Posted on June 9, 2011 by Walter Reaves

Another Padilla victory

the The Houston Court of  Appeals recently granted relief in another case - The State of Texas vs. Terry Golding. The defendant had plead guilty to driving while intoxicated and unlawfully possessing a firearm. At the time – 1994 – he was a lawful permanent resident. No one told him that the convictions might impact his immigration status, and shortly after Padilla was decided he filed a writ of habeas corpus claiming his plea was involuntary for that reason. The trial court agreed, and recommended that relief be granted.

One of the big issues in the case was whether the defendant was adversely affected. The state argued that he suffered no collateral consequences from the convictions because he had not been deported, nor was he arrested or incarcerated The court rejected that argument, holding it was sufficient to show that he had been denied the opportunity to apply for naturalization, as well as the possibility that he could be deported in the future.

 The state also argued that he waited too long - laches - which was also rejected.

 This case is significant because it establishes that a defendant does not have to wait until something bad happens to challenge his plea. It also shows how much power and discretion trial courts have. Here the judge entered findings that supported the grant of relief. As long as there is some evidence to support those findings they are almost unchallengeable. Had the judge found relief was not warranted, the result would have no doubt been different.

With that said, the lawyers apparently did a great job of presenting evidence to the judge. They established through trial counsel that Golding was not advised about potential immigration consequences. They also presented evidence from an immigration on the effects of such a plea, as well as presented letters of recommendation that could be filed to support his application for citizenship.

This case also is a blue print for lawyers on what they need to do - which depends on the facts of the case. Here the consequences of a plea were automatic, so the defendant had to be advised of those consequences. In those cases it is not sufficient to simply advise a client that a plea "might" result in deportation or other negative consequences. That places the burden on the lawyer to either know some basic immigration lawyer, or consult with someone who does. Many lawyers are not happy with that added responsibility, but it is something you must accept if you want to be a criminal defense lawyer. After all, if you don't tell your client what might  happen, who will?

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Posted on May 18, 2011 by Walter Reaves

Has the CCA declared Padilla retroactive?

Although they never even mentioned Padilla a two-page opinion from the Court of Criminal Appeals last week raises the question of whether the court considers it to be retroactive The case is Ex parte Herrera. As with most written opinions there is not much discussion of the facts or the law. That is because generally the court is only addressing whether the trial court recommendation should be approved. In Herrera the court held it should.

Mr. Herrera's  pled guilty and alleged his plea was involuntary because no one - including the court - advised him of the immigration consequences.He had made the same claim in a prior writ, which had been denied. In the interim he had been deported, and when he returned he was caught and prosecuted in federal court for illegal reentry. The court recognized that a prior writ had been filed,which normally would prevent someone from filing a second writ – especially on the same groundsThe court simply stated that when the first writ was filed he was only subject to deportation,while when the second writ was filed he had already been deported.

The confusion engendered by the decision requires an understanding of habeas law. Texas law requires a court to admonish all defendants that there are immigration consequences from a plea. The failure to give those admonishments may or may not be significant. In the past the court has held that in order to obtain relief a defendant must show that he was not a legal resident. That would be enough on direct appeal. In habeas however you must go further and establish that you would not have pled guilty had you known you could be deported. The fact that you have been deported is not legally significant; The focus is on the voluntariness of the plea, and not on whether you are actually harmed Therefore, if the only change is that you have actually been deported, that should not have been an issue.

Prior to Padilla the only claim a defendant had was that the trial court failed to comply with the statutory admonishments The court – as other courts– rejected the argument that a lawyer had an obligation to advise a client about the immigration consequences of the plea. Obviously, Padilla changed that. Therefore, the claim would now be one of ineffective assistance, which is a constitutional claim as opposed to a statutory claim.

Although the court never said so, it is difficult to understand how it could grant relief on a subsequent writ if it did not rely on the holding in Padilla. That issue has yet to be completely settled (Mark Bennett has discussed a Houston case going the other way) and requires a discussion of retroactivity which is beyond the scope of this post. If you're making that claim though, this decision is certainly one you should rely on.

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Posted on April 29, 2010 by Walter Reaves

How far will Padilla extend - how about DWI cases?

I've either been in trial or working on a complicated federal writ for the last several weeks, and haven't had a chance to write anything about the Supreme Court's decision in United States versus Padilla. The reaction to that decision has been surprisingly mixed. I would have thought all defense lawyers viewed it as a step forward. Unfortunately, some look at it as another obligation -- something else they have to do. I can't argue with the fact that determining the immigration consequences of a conviction is a difficult process, especially for non-immigration lawyers. However, it's not about us -- it's about the clients, and it is important to them.


What interests me more about the decision in Padilla is the impact it will have on prior convictions. At first blush, it would appear to have little effect in jurisdictions such as Texas, where immigration admonishes are provided. However, looking at it more closely I believe it can be a viable means to attack some convictions. There is a distinction between those crimes which automatically lead to deportation, and those where deportation is only a possibility. Where the result is known, it is not going to be enough to tell a defendant that he might be deported. That carries the possibility that he might not be. If the conviction was for something that would automatically lead to deportation, I believe a defendant may be able to challenge that conviction if he did not know that would be the result.

Of course, being able to challenge a conviction and actually being successful are two separate things. To be successful, you will have to convince the court that you would not have pled guilty had you known the consequences. When the evidence is overwhelming, and there is no doubt you would be convicted, that is going to be a difficult burden to overcome. On the other hand, if there were legitimate issues to pursue at a trial, he might be successful. Of course the problem will be that you have been deported, and many of those who qualify for relief may live no longer be in the United States.


A more interesting aspect of Padilla is the effect it may have on other cases. The courts consistently rejected claims, because they found immigration consequences were collateral. The law has always been that a lawyer does not have to advise a defendant of all the collateral consequences flowing from a conviction. To a point that is reasonable. However some consequences are so significant that no one can seriously claim it would not be an important factor in deciding to enter a plea. Four years, courts considered sex offender registration to be a collateral consequence. Now most courts make efforts to ensure that a defendant is aware of the registration requirements before taking a plea.

What else  may be collateral? One that comes to mind immediately are the surcharges imposed for driving while intoxicated convictions. Can you seriously argue that a $1000 year assessment is not a significant consequence. Hopefully, alll lawyers advise clients of that requirement. If they don't however, that could be a legitimate basis for challenging a conviction.

In the end, what is a collateral consequence that may  invalidate a conviction is probably based on at least two things. One is that it is a consequence that is automatic -- that is it is imposed in every case. The other is that it is significant, in that it has a serious impact on a person's life. If those two factors  are present I believe you have a legitimate claim, and one that is worthy of consideration.

 

In the end, instead of criticizing Padilla we need to embrace it. Not only is it a guarantee that clients will be aware of all the consequences before they enter a plea, but also may provide a vehicle for challenging convictions that were not knowingly entered into. In my mind, that can be nothing but a good thing.


 

 

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