Opinion issued July 2, 2013




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-13-00007-CR
                           ———————————
                   JUAN JUAREZ CANDELAS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 149th District Court
                          Brazoria County, Texas
                        Trial Court Case No. 31697



                         MEMORANDUM OPINION

      Juan Juarez Candelas appeals from the trial court’s order denying his

petition for writ of habeas corpus pursuant to article 11.072 of the Texas Code of
Criminal Procedure. 1 In a single issue, Candelas contends that the trial court erred

in denying his requested relief because his trial counsel was ineffective over fifteen

years ago based on his alleged failure to advise Candelas of the immigration

consequences of his guilty plea. See Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct.

1473 (2010). We affirm the trial court’s judgment.

                                     Background

      In 1996, Candelas, a Mexican citizen, pleaded guilty to a charge of

possession of a controlled substance, namely, cocaine weighing less than one

gram. He received a two-year suspended sentence, was placed on community

supervision for three years, and ordered to pay a $300 fine.

      Several months after his guilty plea, Candelas submitted his application to

“Register Permanent Residence or Adjust Status.” The United States Immigration

and Naturalization Service denied an adjustment of Candelas’s residency status

based on his 1996 conviction. 2 One year later, the INS began removal proceedings


1
      See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West 2005) (providing for
      appeal in felony or misdemeanor case in which applicant seeks relief from order or
      judgment of conviction ordering community supervision).
2
      A guilty plea and term of deferred adjudication community supervision constitutes
      a conviction for federal immigration law purposes. See 8 U.S.C. § 1101(a)(48)
      (defining “conviction” to include “if adjudication of guilt has been withheld,
      where . . . the alien has entered a plea of guilty or nolo contendere” and “the judge
      has ordered some form of punishment, penalty, or restraint on the alien’s liberty to
      be imposed”); State v. Guerrero, No. PD-1258-12, 2013 WL 2419595, at *6 (Tex.
      Crim. App. June 5, 2013) (citing Moosa v. INS, 171 F.3d 994, 1005–06 (5th
      Cir.1999)) (stating that appellee’s guilty plea and completed term of deferred-
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against him based on that conviction. See 8 U.S.C. § 1227(a)(B) (“Any alien who

. . . has been convicted of a violation of . . . any law or regulation of a State . . .

relating to a controlled substance . . . is deportable.”). In January 2003, Candelas

was ordered removed from the United States to Mexico; the Board of Immigration

Appeals affirmed the order of removal.3

       After Padilla, Candelas filed his petition for writ of habeas corpus. He

contended that his guilty plea was involuntary, asserting that Padilla applied

retroactively and that his trial counsel was ineffective because he did not

specifically advise Candelas on the immigration consequences of his guilty plea.

According to Candelas, the general admonitions about adverse immigration

consequences in the plea documents were insufficient. Candelas further asserted

that if he had been advised that his guilty plea would result in automatic removal

and denial of citizenship, he would not have entered the plea and would have gone

to trial.

       Candelas attached the affidavit of Leo Torres, his trial counsel, in support of

his petition. In his affidavit, Torres stated that it was not his practice in 1996 to

consult with non-citizen clients in state court criminal matters on the immigration

consequences of a guilty plea because the consequences were not as harsh then,

       adjudication community supervision was conviction for federal immigration
       purposes law purposes).
3
       According to Candelas’s counsel, the order of removal has not been executed.
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and he did not independently recall discussing immigration matters with Candelas.

Torres further stated that he explained to Candelas the admonitions that the trial

judge would give before he entered his plea. According to Torres, an independent

warning about immigration consequences was unnecessary because Candelas’s

plea documents listed the consequences, and he assumed the conviction would not

have a negative consequence because Candelas was not going to serve jail time.

Candelas initialed and signed the “Defendant’s Affidavit of Admonitions, Waiver,

Judicial Confession, Statements, Plea, Probation and Appeal-Felony Less Than

Capital,” which stated that a guilty plea “may result in deportation, the exclusion

from admission to this country, or the denial of naturalization under federal law[.]”

Torres stated in his affidavit that, based on his review of that document, he

discussed its contents with Candelas on the day judgment was entered.

      At the November 2012 habeas hearing, Candelas’s counsel and the State

presented argument. Candelas was present but did not testify. The trial court signed

its order denying Candelas habeas relief and made findings of fact, including:

      2) [Candelas] was warned in writing prior to accepting his plea of
      guilty that it “may result in deportation, the exclusion from admission
      to this country, or the denial of naturalization under federal law.”

      3) [Candelas] was warned orally by the Judge prior to accepting his
      plea of guilty that it “might be used against you or could be used
      against you by the immigration and naturalization service,” which
      “could try to deport you, deny petition for naturalization, or exclude
      you from the lawful entry into this country.”

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                                               ***

      5) At the time of [Candelas’s] plea, federal law allowed, but did not
      mandate removal of aliens convicted of possession of cocaine. . . .
      Therefore, under Padilla, trial counsel in the instant case was only
      required to give [Candelas] a general warning that his conviction
      might result in deportation.

      6) . . . Padilla should not be applied retroactively.

      7) [Candelas] has been ordered removed to Mexico by a Federal Court
      as a result of his conviction in the above cause.

      8) Trial counsel was not ineffective in failing to properly warn
      [Candelas] regarding deportation.

      9) [Candelas] is not a United States citizen; he is a citizen of Mexico;
      and he has not been “admitted or paroled” into this country. He has
      neither alleged nor shown an independent basis for being in this
      country. He has also failed to show that even without this conviction
      he could stay or be admitted into the country. As such he has failed to
      show prejudice.

      10) [Candelas] has failed to sufficiently show that he would not have
      accepted the plea, if he had known of the potential immigration
      consequences. He has failed to show prejudice on this basis also.

      This appeal followed. After Candelas filed his notice of appeal, the United

States Supreme Court held that Padilla did not apply retroactively to convictions

final before that decision. See Chaidez v. United States, 133 S. Ct. 1103, 1107

(2013); see also Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App.

2013) (adopting Chaidez reasoning as matter of state law).




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                           Ineffective Assistance of Counsel

A.       Standard of review

         We review a trial court’s denial of habeas corpus relief for an abuse of

discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011); Ex

parte Wheeler, 203 S.W.3d 317, 326 (Tex. Crim. App. 2006); Ex parte Necessary,

333 S.W.3d 782, 787 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In

conducting our review, we view the facts in the light most favorable to the trial

court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We

review questions of law de novo. Ex parte Necessary, 333 S.W.3d at 787. Candelas

had the burden to prove his claims for habeas relief by a preponderance of the

evidence. See Ex parte Peterson, 117 S.W.3d 804, 818 (Tex. Crim. App. 2003);

State v. Webb, 244 S.W.3d 543, 547 (Tex. App.—Houston [1st Dist.] 2007, no

pet.).

B.       Under controlling law, no basis exists to establish that the trial court
         abused its discretion

         Candelas contends that his trial counsel’s representation was constitutionally

deficient because he did not specifically advise Candelas that he would be

ineligible to adjust his residency status and would be deported for accepting a

suspended sentence with community supervision. Acknowledging that Padilla

does not apply retroactively, Candelas urges us to make “an independent



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determination that defendants like Candelas deserve the same protections as Mr.

Padilla” and conclude that his plea was involuntary.

      In Padilla, the Supreme Court held that the Sixth Amendment requires a

criminal defendant’s attorney to provide advice about the risk of deportation

arising from a guilty plea. 559 U.S. 356, 130 S. Ct. at 1486. The Court held that

“longstanding Sixth Amendment precedents, the seriousness of deportation as a

consequence of a criminal plea, and the concomitant impact of deportation on

families living lawfully in this country” demanded that counsel “inform [his] client

whether his plea carries a risk of deportation.” Id. at 1486. When the deportation

consequence is “truly clear,” counsel’s duty is to warn a defendant that he would

be deported. Id. at 1483. When the consequences are “not succinct and

straightforward,” counsel “need do no more than advise a noncitizen client that

pending criminal charges may carry a risk of adverse immigration consequences.”

Id.

      Nearly three years later, the Supreme Court addressed the issue of Padilla’s

retroactive application and had to decide whether Padilla announced a “new rule”

because “[o]nly when [the Supreme Court] appl[ies] a settled ruled may a person

avail herself of the decision on collateral review.” Chaidez, 133 S. Ct. at 1107. The

Court rejected the argument that Padilla applied the settled law of ineffective

assistance of counsel. Id. at 1108–09 (referencing well known standard in

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Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)). The Court held

that Padilla announced a new rule of constitutional criminal procedure and, thus,

did not apply retroactively to cases already final. Chaidez, 133 S. Ct. at 1113; see

Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075 (1989) (“Unless they fall

within an exception to the general rule, new constitutional rules of criminal

procedure will not be applicable to those cases which have become final before the

new rules are announced.”).

      Shortly after Chaidez, the Court of Criminal Appeals adopted Chaidez’s

reasoning: “We adhere to the retroactivity analysis in Chaidez and its holding that

Padilla does not apply retroactively.” Ex parte De Los Reyes, 392 S.W.3d at 679.

The Court recognized that it “could accord retroactive effect to Padilla as a matter

of state habeas law” but “decline[d] to do so.” Id. The Court held that the

applicant, whose conviction was final before Padilla, could not rely on it to argue

that he was denied ineffective assistance of counsel. Id.

      As an intermediate court of appeals, we are bound to follow De Los Reyes.

See Ervin v. State, 331 S.W.3d 49, 53 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d) (citing Purchase v. State, 84 S.W.3d 696, 701 (Tex. App.—Houston [1st

Dist.] 2002, pet. ref’d)); see TEX. CONST. art. V, § 5(a). And, this Court has held

that, because Padilla announced a “new rule,” it does not apply retroactively. See

Ibarra v. State, No. 01-12-00292-CR, 2013 WL 1163967, at *2 (Tex. App.—

                                          8
Houston [1st Dist.] Mar. 21, 2013, no pet. h.) (concluding that appellant who was

convicted twelve years before Padilla could not rely on it on collateral review and

affirming denial of habeas relief). Because Candelas’s conviction became final

before Padilla was decided, he may not avail himself of the decision on collateral

review. Id.

      Under applicable pre-Padilla law, “while the Sixth Amendment assures an

accused of effective assistance of counsel in criminal prosecutions, [it] does not

extend to ‘collateral’ aspects of the prosecution.” Ex parte Morrow, 952 S.W.2d

530, 536 (Tex. Crim. App. 1997). Immigration consequences of a guilty plea were

considered a collateral matter and did not support an ineffective assistance of

counsel claim. See State v. Jimenez, 987 S.W.2d 886, 888–89 (Tex. Crim. App.

1999) (“That a guilty plea may result in deportation is generally considered a

collateral consequence.”); see Ex parte Luna, No. 14-11-01063-CR, 2013 WL

1197777, at *4 (Tex. App.—Houston [14th Dist.] Mar. 26, 2013, no pet.)

(“Immigration consequences of a guilty plea are considered collateral; therefore,

[applicant’s] plea would not be rendered involuntary under the United States or

Texas Constitutions even if his attorney was deficient in informing him of the

consequences.”).

      Candelas was convicted in 1996, nearly fifteen years before Padilla was

decided. Because Padilla announced a “new rule,” it is not retroactive and

                                        9
Candelas may not rely on the decision to argue that his counsel was ineffective.

Before Padilla, immigration consequences of a guilty plea were considered a

collateral matter that did not support an ineffective assistance of counsel claim.

Candelas does not argue that his counsel was ineffective on any basis other than a

failure to advise Candelas properly on the immigration consequences of his plea.

He presents no basis for an independent determination that the trial court abused its

discretion in denying his petition for writ of habeas corpus. We conclude that the

trial court did not abuse its discretion and overrule Candelas’s issue.

                                     Conclusion

      Having overruled Candelas’s single issue on appeal, we affirm the trial

court’s judgment.




                                                Harvey Brown
                                                Justice

Panel consists of Justices Jennings, Brown, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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