Texas Court of Appeals
Nos. 01-11-00943/44-CR : 04/26/12
Did the trial court wrongly deny writ relief on grounds of ineffective assistance where defense counsel failed to advise the defendant of the deportation consequences of his pleas to assault of a family member and violation of a protective order?
Yes—again rejecting an argument that Padilla v. Kentucky is not retroactive—because the deportation consequences were “truly clear” and counsel failed to inform the defendant that “his subsequent removal was virtually certain and presumptively mandatory.”
When proposing findings, the State should ask for one that concludes the defendant is not a credible witness. Here there was not such a finding, and the defense counsel only said he couldn’t recall what was said. This is an absurd way to get to the truth. And this sort of opinion certainly makes it more likely that defense attorneys (and maybe judges) should just tell defendants, “Oh, trust me, you are going to be deported. Still want to plead guilty?” Note: SCOTUS has accepted review on the issue of whether Padilla is retroactive.
Nos. 04-11-00038/39-CR : 04/25/12
Did the trial court wrongly deny writ relief on grounds of ineffective assistance where defense counsel failed to advise the defendant of the deportation consequences of her pleas to theft by check and prostitution?
No, the defendant was subject to deportation but, as a lawful permanent resident, also eligible for cancellation of removal; therefore, the deportation consequence of her pleas were unclear or uncertain.
Did anyone consider asking whether laches would prevent a defendant from challenging a misdemeanor plea 15 years later? Really? This is a very good example of why Padilla should not be retroactive. What an utter waste of paper, lawyers and judges.
No. 04-11-00817-CR : 04/25/12
Did the trial court wrongly deny writ relief on grounds of ineffective assistance where defense counsel failed to advise the defendant of the deportation consequences of his “nolo contendere” plea to delivery of ¼ ounce or less of marijuana for remuneration?
No, the deportation consequences of a no-contest plea were not truly clear. “Any deportation consequences would be discernible, if at all, only after counsel analyzed numerous statutes, court cases, and administrative decisions, and evaluated whether the state drug offense in question proscribed conduct punishable as a felony under the applicable federal laws.” Counsel’s duty was only to advise the defendant that the pending charge may carry a risk of adverse immigration consequences.
Here, the judge did not believe the defendant’s self-serving statements. That made a big difference in terms of deference to the findings of the trial court and weighing the defendant’s claim. These three cases really show the idiocy of thinking that there is something plain and clear about immigration law.