                                        In The

                                 Court of Appeals

                      Ninth District of Texas at Beaumont

                                __________________

                                NO. 09-19-00339-CR
                                __________________


               EX PARTE MARITZA DELSONGA RODRIGUEZ

__________________________________________________________________

                On Appeal from the 221st District Court
                     Montgomery County, Texas
                  Trial Cause No. 11-12-13384-CR(2)
__________________________________________________________________

                            MEMORANDUM OPINION

      For a subsequent-habeas writ applicant to receive a merits review on a claim

seeking relief from a trial court’s order that placed an applicant on community

supervision, the applicant must show the facts or law establishing her claim “have

not been and could not have been presented” when the applicant first sought to

overturn the order based on the applicant’s original request for habeas relief.1

Maritza Delsonga Rodriguez invokes that exception, arguing the legal basis she used



      1
          Tex. Code Crim. Proc. Ann. art. 11.072, § 9(a).
                                          1
to support her second application for habeas relief was unavailable when she filed

her original application.

      The habeas court that heard Rodriguez’s initial application denied the

application, and on appeal, we affirmed.2 Subsequently, Rodriguez filed a second

application seeking habeas relief. In it, she raised two issues, arguing her plea was

involuntary because her attorney failed to inform her before she pleaded guilty that

being placed on community supervision could affect her status as a resident alien.

The habeas court denied Rodriguez’s second application, and she appealed.3

      In her first issue, Rodriguez argues the habeas court erred when it found she

failed to prove that, but for trial counsel’s deficient performance, she would have

rejected the plea bargain agreement she was offered by the State and gone to trial.

In her second issue, Rodriguez argues the trial court erred by concluding the legal

basis for her habeas claim could not have been presented because it was unavailable

when she filed her original application requesting habeas relief.4


      2
         We resolved Rodriguez’s appeal from the habeas court’s ruling on her
original application in Ex parte Rodriguez, No. 09-13-00148-CR, 2013 WL 4773934
(Tex. App.—Beaumont Sept. 4, 2013, no pet.) (mem. op., not designated for
publication). Rodriguez did not file a petition for discretionary review.
      3
        Tex. Code Crim. Proc. Ann. art. 11.072, § 8 (authorizing the applicant to
appeal the denial of a ruling on a habeas applicant’s petition for relief).
      4
        Id. art. 11.072, § 9(b) (“For purposes of Subsection [9](a), a legal basis of a
claim is unavailable on or before a date described by that subsection if the legal basis
                                           2
       We conclude Rodriguez’s second application violates the requirements of

article 11.072, section 9(a).5 We affirm the trial court’s order denying Rodriguez’s

request for relief.

                                     Background

       In 2011, the State charged Rodriguez with possessing marijuana, a third-

degree felony.6 In January 2012, Rodriguez reached a plea bargain agreement with

the State, offering to plead guilty in return for the State’s agreement to recommend

that the court place her on deferred-adjudication community supervision for three

years. When the court heard her plea, it agreed to carry out the recommended

punishment, accepted Rodriguez’s plea that she was guilty of the crime, but deferred

adjudicating her guilt and placed Rodriguez on community supervision.

       In September 2012, Rodriguez filed an application for a writ of habeas corpus,

alleging her plea was involuntary. Rodriguez claimed that her attorney, before she

pleaded guilty, failed to conduct a proper investigation into her case or to advise her



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.”).
       5
       Id. § 9(a) (providing that a habeas court may not grant relief on the basis of
a subsequent application when the current claim and issues could have previously
been presented in the applicant’s original application).
       6
           See Tex. Health & Safety Code Ann. § 481.121(b)(4).
                                          3
about the consequences that pleading guilty would have on her status as a resident

alien. According to Rodriguez, she would have rejected the plea bargain the State

offered to her had she realized she could be deported. 7

      In February 2013, the trial court denied Rodriguez’s first application seeking

to overturn the order the trial court entered after Rodriguez pleaded guilty to

possession of a controlled substance, marijuana. Although Rodriguez appealed, we

affirmed.8

      In July 2019, Rodriguez filed her second application seeking habeas relief. In

that application, Rodriguez alleged her plea in 2012 had been involuntary because

her attorney failed to “properly advise her regarding the immigration consequences

of her plea, as required under Padilla v. Kentucky[.]”9 She argued that in her 2019

application, she could not have used the same arguments she used in 2012 because

Lee v. United States 10 changed the law on how evidence on a Padilla claim is

reviewed. We note the Supreme Court decided Lee five years after Rodriguez filed

her first application seeking habeas relief.


      7
          See Padilla v. Kentucky, 559 U.S. 356 (2010).
      8
          See Ex parte Rodriguez, 2013 WL 4773934, at *3-4.
      9
         The record shows Rodriguez relied on Padilla when she filed her original
petition seeking relief.
      10
           See Lee v. U.S., 137 S.Ct. 1958 (2017).
                                            4
      When the habeas court considered Rodriguez’s second application, it

disagreed with her claim that Lee changed the law. Rejecting the second application,

the habeas court explained: “[T]he Supreme Court’s holding in Lee . . . did not

establish a legal basis for habeas relief that 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 the date [Rodriguez] filed her first post-conviction writ application.” 11

                                     Article 11.072

      Article 11.072 of the Texas Code of Criminal Procedure provides the

exclusive means for a district court’s exercise of original habeas jurisdiction in cases

where a court has placed a defendant on community supervision after deferring a

finding of guilt.12 The statute prohibits courts from granting relief on subsequent

applications unless the applicant, in the second proceeding, establishes the claims

and issues she seeks to raise were not and could not have been presented when she

filed her first application seeking habeas relief. 13




      11
           Tex. Code Crim. Proc. Ann. art. 11.072, § 9(b).
      12
           Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008).
      13
           Tex. Code Crim. Proc. Ann. art. 11.072, § 9(a).
                                           5
          For the purposes of article 11.072, the legal basis for a claim is unavailable

“if the legal basis was not recognized by and could not have been reasonably

formulated from a final decision” of a higher court in the applicant’s previously

considered application for habeas relief. 14 When the habeas court rejected

Rodriguez’s first application, she triggered the restrictions of article 11.072, which

apply to all subsequent applications for relief from orders courts use to place

individuals on deferred-adjudication community supervision.15

                          Was the legal basis for Rodriguez’s claim
                      available when she filed her first writ application?

          To prevail on her second application for habeas relief, Rodriguez was required

to show the law relevant to her decision to plead guilty had materially changed since

she filed her original application for habeas relief in 2012. 16 Rodriguez argues the

law changed regarding how courts must review the applicant’s evidence on claims

alleging ineffective assistance of counsel after the court ruled on her first habeas


          14
         Id. § 9(b). A factual basis of a claim is unavailable if it was not ascertainable
through the exercise of reasonable diligence at the time of the initial application. Id.
§ 9(c). Rodriguez submitted a new affidavit with the subsequent application but she
does not argue that her subsequent petition provides a previously unavailable factual
basis for her claim that her plea was involuntary due to counsel’s failure to advise
her about the immigration consequences of her plea.
          15
               See Ex parte Salazar, 510 S.W.3d 619, 630 (Tex. App.—El Paso 2016, pet.
ref’d).
          16
               Tex. Code Crim. Proc. Ann. art. 11.072, § 2(b).
                                               6
case.17 But the cases Rodriguez relies on do not support her argument that the law

relevant to her claim changed in a way material to the law in 2012, the year she first

sought to overturn her plea. Instead, the cases Rodriguez cites show the opposite—

the law that applies to her claim alleging ineffective assistance of counsel did not

change.

      Under Strickland v. Washington, a habeas applicant claiming ineffective

assistance of counsel must demonstrate both (1) deficient performance by counsel

falling below an objective standard of reasonableness, and (2) prejudice that resulted

from counsel’s errors.18 In Hill v. Lockhart, a case decided in 1985, the Supreme

Court explained how Strickland applies to a court’s review of the evidence when an

applicant for habeas relief raises an ineffective assistance of counsel claim.19 In Hill,

the Court explained that a collateral challenge seeking to overturn a guilty plea

requires the habeas court to decide whether counsel’s constitutionally deficient

performance affected the outcome of the plea process.20 Hill instructs that to make




      17
           Id. art. 11.072, § 9(a).
      18
           Strickland v. Washington, 466 U.S. 668, 687 (1984).
      19
           Hill v. Lockhart, 474 U.S. 52, 59 (1985).
      20
           Id.
                                           7
that call, the court must determine whether, “but for counsel’s errors, [the defendant]

would not have pleaded guilty and would have insisted on going to trial.”21

      Padilla, decided in 2010—two years before Rodriguez pleaded guilty—held

that a defendant’s claim of ineffective assistance, when based on the advice the

attorney gave the defendant about how the plea would affect the defendant’s

immigration status, was not categorically removed from the right to effective counsel

guaranteed under the Sixth Amendment.22 Padilla made it clear that attorneys

representing defendants in criminal cases must inform their clients about whether

pleading guilty risks the client’s deportation.23 And finally, Padilla explained that

when the defendant pleads guilty and then collaterally challenges the voluntariness

of the plea, he or she must show prejudice.24

      According to Rodriguez, Lee, a case the Supreme Court decided in 2017,

changed the law on how courts review the evidence relevant to a defendant’s Padilla

claim. 25 In Lee, the defendant alleged his attorney told him, before he pleaded guilty



      21
           Id.
      22
           Padilla, 559 U.S. at 365 (citing Strickland, 466 U.S. 668).
      23
           Id. at 374.
      24
           Id.
      25
           Lee, 137 S.Ct. at 1962.
                                           8
that the Government would not deport him should he plead guilty. Lee, who was not

a citizen of the United States, pleaded guilty but later filed a habeas application

challenging the voluntariness of his plea. Urging the Supreme Court to adopt a per

se rule that defendants without viable defenses to a criminal charge can’t challenge

the voluntariness of their pleas, the Government argued that Lee could not have been

prejudiced simply because he did not get a trial.26

      In Lee, the Court noted “a defendant who has no realistic defense to a charge

supported by sufficient evidence will be unable to carry his burden of showing

prejudice from accepting a guilty plea” and “common sense (not to mention our

precedent) recognizes that there is more to consider than simply the likelihood of

success at trial.” Rejecting the Government’s argument urging the Court to adopt a

per se rule, the Supreme Court stated that categorical rules do not govern a court’s

assessment of prejudice, explaining that appellate courts must review evidence on a

case-by-case basis and consider the circumstances that led to the defendant’s plea.27

The Lee Court noted “the Government overlooks []the inquiry [] prescribed in Hill

v. Lockhart focuses on a defendant’s decisionmaking, which may not turn solely on

the likelihood of conviction after trial.” The Court suggested that courts in habeas



      26
           Id. at 1966.
      27
           Id.
                                          9
proceedings should examine contemporaneous evidence to evaluate claims alleging

the defendant’s plea was involuntary because counsel allegedly failed to provide

proper advice about the possible immigration consequences associated with the

plea.28

      Like Padilla, Lee requires habeas courts to make a normative decision on a

case-by-case basis in deciding whether an applicant seeking habeas relief would

have rejected a plea bargain agreement and chosen instead to go to trial. Thus, Lee

did not change the standard that courts are required to use when reviewing Strickland

claims: instead, Lee merely applied existing law to Lee’s appeal in the context of his

challenge to the voluntariness of his plea.

      Turning to Rodriguez’s first habeas proceeding, Rodriguez argues we failed

to apply the standard of review in the manner required in Lee. We disagree. Lee did

not change the standard of review identified in Hill and Strickland. Neither this

Court, nor the habeas court that considered Rodriguez’s first habeas case, refused to

consider the circumstances that surrounded her plea when evaluating her ineffective

assistance of counsel claim.29 And even had we not applied the proper standard of




      28
           Id. at 1967.
      29
           Rodriguez, 2013 WL 4773934, at *3.
                                       10
review to Rodriguez’s first appeal, Rodriguez could have corrected that error had

she pursued an appeal. 30

      Unable to squeeze a change in the law from Lee, Rodriguez asks this Court to

“reconsider her previous writ application on [our] own initiative.” But this Court’s

plenary power over the judgment in Rodriguez’s first appeal has expired.31 For that

reason, we cannot alter our judgment in Appellate Cause Number 09-13-00148-

CR. 32 We overrule Rodriguez’s second issue.

      Next, we turn to Rodriguez’s first issue, which argues that this Court should

overturn the ruling the habeas court made in 2019 on the merits of Rodriguez’s

ineffective assistance claim. We decline to entertain her argument. Article 11.072

section 9 provides that “a court may not consider the merits of or grant relief based

on the subsequent application” when the applicant fails to establish that “the factual

or legal basis for the claim was unavailable on the date the applicant filed the

previous application.” 33 The factual and legal basis for Rodriguez’s claims have not

changed between now and 2012.


      30
           See generally Tex. R. App. P. 68.
      31
        See id. 19.3 (“After its plenary power expires, the court cannot vacate or
modify its judgment.”).
      32
           Rodriguez, 2013 WL 4773934, at *1.
      33
           See Tex. Code Crim. Proc. Ann. art. 11.072, § 9.
                                        11
      For the reasons explained above, the trial court’s order denying Rodriguez’s

application in Trial Court Cause Number 11-12-13384-CR(2) is

      AFFIRMED.



                                                  _________________________
                                                       HOLLIS HORTON
                                                            Justice
Submitted on January 23, 2020
Opinion Delivered February 12, 2020
Do Not Publish

Before Kreger, Horton and Johnson, JJ.




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