                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00098-CR


EX PARTE AHAMAD SATTAR
MEMAN


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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      This appeal follows the trial courts’ denial of an application for writ of

habeas corpus.2 Ahamad Sattar Meman, a native of India, complains that he

was denied effective assistance of counsel when counsel failed to advise him

that a guilty plea would result in definite negative consequences to his

immigration status. We will affirm.



      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Code Crim. Proc. Ann. Art. 11.072, § 6 (West 2005).
      Meman moved to the United States in October 2002. He currently resides

in this country pursuant to an “L-2 Visa.” On August 28, 2009, the State charged

Meman with the state-jail felony offense of theft of property by check in the

amount of $1500 or more but less than $20,000.3 He pleaded guilty to the theft

charge on January 29, 2010, and the trial court accepted Meman’s plea but

deferred adjudicating guilt and placed him on community supervision, imposed a

$500 fine, and ordered Meman to pay restitution.

      According to Meman’s sworn affidavit attached to his application for writ, in

late 2010, he and his wife contacted an immigration attorney to explore the

possibility of filing for “green cards” for themselves and their two children. By

Meman’s account, the immigration attorney informed him that immigration law

treats deferred adjudication the same as a conviction and that because of his

pleading guilty to the state-jail felony, it would be impossible for him to get a

green card, that his current Visa could be either revoked or denied renewal, and

that he would not ever be allowed to become a naturalized United States citizen. 4

Meman also alleges that when he first met with his attorney—Patrick R.

McCarty—he informed McCarty of his immigration status and that he wanted this

      3
         See Tex. Penal Code Ann. §§ 31.03 (West Supp. 2012), 31.06 (West
2011).
      4
        The record indicates that Meman’s wife also pleaded guilty to similar
charges prior to Meman’s entry of guilt. In his sworn affidavit, Meman avers that
his wife is also ineligible for Visa renewal, and that she too will not be allowed to
become a naturalized United States citizen.



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case resolved in such a way that it would not have a negative impact on his

immigration status, his ability to obtain a green card, or his ability to become a

naturalized citizen.   He also alleges that McCarty failed to inform him of the

negative consequences of his plea relating to his immigration status. According

to Meman, he was “uncomfortable with th[e] plea agreement” and he would not

have entered a plea of guilty had McCarty informed him that his plea would result

in his deportation or otherwise have negative immigration consequences.

      In its response, the State filed an affidavit by McCarty. McCarty’s version

of the events stands in stark contrast to Meman’s. By McCarty’s account, he

informed Meman multiple times of Meman’s need to consult with an immigration

attorney prior to accepting his plea; that, despite numerous requests, Meman had

failed to provide McCarty with his immigration papers; that Meman had

squandered multiple offers and time extensions by the State to simply pay

restitution and have the charges dropped; and that on the day the case was set

for trial, and prior to Meman entering his plea, McCarty had discussed the plea

with Meman for more than three hours.

      McCarty avers that he carefully explained to Meman that by entering a

plea of guilty, the charge “would likely result in deportation, exclusion from

admission or denial of naturalization.” McCarty also read to Meman the relevant

immigration “sections of the plea petition, circled it, instructed him to read it, and

initial it. He did so.” Furthermore, McCarty stated that when he “turned in” the




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plea petition, he mentioned to the trial court that Meman had “immigration

issues,” to which the trial court responded by carefully reviewing the immigration

section warning with Meman. McCarty avers that Meman acknowledged that he

understood the judge’s specific, immigration-warning admonishment, and that

“he did not want a trial.”

      After reviewing the evidence presented by both Meman and the State, the

trial court denied Meman's habeas petition and entered findings of fact and

conclusions of law. Among the findings, the trial court determined that McCarty

had “[gone] over the plea admonishments” with Meman; that McCarty had

explained to Meman “ad nauseum” that his immigration status was in jeopardy if

he pleaded guilty; that Meman’s claim that he would have contacted an

immigration attorney had he known of the consequences was inconsistent with

the fact that McCarty had given him ample opportunity to do so; and that Meman

did “not allege that he would not have been convicted or that he had a viable

defense.” As to whether Meman would have rejected his plea offer had he been

advised of the possible negative consequences on his immigration status, the

trial court found the following:

      Because [Meman] was aware that his plea may have immigration
      consequences and chose not to contact an immigration attorney or provide
      [McCarty] with his immigration papers when requested, [Meman] has failed
      to prove that there is a reasonable probability that he would not have
      pleaded guilty had counsel advised him differently.




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The trial court also specifically concluded that Meman had failed to prove that he

received ineffective assistance of counsel, or that his plea was involuntary due to

ineffective assistance of counsel.

          On appeal, Meman argues that the trial court erred by denying habeas

relief.

          We review the trial court’s ruling on an application for writ of habeas

corpus for an abuse of discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.

Crim. App.), cert. denied, 549 U.S. 1052 (2006); Ex parte Peterson, 117 S.W.3d

804, 819 (Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis,

219 S.W.3d 335 (Tex. Crim. App. 2007). Under this standard, we afford almost

total deference to the trial court’s findings of fact, particularly when those findings

are based upon an evaluation of credibility and demeanor. Ex parte Amezquita,

223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We apply the same deference to

the trial court’s application of law to questions of fact if resolution of those issues

requires an evaluation of credibility and demeanor.          Ex parte Legrand, 291

S.W.3d 31, 35–36 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). If resolution

of the ultimate issue turns solely on a question of law, our review is de novo. Id.

          Meman sought habeas relief on the theory that he was denied effective

assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984), and Padilla v. Kentucky, ––– U.S. –––, 130 S. Ct. 1473 (2010). To

be entitled to relief, he was required to prove by a preponderance of the evidence




                                          5
that   (1) counsel’s   performance       fell   below   an   objective   standard     of

reasonableness, and (2) but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 687–88, 694, 104

S. Ct. at 2064, 2068. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the claim of ineffectiveness. Id. at

697, 104 S. Ct. at 2069.

       In Padilla, the Supreme Court held that counsel’s representation is

constitutionally deficient if counsel fails to warn a noncitizen client of the certainty

of removal when the terms of the relevant immigration statute are “succinct,

clear, and explicit” in defining the removal consequences of a particular

conviction.   Padilla, 130 S. Ct. at 1483.       “When the law is not succinct and

straightforward . . . , a criminal defense attorney need do no more than advise a

noncitizen client that pending criminal charges may carry a risk of adverse

immigration consequences.”         Id.     Following the Strickland framework for

ineffective assistance claims, the Padilla Court further observed that before relief

may be granted, the petitioner must also convince the court that a decision to

reject the plea bargain would have been rational under the circumstances. Id. at

1485; see also Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).

       Meman’s conviction became final before the Supreme Court’s opinion in

Padilla, but in deciding whether counsel was ineffective on this record, we need




                                            6
not determine whether Padilla applies retroactively.5        Under any test for

ineffective assistance of counsel, Meman’s claim must fail because Meman has

not demonstrated that he was prejudiced by counsel’s alleged errors.

      In this case, the trial court determined that Meman “failed to prove that

there is a reasonable probability that he would not have pleaded guilty had

counsel advised him differently.”     We must defer to this finding, which is

supported by McCarty’s affidavit that McCarty informed Meman of the

consequences of his plea and that Meman “did not want a trial.” See Amezquita,

223 S.W.3d at 367 (“When the trial court’s findings of fact in a habeas corpus

proceeding are supported by the record, they should be accepted by [the

reviewing court].”). As the sole judge of credibility, the trial court was free to

accept McCarty’s version of the events that led to Meman pleading guilty over

Meman's claim that he would have rejected the State’s plea and sought counsel

from an immigration attorney. Id.

      Because Meman did not carry his burden of showing that he suffered any

prejudice, the trial court did not abuse its discretion by rejecting his claim for

ineffective assistance of counsel. See Ex parte Moreno, No. 02-11-00272-CR,

2012 WL 3734003, at *7 (Tex. App.—Fort Worth Aug. 30, 2012, no pet. h.)

(holding that trial court did not abuse its discretion by denying application for a
      5
       Two Texas courts of appeals have expressly held that Padilla applies
retroactively. See Ex parte De Los Reyes, 350 S.W.3d 723, 729 (Tex. App.—
El Paso 2011, pet. granted); Ex parte Tanklevskaya, 361 S.W.3d 86, 93–95 (Tex.
App.—Houston [1st Dist.] 2011, pet. filed).



                                        7
writ of habeas corpus where trial court reasonably concluded that defendant

failed to prove by a preponderance of the evidence that he would not have pled

guilty but for his trial counsel’s allegedly deficient conduct in informing him of the

immigration consequences of his guilty plea). The trial court's order denying the

application for writ of habeas corpus is therefore affirmed.




                                                    BILL MEIER
                                                    JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 27, 2012




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