                                                I attest to the accuracy and
                                                 integrity of this document
                                                   New Mexico Compilation
                                                 Commission, Santa Fe, NM
                                                '00'05- 15:29:24 2012.11.29
Certiorari Granted, June 5, 2012, No. 33,604

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-057

Filing Date: April 16, 2012

Docket No. 30,205

STATE OF NEW MEXICO,

       Respondent-Appellee,

v.

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

       Petitioner-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge

Gary K. King, Attorney General
William Lazar, Assistant Attorney General
Santa Fe, NM

for Appellee

Dane Eric Hannum, Attorney at Law
Dane Eric Hannum
Albuquerque, NM

for Appellant

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

Amicus Curiae for New Mexico Criminal Defense Lawyers Association

                                     OPINION


                                            1
KENNEDY, Judge.

{1}     Martin Ramirez, a/k/a Richard Sanchez, (Petitioner) appeals the district court’s denial
of his writ of coram nobis, which sought to vacate Petitioner’s twelve-year-old conviction
due to ineffective assistance of counsel under State v. Paredez, 2004-NMSC-036, 136 N.M.
533, 101 P.3d 799. Paredez requires appointed counsel to instruct defendants about the
specific immigration consequences associated with a conviction for the charged crime prior
to pleading guilty. Id. ¶ 9. This duty is more pressing in a case like this in which
deportation was a near certainty for a relatively minor offense. The district court denied the
writ on the ground that the rule announced in Paredez should not be applied retroactively
to collateral challenges to final judgments and sentences. We reverse and hold that the
ineffective assistance of counsel rules stated in Paredez and Padilla v. Kentucky, 130 S. Ct.
1473, 1486 (2010) (holding that defense counsel must inform his or her client whether the
client’s plea carries a risk of deportation) are but extensions of a previously entrenched duty
to provide representation and are retroactive. We remand for further proceedings consistent
with this Opinion.

I.      BACKGROUND

{2}     In 2009, Petitioner filed a writ of coram nobis, requesting the district court to vacate
his 1997 misdemeanor convictions for possession of marijuana (under one ounce),
possession of drug paraphernalia, and concealing identity. In his writ, Petitioner contended
that he was denied his right to effective assistance of counsel because his appointed counsel
failed to instruct him about any immigration consequences of pleading guilty to the crimes
as required by Paredez, 2004-NMSC-036, ¶ 19.

{3}     At the hearing, Petitioner proffered evidence to prove that his attorney failed to
instruct him about the immigration consequences and that this failure prejudiced him. The
State did not contest the evidence, arguing only that it was irrelevant and that Petitioner was
not entitled to relief because Paredez was not retroactive. The district court, accordingly,
found that Petitioner’s proffer was “essentially admitted . . . [and] not disputed” and
proceeded to hear argument on whether Paredez was retroactive. The district court
subsequently denied Petitioner’s request on the ground that Paredez did not apply
retroactively. Petitioner now appeals the district court’s denial of his writ of coram nobis.
We interpret such actions as motions pursuant to Rule 1-060(B) NMRA. State v. Barraza,
2011-NMCA-111, ¶ 5, 267 P.3d 815.

II.     DISCUSSION

A.      Paredez and Padilla Apply Retroactively

{4}     In Paredez, the New Mexico Supreme Court held that “criminal defense attorneys
are obligated to determine the immigration status of their clients. If a client is a non-citizen,
the attorney must advise that client of the specific immigration consequences of pleading

                                               2
guilty, including whether deportation would be virtually certain.” 2004-NMSC-036, ¶ 19.
Our Supreme Court concluded that failure to inform the defendant of these consequences
would constitute ineffective assistance of counsel if the defendant suffered prejudice due to
the omission. Id. Six years later, the United States Supreme Court in Padilla similarly held
that “counsel must inform her client whether his plea carries a risk of deportation.” 130 S.
Ct. at 1486. The Supreme Court explained: “Our longstanding Sixth Amendment
precedents, the seriousness of deportation as a consequence of a criminal plea, and the
concomitant impact of deportation on families living lawfully in this country demand no
less.” Id. The question before us today is whether the rule stated in Paredez and Padilla
applies retroactively to cases on collateral review. “Retroactivity is a legal question, which
we review de novo.” Kersey v. Hatch, 2010-NMSC-020, ¶ 14, 148 N.M. 381, 237 P.3d 683
(internal quotation marks and citation omitted).

{5}     Although this is an issue of first impression in New Mexico, a number of state and
federal appellate decisions have addressed the issue of retroactivity, causing a national split.
A number have held that Padilla is retroactive. United States v. Orocio, 645 F.3d 630 (3d
Cir. 2011); People v. Gutierrez, 954 N.E.2d 365 (Ill. App. Ct. 2011); Denisyuk v. State, 30
A.3d 914 (Md. 2011); Commonwealth v. Clarke, 949 N.E.2d 892 (Mass. 2011); Campos v.
State, 798 N.W.2d 565 (Minn. Ct. App. 2011); People v. Nunez, 917 N.Y.S.2d 806 (N.Y.
App. Term 2010); Ex parte De Los Reyes, 350 S.W.3d 723 (Tex. Ct. App. 2011). On the
other hand, some have held that Padilla is not retroactive. Chaidez v. United States, 655
F.3d 684 (7th Cir. 2011); United States v. Chang Hong, No. 10-6294, 2011 WL 3805763
(10th Cir. Aug. 30, 2011); State v. Poblete, 260 P.3d 1102 (Ariz. Ct. App. 2011); Hernandez
v. State, 61 So. 3d 1144 (Fla. Dist. Ct. App. 2011); State v. Shaikh, 65 So.3d 539 (Fla. Dist.
Ct. App. 2011); Barrios-Cruz v. State, 63 So. 3d 868 (Fla. Dist. Ct. App. 2011); Gomez v.
State, No. E2010-01319-CCA-R3-PC, 2011 WL 1797305 (Tenn. Crim. App. May 12, 2011)
(unpublished decision). The primary dividing line is the question of whether this principle
is a “new” or “old” rule of law. “Old” rules are generally accorded retroactivity. For the
reasons explained below, we are persuaded that those courts, which conclude that Padilla
does not establish a new rule and is retroactive, represent the better reasoned view.

{6}      New Mexico has adopted the approach set out by the United States Supreme Court
in Teague v. Lane, 489 U.S. 288 (1989), to determine whether a rule is new or old for
purposes of retroactivity. See State v. Frawley, 2007-NMSC-057, ¶ 34, 143 N.M. 7, 172
P.3d 144. “If it is an old rule, it applies both on direct and collateral review. If it is a new
rule, it generally applies only to cases that are still on direct review.” Id. ¶ 34 (internal
quotation marks and citations omitted). The exception to this principle is that “[a] new rule
. . . may apply retroactively in a collateral proceeding only if (1) the rule is substantive or
(2) the rule is a watershed rul[e] of criminal procedure implicating the fundamental fairness
and accuracy of the criminal proceeding.” Id. (internal quotation marks and citation
omitted).

{7}     Thus, the threshold issue here is whether the rule that attorneys must inform their
clients about immigration consequences is new or old. “[A] court establishes a new rule

                                               3
when its decision is flatly inconsistent with the prior governing precedent and is an explicit
overruling of an earlier holding.” Id. ¶ 35 (internal quotation marks and citation omitted).
This typically results in the court “break[ing] new ground or impos[ing] a new obligation on
the [s]tates or the [f]ederal [g]overnment. To put it differently, a case announces a new rule
if the 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 citation
omitted). As explained below, neither the decision of the New Mexico Supreme Court nor
the United States Supreme Court were flatly inconsistent or explicitly contrary to precedent.
As a result, we conclude that the rules stated in Paredez and Padilla are old rules and thus
retroactive.

{8}     In Paredez, 2004-NMSC-036, ¶¶ 19-20, our Supreme Court defined counsel’s failure
to inform the defendant of his specific immigration consequences as ineffective assistance
of counsel by applying Strickland v. Washington, 466 U.S. 668 (1984). The United States
Supreme Court likewise held that defendants were constitutionally guaranteed effective
assistance of counsel under Strickland in the form of advice about both certain and potential
immigration consequences before pleading guilty. Padilla, 130 S. Ct. at 1483. In
Strickland, the Supreme Court held that a defendant must prove both deficient performance
by counsel and prejudice for that deficiency to succeed on an ineffective assistance claim.
466 U.S. at 687. The Supreme Court explained that “[r]epresentation of a criminal defendant
entails certain basic duties.” Id. at 688. After listing some basic duties, including the duty
of loyalty and avoiding conflicts of interest, the Supreme Court stated that “[t]hese basic
duties neither exhaustively define the obligations of counsel nor form a checklist for judicial
evaluation of attorney performance.” Id. Because the circumstances of each case are
different, “a court deciding an actual ineffectiveness claim must judge the reasonableness
of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of
counsel’s conduct.” Id. at 690.

{9}     Even while applying an individualized inquiry, the United States Supreme Court has
stated that a defendant’s right to effective assistance of counsel as stated in Strickland is a
clearly established rule. In concluding that a defendant was entitled to relief for ineffective
assistance of counsel on collateral review, the Supreme Court stated that “it can hardly be
said that recognizing the right to effective counsel breaks new ground or imposes a new
obligation on the [s]tates[.]” Williams v. Taylor, 529 U.S. 362, 391 (2000) (internal
quotation marks and citation omitted). As Justice Kennedy has commented in regard to the
Teague analysis, “[w]here the beginning point is a rule of this general application, a rule
designed for the specific purpose of evaluating a myriad of factual contexts, it will be the
infrequent case that yields a result so novel that it forges a new rule, one not dictated by
precedent.” Wright v. West, 505 U.S. 277, 309 (1992).

{10} We conclude that Paredez and Padilla forge no new rule. Neither imposed a new
obligation on counsel or directly contradicted precedent because defendants in New Mexico
have been guaranteed effective assistance of counsel as set forth in Strickland since 1984.
Both cases apply well-established principles regarding the effective assistance of counsel to

                                              4
a set of facts that have taken on a rising trajectory of importance to criminal jurisprudence.
Strickland is a rule designed for application to a myriad of factual contexts, and we conclude
that its application in this context fails to contradict existing norms or forge new precedent
in such a way that would require us to consider it a new rule. As the Padilla Court pointed
out in citing a number of sources that date back prior to Petitioner’s conviction, “[t]he weight
of prevailing professional norms supports the view that counsel must advise her client
regarding the risk of deportation.” 130 S. Ct. at 1482. The Court concluded that “[f]or at
least the past [fifteen] years, professional norms have generally imposed an obligation on
counsel to provide advice on the deportation consequences of a client’s plea.” Id. at 1485.
Paredez and Padilla simply apply an old rule with established norms of effective
representation to a new set of facts. Under those facts, it had been clear before Petitioner’s
conviction that those norms obligated attorneys to advise their clients about deportation
consequences.

{11} The State argues that both Paredez and Padilla broke with longstanding precedent.
The majority of the State’s argument relies on the fact that other state and federal circuit
courts had precedent that did not require defendants to be instructed about immigration
consequences. To the extent that the State cites out-of-state case law for the proposition that
Padilla broke with longstanding precedent, we consider New Mexico precedent more
persuasive and, as we explain below, the New Mexico cases that the State relies on are not
applicable. With regard to New Mexico precedent, the State contends that Paredez
contradicted established law in State v. House, 1996-NMCA-052, 121 N.M. 784, 918 P.2d
370, and State v. Miranda, 100 N.M. 690, 675 P.2d 422 (Ct. App. 1983). Though both
House and Miranda dealt with issues unrelated to immigration consequences, Miranda held
that defense counsel had no duty to advise the defendant about the collateral consequences
of a deferred sentence. 100 N.M. at 692, 675 P.2d at 424. In House, the defendant appealed
a sentencing enhancement on his second DWI conviction because the magistrate, who
convicted him of his first DWI for which he represented himself, did not explain the
consequences of the prior guilty plea. 1996-NMCA-052, ¶¶ 28-29. Paredez clearly
enunciates a standard for effective representation that deals with a completely different
context. Here, Paredez enunciates a norm of conduct specific to advising a criminal
defendant of immigration consequences of his plea.

{12} To the extent that the State argues Paredez and Padilla overrule cases, which indicate
that counsel does not have a duty to instruct a client about collateral consequences of a plea
agreement, we view the departure as reflecting that collateral consequences are more robust
in some varieties, such as deportation that affects a very broad scope of interests. Padilla
stated that “distinction [of collateral consequences] is . . . ill-suited to evaluating a Strickland
claim concerning the specific risk of deportation[.]” 130 S. Ct. at 1476. The Supreme Court
in Padilla explained that, “[a]lthough removal proceedings are civil, deportation is
intimately related to the criminal process, which makes it uniquely difficult to classify as
either a direct or a collateral consequence.” Id. Thus, precedent about unrelated collateral
consequences is inapplicable to Paredez and Padilla.


                                                 5
{13} The State also contends that “Padilla established a ‘new rule’ by categorically
creating a claim for relief where none existed before.” The State argues that “[a] court
adjudicating the first prong of a Paredez-Padilla claim does not have to engage in the highly
deferential review of evidence [that] Strickland commands for other types of ineffective
assistance claims.” The State cites Strickland in arguing that “[i]t is unnecessary to review
counsel’s performance ‘from counsel’s perspective at the time,’ to avoid ‘the distorting
effects of hindsight[.]’” We point out that the highly deferential review to which the State
refers is limited to the Strickland analysis of trial tactics pursued by counsel. Lytle v.
Jordan, 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666 (“On appeal, we will not second
guess the trial strategy and tactics of the defense counsel.” (internal quotation marks and
citation omitted)). To the extent that the State argues that Paredez and Padilla establish
categorical rules not requiring a thorough review of the facts, the holdings in both cases
require a thorough inquiry into the facts as to what advice the defendant should have been
afforded, whether he was given it, and whether the defendant was prejudiced by not
receiving the advice.

{14} Other aspects of the Padilla opinion indicate that the Supreme Court did not create
a new rule. For example, the absence of a Teague analysis in Padilla alone indicates that
this is not a new rule. In Teague, the United States Supreme Court stated that

       implicit in the retroactivity approach . . . is the principle that habeas corpus
       cannot be used as a vehicle to create new constitutional rules of criminal
       procedure unless those rules would be applied retroactively to all defendants
       on collateral review through one of the two exceptions we have articulated.

489 U.S. at 316. The Court shortly thereafter clarified in Penry v. Lynaugh that when a case
is before the Court on collateral review, the Court “must determine, as a threshold matter,
whether granting [the defendant] the relief he seeks would create a ‘new rule.’” 492 U.S.
302, 313 (1989) (citation omitted). “Under Teague, new rules will not be applied or
announced in cases on collateral review unless they fall into one of two exceptions [specified
in Teague].” Penry, 492 U.S. at 313. We note that the procedural posture in Padilla
indicates that the defendant’s conviction was final, and he was attacking it on collateral
review. Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008), overruled by Padilla,
130 S. Ct. at 1486. Therefore, if the Supreme Court intended its holding in Padilla to create
a new rule, it would have to determine as a threshold issue whether the rule was old or new
under Teague because the conviction in Padilla was on collateral review. The Court clearly
did not engage in this analysis, and we must conclude that the Padilla court did not believe
it was establishing a new rule.

{15} Moreover, the Padilla court made clear references to the opinion’s application to
collateral proceedings attacking guilty pleas. In addressing Kentucky’s concern that
requiring defense counsel to provide information about immigration consequences would
open the floodgates to collateral appeals of finalized convictions, the United States Supreme
Court explained why it doubted a flood would follow in the wake of Padilla. The Supreme

                                              6
Court compared this issue to its holding in Hill v. Lockhart, requiring counsel to advise
clients about their parole eligibility before pleading guilty. 474 U.S. 52, 62 (1985). The
Supreme Court concluded that “[a] flood did not follow in that decision’s wake” and
explained that “to obtain relief on this type of claim, a petitioner must convince the court that
a decision to reject the plea bargain would have been rational under the circumstances.”
Padilla, 130 S. Ct. at 1485. The Supreme Court further stated:

        [P]leas are less frequently the subject of collateral challenges than
        convictions obtained after a trial. . . . The nature of relief secured by a
        successful collateral challenge to a guilty plea—an opportunity to withdraw
        the plea and proceed to trial—imposes its own significant limiting principle:
        Those who collaterally attack their guilty pleas lose the benefit of the bargain
        obtained as a result of the plea. Thus, a different calculus informs whether it
        is wise to challenge a guilty plea in a habeas proceeding because, ultimately,
        the challenge may result in a less favorable outcome for the defendant,
        whereas a collateral challenge to a conviction obtained after a jury trial has
        no similar downside potential.

Id. at 1485-86. From this, we conclude that the Supreme Court contemplated Padilla’s
application on collateral attacks in making its decision.

{16} Based on the above analysis, we conclude that Paredez and Padilla do not establish
a new rule and should be applied retroactively. We now apply Paredez and Padilla to the
case at bar.

B.      Application of Paredez and Padilla to the Facts of This Case

{17} A reviewing court must look at the individual facts of the case to establish what type
of advice about immigration consequences should have been given to the defendant. Both
misinforming and failing to inform a defendant of the immigration consequences of a plea
are objectively unreasonable and constitute deficient performance. Paredez, 2004-NMSC-
036, ¶¶ 15-16. Moreover, “general advice that a guilty plea ‘could,’ ‘may,’ or ‘might’ have
an effect on immigration status” is equally unacceptable. Id. ¶ 17. Misadvice, no advice,
and general advice all fail to provide the defendant with “information sufficient to make an
informed decision to plead guilty.” Id.

{18} In this case, Petitioner was facing definite deportation at the time of his conviction.
Petitioner was convicted of several charges, including possession of drug paraphernalia on
January 6, 1997. This date is significant because about nine months prior to his guilty plea,
Congress removed any discretionary relief available to those who commit any offense
related to a controlled substance, other than the possession of thirty grams or less of
marijuana, by enacting the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),




                                               7
Pub. L. No. 104-132, § 440(d)(2), 110 Stat. 1214 (1996).1 If Petitioner had been convicted
prior to April 24, 1996, when the AEDPA became effective, the Attorney General would
have had the authority to grant discretionary relief from deportation under the 1952
Immigration and Nationality Act. Padilla, 130 S. Ct. at 1480; Allen v. Siebert, 552 U.S. 3,
4 (2007) (stating that “April 24, 1996 [is the] AEDPA’s effective date”). This “authority . . .
had been exercised [by the Attorney General] to prevent the deportation of over 10,000 non[-
]citizens during the [five]-year period prior to 1996[.]” Padilla, 130 S. Ct. at 1480. The
United States Supreme Court has explained that “[p]rior to AEDPA . . . , aliens . . . had a
significant likelihood of receiving [discretionary] relief.” Immigration & Naturalization
Serv. v. St. Cyr, 533 U.S. 289, 325 (2001).

{19} Thus, it was clear that, at the time of his conviction, Petitioner had entered into a plea
agreement that would almost certainly guarantee his deportation from the United States. We
conclude that Petitioner should have been given advice about these likely consequences
before entering into a plea agreement with the State.

{20} In his motion, Petitioner alleged that his counsel failed to inform him about any
immigration consequences. A plea to time served in a magistrate court for offenses that are
minor, under most other circumstances than this, makes Petitioner’s story believable, and
the State and the district court apparently took these facts at face value. At the hearing,
Petitioner repeated the proffer of evidence laid out in his motion to prove that his attorney
failed to instruct him about the immigration consequences and that this failure prejudiced
him. When asked to respond to Petitioner’s proffer, the State stated that it “defer[red] to
what the [c]ourt wants to do. [T]he State will argue again that the [c]ourt had reviewed this
previously [in a different case] and . . . rul[ed] that [Paredez] is not retroactive. As such, the
testimony would be irrelevant.” The district court responded that the testimony would not
be irrelevant, but the court had nonetheless “found in reading the materials [provided by
Petitioner that] there doesn’t seem to be any factual dispute that [Petitioner’s alleged] facts
exist.” The court then found that Petitioner’s proffer was “essentially admitted [and] not
disputed.”

{21} We conclude that the district court found at the hearing that Petitioner had not
received advice about immigration consequences from his attorney, and he was prejudiced
because of this failure. To the extent the State argues that Petitioner failed to establish a


        1
         This section of the AEDPA amended the Immigration and Nationality Act, 8 U.S.C.
§ 1182(c) (1997) to state that the Attorney General’s discretionary relief “shall not apply to
an alien who is deportable by reason of having committed any criminal offense covered in
[S]ection 1251(a)(2)(A)(iii), (B), (C), or (D) of this title[.]” One of the deportable offenses
that was no longer afforded discretion included “a violation of . . . any law or regulation of
a [s]tate, the United States, or a foreign country relating to a controlled substance . . . other
than a single offense involving possession for one’s own use of [thirty] grams or less of
marijuana.” 8 U.S.C. 1251(A)(2)(B)(i) (1997).

                                                8
prima facie case for ineffective assistance of counsel sufficient to justify a hearing, we
determine that the State has waived this argument because, at the hearing, the State failed
to contest the factual basis to Petitioner’s claim of ineffective assistance of counsel. Thus,
Defendant has met the requirements set forth in Paredez, 2004-NMSC-036, ¶ 19, and
Padilla, 130 S. Ct. at 1486.

III.    CONCLUSION

{22} We reverse the district court and hold that Paredez and Padilla are retroactive. In
this case, Petitioner should have been advised that deportation would almost certainly result
from his conviction of possession of drug paraphernalia. Because Petitioner has completely
established ineffective assistance of counsel and prejudice, we remand this case to the
district court for Petitioner to have an opportunity to withdraw his plea.

{23}    IT IS SO ORDERED.

                                                   ____________________________________
                                                   RODERICK T. KENNEDY, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
CYNTHIA A. FRY, Judge

Topic Index for State v. Ramirez, Docket No. 30,205

AE             APPEAL AND ERROR
AE-PJ          Prejudicial Error
AE-PA          Preservation of Issues for Appeal

AT             ATTORNEYS
AT-EA          Effective Assistance of Counsel

FL             FEDERAL LAW
FL-IM          Immigration

RE             REMEDIES
RE-CN          Coram Nobis




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