Jason Bennyhoff
An examination of how writs of habeas corpus alleging ineffectiveness of counsel have evolved since Padilla v. Kentucky
For most prosecutors, the immigration consequences attendant to a plea bargain in a criminal case were of, at most, minimal interest prior to the United States Supreme Court’s decision in Padilla v. Kentucky.1 Following that decision, the issue of immigration consequences took on constitutional dimension and necessarily became foremost in the minds of prosecutors. This was in large part due to the implication in Padilla that the decision applied retroactively, which resulted in a flood of writs, some on cases more than a decade old, wherein defendants sought to have their convictions vacated based on ineffective assistance under the Padilla rule.2
When the pendulum swung back again after the United States Supreme Court’s decision in Chaidez v. United States, which held that the Padilla decision did not apply retroactively,3 these writs again faded from the consciousness of most prosecutors. However, these writs are still relevant not only in that their existence requires diligence in future plea bargain proceedings, but also in defending against writs brought under pre-Padilla law. This article is designed to trace the evolution of the jurisprudence regarding immigration advice attendant to criminal plea bargains, to examine how prosecutors can protect their current cases from Padilla claims in the future, and to advise on how they can deal with claims of ineffective assistance relating to immigration which are based on pre-Padilla rules.
Padilla changes everything
The United States Supreme Court, in a radical departure from previously existing precedent, held that a criminal defense lawyer had an obligation of constitutional dimension to advise a non-citizen criminal defendant about the immigration consequences attendant to a plea of guilty or nolo contendere in a criminal case.4 The court held that “when the law is not succinct and straightforward … a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.”5 In issuing this holding, the United States Supreme Court expressly disavowed the extensive jurisprudence holding that immigration consequences were collateral to the criminal case; therefore, the criminal defense attorney had no duty to advise a criminal client regarding those consequences.6
The majority in Padilla not only marked a sea change in criminal law with their holding but also opened up a flood of litigation by way of their clear implication that the holding in Padilla applied retroactively.7 Texas courts in particular held almost uniformly, prior to the holding in Chaidez, that the Padilla decision applied retroactively.8
Pulling back the reins in Chaidez
Following the flood of litigation (which the Supreme Court majority incorrectly predicted would not occur as a result of Padilla9), the United States Supreme Court decided in Chaidez that “defendants whose convictions became final prior to Padilla … cannot benefit from its holding.”10 This decision was quickly followed by the Texas Court of Criminal Appeals in Ex Parte De Los Reyes.11 Ever resourceful, the defense bar then argued that by its language, the Chaidez decision did not apply to cases wherein deferred adjudication was granted because such cases did not result in a conviction.12 The Texas Court of Criminal Appeals found that argument unpersuasive and ruled (in State v. Guerrero) that Padilla did not apply retroactively to cases wherein deferred adjudication was granted.13
While the Chaidez and Guerrero holdings have cut down on many of the pre-Padilla writs, innovative defense counsel are still filing such writs based on pre-Padilla precedent. Writs are also being filed based on post-Padilla ineffective assistance. As a result, prosecutors must keep in mind how to avoid claims of ineffective assistance going forward in light of Padilla, how they can combat post-Padilla ineffective assistance claims, and how they can combat ineffective assistance claims based on pre-Padilla precedent.
Avoiding future
Padilla claims
At their core, Padilla claims are ineffective assistance of counsel claims. Therefore, to some degree the prosecutor will be limited in what he can do to protect his cases from these claims because he cannot take over the role of the defense lawyer (on whom the defense of these claims lies). However, the prosecutor can take some concrete steps to both assist the defense lawyer in avoiding these issues and in protecting the record in a future appeal or writ proceeding.
First, the prosecutor should simply ask defense counsel if the defendant is a citizen. This should raise the issue to the defense lawyer, who should then be aware enough to ask his client. Prosecutors should ask this question in every case, not merely those where a defendant does not speak English or shows some other outward signs of being a non-citizen.
The prosecutor would also do well to check for any pre-trial services paperwork wherein the defendant is asked about his citizenship status, especially any paperwork where the defendant is asked to give a sworn response. Such pre-trial documents where the defendant represents that he either is or is not a citizen can be useful in determining whether the issue of immigration consequences needs to be raised early on. These can also be helpful after a writ is filed, if, for instance, the defendant alleges on his subsequent writ application that he was not informed of these consequences but swore in his pre-trial request for appointed counsel that he was a citizen. That is because such misrepresentations can be an independent basis for deportation, which lessens the writ applicant’s ability to claim that it was his plea that ultimately made him deportable.14
The prosecutor should also make certain to take detailed notes in his file about any conversations with defense counsel about the defendant’s immigration status. This step can be simply accomplished in most cases with a short conversation prior to the entry of the defendant’s plea. The prosecutor should also make an effort to have every plea colloquy recorded, or at least every plea colloquy where immigration is known to be an issue. The prosecutor can then have the defendant state his immigration status on the record, make clear what steps have been taken to establish the immigration consequences of the plea, and ensure that the defendant understands these consequences and is entering a knowing and voluntary plea. It may even be worth reconsidering your county’s plea paperwork to add a section dealing with the defendant’s immigration status in more detail.
Dealing with post-Padilla habeas writs
In dealing with writs of habeas corpus regarding pleas that were entered after Padilla, the writ prosecutor will need to contact the applicant’s trial counsel to inquire about his recollection regarding conversations he had with the applicant’s immigration status. Oftentimes, the prosecutor will find that the trial counsel’s recollection is nonexistent, as is his file. This is where the prosecutor’s notes and a recorded plea colloquy come in handy. Again, pre-trial services paperwork, such as a request for court-appointed counsel can also be helpful in the scenario where the original trial counsel’s memory and file are not.
A defense to an application for writ of habeas corpus based on Padilla will depend on what advice the prosecutor can show was given to the defendant. Pre-Padilla, this usually amounted to little or none, and it often began and ended with the general admonishment found in Article 26.13 of the Code of Criminal Procedure. Now that several years have passed since Padilla was decided, prosecutors should have more to work with—at least their own notes and potentially recorded plea colloquys. Nevertheless, situations will certainly still arise where it is unclear what advice was given. At the least, in every felony case, the defense counsel (and the court) should have advised the client about the 26.13 admonishment. This may be enough where the prosecutor can show that the deportation consequence in a given case is not “succinct and straightforward.” This will require learning some immigration law, but several courts have examined the immigration law on a case-by-case basis and held that it was not succinct and straightforward under the facts presented, and therefore trial counsel had the duty to advise only that some negative immigration consequence may arise as a result of the plea.15 This is often fertile ground on which to contest a writ of habeas corpus in this vein because there are so many variables in any given immigration situation.16
Regardless of what advice the prosecutor can prove was given to the defendant before he entered his plea, the prosecutor should keep in mind that as in all ineffective assistance of counsel cases, the writ applicant will need to prove not only ineffectiveness but prejudice as well.17 It is on the prejudice prong that most of these pleas are successfully defended.18 This is because the writ applicant not only has to prove that he was improperly advised, but he has to prove that but for the incorrect advice he would have proceeded to trial, and, most helpfully for the prosecutor, the writ applicant must prove that it would have been rational for him to reject the plea bargain and proceed to trial.19
Dealing with pre-Padilla habeas writs
Despite the fact that Chaidez and Guerrero have closed the door on applying the Padilla rule retroactively, inventive defense counsel have been seeking to make use of the Padilla precedent in this area in writs of habeas corpus.20 Before Padilla, immigration consequences were considered collateral in Texas, and trial counsel in a criminal case had no duty to advise a client regarding those consequences.21 While this precedent effectively closes the door on claims that defense counsel was ineffective for giving no advice at all, the writ prosecutor will no doubt find that an inordinate number of non-citizen defendants who entered guilty pleas prior to Padilla now allege that they were affirmatively misled by their trial counsel regarding the immigration consequences of their plea. That is because some pre-Padilla precedent held that where a habeas applicant could prove that his plea was induced by affirmative misadvice from his counsel about the immigration consequences of his plea, that plea could be withdrawn.22
Being that pre-Padilla writs will necessarily involve cases where pleas were entered prior to March 31, 2010, the writ prosecutor will likely find little help in the memories of defense lawyers and a great many missing or destroyed defense counsel files. Nonetheless, a conversation with the writ applicant’s trial counsel is the necessary starting point. For those prosecutors who are lucky, defense counsel will recall going into painstaking detail with the writ applicant all of the potential immigration consequences of the applicant’s plea and will have made all of those consequences known on the record. For the vast majority of writ prosecutors, trial counsel will be of little help. In the event you find yourself an unlucky writ prosecutor without helpful trial counsel and without a recorded plea proceeding, there are still potential resources available.
In this respect, even an unlucky writ prosecutor can usually expect some help from trial counsel. Even trial counsel who has no recollection of the plea and no file will usually testify that he would never have misadvised a criminal defense client about the immigration consequences of a plea. Prior to Padilla, most trial counsel had a habit of refusing to give any advice on immigration precisely because Texas courts had decreed that immigration was a collateral consequence. Usually, criminal counsel will testify that they gave no advice regarding immigration prior to Padilla, and because pre-Padilla claimants must prove affirmative misadvice, this is enough to successfully defend against the writ.
Again, pre-trial services paperwork, including requests for court-appointed counsel, can be helpful if your county’s paperwork asks for a declaration of citizenship. Internal paperwork from the county jail can also be helpful if it has any items that call for a declaration of citizenship. The jail should also keep a record of when non-citizen inmates request to speak with their consulates. Prosecutors may also want to speak with the magistrate who handles arraignments to find out if he has any records regarding whether the writ applicant made it known that he was not a citizen or requested any advice about his immigration status at that time.
Also keep in mind that prosecutors’ files (at least in larger offices) may change hands several times. Seek out colleagues who handled a writ applicant’s file and pick their brains for any recollection of conversations they had with trial counsel regarding the applicant’s immigration status. If your office has a designated person who handles pre-trial diversion, make sure to speak with that person. Generally, pre-trial diversion requests made by non-citizens rely on the hardship the defendant’s family would be put through if he were to be deported as a result of his criminal case as the primary reason why pre-trial diversion should be granted.
Remember that writs of habeas corpus alleging ineffective assistance based on faulty immigration advice prior to Padilla are essentially restricted to claims of affirmative misadvice. If all else fails, the Court of Criminal Appeals’ recent expansion of the laches doctrine may still save the prosecution’s case when a defendant has sat on his claim for too long before raising it.23
Conclusion
While the world of writs of habeas corpus based on ineffective assistance of counsel flowing from immigration consequences continues to evolve, there are concrete steps prosecutors can and should take to protect their future pleas and defend their final convictions. I hope that this article proves helpful to prosecutors facing these writs. Please feel free to contact me at [email protected] if I can be of any assistance.
Endnotes
1 Padilla v. Kentucky, 559 U.S. 356 (2010).
2 Id. at 372.
3 Chaidez v. United States, 133 S.Ct. 1103, 1133 (2013).
4 Padilla, 559 U.S. at 369.
5 Id.
6 Id. at 365.
7 Holding that it was “unlikely that our decision today will have a significant effect on those convictions already obtained as a result of plea bargains.” Id. at 372.
8 See, e.g., Ex Parte Tanklevskaya, 361 S.W.3d 86, 95 (Tex. App.—Houston [1st Dist.] 2011 (pet. granted, judgm’t vacated by Ex Parte Tanklevskaya, 393 S.W.3d 787 (Tex. Crim. App. 2013)); Ex Parte Sudhakar, No. 14-11-00701-CR, 2012 WL 6061859 at *3 (Tex. App.—Houston [14th Dist.] Dec. 6, 2012 (pet. granted, judgm’t vacated by Ex Parte Sudhakar, No. PD-0220-13, 2013 WL 1682780 (Tex. Crim. App. Apr. 17, 2013)) (not designated for publication).
9 Padilla, 559 U.S. at 371.
10 Chaidez, 133 S.Ct. at 1133.
11 Ex Parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013).
12 State v. Guerrero, 400 S.W.3d 576, 588 (Tex. Crim. App. 2013).
13 Id.
14 8 U.S.C. §1227(a)(3)(D)(i).
15 See, e.g., Ex Parte Lopez, No. 04-11-00817-CR, 2012 WL 1431379 at *4 (Tex. App.—San Antonio Apr. 25, 2012, no pet.) (not designated for publication).
16 For example, while aggravated felonies are deportable offenses, the definition of the term “aggravated felony” is long, complex, and often not directly applicable to Texas statutes. See 8 U.S.C. §1101(a)(43); see also 8 U.S.C. §1227(a)(2)(A)(iii) mandating deportation for aliens convicted of aggravated felonies but not defining the term “aggravated felony.” In particular, determining whether an offense under Texas law is deportable because it qualifies as an aggravated felony by way of being a “crime of violence” can be especially complicated. See 18 U.S.C. §16 (defining “crime of violence”).
17 Padilla, 559 U.S. at 374.
18 See, e.g., Ex Parte Fassi, 388 S.W.3d 881, 890 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Ex Parte Moreno, 382 S.W.3d 523, 530 (Tex. App.—Fort Worth 2012, pet. ref’d).
19 Padilla, 559 U.S. at 372.
20 See, e.g., Ex Parte Tavakkoli, No. 09-13-00082-CR, 2013 WL 5428138 (Tex. App.—Beaumont Sept. 25, 2013, pet. ref’d (not designated for publication).
21 Ex Parte Luna, 401 S.W.3d 329, 334 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Candelas v. State, No. 01-13-00007-CR, 2013 WL 3354694 (Tex. App.—Houston [1st Dist.] July 2, 2013, no pet.); see State v. Jimenez, 987 S.W.2d 886, 888-89 (Tex. Crim. App. 1999).
22 Rosa v. State, No. 05-04-00558-CR, 2005 WL 2038175 at *3 (Tex. App.—Dallas 2005, pet. ref’d) (not designated for publication); see also Ex Parte Saldana, No. 03-09-00403-CR, 2010 WL 2789032 (Tex. App.—Austin, July 16, 2010, no pet.) (not designated for publication).
23 Ex Parte Perez, 398 S.W.3d 206, 215 (Tex. Crim. App. 2013) (holding that the State may now raise the equitable doctrine of laches with regard to the facts of the underlying case and not solely with regard to the State’s ability to adequately participate in the writ proceedings).