Affirmed and Memorandum Opinion on Remand filed May 21, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-11-00227-CR

                     EX PARTE LEONARDO AGUILAR



                   On Appeal from the 248th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1290892

   MEMORANDUM                    OPINION             ON      REMAND


      On original submission, appellant Leonardo Aguilar appealed from the trial
court’s denial of his application for writ of habeas corpus. Appellant, a foreign
national, contended that his trial counsel in the underlying proceeding failed to
apprise him of the adverse immigration consequences of a guilty plea, thus
rendering his plea involuntary under Padilla v. Kentucky, 559 U.S. 356 (2010). On
July 10, 2012, this court issued an opinion reversing the trial court’s denial of
habeas relief, holding that counsel’s performance was deficient under Padilla.
Aguilar v. State, 375 S.W.3d 518 (Tex. App.—Houston [14th Dist.] 2012). On
March 20, 2013, the Court of Criminal Appeals vacated this court’s judgment and
remanded the case for consideration in light of Ex parte De Los Reyes, 392 S.W.3d
675 (Tex. Crim. App. 2013) (declining to accord retroactive effect to Padilla as a
matter of state habeas law.). On remand, we affirm.

                                                Background

        In April 2005, appellant was charged with felony possession of less than one
gram of cocaine. On October 26, 2005, appellant pleaded guilty, and accepted a
time-served sentence.

        Appellant filed an application for writ of habeas corpus on December 21,
2010. In an affidavit presented to the court, appellant averred that his counsel in
the cocaine possession case only told him that his guilty plea could result in
deportation and failed to inform him that the plea would make deportation
presumptively mandatory. Appellant further stated that if his counsel had told him
that a guilty plea would make deportation presumptively mandatory, he would not
have pleaded guilty and would have instead insisted on a trial. He said that
residence in the United States was very important to him and was the most
important thing to him in respect to the underlying case.

        Charles Medlin, appellant’s counsel in the underlying case, stated in his
affidavit that it was his practice at the time to advise clients that a guilty plea could
result in deportation, exclusion of admission, or denial of naturalization, as was
also stated in the plea admonishments filed with the court.1 Medlin further stated
that he followed that practice in this case and did not tell appellant whether a guilty
        1
          The form plea admonishments contain the following language in paragraph 4: “CITIZENSHIP:
If you are not a citizen of the United States of America, a plea of either Guilty or Nolo Contendre (No
Contest) for this offense may result in your deportation, or your exclusion from admission to the country,
or the denial of your naturalization under applicable federal law.”

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plea definitely would or would not have immigration consequences.

      Appellant urged the court to grant habeas corpus relief on the ground that
Medlin had provided ineffective assistance of counsel by failing to inform
appellant that pleading guilty to possession of a controlled substance rendered his
deportation presumptively mandatory. At the conclusion of a brief hearing, during
which the two affidavits were admitted into evidence, the trial judge denied
appellant’s application. The judge stated on the record that Medlin had sufficiently
counseled appellant pursuant to prevailing professional norms. Neither findings of
fact nor conclusions of law were requested or filed.

      On original submission, with one justice dissenting, this court determined
that the United States Supreme Court’s holding in Padilla applied retroactively to
appellant’s guilty plea and reversed and remanded for a determination by the trial
court on the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984).
Aguilar v. State, 375 S.W.3d at 526–27.

                                 Habeas Corpus Review

      We generally review a trial court’s decision on an application for habeas
corpus under an abuse of discretion standard of review. See Ex parte Garcia, 353
S.W.3d 785, 787 (Tex. Crim. App. 2011). An applicant seeking post-conviction
habeas corpus relief bears the burden of establishing by a preponderance of the
evidence that the facts entitle him to relief. Ex parte Richardson, 70 S.W.3d 865,
870 (Tex. Crim. App. 2002). We consider the evidence presented in the light most
favorable to the habeas court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.
Crim. App. 2006). This deferential review applies even when the trial court’s
findings are implied rather than explicit and based on affidavits rather than live
testimony. Ex parte Wheeler, 203 S.W.3d 317, 325–26 (Tex. Crim. App. 2006);
Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).
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                                          Analysis

      Appellant based his habeas corpus application on a denial of the effective
assistance of counsel, which he argued rendered his plea involuntary. To establish
ineffective assistance of counsel, a criminal defendant must prove by a
preponderance of the evidence that (1) his trial counsel’s representation was
deficient in that it fell below the standard of prevailing professional norms and (2)
there is a reasonable probability that, but for counsel’s deficiency, the result of the
proceeding would have been different. See Strickland, 466 U.S. at 687; Salinas v.
State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Both appellant and his
former counsel stated in their affidavits that counsel told appellant that a guilty
plea to the cocaine possession charge could result in deportation and failed to
inform him that the plea would make deportation presumptively mandatory.

      In the trial court and on original submission, appellant argued that the
holding in Padilla should be applied retroactively. After this court issued its
opinion on original submission, the United States Supreme Court held in Chaidez
v. United States, ___ U.S. ___, 133 S.Ct. 1103 (2013), that Padilla announced a
“new rule” of criminal procedure so that “a person whose conviction is already
final may not benefit from the decision in a habeas or similar proceeding.” Id. at
1107–08 (citing Teague v. Lane, 489 U.S. 288, 301 (1988)). In addition, the Court
of Criminal Appeals decided that Padilla’s rule does not apply retroactively under
the Texas Constitution.      See Ex parte De Los Reyes, 392 S.W.3d at 675.
Accordingly, we recognize the abrogation of the rule this court adopted in this
case, and we hold that Padilla does not apply retroactively to appellant’s counsel’s
representation in the underlying case. See Ex Parte Luna, No. 14-11-01063-CR,
2013 WL 1197777 (Tex. App.—Houston [14th Dist.] Mar. 26, 2013, no pet. h.).

      Because appellant’s conviction became final before Padilla was decided,

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pre-Padilla law applies to his habeas application alleging ineffective assistance of
counsel. Under that law, “while the Sixth Amendment assures an accused of
effective assistance of counsel in criminal prosecutions, [it] does not extend to
‘collateral’ aspects of the prosecution.” Ex parte Morrow, 952 S.W.2d 530, 536
(Tex. Crim. App. 1997). Immigration consequences of a guilty plea are considered
collateral; therefore, appellant’s plea would not be rendered involuntary under the
United States or Texas Constitutions even if his attorney were deficient in
informing him of the consequences. See State v. Jimenez, 987 S.W.2d 886, 888–89
(Tex. Crim. App. 1999). Because appellant had no constitutional right to effective
assistance of counsel in warning about the collateral immigration consequences of
his guilty plea, the trial court did not abuse its discretion in denying his habeas
application. See Ex parte Luna, 2013 WL 1197777 at *4.

      Therefore, we affirm the trial court’s order denying habeas corpus relief.




                                      /s/       Martha Hill Jamison
                                                Justice



Panel consists of Justices Frost, Jamison, and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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