Ex Parte Ibraham Mustafa Altobji ( 2015 )

Opinion issued February 5, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-01008-CR
———————————
EX PARTE IBRAHAM MUSTAFA ALTOBJI, Appellant
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case No. 1188377B
MEMORANDUM OPINION
Appellant, Ibraham Mustafa Altobji, appeals from the trial court’s denial of
his application for the writ of habeas corpus. We affirm.
Background
Altobji pleaded guilty on June 10, 2009, to the state jail felony of theft. See
TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A) (West Supp. 2014). Pursuant to
Altobji’s plea bargain agreement with the State, the trial court deferred making any
finding on Altobji’s guilt, placed him on community supervision for two years, and
assessed a $750 fine. Altobji’s sworn plea paperwork states: “If you are not a
United States citizen, pleading guilty or no contest to a criminal charge may result
in removal, denial of naturalization or exclusion from admission into the United
States.” The paperwork further states that Altobji “freely and voluntarily plead[ed]
guilty or no contest,” that he read and understood the court’s admonishments and
understood the “plea’s consequences,” and that he was “satisfied that the attorney
representing [him] . . . properly represented [him] and [he] . . . fully discussed this
case with [his attorney].” Altobji did not appeal from the trial court’s June 10,
2009 judgment.
At some point after June 10, 2009, Altobji, who is a lawful permanent
resident of the United States and is originally from Jordan, left the United States.
After his return, Immigration and Customs Enforcement (ICE) initiated deportation
proceedings against him. Altobji is subject to deportation as a result of having
committed a crime of moral turpitude within five years of entry to the United
States. See 8 U.S.C.S. § 1227(a)(1)(A), (a)(2)(A) (LexisNexis 2007); see also 8
U.S.C.S. § 1182(a)(2)(A)(i)(I) (LexisNexis 2008).
Altobji filed an application for writ of habeas corpus on August 20, 2014,
challenging the voluntariness of his guilty plea based on allegedly ineffective
2
assistance of counsel and requesting that the trial court vacate its judgment placing
him on community supervision. The State responded on September 16, 2014, and
Altobji filed an addendum to his application on November 17, 2014. The trial
court denied his application on November 25, 2014. Altobji timely filed a notice
of appeal on December 4, 2014.
Standard of Review
We review a trial court’s ruling on an application for writ of habeas corpus
for an abuse of discretion. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.
App. 2006); Washington v. State, 326 S.W.3d 701, 704 (Tex. App.—Houston [1st
Dist.] 2010, no pet.). In conducting this review, we view the facts in the light most
favorable to the trial court’s ruling. See Kniatt, 206 S.W.3d at 664; Washington,
326 S.W.3d at 704.
A habeas applicant bears the burden of establishing that the facts entitle the
applicant to relief. See Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim. App.
1997); Ex parte Murillo, 389 S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.]
2013, no pet.).
Applicable Law
For a guilty plea to be consistent with due process, it must be entered
knowingly, intelligently, and voluntarily. See Kniatt, 206 S.W.3d at 664; Ex parte
Olvera, No. 05-11-01349-CR, 2013 WL 4052467, at *2 (Tex. App.—Dallas Aug.
3
12, 2013, pet. ref’d) (mem. op., not designated for publication). A guilty plea may
not be induced by threats, misrepresentations, or improper promises. See Kniatt,
206 S.W.3d at 664; Morrow, 952 S.W.2d at 534. “Generally, a guilty plea is
considered voluntary if the defendant was made fully aware of the direct
consequences [of the plea].” State v. Jimenez, 987 S.W.2d 886, 888 (Tex. Crim.
App. 1999); Olvera, 2013 WL 4052467, at *2; see also Ex parte Moussazadeh,
361 S.W.3d 684, 691 (Tex. Crim. App. 2012) (“[W]e continue to recognize the
distinction between direct and collateral consequences . . . .”). “A defendant’s
sworn representation that his guilty plea is voluntary ‘constitutes a formidable
barrier in any subsequent collateral proceedings.’” Kniatt, 206 S.W.3d at 664
(quoting Blackledge v. Allison, 431 U.S. 63, 73–74, 97 S. Ct. 1621, 1629 (1977)).
“A guilty plea is not knowing or voluntary if made as a result of ineffective
assistance of counsel.” Moussazadeh, 361 S.W.3d at 689 (citing Ex parte Burns,
601 S.W.2d 370, 372 (Tex. Crim. App. 1980)). When a habeas applicant
challenges a guilty plea based on ineffective assistance of counsel, we apply the
two-pronged Strickland test. See Murillo, 389 S.W.3d at 926 (citing Hill v.
Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985)); see also Strickland v.
Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064–65, 2068 (1984).
To be entitled to relief, an applicant challenging his guilty plea based on
ineffective assistance must establish that: (1) trial counsel’s performance fell below
4
an objective standard of reasonableness, and (2) a reasonable probability exists
that, but for counsel’s ineffectiveness, the result of the proceeding would have
been different. See Moussazadeh, 361 S.W.3d at 691 (quoting Ex parte White, 160
S.W.3d 46, 49 (Tex. Crim. App. 2004)); Ex parte Carpio-Cruz, No. 08-10-00240-
CR, 2014 WL 5316988, at *2 (Tex. App.—El Paso Oct. 17, 2014, no pet.) (not
designated for publication) (citing Strickland, 466 U.S. at 687–88, 694, 104 S. Ct.
at 2064; Moussazadeh, 361 S.W.3d at 691); Ex parte Roldan, 418 S.W.3d 143, 145
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (citations omitted).
Analysis
In his application for writ of habeas corpus, Altobji argues that his guilty
plea was involuntary because his trial counsel rendered ineffective assistance of
counsel by (1) failing to advise him that he was pleading guilty to a crime
involving moral turpitude and therefore failing to inform him of the immigration
consequences and other consequences of pleading guilty to a crime involving
moral turpitude and (2) failing to advise him that he would face immigration
consequences as a result of his plea. In an addendum to his application, Altobji
further argues that counsel rendered ineffective assistance by providing him with
misadvice that caused him to be arrested and spend the night prior to entering his
guilty plea in jail, which caused him to be “under duress when he accepted the plea
bargain,” thereby “call[ing] into question” the voluntariness of his plea. Altobji
5
contends that he would not have pleaded guilty if counsel had fully informed him
of the consequences of the plea.
Under Padilla v. Kentucky, trial counsel representing a criminal defendant
“must inform her client whether his plea carries a risk of deportation.” 559 U.S.
356, 374, 130 S. Ct. 1473, 1486 (2010). Counsel’s performance is deficient if
counsel fails to advise a noncitizen client about deportation consequences that are
“truly clear.” Id. at 369, 130 S. Ct. at 1483. Padilla, however, does not apply
retroactively, and therefore “defendants whose convictions became final prior to
Padilla . . . cannot benefit from its holding.” Chaidez v. United States, 133 S. Ct.
1103, 1113 (2013); see Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim.
App. 2013).
Here, Altobji pleaded guilty on June 10, 2009, before Padilla was decided
on March 31, 2010, and he did not take any further action regarding the trial
court’s order of deferred adjudication. His conviction therefore became final for
purposes of Padilla and federal immigration law on June 10, 2009, and he may not
benefit from Padilla’s holding. See State v. Guerrero, 400 S.W.3d 576, 588 (Tex.
Crim. App. 2013); Carpio-Cruz, 2014 WL 5316988, at *3.
Under pre-Padilla law, immigration consequences were collateral
consequences of a guilty plea, and “the constitutional guarantee to effective
assistance of counsel does not extend to ‘collateral’ aspects of the prosecution;
6
thus, a pre-Padilla plea is not involuntary even if counsel [was] deficient in
advising his client regarding the immigration consequences.” Roldan, 418 S.W.3d
at 147; see Jimenez, 987 S.W.2d at 888–89; Morrow, 952 S.W.2d at 536; Carpio-
Cruz, 2014 WL 5316988, at *2, 3; Olvera, 2013 WL 4052467, at *7. Accordingly,
Altobji’s trial counsel did not have an obligation to advise him on the possible
immigration consequences of his plea, and Altobji cannot satisfy the first prong of
the Strickland test and cannot show that his plea was involuntary based on any
alleged failure of counsel to fully advise him regarding the immigration
consequences of his plea. See Morrow, 952 S.W.2d at 536–37; Carpio-Cruz, 2014
WL 5316988, at *3; Roldan, 418 S.W.3d at 147; Olvera, 2013 WL 4052467, at *7.
Similarly, the other, non-immigration consequences of pleading guilty to a
crime of moral turpitude discussed by Altobji—that pleading guilty to a crime
involving moral turpitude “can lead to Applicant’s refusal for licensing,” such as
licensing to become a nurse or an electrician1—are collateral consequences, of
1
Altobji also argues that trial counsel failed to inform him “of the consequences of
a crime involving moral turpitude in relation to travel” and of the “negative
consequences that could result from Petitioner travelling outside of the United
States with this criminal conviction on his record.” Altobji argues that the issue is
not whether trial counsel “informed [him] regarding immigration consequences
but rather if [trial counsel] . . . informed [him] regarding the issues of a crime
involving moral turpitude” and that it “was the failure to advise [him] of the
consequences of the crime involving moral turpitude which led” to his placement
in removal proceedings. Contrary to Altobji’s arguments, however, although the
consequences of pleading guilty which led to his placement in removal
proceedings and of which he contends trial counsel failed to inform him—
including any restrictions on his travel—may result from the classification of the
7
which Altobji did “not have to be knowledgeable [for] his plea [to be] considered
knowing and voluntary.” Morrow, 952 S.W.2d at 536; see also Ex parte Drinkard,
No. 02-11-00369-CR, 2012 WL 3207428, at *2 (Tex. App.—Fort Worth Aug. 9,
2012, no pet.) (mem. op., not designated for publication).
Finally, Altobji argues that trial counsel misadvised him on his need to
appear in court,2 that this misadvice caused him to be detained overnight, and that,
as a result, “the voluntariness of the plea . . . is called into question.” Altobji fails
to actually assert that his plea was involuntary based on this alleged misadvice.
Nevertheless, Altobji contends that counsel’s alleged misadvice caused him to be
detained overnight and that the detention placed him “under duress when he
accepted the plea bargain,” because he “was in distress after having been in jail all
night with no sleep and only able to speak with his attorneys through a glass
partition,” which, “combined with his vision issues, created a high-stress situation
crime to which he pleaded guilty as a crime of moral turpitude, these
consequences are based on immigration law and are therefore immigration
consequences.
2
According to Altobji, he was required to appear in court on June 8, 2009, because
his previous counsel, Neal Davis, was withdrawing from representation and new
counsel, Nate Tarlow, and a second counsel who would assist Tarlow, Mohamad
Ghuneim, were taking over his representation. In court, Altobji was informed that
he must appear again in court on June 9, 2009, but Ghuneim called him on the
evening of June 8, 2009, and told him he did not need to appear in court on June 9,
2009. Altobji’s bonding company contacted him on June 9, 2009, when he failed
to appear, at which time he went to court, where the trial court revoked his bond.
Altobji then spent the night in jail, where he was unable to remove his contact
lenses, causing his vision to become blurry, and where he was “terrified” and
“confused, scared and surrounded by other individuals who were making noise.”
8
for him.” It therefore appears that Altobji is arguing that his plea was involuntary
because he was required to spend one night in custody. Regardless of the reason
why Altobji spent the night in jail, however, a mere showing that Altobji pleaded
guilty after spending one night in jail is not sufficient to overcome his sworn
representation that his guilty plea was voluntarily made nor does it satisfy his
burden of establishing that he is entitled to relief. Cf. Morrow, 952 S.W.2d at 535
(“Therefore, a showing of an inducement beyond that implicit in the plea
bargaining process must be made to prevail on a claim that the pleas were
‘involuntary’ because they were improperly induced.”); Deckard v. State, No. 04-
03-00852-CR, 2004 WL 1195829, at *2 (Tex. App.—San Antonio June 2, 2004,
no pet.) (mem. op., not designated for publication) (“Although Deckard’s desire to
get out of jail may have induced him to plead no contest, this factor is implicit in
the plea bargaining process.”).
Accordingly, we conclude that the trial court did not abuse its discretion
when it found that Altobji “fails to show that counsel’s conduct fell below an
objective standard of reasonableness . . .,” that the “totality of the representation
afforded [Altobji] was sufficient to protect his right to reasonably effective
assistance of counsel in the primary case,” that Altobji “fails to show that his guilty
plea was . . . made involuntarily,” and that Altobji “fails to overcome the
presumption that his guilty plea was knowingly and voluntarily made.” See, e.g.,
9
Roldan, 418 S.W.3d at 145 (“We apply the same deference to review the habeas
court’s application of law to fact questions if the resolution of those determinations
rests on an evaluation of credibility and demeanor.”).
Alternatively, we may uphold the trial court’s ruling because it found that
counsel “admonished [Altobji] that a plea to the offense of theft would trigger
immigration problems for the applicant due to theft being a crime of moral
turpitude” and that Altobji’s “assertion that he was never informed by counsel that
theft was a Crime of Moral Turpitude is not credible,” and those findings are
supported by the evidence, namely, trial counsel’s affidavit stating that he
explained to Altobji “that certain crimes, such as theft, are characterized by
immigration authorities as crimes of moral turpitude,” that “a misdemeanor
conviction of theft would still constitute a crime of moral turpitude,” “that
acceptance of [the plea] offer would involve a plea of guilty to a crime of moral
turpitude,” and “that this offense would trigger such immigration problems for Mr.
Altobji due to theft being a crime of moral turpitude.”3 Because the trial court’s
findings turn on an evaluation of credibility and are supported by counsel’s
affidavit, we defer to those findings. See Ex parte Harrington, 310 S.W.3d 452,
3
Further, in an affidavit signed on November 17, 2014, Altobji stated only that he
did “not recall [trial counsel] ever making any comments stating that this crime
was a crime of moral turpitude,” without stating that trial counsel did not so
inform him.
10
457 (Tex. Crim. App. 2010); Manzi v. State, 88 S.W.3d 240, 242–44 (Tex. Crim.
App. 2002); Roldan, 418 S.W.3d at 147–48.
Conclusion
The trial court did not abuse its discretion by denying Altobji’s application
for the writ of habeas corpus, because Altobji failed to carry his burden of proving
his entitlement to relief.
Accordingly, we affirm the trial court’s judgment. We dismiss any pending
motions as moot.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
11