Ex Parte Rosa Maria Cruces ( 2015 )

ACCEPTED
13-15-00136-CR
THIRTEENTH COURT OF APPEALS
FILED CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS 11/18/2015 2:06:15 PM
CORPUS CHRISTI Dorian E. Ramirez
CLERK
11/18/15
DORIAN E. RAMIREZ, CLERK No. 13-15-00136-CR
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BY DTELLO
IN THE COURT OF APPEALS RECEIVED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI/EDINBURG, TEXAS
AT CORPUS CHRISTI-EDINBURG, 11/18/2015
TEXAS 2:06:15 PM
DORIAN E. RAMIREZ
Clerk
EX PARTE ROSA MARlA CRUCES
ON APPEAL FROM THE !97TH DISTRICT COURT OF
CAMERON COUNTY, TEXAS.
CAUSE NO 13-15-00236-CR
CERTIFICATION OF RIGHT OF APPEAL
Appellant's 3rd Amended Brief
Honorable Luis Saenz Law Office of Pablo Rocha P.C.
Assistant District Attorney Pablo Rocha, Esq.
964 East Harrison Street Texas Bar No.24028780
1413 East Fillmore Avenue
Brownsville, Texas 78520 Harlingen, Texas, 78553
(956) 544 0849 (956) 365-4077
Attorney for Appellee and Appellant
Mr. Enrique C. Juarez Rosa Maria Cruces
Law Office of Enrique C. Juarez 119 AvenueB
Texas State Bar No. 11040500 Brownsville, TX 78520
213 North Arroyo, Suite A (956) 312-1384
Los Fresnos, TX 78566
(956) 233-5533
IDENTITY OF COUNSEL
Appellant's Trial and Appellate Counsel
Mr. Enrique C. Juarez
Law Office of Enrique C. Juarez
Texas State Bar No 11040500
213 North Arroyo, Suite A
Los Fresnos, Texas 78566
(956) 233-5533
Pablo Rocha, Esq.
Law Office of Pablo Rocha, P.C.
Texas Bar No. 24028780
1413 East Fillmore Avenue
Harlingen, Texas, 78553
(956) 365-4077
TABLE OF CONTENTS
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Page
INDEX OF AUTHORITIES 11
STATEMENT OF THE CASE 1
REQUEST FOR ORAL ARGUMENT 2
ISSUE: Ms. Cruz plea of guilty was induced by counsel's ineffective
advice regarding immigration consequences.
STATEMENT OF THE FACTS 2
SUMMARY OF THE ARGUMENT 3
ARGUMENT 3
PRAYER 10
CERTIFICATE OF SERVICE 11
CERTIFICATE OF COMPLIANCE 12
INDEX OF AUTHORITIES
Page No.
Decisions of Texas Court of Appeals
Brown v. State, 943 S.W.2d 35 (Tx. Crim. App. 1967) 8
Harrison v. State, 688 S.W. 497 (Tx. Crim. App. 1985) 8-9
Kniatt v. State, 206 S.W.3d 657 (Tx. Crim. App. 2006) 3
Lyles v. State, 850 S.W.2d 497, (Tx. Crim. App. 1993) 4
Montgomery v. State, 810 S.W. 2d. 372 (Tx. Crim. App. 1990) 4
Texas v. Golding, No. 01-685 CR (2011) 4-5
Decisions of Federal Courts
Padilla v. Kentucky, 130 S. Ct. 1473 (2010) 4,8,10
Henderson v. Morgan, 426 U.S. 637 (1976) 5
INSv. St. Cyr, 533 U.S. 289, (2001) 1
Strickland v. Washington, 466 U.S. 668 (1984) 3,5,6
US. v. Batamula, 788 F.3d 166 (5th Cir. 2015) 6
US. v. Rivas Lopez, 678 F.3d 353 (5th Cir. 2012) 7
US. v. Urias Marrfu, 744 F.3d 361 (5th Cir. 2014) 6
Texas Criminal Statute
Texas Penal Code Section 30.02 1,8.
Texas Code of Criminal Procedure
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Texas Code of Criminal Procedure Article 26.10 5
Federal Statutes
8 USC section 1101(a)(43)(G) 1
8 USC section 1182(a)(2) 1
8 USC section 1227(a)(2) 1
18 USC section 1342 5
United States Constitution
AmendmentV 8
Amendment VI 8
lll
STATEMENT OF THE CASE
Rosa Maria Cruces is a fifty eight year old Mexican citizen who obtained status
as a Lawful Permanent Resident of the United States on August 13, 1965. She was
residing in Brownsville, Texas, September 7, 2010, when she was arrested for
Burglary, in violation of Texas Penal Code Section 30.02.
Any non-United States citizen who is the defendant in a criminal proceeding
is in jeopardy of being deported upon conviction. See 8 USC Section 1182(a)(2) and
8 USC Section 1227(a)(2). See INS v. St. Cyr, 533 U.S. 289, (2001). The United States
Department of Homeland Security initiates administrative proceedings against non-
citizens, and persons with criminal history are the highest priority. See Karl R.
Thomson, Esq., DHS 's Authority to Prioritize Removal of Certain Aliens Unlawfully
Present, November 19, 2014. Persons who are Lawful Permanent Residents, (LPR),
are occasionally eligible to request a discretionary deportation waiver and maintain
lawful status notwithstanding a conviction. Some types of offenses are beyond the
scope of a discretionary waiver. Simply put, a conviction for an aggravated felony,
defined at 8 USC Section 1101(a)(43)(G), et seq. removes from the discretion of the
Immigration Judge the alternative of cancelling removal and allowing the LPR to
preserve his or her lawful status.
1
Attorney Enrique Juarez was appointed to represent Ms. Cruces. On February
28,2011, Ms. Cruces entered a plea of guilty in IOCR 2257-C. She was sentenced to
two years confinement in the Texas Department of Criminal Justice, which term was
suspended in lieu of placement on community supervision for five years.
REQUEST FOR ORAL ARGUMENT
Ms. Cruces respectfully requests Oral Argument, as this appeal requests this
Court to adduce the implications of decisions of the Fifth Court on guilty pleas by
inunigrants in Texas Courts. The Court may benefit from considering the oral
arguments of the parties.
ISSUE: Counsel's ineffective assistance resulted in an involuntary guilty plea
by Ms. Cruces.
STATEMENT OF FACTS
Ms. Cruces has lived and resided lawfully in the United States for fifty years.
She was charged with burglary and counsel advised her that her guilty plea in
exchange for a one year sentence of imprisonment would not encumber her lawful
status. An Immigration Judge is statutorily prohibited from permitting her to remain
in the United States after a one year sentence has been imposed due to a conviction
for burglary. As a result of counsel's misadvice, Ms. Cruces is subject to automatic
deportation.
2
On October 8, 2014, Ms. Cruces filed her Application for Writ of Habeas
Corpus in the Trial Court. See Tab A. Ms. Cruces submitted her affidavit as well as
the affidavit in support of her Petition. Ms. Cruces' affidavit explains she only met
Mr. Juarez on the date she pleaded guilty. She stated he told her if she pleaded guilty
she would get probation and if she did not plead guilty she would be in jail for a long
time. Her affidavit also states Mr. Juarez told Mr. Cruces she would not lose her LPR
status.
SUMMARY OF ARGUMENT
A claim of ineffectiveness will be found when defense counsel's conduct so
undermined the adversarial process that the proceeding cannot be relied on as having
produced a just result. Strickland v. Washington, 466 U.S. 668, 686 (1984). A
conviction should be reversed when the defendant can demonstrate counsel's
representation was deficient, and he was prejudiced as a result. Ms. Cruces' affidavit
and testimony demonstrate she pleaded guilty in reliance on the assurances of former
counsel that her legal status would not be compromised.
ARGUMENT
The applicant for a writ of habeas corpus based on an involuntary guilty plea
has the burden of proving his allegations by a preponderance of the evidence. Kniatt
3
v. State, 206 S.W.3d 657,664 (Tex. Crim. App. 2006). The Texas Court of Criminal
Appeals will uphold the decision of the Trial Court absent an abuse of discretion. The
Trial Court abuses its discretion when the court acts without reference to any guiding
rules or principles, or arbitrarily or unreasonably, or when its' decision lies outside
of the zone ofreasonable disagreement. Lyles v. State, 850 S.W.2d 497, 502 (Tex.
Crim. App. 1993), Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.
1990).
In The State of Texas v. Terry Golding No. 01-10-685-CR (2011), the Court
of Appeals of the First District of Texas specifically held that automatic deportation
is a direct, not a collateral consequence, the habeas petition of a party who diligently
sought Padilla based relief is not barred by laches, and Padilla applies retroactively
where ineffective assistance is shown. See Padilla v. Kentucky, 130 S. Ct. 1473
(2010). In that case, the Court of Appeals also found the trial court had jurisdiction
to consider Golding's habeas petition although fifteen years had passed since his
entry. Even where the state argued the petition was barred by the doctrine of laches,
the Court of Appeals noted that the State of Texas was not prejudiced by the passage.
of time, as they still had a meaningful opportunity to challenge the claims presented
therein. Even more, the Court noted that Golding applied for relief as soon as the
Supreme Court announced its' decision in Padilla, supra. Finally, the First District
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Court of Appeals cited post-Padilla decisions of the Fifth Circuit to Golding's
petition, and held that Padilla applied retroactively.
Just prior to the conclusion of its' opinion in Golding, the First District Court
of Appeals summarized the imperative of the availability of habeas relief in cases
such as this:
Recent changes in substantive immigration law, which have had an enormous
impact on the fate of non-citizens faced with criminal charges, also support the
conclusion that Padilla applies retroactively. Evaluation of whether counsel's
performance was constitutionally deficient "is necessarily linked to the practice
and reasonable expectations of the legal community ... under prevailing
professional norms. Strickland 466 U.S. at 688, citing Padilla 130 S.Ct at 1482.
Golding at 20.
Prior to waiving constitutional rights, a voluntary guilty plea requi~es the
defendant have real notice of the true nature of the charge, and where "the accused
does not understand the nature of the constitutional protections that he is waiving, or
because he has such an incomplete understanding of the charge that his plea cannot
stand as an intelligent admission of guilt." Henderson v. Morgan, 426 U.S. 637,645
n. 13, 96 S. Ct. 2253, 2257 n. 13, 49 L. Ed. 2d 108 (1976) (citations omitted). Here,
despite this Court's inquiry during the plea colloquy with respect to advisals about
immigration consequences, (See Texas Code of Criminal Procedure, Art 26.1 0,) and
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even though Ms. Cruces signed the admonishments as part of her plea agreement, her
guilty plea was not knowing, intelligent and voluntary.
A recent decision of the Fifth Circuit concerning a conviction of a Tanzanian
defendant in United States District Court for violation of 18 USC section 1342 (false
statement on a passport application), holds that the admonition by the trial concerning
the implications of a guilty plea on the immigration status of a non-citizen are
insufficient, in and of themselves, to relieve from counsel his or her obligation to
provide competent and zealous representation throughout the plea process. United
States v. Batamula, 788 F.3d 166, 169, (5th Cir. 2015). There, the petitioner's
challenge to the validity of his guilty plea was supported by a statement from counsel
verifying that the petitioner was not advised that his guilty plea would give rising to
a finding of removability, but the District Court dismissed his section 2255 petition.
A panel of the Fifth Circuit referred to a previous decision, United States v. Urias
Marrfu, 744 F.3d 361, (5th Cir. 2014).
warnings from a judge during a plea colloquy are not a substitute for effective
assistance of counsel... [A] judicial admonishment is one of many factors and
circumstances that a court may consider in the fact-based, totality of the
circumstances prejudice analysis, but did not determine whether such an
admonishment, alone, can remedy or prevent prejudice cause by counsel's
failure to provide effective advice about the immigration consequences of the
guilty plea.
6
788 F.3d 166, 171, citing Strickland, 466 U.S. 749.
Just prior to concluding the Fifth Circuit panel held, in U.S. v. Batamula, "a
judge's statement at the guilty plea proceeding that deportation is "likely" is not
dispositive of whether a petitioner whose counsel failed to advise him regarding his
immigration consequences of his plea can demonstrate prejudice as a result
therefrom." 788 F.3d 166, 178.
As a direct result of counsel's misinformation, Ms. Cruces faces loss of her
permanent resident status and a lifetime bar from the United States. For all of those
reasons, she has adequately demonstrated severe prejudice due to counsel's
ineffective assistance. Moreover, the Court of Appeals for the First District in
Golding provides this Court has jurisdiction to consider the arguments herein. The
decisions of the Supreme Court in Strickland v. Washington, supra, and Padilla,
supra, compel this Court to find the Trial Court abused discretion, and grant the
requested habeas relief.
In United States v. Rivas Lopez, 678 F.3d 353 (5th Cir. 2012), the District Court
dismissed the Defendant's challenge to the constitutionality of his sentence, wherein
he alleged that defense counsel failed to accurately communicate the terms of a plea
agreement and the potential length of his sentence. 678 F.3d 353, 355.
7
The defendant appealed and the Fifth Circuit remanded to the District Court for
a hearing. "When considering whether to plead guilty or proceed to trial, a
defendant should be aware of the relevant circumstances and the likely
consequences of his decision so that he can make an intelligent choice." ld at
358.
Here, Ms. Cruces' guilty plea was induced by counsel's misinformation. See
Record (RR at 6-7). Had she not been affirmatively mislead, she would not have
waived her right to a trial. A voiding deportation was a crucial goal for Mr. Cruces in
resolving the charge against her, but Ms. Cruces' counsel did not provide accurate
advice about the immigration consequences of her plea. The defendant's reliance on
such an assurance may deprive a guilty plea of its free and voluntary character.
Simply put, Ms. Cruces was prevented from rationally weighing the advantages of
going to trial against pleading guilty. Thus, her plea was not knowing, voluntary, and
intelligent, and was entered in violation of the Fifth Amendment right to due process
and Sixth Amendment right to effective assistance of counsel.
As a result of counsel's deficient performance, Ms. Cruces' judicial admission
caused the loss of her LPR status with no recourse. According to analysis upon which
Padilla is based, a defendant must establish that counsel's deficient performance led
to a guilty plea, to such an extent that the ultimate result was fundamentally unfair
Counsel's erroneous advice was deleterious to such an extent that the ultimate result
8
was fundamentally unfair. Such a defendant satisfies the Strickland ineffectiveness
and prejudice prongs.
Ms. Cruces respectfully urges the Court of Appeals that she has shown
counsel's error affected her substantial rights, such that it is fundamentally unfair to
leave this fmding of guilt undisturbed. As the Texas Court of Appeals cautioned in
Brown v. State, 943 S.W.2d 35, 42 (Tx. Crim. App. 1997):
We have held that misinformation concerning a matter, such as probation, about
which a defendant is not constitutionally or statutory entitled to be informed,
may render a guilty plea involuntary if the defendant shows that his guilty plea
was actually induced by the misinformation. Harrison v. State, 688 S.W.2d497,
499-500 (Tex. Crim. App. 1985). Likewise, where the defendant complains
about the trial court's failure to give certain information that is statutorily but not
constitutionally required-- and is not specifically intended as a vehicle to ensure
that constitutionally required warnings are given-- similar considerations should
apply: a defendant should be required to show that he would not have entered
her plea had he been given the required information. n8 n8 This conclusion
applies equally to the current version of the statute: a defendant who bargains
for deferred adjudication under the current scheme may advance a claim that the
failure to give the Section 5 information renders his guilty plea involuntary if
she shows that she would not have entered the plea had she been given the
information beforehand.
Ms. Cruces would have either attempted to negotiate pre-trial diversion, or
demanded a jury trial, if she had been correctly advised that her plea of guilty is a
conviction for an aggravated felony which subjected her to mandatory deportation.
Moreover, had Mr. Cruces gone to trial and been convicted, the consequences would
9
not have been more severe than what she currently faces: mandatory deportation, and
•
permanent separation from her family.
Here, minimal inquiry and investigation by trial counsel, such as contacting a
member of the Texas State Bar Immigration Section and consulting as to the effect
of a plea of guilty and sentence to violation of Section 30.02ofthe Texas Penal Code,
Burglary of a Habitation, would have prevented this misbegotten conviction.
Counsel's failure to seek any guidance as to the relevant provisions of the
Immigration and Nationality Act demonstrate his deficient performance. Ms. Cruces
subsequently obtained the services of an attorney familiar with the nuances of
immigration law, and expeditiously filed the instant petition. For that reason, delay
is not unreasonable, the State of Texas was heard in opposition, and the tenets of
Padilla v, Kentucky, supra, remain applicable to the legal arguments presented in this
petition.
y
Prayer forRelief
WHEREFORE, PREMISES CONSIDERED, Appellant Rosa Maria Cruces prays this
Court reverse the district court's final order and remand this case for further
proceedings.
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Respectfully submitted,
~/7------
ablORocha, Esq.
Texas Bar No.24028780
Email procha@pablorochalaw.com
(956) 365-4077 (tel)
Law Office of Pablo Rocha P.C.
1413 E Filmore Avenue
Harlingen, TX 78553
Attorney for Appellant
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Certificate of Service
I certify that I have served a true and correct copy of the above and foregoing
document on the following person:
Honorable Luis Saenz
Assistant District Attorney
964 East Harrison Street
Brownsville, Texas 78520
a2:h~----
by mail and electronic service.
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CERTIFICATE OF COMPLIANCE
I, Pablo Rocha, hereby certify that, pursuant to Texas Rule of Appellate Procedure
9 .4(i)(3 ), this Brief consists of2,252 words, excluding tables and cover page, and was
prepared using WordPerfect.
----,t.~+---------===-­
Thtl5Io Rocha, Esq.
lt/!1/r!?
Date
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