Juan Juarez Candelas v. State ( 2013 )


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  • Opinion issued July 2, 2013
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-13-00007-CR
    ———————————
    JUAN JUAREZ CANDELAS, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 149th District Court
    Brazoria County, Texas
    Trial Court Case No. 31697
    MEMORANDUM OPINION
    Juan Juarez Candelas appeals from the trial court’s order denying his
    petition for writ of habeas corpus pursuant to article 11.072 of the Texas Code of
    Criminal Procedure. 1 In a single issue, Candelas contends that the trial court erred
    in denying his requested relief because his trial counsel was ineffective over fifteen
    years ago based on his alleged failure to advise Candelas of the immigration
    consequences of his guilty plea. See Padilla v. Kentucky, 
    559 U.S. 356
    , 
    130 S. Ct. 1473
    (2010). We affirm the trial court’s judgment.
    Background
    In 1996, Candelas, a Mexican citizen, pleaded guilty to a charge of
    possession of a controlled substance, namely, cocaine weighing less than one
    gram. He received a two-year suspended sentence, was placed on community
    supervision for three years, and ordered to pay a $300 fine.
    Several months after his guilty plea, Candelas submitted his application to
    “Register Permanent Residence or Adjust Status.” The United States Immigration
    and Naturalization Service denied an adjustment of Candelas’s residency status
    based on his 1996 conviction. 2 One year later, the INS began removal proceedings
    1
    See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West 2005) (providing for
    appeal in felony or misdemeanor case in which applicant seeks relief from order or
    judgment of conviction ordering community supervision).
    2
    A guilty plea and term of deferred adjudication community supervision constitutes
    a conviction for federal immigration law purposes. See 8 U.S.C. § 1101(a)(48)
    (defining “conviction” to include “if adjudication of guilt has been withheld,
    where . . . the alien has entered a plea of guilty or nolo contendere” and “the judge
    has ordered some form of punishment, penalty, or restraint on the alien’s liberty to
    be imposed”); State v. Guerrero, No. PD-1258-12, 
    2013 WL 2419595
    , at *6 (Tex.
    Crim. App. June 5, 2013) (citing Moosa v. INS, 
    171 F.3d 994
    , 1005–06 (5th
    Cir.1999)) (stating that appellee’s guilty plea and completed term of deferred-
    2
    against him based on that conviction. See 8 U.S.C. § 1227(a)(B) (“Any alien who
    . . . has been convicted of a violation of . . . any law or regulation of a State . . .
    relating to a controlled substance . . . is deportable.”). In January 2003, Candelas
    was ordered removed from the United States to Mexico; the Board of Immigration
    Appeals affirmed the order of removal.3
    After Padilla, Candelas filed his petition for writ of habeas corpus. He
    contended that his guilty plea was involuntary, asserting that Padilla applied
    retroactively and that his trial counsel was ineffective because he did not
    specifically advise Candelas on the immigration consequences of his guilty plea.
    According to Candelas, the general admonitions about adverse immigration
    consequences in the plea documents were insufficient. Candelas further asserted
    that if he had been advised that his guilty plea would result in automatic removal
    and denial of citizenship, he would not have entered the plea and would have gone
    to trial.
    Candelas attached the affidavit of Leo Torres, his trial counsel, in support of
    his petition. In his affidavit, Torres stated that it was not his practice in 1996 to
    consult with non-citizen clients in state court criminal matters on the immigration
    consequences of a guilty plea because the consequences were not as harsh then,
    adjudication community supervision was conviction for federal immigration
    purposes law purposes).
    3
    According to Candelas’s counsel, the order of removal has not been executed.
    3
    and he did not independently recall discussing immigration matters with Candelas.
    Torres further stated that he explained to Candelas the admonitions that the trial
    judge would give before he entered his plea. According to Torres, an independent
    warning about immigration consequences was unnecessary because Candelas’s
    plea documents listed the consequences, and he assumed the conviction would not
    have a negative consequence because Candelas was not going to serve jail time.
    Candelas initialed and signed the “Defendant’s Affidavit of Admonitions, Waiver,
    Judicial Confession, Statements, Plea, Probation and Appeal-Felony Less Than
    Capital,” which stated that a guilty plea “may result in deportation, the exclusion
    from admission to this country, or the denial of naturalization under federal law[.]”
    Torres stated in his affidavit that, based on his review of that document, he
    discussed its contents with Candelas on the day judgment was entered.
    At the November 2012 habeas hearing, Candelas’s counsel and the State
    presented argument. Candelas was present but did not testify. The trial court signed
    its order denying Candelas habeas relief and made findings of fact, including:
    2) [Candelas] was warned in writing prior to accepting his plea of
    guilty that it “may result in deportation, the exclusion from admission
    to this country, or the denial of naturalization under federal law.”
    3) [Candelas] was warned orally by the Judge prior to accepting his
    plea of guilty that it “might be used against you or could be used
    against you by the immigration and naturalization service,” which
    “could try to deport you, deny petition for naturalization, or exclude
    you from the lawful entry into this country.”
    4
    ***
    5) At the time of [Candelas’s] plea, federal law allowed, but did not
    mandate removal of aliens convicted of possession of cocaine. . . .
    Therefore, under Padilla, trial counsel in the instant case was only
    required to give [Candelas] a general warning that his conviction
    might result in deportation.
    6) . . . Padilla should not be applied retroactively.
    7) [Candelas] has been ordered removed to Mexico by a Federal Court
    as a result of his conviction in the above cause.
    8) Trial counsel was not ineffective in failing to properly warn
    [Candelas] regarding deportation.
    9) [Candelas] is not a United States citizen; he is a citizen of Mexico;
    and he has not been “admitted or paroled” into this country. He has
    neither alleged nor shown an independent basis for being in this
    country. He has also failed to show that even without this conviction
    he could stay or be admitted into the country. As such he has failed to
    show prejudice.
    10) [Candelas] has failed to sufficiently show that he would not have
    accepted the plea, if he had known of the potential immigration
    consequences. He has failed to show prejudice on this basis also.
    This appeal followed. After Candelas filed his notice of appeal, the United
    States Supreme Court held that Padilla did not apply retroactively to convictions
    final before that decision. See Chaidez v. United States, 
    133 S. Ct. 1103
    , 1107
    (2013); see also Ex parte De Los Reyes, 
    392 S.W.3d 675
    , 679 (Tex. Crim. App.
    2013) (adopting Chaidez reasoning as matter of state law).
    5
    Ineffective Assistance of Counsel
    A.       Standard of review
    We review a trial court’s denial of habeas corpus relief for an abuse of
    discretion. Ex parte Garcia, 
    353 S.W.3d 785
    , 787 (Tex. Crim. App. 2011); Ex
    parte Wheeler, 
    203 S.W.3d 317
    , 326 (Tex. Crim. App. 2006); Ex parte Necessary,
    
    333 S.W.3d 782
    , 787 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In
    conducting our review, we view the facts in the light most favorable to the trial
    court’s ruling. Kniatt v. State, 
    206 S.W.3d 657
    , 664 (Tex. Crim. App. 2006). We
    review questions of law de novo. Ex parte 
    Necessary, 333 S.W.3d at 787
    . Candelas
    had the burden to prove his claims for habeas relief by a preponderance of the
    evidence. See Ex parte Peterson, 
    117 S.W.3d 804
    , 818 (Tex. Crim. App. 2003);
    State v. Webb, 
    244 S.W.3d 543
    , 547 (Tex. App.—Houston [1st Dist.] 2007, no
    pet.).
    B.       Under controlling law, no basis exists to establish that the trial court
    abused its discretion
    Candelas contends that his trial counsel’s representation was constitutionally
    deficient because he did not specifically advise Candelas that he would be
    ineligible to adjust his residency status and would be deported for accepting a
    suspended sentence with community supervision. Acknowledging that Padilla
    does not apply retroactively, Candelas urges us to make “an independent
    6
    determination that defendants like Candelas deserve the same protections as Mr.
    Padilla” and conclude that his plea was involuntary.
    In Padilla, the Supreme Court held that the Sixth Amendment requires a
    criminal defendant’s attorney to provide advice about the risk of deportation
    arising from a guilty plea. 
    559 U.S. 356
    , 130 S. Ct. at 1486. The Court held that
    “longstanding Sixth Amendment precedents, the seriousness of deportation as a
    consequence of a criminal plea, and the concomitant impact of deportation on
    families living lawfully in this country” demanded that counsel “inform [his] client
    whether his plea carries a risk of deportation.” 
    Id. at 1486.
    When the deportation
    consequence is “truly clear,” counsel’s duty is to warn a defendant that he would
    be deported. 
    Id. at 1483.
    When the consequences are “not succinct and
    straightforward,” counsel “need do no more than advise a noncitizen client that
    pending criminal charges may carry a risk of adverse immigration consequences.”
    
    Id. Nearly three
    years later, the Supreme Court addressed the issue of Padilla’s
    retroactive application and had to decide whether Padilla announced a “new rule”
    because “[o]nly when [the Supreme Court] appl[ies] a settled ruled may a person
    avail herself of the decision on collateral review.” 
    Chaidez, 133 S. Ct. at 1107
    . The
    Court rejected the argument that Padilla applied the settled law of ineffective
    assistance of counsel. 
    Id. at 1108–09
    (referencing well known standard in
    7
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    (1984)). The Court held
    that Padilla announced a new rule of constitutional criminal procedure and, thus,
    did not apply retroactively to cases already final. 
    Chaidez, 133 S. Ct. at 1113
    ; see
    Teague v. Lane, 
    489 U.S. 288
    , 310, 
    109 S. Ct. 1060
    , 1075 (1989) (“Unless they fall
    within an exception to the general rule, new constitutional rules of criminal
    procedure will not be applicable to those cases which have become final before the
    new rules are announced.”).
    Shortly after Chaidez, the Court of Criminal Appeals adopted Chaidez’s
    reasoning: “We adhere to the retroactivity analysis in Chaidez and its holding that
    Padilla does not apply retroactively.” Ex parte De Los 
    Reyes, 392 S.W.3d at 679
    .
    The Court recognized that it “could accord retroactive effect to Padilla as a matter
    of state habeas law” but “decline[d] to do so.” 
    Id. The Court
    held that the
    applicant, whose conviction was final before Padilla, could not rely on it to argue
    that he was denied ineffective assistance of counsel. 
    Id. As an
    intermediate court of appeals, we are bound to follow De Los Reyes.
    See Ervin v. State, 
    331 S.W.3d 49
    , 53 (Tex. App.—Houston [1st Dist.] 2010, pet.
    ref’d) (citing Purchase v. State, 
    84 S.W.3d 696
    , 701 (Tex. App.—Houston [1st
    Dist.] 2002, pet. ref’d)); see TEX. CONST. art. V, § 5(a). And, this Court has held
    that, because Padilla announced a “new rule,” it does not apply retroactively. See
    Ibarra v. State, No. 01-12-00292-CR, 
    2013 WL 1163967
    , at *2 (Tex. App.—
    8
    Houston [1st Dist.] Mar. 21, 2013, no pet. h.) (concluding that appellant who was
    convicted twelve years before Padilla could not rely on it on collateral review and
    affirming denial of habeas relief). Because Candelas’s conviction became final
    before Padilla was decided, he may not avail himself of the decision on collateral
    review. 
    Id. Under applicable
    pre-Padilla law, “while the Sixth Amendment assures an
    accused of effective assistance of counsel in criminal prosecutions, [it] does not
    extend to ‘collateral’ aspects of the prosecution.” Ex parte Morrow, 
    952 S.W.2d 530
    , 536 (Tex. Crim. App. 1997). Immigration consequences of a guilty plea were
    considered a collateral matter and did not support an ineffective assistance of
    counsel claim. See State v. Jimenez, 
    987 S.W.2d 886
    , 888–89 (Tex. Crim. App.
    1999) (“That a guilty plea may result in deportation is generally considered a
    collateral consequence.”); see Ex parte Luna, No. 14-11-01063-CR, 
    2013 WL 1197777
    , at *4 (Tex. App.—Houston [14th Dist.] Mar. 26, 2013, no pet.)
    (“Immigration consequences of a guilty plea are considered collateral; therefore,
    [applicant’s] plea would not be rendered involuntary under the United States or
    Texas Constitutions even if his attorney was deficient in informing him of the
    consequences.”).
    Candelas was convicted in 1996, nearly fifteen years before Padilla was
    decided. Because Padilla announced a “new rule,” it is not retroactive and
    9
    Candelas may not rely on the decision to argue that his counsel was ineffective.
    Before Padilla, immigration consequences of a guilty plea were considered a
    collateral matter that did not support an ineffective assistance of counsel claim.
    Candelas does not argue that his counsel was ineffective on any basis other than a
    failure to advise Candelas properly on the immigration consequences of his plea.
    He presents no basis for an independent determination that the trial court abused its
    discretion in denying his petition for writ of habeas corpus. We conclude that the
    trial court did not abuse its discretion and overrule Candelas’s issue.
    Conclusion
    Having overruled Candelas’s single issue on appeal, we affirm the trial
    court’s judgment.
    Harvey Brown
    Justice
    Panel consists of Justices Jennings, Brown, and Huddle.
    Do not publish. TEX. R. APP. P. 47.2(b).
    10