       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ___________

Filing Date: August 8, 2013

Docket No. 32,044

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

CESAR FAVELA,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, District Judge

Gary K. King, Attorney General
Pranava Upadrashta, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Acting Chief Public Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

SUTIN, Judge.

{1}      Defendant Cesar Favela appeals from the district court’s denial of his motion for
relief from judgment and petition for writ of habeas corpus, wherein Defendant sought to set
aside his guilty plea on grounds of ineffective assistance of counsel. Defendant contends
that his counsel did not adequately advise him of the immigration consequences of his
decision to enter a plea of guilty, as required by State v. Paredez, 2004-NMSC-036, ¶ 19,
136 N.M. 533, 101 P.3d 799. The facts of this case require this Court to determine whether
the district court, in determining whether Defendant’s plea was knowing and voluntary,

                                             1
improperly relied on statements by the court conducting the plea hearing (the trial court)
regarding the immigration consequences of Defendant’s plea. We hold that judicial
statements made during the plea colloquy about the immigration consequences of a plea do
not cure counsel’s deficient representation and should only be given minimal weight in
determining whether a defendant has demonstrated prejudice under Strickland v.
Washington, 466 U.S. 668, 695-98 (1984). Accordingly, we reverse and remand.

BACKGROUND

{2}     Defendant pleaded guilty to four counts of aggravated battery with a deadly weapon
and one count of driving under the influence. Defendant is a Mexican national and a United
States permanent resident. At the plea and disposition hearing, the following exchange took
place.

       Judge:         Counsel, I just noticed the place of birth on this form. Is
                      there an immigration consequence in this case?

       Counsel:       There will be. [Defendant is] here legal and everything, he
                      has his paper documentation and everything, but more than
                      likely he will have a great consequence on . . . his papers
                      being taken away.

       Judge:         [Defendant], before I accept the plea and approve it at this
                      point, I want to be sure you understand, as your attorney said,
                      that a conviction will have an [e]ffect on your immigration
                      status and that effect would be deportation, which is now
                      called removal, exclusion from the United States and denial
                      of naturalization under the laws of the United States. Do you
                      understand that, sir?

       Defendant:     Yes, your Honor.

       Judge:         Alright then, is it still your desire to enter your plea of guilty,
                      sir?

       Defendant:     Yes, your Honor.

       Judge:         Alright, the court then approves that.

{3}    The district court accepted Defendant’s guilty plea, and Defendant was sentenced in
accordance with the plea agreement. After serving his sentence with the New Mexico
Department of Corrections, Defendant was taken into custody by the United States
Immigration and Customs Enforcement Service (ICE).


                                              2
{4}      While in the custody of ICE, Defendant filed a motion for relief from judgment
pursuant to Rule 1-060 NMRA and, alternatively, a petition for a writ of habeas corpus. The
district court entered an order summarily dismissing and denying Defendant the relief he
requested. Defendant filed a motion for reconsideration, a hearing was held where testimony
was presented, and the district court entered an order denying Defendant’s motion.
Defendant appeals.

DISCUSSION

I.     Jurisdiction

{5}     We begin by determining whether Defendant’s ineffective assistance of counsel
claim was properly brought as a motion for relief from judgment under Rule 1-060 or as a
petition for writ of habeas corpus under Rule 5-802 NMRA. Consistent with an appeal taken
from a denial of a petition for writ of habeas corpus, the district court’s order informed
Defendant that any appeal was to be taken by filing a petition for writ of certiorari with the
Supreme Court. See Rule 5-802(H)(2) (requiring a defendant to petition for certiorari to our
Supreme Court in order to obtain review of a district court’s denial of a writ of habeas
corpus). Defendant, instead, filed a direct appeal to this Court.

{6}     “Because [a d]efendant cannot appeal the denial of a writ of habeas corpus to this
Court,” we must begin by determining whether this appeal is properly before us. State v.
Barraza, 2011-NMCA-111, ¶ 12, 267 P.3d 815. “The question of jurisdiction is a
controlling consideration that must be resolved before going further in a proceeding and may
even be raised by the appellate court on its own motion.” Id. ¶ 5. We review jurisdictional
issues de novo. See id.

{7}     Rule 5-802(A) “governs the procedure for filing a writ of habeas corpus by persons
in custody or under restraint for a determination that such custody or restraint is, or will be,
in violation of the constitution or laws of the State of New Mexico or of the United States[.]”
“[W]here a prisoner ha[s] served his sentence and been released, Rule 1-060(B)(4) [is] the
vehicle to seek relief from a criminal judgment claimed to be void.” State v. Tran, 2009-
NMCA-010, ¶ 16, 145 N.M. 487, 200 P.3d 537. Thus, whether a petition for writ of habeas
corpus or a Rule 1-060(B)(4) motion is the appropriate mechanism for seeking relief depends
on whether the defendant was “in custody” at the time the petition or motion was filed. See
id. ¶ 15. In this case, because the district court appears to have treated Defendant’s petition
as one for a writ of habeas corpus, we must determine whether, when Defendant was in the
custody of ICE, he was “in custody” for purposes of habeas corpus. By this inquiry, we will
determine whether we have jurisdiction to consider Defendant’s appeal.

{8}     The question—what is the appropriate procedural mechanism for someone to use
while in the custody of ICE in order to challenge his or her conviction—is an issue of first



                                               3
impression in New Mexico.1 Accordingly, we turn to federal habeas corpus jurisprudence
for guidance. In Maleng v. Cook, 490 U.S. 488, 492 (1989), the United States Supreme
Court stated that “once the sentence imposed for a conviction has completely expired, the
collateral consequences of that conviction are not themselves sufficient to render an
individual ‘in custody’ for the purposes of a habeas attack upon it.” Federal circuit courts
have relied on Maleng in determining that “one held in immigration detention is not ‘in
custody’ for the purpose of challenging a state conviction[.]” Ogunwomoju v. United States,
512 F.3d 69, 75 (2d Cir. 2008); see Resendiz v. Kovensky, 416 F.3d 952, 956-58 (9th Cir.
2005), abrogated on other grounds as recognized by Chaidez v. United States, ___ U.S. ___,
130 S. Ct. 1103 (2013); Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004),
abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010);
United States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004); Kandiel v. United States, 964
F.2d 794, 796 (8th Cir. 1992).

{9}      We note that the United States Supreme Court’s more recent opinion in Padilla may
call into question the characterization of deportation as a collateral consequence. In Padilla,
the Supreme Court questioned the distinction between direct and collateral consequences in
defining “the scope of constitutionally ‘reasonable professional assistance.’ ” Padilla, 559
U.S. at ___, 130 S. Ct. at 1481. In doing so, the Supreme Court declined to characterize
deportation as either a direct or collateral consequence, stating that it was “uniquely
difficult” to do so “because of [deportation’s] close connection to the criminal process[.]”
Id. at ___, 130 S. Ct. at 1481-82. The Supreme Court concluded that “[t]he collateral versus
direct distinction [was] ill-suited to evaluating a Strickland claim concerning the specific risk
of deportation.” Id. at ___, 130 S. Ct. at 1482.

{10} We note, however, that the definition of “collateral consequences” in one context is
not necessarily the same as that in another context. And Padilla did not address the issue
of collateral versus direct consequences with respect to the “in custody” requirement for
federal habeas jurisdiction. Moreover, we note that, following Padilla, federal district courts
have largely continued to hold that removal proceedings do not satisfy the “in custody”
requirement for filing a petition for writ of habeas corpus even where the removal
proceedings include detention by immigration authorities. See Fenton v. Ryan, No. 11-2303,
2011 WL 3515376, at *2 (E.D. Pa. Aug. 11, 2011) (mem.) (holding that Padilla did not alter
the custody requirement and that a petitioner is not “in custody” after completing his
sentence merely because he faces deportation); United States v. Krboyan, No. CV-F-10-2016
OWW, 2010 WL 5477692, at *5 (E.D. Cal. Dec. 30, 2010) (recognizing a shared view,
among courts that have considered the issue, that “the collateral immigration consequences


        1
          We note that in Tran, 2009-NMCA-010, ¶ 17, this Court concluded that a Rule 1-
060(B)(4) motion was the correct procedural mechanism for the defendant to request relief.
In Tran, however, unlike this case, the issue of the defendant’s custodial status appears not
to have been in dispute; as such, the custodial-status issue was not discussed or considered
by this Court.

                                               4
of a petitioner’s conviction are not sufficient to satisfy the ‘in custody’ requirement of
[habeas corpus], even when those consequences include detention by immigration
authorities”); Walker v. Holder, No. 10-10802-RWZ, 2010 WL 2105884, at *1 (D. Mass.
May 24, 2010) (holding that the petitioner, having previously served his criminal sentence
and who was being held as an immigration detainee, was not ‘in custody’ for purposes of
habeas corpus). But see Rodriguez v. United States, No. 1:10-CV-23718-WKW [WO], 2011
WL 3419614, at *5-6 (mem. & order) (S.D. Fla. Aug. 4, 2011) (holding that, after Padilla,
a petitioner who had fully served her sentence was in custody because she faced
deportation).

{11} We find Fenton, Krboyan, and Walker to be persuasive authority on this issue.
Accordingly, we conclude that the proper procedural mechanism for a defendant to challenge
his underlying criminal conviction when in the custody of ICE is to file a Rule 1-060(B)(4)
motion. We therefore conclude that this Court has jurisdiction to hear Defendant’s appeal.

II.    Mootness

{12} The State asserts that this Court should decline to hear Defendant’s appeal because
the issue may be moot. The State relies on Republican Party of New Mexico v. New Mexico
Taxation & Revenue Department, 2012-NMSC-026, ¶ 10, 283 P.3d 853, to argue that
Defendant’s removal from the United States moots his appeal. See id. (stating the general
rule that the appellate courts do not decide moot cases).

{13} “An appeal is moot when there is no actual controversy and when no actual relief can
be granted to the appellant.” State v. Wilson, 2005-NMCA-130, ¶ 14, 138 N.M. 551, 123
P.3d 784, aff’d, 2006-NMSC-037, 140 N.M. 218, 141 P.3d 1272. While “[a] reviewing
court generally does not decide academic or moot questions[,]” Crutchfield v. New Mexico
Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273,
“[a]ppellate courts review criminal convictions even after a defendant’s term of incarceration
ends because of the continuing collateral consequences of a conviction, such as mandatory
sentence increases for subsequent offenses, limitations on eligibility for certain types of
employment, and voting restrictions.” State v. Sergio B., 2002-NMCA-070, ¶ 10, 132 N.M.
375, 48 P.3d 764.

{14} Defendant contends that if permitted to withdraw his plea, he will be eligible to file
a motion to reopen his immigration proceedings and request that the attorney general
exercise his discretion to parole Defendant back into the United States to face trial. The
Sixth Circuit Court of Appeals has held that the “contention that [a defendant’s] conviction
might affect the [a]ttorney [g]eneral’s discretionary decision to allow him back in the
country . . . satisfies whatever minimal collateral consequence that [a defendant] might be
required to show in order for this court to retain jurisdiction over his claim.” United States
v. Ashraf, 628 F.3d 813, 822 (6th Cir. 2011); see also Garcia-Flores v. Gonzales, 477 F.3d
439, 441 n.1 (6th Cir. 2007) (recognizing that “removal of an alien . . . does not moot a
pending appeal” (omission in original) (internal quotation marks and citation omitted));

                                              5
Swaby v. Ashcroft, 357 F.3d 156, 160 (2d Cir. 2004); Chong v. Dist. Dir., I.N.S., 264 F.3d
378, 382-85 (3d Cir. 2001) (same); United States v. Marsh, 747 F.2d 7, 9 n.2 (1st Cir. 1984)
(holding that because deported defendants’ narcotics convictions might prevent their reentry
into the country, the appeals were not moot).

{15} Because withdrawal of his guilty plea may have future consequences on Defendant’s
ability to reenter the United States, we conclude that his deportation on January 28, 2012,
does not render this appeal moot. We turn to the merits of Defendant’s appeal.

III.   Ineffective Assistance of Counsel

{16} Defendant contends that the district court erred in denying his motion to withdraw
his guilty plea, based on his counsel’s alleged failure to inform Defendant about the
immigration consequences of entering his plea. “A motion to withdraw a guilty plea is
addressed to the sound discretion of the trial court, and we review the trial court’s denial of
such a motion only for abuse of discretion.” State v. Carlos, 2006-NMCA-141, ¶ 9, 140
N.M. 688, 147 P.3d 897. “An abuse of discretion occurs when the ruling is clearly against
the logic and effect of the facts and circumstances of the case.” State v. Rojo, 1999-NMSC-
001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted). An
abuse of discretion may also occur when the district court “exercises its discretion based on
a misunderstanding of the law.” State v. Sotelo, 2013-NMCA-028, ¶ 37, 296 P.3d 1232,
cert. denied, 2013-NMCERT-001, 299 P.3d 863. In the context of a guilty plea,

       a trial court abuses its discretion when it acts unfairly or arbitrarily, or
       commits manifest error by accepting a plea that is not knowingly and
       voluntarily given. Where, as here, a defendant is represented by an attorney
       during the plea process and enters a plea upon the advice of that attorney, the
       voluntariness and intelligence of the defendant’s plea generally depends on
       whether the attorney rendered ineffective assistance in counseling the plea.

State v. Barnett, 1998-NMCA-105, ¶ 12, 125 N.M. 739, 965 P.2d 323 (citation omitted). To
prove ineffective assistance of counsel, Defendant must show (1) that counsel’s performance
fell below that of a reasonably competent attorney, and (2) that defendant was prejudiced by
the deficient performance. State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d
729. “We afford de novo review of mixed questions of law and fact concerning the
ineffective assistance of counsel.” Barnett, 1998-NMCA-105, ¶ 13.

A.     Deficient Representation

{17} Our New Mexico Supreme Court has clearly articulated what constitutes effective
assistance of counsel with respect to advising a criminal defendant of the immigration
consequences of his or her plea. In Paredez, our Supreme Court held that “criminal defense
attorneys are obligated to determine the immigration status of their clients. If a client is a
non-citizen, the attorney must advise that client of the specific immigration consequences

                                              6
of pleading guilty, including whether deportation would be virtually certain.” 2004-NMSC-
036, ¶ 19. In so holding, our Supreme Court agreed “with those jurisdictions that have held
that an affirmative misrepresentation by counsel as to the deportation consequences of a
guilty plea is . . . objectively unreasonable” and went “one step further” in concluding that
“an attorney’s non-advice to an alien defendant on the immigration consequences of a guilty
plea would also be deficient performance.” Id. ¶¶ 15-16 (internal quotation marks and
citation omitted). According to our Supreme Court, advice that a defendant “could” or
“might” be deported is also inadequate, as such advice is “incomplete and therefore
inaccurate” because “ ‘[s]tating that a person ‘may’ be subject to deportation implies there
is some chance, potentially a good chance, that the person will not be deported.’ ” Id. ¶ 15
(quoting Gonzalez v. State, 83 P.3d 921, 925 (Or. Ct. App. 2004)). This Court has since
interpreted Paredez as requiring “a definite prediction as to the likelihood of deportation
based on the crimes to which a defendant intends to plead and the crimes listed in federal law
for which a defendant can be deported.” Carlos, 2006-NMCA-141, ¶ 14.

{18} Six years after our Supreme Court’s holding in Paredez, the United States Supreme
Court in Padilla “similarly held that ‘counsel must inform her client whether his plea carries
a risk of deportation.’ ” State v. Ramirez, 2012-NMCA-057, ¶ 4, 278 P.3d 569 (quoting
Padilla, 559 U.S. at ___, 130 S. Ct. at 1486), cert. granted, 2012-NMCERT-006, 294 P.3d
1244. The United States Supreme Court’s holding, while similar in nature to Paredez, was
not as broad on the issue of what constitutes deficient representation. Rather, the United
States Supreme Court held that “when the deportation consequence is truly clear, . . . the
duty to give correct advice is equally clear”; however, “[w]hen the law is not succinct and
straightforward . . ., a criminal defense attorney need do no more than advise a non[-]citizen
client that pending criminal charges may carry a risk of adverse immigration consequences.”
Padilla, 559 U.S. at ___, 130 S. Ct. at 1483 (emphasis added). We note that our Supreme
Court’s opinion in Paredez contains no such limitation. We further note that, to the extent
there are distinctions to be drawn between the rights provided by the New Mexico Supreme
Court in Paredez and the rights articulated by the United States Supreme Court in Padilla,
this Court is bound by the “applicable precedents of [the New Mexico] Supreme Court.”
Carlos, 2006-NMCA-141, ¶ 17 (internal quotation marks and citation omitted).

B.      Prejudice

1.      Demonstrating Prejudice in Cases Involving Immigration Issues

{19} This Court has previously recognized that “[t]here are no mechanical rules for
determining prejudice.” Id. ¶ 20 (internal quotation marks and citation omitted); see also
Strickland, 466 U.S. at 696 (stating that “the ultimate focus of inquiry must be on the
fundamental fairness of the proceeding whose result is being challenged”). Instead, “the
question whether a given defendant has made the requisite [prejudice] showing will turn on
the facts of a particular case.” Roe v. Flores-Ortega, 528 U.S. 470, 485 (2000). This Court
has previously considered such factors as “pre-conviction statements or actions indicating
the defendant’s preference to plead or to go to trial” and “the strength of the evidence against

                                               7
the defendant[.]” State v. Edwards, 2007-NMCA-043, ¶ 35, 141 N.M. 491, 157 P.3d 56.
We have also considered a defendant’s testimony about his connection to the United States.
See Carlos, 2006-NMCA-141, ¶ 21 (“[The d]efendant’s testimony that he has lived in the
United States virtually his whole life, having been brought to [t]his country right after he was
born, may have been an important factor in his decision whether to enter a plea.”). We are
not limited, however, to these considerations in assessing prejudice. See Edwards, 2007-
NMCA-043, ¶ 36 (noting that our Supreme Court “did not limit the types of additional
evidence a defendant may provide in order to establish what he or she would have done
given the appropriate advice prior to entering a plea”).

{20} While Padilla was not as broad as Paredez in its analysis of what constitutes
deficient representation, the United States Supreme Court appears to have taken a broad
approach to how a defendant can demonstrate prejudice. Padilla states that “to obtain relief
on this type of claim, a petitioner must convince the court that a decision to reject the plea
bargain would have been rational under the circumstances.” Padilla, 559 U.S. at ___, 130
S. Ct. at 1485. This “rational under the circumstances” standard has been heralded as being
“much broader and allow[ing] for consideration of a different type of risk analysis by a
defendant” as compared with traditional analyses of prejudice in the context of ineffective
assistance of counsel claims. Jenny Roberts, Proving Prejudice, Post-Padilla, 54 How. L.J.
693, 713 (2011).

{21} Given this arguably broader framework permitted by Padilla, some scholars have
advocated incorporating considerations into the prejudice analysis that more fully reflect the
impact that accurate advice regarding immigration consequences can have on a decision to
plead. See, e.g., Roberts, supra, at 722 (“It is critical to integrate into the prejudice inquiry
these realities of plea bargaining, which include negotiating over both charges and sentence,
and the effect of these negotiations on a defendant’s decision-making process.”). Such an
approach acknowledges that

        [i]f full information about required matters—which now includes automatic
        deportation . . .—would lead a defendant to reject the plea, three things could
        follow: (1) he could go to trial; (2) his attorney could attempt to re-negotiate
        the plea for one that either avoided imposition of the consequence or lowered
        the charge and/or sentence in recognition of the fact that deportation . . .
        would follow the conviction; or (3) assuming the plea did not include a
        sentence bargain, his attorney could use the additional consequence in post-
        plea sentencing advocacy before the judge.

Roberts, supra, at 722-23. Owing to the impact that accurate immigration advice may have
on a defendant’s decision-making during the plea bargain process, ineffective assistance
claims that arise in this context require courts to analyze factors that differ from those that
pertain to non-immigration-related ineffective assistance claims. See Roberts, supra, at 737
(asserting that “[i]n failure-to-warn cases, [the strength of the evidence] should not weigh
as heavily[,] . . . because the relevant initial inquiry is simply whether, given fully accurate

                                               8
information about the collateral consequence, it is reasonably probable that the defendant
would have rejected the plea offer”); State v. Sandoval, 249 P.3d 1015, 1022 (Wash. 2011)
(en banc) (concluding that, in light of deportation consequences to someone who had earned
permanent residency in this country and made it his home, it would be “rational” for a
defendant to “take his chances at trial” even though he “would have risked a longer prison
term by going to trial”); see also United States v. Kwan, 407 F.3d 1005, 1017 (9th Cir. 2005)
(determining that the defendant had demonstrated that he was prejudiced by his counsel’s
ineffectiveness where his counsel failed to advise him of the immigration consequences of
a plea bargain), abrogated on other grounds by Padilla, 559 U.S. 356, 130 S. Ct. 1473.
Thus, under this approach, a defendant could demonstrate prejudice by submitting evidence,
for instance, that a different plea could have been negotiated that would have avoided
automatic deportation, even if that plea would have resulted in a conviction of a crime
requiring a longer period of incarceration. See Vivian Chang, Note, Where Do We Go From
Here: Plea Colloquy Warnings and Immigration Consequences Post-Padilla, 45 U. Mich.
J.L. Reform 189, 194 (2011) (recognizing that “non-citizen defendants may be interested in
serving longer sentences in order to avoid adverse immigration consequences”).

{22} The broader, inclusive prejudice analysis described in the preceding paragraphs is
not inconsistent with existing New Mexico case law. Our Supreme Court has recognized
that “[d]eportation can often be the harshest consequence of a non-citizen criminal
defendant’s guilty plea, so that in many misdemeanor and low-level felony cases . . . [he or
she] is usually much more concerned about immigration consequences than about the term
of imprisonment.” Paredez, 2004-NMSC-036, ¶ 18 (omission and alteration in original)
(internal quotation marks and citation omitted). Also, in Paredez, our Supreme Court held
that for a defendant to demonstrate prejudice in the context of immigration, a defendant must
show “he would not have entered into the plea agreement if he had been given
constitutionally adequate advice about the effect that his guilty plea would have on his
immigration status.” Id. ¶ 20 (internal quotation marks and citation omitted); see Edwards,
2007-NMCA-043, ¶ 34 (noting that “a defendant who was convicted on a plea is not
required to prove that a trial would have resulted in acquittal” (alteration, internal quotation
marks, and citation omitted)). Thus, similar to the United States Supreme Court’s approach
in Padilla, New Mexico courts appear to approve implementing a broad approach to
assessing prejudice in the context of immigration.

2.     A Trial Court’s Warnings Regarding Immigration Consequences During the
       Plea Colloquy

{23} In the present case, in determining prejudice, this Court must determine what weight,
if any, should be given to the trial court advising Defendant during the plea colloquy that he
would be deported. The district court entered an order accepting Defendant’s allegations
that his counsel had failed to inform him of the immigration consequences of his plea, but
concluding that because the trial court “itself admonished . . . [D]efendant that his plea and
conviction in this case would surely result in his being deported[,]” and Defendant
“personally told the [trial c]ourt that he understood that he would be deported[,]”

                                               9
Defendant’s plea was “knowing, intelligent[,] and voluntary.” Thus, the district court
appears to have accepted Defendant’s allegations that he was not informed by his counsel
of the immigration consequences of his plea. Because failure to inform a defendant about
the immigration consequences of his plea is sufficient to establish the first prong of
ineffective assistance of counsel under Paredez, we limit our review to the district court’s
reliance on the trial court’s advice to Defendant in deciding that Defendant had not
demonstrated prejudice.2 Because our appellate courts have not previously addressed this
issue, we turn to authority from other jurisdictions to guide our decision.

{24} We note that some courts have viewed a district court’s advice to counsel during a
plea colloquy as “curing” counsel’s deficient representation and precluding a showing of
prejudice even where the court’s warnings were equivocal. See, e.g., State v. Martinez, 729
S.E.2d 390, 392 (Ga. 2012) (“A trial court’s plea colloquy warnings of adverse immigration
consequences, especially where . . . the defendant affirmatively acknowledge[d] his
understanding that he is certain or almost certain to face deportation, generally shows that
the defendant cannot demonstrate prejudice or that any prejudice was cured, regardless of
whether plea counsel had previously given affirmative misadvice or failed to give any
advice.”); Mendoza v. United States, 774 F. Supp. 2d 791, 799 (E.D. Va. 2011) (stating, in
dicta, that “[the] petitioner’s ineffective assistance of counsel claim flatly fails on the
prejudice prong” because “[the] petitioner was explicitly advised in the course of the . . .
colloquy that her guilty plea would render her subject to deportation and [she]
acknowledged, under oath, that she understood this possible consequence”); see also De La
Rosa v. United States, Nos. 09-Cv-22646-COHN, 08-Cr-20685-COHN, 2012 WL 4466533,
at *8 (S.D. Fla. Aug. 17, 2012) (holding that, because the court specifically advised the
movant that his plea could lead to his removal from the United States, “the [c]ourt cured any
error due to counsel’s alleged misadvice and [the] movant’s plea was voluntarily entered
with full knowledge of its possible deportation consequences”); Amreya v. United States,
Nos. 4:10-CV-503-A, 4:08-CR-033-A, 2010 WL 4629996, at *5 (N.D. Tex. Nov. 8, 2010)
(holding that “the record conclusively demonstrates a lack of prejudice” where the court had
“specifically advised [the] movant that an adjudication of guilt could result in deportation”
(emphasis added) (alteration, internal quotation marks, and citation omitted)). Generally,
courts that view the district court’s colloquy as “curing” counsel’s ineffectiveness and
precluding prejudice therefrom appear to rely on the importance of sworn statements in open
court. See, e.g., De La Rosa, 2012 WL 4466533, at *6 (“[A] defendant’s sworn answers


       2
          While the State argues that Defendant did not meet his burden of establishing a
prima facie showing of ineffective assistance of counsel under Tran, we do not address this
argument because the district court permitted Defendant to present testimony at the hearing
on the motion to reconsider. See Tran, 2009-NMCA-010, ¶ 23 (indicating that a prima facie
showing of ineffective assistance of counsel entitles a defendant to an evidentiary hearing).
Following the testimony, the district court entered an order denying Defendant’s motion for
reconsideration based on the reasons set forth in the original order denying Defendant’s
request for relief.

                                             10
during a plea colloquy must mean something” and they “constitute a formidable barrier in
any subsequent collateral proceedings.” (internal quotation marks and citation omitted)); see
also Danielle M. Lang, Note, Padilla v. Kentucky: The Effect of Plea Colloquy Warnings on
Defendants’ Ability to Bring Successful Padilla Claims, 121 Yale L.J. 944, 983 (2012)
(stating that most courts holding that a defendant could not demonstrate prejudice in light
of court advice during a plea colloquy “bolstered their no-prejudice holdings with language
emphasizing the importance of sworn statements in open court”).

{25} To the contrary, some courts have held that a trial court’s advice during the plea
colloquy, while relevant, cannot “cure” a counsel’s inadequate representation. See
Hernandez v. State, __ So. 3d __, 2012 WL 5869660, at *4 (Fla. Nov. 21, 2012) (stating that
“a colloquy containing an equivocal warning from the trial court and an acknowledgment
from the defendant contributes to the totality of the circumstances by providing evidence that
the defendant is aware of the possibility that a plea could affect his immigration status” but
it “cannot, by itself, remove prejudice resulting from counsel’s deficiency”); Commonwealth
v. Clarke, 949 N.E.2d 892, 907 n.20 (2011) (stating that, while a deportation warning was
given to the defendant, “the receipt of such warnings is not an adequate substitute for
defense counsel’s professional obligation to advise her client of the likelihood of specific
and dire immigration consequences that might arise from such a plea,” but “it may be
relevant to the prejudice prong”), abrogated on other grounds by Chaidez, __ U.S. __, 133
S. Ct. 1103; People v. Garcia, 907 N.Y.S.2d 398, 406-07 (Sup. Ct. 2010) (“[W]here . . . [the]
defendant is found in fact to have been misled by bad advice from a so-called retained
specialist and by a lack of advice from his defense attorney, the [c]ourt’s general
[deportation] warning[s] will not automatically cure counsel’s failure nor erase the
consequent prejudice.”); see also Lang, supra, at 978-79 (noting that courts that did not
allow plea colloquy warnings to bar a finding of prejudice “focused on the holding in Padilla
that effective assistance requires not only a blanket warning of possible immigration
consequences, but also, where the deportation consequence is clear, specific advice on the
particular immigration consequences of the plea”).

{26} Given that our Supreme Court’s holding in Paredez requires “a definite prediction
as to the likelihood of deportation[,]” Carlos, 2006-NMCA-141, ¶ 14, we agree with those
courts that have held an equivocal warning by the trial court to be insufficient to cure
counsel’s deficient representation. However, even where the trial court’s warning is
unequivocal, as it was here, we do not rely on those cases that hold that a trial court’s
warning can cure counsel’s deficient representation. As our Supreme Court noted in
Paredez, “a sufficient advisement from the trial court regarding the immigration
consequences of a defendant’s plea does not entail that the defendant has received effective
assistance of counsel in evaluating or responding to such advisements.” 2004-NMSC-036,
¶ 12 (emphasis added) (alteration, internal quotation marks, and citation omitted). Thus, we
hold that a court’s warning or advisement to a defendant regarding possible immigration
consequences of accepting a plea is never, by itself, sufficient to cure the prejudice that
results from ineffective assistance of counsel in that regard.


                                             11
{27} “Effective assistance of counsel is necessary during plea negotiations because the
most important decision for a defendant in a criminal case is generally whether to contest
a charge or enter into a plea agreement.” Patterson v. LeMaster, 2001-NMSC-013, ¶ 16, 130
N.M. 179, 21 P.3d 1032; see also Padilla, 559 U.S. at ___, 130 S. Ct. at 1486 (recognizing
the importance of negotiation of a plea bargain as “a critical phase of litigation for purposes
of the Sixth Amendment right to effective assistance of counsel”). The right to effective
assistance of counsel amounts to more than simply relaying information. See Strickland, 466
U.S. at 688 (recognizing that “[r]epresentation of a criminal defendant entails certain basic
duties[,]” including the “overarching duty to advocate the defendant’s cause[,] . . . to consult
with the defendant on important decisions[,] and to keep the defendant informed”). “The
role of defense counsel is to investigate, advise, and counsel her client through every phase
of the criminal process. The court, as a neutral arbiter, cannot fulfill this role.” Lang, supra,
at 996. “Even where warnings are more specific, judges, given their position, cannot gauge
defendants’ priorities, counsel defendants on how to proceed, or use the information
strategically in negotiating pleas.” Id. at 988. A defendant who has been “advised” of the
immigration consequences of his plea by the trial court during the plea colloquy has not been
provided the same assistance of counsel as an attorney who has represented a client with
knowledge that the defendant faced possible deportation. As the United States Supreme
Court acknowledged in Padilla,

        informed consideration of possible deportation can only benefit both the
        [s]tate and non[-]citizen defendants during the plea-bargaining process. By
        bringing deportation consequences into this process, the defense and
        prosecution may well be able to reach agreements that better satisfy the
        interests of both parties. As in this case, a criminal episode may provide the
        basis for multiple charges, of which only a subset mandate deportation
        following conviction. Counsel 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.

559 U.S. at ___, 130 S. Ct. at 1486. Because a defendant whose attorney has not advised
him of the immigration consequences of his plea has likely not advocated for a plea aimed
at avoiding automatic deportation, the trial court’s advice to a defendant that he may or will
be deported cannot cure counsel’s deficient representation.

{28} Moreover, we note concerns with the efficacy of immigration warnings given by a
trial court. “[A] nervous defendant taking a plea in front of a criminal judge will rarely be
able to meaningfully process the many formalized warnings included in the plea colloquy.

                                               12
While these warnings may be administered in a way that is supportive of the spirit of
Padilla, they are no replacement for meaningful advice by counsel.” Heidi Altman,
Prosecuting Post-Padilla: State Interests and the Pursuit of Justice for Non[-]citizen
Defendants, 101 Geo. L.J. 1, 21 (2012) (footnote omitted); Chang, supra, at 216 (noting
“that defendants do not currently pay attention to the rote nature of warnings at plea
colloquy, and that non-citizen defendants therefore would not actually be put on notice of
the immigration consequences they might face”). While we do not go so far as to hold that
such warnings are irrelevant to a prejudice analysis, given the formalistic nature of the
warnings, we caution that such warnings should be given very little weight when considering
prejudice where the defendant was not given the opportunity to speak with counsel between
receiving the warnings and entering his plea.3

{29} In an effort to attempt to lessen claims of ineffective assistance of counsel such as
the one now before this Court, in cases in which the district court is presented with a guilty
or nolo contendere plea, we recommend that the district court inquire of both the defendant
and the defendant’s lawyer the extent to which the immigration consequences of accepting
the plea were discussed (1) before the defendant signed his plea agreement, (2) before the
defendant entered his plea in court, and (3) before sentencing.

{30} In the present case, the district court appears to have placed significant weight on the
trial court’s immigration warnings to Defendant. For the reasons articulated earlier, we
conclude that placing significant weight on the trial court’s warnings was improper where
Defendant was not provided the opportunity to consult with counsel or consider what other
options may exist that would permit him to avoid deportation. We therefore remand to the
district court for further proceedings.4 On remand, the district court may hear evidence and


       3
          To the extent the State argues that the plea and disposition agreement signed by
Defendant stated that it “may have an effect upon [his] immigration or naturalization status,”
neither the equivocal nature of the warning nor the formalistic nature of its delivery provide
support for it being given significant weight in determining prejudice.
       4
            While the State advocates for this Court to conclude that Defendant did not
establish prejudice because he “made no showing that the charges to which he pleaded guilty
were not based on strong evidence[,]” the strength of the evidence is but one factor to be
considered in determining prejudice. Although our courts have recognized “a direct
relationship between the strength of the case against a defendant and the likelihood that he
or she will plead guilty or no contest[,]” Edwards, 2007-NMCA-043, ¶ 35 (internal quotation
marks and citation omitted), when viewed in light of our acknowledgment that immigration
consequences may often be the overriding concern of a criminal defendant, the strength of
the evidence against a defendant is less indicative of whether the defendant may have taken
a chance at trial. See Roberts, supra, at 737 (asserting that “[i]n failure-to-warn cases, [the
strength of the evidence] should not weigh as heavily[,] . . . because the relevant initial
inquiry is simply whether, given fully accurate information about the collateral consequence,

                                              13
reconsider both prongs of Defendant’s ineffective assistance of counsel claim. Given that
objective evidence may be sparse in this type of case, see Carlos, 2006-NMCA-141, ¶ 21,
by this Court’s broadening of the approach in analyzing prejudice, the district court will have
more to draw from than Defendant’s self-serving statements in determining whether he was
prejudiced by counsel’s failure to warn regarding the immigration consequences of his plea.
See Patterson, 2001-NMSC-013, ¶ 29 (“Because courts are reluctant to rely solely on the
self-serving statements of defendants, which are often made after they have been convicted
and sentenced, a defendant is generally required to adduce additional evidence to prove that
there is a reasonable probability that he or she would have gone to trial.”). On remand, the
district court should consider the various considerations discussed herein, in light of the
harsh and drastic consequences that deportation poses.

CONCLUSION

{31} The district court’s order denying Defendant’s motion for reconsideration is reversed.
This matter is remanded to the district court for further proceedings consistent with this
Opinion.

{32}   IT IS SO ORDERED.

                                               ____________________________________
                                               JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
CYNTHIA A. FRY, Judge

____________________________________
LINDA M. VANZI, Judge




it is reasonably probable that the defendant would have rejected the plea offer”); id. at 719
(noting that it may be “rational” for a defendant “to take his chances at trial, however slim
the likelihood of acquittal, . . . because it was the only route to avoiding deportation”).

                                              14
