Torres, Ex Parte Manuel
Lily Stroud, Assistant District Attorney, El Paso, TX, Lisa C. McMinn, State‘s Attorney, for The State.
OPINION
Alcala, J., delivered the opinion for a unanimous Court.
This case comes to us on discretionary review of a direct appeal addressing a trial court‘s denial of habeas relief that had been requested pursuant to Padilla v. Kentucky. See
I. Background
Appellant is a Mexican national whose parents brought him to the United States as a young two- or three-year-old child. In 2006, appellant obtained lawful permanent resident (LPR) status, which gave him legal permission to reside and work in this country. In February 2011, appellant, on two occasions, went to Whataburger restaurants and stole money from the cash registers. At the time of his arrest for those offenses, appellant was found to be in possession of cocaine and marijuana. He was subsequently charged with the felony offenses of robbery and possession of cocaine.2 In July 2011, appellant entered into a plea bargain with the State.
Several days after the plea hearing, appellant was re-arrested on separate charges. At that point, Immigration and Customs Enforcement (ICE) became aware of appellant‘s plea to the robbery and possession offenses, and it placed a detainer on him that would prevent him from being released from law-enforcement custody. ICE subsequently transferred appellant to a federal immigration detention facility, and it initiated removal proceedings against him.
Pursuant to the provisions in Code of Criminal Procedure Article 11.072, appellant filed an application for a post-conviction writ of habeas corpus, in which he challenged the validity of his guilty plea on the basis of ineffective assistance of counsel.3 Specifically, applicant alleged that trial counsel was ineffective for having failed to properly advise him that “a plea of guilty on a charge involving a controlled substance would automatically place [him] in removal proceedings due to his lawful permanent residence status.” He further asserted that counsel‘s failure to properly advise him harmed him in that “he is facing deportation and is under removal proceedings[.]” In sworn affidavits accompanying his original and amended applications, appellant alleged that, although counsel was aware that he was not a citizen, counsel never told him that his plea would result in mandatory deportation. He stated,
Under [the] advice of my attorney, I took the plea because I was told that I would not be convicted of these cases so long as I did what the Court told me to do. On the day of the hearing the Court also told me that I would not be convicted so long as I did everything that was asked of me. My attorney did not advise me that if I pleaded guilty, even as a deferred adjudication, I would be put in deportation proceedings.
He further stated that the “first and only time” that counsel discussed potential immigration problems with him was after he was re-arrested for a subsequent offense, at which point counsel told him that an immigration hold had been placed on him “because [he] had pleaded,” and, at that point, counsel advised him to “contact an immigration attorney regarding the immigration case.”
The habeas court held a hearing on appellant‘s claim. Because he was in federal immigration custody, appellant did not attend the hearing. After obtaining an affidavit from appellant‘s trial counsel, the State called him as a witness.4 In his
[t]hat he had two felonies and that either one of them could result in his deportation and that‘s why it was—it was important for him to hire an immigration lawyer, because the public defender‘s office couldn‘t help him on that part of the case; that this [case] was not going to end by his plea. . . . I did tell him that the federal government is much more serious than they have been in the past about, [deportation]. I didn‘t say that it was going to happen the next day. But as far as how imminent that it could be, I just impressed on him the need to hire an advocate to represent him on the immigration side, since these were serious felony charges, either one of which could result in his deportation . . . under federal law.
Counsel indicated that he had discussed appellant‘s immigration status with him at least twice during the case. He denied representing to appellant that he would not be deported. He further denied ever telling appellant that, if he successfully completed his term of community supervision, the guilty plea would be “off his record,” instead suggesting that he told appellant that, although the charges would be “dismissed,” there would “always be a record of [his] arrest, indictment, guilty plea and probated sentence as part of [his] permanent record.” Counsel indicated that he had reviewed the plea papers with appellant, including that portion of the plea papers that stated, “If you are not a citizen of the United States, by pleading guilty or nolo contendere to this offense, you may be deported, excluded from future admission into the United States or denied naturalization under federal law.”
On cross-examination by habeas counsel, trial counsel acknowledged that he had never independently reviewed the Immigration and Nationality Act (INA) to determine whether the offenses to which appellant was pleading guilty were deportable offenses, and he further conceded that he did not know what constituted a deportable offense under the INA, other than what he had learned at legal seminars. Counsel acknowledged that, although he had advised appellant that he could be deported as a result of his guilty plea, he did not affirmatively tell appellant that he would be deported because, in his experience, a person can sometimes plead guilty to an aggravated felony and never actually be deported.
The trial court made multiple factual findings determining that trial counsel did not perform deficiently. Its subsequent written findings of fact were as follows:
- “[Counsel] testified that he discussed immigration consequences with the applicant approximately three times prior to the applicant‘s guilty plea.”
- “[Counsel] testified that he told the applicant that a plea to either of the charges he faced could subject him to deportation.”
- “[Counsel] testified that he told the applicant that a plea of guilty . . . was not the end of the proceedings because he still had to face the immigration authorities to address deportation consequences.”
- “[Counsel] testified that he told the applicant to retain an advocate to represent him before the immigration authorities to address deportation consequences.”
- “This Court finds the testimony of [counsel] to be credible. This Court believes [counsel‘s] testimony over that of the applicant‘s . . . affidavit[.]”
- “This Court resolves any [factual] doubt against the applicant.”
- “This Court does not believe the applicant‘s allegation that he was not told of immigration consequences by his trial counsel.”
In line with these factual findings, the trial court determined in its written conclusions of law that appellant had failed to carry his burden of establishing that trial counsel performed deficiently. It stated,
- “This Court concludes that the applicant‘s trial counsel fully advised the applicant of the immigration consequences of his guilty plea in this case as required by Padilla v. Kentucky [.]”
- “This Court finds that [counsel] provided effective assistance of counsel to the applicant. Thus, the applicant‘s claims that [counsel] provided deficient performance are without merit.”
The trial court‘s findings and conclusions addressing whether appellant had shown that he was prejudiced by counsel‘s performance were much shorter and appear to have been contingent on the court‘s determination that appellant was adequately advised by his attorney. The court stated, “This Court finds that the applicant was well aware of the immigration consequences before entering his plea of guilty. Thus, he has failed to show that he was prejudiced in any way.”
On appeal, the court of appeals reversed the trial court‘s ruling, and it granted appellant relief. See Torres, 2014 WL 1168929, at *1. With respect to deficient performance, the court of appeals agreed with appellant‘s contention that trial counsel had failed to “clearly and properly warn him of the impending immigration consequences of his plea, as required by the Sixth Amendment.” Id. at *4. Relying on the Supreme Court‘s decision in Padilla, the court of appeals reasoned that, because the offenses to which appellant pleaded guilty were automatically deportable offenses, counsel “had a duty to stress that pleading guilty to those crimes and receiving deferred adjudication would
The court of appeals also found adequate evidence giving rise to a finding of prejudice, observing that appellant “stated in his affidavit that he accepted the plea deal because trial counsel advised him that he would not have to go to jail and that the deferred adjudication meant the charges would eventually be dismissed.” Id. at *6. The fact that trial counsel explained those circumstances of pleading guilty “but did not inform [appellant] that the plea would subject [him] to mandatory removal” was a factor that “weigh[ed] heavily” in the court‘s analysis. Id. The court further considered that appellant was a lawful permanent resident, that he was a native English speaker, and that he had resided in the United States since he was a small child. Id. It determined that appellant had “sufficiently alleged that he would have taken alternate courses of action,” such as negotiating with the State to secure an “immigration-neutral plea agreement,” attempting to delay his plea until 2013, at which point he may have been eligible for some form of immigration relief, or, alternatively, going to trial. Id. Based on the foregoing considerations, the court held that, in view of the totality of the circumstances, appellant met his burden in establishing prejudice. Id. at *7.
II. Analysis
We agree with the court of appeals‘s determination that trial counsel failed to adequately advise appellant regarding the “presumptively mandatory” deportation consequence of his guilty plea to the felony offenses of robbery and possession of cocaine. Padilla, 559 U.S. at 369, 130 S.Ct. 1473. We, however, further conclude that the court of appeals erred by determining that appellant has made an adequate showing of prejudice, based on his failure to demonstrate a reasonable probability that, but for counsel‘s errors, he would have rejected the plea bargain and instead pursued a trial. After we review the applicable law, we explain each of these conclusions in turn below.
(A) Applicable Law
In Padilla v. Kentucky, the Supreme Court expanded the scope of the
Agreeing with Padilla‘s contention as to the matter of counsel‘s deficient performance, the Supreme Court held that “constitutionally competent counsel would have advised [Padilla] that his conviction for drug distribution made him subject to automatic deportation.” Id. at 360, 130 S.Ct. 1473. In reaching this conclusion, the Court observed that, under the current federal immigration laws, the “drastic measure” of deportation “is now virtually inevitable for a vast number of noncitizens convicted of crimes.” Id. In particular, it noted that, “[u]nder contemporary law, if a noncitizen has committed a removable offense . . . his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.” Id. at 363-64, 130 S.Ct. 1473 (citing
There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.
Id. at 369, 130 S.Ct. 1473. After concluding that Padilla had adequately alleged constitutional deficiency to satisfy the first prong of Strickland, the Court remanded the case to the state court to conduct a prejudice analysis under Strickland‘s second prong in the first instance. Id. at 374, 130 S.Ct. 1473.
(B) Trial Counsel‘s Performance was Deficient
We begin by addressing the State‘s third ground for review, in which it asserts that the court of appeals erred in its conclusion that appellant satisfied the first prong of Strickland. See Torres, 2014 WL 1168929, at *4-5. Disagreeing with the State‘s contention, we hold that appellant‘s counsel failed to adequately advise appellant regarding the “presumptively mandatory” deportation consequence of his plea of guilty, in violation of counsel‘s duties under Padilla. See Padilla, 559 U.S. at 368-69, 130 S.Ct. 1473. We, therefore, agree with the court of appeals‘s holding that appellant made an adequate showing of deficient performance. See Torres, 2014 WL 1168929, at *4-5.
Here, as in Padilla itself, the deportation consequences of appellant‘s guilty plea were “truly clear,” and, thus, counsel‘s duty to advise appellant regarding those consequences was “equally clear.” Padilla, 559 U.S. at 369, 130 S.Ct. 1473. Under federal law, the controlled-substance offense to which appellant pleaded guilty—possession of cocaine in the amount of one to four grams—is a deportable offense. See
Counsel‘s advice failed to adequately warn appellant of the gravity of the deportation consequences of his guilty plea that made him “subject to automatic deportation.” See id. at 360, 130 S.Ct. 1473. As is reflected by counsel‘s habeas testimony, counsel advised appellant to “consult an immigration lawyer” because of the “possibility of immigration consequences” resulting from his pleas of guilty to the two offenses, “either one of which could result in his deportation.” Even deferring to the habeas court‘s factual finding that counsel‘s testimony was credible in this respect and that appellant was thus aware of some risk of deportation, counsel‘s advice fell short of Padilla‘s requirement that counsel give clear and accurate advice regarding the “presumptively mandatory” deportation consequence of his guilty plea under these circumstances. See id. at 369, 130 S.Ct. 1473. In short, it was not enough for counsel to advise appellant that he might be deported; rather, counsel was required to inform appellant that, under these circumstances, his deportation was a virtual legal certainty. See id.5 And, although it is true, as the State
(C) Appellant Has Not Proven Prejudice
In its first and second grounds for review, the State challenges both (1) the standard employed by the court of appeals to determine whether a defendant has been prejudiced by an attorney‘s deficient advice in this context, and (2) the application of the standard to the facts of this case in light of appellant‘s failure to allege or prove that he would have availed himself of a trial if he had been properly advised about the certain deportation consequence from his pleas of guilty. We conclude that the proper standard for determining prejudice is the one set forth in Hill, which requires an applicant to show a reasonable probability that counsel‘s errors affected the outcome of the plea proceedings, in the sense that, but for counsel‘s errors, the applicant would have rejected the plea bargain and instead pursued a trial. See Hill, 474 U.S. at 59, 106 S.Ct. 366. Thus, we reject that it is appropriate to presume prejudice in this context, as it appears that the court of appeals may have suggested. We also conclude that, in applying the appropriate standard to the facts of this case, the court of appeals erred by failing to defer to the habeas court‘s implicit fact findings that appellant‘s claims lacked credibility and that appellant failed to plead or prove that, under the circumstances, he would have rejected the plea bargain and proceeded to trial had he been properly advised, or that it would have been rational for him to do so. We, therefore, sustain the State‘s first and second grounds for review.
(1) Appellant Must Demonstrate A Reasonable Probability That, But For Counsel‘s Errors, He Would Have Rejected the Plea Bargain and Pursued a Trial
In its petition for discretionary review, the State contends that the court of appeals erred by incorrectly applying a presumption of prejudice to appellant‘s case. See Torres, 2014 WL 1168929, at *6 (rejecting a “solely merits-based prejudice analysis” that focuses on the likelihood of success at trial, and instead suggesting that “deprivation of a trial stemming from a Padilla violation is a structural defect, which . . . demands a presumption of prej-udice“).
Our analysis in this context is guided by longstanding precedent that generally applies to a collateral attack on a guilty plea under Strickland. See Strickland, 466 U.S. at 695, 104 S.Ct. 2052; Hill, 474 U.S. at 59, 106 S.Ct. 366; Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997). In Hill, the Supreme Court considered a defendant‘s habeas claim that, prior to his entering a plea of guilty to charges of theft and murder, his court-appointed attorney had failed to accurately advise him regarding his parole eligibility date. Hill, 474 U.S. at 53, 106 S.Ct. 366. After holding that the familiar two-part Strickland test would apply in this situation, the Supreme Court rejected Hill‘s claim on the basis that he had failed to make the requisite showing of prejudice. Id. at 59-60, 106 S.Ct. 366, 370. The Court stated that, in the context of an ineffective-assistance claim as it relates to a defendant‘s acceptance of a plea bargain and entry of a guilty plea, the relevant prejudice inquiry “focuses on whether counsel‘s constitutionally ineffective performance affected the outcome of the plea process.” Id. at 59, 106 S.Ct. 366, 370. It further explained, “In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. Applying that standard to Hill‘s case, the Court reasoned that he had failed to meet it, observing that he “did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial.” Id. at 60, 106 S.Ct. 366, 370. The Court further reasoned that Hill had “alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.” Id.
This Court has regularly applied the Hill prejudice test in analogous situations involving a post-conviction attack on the validity of a guilty plea based on counsel‘s alleged error in a plea proceeding. See Morrow, 952 S.W.2d at 536 (explaining that, “[w]hen a defendant enters his plea upon the advice of counsel,” the proper prejudice inquiry is “whether there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial“) (citing Hill, 474 U.S. at 60, 106 S.Ct. 366); see also Ex parte Barnaby, 475 S.W.3d 316, 324 (Tex.Crim.App.2015); Ex parte Moody, 991 S.W.2d 856, 858 (Tex.Crim.App.1999); Ex parte Pool, 738 S.W.2d 285, 286 (Tex.Crim.App.1987). We now expressly hold that the Hill standard appropriately governs the prejudice inquiry in the context of an ineffective-assistance-of-counsel claim under Padilla.
We observe that, although it did not directly address the question of prejudice in Padilla, the Supreme Court did
Having addressed the proper prejudice standard that applies in this context, we observe that, although the court of appeals initially indicated that it was applying a presumption of prejudice, it, in reality, does not appear to have done so. See Torres, 2014 WL 1168929, at *6-7. Instead, the appellate court appears to have fully considered the evidence in the record and evaluated whether that evidence was adequate to give rise to a finding of prejudice under what was essentially the correct standard. See id. at *6 (correctly observing that “the defendant must demonstrate that but for counsel‘s performance, he would have availed himself of the proceeding in question,” and holding on the merits that appellant presented adequate facts to show prejudice). Because the State additionally challenges the court of appeals‘s assessment as to the merits of prejudice, we now review that issue.
(2) Appellant Has Failed To Present Facts that Adequately Demonstrate Prejudice
In reaching its conclusion that appellant was prejudiced by his attorney‘s failure to fully advise him of the deportation consequences of his guilty plea, the court of appeals considered appellant‘s affidavit, which the court described as indicating that appellant “accepted the plea deal because trial counsel advised him that he would not have to go to jail and that deferred adjudication meant the charges would eventually be dismissed.” See id. at *6-7. It considered that appellant had lawful permanent resident status; that he was a native English speaker; and that he had resided in the United States since he was a small child. It further determined that he “sufficiently alleged that he would have taken alternate courses of action” had counsel properly advised him, such as delaying his plea bargain and pursuing a plea deal that would have afforded him the opportunity to receive discretionary immigration relief or, alternatively, taking the case to trial. See id. We disagree with this analysis. In view of the totality of the record, and deferring to the habeas court‘s factual findings, we conclude that appellant has failed to demonstrate that, but for counsel‘s errors, he would have rejected the plea bargain and pursued a trial. His claim of prejudice, therefore, fails.
We observe, at the outset, that appellant failed to expressly allege, either in his pleadings to the habeas court or in his sworn affidavits, that, had he known the full immigration consequences of his guilty plea, he would have instead decided to plead not guilty and avail himself of a trial. See Hill, 474 U.S. at 59-60, 106 S.Ct. 366. Although the court of appeals was persuaded that appellant‘s affidavits provided substantial evidence of prejudice, we note that his statements in those affidavits make no mention of any special concern for potential immigration consequences, instead appearing to focus on a desire to avoid conviction and jail time. It is true that writ counsel asserted, both at the habeas hearing and in his brief on discretionary review, that, with proper advice, appellant would have pursued other options, including a possible trial. But, in response to these assertions, the State contends, and we agree, that the pleadings and attorney‘s arguments are alone an inadequate basis for granting habeas relief under the circumstances in this case. See Guerrero, 400 S.W.3d at 583 (explaining that sworn pleadings are an inadequate
In its analysis, the court of appeals emphasized the availability of several options that, in its view, appellant might have pursued had he been properly advised. For example, it speculated that, had appellant been able to delay his plea deal for two years, and had he during that time been able to negotiate an immigration-neutral plea deal with the State, he might have become eligible for some form of discretionary relief from deportation. But, with respect to these options, aside from the possibility of a trial, the record is devoid of any facts to suggest that such options were available or viable as a means of preventing appellant‘s deportation. In particular, the record does not indicate that any other more favorable plea offer was made to appellant, or that any such offer would have been available through further negotiations. And, regarding the suggestion that appellant could have delayed his plea until he could either secure a more favorable immigration-neutral plea deal and/or qualify for discretionary immigration relief, the record is similarly devoid of any facts to suggest that such avenues were actually available to appellant under these circumstances. The fact that appellant was charged with two serious felony offenses makes the availability of such options seem unlikely. In short, this record contains inadequate facts to give rise to a finding of a reasonable probability that, but for counsel‘s erroneous advice, appellant would have pursued a trial or otherwise would have received some other more favorable outcome to the plea proceeding.
The habeas court‘s factual findings deeming credible the habeas testimony of appellant‘s trial counsel and finding appellant‘s assertions lacking in credibility do not support appellant‘s arguments that he was prejudiced. The trial court‘s conclusion that relief should be denied is supported by the facts that appellant had confessed to two felony offenses; that his and his family‘s primary concern at the time of his arrest and plea was “getting him out of jail“; and that appellant disregarded counsel‘s advice to seek counsel from an immigration attorney for specific information about how his residency status would be impacted by his plea. Based on these facts, the record supports a conclusion that appellant did not place any special emphasis on avoiding deportation consequences as a result of his plea. Rather, on the contrary, the record makes it appear unlikely that, had appellant been correctly advised that he was subject to mandatory deportation, as opposed to the advice he received regarding a mere risk of deportation, the correct advice would have been the tipping point that would have caused him to reject the plea bargain and avail himself of a trial, thereby risking imprisonment and eventual deportation following a conviction at trial.
Regarding whether it would have been rational under the circumstances for appellant to reject the plea bargain in this case, we observe, as the court of appeals did, that appellant had strong ties to this country that could, at least in theory, cause a rational individual to roll the dice and pursue a trial. Conversely, it also appears that the State had a strong case against appellant on two serious felony offenses, with appellant having confessed to those offenses, and with the record being devoid of any suggestion that appellant had a possible
II. Conclusion
Although we agree with the court of appeals‘s holding as to the deficient-performance prong of a Strickland analysis in this case based on counsel‘s failure to provide accurate advice regarding the truly clear deportation consequence of appellant‘s guilty plea, we disagree with its assessment as to the matter of prejudice, in view of the lack of any evidence from appellant as to how he was prejudiced and in the absence of any credible facts in the record showing that, but for counsel‘s erroneous advice, appellant would have rationally decided to reject the plea bargain and instead pursue a trial. We, therefore, reverse the judgment of the court of appeals and reinstate the trial court‘s judgment denying relief.