Opinion
No. 05-12-00028-CR
05-14-2012
EX PARTE MAHER HADDAD
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. WX10-90024-N
OPINION
Before Chief Justice Wright and Justices Bridges and Myers
Opinion By Chief Justice Wright
Maher Haddad appeals the trial court's order denying his third application for writ of habeas corpus. In a single issue, appellant asserts the trial court erred in denying relief upon his application because he proved he received ineffective assistance of counsel in connection with his 1995 guilty plea to delivery of cocaine. We affirm the trial court's order. Background
The background of the case is taken from appellant's application for writ of habeas corpus and the trial court's findings of fact and conclusions of law. We received written verification from the court reporter that the habeas corpus proceeding was not recorded.
Appellant was charged with delivery of cocaine in an amount less than twenty-eight grams with the alleged offense occurring on or about April 5, 1994. On September 22, 1995, appellant entered a non-negotiated guilty plea to the charge. The trial judge assessed punishment at ten years' imprisonment, probated for ten years, and a $1,500 fine. Appellant completed his community supervision and was discharged on September 22, 2005. Appellant is now being held by United States immigration officials, subject to deportation as a result of the conviction.
In his habeas application, appellant asserted his trial attorney "failed to advise him on the immigration and removal consequences of his guilty plea." In an accompanying affidavit, appellant stated "my trial counsel did not advise me that, if I pled guilty to the offense charged in the indictment, I would be subject to being deported at any time, even after I had completed probation. Remaining within the United States, where my family resides, was important enough to me that, had I been properly advised, I would not have pleaded guilty, but would have insisted on going to trial."
The trial court found that appellant had raised the same issue previously in his 2005 writ application. The trial court also found that appellant failed to show trial counsel was ineffective in not advising him of the deportation consequences of his plea. The trial court reasoned that at the time of the plea, deportation was considered a collateral consequence and counsel's failure to advise of that consequence did not amount to ineffective assistance of counsel. The trial court denied relief on this third habeas corpus application.
The trial court attached as an exhibit to its order a copy of its findings of fact on appellant's first application for writ of habeas corpus. In its 2005 findings, the trial court found that appellant's trial counsel was "a trustworthy individual and that the statements made by him in his affidavit are worthy of belief . . . are true, correct and dispositive of the allegation presented by [appellant] relative to [trial counsel]." The trial court further found it accepted appellant's guilty plea after it "thoroughly and properly admonished [appellant] as to the meaning and consequences of said plea." The trial court appended copies of trial counsel's affidavit and appellant's plea papers as exhibits to the 2005 findings. Counsel's affidavit states appellant "was fully admonished of the consequence of his plea, by affiant . . ." The trial court's written admonishments advised appellant: "If you are not a citizen of the United States of America, a plea of guilty or nolo contendere before me for the offense charged may result in your deportation, the exclusion from admission to this country, or a denial of naturalization under Federal Law." Appellant signed the admonishment form acknowledging with his signature that "my lawyer has explained to me all of the admonitions given by the Court in this document."
The history set out in the trial court's findings of fact and conclusions of law states that appellant filed his first application in 2004, which was denied on the merits on September 13, 2005. Appellant filed his second application in 2008, which was denied on the merits on July 8, 2008. This Court's records do not show appellant appealed either of those orders.
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Applicable Law
An applicant for habeas corpus relief must prove his claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing the trial court's order denying habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We will uphold the trial court's ruling absent an abuse of discretion. See id. We afford almost total deference to the trial court's determination of the historical facts that the record supports. See id. We likewise defer to the trial court's application of the law to the facts, if the resolution of the ultimate question turns on an evaluation of credibility and demeanor. See id. If the resolution of the ultimate question turns on an application of legal standards, we review the determination de novo. See id. To obtain habeas corpus relief on the ground of ineffective assistance of counsel, appellant must show (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. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). A decision to enter a guilty plea based upon erroneous advice from counsel is not voluntary. Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012); Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). To prove his guilty plea was involuntary due to ineffective assistance of counsel, appellant 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, appellant would have insisted on going to trial rather than accepting the offer and pleading guilty. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Moussazadeh, 361 S.W.3d at 691; Harrington, 310 S.W.3d at 458.
To satisfy his burden under the first prong of the test, appellant must overcome a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance and might be considered sound trial strategy. Strickland, 466 U.S. at 689; Harrington, 310 S.W.3d at 458. Appellant bears the burden of proving counsel was ineffective by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The reasonableness of counsel's performance is judged under prevailing professional norms. Strickland, 466 U.S. at 688. Our review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813. Under the second prong of the test, a reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.
After appellant finished serving his community supervision, the United States Supreme Court issued an opinion holding that under certain circumstances, advice regarding a non-citizen client's potential deportation may fall within the ambit of the Sixth Amendment's right to counsel. See Padilla v. Kentucky, 559 U.S. ---- , 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010). When the consequences are "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 1483. When, however, federal immigration law clearly specifies that the defendant will be deported, counsel must affirmatively and correctly advise the defendant about immigration consequences of the plea. Id. Analysis
In his sole issue, appellant contends the trial court erred by holding he received effective assistance of counsel even though trial counsel never advised him of the deportation consequences of his plea as required by Padilla. Rather, the trial court erroneously held that counsel's effectiveness was to be judged by pre-Padilla law.
The State responds appellant waived his issue by failing to secure a reporter's record of the habeas hearing; the issue was or should have been litigated on one of appellant's prior two writ applications; appellant's writ application is barred by the doctrine of laches; appellant's counsel and the trial court both admonished him that he could be deported; Padilla should not be applied retrospectively to appellant's 1995 plea hearing, especially in light of the fact appellant's present predicament arises from intervening changes in immigration laws; appellant has not shown he would not have pleaded guilty had he been advised he could be deported; appellant cannot use state court proceedings, dismissed and set aside in the trial court's 1995 order terminating his community supervision, as a means to frustrate the aims of federal immigration laws; and balancing the parties' interests should result in appellant's plea being accorded a "great measure of finality."
Appellant's counsel recalls a record was made of the habeas hearing. The matter is not a subject of any finding of fact by the trial court. Because it is not essential to the Court's resolution of this appeal, we decline to conclude appellant has waived review by failing to present a sufficient record to justify his claims.
As the State's own authorities point out, prior to Padilla, admonishments about the deportation consequences of a plea were considered a collateral matter, and could not support a claim of ineffective assistance of counsel. See, e.g., Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (concluding the Sixth Amendment guarantee of effective assistance of counsel did not apply to collateral consequences of a plea such as deportation). Thus, before Padilla, appellant could not have brought his claim of ineffective assistance for failure to advise him of the immigration consequences of his plea. Thus, we cannot agree with the State that appellant's issue was or should have been litigated in his 2005 writ application complaining of ineffective assistance of trial counsel. Likewise, we cannot conclude appellant is barred by laches from asserting his claim when he could not have known changes in immigration law would cause his unforseen deportation seventeen years after his plea was taken. See Ex parte Moreno, 245 S.W.3d 419, 429 (Tex. Crim. App. 2008) (concluding doctrine of laches would not bar reconsideration of application for writ of habeas corpus when the applicant objected at trial, raised the issue in an application for writ of habeas corpus, and intervening decisions of the United States Supreme Court rendered the original decision objectively unreasonable). The State presents no findings that it has been prejudiced from the delay in bringing the claim. See Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999).
We agree, however, with the State's contention that Padilla does not control the outcome of this case in light of changes to immigration laws since the date of appellant's plea. Appellant's issue rests on the applicability of Padilla. Both parties present argument regarding whether Padilla should be applied retroactively to cases decided before its issuance. In this case, however, we need not decide whether Padilla applies retroactively.
As the State points out, a critical factor in granting relief and remand to the defendant in Padilla was the changes in federal immigration law that made deportation "virtually inevitable for a vast number of noncitizens convicted of crimes." See Padilla, 130 S.Ct. at 1478. In discussing the history of the nation's immigration laws, the Supreme Court noted that although narcotics offenses had been deportable offenses since 1922, the actual deportation of aliens was subject to ameliorative provisions in federal law allowing trial judges and the Attorney General to intervene and avoid deportations in many cases. See id. at 1478-80. Although the authority of trial judges to suspend deportation proceedings was eliminated in 1990, the Attorney General's discretion to grant discretionary relief from deportation was not eliminated until 1996. See id. at 1480 (citing INS v. St. Cyr, 533 U.S. 289, 296 (2001) for the proposition that the Attorney General had exercised authority to prevent the deportations of over 10,000 aliens during the five-year period before 1996).
In discussing the 1996 amendments and the impact of the changes in immigration law on non-citizens convicted of deportable offenses, the Supreme Court noted: "Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable . . . ." See Padilla, 130 S.Ct. at 1480; see also 8 U.S.C.A. § 1227 (a)(2)(B)(i) (West Supp. 2011) (providing for the removal from the United States of all aliens violating state or federal controlled substance laws except for a single violation involving possession of a small quantity of marijuana).
In Padilla, the defendant was convicted, on his plea of guilty, on October 4, 2002. See Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky 2008), rev'd, 130 S.Ct. 1473 (2010). Thus, in Padilla, counsel's dereliction was in failing to advise the defendant, pleading after enactment of the new immigration reform measures, that he faced virtually certain deportation where the immigration consequences of his plea were "straightforward and succinct."
In contrast to Padilla, appellant received his plea advice on or before September 22, 1995, before the stricter immigration laws made deportation a virtual certainty. See Padilla, 130 S.Ct. at 1480; see also Commonwealth v. Clarke, 460 Mass. 30, 949 N.E.2d 892 (2011) (concluding Padilla should be applied retroactively to counsel's plea advice rendered after passage of the 1996 immigration law). Appellant presents no evidence or authority showing he was subject to virtually certain deportation in 1995 when trial counsel advised him and appellant entered his guilty plea. To the contrary, the record supports the State's view that appellant was properly admonished, by both trial counsel and the trial court, that he might be deported if he entered a plea of guilty. Padilla did not impose, nor shall we, an obligation on counsel to foresee in 1995 how federal immigration laws might apply to appellant's circumstances in 2012. On the record presented, we cannot conclude appellant has shown trial counsel's representation fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88; Harrington, 310 S.W.3d at 458.
Because it found appellant could not meet the first prong of Strickland, the trial court did not make an express finding of fact regarding whether appellant could show he would have proceeded to trial but for counsel's ineffective assistance. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 130 S.Ct. 3411 (2010) (concluding that when a defendant fails to satisfy a prong of the Strickland standard, the trial court need not consider the other prong). Accordingly, we will not consider the State's contention that appellant did not provide sufficient evidence to satisfy the second, prejudice prong of the Strickland standard.
On the evidence presented, we cannot conclude appellant has shown he received ineffective assistance of counsel with regard to the immigration consequences of his guilty plea. See Harrington, 310 S.W.3d at 458; Thompson, 9 S.W.3d at 813. Accordingly, we cannot conclude the trial court abused its discretion in denying appellant's third application for writ of habeas corpus. See Peterson, 117 S.W.3d at 819.
We affirm the trial court's order denying relief on appellant's application for writ of habeas corpus.
CAROLYN WRIGHT
CHIEF JUSTICE
Do Not Publish
Tex. R. App. P. 47
120028F.U05
Court of Appeals Fifth District of Texas at Dallas
EX PARTE MAHER HADDADJUDGMENT
No. 05-12-00028-CR
Appeal from the 195th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. WX10- 90024-N).
Opinion delivered by Chief Justice Wright, Justices Bridges and Myers 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 May 14, 2012.
CAROLYN WRIGHT
CHIEF JUSTICE