Both cases apply well-established principles regarding the effective assistance of counsel to a set of facts that have taken on a rising trajectory of importance to criminal jurisprudence. Strickland is a rule designed for application to a myriad of factual contexts, and we conclude that its application in this context fails to contradict existing norms or forge new precedent in such a way that would require us to consider it a new rule. As the Padilla Court pointed out in citing a number of sources that date back prior to Petitioner's conviction, "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation."
{11} The State argues that both Paredez and Padilla broke with longstanding precedent. The majority of the State's argument relies on the fact that other state and federal circuit courts had precedent that did not require defendants to be instructed about *573 immigration consequences. To the extent that the State cites out-of-state case law for the proposition that Padilla broke with longstanding precedent, we consider New Mexico precedent more persuasive and, as we explain below, the New Mexico cases that the State relies on are not applicable. With regard to New Mexico precedent, the State contends that Paredez contradicted established law in State v. House,
{12} To the extent that the State argues Paredez and Padilla overrule cases, which indicate that counsel does not have a duty to instruct a client about collateral consequences of a plea agreement, we view the departure as reflecting that collateral consequences are more robust in some varieties, such as deportation that affeсts a very broad scope of interests. Padilla stated that "distinction [of collateral consequences] is . . . ill-suited to evaluating a Strickland claim concerning the specific risk of deportation[.]"
{13} The State also contends that "Padilla established a `new rule' by categorically creating a claim for relief where none existed before." The State argues that "[a] court adjudicating the first prong of a Paredez-Padilla claim does not have to engage in the highly deferential review of evidence [that] Strickland commands for other types of ineffective assistance claims." The State cites Strickland in arguing that "[i]t is unnecessary to rеview counsel's performance `from counsel's perspective at the time,' to avoid `the distorting effects of hindsight[.]'" We point out that the highly deferential review to which the State refers is limited to the Strickland analysis of trial tactics pursued by counsel. Lytle v. Jordan,
{14} Other aspects of the Padilla opinion indicate that the Supreme Court did not create a new rule. For example, the absence of a Teague analysis in Padilla alone indicates that this is not a new rule. In Teague, the United States Supreme Court stated that
implicit in the retroactivity approach . . . is thе principle that habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two exceptions we have articulated.
{15} Moreover, the Padilla court made clear references to the opinion's application to collateral proceedings attacking guilty pleas. In addressing Kentucky's concern that requiring defense counsel to provide information about immigration consequences would open the floodgates to collateral appeals of finalized convictions, the United States Supreme Court explained why it doubted a flood would follow in the wake of Padilla. The Supreme Court compared this issue to its holding in Hill v. Lockhart, requiring counsel to advise clients about their parole eligibility before pleading guilty.
[P]leas are less frequently the subject of collateral challenges than convictions obtained after a trial. . . . The nature of relief secured by a successful collateral challenge to a guilty pleaan opportunity to withdraw the plea and proceed to trialimposes its own significant limiting principle:
Those who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the plea. Thus, a different calculus informs whether it is wise to challenge a guilty plea in a habeas proceeding because, ultimately, the challenge may result in a less favorable outcome for the defendant, whereas a collateral challenge to a conviction оbtained after a jury trial has no similar downside potential.
Id. at 1485-86. From this, we conclude that the Supreme Court contemplated Padilla's application on collateral attacks in making its decision.
{16} Based on the above analysis, we conclude that Paredez and Padilla do not establish a new rule and should be applied retroactively. We now apply Paredez and Padilla to the case at bar.
B. Application of Paredez and Padilla to the Facts of This Case
{17} A reviewing court must look at the individual facts of the case to establish what type of advice about immigration consequenсes should have been given to the defendant. Both misinforming and failing to inform a defendant of the immigration consequences of a plea are objectively unreasonable and constitute deficient performance. Paredez,
{18} In this case, Petitioner was facing definite deportation at the time of his conviction. Petitioner was convicted of several charges, including possession of drug paraphernalia on January 6, 1997. This date is significant because about nine months prior to his guilty plea, Congress removed any discretionary relief available to those who commit any offense related to a controlled substance, other than the possession of thirty grams or less of marijuana, by enacting the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, *575 § 440(d)(2), 110 Stat. 1214 (1996).[1] If Petitioner had been convicted prior to April 24, 1996, when the AEDPA became effective, the Attorney General would have had the authority to grant discretionary relief from deportation under the 1952 Immigration and Nationality Act. Padilla,
{19} Thus, it was clear that, at the time of his conviction, Petitioner had entered into a plеa agreement that would almost certainly guarantee his deportation from the United States. We conclude that Petitioner should have been given advice about these likely consequences before entering into a plea agreement with the State.
{20} In his motion, Petitioner alleged that his counsel failed to inform him about any immigration consequences. A plea to time served in a magistrate court for оffenses that are minor, under most other circumstances than this, makes Petitioner's story believable, and the State and the district court apparently took these facts at face value. At the hearing, Petitioner repeated the proffer of evidence laid out in his motion to prove that his attorney failed to instruct him about the immigration consequences and that this failure prejudiced him. When asked to respоnd to Petitioner's proffer, the State stated that it "defer[red] to what the [c]ourt wants to do. [T]he State will argue again that the [c]ourt had reviewed this previously [in a different case] and . . . rul[ed] that [Paredez] is not retroactive. As such, the testimony would be irrelevant." The district court responded that the testimony would not be irrelevant, but the court had nonetheless "found in reading the materials [provided by Petitioner that] there doesn't seem to be any factual dispute that [Petitioner's alleged] facts exist." The court then found that Petitioner's proffer was "essentially admitted [and] not disputed."
{21} We conclude that the district court found at the hearing that Petitioner had not received advice about immigration consequences from his attorney, and he was prejudiced because of this failure. To the extent the State argues that Petitioner failed to establish a prima facie case for ineffective assistance of counsel sufficient to justify a hearing, we determine that the State has waived this argument because, at the hearing, the State failed to contest the factual basis to Petitioner's claim of ineffective assistance of counsel. Thus, Defendant has met the requirements set forth in Paredez,
III. CONCLUSION
{22} We reverse the district court and hold that Paredez and Padilla are retroactive. In this case, Petitioner should have been advised that deportation would almost certainly result from his conviction of possession of drug paraphernalia. Because Petitioner has completely established ineffective assistance of counsel and prejudice, we remand this case to the district court for Petitioner to have an opportunity to withdraw his plea.
{23} IT IS SO ORDERED.
*576 WE CONCUR: MICHAEL D. BUSTAMANTE and CYNTHIA A. FRY, Judges.
NOTES
Notes
[1] This section of the AEDPA amended the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1997) to state that the Attorney General's discretionary relief "shall not apply to an alien who is deportable by reason of having committed any criminal offense covered in [S]ection 1251(a)(2)(A)(iii), (B), (C), or (D) of this title[.]" One of the deportable offenses that was no longer afforded discretion included "a violation of . . . any law or regulation of a [s]tate, the United States, or a foreign country relating to a controlled substance . . . other than a single offense involving possession for one's own use of [thirty] grams or less of marijuana." 8 U.S.C. 1251(A)(2)(B)(i) (1997).