Summary
noting that judicial admonishments such as those present here "strongly indicate that appellant was aware of the immigration consequence of his plea, and that he was not prejudiced by his counsel's failure to inform him of the same."
Summary of this case from Ex parte AjaoOpinion
No. 05-17-01135-CR
02-21-2018
EX PARTE JOSE GUSTAVO CASTANEDA
On Appeal from the 15th Judicial District Court Grayson County, Texas
Trial Court Cause No. 067247-A
MEMORANDUM OPINION
Before Justices Lang-Miers, Brown, and Boatright
Opinion by Justice Boatright
Jose Gustavo Castaneda appeals the trial court's order denying relief on his post-conviction application for writ of habeas corpus. In his sole issue on appeal, appellant contends the trial court erred in denying his writ application because trial counsel did not advise him of the immigration consequences of his plea and had he been so advised, he would not have entered a guilty plea. We affirm.
BACKGROUND
Appellant, a resident alien, was indicted for possession of methamphetamine in an amount of one gram or more but less than four grams. Trial counsel negotiated a plea bargain for appellant under which appellant would plead guilty to the lesser included offense of attempted possession of methamphetamine in an amount less than one gram in exchange for an agreed punishment of one year confinement in county jail, probated for two years, and a $500 fine.
Before entering his guilty plea, appellant received written admonishments from the trial court informing him that "[i]f you are not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged against you in this case will result in your deportation, your exclusion from admission to this country, or the denial of naturalization under federal law." Further down in the plea papers, however, in a section styled "Defendant's Acknowledgment and Waiver of Rights," the defendant acknowledged merely that he "may" be deported if he was convicted.
During the plea hearing, the trial court asked appellant through an interpreter whether he was a United States citizen. Appellant replied that he was a resident. The trial court then admonished appellant "[d]o you understood that by not being a U.S. citizen, these proceedings will result in your deportation, your exclusion from admission into this country, and the denial of naturalization under federal law?" Appellant replied, "[y]es." After the trial court finished admonishing appellant and accepted his plea, trial counsel questioned appellant as follows:
[Counsel]: Jose, do you recall when you first came in, we talked about your immigration status?
[Appellant]: Yes.
[Counsel]: And I advised you that I don't know anything about immigration law.
[Appellant]: Yes.
[Counsel]: And that you were responsible for going to talk to an immigration lawyer about what would happen if you ended up being found guilty.
[Appellant]: Yes.
[Counsel]: You have made your decisions based upon what you figured out about immigration status, correct?
[Appellant]: Yes.
[Counsel]: And you are not relying on anything that I told you because I didn't tell you anything about immigration, did I?
[Appellant]: Yes.
[Counsel]: So, you want to go forward with this today?
[Appellant]: Yes.
The prosecutor then cross-examined appellant about his immigration situation, asking him if he understood that a conviction "could" result in the revocation of his resident alien status, his deportation, and denial of reentry into the United States. Appellant affirmed that he understood. The prosecutor then commented, "I'm not saying those things are going to happen, but those are possibilities." Appellant then replied, "That will be fine. Thank you, yes."
The trial court accepted appellant's guilty plea and assessed the agreed sentence. Subsequently, while serving his term of community supervision, appellant was detained by Immigration and Customs Enforcement and is being held for deportation.
Appellant filed an application for writ of habeas corpus alleging that he received ineffective assistance of counsel and he is actually innocent of the offense. In his affidavit, appellant alleged trial counsel told him that the guilty plea would not affect his residency and that he would have proceeded to trial if he had known his residency in the United States was at issue. He averred he has owned a business for twenty-three years and would not have put himself into position to lose everything he had worked for "without at least trying to get acquittals in these matters." Appellant's son filed a similar affidavit also averring that trial counsel had not discussed the immigration consequences of appellant's plea. Appellant attached a copy of trial counsel's purported notes showing trial counsel asked an immigration lawyer to contact and advise appellant. The State attached to its response an affidavit from trial counsel, a transcript of the plea hearing, and an affidavit from a narcotics investigator with an attached report. In his affidavit, trial counsel admitted he did not advise appellant about immigration consequences. Instead, he advised appellant that he was not an immigration attorney and told appellant that "before accepting the State's plea offer, he should satisfy himself as to the immigration implications of being convicted of this drug case." Trial counsel averred that appellant had assured him prior to the plea hearing that appellant had made his own independent investigation of the immigration consequences of his plea. Trial counsel denied the accusations that he had advised appellant that the guilty plea would carry no consequences for appellant's immigration status.
Appellant challenges only the ineffective assistance issue on appeal.
The trial court denied appellant's request for a hearing on the writ application and entered written findings of fact and conclusions of law. Among other findings, the trial court found that trial counsel's affidavit was credible while the affidavits of appellant and appellant's son were not credible; that trial counsel had negotiated appellant's charges down to a misdemeanor of attempted possession; that trial counsel had discussed appellant's rights, options, and the plea agreement with him, but had not advised him about immigration matters; that trial counsel had advised appellant to seek advice from an immigration attorney and that he should satisfy himself about the immigration implications before accepting the plea offer; that appellant had asserted both before the plea and on the record during the plea hearing that his decision was based on his independent investigation into the immigration consequences of the case and not based on anything trial counsel had told him regarding immigration; that the trial court had admonished appellant that he would be deported if he pleaded guilty; and that appellant's decision to accept the plea bargain was made voluntarily and knowingly. The trial court concluded that appellant's claim should be rejected because he failed to prove trial counsel gave him erroneous advice or was ineffective. The trial court did not reach any conclusions of law regarding whether appellant had shown prejudice.
APPLICABLE LAW
In reviewing the trial court's ruling on a habeas claim, we review the record evidence in the light most favorable to the trial court's ruling and must uphold the trial court's ruling absent an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). An applicant for post-conviction habeas corpus relief bears the burden of proving his or her claim by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016). When the underlying conviction results in community supervision, an ensuing post-conviction writ must be brought pursuant to article 11.072 of the code of criminal procedure. Id. at 42. In reviewing the trial court's order denying habeas corpus relief on an article 11.072 writ, the trial court is the sole finder of fact, and "we afford almost total deference to a trial court's factual findings when they are supported by the record, especially when those findings are based upon credibility and demeanor." Id. We apply the same deferential review whether the factual findings are based upon affidavits or on live testimony. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). If, however, the trial court's determinations are questions of law, or mixed questions of law and fact that do not turn on an evaluation of witnesses' credibility and demeanor, then we review them de novo. Ex parte Weinstein, 421 S.W.3d 656, 664 (Tex. Crim. App. 2014).
To obtain habeas corpus relief on the ground of ineffective assistance of counsel, an applicant must meet the two-pronged Strickland standard showing (1) counsel's performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). In the context of a complaint about counsel's plea advice, an applicant must show (1) counsel's plea advice did not fall within the wide range of competence demanded of attorneys in criminal cases and (2) there is a reasonable probability that, but for counsel's deficient performance, the applicant would have insisted on going to trial rather than accepting the offer and pleading guilty. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010).
The applicant's claim fails unless the applicant proves both prongs of the Strickland standard by a preponderance of the evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). Failure to prove either prong defeats a claim of ineffective assistance. Id . Both prongs are mixed questions of law and fact, but analysis of the second prong frequently involves subsidiary fact questions, some of which may turn upon witness credibility and demeanor. Riley, 378 S.W.3d at 458.
Regarding the first prong, inaccurate advice regarding a non-citizen client's potential deportation may constitute ineffective assistance. Padilla, 559 U.S. at 367-69. When the law is "not succinct and straightforward," counsel's duty is to advise the defendant of the possibility that the plea may carry a risk of adverse immigration consequences. Id . at 369; Torres, 483 S.W.3d at 44. When the deportation consequence of violating a law is truly clear, counsel must give correct advice. Padilla, 559 U.S. at 369; Torres, 483 S.W.3d at 44. The federal law at issue in Padilla and Torres was Title 8, section 1227 of the U.S. Code. Padilla, 559 U.S. at 368; Torres, 483 S.W.3d at 44. Under that statute, the deportation of an alien convicted of a violation or attempted violation of an offense involving a controlled substance other than possession of a small amount of marijuana is presumptively mandatory. Padilla, 559 U.S. at 368-369 (citing 8 U.S.C. § 1227(a)(2)(B)(i)). Counsel is required to advise a client that deportation under that statute is a virtual legal certainty. Torres, 483 S.W.3d at 45. Advising a client to consult an immigration attorney because of the possibility of immigration consequences resulting from a plea falls short of Padilla's requirement. Id .
Turning to the second prong, appellant must show that but for trial counsel's errors, there exists a reasonable probability that he would have rejected the plea and pursued a trial. Torres, 483 S.W.3d at 47. As part of his proof, appellant must "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 559 U.S. at 372. Among the factors we may consider in evaluating appellant's showing of prejudice are the evidence supporting his assertions, the likelihood of success at trial, the risks he faced at trial, the benefits he received under the plea bargain, and the trial court's admonishments. See Torres, 483 S.W.3d at 48 (noting that these factors have been considered by other courts, including the court of appeals in U.S. v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014)). Appellant need not show that he would have prevailed at trial. Id.
ANALYSIS
The federal immigration law at issue in this case is the same one in Padilla and Torres. Here, trial counsel admitted that he did not offer appellant any immigration advice and instructed him to contact an immigration lawyer and satisfy himself about the immigration consequences of the plea. Appellant has therefore shown a violation of the first prong of the Strickland standard. Torres, 483 S.W.3d at 44-45. In our inquiry into the second prong of Strickland, we will analyze appellant's evidence of prejudice under the factors identified in Kayode. Torres, 483 S.W.3d at 48.
Evidence Supporting Appellant's Assertions
Appellant raises three contentions to support his assertion that he suffered prejudice. First, he contends "[t]here were issues with the case that could have been brought forward at [trial], thereby creating a reasonable probability that Appellant would have gone to trial." Appellant does not specify what "issues with the case" could have been raised at trial nor how the limited evidence before the trial court would have benefited him.
Appellant next contends the record shows he was concerned about his immigration status because trial counsel told him he needed to seek immigration advice as a result of his questions. He points out that the current charge was his first offense and he speculates that a probated sentence was a likely result even if he had lost at trial. However, appellant points to no evidence that he would have received a probated sentence.
Lastly, appellant contends that he has a business and family in the United States, that he is the sole source of support for his family, and that he stands to lose everything if he is deported. He supports this assertion with an allusion to "his affidavit," but provides no citation to the record. Presumably, he is referring to the affidavit he submitted with his July 31, 2017 Application for Writ of Habeas Corpus. In that affidavit, he states that he is a business owner in Sherman, Texas, where he has conducted business for 23 years, and that he will lose his business if he loses his residency. The affidavit does not mention his family. Appellant bears the burden of proof to show his entitlement to relief by a preponderance of the evidence. Torres, 483 S.W.3d at 43. His affidavit provides evidence that he owned a business, but no evidence of his family, and no evidence that he would lose either of them if he were deported. Accordingly, we cannot conclude that appellant has shown his entitlement to relief by a preponderance of the evidence.
Likelihood of Success at Trial
Appellant does not claim that he would have been successful at trial, and he does not attempt to identify evidence that might have helped prevent a conviction. The evidence provided by appellant and the State does not suggest a high likelihood of success at trial.
The arresting officer's report shows appellant was arrested after a traffic stop in which methamphetamine and heroin were recovered from the truck he was driving. A female passenger had methamphetamine and drug paraphernalia in her purse. The passenger stated to the arresting officer on the scene that her purse was her only property in the truck. The officer searching the truck found a plastic container with "a crystalline rock substance" near the driver's seatbelt latch and a "black tar" substance in a box of spark plugs under the driver's seat. The spark plug box also contained two Cialis pills. A package of plastic baggies was discovered under the passenger's seat and a digital scale was found in the truck's tool box. Appellant denied possessing any of the drugs. Appellant admitted he owned the truck and worked for himself but he also said other employees used the truck. In connection with the writ application, the passenger filed an unsworn statement taking "full responsibility for everything" and stating that appellant "did not have anything on him" and he "does not mess with drugs at all." Appellant's affidavit filed in support of the writ did not address the facts of the criminal case.
The State attached to its writ response a report prepared by narcotics investigator Dustin Stacks detailing the results of his interview with the passenger after her arrest. Stacks reported that the passenger had been a subject of his investigation for her involvement in distributing methamphetamine and heroin. She told Stacks that appellant had given her the methamphetamine found in her purse and she had been smoking methamphetamine just prior to the traffic stop. The passenger told Stacks that appellant possessed the heroin in the truck but intended to give it to her. The passenger told Stacks that she had introduced appellant to her methamphetamine and heroin suppliers so he could buy drugs for her to use.
In its findings of fact on the actual innocence question, the trial court concluded the passenger's new unsworn statement alleging she possessed the drugs was not credible. The trial court further found the statement contradicted the passenger's accounts at the scene and during her interview with Stacks. Appellant does not offer any defense at all against the record evidence.
His only apparent defense would be to deny that he possessed the drugs found in his truck and blame either the passenger or others with access to the truck. To prove unlawful possession of a controlled substance when a defendant is not in exclusive possession of the vehicle where the controlled substance was found, the State must show that (1) defendant exercised control, management, or care over the controlled substance; (2) defendant knew the material was a controlled substance; and (3) defendant's connection to the controlled substance was more than just fortuitous. Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011). The passenger's statement that appellant gave her methamphetamine and the recovery of a "crystalline rock substance" near the driver's seat belt latch suggests the State could prove the first Blackman prong; the passenger's statement that she had smoked some of the methamphetamine next to him in the truck just before the traffic stop is evidence supporting the second prong; and her statement that she had introduced appellant to drug suppliers so he could buy drugs for her use is evidence of the third. On the limited evidence presented, we cannot conclude appellant has shown a likelihood of success at trial.
Risks of Trial and Benefits of the Plea Bargain
Appellant was indicted for possession of methamphetamine in an amount of one gram or more but less than four grams. This offense would have been a third-degree felony punishable by imprisonment for between two and ten years and up to a $10,000 fine. TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115(c) (West 2017 & Supp. 2017); TEX. PENAL CODE ANN. § 12.34 (West 2011). Under the plea bargain agreement appellant negotiated with the State, the offense was reduced to attempted possession of methamphetamine in an amount less than one gram. The reduction in the level of offense allowed appellant to plead guilty to a Class A misdemeanor with no possibility of prison time. TEX. HEALTH & SAFETY CODE ANN. § 481.115(b); TEX. PENAL CODE ANN. §§ 12.21, 15.01(d). Thus, had he gone to trial, appellant would have taken the risk of receiving a ten-year prison sentence. He avoided that risk by taking the plea bargain.
Nevertheless, we recognize that "an alien defendant might rationally be more concerned with removal than with a term of imprisonment." Torres, 483 S.W.3d at 48; accord Padilla, 559 U.S. at 368. Where the totality of circumstances indicate that a defendant has placed a particular emphasis on the immigration consequences of a plea in deciding whether or not to accept it, this may constitute a circumstance that weighs in favor of a finding of prejudice. Torres, 483 S.W.3d at 48-49. In his brief, appellant contends that he has a business and family in this country and that he stands to lose everything when he is deported. He reasons that the risk of trial was worth preventing that loss, and that if he had known about the immigration consequences of his plea, he would have gone to trial. However, appellant points to no record evidence of the degree to which he was interested in maintaining business and family ties by avoiding imprisonment on the one hand, or deportation on the other. Now that he has agreed to a plea that allows him to avoid prison time, he understandably wants to avoid deportation too, but the cases that must guide our decision require more. Nothing in the record indicates that appellant has been more concerned with removal than imprisonment. Padilla, 559 U.S. at 368; Torres, 483 S.W.3d at 48. Likewise, nothing in the record shows that he has placed a particular emphasis on his immigration status. Torres, 483 S.W.3d at 48-49.
Judicial Admonishments
Appellant was repeatedly admonished about the immigration consequences of his plea. The record shows that the trial court admonished appellant, both orally and in writing, that he would be deported if he entered his guilty plea. Appellant orally affirmed his understanding of the trial court's deportation admonishment. A separate representation in the plea papers acknowledged appellant's understanding that he might be deported, and the prosecutor suggested appellant "could" be deported and deportation was a possibility. These judicial admonishments strongly indicate that appellant was aware of the immigration consequence of his plea, and that he was not prejudiced by his counsel's failure to inform him of the same. See United States v. Batamula, 823 F.3d 237, 240-41 (5th Cir. 2016), cert. denied, 137 S.Ct. 236 (2016) (emphasizing strength of deportation judicial admonishments in multi-factor analysis concluding defendant was not prejudiced by counsel's deficient deportation advice); see also Ex parte Victorio, No. 05-11-01008-CR, 2012 WL 286803, at *5-6 (Tex. App.—Dallas Feb. 1, 2012, pet. ref'd) (not designated for publication) (concluding no showing of prejudice for counsel's failure to deliver accurate deportation advice when trial court delivered missing information in written admonishments and trial court made adverse finding on applicant's credibility); Ex parte Sanchez, No. 14-13-00765-CR, 2014 WL 3051278, at *5-6 (Tex. App.—Houston [14th Dist.] July 3, 2014, no pet.) (not designated for publication) (concluding applicant failed to show prejudice from counsel's incorrect deportation advice when record showed admonishment exchange in which she affirmed she wanted to plead guilty even if it meant she would be deported, plea agreement for deferred adjudication with no prison time, she was deportable whether she pleaded guilty or not, and she had no plausible defense).
Nevertheless, appellant contends that the record shows he was concerned about his immigration status because trial counsel told him he needed to seek immigration advice. The credible evidence in the record on the matter—trial counsel's affidavit—does not support appellant's contention. Trial counsel averred that he urged appellant to conduct an independent investigation into the immigration consequences of the plea because trial counsel was not an immigration attorney. Trial counsel's affidavit sheds no light on the extent of appellant's questions or concerns about his immigration status. Moreover, during the plea colloquy, appellant did not express any concern about his immigration status, affirmed his understanding that he would be deported, and affirmed that he conducted his own investigation about the deportation consequences of his plea. Neither party offered evidence regarding what immigration advice appellant may have received from an immigration attorney, nor was any evidence offered showing what other steps, if any, he may have taken as part of his independent investigation. Appellant's failure to express any concern about the deportation consequences of his plea despite repeated warnings from the trial court and the prosecutor weighs against finding prejudice. Ex parte Obi, 446 S.W.3d 590, 598-99 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).
Although appellant averred that trial counsel advised him that his residency would be unaffected by his convictions and that he would have proceeded to trial if he knew his residency in the United States was at risk, the trial court found appellant's affidavit not credible, and we are bound by the trial court's finding. Torres, 483 S.W.3d at 43. Therefore, viewed in the light most favorable to the trial court's ruling, Kniatt, 206 S.W.3d at 664, the record shows appellant knew at the time he entered his plea that he would be deported and thus understood the deportation consequences of his plea.
Conclusion on Prejudice
Appellant bears the burden to prove his claim to habeas relief by a preponderance of the evidence. Torres, 483 S.W.3d at 43. He has failed to provide sufficient evidence supporting his assertions, he has not attempted to show that he would likely succeed at trial, he has not tried to demonstrate that he placed a particular emphasis on the immigration consequences of his plea in deciding whether or not to accept it, and he had not addressed the import of the judicial admonishments. Accordingly, he has failed to satisfy his burden.
The United States Supreme Court's recent decision in Lee v. United States, 137 S.Ct. 1958, (2017), supports our conclusion. In Lee, uncontested evidence in the record showed deportation was the determinative issue in Lee's decision to accept the Government's plea offer. Id. at 1967. When the trial court informed Lee that he could be deported and asked if knowing that affected his decision on his plea, Lee informed the trial court that the possibility of deportation did affect his decision and turned to his counsel for advice. Id. at 1968. Lee only proceeded with the plea when his attorney offered him false assurance that the trial court's statement was a "standard warning." Id . Other evidence in the record showed Lee had lived in the United States for almost thirty years, had established two businesses, was the only available family caretaker for his two elderly parents who were United States citizens, he had no connection to his native country to which he had not returned since leaving for the United States as a small child, and the difference between his guilty plea and what he would receive at trial was only "a year or two more of prison time." Id . at 1968-69. Thus, the Supreme Court concluded Lee's claim that he would not have accepted the plea agreement had he known it would lead to deportation was "backed by substantial and uncontroverted evidence," thus satisfying the prejudice standard to establish ineffective assistance of counsel. Id . at 1968-69.
In contrast to Lee, during his plea hearing, appellant offered no contemporaneous expressions of concern about immigration consequences and orally affirmed his understanding that he would be deported. Appellant's counsel did not provide any misinformation that contributed to appellant's decision to accept the plea offer. Although appellant, like Lee, is a long-time resident of the United States and a business owner, we are left to speculate about the extent of his business, the circumstances of his family, and what connections he may maintain to his native country. Unlike Lee, appellant faced the possibility of considerable prison time if convicted of the indicted charge of possession of methamphetamine, especially in light of the recovery of narcotics paraphernalia indicating possible distribution from appellant's truck and the passenger's allegations that she had introduced him to her narcotics suppliers and he was actively delivering methamphetamine and heroin to her.
Under the totality of the circumstances, we conclude appellant has not shown by a preponderance of the evidence that there exists a reasonable probability that, but for trial counsel's failure to advise him about the immigration consequences of his plea, he would have rejected the plea and pursued a trial. Torres, 483 S.W.3d at 47. Because appellant failed to prove the second prong of the Strickland standard, his complaint about trial counsel's ineffective assistance fails. Perez, 310 S.W.3d at 893. Having failed to show prejudice arising from trial counsel's ineffective assistance, we cannot conclude appellant has shown that the trial court abused its discretion in denying him habeas relief. Torres, 483 S.W.3d at 43; Kniatt, 206 S.W.3d at 664. We overrule appellant's sole issue.
We affirm the trial court's order denying relief on appellant's application for writ of habeas corpus.
/Jason Boatright/
JASON BOATRIGHT
JUSTICE Do Not Publish
TEX. R. APP. P. 47 171135F.U05
JUDGMENT
On Appeal from the 15th Judicial District Court, Grayson County, Texas
Trial Court Cause No. 067247-A.
Opinion delivered by Justice Boatright. Justices Lang-Miers and Brown participating.
Based on the Court's opinion of this date, the order of the trial court denying relief on appellant's application for writ of habeas corpus is AFFIRMED. Judgment entered this 21st day of February, 2018.