        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   July 17, 2012 Session

 ALVERAZ RAMIREZ RIGOBERTO AKA RIGOBERTO A. RAMIREZ v.
                  STATE OF TENNESSEE

             Direct Appeal from the Circuit Court for Williamson County
                     No. CR075801      Timothy L. Easter, Judge


               No. M2011-02690-CCA-R3-PC - Filed December 10, 2012


The Petitioner, Alveraz Ramirez Rigoberto, appeals the Williamson County Circuit Court’s
denial of his petition for post-conviction relief from his convictions of simple possession of
marijuana; misdemeanor evading arrest; and driving on a revoked license, sixth offense, and
resulting sentences of eleven months, twenty-nine days to be served concurrently on
supervised probation. On appeal, the Petitioner contends that he is entitled to post-conviction
relief because trial counsel failed to advise him about the consequences of his guilty pleas,
which resulted in his entering his pleas unknowingly and involuntarily. Based upon the oral
arguments, the record, and the parties’ briefs, we affirm the post-conviction court’s denial
of the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

Caesar Cirigliano and Divyesh R. Gopal, Nashville, Tennessee, for the appellant, Alveraz
Ramirez Rigoberto.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Terry Wood, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       The record reflects that in May 2010, the Petitioner, a citizen of Mexico, was charged
with felony possession of more than one-half ounce of marijuana for resale; felony evading
arrest; possession of drug paraphernalia; driving on a revoked license, sixth offense; and
reckless driving. On July 13, 2010, he pled guilty to simple possession of marijuana; evading
arrest; and driving on a revoked license, sixth offense, all Class A misdemeanors. Pursuant
to the plea agreement, the Petitioner received three sentences of eleven months, twenty-nine
days to be served concurrently on supervised probation. Subsequently, counsel for the
Petitioner filed a timely petition for post-conviction relief, arguing that he received the
ineffective assistance of counsel because trial counsel failed to advise him about the
immigration consequences of his guilty pleas as required by Padilla v. Kentucky, 130 S. Ct.
1473 (2010). The Petitioner also alleged that his receiving the ineffective assistance of
counsel resulted in his pleas being unknowing and involuntary.

       According to the petition, on the day the Petitioner entered his guilty pleas, he was
transferred to Immigration and Customs Enforcement (ICE). Three days later, he was
detained at the Federal Detention Center in Oakdale, Louisiana, and released under an
immigration bond. In the petition, the Petitioner stated, “Due to the above-referenced
convictions, the defendant is not eligible for immigration waiver and has a relief from
deportation under current Immigration Statutes, but for the conviction, the defendant will be
denied relief.”

        The post-conviction court found that the petition stated a colorable claim and
scheduled an evidentiary hearing. At the hearing, neither party introduced a transcript of the
guilty plea hearing because the plea hearing was not transcribed. Trial counsel testified for
the Petitioner that she met him and his fiancé through counsel’s sixteen-year-old daughter,
who babysat the Petitioner’s and his fiancé’s children. When the Petitioner was charged with
driving on a revoked license and violating probation, counsel represented him in those cases.
Counsel said that the Petitioner “got in trouble with this case” and that he retained her to
represent him again. The Petitioner was arrested in this case just days before the United
States Supreme Court filed Padilla, and he was the first non-citizen that counsel represented
after the Court filed its opinion.

       Counsel testified that she knew the Petitioner was in this country illegally and that she
thought convictions for felony possession of marijuana and felony evading arrest would
affect his immigration status. When the Petitioner was arrested and jailed in this case, an
immigration hold was placed on him. Counsel said that “deportation was highly likely” and
that “we had further discussions about that.” When asked if she discussed with the Petitioner
how misdemeanor convictions could affect his immigration status, she said, “No, that would
not have been something that was within my knowledge as an attorney; I would have -- I did
refer him to an immigration attorney prior to taking the plea.” She also stated that



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              if I had gotten into that with him, I feel like it’s very outside the
              scope of my expertise, and I could have very well misguided
              him, because I do not have knowledge of immigration law, and
              that’s why I referred him to someone that would have adequate
              knowledge of that to be able [to] answer all of those questions.

       Counsel testified that she gave the Petitioner the contact information for two
immigration attorneys. Counsel did not consult with the immigration attorneys herself, and
she did not ask the Petitioner if he consulted with them. The Petitioner was given the option
to plead guilty to the misdemeanor offenses or go to trial and risk being convicted of felonies.
Counsel stated, “With those options in front of him, he chose to plead to the misdemeanors.”
Counsel said she did not use an interpreter to communicate with the Petitioner because he
spoke fluent English and never indicated that he did not understand her. The Petitioner had
difficulty reading English, so counsel read the plea agreement to him prior to his guilty pleas.
Toward the conclusion of trial counsel’s testimony, post-conviction counsel asked, “[A]t no
point did you have a real discussion regarding immigration consequences; correct?” Trial
counsel answered,

              I knew -- yes, we had the discussion that he had an INS hold,
              and that he would be -- he would be taken from here to a
              deportation center, and we assumed that that would be
              Louisiana, yes, we did talk about that. And then once in
              Louisiana he may or may not get bond, and that he would have
              a hearing there, and that that would determine whether he was
              deported or not, again, please consult an immigration attorney,
              but we did have that limited discussion.

Counsel said that she and the Petitioner discussed what he was going to do if he were
deported; the Petitioner was planning to stay with his mother in Mexico. The Petitioner’s
fiancé told counsel that she and the children were going to visit him there so that he could
maintain a relationship with his biological son.

       On cross-examination, trial counsel testified that she discussed the Petitioner’s
immigration status with the district attorney’s office and that she asked to “negotiate this to
misdemeanors.” She acknowledged that she thought it would be easier to help the Petitioner
after he was deported if he was convicted of misdemeanors rather than felonies.

       Laura Noss, the Petitioner’s fiancé, testified that she and the Petitioner had a son
together. In previous cases, trial counsel had recommended that the Petitioner consult with
an immigration attorney. However, counsel never recommended that he consult with an

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immigration attorney in this case. When asked if counsel advised the Petitioner about the
immigration consequences of his guilty pleas in this case, Noss said that counsel “wasn’t
sure[.] . . . [W]hat [counsel] assumed was if it was a misdemeanor, then for immigration
purposes he would be able to somehow come back if he was deported. The deportation was
still in question, was not sure about that, but thought [deportation] could be likely because
of the ICE hold.” Noss said the “main . . . concern” was the Petitioner’s being able to come
back to the United States if he were deported. Counsel thought the misdemeanor convictions
would not prevent the Petitioner from returning to this country.

        On cross-examination, Noss testified that trial counsel did not know the “exact law”
regarding the immigration consequences of the Petitioner’s guilty pleas. Counsel thought
that if the Petitioner pled guilty to misdemeanors and was deported, he would be able to
return to the United States legally.

       On redirect examination, Noss acknowledged that she thought the Petitioner would
be released from jail after his guilty pleas. Instead, he remained in custody.

        The Petitioner testified through an interpreter that he had been in the United States
since 1999. The Petitioner was arrested in this case on March 28, 2010, and counsel visited
him twice in jail. The Petitioner acknowledged that counsel met with him before his plea
hearing and that they talked about deportation. The Petitioner explained, “I didn’t know if
they were going to deport me or not, but yeah, we talked about that.” The Petitioner did not
know if pleading guilty to misdemeanors would hurt or help his chances of being deported.
Counsel read the plea agreement to the Petitioner, and he understood it. The Petitioner was
expecting to be released from custody after his plea hearing. However, counsel telephoned
the jail, inquired into the Petitioner’s immigration hold, and learned he was going to be
deported.

       On cross-examination, the Petitioner acknowledged that an immigration hold was in
place prior to his guilty pleas and that counsel advised him the guilty pleas could affect his
deportation status. He said he talked with trial counsel about his living with his mother in
Mexico. On redirect examination, the Petitioner testified that their conversation about his
living with his mother occurred after his guilty pleas.

       Trial counsel was recalled to testify for the State and said, “From early on in this case
we knew that he had an immigration hold.” Counsel stated that she referred the Petitioner
to two immigration attorneys and that “I advised him that a plea in this case could result in
problems with his immigration status.” She said she also advised him on the day of the plea
hearing that “if he were to make bond after he was taken down to the holding center in
Louisiana . . . that when he came back to Franklin, he would need to report to his probation

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officer immediately, because he was on probation here.” She said that she never told the
Petitioner “the misdemeanors were some sort of a win or ah-ha, you’re going to get out of
jail now” and that “[t]here was no way for him to get out of jail here unless the people that
work for ICE did not come pick him up. . . . [R]egardless if it was a misdemeanor or a
felony; that simply wasn’t up to me.”

       In a written order, the post-conviction court noted that the Petitioner did not need an
interpreter during the evidentiary hearing because “[m]any times the Petitioner would answer
a question in English without waiting for the interpretation. . . . It was clear that the Petitioner
understood and spoke the English language fluently, just as [trial counsel] had testified.” The
court found that the Petitioner had “little to no credibility” and concluded that trial counsel
complied with Padilla because she advised the Petitioner about “the risk of adverse
[immigration] consequences his plea would carry.” The court stated that trial counsel’s
testimony clearly and convincingly satisfied the court that the Petitioner understood his
actions at the guilty plea hearing and that he pled guilty voluntarily. The court denied the
petition for post-conviction relief.

                                          II. Analysis

        The Petitioner claims that the post-conviction court erred by denying his petition for
post-conviction relief because trial counsel failed to advise him about the immigration
consequences of his guilty pleas as required by Padilla, which resulted in his entering his
pleas unknowingly and involuntarily. Specifically, the Petitioner argues that counsel failed
to advise him that his guilty pleas would render him deportable and that she incorrectly
thought he would be able to re-enter the United States if he was deported. The State argues
that the court properly denied the petition. We agree with the State.

        To be successful in a claim for post-conviction relief, a petitioner must prove all
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight
of a jury verdict, with such findings being conclusive on appeal absent a showing that the
evidence in the record preponderates against those findings. Id. at 578.



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       A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001). However, we will review the post-conviction
court’s conclusions of law purely de novo. Id.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, the petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,

              [b]ecause a petitioner must establish both prongs of the test, a
              failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance claim.
              Indeed, a court need not address the components in any
              particular order or even address both if the [petitioner] makes an
              insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). In the context of a guilty plea,
“the petitioner must show ‘prejudice’ by demonstrating that, but for counsels errors, he
would not have pleaded guilty but would have insisted upon going to trial.” Hicks v. State,
983 S.W.2d 240, 246 (Tenn. Crim. App. 1998); see also Hill v. Lockhart, 474 U.S. 52, 59
(1985).

        Padilla involved a defendant who was a lawful permanent resident of the United
States and was facing deportation after pleading guilty to transporting a large amount of
marijuana in a tractor-trailer. 130 S. Ct. at 1477. In Padilla, the United States Supreme
Court addressed whether counsel renders deficient performance when counsel fails to advise
a defendant about the immigration consequences of a guilty plea. Specifically, the Court held
for the first time that trial counsel renders deficient performance when counsel fails to advise
a defendant that the defendant’s guilty plea carries a risk of deportation. Id. at 1486.
Moreover,

              [t]he Court clarified that when the relevant immigration law is

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              ‘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.

Ex parte Tanklevskaya, 361 S.W.3d 86, 90 (Tex. App. 2011) (quoting Padilla, 130 S. Ct. at
1483). Misadvice or silence about the immigration consequences of a guilty plea can result
in the ineffective assistance of counsel. Padilla, 130 S. Ct. at 1484.

        In addition to deportation, an alien’s guilty plea can render him or her unable to re-
enter the United States. Relevant to this case, 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). Therefore, a defendant’s guilty plea to simple possession
of marijuana would make the defendant “presumptively inadmissible” if he or she attempted
to return to this country. Ex parte Tanklevskaya, 361 S.W.3d at 96. “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.’” Id. (quoting 8 U.S.C.S. § 1182(h)).

        Regarding the Petitioner’s claim that counsel failed to advise him properly about the
deportation consequences of his guilty pleas, the post-conviction court specifically accredited
trial counsel’s testimony. Trial counsel testified that she told the Petitioner deportation was
“highly likely.” Therefore, we agree with the post-conviction court that the Petitioner has
failed to show that counsel’s performance was deficient. Moreover, unlike Mr. Padilla, the
Petitioner was an illegal alien and was deportable for that reason alone. In fact, ICE had
placed an immigration hold on him prior to his guilty pleas. Therefore, even if counsel failed
to advise him about the effect of his guilty pleas on his deportability, he cannot show
prejudice because he cannot demonstrate that his deportability status was a consequence of
his guilty pleas. See United States v. Hermilo Benitez Serrato, Crim. No. H-11-0169, Civ.
No. H-12-2018, 2012 U.S. Dist. LEXIS 100734, at *6 (S.D. Tex. July 18, 2012); United
States v. Francisco Perea, Crim. No. 08-20160-08-KHV, Civ. No. 11-2218-KHV, 2012 U.S.
Dist. LEXIS 32124, at **13-14 n.4 (D. Kan. Mar. 8, 2012); United States v. Juan
Correa-Gutierrez, 8:08CR267, 2011 U.S. Dist. LEXIS 53017, at *3 (D. Neb. May 17, 2011);
United States v. Jorge Medina Aceves, Civ. No. 10-00738 SOM/LEK, Crim. No. 08-00501
SOM, 2011 U.S. Dist. LEXIS 27813, at * 14 (D. Haw. Mar. 17, 2011); Jean-Marie Vianney
Mudahinyuka v. United States, No. 10 C 5812, 2011 U.S. Dist. LEXIS 11588, at *13 (N.D.
Ill. Feb. 7, 2011); United States v. Fredy Armondo Gutierrez-Martinez, Crim. Action No.

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07-91(5) ADM/FLN, Civ. Action No. 10-2553-ADM, 2010 U.S. Dist. LEXIS 134052, at *10
(D. Minn. Dec. 17, 2010); People v. Vielka Garcia, 4902/02, 2011 N.Y. Misc. LEXIS 3997,
at *10 (N.Y. Sup. Ct., July 26, 2011).

       We note that during oral argument, the Petitioner also claimed that trial counsel had
a responsibility to negotiate a plea agreement that lessened his risk of deportation. In Padilla,
the Supreme Court recognized that

              [c]ounsel who possess the most rudimentary understanding of
              the deportation consequences of a particular criminal offense
              may be able to plea bargain creatively with the prosecutor in
              order to craft a conviction and sentence that reduce the
              likelihood of deportation, as by avoiding a conviction for an
              offense that automatically triggers the removal consequence. At
              the same time, the threat of deportation may provide the
              defendant with a powerful incentive to plead guilty to an offense
              that does not mandate that penalty in exchange for a dismissal
              of a charge that does.

130 S. Ct. at 1486. However, given that the Petitioner was subject to deportation regardless
of any negotiated plea agreement in this case, we again hold that he cannot show prejudice.

       Next, we will address the Petitioner’s claim that trial counsel misadvised him
regarding the effect of his guilty pleas on his ability to re-enter the United States. Trial
counsel testified that she told the Petitioner to consult with an immigration attorney but that
she did not talk with the attorney herself and did not talk with the Petitioner about the
attorney’s advice. Trial counsel also testified that she worked with the district attorney’s
office to negotiate pleas to misdemeanors because she thought pleading guilty to
misdemeanors, as opposed to felonies, would help the Petitioner. However, pursuant to
section 1182(a)(2)(A)(i)(II) of Title 8 of the United States Code, the Petitioner’s guilty plea
to simple possession of marijuana rendered him presumptively unable to re-enter the United
States legally. It was trial counsel’s duty to investigate and properly advise him about the
consequences of his guilty pleas, including his presumptive inability to re-enter this country.
Counsel made no attempt to do that in this case. Given that counsel failed to investigate and
properly advise the Petitioner, we conclude that counsel rendered deficient performance.

        We must now determine whether the Petitioner was prejudiced by counsel’s
deficiency. At the evidentiary hearing, counsel for the Petitioner questioned him only about
trial counsel’s failure to advise him regarding the deportation consequences of his guilty
pleas. Post-conviction counsel never questioned him about trial counsel’s failure to advise

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him regarding his future re-entry into the United States. As a result, the Petitioner never
testified about the effect of counsel’s misadvice or lack of advice on his decision to plead
guilty and never stated that he would not have entered his pleas had he known they would
affect his ability to re-enter this country. Therefore, we conclude that the Petitioner has
failed to demonstrate that he was prejudiced by counsel’s failure to advise him that his guilty
pleas would make him presumptively ineligible for future admissibility into the United
States.

                                      III. Conclusion

      Based upon the oral arguments, the record, and the parties’ briefs, we affirm the post-
conviction court’s denial of the petition for post-conviction relief.


                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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