                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                           STATE OF ARIZONA,
                               Petitioner,

                                    v.

                    HECTOR SEBASTION NUNEZ-DIAZ,
                             Respondent.

                           No. CR-18-0514-PR
                           Filed July 16, 2019

          Appeal from the Superior Court in Maricopa County
          The Honorable Phemonia L. Miller, Judge Pro Tempore
                       No. CR2013-430489-001
                            AFFIRMED

             Memorandum Decision of the Court of Appeals
                           Division One
                      1 CA-CR 16-0793 PRPC
                        Filed Sept. 18, 2018
                            AFFIRMED

COUNSEL:

Ray A. Ybarra Maldonado (argued), Juliana C. Manzanarez, Law Office of
Ray A. Ybarra Maldonado, PLC, Phoenix, Attorneys for Hector Sebastian
Nunez-Diaz

William G. Montgomery, Maricopa County Attorney, Karen Kemper,
Deputy County Attorney (argued), Phoenix, Attorneys for State of Arizona

Mark Brnovich, Arizona Attorney General, Drew C. Ensign (argued),
Deputy Solicitor General, Phoenix, Attorneys for Amicus Curiae Arizona
Attorney General

John Walters, Office of the Pima County Public Defender, Tucson; Jon M.
Sands, Federal Public Defender, Keith J. Hilzendeger (argued), Assistant
Federal Public Defender, Phoenix; Grant D. Wille, Ralls & Reidy, P.C.,
Tucson, Attorneys for Amici Curiae Arizona Attorneys for Criminal Justice,
                          STATE V. NUNEZ-DIAZ
                            Opinion of the Court

Pima County Public Defender, and the Federal Public Defender for the
District of Arizona

CHIEF JUSTICE BALES authored the opinion of the Court, in which
JUSTICES TIMMER, BOLICK and PELANDER (RETIRED) joined. JUSTICE
BOLICK, joined by JUSTICE PELANDER, filed a concurring opinion.
JUSTICE LOPEZ, joined by VICE CHIEF BRUTINEL and JUSTICE
GOULD, filed an opinion concurring in the result.

CHIEF JUSTICE BALES, opinion of the Court:

¶1             In this case involving post-conviction relief, the State argues
that the lower courts erred in concluding that Hector Sebastion Nunez-
Diaz, an undocumented immigrant, received ineffective assistance of
counsel when he entered a guilty plea resulting in his mandatory
deportation. The State contends that because Nunez-Diaz was deportable
without regard to his plea, he cannot establish a claim of ineffective
assistance or, alternatively, that any constitutional violation was harmless.
Because Nunez-Diaz suffered severe and mandatory consequences
(including a permanent bar from reentry) as a result of the plea he entered
due to counsel’s deficient advice, we agree with the trial court and the court
of appeals that he received ineffective assistance of counsel justifying post-
conviction relief.
                                       I.

¶2           We defer to a trial court’s findings of fact unless clearly
erroneous. State v. Hulsey, 243 Ariz. 367, 377 ¶ 17 (2018). Nunez-Diaz was
stopped for speeding and found in possession of small amounts of
methamphetamine and cocaine. He was subsequently charged with
possession or use of a dangerous drug and possession or use of a narcotic
drug, each a class 4 felony. See A.R.S. §§ 13-3407(A)(1), -3408(A)(1). The
record does not reflect that Nunez-Diaz had any prior criminal history.

¶3            Upon his arrest, Nunez-Diaz’s family began searching for an
attorney. Their chief concern was avoiding Nunez-Diaz’s deportation.
They met with an attorney from a Phoenix law firm experienced in criminal
defense and immigration law, who informed them that although Nunez-
Diaz had a difficult case, it was possible to avoid deportation. Reassured
by this meeting, Nunez-Diaz’s family chose to retain that firm, and the firm
assigned a criminal defense attorney to Nunez-Diaz’s case.

                                      2
                          STATE V. NUNEZ-DIAZ
                            Opinion of the Court


¶4           The State offered a plea deal that would reduce the charges
Nunez-Diaz was facing to a single count of possession of drug
paraphernalia, a class 6 undesignated felony. See A.R.S. § 13-3415(A).
Counsel advised Nunez-Diaz to take the plea. He did. Consistent with the
plea agreement, the trial court suspended sentencing and placed Nunez-
Diaz on eighteen months’ unsupervised probation.

¶5             Nunez-Diaz was transferred to the custody of United States
Immigration and Customs Enforcement (“ICE”). He was informed that,
because of his plea, he could not bond out of custody and would be
deported. This alarmed both Nunez-Diaz and his family, who returned to
the law firm. There, an immigration attorney told the family that because
of the plea, nothing could be done to keep Nunez-Diaz in this country. The
family found new counsel who was able to negotiate for Nunez-Diaz’s
voluntary removal to Mexico, where Nunez-Diaz has remained.

¶6            Nunez-Diaz then initiated post-conviction relief proceedings
pursuant to Arizona Rule of Criminal Procedure 32. He claimed he
received ineffective assistance of counsel in violation of the Sixth
Amendment to the United States Constitution. In his pleadings, he avowed
that his primary concern in considering the plea offer was his immigration
status and he would not have entered the plea if his counsel had accurately
advised him of the immigration consequences.

¶7             After holding an evidentiary hearing, the trial court ruled that
Nunez-Diaz had established ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984).            The court found
overwhelming evidence that “counsel’s actions fell below an objective
standard [of reasonableness].”        Counsel had “misrepresented the
immigration consequences to defendant,” and failed to inform Nunez-Diaz
that his removal would be guaranteed if he accepted the plea. As a “direct
result of [counsel’s] failure,” Nunez-Diaz was prejudiced by forfeiting his
chance at trial and thus his only chance at avoiding removal. Accordingly,
the trial court ordered that Nunez-Diaz’s guilty plea be set aside.

¶8           The court of appeals granted the State’s petition for review,
and a divided panel denied relief. See State v. Nunez-Diaz, 1 CA-CR 16-0793
PRPC, 2018 WL 4500758, at *1-*2 ¶¶ 1, 13 (Ariz. App. Sept. 18, 2018) (mem.
decision). The court concluded that Nunez-Diaz had “established he

                                      3
                          STATE V. NUNEZ-DIAZ
                            Opinion of the Court

suffered from both deficient performance and prejudice when he entered”
his plea. Id. at *2 ¶ 10. The burden then shifted to the State to demonstrate
that the constitutional deficiency was harmless, which it failed to do.
Id. ¶ 11. The dissenting judge argued that, because Nunez-Diaz was
deportable regardless of his plea, there was no prejudice and thus no
constitutional claim. Id. at *3 ¶ 14 (Morse, J., dissenting).

¶9            We granted review to consider whether deportable
immigrants can show prejudice if their lawyers’ deficient performances
lead them to plead guilty and suffer attendant immigration consequences –
a recurring issue of statewide importance.

                                      II.

¶10            The Sixth Amendment guarantees a defendant the right to
counsel. U.S. Const. amend. VI; see also Wong Wing v. United States, 163 U.S.
228, 238 (1896) (holding that “even aliens” are protected by the Fifth and
Sixth Amendments). The right to counsel includes the right to effective
assistance of counsel. Strickland, 466 U.S. at 686 (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970)). To demonstrate that counsel’s
assistance was so deficient as to require reversal of a conviction, a defendant
must show both that “counsel’s representation fell below an objective
standard of reasonableness” and “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 688, 694. Even if a defendant proves a constitutional
violation, however, post-conviction relief will be denied if the state proves
“beyond a reasonable doubt that the violation was harmless.” Ariz. R.
Crim. Proc. 32.8(c). This Court reviews a trial court’s ruling on a petition
for post-conviction relief for an abuse of discretion. State v. Miles, 243 Ariz.
511, 513 ¶ 7 (2018).
                                      A.

¶11           To satisfy Strickland’s first prong, a defendant must
demonstrate that counsel’s assistance was constitutionally deficient. Padilla
v. Kentucky, 559 U.S. 356, 366 (2010). Generally, plea counsel “need do no
more than advise a noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences.” Id. at 369. When the
consequences of a plea are clear, however, “the duty to give correct advice
is equally clear” and counsel must inform their client of those
consequences. Id.

                                       4
                           STATE V. NUNEZ-DIAZ
                             Opinion of the Court

¶12           This case is one in which counsel was obliged to give correct
advice about the clear consequences of a plea. Nunez-Diaz’s plea resulted
in a conviction that falls under 8 U.S.C. § 1227(a)(2)(B). Such a conviction
renders a noncitizen, other than a lawful permanent resident, ineligible for
discretionary relief from removal, see, e.g., 8 U.S.C. § 1229b(b)(1)(C), and
would permanently prevent that individual from ever returning to this
country, 8 U.S.C. § 1182(a)(2)(A)(i)(II). The trial court found that competent
counsel “could have easily” explained the adverse immigration
consequences of the plea and that there was “overwhelming evidence” that
counsel’s assistance was constitutionally deficient. At oral argument in this
Court, the State conceded that plea counsel’s assistance fell below an
objective standard of reasonableness. We agree - the first prong of
Strickland has been satisfied.
                                       B.

¶13             Strickland’s second prong requires that a defendant show
counsel’s errors had a prejudicial effect. See Padilla, 559 U.S. at 369. When
a claim of ineffective assistance of counsel stems from plea proceedings, a
defendant must show a reasonable probability that, “but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going
to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). To do so, it must “have been
rational under the circumstances” for a defendant to refuse a plea and go to
trial. Padilla, 559 U.S. at 372.

¶14           It is not irrational for a defendant to go to trial when trial
represents the only, albeit slim, chance that a defendant can avoid severe
and certain immigration consequences. Lee v. United States, 137 S. Ct. 1958,
1968 (2017). In Lee, defendant Lee received inaccurate advice from plea
counsel that resulted in him signing a plea that guaranteed deportation. Id.
at 1963. The “determinative issue” in Lee’s decision-making had been the
avoidance of deportation. Id. Thus, Lee initiated post-conviction relief
proceedings, claiming ineffective assistance of counsel. Id.

¶15            The Supreme Court ultimately sided with Lee. Id. at 1969.
Although a defendant must ordinarily “show that he would have been
better off going to trial,” this is only true when a defendant’s decision turns
on his prospects at trial. Id. at 1965. Lee’s decision, though, turned on what
was most likely to keep him in the country – he would not have entered his
plea had he been accurately advised of the immigration consequences. Id.
at 1965, 1967. Although Lee was almost certain to lose at trial, “that ‘almost’

                                       5
                          STATE V. NUNEZ-DIAZ
                            Opinion of the Court

could make all the difference.” Id. at 1969. It was not irrational for Lee to
try for a “Hail Mary” win in order to avoid the “particularly severe penalty”
of deportation. Id. at 1967-68.

¶16             Lee controls our resolution of this case. The trial court found
that had Nunez-Diaz been accurately advised, he would not have accepted
his plea, opting instead to continue plea negotiations or proceed to trial. A
plea here resulted automatically in the outcome that Nunez-Diaz most
sought to avoid – immediate and permanent removal. If Nunez-Diaz had
gone to trial and been convicted, the presumptive sentence on the more
serious charge – possession or use of a dangerous drug – would have been
2.5 years’ imprisonment, A.R.S. § 13-702(D), and he could have been
sentenced to probation on both charges, A.R.S. § 13-901.01(A). Cf. Lee, 137
S. Ct. at 1967 (indicating that it would not be irrational for a defendant to
opt for trial if there was only a slight difference between the terms of the
plea deal and the worst outcome at trial). Although his chances of winning
at trial, and thus avoiding automatic immigration consequences, were
“highly improbable,” it would not have been irrational for Nunez-Diaz to
reject the plea. See id.

¶17            The State essentially argues that Lee only applies to those who
are lawfully present in this country. This misreads Lee – it turned not on
Lee’s immigration status but on whether he was “prejudiced by the ‘denial
of the entire judicial proceeding.’” 137 S. Ct. at 1965 (quoting Roe v. Flores-
Ortega, 528 U.S. 470, 483 (2000)). Moreover, the cases the State relies on to
support its argument were decided before Lee and their reasoning does not
survive. Compare United States v. Batamula, 823 F.3d 237, 243 (5th Cir. 2016)
(en banc) (stating that, because defendant was already removable, he had
not offered a rational reason for wanting to proceed to trial), with Lee, 137
S. Ct. at 1966-68 (holding that it was rational to insist on going to trial on
the off-chance, albeit remote, a defendant could avoid deportation).

¶18           Because Nunez-Diaz has established a constitutional
violation, he is entitled to post-conviction relief unless the State meets its
burden of proving beyond a reasonable doubt that the violation was
harmless. Ariz. R. Crim. P. 32.8(c). The State contends there was no harm
here because Nunez-Diaz was deportable under § 1227(a)(1)(B) and would
have been removed regardless of his plea.



                                      6
                          STATE V. NUNEZ-DIAZ
                            Opinion of the Court

¶19            We disagree. “There is a vast difference for an unauthorized
alien between being generally subject to removal and being convicted of a
crime that subjects an unauthorized alien to automatic, mandatory, and
irreversible removal.” Diaz v. State, 896 N.W.2d 723, 733 (Iowa 2017). As
the court of appeals noted, the record does not establish that Nunez-Diaz
would necessarily have been removed had he gone to trial and been
acquitted. There are many reasons that a deportable immigrant may not be
removed. Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented
Defendants, 19 Harv. Latino L. Rev. 1, 8-10 (2016). Deportable immigrants
are potentially eligible for cancellation of removal or adjustment of status
under § 1229b(b)(1), but persons with a drug conviction under
§ 1227(a)(2)(B) are not eligible for such discretionary relief.

¶20           Moreover, due to his plea, Nunez-Diaz was permanently
barred from ever returning to this country. Ordinarily, an unlawfully
present person who is removed may seek readmission after a period of
three or ten years. 8 U.S.C. § 1182(a)(9)(B)(i). A conviction that falls under
§ 1227(a)(2)(B), however, imposes a permanent bar on such persons from
ever returning. § 1182(a)(2)(A)(i)(II). Such a consequence can hardly be
called harmless.

                                      III.

¶21            Although Nunez-Diaz may have had little chance of winning
at trial, he was entitled to effective assistance of counsel in deciding whether
to take that chance or to accept a plea offer. He gave up his right to trial
based on his counsel’s deficient advice, which assured the outcome he most
feared. The trial court did not abuse its discretion in granting post-
conviction relief, and we affirm the ruling of the trial court and the decision
of the court of appeals.




                                       7
                     STATE V. NUNEZ-DIAZ
JUSTICE BOLICK, joined by JUSTICE PELANDER (RETIRED), Concurring

BOLICK, J., joined by PELANDER, J. (RETIRED), concurring.

¶22            I concur fully with the Court’s opinion. I write separately to
question Lee v. United States, the United States Supreme Court precedent
that dictates the outcome here. 137 S. Ct. 1958 (2017). Lee creates a highly
unbalanced two-tiered system for criminal defendants seeking relief from
convictions for ineffective assistance of counsel: one for aliens subject to
deportation and one for most other defendants.

¶23            The baseline decision for ineffective assistance of counsel
claims is Strickland v. Washington, 466 U.S. 668 (1984). There the Court set
forth two requirements for setting aside a conviction: (1) deficient attorney
performance of constitutional magnitude and (2) resulting prejudice to the
defendant. Id. at 687. The second requirement, which is solely at issue here,
“requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. Specifically,
“the defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different,” id. at 694, which requires considering “the totality of the
evidence” presented. Id. at 695.

¶24            For the ordinary defendant seeking to overturn a conviction
for ineffective assistance of counsel, this showing is a “high bar.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010). Certainly, if the guilty verdict would
have been essentially a fait accompli even absent deficient performance by
counsel, the conviction will be sustained. See Strickland, 466 U.S. at 694.

¶25            Not so, where, as here, a defendant is facing deportation and
counsel erred in explaining the potential immigration consequences of a
plea deal. In Lee, the Court purported to apply Strickland, but the standard
actually applied in Lee could not be more different. See 137 S. Ct. at 1964.
Strickland requires that the defendant show prejudice by proving that there
is a reasonable probability that the ultimate outcome would have been
different but for counsel’s deficient performance. See 466 U.S. at 694; see also
Missouri v. Frye, 566 U.S. 134, 147 (2012). Thus, under Strickland’s
articulation of prejudice, the ineffective assistance of counsel claim in Lee
would have failed. Indeed, in accepting the plea deal, the defendant in Lee
admitted his guilt and there was no indication on appeal that he had a
viable defense, establishing that the result of a trial would be all but a
foregone conclusion that would almost certainly lead to deportation but
possibly to greater jail time as well. See 137 S. Ct. at 1966; see also Menna v.

                                       8
                     STATE V. NUNEZ-DIAZ
JUSTICE BOLICK, joined by JUSTICE PELANDER (RETIRED), Concurring

New York, 423 U.S. 61, 62 n.2 (1975) (per curiam) (“[A] counseled plea of
guilty is an admission of factual guilt so reliable that, where voluntary and
intelligent, it quite validly removes the issue of factual guilt from the
case.”).

¶26             Nonetheless, the Lee Court held that a defendant has the right
to have a guilty plea set aside even where the defendant has not shown that
the ultimate outcome from proceeding to trial would be different. 137 S. Ct.
at 1966–69. In other words, Lee’s holding extends to situations where no
viable defense exists to the charges, and thus, deportation and other
immigration consequences, as well as jail time, are almost certain results of
going to trial. Id. For the vast majority of alien defendants like the one in
Lee, there is no difference in outcome between proceeding to trial or taking
the plea. Even so, under Lee, a defendant facing immigration consequences
gets to attempt a “Hail Mary” pass in a new trial, id. at 1967, while
defendants in other contexts who likewise faced almost certain conviction
at trial don’t even get to the line of scrimmage.

¶27           The Lee majority cited Hill v. Lockhart, 474 U.S. 52 (1985), for
the proposition that when a defendant receives ineffective assistance of
counsel in connection with a guilty plea, a different standard for evaluating
prejudice applies. See Lee, 137 S. Ct. at 1965. But Hill expressly embraced
Strickland’s two-part requirement in that context, 474 U.S. at 58–59, and
subsequent cases that applied Hill required the defendant to show that a
different outcome was likely absent the ineffective assistance of counsel, see
Lee, 137 S. Ct. at 1973 (Thomas, J., dissenting) (discussing cases). As the
dissenting opinion by Justices Thomas and Alito demonstrates, Lee grossly
diverges from Strickland, and thus was wrongly decided. Id. at 1969–75.
Because Lee creates unequal treatment with regard to ineffective assistance
of counsel claims and places unnecessary burdens on Arizona courts, I hope
the Supreme Court will reconsider that decision.




                                      9
                      STATE V. NUNEZ-DIAZ
    JUSTICE LOPEZ, joined by VICE CHIEF JUSTICE BRUTINEL and
             JUSTICE GOULD, Concurring in the Result

LOPEZ, J., joined by BRUTINEL, V.C.J., and GOULD, J., concurring in the
result.

¶28            I concur in the Court’s resolution because Lee v. United States,
137 S. Ct. 1958 (2017), controls the outcome in this case. I write separately
to clarify my view concerning what constitutes prejudice under Lee and
Strickland v. Washington, 466 U.S. 668 (1984), when a defendant, previously
subject to deportation, suffers adverse immigration consequences as a
result of a plea he entered due to counsel’s deficient advice.

¶29           Here, as the majority notes, Nunez-Diaz’s plea resulted in a
conviction that, under 8 U.S.C. § 1227(a)(2)(B)(i), renders a noncitizen, other
than a lawful permanent resident, ineligible for discretionary relief from
removal, 8 U.S.C. § 1229b(b)(1)(C), and permanently prevents future
admission into the United States, 8 U.S.C. § 1182(a)(2)(A)(i)(II). Supra ¶ 12.
The State conceded that Nunez-Diaz’s plea counsel failed to meet an
objective standard of reasonableness under Strickland when advising him
about the immigration consequences of the plea. Thus, the only question is
whether Nunez-Diaz’s counsel’s error resulted in prejudice under
Strickland. Supra ¶ 12.

¶30           The majority concludes that Nunez-Diaz has established
prejudice because his plea resulted in his automatic deportation and loss of
potential discretionary relief from removal and permanently prevents his
future lawful admission into the United States. Supra ¶¶ 16, 19–20.
Although permanent exclusion of admission into the country under
8 U.S.C. § 1182(a)(2)(A)(i)(II) constitutes prejudice under Strickland if the
sanction is exclusively the result of the plea conviction, I note that
deportation and ineligibility for discretionary relief from removal under
8 U.S.C. § 1229b(b)(1)(C) do not constitute prejudice under Strickland if a
defendant is previously subject to removal as a deportable alien pursuant
to 8 U.S.C. § 1227(a)(1)(B). See, e.g., United States v. Batamula, 823 F.3d 237,
242–43 (5th Cir. 2016) (holding that defendant “has failed to put forward a
rational explanation of his desire to proceed to trial” where his deportability
was “a fait accompli before he pleaded guilty”); cf. United States v. Donjuan,
720 F. App'x 486, 490 (10th Cir.) (2018) (reasoning that an illegal alien cannot
establish prejudice on an ineffective assistance claim due to deportation
because their deportation was a result of their illegal presence, not their
attorney’s erroneous advice), cert. denied, 139 S. Ct. 590 (2018).


                                      10
                      STATE V. NUNEZ-DIAZ
    JUSTICE LOPEZ, joined by VICE CHIEF JUSTICE BRUTINEL and
             JUSTICE GOULD, Concurring in the Result

¶31            The majority rejects the State’s suggestion “that Lee only
applies to those who are lawfully present in this country” because Lee
“turned not on . . . immigration status but on whether [Lee] was ‘prejudiced
by the denial of the entire judicial proceeding.’” Supra ¶ 17 (quoting Lee,
137 S. Ct. at 1965). The majority may be correct, but it misses an important
point. Lee, like the defendant in Padilla, was lawfully in the United States,
entered a guilty plea pursuant to counsel’s deficient advice concerning
adverse immigration consequences, and became subject to deportation
solely as a result of his plea conviction. Lee, 137 S. Ct. at 1962; Padilla v.
Kentucky, 559 U.S. 356, 359–60 (2010). In other words, Lee and Padilla
established Strickland prejudice because their decision to proceed to trial
was rational because they never would have been subject to deportation but
for their convictions.

¶32             In contrast, Nunez-Diaz cannot prove Strickland prejudice
here based on his subsequent deportation because he was already subject
to removal (and an ICE detainer) as a deportable alien under 8 U.S.C.
§ 1227(a)(1)(B) at the time of his plea conviction. Under Lee, a defendant
must prove that there exists a “reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have insisted on going
to trial.” 137 S. Ct. at 1965 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
As the majority notes, supra ¶ 13, a defendant makes such a showing by
proving that going to trial would have been rational under the
circumstances. Here, it would not have been rational for Nunez-Diaz to go
to trial to avoid deportation when he was deportable no matter the outcome
of the case. See, e.g., Batamula, 823 F.3d at 242–43; Donjuan, 720 F. App'x at
490.

¶33          Likewise, Nunez-Diaz fails to meet his burden to show
prejudice based on the loss of discretionary relief under 8 U.S.C. § 1229b(b)
because such relief is too speculative. See, e.g., Mejia Rodriguez v. Reno,
178 F.3d 1139, 1148 (11th Cir. 1999) (“[A]n attorney's deficient
representation does not deprive an alien of due process if the deficient
representation merely prevents the alien from being eligible for suspension
of deportation . . . . [S]uch discretionary relief [is] too speculative, and too
far beyond the capability of judicial review, to conclude that the alien has
actually suffered prejudice from being ineligible for suspension of
deportation.”); Rosario v. State, 165 So. 3d 672, 673 (Fla. Dist. Ct. App. 2015)
(“The possibility for an adjustment in status, a matter within the exclusive

                                       11
                      STATE V. NUNEZ-DIAZ
    JUSTICE LOPEZ, joined by VICE CHIEF JUSTICE BRUTINEL and
             JUSTICE GOULD, Concurring in the Result

discretion of federal officials, is too speculative and not a proper basis to
support prejudice for a Padilla claim.”). Although Lee’s election to try for a
“Hail Mary” win at trial despite virtually no prospect for success may have
been rational to attempt to avoid a deportation that would occur only as a
result of a conviction, supra ¶ 15, Lee’s reasoning does not apply here.
Nunez-Diaz’s victory (avoiding deportation) required not just a “Hail
Mary” win at trial, but also a “Hail Mary” win in subsequent immigration
proceedings. In other words, even if Nunez-Diaz prevailed at trial, he
would remain deportable and would avoid deportation only if a federal
official exercised discretion to allow him to remain in the United States
despite his illegal status. A chance at such discretionary relief is too
speculative to constitute cognizable prejudice. 1

¶34            However, this approach does not categorically preclude Lee’s
application to those unlawfully present in the United States (as the State
urges) but rather recognizes that Strickland prejudice requires a showing
that counsel’s deficient advice caused a non-speculative, material harm.
Although Nunez-Diaz’s deportation following his plea conviction and his
loss of possible discretionary relief fail to establish prejudice under
Strickland, I concur in the majority’s conclusion that his permanent bar to
admission into the United States constitutes prejudice. Supra ¶ 20. This
adverse immigration consequence, like the deportations in Padilla and Lee,
is a direct material harm that is exclusively the result of his plea conviction.
I cannot conclude that, under Lee, it was irrational for Nunez-Diaz to try for
a “Hail Mary” win at trial in order to avoid the permanent bar to admission
to the United States.

¶35          Finally, although Lee controls the result in this case, I agree
with Justice Bolick’s statements in his concurring opinion expressing
concern about Lee’s “unequal treatment with regard to ineffective assistance
of counsel” and its “unnecessary burdens on Arizona courts.” Supra ¶ 27.



1Even if loss of eligibility for discretionary relief from removal under 8
U.S.C. § 1229b(b) constituted Strickland prejudice, such eligibility is
predicated on, among other things, the deportable alien’s continuous
physical presence in the United States for at least ten years prior to
application for relief. 8 U.S.C. § 1229b(1)(A). Based on the record, Nunez-
Diaz failed to establish his eligibility for such relief.
                                      12
