                                                 I attest to the accuracy and
                                                  integrity of this document
                                                    New Mexico Compilation
                                                  Commission, Santa Fe, NM
                                                 '00'04- 10:11:07 2014.07.28

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMSC-023

Filing Date: June 19, 2014

Docket No. 33,604

MARTIN RAMIREZ, a/k/a
RICHARD G. SANCHEZ, JR.,

       Petitioner-Respondent,

v.

STATE OF NEW MEXICO,

       Respondent-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Alan M. Malott, District Judge


Gary K. King, Attorney General
William H. Lazar, Assistant Attorney General
M. Victoria Wilson, Assistant Attorney General
Santa Fe, NM

for Petitioner


Dane Eric Hannum
Albuquerque, NM

for Respondent


Rebecca Kitson Law
Rebecca Kitson
Albuquerque, NM

Christopher N. Lasch
University of Denver Sturm College of Law
Denver, CO

                                            1
for Amici Curiae
Professors Barbara Bergman, Barbara Creel, Rebecca Kitson, and Jennifer Moore and the
National Immigration Project of the National Lawyers Guild


The Appellate Law Office of Scott M. Davidson, Ph.D., Esq.
Scott M. Davidson
Albuquerque, NM

for Amicus Curiae
New Mexico Criminal Defense Lawyers Association

                                           OPINION

CHÁVEZ, Justice.

{1}     In State v. Paredez, 2004-NMSC-036, ¶ 19, 136 N.M. 533, 101 P.3d 799, we held
that a criminal defense attorney who represents a noncitizen client “must advise that client
of the specific immigration consequences of pleading guilty” to pending charges. An
attorney’s failure to do so will be ineffective assistance of counsel if the client is prejudiced.
Id. Ramirez pleaded guilty in 1997 and now asserts that his attorney did not advise him
about any immigration consequences of his pleas. The question in this case is whether our
holding in Paredez applies retroactively and, if it does, whether Ramirez has a claim for
ineffective assistance of counsel that could justify withdrawal of his pleas.

{2}      We hold that Paredez applies retroactively to 1990, the year that this Court began to
prohibit courts from accepting a guilty plea from a defendant without fulfilling the following
requirements: the court must (1) ascertain that the defendant understood that a conviction
may have an effect on the defendant’s immigration status; (2) obtain an affidavit from the
defendant that the judge personally advised the defendant of the possible effect of a
conviction on the defendant’s immigration status; and (3) obtain a certification from the
defendant’s attorney that the attorney had conferred with the defendant and explained in
detail the contents of the affidavit signed by the defendant. See Form 9-406 NMRA (1990);
Rule 5-303(E)(5) NMRA (1990); Rule 6-502(D)(2) NMRA (1990); Rule 7-502(E)(2)
NMRA (1990); & Rule 8-502(D)(2) NMRA (1990). These requirements were not new in
1997 at the time Ramirez pleaded guilty, and they were “designed to ensure a guilty plea is
made knowingly and voluntarily.” See State v. Garcia, 1996-NMSC-013, ¶ 8, 121 N.M.
544, 915 P.2d 300 (stating that “New Mexico has long recognized that for a guilty plea to
be valid it must be knowing and voluntary”).

BACKGROUND

{3}     On January 4, 1997, Martin Ramirez was arrested and charged with possession of up
to one ounce of marijuana and two other misdemeanors, contrary to NMSA 1978, Section
30-31-23(B)(1) (1990, amended 2011) (possession of up to one ounce of marijuana); NMSA
1978, Section 30-31-25.1 (1981, amended 2001) (possession of drug paraphernalia); and
NMSA 1978, Section 30-22-3 (1963) (concealing identity), respectively. He appeared in
metropolitan court for a custody arraignment two days later and pleaded guilty to all three
charges on the advice of his public defender. In 2009, Ramirez learned that his guilty pleas
in 1997 rendered him “inadmissible to the United States.”1 Ramirez filed a petition for writ
of error coram nobis in the district court, seeking to vacate his metropolitan court guilty
pleas on the basis of ineffective assistance of counsel. Ramirez’s undisputed contentions are
that he first met with his attorney right before his arraignment and that the attorney advised
him that if he pleaded guilty to the charges, which he did, his sentence would be to time
already served. Also apparently uncontested is Ramirez’s assertion that his attorney never
advised him about any immigration consequences of his guilty pleas, which was in direct
conflict with the requirement that Form 9-406 (1990) be completed by the judge, the
defendant, and the defendant’s attorney if the defendant was represented by counsel. Form
9-406(9) (1990) required the judge to certify nine facts, including “[t]hat the defendant
understands that a conviction may have an effect upon the defendant’s immigration or
naturalization status.” Form 9-406 (1990) also required the defendant as an affiant to certify
under oath that the judge had so advised the defendant. Finally, Form 9-406 (1990) required
the defendant’s attorney to certify “that [the attorney] has conferred with [the attorney’s]
client with reference to the execution of [the] affidavit and that [the attorney] has explained
in detail its contents.”

{4}     We cannot determine from the record before us whether Form 9-406 (1990) was filed
in this case because Ramirez’s case files from both the metropolitan court and the public
defender department were destroyed prior to the present appeal. Nonetheless, we presume
that guilty plea Form 9-406 (1990) was properly utilized. See Doe v. City of Albuquerque,
1981-NMCA-049, ¶ 8, 96 N.M. 433, 631 P.2d 728 (“[W]e will indulge all presumptions in
favor of the correctness of the procedures in the trial court.”).

{5}     During the hearing regarding Ramirez’s petition to set aside his guilty pleas,
Ramirez’s counsel stated that had Ramirez known about the immigration consequences of
his guilty pleas, “he would not have taken that step at that point.” The Court stated that all
parties were in agreement regarding Ramirez’s contentions, and the State did not disagree.
The court accepted as true Ramirez’s allegation that he would not have entered guilty pleas


       1
         The United States Citizenship and Immigration Services (USCIS), which operates
under the Department of Homeland Security, sent Ramirez its decision on his application for
waiver of grounds of inadmissability on June 22, 2009. In its decision, USCIS cited Section
212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (8 U.S.C. § 1182(a)(2)(A)(i)(II))
to inform Ramirez that his pleas of “guilty” to the charges of possession of marijuana and
other misdemeanors fell within the scope of immigration and citizenship disqualifications,
or inadmissibility. The USCIS decision also explained why the discretionary power of the
Attorney General to waive inadmissibility was not granted to Ramirez, despite the fact that
he established that he has a child who is a United States citizen, whom he would be forced
to leave behind.

                                              2
in his misdemeanor charges had his attorney advised him of the immigration consequences.
However, the court denied Ramirez’s writ, reasoning that Paredez did not apply
retroactively.

{6}     On appeal, the Court of Appeals held that Paredez and its federal corollary, Padilla
v. Kentucky, 559 U.S. 356, 359-60 (2010) (holding that the Sixth Amendment guarantee of
effective assistance of counsel requires a defendant’s attorney to advise the defendant that
pleading guilty to charges of transporting marijuana would result in deportation), apply
retroactively in the State of New Mexico. State v. Ramirez, 2012-NMCA-057, ¶ 16, 278
P.3d 569. We granted the State’s petition for writ of certiorari. Since we granted the State’s
petition, the United States Supreme Court filed its opinion in Chaidez v. United States, ___
U.S. ___, 133 S. Ct. 1103 (2013), which stated that its holding in Padilla should not apply
retroactively in federal courts because Padilla announced a new rule of criminal procedure.
Id. at ___, 133 S. Ct. at 1107-08. We decline to follow Chaidez and we affirm the Court of
Appeals because since 1990, the New Mexico Supreme Court rules and forms have required
an attorney to certify having engaged the client in detail in a guilty plea colloquy that
included immigration consequences. Because the requirements that Form 9-406 imposes are
not new in New Mexico, our holding in Paredez imposing requirements that were effective
in 1990 applies retroactively to 1990, the adoption date of the Form 9-406 amendment that
required a defendant to understand the possible immigration consequences of a plea
conviction.

DISCUSSION

{7}     In Paredez, we held that criminal defense attorneys must determine the immigration
status of their clients and must advise the client who is not a United States citizen
specifically regarding the immigration consequences of a guilty plea, including whether the
guilty plea is virtually certain to result in the client’s deportation. 2004-NMSC-036, ¶ 19.
Three key reasons motivated our holding. First, “[d]eportation can often be the harshest
consequence of a non-citizen criminal defendant’s guilty plea, so that ‘in many misdemeanor
and low-level felony cases . . . [he or she] is usually much more concerned about
immigration consequences than about the term of imprisonment.’ ” Id. ¶ 18 (second
alteration and omission in original) (quoting Jennifer Welch, Comment, Defending Against
Deportation: Equipping Public Defenders to Represent Noncitizens Effectively, 92 Cal. L.
Rev. 541, 545 (2004)). Second, “requiring . . . such advice is consistent with the spirit of
[the 1992 predecessor to Rule 5-303(E)(5)], which prohibits the district court from accepting
a guilty plea without first determining that the defendant has an understanding of the
immigration consequences of the plea.” Paredez, 2004-NMSC-036, ¶ 19. Forms 9-406
(applicable to the district courts) and 9-406A NMRA (applicable to magistrate, metropolitan,
and municipal courts) are used in New Mexico courts in the course of accepting a guilty
plea. See Rules 5-303(E)(5), 6-502(D)(2), 7-502(E)(2), & 8-502(D)(2) (predicating
acceptance of a guilty plea by a district, magistrate, metropolitan, or municipal court,
respectively, on that court’s colloquy with the defendant directly, assuring the defendant’s
understanding of the immigration consequences of the plea). Third, a noncitizen defendant’s

                                              3
knowing and voluntary guilty plea depends upon that defendant having received proper
advice regarding the immigration consequences of the plea. Paredez, 2004-NMSC-036, ¶
19.

{8}      In Paredez, we also explained what would constitute deficient advice, and therefore
ineffective assistance of counsel. See id. ¶¶ 13-14; see also Strickland v. Washington, 466
U.S. 668, 687 (1984) (holding that to establish ineffective assistance of counsel, a defendant
must show that (1) “counsel’s performance was deficient” and (2) “the deficient performance
prejudiced the defense”). Advising a client that deportation is not a consequence when
deportation is a possibility, advising the client that deportation is only a possibility when it
is a virtual certainty, or failing to give the client any advice at all regarding immigration
consequences all constitute evidence of deficient advice that could satisfy the first prong for
ineffective assistance of counsel. Paredez, 2004-NMSC-036, ¶¶ 15-16. Proof that the
defendant would not have pleaded guilty except for the deficient advice demonstrates
prejudice. See id. ¶ 20. If the defendant is prejudiced by the deficient advice, the attorney’s
representation was ineffective, and the defendant may withdraw the guilty plea. See id. ¶ 19.

{9}    Whether Paredez should apply retroactively is an issue of first impression in New
Mexico. We review the retroactive application of a judicial opinion de novo. Kersey v.
Hatch, 2010-NMSC-020, ¶ 14, 148 N.M. 381, 237 P.3d 683.

{10} Chaidez declined to retroactively apply Padilla, Paredez’s federal corollary, because
Padilla represented a “new rule” under the federal analysis formulated in Teague v. Lane,
489 U.S. 288, 290-92 (1989) (adopting the view that “new rules [of criminal procedure are]
not . . . applicable to those cases that have become final before the new rules were
announced”), holding limited on other grounds by Lockhart v. Fretwell, 506 U.S. 364, 372-
73 (1993). Chaidez, ___ U.S. at ___, 133 S. Ct. at 1107-08 (“Padilla thus announced a ‘new
rule.’ ”). The State concedes that this Court is not required to follow Chaidez. See Danforth
v. Minnesota, 552 U.S. 264, 280-81 (2008) (holding that Teague was not intended “to limit
a state court’s authority to grant relief for violations of new rules of constitutional law when
reviewing its own State’s convictions”).

{11} Pursuant to Teague, New Mexico does not give retroactive effect to a new criminal
procedure rule. See Kersey, 2010-NMSC-020, ¶¶ 1, 25. The test determines whether a
previously issued judicial opinion introduced a new rule of criminal procedure or merely
expanded upon an already established rule. See id. Under Teague, “new rules generally
should not be afforded retroactive effect unless (1) the rule is substantive in nature, in that
it alters the range of conduct or the class of persons that the law punishes, or (2) although
procedural in nature, the rule announces a watershed rule of criminal procedure.” Kersey,
2010-NMSC-020, ¶ 25 (internal quotation marks and citations omitted). A “new rule” is one
that “breaks new ground or imposes a new obligation on the States . . . [or where] the result
was not dictated by precedent existing at the time the defendant’s conviction became final.”
Id. ¶ 16 (internal quotation marks and citations omitted). A rule that is not deemed a “new
rule” by this test may apply retroactively.

                                               4
{12} Although in Chaidez the United States Supreme Court clarifies “that a lawyer who
neglects to inform a client about the risk of deportation is professionally incompetent,” ___
U.S. at ___, 133 S. Ct. at 1108, the Court held that Padilla imposed “a new obligation” on
attorneys to counsel their clients about the immigration consequences of their pleas, id. at
1110-11 (internal quotation marks and citation omitted). Rule 11 of the Federal Rules of
Criminal Procedure governs the taking of guilty pleas. See Fed. R. Crim. P. 11. Prior to
Chaidez, immigration consequences were not part of the plea colloquy under Rule 11(b).
However, in 2013, after Chaidez, Rule 11 was amended to require the court to “inform the
defendant of, and determine that the defendant understands, the following . . . that, if
convicted, a defendant who is not a United States citizen may be removed from the United
States, denied citizenship, and denied admission to the United States in the future.” Fed. R.
Crim. P. 11(b)(1)(O).

{13} Unlike the federal system, since 1990 New Mexico has required attorneys in all trial
courts to advise their clients of the details of the plea colloquy. Form 9-406 was amended
in 1990 to, among other things, require the judge to advise the defendant that a conviction
may have an effect on the defendant’s immigration status. Form 9-406 (1990), applicable
to all New Mexico trial courts, also obligated the attorney to certify having explained the
plea colloquy to the client in detail. As it existed after amendment in 1990, and as it
appeared in 1997 when Ramirez pleaded guilty, Form 9-406 (which applied to Rules 5-303,
6-502, 7-502, and 8-502) provided:

STATE OF NEW MEXICO              COUNTY OF __________________
               IN THE ______________ COURT

STATE OF NEW MEXICO

       v.                                                    No. __________________

John Doe

                            GUILTY PLEA PROCEEDING

       The defendant personally appearing before me, I have ascertained the following facts,
noting each by initialing it.

 Judge’s
 Initial

_______ 1. That the defendant understands the charges set forth in the (complaint)
(information) (indictment).

_______ 2. That the defendant understands the range of possible sentence for the offenses
charged, from a suspended sentence to a maximum of _________.

                                             5
_______ 3. That the defendant understands the following constitutional rights which the
defendant gives up by pleading (guilty) (guilty but mentally ill):

_______ (a) the right to trial by jury, if any;

_______ (b) the right to the assistance of an attorney at all stages of the proceeding, and to
an appointed attorney, to be furnished free of charge, if the defendant cannot afford one;

_______ (c) the right to confront the witnesses against him and to cross-examine them as
to the truthfulness of their testimony;

_______ (d) the right to present evidence on his own behalf, and to have the state compel
witnesses of his choosing to appear and testify;

_______ (e) the right to remain silent and to be presumed innocent until proven guilty
beyond a reasonable doubt.

_______ 4. That the defendant wishes to give up the constitutional rights of which the
defendant has been advised.

_______ 5. That there exists a basis in fact for believing the defendant is (guilty) (guilty but
mentally ill) of the offenses charged and that an independent record for such factual basis
has been made.

_______ 6. That the defendant and the prosecutor have entered into a plea agreement and
that the defendant understands and consents to its terms. (Indicate “NONE” if a plea
agreement has not been signed.)

_______ 7. That the plea is voluntary and not the result of force, threats or promises other
than a plea agreement.

_______ 8. That under the circumstances, it is reasonable that the defendant plead (guilty)
(guilty but mentally ill).

_______ 9. That the defendant understands that a conviction may have an effect upon the
defendant’s immigration or naturalization status.

        On the basis of these findings, I conclude that the defendant knowingly, voluntarily
and intelligently pleads (guilty) (guilty but mentally ill) to the above charges and accept such
plea. A copy of this affidavit shall be made a part of the record in the above-styled case.

__________________________________                      _________________________
District Judge                                               Date


                                               6
                            CERTIFICATE BY DEFENDANT

       I certify that the judge personally advised me of the matters noted above, that I
understand the constitutional rights that I am giving up by pleading (guilty) (guilty but
mentally ill) and that I desire to plead (guilty) (guilty but mentally ill) to the charges stated.
                                                         _____________________________
                                                         Defendant

 Subscribed and sworn to
 before me this ________
 day of ______, 19______
 ______________________________________
 Clerk, Notary or Other Officer Authorized to Administer Oaths

       The undersigned attorney hereby certifies that he has conferred with his client with
reference to the execution of this affidavit and that he has explained in detail its contents.
                                                       _______________________________
                                                       Defense Counsel

[As amended, effective September 1, 1990.]

(Emphasis added.)

{14} A rule may be viewed as new if its “result was not dictated by precedent existing at
the time the defendant’s conviction became final.” Kersey, 2010-NMSC-020, ¶ 16 (internal
quotation marks and citations omitted). The Chaidez majority concluded that Padilla
announced a new rule because until Padilla the United States Supreme Court “had declined
to decide whether the Sixth Amendment had any relevance to a lawyer’s advice about
matters not part of a criminal proceeding.” Chaidez, ___ U.S. at ___, 133 S. Ct. at 1110.
However, in 1990 the New Mexico Supreme Court required lawyers to advise their clients
about immigration consequences as part of the criminal guilty plea proceeding. See Form
9-406 (1990). Our holding today aligns with Justice Sotomayor’s dissent in Chaidez, where
she wrote,

        Padilla did nothing more than apply the existing rule of Strickland . . . in a
        new setting, the same way the Court has done repeatedly in the past: by
        surveying the relevant professional norms and concluding that they
        unequivocally required attorneys to provide advice about the immigration
        consequences of a guilty plea.

Chaidez, ___ U.S. at ___, 133 S. Ct. at 1114 (Sotomayor, J., dissenting) (internal citation
omitted).

{15}    We surveyed the professional norms relevant in New Mexico, which indicate that

                                                7
counsel was obligated at the time of Ramirez’s arraignment and pleas to certify having
conferred with Ramirez about the plea affidavit, including potential immigration
consequences of a guilty plea. These professional norms were hardly novel, even in 1990.
In 1982, the American Bar Association stated the importance of criminal defense attorneys
advising clients about the effect a guilty plea might have on immigration consequences. See
3 ABA Standards for Criminal Justice 14–3.2 cmt., at 75 (2d ed. 1982). The United States
Supreme Court acknowledged ABA Standard 14–3.2 in Immigration & Naturalization
Service v. St. Cyr, 533 U.S. 289, 323 n.48 (2001) (“[T]he American Bar Association’s
Standards for Criminal Justice provide that, if a defendant will face deportation as a result
of a conviction, defense counsel ‘should fully advise the defendant of these consequences.’”
(quoting ABA Standard 14–3.2 cmt., at 75)); Donald J. Newman, Conviction: The
Determination of Guilt or Innocence Without Trial, at 209 (Frank J. Remington ed., 1966)
(“Effective counseling regarding the likely consequences of the guilty plea requires the
lawyer to have intimate knowledge of sentencing provisions and procedures.”).

{16} At the time Ramirez entered his guilty pleas, additional immigration-specific and
general guidelines existed which counseled defense attorneys on how to competently advise
clients regarding immigration consequences. In 1995, the National Legal Aid and Defender
Association recognized that “[i]n order to develop an overall negotiation plan, counsel
should be fully aware of, and make sure the client is fully aware of: . . . (3) other
consequences of conviction such as deportation.” National Legal Aid & Defender
Association, Performance Guidelines for Criminal Defense Representation Guideline
6.2(a)(3) (1995); F. Lee Bailey & Kenneth J. Fishman, Handling Misdemeanor Cases § 3.7,
at 5-6 (2d ed. 1992) (“In misdemeanor cases, the possible consequences of a conviction may
be so drastic that the defendant must take his or her chances on a trial. . . . A convicted alien
may be deported.”).

{17} Although we may have decided to follow the majority opinion in Chaidez had we not
historically included checks regarding immigration consequences in our guilty plea
proceedings, the fact is that the State of New Mexico has had such a requirement since 1990.
While there is no record of Form 9-406 (1990) or the corresponding plea colloquy in this
case, we have held in other cases where counsel has failed to properly advise a client during
the plea entry phase that not even a record of the court’s adherence to the plea colloquy cures
the ineffective assistance of counsel. See State v. Hunter, 2006-NMSC-043, ¶ 29, 140 N.M.
406, 143 P.3d 168 (holding that where a district court “properly conducted the plea hearing,
adhering to our rules governing the entry of pleas,” that proper plea hearing could not “cure
a defect caused by ineffective advice of counsel”). In this case, the presumptive plea
colloquy between the court and Ramirez required the court to determine whether Ramirez
was aware of the potential immigration consequences of his guilty pleas; and the rule
prescribing that determination by the court had existed in that form for seven years preceding
Ramirez’s arraignment and pleas. We hold today that Ramirez has a viable claim for
withdrawal of his 1997 guilty pleas based on ineffective assistance of counsel pursuant to
Form 9-406 (1990), which required attorneys to inform their clients in detail of the possible
immigration consequences of a guilty plea. We fail to see how our holding in

                                               8
Paredez—seven years after Ramirez’s pleas and fourteen years after Form 9-406 was
amended to require that the trial court assure a defendant’s understanding that a guilty plea
could affect the defendant’s immigration status—announced a new rule.

CONCLUSION

{18} We affirm the Court of Appeals and remand this case to the district court to allow
Ramirez the opportunity to claim ineffective assistance of counsel and seek withdrawal of
his guilty pleas.

{19}   IT IS SO ORDERED.

                                              _________________________________
                                              EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Senior Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
CHARLES W. DANIELS, Justice




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