Affirmed and Memorandum Opinion filed July 25, 2017.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00499-CR

                       EX PARTE ENRIQUE P. GOMEZ

                    On Appeal from the 344th District Court
                          Chambers County, Texas
                        Trial Court Cause No. 14571-B

                       MEMORANDUM OPINION

      In this appeal from an order denying a subsequent application for writ of
habeas corpus, the issue presented arises from a complaint that trial counsel gave
erroneous advice about the immigration consequences of a guilty plea. As explained
further below, we find no merit to this issue, and we affirm the habeas court’s order.

                                 BACKGROUND

      Appellant pleaded guilty in 2008 to one count of aggravated assault with a
deadly weapon. The trial court deferred an adjudication of guilt and placed appellant
on community supervision for a period of six years.
      At the time of his plea, appellant had been a legal permanent resident of this
country for less than five years, and under federal law, his guilty plea constituted a
“conviction” that made him subject to removal. In 2012, immigration authorities
initiated removal proceedings against appellant, based solely on his guilty plea.

      The Initial Application for Writ of Habeas Corpus. Appellant applied for
habeas relief in 2012, seeking to set aside his guilty plea under Padilla v. Kentucky,
559 U.S. 356 (2010), a case that was decided after appellant had pleaded guilty. In
Padilla, the United States Supreme Court held that counsel is ineffective if she fails
to advise her non-citizen client about the immigration consequences of a guilty plea,
or if she gives affirmative misadvice to the client about the immigration
consequences of a guilty plea. Id. at 370–74.

      In his habeas application, appellant relied narrowly on Padilla’s omission
theory of ineffectiveness, asserting that “he was not advised of the consequences
with regard to his immigration status by his criminal defense attorney.” However,
his evidence was broader in scope than his application. In a supporting affidavit,
appellant invoked Padilla’s affirmative-misadvice theory of ineffectiveness,
attesting that he had been told by his counsel “that if [he] finished probation there
would be no immigration problems.” And at a live hearing, appellant repeated this
claim, testifying that his counsel had told him that if he successfully completed his
community supervision, then “the charges against [him] would be dropped and [his]
immigration problems would be resolved.”

      Appellant’s trial counsel disputed that claim. Counsel testified that, at the time
of the plea, she gave appellant the following admonishment, which also appeared in
appellant’s plea papers: “If you are not a U.S. citizen, a plea of guilty or nolo
contendere may result in your deportation, exclusion from admission to the county
[sic] or denial of naturalization under federal law.” Counsel also testified that she

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informed appellant that she was not an immigration lawyer and “so he would have
to consult an attorney that deals in immigration.”

      The habeas court denied appellant’s application, siding with counsel’s version
of events. In its findings of fact, the habeas court found that appellant had been
admonished in writing and in person about the immigration consequences of his
plea. The court also found that appellant had received effective assistance of counsel,
as judged by the standards that existed at the time the advice was given.

      Appellant brought an appeal to our sister court, the First Court of Appeals.
Without reaching the merits of appellant’s complaint, the First Court affirmed the
habeas court’s order, having determined that Padilla did not apply retroactively. See
Ex parte Gomez, No. 01-12-00972-CR, 2013 WL 2948323, at *2–3 (Tex. App.—
Houston [1st Dist.] June 11, 2013, pet. ref’d) (mem. op., not designated for
publication) (citing Chaidez v. United States, 133 S. Ct. 1103 (2013) and Ex parte
De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013)).

      The Subsequent Application for Writ of Habeas Corpus. In 2016, appellant
sought habeas relief for the second time, seeking to set aside the same guilty plea as
before. Unlike his initial application, which was based expressly on the omission
theory of ineffectiveness, appellant sought relief in his subsequent application on the
affirmative-misadvice theory of ineffectiveness. Appellant explained his argument
in this way:

      This case raises the following additional claims and issues that could
      not have been presented previously because the factual or legal basis
      for the claim was unavailable on the date the Applicant filed the
      previous application: 1) there was affirmative misadvice, pursuant to
      Ex parte Arjona, 402 S.W.3d 312 (Tex. App.—Beaumont 2013, no
      pet.) and Santos-Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008),
      2) State v. Guerrero, 400 S.W.3d 576 (Tex. Crim. App. 2013) is
      unconstitutional and should be overruled pursuant to the 14th

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      Amendment, and 3) this writ of habeas corpus is in essence the
      equivalent of a direct appeal pursuant to the clearly established
      precedent of Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v.
      Thaler, 133 S. Ct. 1911 (2013), which in essence means that there is no
      retroactivity problem even to a direct application of Padilla, and
      specifically under Trevino which extended the specific circumstances
      of Arizona in Martinez to the Texas writ of habeas [corpus].

      The State filed a response, but the State did not address the merits of
appellant’s individual arguments. Instead, the State summarily asserted that relief
should be denied because appellant’s claims were previously litigated and because
appellant had not carried his burden of proof.

      The habeas court agreed with the State. In its findings of fact, the habeas court
determined that “Applicant fails to raise any new evidence,” “All of Applicant’s
claims have been previously litigated,” and “Applicant fails to state sufficient
specific facts to support his grounds for relief.” The habeas court also reiterated its
earlier findings that appellant had been admonished about the immigration
consequences of his plea and that he received the effective assistance of counsel.

      The habeas court denied appellant’s application, and appeal was brought to
us.

                                     ANALYSIS

      In both his initial and subsequent applications, appellant moved for relief
under Article 11.072 of the Texas Code of Criminal Procedure. In proceedings under
that statute, the habeas judge sits as the sole finder of fact. See Ex parte Torres, 483
S.W.3d 35, 42 (Tex. Crim. App. 2016). If the judge’s ruling turns on an evaluation
of credibility and demeanor, we review that ruling for an abuse of discretion,
affording almost total deference to the judge’s findings when they are supported by
the record. Id. If the ruling turns on a pure question of law, or upon a mixed question
of law and fact not depending on an evaluation of credibility and demeanor, we
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review the judge’s ruling de novo. See Ex parte De La Cruz, 466 S.W.3d 855, 866
(Tex. Crim. App. 2015).

      Article 11.072 normally restricts habeas applicants to just “one bite of the
apple.” Cf. Ex parte Santana, 227 S.W.3d 700, 703 (Tex. Crim. App. 2007)
(describing Article 11.07, which is similarly worded). However, the statute provides
a limited exception for subsequent applications:

      If a subsequent application for a writ of habeas corpus is filed after final
      disposition of an initial application under this article, a court may not
      consider the merits of or grant relief based on the subsequent
      application unless the application contains sufficient specific facts
      establishing that the current claims and issues have not been and could
      not have been presented previously in an original application or in a
      previously considered application filed under this article because the
      factual or legal basis for the claim was unavailable on the date the
      applicant filed the previous application.
Tex. Code Crim. Proc. art. 11.072, § 9(a).

      Thus, to be entitled to relief under Article 11.072, appellant had the burden of
proving that the claims and issues in his subsequent application “have not been and
could not have been presented previously in an original application . . . because the
factual or legal basis for the claim was unavailable on the date [he] filed the previous
application.” Id.

      Appellant does not contend that his subsequent application should have been
granted on the basis of new factual developments. At the hearing on the subsequent
application, appellant clarified: “So, we don’t need to present new testimony. This
is just a legal argument. The bases for this writ are legal, not factual.”

      Article 11.072 defines which sorts of legal bases for relief are appropriate in
a subsequent application:



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      For purposes of Subsection (a), a legal basis of a claim is unavailable
      on or before a date described by that subsection if the legal basis was
      not recognized by and could not have been reasonably formulated from
      a final decision of the United States Supreme Court, a court of appeals
      of the United States, or a court of appellate jurisdiction of this state on
      or before that date.

Tex. Code Crim. Proc. art. 11.072, § 9(b).

      Appellant asserted three “legal” bases in his subsequent application,
contending that each was sufficient to satisfy Article 11.072. Those bases were:
(1) “there was affirmative misadvice,” (2) “State v. Guerrero, 400 S.W.3d 576 (Tex.
Crim. App. 2013) is unconstitutional,” and (3) “this writ of habeas corpus is in
essence the equivalent of a direct appeal.” We address each of these points in turn.

      Affirmative Misadvice. Within a single paragraph, appellant makes two
competing points about his claim of affirmative misadvice. First, he says that this
claim “was not made and could not have been presented previously” in his initial
application. Then, in the very next sentence, appellant says that this claim “did not
have to be raised” in his initial application, even though the claim was actually
presented at the live hearing on his initial application.

      Appellant continues his argument by mentioning that he filed his initial
application in 2012, one year before the United States Supreme Court determined
that Padilla did not apply retroactively. See Chaidez, 133 S. Ct. at 1105. Appellant
emphasizes that, at the time of his initial application, several intermediate appellate
courts in Texas had reached a different determination that Padilla should be applied
retroactively. E.g., Ex parte Tanklevskaya, 361 S.W.3d 86, 95 (Tex. App.—Houston
[1st Dist.] 2011), vacated, 393 S.W.3d 787 (Tex. Crim. App. 2013) (per curiam).
Appellant then posits—without citation to authority—that because these appellate
courts had decided that Padilla had retroactive effect, he was not required in his


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initial application to bring a claim based on Padilla’s affirmative-misadvice theory
of ineffectiveness. Now that he knows that Padilla does not have retroactive effect,
appellant argues that he must be allowed to bring his claim in a subsequent
application, and he cites several court decisions suggesting that affirmative-
misadvice complaints may be heard in a collateral attack, even if the guilty plea or
conviction occurred before Padilla was decided. E.g., Ex parte Arjona, 402 S.W.3d
312 (Tex. App.—Beaumont 2013, no pet.).

      We have two responses to appellant’s argument.

      First, the argument cannot be considered because it depends on a factual
premise that runs counter to the habeas court’s findings of fact. The habeas court
found that appellant was admonished about the immigration consequences of his
plea and that he received the effective assistance of trial counsel at the time the
advice was given. Under our standard of review, we must afford total deference to
these findings because they are supported by the record. Accordingly, we cannot
indulge an argument that depends on a contrary finding that counsel gave appellant
affirmative misadvice.

      Second, even if appellant had received affirmative misadvice, the claim of
affirmative misadvice was known and available to him at the time of his initial
application. Indeed, Padilla recognizes that claim, see 559 U.S. at 370, and appellant
made that claim in his affidavit and live testimony.

      Appellant’s suggestion that he may nonetheless bring this claim in a
subsequent application is not supported by Arjona or by the other cases cited in his
brief (all of which are from federal courts of appeals, and not binding here). Those
cases are inapposite because they did not involve subsequent applications for writs
of habeas corpus under Article 11.072. Therefore, even if we were to assume for the
sake of argument that a claim of affirmative misadvice could be heard in a collateral
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attack of a guilty plea or conviction that became final before Padilla, we could not
allow that claim to be raised in a subsequent application when it was available at the
time of the initial application.

      The Guerrero Case. Next, appellant turns his focus to Guerrero, a case
involving a non-citizen defendant, but not involving affirmative misadvice.
Affirmative misadvice was not a concern in that case because the defendant had
waived his right to counsel, and the issue on appeal was whether that waiver had
been voluntary. See Guerrero, 400 S.W.3d at 580. In resolving that issue of
voluntariness, the Court of Criminal Appeals addressed other matters that touched
on federal immigration law. The Court held, for instance, that Padilla applied to non-
citizen defendants, but not retroactively. Id. at 587. The Court also held that, under
state law, a guilty plea could result in deferred adjudication and, potentially, a
dismissal of the charge, whereas under federal immigration law, the same guilty plea
could be treated as a conviction even if the charge was dismissed. Id. at 587–88.

      Appellant takes issues with these holdings. He suggests that Guerrero is
unconstitutional because it treats non-citizen defendants differently from “other
Texas defendants”—presumably, citizen defendants. He also challenges Guerrero’s
holding that Padilla is not retroactive, contending that the case “is divorced from the
policy and federalism considerations that led the U.S. Supreme Court in Teague to
limit the retroactivity of new rules of constitutional procedures to final state
convictions.” Based on these points, appellant argues that Guerrero should be
overruled.

      Appellant believes that he should be allowed to challenge Guerrero in a
subsequent application for writ of habeas corpus because Guerrero had not been
decided at the time of his initial application. Notwithstanding this point about timing,
appellant does not explain how a decision that he believes was incorrectly decided

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can afford him a “legal basis” to habeas relief within the meaning of Article 11.072.
And to the extent that he believed that the habeas court should have overruled
Guerrero, that court was completely without the power to do so. When the Court of
Criminal Appeals has deliberately and unequivocally interpreted the law in a
criminal matter, as it did in Guerrero, lower and intermediate courts must adhere to
its interpretation under the dictates of vertical stare decisis. See Mason v. State, 416
S.W.3d 720, 728 n.10 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).

       Even on the merits of his challenge, appellant’s argument about disparate
treatment is unpersuasive. This state does not assess the finality of guilty pleas and
convictions differently depending on the citizenship status of the defendant, and
appellant has cited no authority to the contrary. Appellant’s argument really just
appears to be a complaint about federal immigration law, which assesses finality
differently from Texas. But that law is determined by Congress, and this proceeding
is not the appropriate place to question its wisdom. See Arizona v. United States, 567
U.S. 387, 395 (2012) (“The federal power to determine immigration policy is well
settled.”).

       The Equivalent of a Direct Appeal. In his final point, appellant argues that he
should be allowed to bring a complaint about affirmative misadvice in a subsequent
application, as though it were a direct appeal, citing Martinez v. Ryan, 566 U.S. 1
(2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013). This argument fails for two
reasons.

       First, as we mentioned earlier, our standard of review precludes us from
considering a claim based on affirmative misadvice because that claim’s factual
premise is contrary to the habeas court’s findings of fact.

       Second, neither Martinez nor Trevino would permit appellant to raise this
claim as though his subsequent application were the equivalent of a direct appeal,
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because in both of those cases, the United States Supreme Court announced
equitable qualifications to a general rule applied in federal habeas courts. The
general rule in such federal courts is that attorney error committed in the course of a
state habeas proceeding cannot supply cause to excuse a procedural default that
occurs during those proceedings, like failing to raise a claim of ineffective assistance
of trial counsel. See Davila v. Davis, 137 S. Ct. 2058, 2064–65 (2017) (summarizing
the law before Martinez and Trevino). In Martinez, the Court articulated an
exception to this rule where the state requires ineffectiveness claims to be brought
in a state habeas proceeding, rather than on direct appeal, and either the state prisoner
is not afforded counsel during his state habeas proceeding, or his counsel is
ineffective during that habeas proceeding. See Martinez, 566 U.S. at 17. In Trevino,
the Court extended this exception to situations where the “state procedural
framework, by reason of its design and operation, makes it highly unlikely in a
typical case that a defendant will have a meaningful opportunity to raise a claim of
ineffective assistance of trial counsel on direct appeal.” See Trevino, 133 S. Ct. at
1921.

        Contrary to appellant’s suggestions, Martinez and Trevino provide no
authority that an applicant in a state habeas proceeding may raise a claim in a
subsequent application for writ of habeas corpus that was previously available to
him—and actually litigated—at the time of his initial application.




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                                 CONCLUSION

      Because appellant has raised no legal bases that can afford him relief, we
conclude that the habeas court correctly denied appellant’s subsequent application
for writ of habeas corpus. The order denying that application is therefore affirmed.




                                /s/           Tracy Christopher
                                              Justice


Panel consists of Justices Christopher, Busby, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).




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