                                                                       FILED
                                                                   FEBRUARY 2, 2017
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 31271-2-111
                     Respondent,             )
                                             )
       v.                                    )
                                             )         PUBLISHED OPINION
JOSE ANTONIO MANAJARES, 1                    )
                                             )
                     Appellant.              )

       SIDDOWAY, J. -    In Padilla v. Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 176

L. Ed. 2d 284 (2010), the United States Supreme Court held that constitutionally

competent counsel must advise a client facing criminal charges about the risk of

deportation. In In re Personal Restraint of Yung-Cheng Tsai, our Supreme Court held

that while Padilla created a "new rule" under federal law for retroactivity purposes,

Washington has long required by statute that criminal defendants be advised of

immigration consequences of a guilty plea, so Padilla simply applied a Washington

lawyer's duty to a specific concern. 183 Wn.2d 91, 100-03, 351 P.3d 138 (2015)

(applying Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)); cf


       1
        Appellant's name is spelled "Manajares" in the information and judgment and
sentence; however, he signs his name spelled "Manjares." For purposes of this opinion
the appellant's name is spelled "Manajares."
I   No. 31271-2-111
    State v. Manajares

I   Chaidez v. United States, 568 U.S._, 133 S. Ct. 1103, 1107, 185 L. Ed. 2d 149 (2013)

    (arriving at a different result under federal law, which had not previously recognized a

    lawyer's duty under the Sixth Amendment to the United States Constitution to advise a

    criminal defendant of collateral immigration consequences). Because Padilla did not

    announce a new rule under Washington law, it applies retroactively to matters on

    collateral review. Tsai, 183 Wn.2d at 103.

           Addressing the distinct issue of whether Padilla is a retroactively applicable

    "significant change in [the] law" that overcomes the one-year time bar to collateral relief

    provided by RCW 10.73.100(6), the Tsai court held that it was. Tsai, 183 Wn.2d at 103.

    This is because several Washington appellate decisions issued before Padilla appeared to

    foreclose any possibility that the unreasonable, prejudicial failure to provide statutorily

    required advice on deportation consequences could ever be ineffective assistance of

    counsel. Tsai, 183 Wn.2d at 105.

           Jose Antonio Manajares presents an argument made possible and timely by these

    cases: he contends he should be entitled under CrR 7 .8 to withdraw his 2002 guilty plea

    to unlawful imprisonment because his lawyer failed to advise him that the plea would

    subject him to removal or exclusion from this country. Whether his lawyer's

    performance was deficient depends on the clarity of the law, however, and Mr. Manajares

    fails to show that law he contends was not explained to him was truly clear in 2002.




                                                  2
No. 31271-2-111
State v. Manajares


Because his lawyer's representation was not deficient, we affirm denial of his motion to

withdraw his plea.·

                      FACTS AND PROCEDURAL BACKGROUND

       In December 2002, Jose Manajares entered an AlforcP plea to one count of

unlawful imprisonment. Because he was not acknowledging a statement of the factual

basis for his plea, his statement on plea of guilty included his agreement that "the court

may review the police reports and/or a statement of probable cause supplied by the

prosecution." Clerk's Papers (CP) at 7. In accepting the plea, the trial court was asked

by the State to review the affidavit of probable cause and acknowledged that it had.

       In 1983, the Washington Legislature had declared that a noncitizen defendant must

be warned about immigration consequences before pleading guilty to a crime, and the

standard plea form signed by Mr. Manajares included a general warning of immigration

consequences 3 added following that legislation. Tsai, 183 Wn.2d at 101; LAWS OF 1983,



       2
         North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
In Alford, the United States Supreme Court addressed whether a guilty plea can be
accepted when it contains a waiver of trial but no admission of guilt. Id. at 33. It held
that when such a plea is accompanied by evidence against the defendant that substantially
negates his claimed innocence and provides a means by which the judge can test whether
the plea is being intelligently entered, the validity of the plea "cannot be seriously
questioned." Id. at 38.
       3
         "If I am not a citizen of the United States, a plea of guilty to an offense
punishable as a crime under state law is grounds for deportation, exclusion for admission
to the United States, or denial of naturalization pursuant to the laws of the United States."
CP at 6.

                                             3
No. 31271-2-111
State v. Manajares


ch. 199, § 1(1), codified at RCW 10.40.200(1). Mr. Manajares acknowledged that the

plea form was read to him by an interpreter. The interpreter affirmed that Mr. Manajares

acknowledged his understanding of the translation and subject matter of the form.

       Before accepting the plea, the court asked Mr. Manajares ifhe understood that his

"plea of guilty to this count is grounds for deportation from the United States, ...

exclusion from admission to the United States and denial of naturalization," and he

answered yes. CP at 65. The court accepted the plea and sentenced Mr. Manajares to 41

days of incarceration and 12 months of community custody.

       Shortly after he entered the plea, Mr. Manajares was removed from the United

States by the United States Immigration and Naturalization Service. A later-prepared

report of investigation by a deportation officer indicated that Mr. Manajares had been

"removed subsequent to a conviction for commission of an aggravated felony." CP at

123.

       Almost 10 years after his 2002 conviction, Mr. Manajares filed a CrR 7.8 motion

to vacate his Alford plea. He argued he received ineffective assistance of counsel

because the lawyer representing him in connection with the 2002 charges, David De

Long, failed to advise him that deportation or exclusion from the country was a certain

result of the conviction. In support of his motion, Mr. Manajares testified by declaration:

       I know that Mr. David De Long told me that I could apply to stay in the
       United States once I got to the immigration court. I remember this only
       because he also wished me good luck with it when I saw him for the last

                                             4
No. 31271-2-111
State v. Manajares


       time. Even I was looking forward to going to the immigration court after
       his words. I figured that he must know something about it even ifhe
       wasn't an immigration attorney. Supposing Mr. De Long had even told me
       differently that he just didn't know about what the immigration court would
       do and that he might have even made more problems for me because of
       how he filled out my forms, I would have been very concerned. I would
       have told him that I needed to be sure about all of this before I just agreed
       to plead guilty.

Statement of Additional Grounds. 4

       Mr. Manajares also submitted an affidavit from Mr. De Long, who testified he was

unable to remember Mr. Manajares's case but that it was his "practice to go over [his]

clients' guilty pleas with them in their entirety including the general immigration

warnings." CP at 72. His affidavit also states:

       Criminal defense counsel at the time of Mr. Manajares guilty plea were not
       required under Washington law to specifically advise as to the immigration
       consequences of entering a guilty plea. At the time of his guilty plea, I was
       not sufficiently cognizant of the immigration consequences of criminal
       convictions to know for certain whether or not Mr. Manajares would
       actually be deported or not.

Id. at 71-72.

       The trial court refused to entertain the motion to vacate because Mr. Manajares

was not present. Mr. Manajares appealed. A commissioner of this court affirmed the

trial court's order "that denied the motion to vacate" on other grounds, holding that

Padilla did not have retroactive effect; Mr. Manajares's motion was untimely, having


       4
         Mr. Manajares's statement of additional grounds for review contained only his
declaration; it identified no issues requiring review.

                                             5
No. 31271-2-111
State v. Manajares


been filed over a year after the judgment became final; and, given the warning of

immigration consequences set forth in his statement of plea of guilty that Mr. De Long

reviewed with his client, Mr. Manajares failed to demonstrate ineffective assistance of

counsel. Commr's' Ruling (Nov. 20, 2013) at 4.

       Mr. Manajares petitioned the Washington Supreme Court for review. In

November 2015, the Supreme Court remanded the appeal to this court for reconsideration

in light of its decision in Tsai. In addition to holding that Padilla was a significant

change of law that can overcome the one-year time bar to collateral relief provided by

RCW 10.73.100(6), Tsai established that Padilla overcomes the bar only in cases where a

defense lawyer fails to research and apply the law, not where the lawyer affirmatively

offers incorrect advice. Tsai, 183 Wn.2d at 107. Washington courts had long recognized

that where a plea is entered in reliance on erroneous advice, it may be rendered

involuntary and withdrawn. Id. 5

       Finally, the court in Tsai reiterated its holding in State v. Sandoval, 171 Wn.2d

163, 173, 249 P.3d 1015 (2011) that the general warning statement included in the

standard plea form is not itself the required advice and does not excuse a defense lawyer

from the duty to research and advise a client of relevant law. Tsai, 183 Wn.2d at 101. As



       5
        Portions of Mr. Manajares's affidavit arguably complain of incorrect advice.
Because that complaint would be time-barred and is not the basis of his briefing on
appeal, we do not address that implication of his affidavit further.

                                              6
No. 31271-2-III
State v. Manajares


observed in Sandoval, if defense counsel couches advice about immigration

consequences with uncertainty, it may negate the effect of any warning included in the

plea statement or given by the trial court. Sandoval, 171 Wn.2d at 172-73.

                                           ANALYSIS

       With the major legal issues as to Mr. Manajares's ability to collaterally challenge

his 14-year-old conviction resolved, 6 what remains is the issue of whether Mr. De Long

provided ineffective assistance of counsel. Relying on the affidavit of an immigration

lawyer, Mr. Manajares argued in the trial court that (1) by entering an Alford plea that

incorporated the affidavit of probable cause and the police reports, he unwittingly created

a record of conviction that would establish a crime of moral turpitude and prevent him

from ever acquiring a legal resident status, and (2) he unwittingly pleaded to a crime that

was subsequently treated as an "aggravated felony," thereby subjecting him to a lifetime

ban to reentry. Br. of Appellant at 4-5.

       "When determining whether a defense attorney provided effective assistance, the

underlying test is always one of 'reasonableness under prevailing professional norms.'"




       6
         It is now clear that Mr. Manajares's motion was not time-barred.
       Sandoval and Tsai foreclose the State's argument that Mr. Manajares cannot assert
ineffective assistance of counsel since he was read the general warning in the plea form,
claimed to have understood it, and was reminded of it by the judge.
       While the State continues to defend the trial court's refusal to entertain Mr.
Manajares's motion because of his absence, we decline to consider that issue (as did our
commissioner) and proceed directly to the merits.

                                              7
No. 31271-2-111
State v. Manajares


Tsai, 183 Wn.2d at 99 (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984)). In Padilla, the United States Supreme Court recognized

that "[i]mmigration law can be complex," and that "[s]ome members of the bar who

represent clients facing criminal charges ... may not be well versed in it." Padilla, 559

U.S. at 369. Because "[t]here will, therefore, undoubtedly be numerous situations in

which the deportation consequences of a particular plea are unclear or uncertain," the

Court announced the following standard for assessing a criminal defense lawyer's duty:

       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.
       But when the deportation consequence is truly clear, ... the duty to give
       correct advice is equally clear.

Id. (footnote omitted).

       Mr. Manajares's ineffective assistance of counsel claim thus depends on whether

truly clear adverse immigration consequences would follow from his 2002 plea that Mr.

De Long failed to apprehend and explain.

       Immigration officials who reviewed Mr. Manajares's conviction for unlawful

imprisonment found it to be an aggravated felony. We first consider whether the law was

truly clear in 2002 that a conviction for unlawful imprisonment qualified as an

aggravated felony that triggers deportation.




                                               8
No. 31271-2-111
State v. Manajares


       1.     Aggravated felony

       To determine whether a prior conviction qualifies as an aggravated felony for the

purposes of deportation, courts employ the categorical approach set forth in Taylor v.

United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990). "Under Taylor's

'categorical' approach, 'the issue is not whether [the] actual conduct constituted an

aggravated felony, but whether the full range of conduct encompassed by [the state

statute] [ of conviction] constitutes an aggravated felony,' and we 'look only to the fact of

conviction and the statutory definition of the prior offense' to make this determination."

United States v. Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir. 2004) (first and second

alterations in original) (quoting Taylor, 495 U.S. at 602). "The key ... is elements, not

facts." Descamps v. United States, 570 U.S._, 133 S. Ct. 2276, 2283, 186 L. Ed. 2d

438 (2013).

       The first step in the categorical approach is to look to whether the statute of

conviction defining the crime of conviction categorically fits within the "generic" federal

immigration definition of an "aggravated felony." Moncrieffe v. Holder, 569 U.S._,

133 S. Ct. 1678, 1684, 185 L. Ed. 2d 727 (2013).

      By "generic," we mean the offenses must be viewed in the abstract, to see
      whether the state statute shares the nature of the federal offense that serves
      as a point of comparison. Accordingly, a state offense is a categorical
      match with a generic federal offense only if a conviction of the state offense
      "'necessarily' involved ... facts equating to [the] generic [federal
      offense]." Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161
      L.Ed.2d 205 (2005) (plurality opinion).

                                             9
No. 31271-2-III
State v. Manajares



Id. (alterations in original).

       Mr. Manajares was convicted of unlawful imprisonment under RCW

9A.40.040(1), which, applies to a person who "knowingly restrains another person."

"Restrain" is defined for this purpose to mean

       to restrict a person's movements without consent and without legal
       authority in a manner which interferes substantially with his or her liberty.
       Restraint is "without consent" if it is accomplished by (a) physical force,
       intimidation, or deception, or (b) any means including acquiescence of the
       victim, if he or she is a child less than sixteen years old or an incompetent
       person and if the parent, guardian, or other person or institution having
       lawful control or custody of him or her has not acquiesced.

RCW 9A.40.010(6).

       Neither Mr. Manajares's immigration expert nor his lawyer on appeal have

identified any federally defined aggravated felony into which unlawful imprisonment

under RCW 9A.40.040 fits categorically, or would ever fit. Where no authorities are

cited in support of a proposition, we are not required to search out authorities, but may

assume that counsel, after diligent search, has found none. DeHeer v. Seattle Post-

Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). Mr. Manajares has not

demonstrated that Mr. De Long provided deficient representation in failing to foresee that

immigration officials would categorize Mr. Manajares's crime as an aggravated felony.




                                             10
No. 31271-2-111
State v. Manajares


        2.     Crime of moral turpitude

        Mr. Manajares's principal argument on appeal is that Mr. De Long should have

foreseen that he was pleading to a "crime involving moral turpitude" under 8 U.S.C. §

1182(a)(2)(A)(i)(I). Conviction of a crime involving moral turpitude renders an alien

ineligible to be admitted to the United States. Id. According to the affidavits and

exhibits filed with the motion to withdraw the guilty plea, Mr. Manajares's father is a

lawful permanent resident of the United States and had petitioned in 2001 for a visa for

Mr. Manajares. Mr. Manajares argues that but for his plea and conviction of a crime

involving moral turpitude, he could have applied in the future to adjust his status to that

of a lawful permanent resident. Supp. Br. of Appellant at 3-4. He also argues that it was

deficient performance for his trial lawyer not to advise him against entering an Alford

plea.

                            Limited significance of Alford plea

        Mr. Manajares supports his motion with evidence that it was the prevailing

professional norm in 2002 for criminal defense lawyers to avoid entry of an Alford plea

by a noncitizen client because Alford pleas enlarge the "record of conviction." To

determine whether a conviction triggers an immigration consequence such as removal,

"the immigration judge or other reviewing authority may look to a strictly limited official

set of documents known as the 'record of conviction.'" ANN BENSON & JONATHAN

MOORE, WASH. DEF. Ass'NS IMMIG. PROJECT, PRACTICE ADVISORY ON REPRESENTING

                                             11
    No. 31271-2-III
    State v. Manajares


    NONCITIZENS ACCUSED OF MISDEMEANOR ASSAULT OFFENSES-BOTH DV AND NON-

    DV CASES-UNDER RCW 9A.36.041, at 4 (Feb. 2007) 7 (citing United States v. Rivera-

    Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en bane) (quoting Taylor, 495 U.S. 575)).

    Included in the record of conviction are the statutory definition of the crime, the charging

    document, and the written plea agreement, among other documents not relevant here.

    Notash v. Gonzales, 427 F.3d 693, 697 (9th Cir. 2005).

           Not ordinarily included in the record of conviction are the pre-sentence report,

    affidavit of probable cause, arrest reports, dismissed informations, and statements from

    the prosecutor only. Benson & Moore, supra, at 4-5. However, "where these documents

    or facts are stipulated by the defendant as providing the factual basis for the plea they will

    be deemed incorporated into the reviewable" record of conviction. ANN BENSON &

    JONATHAN MOORE, WASH. DEF. Ass'NS IMMIG. PROJECT, UNDERSTANDING How

    CONVICTIONS ARE ANALYZED UNDER IMMIGRATION LAW & STRATEGIES TO CRAFT

    PLEAS & CREA TE A CRIMINAL RECORD TO AVOID/MITIGATE IMMIGRATION

    CONSEQUENCES, at 9 (Feb. 2012); 8 see also In re Milian-Dubon, 25 I. & N. Dec. 197,

    197 (2010) (incorporation of police report); Parrilla v. Gonzales, 414 F.3d 1038, 1044


           7
             http:/!library .niwap.org/wp-content/uploads/2015/IMM-Man
    -PracticeAdvisoryN oncitzensAccusedMisdemeanorAssault-02.07 .pdf.
           8
             http://www.defensenet.org/immigration-proj ect/immigration-resources
    /navigating-and-crafting-pleas-for-noncitizens
    /Categorical %20Analysis%20%20F actual %20Basis%20Advisory%202-23
    -12%20FINAL.pdf.

                                                 12


l
     No. 31271-2-III
     State v. Manajares


     (9th Cir. 2005) (incorporation of certificate of probable cause). Mr. Manajares's Alford

     plea incorporated the police reports and affidavit of probable cause as the factual bases

 j   for the plea.

II          Still, it is not automatically deficient performance for a lawyer to permit a client to

     enter an Alford plea. Even the contemporaneous professional literature submitted in

     support of Mr. Manajares's motion states that "as a rule,9 noncitizens should not do

     Alford pleas." CP at 139.

            It is important to bear in mind that while the record of conviction is expanded by

     an Alford plea, that expanded record is reviewed for a limited purpose. We have

     previously discussed the categorical approach, under which a noncitizen defendant's

     crime of conviction is compared to a crime that federal law identifies as a basis for

     exclusion or removal. That comparison sometimes reveals that the statute of conviction

     is "divisible," in that it prohibits some conduct that would fit within the federal basis for

     removal or exclusion, and other conduct that would not.

            That was not the case when we earlier compared unlawful imprisonment to

     "aggravated felonies." But when it does happen, courts engage in a modified categorical

     approach, under which the record of conviction is reviewed-in the case of a guilty plea,

     to assess whether the plea was, or was not, to the version of the crime that corresponds to


            9
          "As a rule" is defined as meaning "as a general thing: ORDINARILY,
     USUALLY." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1986 (1993).

                                                   13
No. 31271-2-111
State v. Manajares


a federal basis for removal or exclusion. See Descamps, 133 S. Ct. at 2284. The scope of

review is "narrow": it is "not to determine 'what the defendant and state judge must have

understood as the factual basis of the prior plea,' but only to assess whether the plea was

to the version of the crime ... corresponding to [the federal] generic offense." Id.

(emphasis added) (quoting Shepard, 544 U.S. at 25-26). This was not clear before

Descamps, and in the Ninth Circuit an Alford plea presented a risk that an incorporated

affidavit of probable cause or police report would describe facts constituting more crimes

or wrongdoing than the crime of conviction. 10 After Descamps, the risk presented by an

Alford plea is only that incorporated affidavits or reports might demonstrate that the

defendant's plea was to a version of the crime of conviction that is a basis for removal or

exclusion.

       In Tsai, our Supreme Court observed that even a defense lawyer's complete failure

to provide the advice required by RCW 10.40.200 can be objectively reasonable and thus

not deficient in some situations. Tsai, 183 Wn.2d at 102 n.2. We presume that counsel

was effective. State v. McFarland, 127 Wn.2d 322,335, 899 P.2d 1251 (1995).




       10
          In United States v. Aguila-Montes de Dea, 655 F.3d 915 (9th Cir. 2011), which
was abrogated by Descamps, the Ninth Circuit Court of Appeals had held that if the state
crime of conviction had a single, indivisible set of elements that was broader than (and
thereby different from) a crime that is a basis for removal or exclusion, the court could
look at the record of conviction to see if it rested on facts that satisfied a basis for
removal or exclusion.

                                             14
No. 31271-2-111
State v. Manajares


Accordingly, it is not enough for Mr. Manajares to show that Alford pleas are generally

disfavored for noncitizens.

              The law was not truly clear that Mr. Manajares 's Alford plea
                     would have adverse immigration consequences

       Under the Immigration and Nationality Act, "any alien convicted of, or who

admits having committed, or who admits committing acts which constitute the essential

elements of ... a crime involving moral turpitude (other than a purely political offense)

... is inadmissible." 8 U.S.C. § l 182(a)(2)(A)(i)(I). Congress has not defined "crime

involving moral turpitude." In decisions predating Mr. Manajares's December 2002 plea,

courts most often held that "' [m]oral turpitude refers generally to conduct that shocks the

public conscience as being inherently base, vile, or depraved, and contrary to the

accepted rules of morality and the duties owed between persons or to society in

general."' Hamdan v. lmmig. & Naturalization Serv., 98 F.3d 183, 186 (5th Cir. 1996)

(quoting the Board of Immigration Appeals' decision in the same case); Medina v. United

States, 259 F.3d 220, 227 (4th Cir. 2001) ("Moral turpitude 'is a nebulous concept, which

refers generally to conduct that shocks the public conscience as being inherently base,

vile, or depraved, contrary to the rules of morality and the duties owed between man and

man, either ·one's fellow man or society in general."' ( quoting In re Danesh, 19 I. & N.

Dec 669,670 (BJ.A. 1988))); see accord Rodriguez-Herrera v. lmmig. & Naturalization




                                             15
    No. 31271-2-111
    State v. Manajares


    Serv., 52 F.3d 238,239 (9th Cir. 1995); Itani v. Ashcroft, 298 F.3d 1213, 1215 (11th Cir.

    2002).

             In determining whether Mr. Manajares's crime of conviction was a crime

    involving moral turpitude, we again begin with the categorical approach. Under the

    categorical approach, unlawful imprisonment under RCW 9A.40.040(1) fits within the

    immigration concept of a "crime involving moral turpitude" only if any and all conduct

    proscribed by the Washington statute falls within that concept. See Parrilla, 414 F.3d at

    1042.

             The burden is on a defendant alleging ineffective assistance of counsel to overcome

    the strong presumption that counsel's representation was effective. McFarland, 127

    Wn.2d at 335. Neither Mr. Manajares's immigration expert nor his lawyer on appeal

    identify authority predating the December 2002 guilty plea that would have made it truly

    clear that Mr. Manajares's plea admitted committing acts that, for immigration purposes,

    constituted the essential elements of a crime involving moral turpitude.

             Our own research has identified subsequent authority holding that unlawful

I   imprisonment under a similar, if not identical, California statute is not a crime involving

I   moral turpitude. Turijan v. Holder, 744 F.3d 617, 621-22 (9th Cir. 2014) (reasoning that
I
    the crime did not require "an intent to injure someone, an actual injury, or a protected

    class of victims," and, because simple kidnapping had previously been determined not to
I   be a categorical crime of moral turpitude, then false imprisonment ( a lesser included

                                                 16


I
No. 31271-2-111
State v. Manajares


offense) could not be either (citing Castrijon-Garcia v. Holder, 704 F.3d 1205, 1218 (9th

Cir. 2013)). Our research also reveals that as of 2002, "moral turpitude" had been

characterized as a "vague and nebulous standard ... whose definition has never been

fully settled." Marmolejo-Campos v. Gonzales, 503 F.3d 922, 927 (9th Cir. 2007) (D.W.

Nelson, J., dissenting) (citing pre-2002 case law), adhered to on reh 'gen bane, 558 F.3d

903 (9th Cir. 2009). It reveals that by that time, the crimes of fraud, murder, rape,

robbery, kidnapping, voluntary manslaughter, some involuntary manslaughter offenses,

aggravated assaults, mayhem, theft offenses, spousal abuse, child abuse, and incest had

been found to be turpitudinous; on the other hand assault and battery, malicious mischief,

alien smuggling, assault with a deadly weapon, indecency, rioting, and money laundering

had all been found not to involve moral turpitude. Id. (citing cases). Burglary was found

not to involve moral turpitude in 2005. Cuevas-Gaspar v. Gonzales, 430 F.3d 1013,

1018 (9th Cir. 2005), abrogated in part by Holder v. Martinez Guiterrez, 566 U.S. 583,

132 S. Ct. 2011, 182 L. Ed. 2d (2012).

      Mr. Manajares fails to show that the state of federal immigration law in December

2002 was such that Mr. De Long could have researched and discovered that Mr.

Manajares's Alford plea carried a truly clear risk of adverse consequences. Mr. De

Long's review with Mr. Manajares of the general statutory deportation warning was

therefore competent representation. Since Mr. Manajares fails to demonstrate deficient




                                             17
No. 31271-2-111
State v. Manajares


representation, we need not reach his claim of prejudice. State v. Malone, 72 Wn. App.

429,438, 864 P.2d 990 (1994).

       The trial court's order effectively denying the motion is affirmed.




                                                          d?~w.~-~
                                                          ddoway,J.

WE CONCUR:




~
Pennell, J.                I
                           1.. /




                                             18
