

Opinion issued May 26, 2011

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00627-CR
———————————
 
EX PARTE YEKATERINA TANKLEVSKAYA, Applicant

 

 
On Appeal from the County Criminal Court at Law Number 11
Harris County, Texas

Trial Court Case No. 1686832
 

 
O P I N I O N
          In
2009, applicant, Yekaterina Tanklevskaya, a legal permanent resident of the
United States, pleaded guilty to the Class B misdemeanor offense of possession
of less than two ounces of marijuana and did not appeal her conviction.[1]  Applicant then traveled outside of the
country to visit her father.  Upon her
return to the United States, Immigration and Naturalization Services officials
detained her and subsequently initiated removal proceedings against her.  Shortly after the United States Supreme Court
decided Padilla v. Kentucky in March
2010,[2] applicant filed an
application for a writ of habeas corpus, arguing that her guilty plea was
involuntary because her plea counsel failed to inform her of the immigration
consequences of a guilty plea.  The trial
court denied habeas corpus relief.  In
one issue, applicant contends that the trial court erred in denying habeas
relief because, pursuant to Padilla,
her plea counsel provided ineffective assistance when he failed to specifically
inform her that a guilty plea would render her presumptively inadmissible upon
leaving and attempting to re-enter the United States.
          We
reverse the judgment of the trial court and grant habeas corpus relief.
Background
          In
April 2009, the State charged applicant with the Class B misdemeanor offense of
possession of less than two ounces of marijuana.  Applicant pleaded guilty, and the trial court
assessed punishment at four days’ confinement in the Harris County Jail and a
six-month suspension of her driver’s license.[3]  Applicant did not directly appeal her
conviction, and she successfully completed the terms of her punishment.
          Shortly
after pleading guilty, applicant, a Ukrainian citizen and legal permanent
resident of the United States, left the country to visit her father in
Germany.  Upon her return to the United
States, immigration officials detained applicant in Memphis, confiscated her
permanent resident card, and allowed her to return to Houston pending removal
proceedings.  The Immigration and
Naturalization Service subsequently initiated removal proceedings against
applicant on the ground that her conviction rendered her “inadmissible” to the
United States.  See 8 U.S.C.S. § 1182(a)(2)(A)(i)(II) (2008) (stating that
alien convicted of violating any state law relating to controlled substances is
inadmissible).
          In
March 2010, the United States Supreme Court decided Padilla v. Kentucky, which addressed whether defense counsel’s
failure to provide information regarding the immigration consequences of a
guilty plea constitutes ineffective assistance of counsel under Strickland v. Washington and therefore
renders a guilty plea involuntary.  See Padilla
v. Kentucky, 130 S. Ct. 1473, 1482–84 (2010); Strickland, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068
(1984).  The Padilla Court held that defense counsel “must inform her client
whether his plea carries a risk of deportation” to satisfy the requirements of
the Sixth Amendment.  Padilla, 130 S. Ct. at 1486.  The Court clarified that when the relevant
immigration law is “not succinct and straightforward,” defense counsel need
only “advise a noncitizen client that pending criminal charges may carry a risk
of adverse immigration consequences”; however, when the deportation
consequences are “truly clear,” counsel has an “equally clear” duty to give
correct advice.  Id. at 1483.
          On
May 27, 2010, applicant filed an application for a writ of habeas corpus
alleging that her plea counsel did not sufficiently advise her of the
immigration consequences of her guilty plea and therefore provided ineffective
assistance under Padilla, rendering
her guilty plea involuntary.  At the
habeas hearing, neither the State nor applicant called applicant’s plea counsel
as a witness, but both parties stipulated that he would testify that he
informed applicant of the general immigration consequences to a guilty plea,
but he did not specifically tell her that, upon leaving and attempting to
return to the United States, she would be presumptively inadmissible.  Nor did he tell her that she could not
request a waiver of the inadmissibility provision because the information in
the original case did not specify that the quantity of marijuana allegedly
possessed was less than thirty grams.[4]  Both parties agreed that applicant signed the
usual “plea paperwork,” which includes the acknowledgement that “I understand
that upon a plea of guilty/nolo
contendere . . . that if I am not a citizen of the
United States my plea of guilty/nolo
contendere may result in my deportation, exclusion from admission to this
country, or denial of naturalization under federal law,” and that the trial
court admonished applicant regarding the general immigration consequences
before accepting her guilty plea pursuant to Code of Criminal Procedure article
26.13(a).
          At
the hearing, applicant testified that, when she met with her plea counsel, she
informed him that she planned to visit her father in Germany and he confirmed
her belief that she could not travel outside of the United States while on
probation.  Plea counsel informed
applicant that an additional option to probation would be to plead guilty and
receive a suspension of her driver’s license. 
According to applicant, plea counsel did not tell her that if she left
the country, she would be inadmissible and subject to removal proceedings upon
her return to the United States.  Applicant
also testified that counsel never discussed how the State’s failure to specify
in the information the precise quantity of marijuana that she allegedly
possessed affected her ability to obtain a waiver of the inadmissibility
provision.[5]  Applicant stated that had she known that she
would be inadmissible upon her return to the country, she “would [not] have
accepted the plea as [she] did.”  When
asked whether she “would have decided maybe to go to trial,” applicant
responded that she “would have thought about it” and “would have probably done
so.”  The trial court then had a brief
discussion with defense counsel regarding how applicant’s situation would be
different if she had accepted deferred adjudication.  Defense counsel indicated that applicant
would not be facing removal proceedings if she had accepted, and the trial
court had approved, deferred adjudication.
          On
cross-examination, applicant conceded that her plea counsel informed her of the
“general possibilities” regarding the immigration consequences of a guilty plea
by a noncitizen.  Applicant also admitted
that she signed the “green sheet,” which states the consequences of a plea of
guilty or nolo contendere and includes a warning that a conviction may result
in deportation or inadmissibility to the country.  Applicant also had the following exchange
with the prosecutor:
State:          You testified earlier that would have
possibly thought about a jury trial had you known about other consequences; is
that correct?
 
Applicant:  That is absolutely correct.  I would have certainly weighed my options
differently had I known what would result by taking the trip outside of the
country.
 
Applicant further acknowledged that she knew that
she was voluntarily waiving her right to a jury trial when she signed the plea
documents and entered her guilty plea.
          The
trial court subsequently denied habeas corpus relief.  Applicant did not request findings of fact
and conclusions of law.
Standard of Review
          An
applicant seeking habeas corpus relief based on an involuntary guilty plea must
prove her claim by a preponderance of the evidence.  Kniatt
v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) (citing Ex parte Morrow, 952 S.W.2d 530, 535
(Tex. Crim. App. 1997)).  When reviewing
a trial court’s ruling on a habeas corpus application, we view the evidence
presented in the light most favorable to the trial court’s ruling, and we must
uphold that ruling absent an abuse of discretion.  Id.
(citing Ex parte Peterson, 117 S.W.3d
804, 819 (Tex. Crim. App. 2003), overruled
on other grounds, Ex parte Lewis,
219 S.W.3d 335, 371 (Tex. Crim. App. 2007)). 
We afford almost total deference to a trial court’s findings in habeas
proceedings, particularly when those findings are based upon an evaluation of
credibility and demeanor.  Ex parte Amezquita, 223 S.W.3d 363, 367
(Tex. Crim. App. 2006) (quoting Ex parte
White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004)); see also Ex parte Wheeler, 203 S.W.3d 317, 324 n.23 (Tex. Crim.
App. 2006) (noting that we should also defer to trial court’s “implicit factual
findings” that support trial court’s ultimate ruling); Peterson, 117 S.W.3d at 819 (noting same).  We similarly defer to the trial court’s
application of the law to the facts if that resolution turns upon credibility
and demeanor determinations.  Peterson, 117 S.W.3d at 819.  If the resolution of the ultimate question
turns on an application of law, we review the determination de novo.  Id.
Ineffective Assistance of Counsel
          In
her sole issue, applicant contends that the trial court erred in denying habeas
corpus relief because her plea counsel rendered ineffective assistance under Strickland v. Washington and Padilla v. Kentucky.  Applicant specifically complains about her
plea counsel’s failure to inform her that (1) her guilty plea would make her
inadmissible to return to the United States after traveling abroad and (2) she
could not request a waiver of the inadmissibility provision because the
information failed to specify that the quantity of marijuana allegedly
possessed was less than thirty grams. 
Because of plea counsel’s alleged ineffective assistance, applicant
contends that she involuntarily pleaded guilty.
A.  
Padilla v. Kentucky
A defendant has a Sixth Amendment
right to effective assistance of counsel at a guilty-plea proceeding.  Ex
parte Reedy, 282 S.W.3d 492, 500 (Tex. Crim. App. 2009).  This right, however, does not extend to the
“collateral consequences” of the criminal prosecution, which are consequences
that are not “definite, practical consequence[s] of a defendant’s guilty
plea.”  Morrow, 952 S.W.2d at 536.  Although a defendant must be advised of the
direct consequences of her guilty plea, “her ignorance of a collateral
consequence does not render the plea involuntary.”  Id.
(citing United States v. Long, 852
F.2d 975, 979–80 (7th Cir. 1988)).
          Historically,
courts have considered deportation to be a “collateral consequence” of a guilty
plea; however, in Padilla, the
Supreme Court recognized that deportation is “uniquely difficult to classify as
either a direct or collateral consequence,” given its “close connection” to
criminal proceedings, and it concluded that “advice regarding deportation is
not categorically removed from the ambit of the Sixth Amendment right to
counsel.”  Padilla, 130 S. Ct. at 1482. 
Padilla, a legal permanent resident who had lived in the United States
for more than forty years, was arrested for the transportation of marijuana, an
offense for which deportation is “virtually mandatory.”  Id.
at 1477–78.  Padilla pleaded guilty to
the offense and subsequently faced removal proceedings.  Id.
at 1477.  Padilla contended that his plea
counsel “not only failed to advise him of [the deportation] consequence prior
to entering his plea, but also told him that he ‘did not have to worry about
immigration status since he had been in the country so long.’”  Id.
at 1478.  Padilla relied on this advice
when he decided to plead guilty, and he contended that had he not received this
incorrect advice he would have insisted on going to trial.  Id.
          The Padilla Court, in applying the Strickland framework for ineffective
assistance claims, noted that immigration law is complex and that there are
“numerous situations in which the deportation consequences of a particular plea
are unclear or uncertain.”  Id. at 1483.  In situations in which the applicable immigration
law is “not succinct and straightforward,” defense counsel “need do no more
than advise a noncitizen client that pending criminal charges may carry a risk
of adverse immigration consequences.”  Id. 
When, however, the “deportation consequence is truly clear,” defense
counsel owes an “equally clear” duty to give correct advice.  Id.  The Court refused to hold that defense
counsel must only avoid providing “affirmative misadvice” to a noncitizen
client, and it instead determined that “there is no relevant difference between
an act of commission and an act of omission in this context.”  Id.
at 1484.  Silence regarding the negative
immigration consequences of a guilty plea, therefore, also constitutes
constitutionally deficient representation under Strickland.  Id. 
The Court also noted that professional norms already generally impose an
obligation on defense counsel to provide advice regarding deportation
consequences of guilty pleas.  Id. at 1485.  The Court ultimately held that “counsel must
inform her client whether his plea carries a risk of deportation.”  Id.
at 1486.  Although the Court held that
Padilla satisfied the first prong of Strickland,
constitutionally deficient performance, it remanded for a determination of
prejudice.  Id. at 1486–87.
 
 
B.  
Retroactive Effect of Padilla
          Because
applicant’s conviction was final at the time the Supreme Court decided Padilla, we must first determine whether
Padilla applies retroactively to
applicant’s case on collateral review. 
The State contends that Padilla
announced a “new constitutional rule of criminal procedure” that should not be
applied retroactively to cases on collateral review.  See
Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075 (1989).  Applicant contends that Padilla did not announce a new rule of criminal procedure but,
instead, merely clarified the class of individuals to whom Strickland applies and therefore should be applied retroactively.[6]
          In Teague, the Supreme Court held that,
with two exceptions, “new constitutional rules of criminal procedure will not
be applicable to those cases which have become final before the new rules are
announced.”  489 U.S. at 310, 109 S. Ct.
at 1075; see also Whorton v. Bockting,
549 U.S. 406, 416, 127 S. Ct. 1173, 1180 (2007) (“Under the Teague framework, an old rule applies
both on direct and collateral review, but a new rule is generally applicable
only to cases that are still on direct review.”).  The Court “has consistently stated that ‘[a]
holding constitutes a ‘new rule’ within the meaning of Teague if it ‘breaks new ground,’ ‘imposes a new obligation on the
states or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant’s
conviction became final.’”  Marroquin v. United States, No.
M-10-156, 2011 WL 488985, at *2 (S.D. Tex. Feb. 4, 2011) (slip op.) (quoting Graham v. Collins, 506 U.S. 461, 467,
113 S. Ct. 892, 897 (1993) (emphasis in original)).  If, however, the Court “applies a
well-established rule of law in a new way based on the specific facts of a
particular case, it does not generally establish a new rule.”  United
States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625, at *5 (E.D. Cal. July
1, 2010) (slip op.) (citing Stringer v.
Black, 503 U.S. 222, 228–29, 112 S. Ct. 1130, 1135–36 (1992)); see also Wright v. West, 505 U.S. 277,
308, 112 S. Ct. 2482, 2499 (1992) (Kennedy, J., concurring) (“If the rule in
question is one which of necessity requires a case-by-case examination of the
evidence, then we can tolerate a number of specific applications without saying
that those applications themselves create a new rule.”).
          In Hubenig, the Eastern District of
California observed that the issue in Padilla
was whether plea counsel’s performance satisfied the first prong of the
familiar Strickland standard for
determining ineffective assistance, and the court noted that specific
applications of Strickland, which
involve “case-by-case examination[s] of the evidence,” generally do not
“establish a new rule for purposes of Teague.”  2010 WL 2650625, at *5.  The Hubenig
court concluded that Padilla’s
application of Strickland did not
“produce a novel result and, therefore, did not announce a new rule under Teague.” 
Id. at *6.  The court noted that in INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271 (2001), the Supreme
Court stated that “competent defense counsel, following the advice of numerous
practice guides, would have advised [her client]” regarding whether a
conviction would affect removability from the United States.  Id.
(quoting St. Cyr, 533 U.S. at 323
n.50, 121 S. Ct. at 2291); see also
Padilla, 130 S. Ct. at 1482 (“The first prong [of Strickland]—constitutional
deficiency—is necessarily linked to the
practice and expectations of the legal community:  ‘The proper measure of attorney performance
remains simply reasonableness under prevailing professional norms.’”) (quoting Strickland, 466 U.S. at 688, 104 S. Ct.
at 2065).  The court concluded that the
idea that reasonably prudent counsel would have advised his client regarding
the immigration consequences of a guilty plea is “not a novel concept.”  Id.
The Eastern District of California
further noted that the fact that Padilla
overruled Ninth Circuit precedent was “not dispositive of whether [Padilla] established a new rule for Teague purposes” because the determination
of whether a new rule was created is “objective” and the “mere existence of
conflicting authority does not necessarily mean a rule is new.”  Hubenig,
2010 WL 2650625, at *7 (quoting Williams
v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 1522 (2000)); see also Tanner v. McDaniel, 493 F.3d
1135, 1143–44 (9th Cir. 2007) (“Each time that a court delineates what
‘reasonably effective assistance’ requires of defense attorneys with respect to
a particular aspect of client representation, . . . it can
hardly be thought to have created a new principle of constitutional
law.”).  Finally, the Hubenig court considered the Supreme
Court’s statement in Padilla that it
had “given serious consideration” to the argument that its decision would open
the “floodgates” to litigation challenging old guilty pleas and stated that the
Court “minimized” this concern by pointing out that a defendant would have to
meet both prongs of Strickland before
the plea could be set aside.  Hubenig, 2010 WL 2650625, at *7.  The Hubenig
court reasoned that this discussion would have been unnecessary if the Supreme
Court had intended for Padilla to
only apply prospectively.  Id. 
The Eastern District of California ultimately concluded that Padilla did not establish a new rule
under Teague, and, thus, it applied Padilla retroactively.  Id.
at *8.
          In Marroquin, the Southern District of
Texas explicitly joined with other courts, including the Eastern District of
California, and concluded that “Padilla
does not announce a new rule, that [Padilla]
is an extension of the rule in Strickland
v. Washington—requiring
effective assistance of counsel—and that [Padilla’s] holding should apply
retroactively.”  2011 WL 488985, at
*2.  The Southern District reasoned that
the Supreme Court did not “break new ground” in Padilla; rather, it merely “pointed out the error [the
direct-versus-collateral consequences distinction] in the lower courts that
prevented them from considering ineffective assistance of counsel claims under Strickland.”  Id.
at *4.  The Marroquin court noted that in Padilla,
as in most Strickland cases, the
Supreme Court “merely cited to professional standards and expectations and
identified competent counsel’s duty in accordance thereof.”  Id.
at *5; see also Padilla, 130 S. Ct.
at 1482 (“The weight of prevailing professional norms supports the view that
counsel must advise her client regarding the risk of deportation.”).  The court acknowledged that Padilla overruled numerous lower court
decisions, but it discounted the relevance of this fact by noting that Padilla “abrogated the lower courts’
decisions because of their ‘ill-suited’ distinction between direct and
collateral consequences,” and it reasoned that, had the lower courts not
“dwelled” on this distinction, they necessarily would have applied Strickland and considered the same
professional standards that the Supreme Court considered in Padilla. 
Marroquin, 2011 WL 488985, at
*6.  The court held that, “[i]n Padilla, the Supreme Court has not
announced a new law, it has applied existing law to a new set of facts;
therefore, this Court concludes Padilla
applies retroactively.”  Id. at *7.
          We
agree with the analysis of the courts in Hubenig
and Marroquin and hold that the
Supreme Court’s decision in Padilla
should be applied retroactively to cases on collateral review.
C.  
Deficient Performance
Here, it is undisputed that
applicant’s plea counsel informed her of the general immigration consequences
to pleading guilty, that applicant signed a document acknowledging that a
guilty plea “may result in [her] deportation, exclusion from admission to this
country, or denial of naturalization under federal law,” and that the trial
court provided this same admonishment pursuant to Code of Criminal Procedure
article 26.13(a) before accepting applicant’s guilty plea.  It is also undisputed that applicant’s plea
counsel did not specifically inform her that a guilty plea rendered her
presumptively inadmissible to the United States upon her return from traveling
abroad or that she could not obtain a waiver from this inadmissibility
requirement because the information did not specify that the quantity of
marijuana allegedly possessed was less than thirty grams.  Applicant contends that these failures
constitute ineffective assistance and render her plea involuntary under Strickland and Padilla.
          An
applicant seeking habeas corpus relief based upon ineffective assistance of
counsel must demonstrate, by a preponderance of the evidence, (1) that her
counsel’s representation “fell below an objective standard of reasonableness”
and (2) that there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.”  Padilla, 130 S. Ct. at 1482 (quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068); Ex parte Chandler, 182 S.W.3d 350, 353
(Tex. Crim. App. 2005).  We presume that
counsel’s conduct falls within the wide range of reasonable professional
assistance, and we will find counsel’s performance deficient only if the
conduct is so outrageous that no competent attorney would have engaged in
it.  Andrews
v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (citing Bone v. State, 77 S.W.3d 828, 833 n.13
(Tex. Crim. App. 2002)).  Any allegation
of ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.  Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
          Section
1182(a)(2)(A)(i)(II) of Title 8 of the United States Code provides that “any
alien convicted of, or who admits having committed, or who admits committing
acts which constitute the essential elements of a violation
of . . . any law or regulation of a
state . . . relating to a controlled substance is
inadmissible.”  8 U.S.C.S. § 1182(a)(2)(A)(i)(II)
(2008).  In certain circumstances, the
Attorney General may, in his discretion, waive the application of this
inadmissibility requirement “insofar as it relates to a single offense of
simple possession of 30 grams or less of marijuana.”  8 U.S.C.S. § 1182(h) (2008).  Upon pleading guilty to possession of
marijuana, therefore, applicant was presumptively inadmissible if she left and
attempted to return to the United States.[7]
          At
the habeas hearing, applicant testified that she informed her plea counsel that
she had an out-of-country trip planned and that she asked him about how that
trip affected her ability to seek probation. 
Counsel informed her that she could not travel outside of the country
while on probation and told her that her other option was to plead guilty and
receive a suspension of her driver’s license. 
The parties stipulated that plea counsel would testify that he informed
applicant of the “general immigration consequences” of a guilty plea—such as that applicant may be subject to deportation, inadmissibility, or denial of
naturalization upon pleading guilty—but did not inform her that under the immigration statutes, upon her
return to the United States from Germany, her inadmissibility and subsequent
removal was presumptively mandatory, especially because she did not qualify for
the “simple possession” waiver due to the information’s failure to specify that
the quantity of marijuana allegedly possessed was less than thirty grams.
          Padilla recognizes that immigration law
is complex and is a legal specialty with numerous nuances and intricacies.  The Supreme Court therefore held that “[w]hen
the law is not succinct and straightforward . . . a criminal
defense attorney need do no more than advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigration consequences.”  Padilla,
130 S. Ct. at 1483.  The Court also held,
however, that “when the deportation consequence is truly clear,” counsel’s
“duty to give correct advice is equally clear.” 
Id.  In Padilla,
“[t]he consequences of Padilla’s plea could easily be determined from reading
the removal statute [and] his deportation was presumptively mandatory. . . .”  Id.  “A criminal defendant who faces almost
certain deportation is entitled to know more than that it is possible that a guilty plea could lead
to removal; he is entitled to know that it is a virtual certainty.”  United
States v. Bonilla, 637 F.3d 980, 984 (9th Cir. 2011) (citing Padilla, 130 S. Ct. at 1483) (emphasis
in original).
Applicant’s inadmissibility upon
her return to the United States was presumptively mandatory, and the
immigration consequences of a guilty plea in this scenario were clear from
reading the inadmissibility and removal statutes.  Applicant’s plea counsel knew that she had an
out-of-country trip planned, and she was entitled to know that, if she still
chose to leave the country after pleading guilty, her inadmissibility and
subsequent removal was not merely a “possibility” but was a “virtual certainty”
and “presumptively mandatory” under the immigration statutes.
          We
therefore conclude that because the inadmissibility consequence is truly clear
in this case plea counsel had a duty to inform applicant of the specific
consequences of her guilty plea.  Because
counsel, who knew that applicant had an out-of-country trip planned, only
informed her of the general “possible” immigration consequences, and did not
inform her that her inadmissibility and subsequent removal was “virtually
certain” and “presumptively mandatory,” we hold that counsel’s performance was
deficient under the first prong of Strickland.
D.  
Prejudice
To establish prejudice in the
context of an involuntary guilty plea resulting from the ineffective assistance
of counsel, the applicant must demonstrate that there is a reasonable
probability that, but for her plea counsel’s deficient representation, she
would not have pleaded guilty, but would have instead insisted on going to
trial.  Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Morrow, 952 S.W.2d at 536.  The Court of Criminal Appeals has stated
that, to demonstrate prejudice in this situation, the defendant must show a
reasonable probability that, absent counsel’s errors, “a particular proceeding
would have occurred,” but she need not show that she would have received a
“more favorable disposition” had she gone to trial.  Johnson
v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005); see also Ex parte Crow, 180 S.W.3d 135, 138 (Tex. Crim. App.
2005).  Deprivation of a trial is a
structural defect, and the “narrowed prejudice inquiry” in the involuntary
guilty plea context “is designed to ensure that the defendant would actually have
availed himself of the proceeding in question, so that he really is in the same
position as someone whose rights were denied by the trial court.”  Johnson,
169 S.W.3d at 231–32.  Thus, counsel’s
allegedly deficient performance “must actually cause the forfeiture [of the
proceeding in question].”  Id. at 232.  If the defendant cannot demonstrate that, but
for the deficient performance, she would have availed herself of the
proceeding, “counsel’s deficient performance has not deprived [her] of
anything, and [she] is not entitled to relief.” 
Id. (quoting Roe v. Flores-Ortega, 528 U.S. 470, 484,
120 S. Ct. 1029, 1038 (2000)); Crow,
180 S.W.3d at 138.  In determining
whether the defendant met her burden to establish prejudice, “we are to
consider the circumstances surrounding her guilty plea and the gravity of the
advice that [the defendant] did not receive as it pertained to [the
defendant’s] plea determination.”  Jackson v. State, 139 S.W.3d 7, 20 (Tex.
App.—Fort Worth 2004, pet. ref’d).
Here, at the habeas hearing,
applicant testified regarding what actions she would have taken had her plea
counsel informed her of the specific consequences of her guilty plea.  Applicant had the following exchange with her
habeas counsel:
Counsel:     Had you known what you know now, at the
time, that you were going to be subject to being [in]admissible and to going to
this immigration proceeding, would you have accepted the plea as you did?
 
Applicant:  No, I would have not.
 
Counsel:     If you had known that not having a
determination of the amount of possession [in the information,] you would have
not been able to receive a waiver from the immigration courts, would you have
decided maybe to go to trial?
 
Applicant:  I would have thought about it.  I would have probably done so.
 
Shortly thereafter, on cross-examination, applicant
had a similar exchange about her options with the prosecutor:
State:          You testified earlier that you would
have possibly thought about a jury trial had you known about other
consequences; is that correct?
 
Applicant:  That is absolutely correct.  I would have certainly weighed my options
differently had I known what would result by taking the trip outside of the
country.
 
On appeal, applicant argues that if she had known of
the specific immigration consequences of her guilty plea, she would have gone
to trial or, at the least, attempted to negotiate a different plea that would
allow her to avoid the negative immigration consequences.
          To
establish prejudice in the involuntary guilty plea context, the defendant must
show, by a preponderance of the evidence that, but for her counsel’s errors,
she would have “insisted on going to trial.” 
Hill, 474 U.S. at 59, 106 S.
Ct. at 370; Morrow, 952 S.W.2d at
536.  Here, applicant testified at the
habeas hearing that, had she known that she would be subject to inadmissibility
and removal proceedings if she pleaded guilty, she would not have accepted the
plea “as [she] did” and she “would have probably” gone to trial.  She further stated that, had her plea counsel
informed her of what would happen if she traveled outside of the country after
pleading guilty, she “would have certainly weighed [her] options
differently.”  We conclude that based on
her testimony at the habeas hearing, applicant met her burden of demonstrating
that, but for her plea counsel’s deficient and incomplete advice regarding the
immigration consequences of a guilty plea, an issue of vital importance to
applicant, she would not have pleaded guilty. 
See Ex parte Moody, 991 S.W.2d
856, 858 (Tex. Crim. App. 1999) (“Applicant alleges that he would not have
accepted the plea bargain had he known he would not serve his sentences
concurrently. . . .  Applicant has met his burden of
showing a reasonable probability that, but for counsel’s erroneous advice, he
would not have pled guilty.  The nature
of the erroneous information in this case is of such importance, and so
critical to his decision, as to cast doubt on the validity of the plea.”); see also Padilla, 130 S. Ct. at 1480
(“These changes [to immigration laws] confirm our view that, as a matter of
federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead
guilty to specified crimes.”).
          The
State further contends that applicant cannot demonstrate prejudice because the
parties stipulated that the trial court admonished applicant at the original
plea hearing that there could be negative immigration consequences to her
guilty plea pursuant to Code of Criminal Procedure article 26.13(a).  See
Tex. Code Crim. Proc. Ann. art.
26.13(a)(4) (Vernon Supp. 2010) (requiring trial court, before accepting guilty
plea, to admonish defendant that plea “may result in deportation, the exclusion
from admission to this country, or the denial of naturalization under federal
law”).  We note that several courts, post-Padilla, have determined that defense counsel’s allegedly deficient
conduct in failing to inform the defendant of immigration consequences did not
prejudice the defendant when the trial court admonished the defendant that pleading
guilty might subject the defendant to removal, inadmissibility, or denial of
naturalization.  See Amreya v. United States, Nos. 4:10-CV-503-A, 4:08-CR-033-A,
2010 WL 4629996, at *5 (N.D. Tex. Nov. 8, 2010) (slip op.); United States v. Bhindar, No. 07 CR
711-04 (LAP), 2010 WL 2633858, at *5–6 (S.D.N.Y. June 30, 2010) (slip op.); United States v. Obonaga, No. 10-CV-2951
(JS), 2010 WL 2710413, at *1–2 (E.D.N.Y. June 30, 2010) (slip op.); see also Ohio v. Bains, No. 94330, 2010
WL 4286167, at *3 (Ohio Ct. App. Oct. 21, 2010) (slip op.) (holding Padilla not analogous because Kentucky
trial court did not advise Padilla of possible immigration consequences); Flores v. Florida, 57 So. 3d 218, 219–20
(Fla. Dist. Ct. App. 2010) (per curiam) (holding same).
          Here, the trial court properly
admonished applicant pursuant to article 26.13(a).  This admonishment, however, only requires the
court to inform a defendant that the guilty plea “may” result in deportation,
inadmissibility, or the denial of naturalization.  This admonishment is the same as the warning
that appears on the plea paperwork that defendants in Harris County are
required to sign before pleading guilty. 
This admonishment is also the same as the advice plea counsel gave to
applicant:  information regarding the general
immigration consequences of a guilty plea. 
But here, plea counsel rendered ineffective assistance by not
specifically informing applicant that, under the immigration statutes,
inadmissibility and subsequent removal was “presumptively mandatory” and
“virtually certain” upon her return to the United States.
          We do not hold that trial courts are
under an obligation to inform defendants of the specific immigration
consequences to their guilty pleas. 
Rather, we hold that, under these facts, the trial court’s statutory
admonishment prior to accepting applicant’s guilty plea does not cure the
prejudice arising from plea counsel’s failure to inform applicant that, upon pleading
guilty, she would be presumptively inadmissible.
          We hold that applicant established that her plea counsel’s representation
constituted deficient performance under Strickland
and Padilla and that, but for
counsel’s deficient advice, she would not have pleaded guilty.  We further hold that due to plea counsel’s
ineffective assistance, applicant involuntarily pleaded guilty.
We sustain applicant’s sole issue.


 
Conclusion
          Habeas
corpus relief is granted.  We set aside
the judgment in cause number 1594654 in the County Criminal Court at Law No. 11
of Harris County and remand applicant to the Harris County Sheriff to answer
the charges against her.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Higley, and Bland.
Publish.  Tex.
R. App. P. 47.2(b).
 




[1]
          Tex. Health & Safety Code Ann. § 481.121(b)(1)
(Vernon 2010).


[2]
          130 S. Ct. 1473 (2010).
 


[3]
          The original case is State of Texas v. Yekaterina Tanklevskaya,
No. 1594654 (County Criminal Court at Law No. 11, Harris County, Tex., Apr. 22,
2009).


[4]
          See 8 U.S.C.S. § 1182(h) (2008) (stating that Attorney General
may waive application of inadmissibility provision if alien convicted of “a
single offense of simple possession of 30 grams or less of marijuana”).


[5]
          Section 1182(h) allows a waiver
of inadmissibility if the amount of marijuana allegedly possessed is thirty
grams or less.  8 U.S.C.S. § 1182(h)
(2008).  Health & Safety Code section
481.121(b)(1) classifies possession of two
ounces or less of marijuana as a Class B misdemeanor.  Tex.
Health & Safety Code Ann. § 481.121(b)(1) (Vernon 2010).  Two ounces is larger than thirty grams, so
while “thirty grams or less” is necessarily less than two ounces, the converse
is not true.


[6]
          State and federal courts are divided on this
issue.  Compare United States v. Gilbert, No. 2:03-cr-00349-WJM-1, 2010 WL
4134286, at *3 (D.N.J. Oct. 19, 2010) (slip op.) (holding Padilla not retroactive for cases on collateral review), and United
States v. Shafeek, No. 05-81129, 2010 WL 3789747, at *3 (E.D. Mich. Sept.
22, 2010) (slip. op.) (holding same), with
United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625, at *5–8 (E.D.
Cal. July 1, 2010) (slip op.) (holding Padilla
did not establish new constitutional rule and, therefore, should be applied
retroactively), and United States v.
Chaidez, 730 F. Supp. 2d 896, 898–904 (N.D. Ill. 2010) (holding same).  The Court of Criminal Appeals has not yet
addressed this issue; however, it has ordered that an application for a
writ of habeas corpus be filed and set for submission to determine, among other
issues, whether “Padilla is an
application of the established rule in Strickland
v. Washington” and whether “Padilla
announced a new rule that is retroactive on collateral review.”  See Ex
parte Moussazadeh, No. AP-76439, 2010 WL 4345740, at *1 (Tex. Crim. App.
Nov. 3, 2010) (order).


[7]
          Section 1229b(a) provides that
the Attorney General may cancel the
removal of an inadmissible alien if the alien (1) has been an alien lawfully
admitted for permanent residence for not less than five years; (2) has resided
in the United States continuously for seven years after having been admitted in
any status; and (3) has not been convicted of any aggravated felony.  8 U.S.C.S. § 1229b(a) (2008).  “Aggravated felony” includes “illicit
trafficking in a controlled substance (as defined in section 802 of title 21),
including a drug trafficking crime (as defined in section 924(c) of title
18).”  8 U.S.C.S. § 1101(a)(43)(B)
(2008).  Simple possession of marijuana
is not considered an aggravated felony.  See Lopez v. Gonzales, 549 U.S. 47, 53,
127 S. Ct. 625, 629 (2006) (“Mere possession is not, however, a felony under
the federal [Controlled Substances Act] . . . .”); Arce-Vences v. Mukasey, 512 F.3d 167,
171 (5th Cir. 2007) (“Because Arce’s conviction for simple possession of
marijuana is not a drug trafficking crime and does not involve commercial
dealing, it is not an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(B).”).  The habeas
record indicates that applicant entered the United States as a lawful permanent
resident in 1995, fourteen years before the offense at issue.  She has not been convicted of an aggravated
felony.  Applicant therefore appears to
qualify for discretionary cancellation of removal under section 1229b(a).


