                     IN THE COURT OF APPEALS OF IOWA

                                    No. 18-2021
                               Filed October 9, 2019


FRANCISCO DE LA ROSA GARCIA,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


        Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,

Judge.



        Francisco De La Rosa Garcia appeals the denial of his application for

postconviction relief. AFFIRMED.




        Frank Santiago of Santiago Law Office, Iowa City, for appellant.

        Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee State.



        Considered by Potterfield, P.J., and May and Greer, JJ. Tabor, J., takes no

part.
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GREER, Judge.

       Francisco De La Rosa Garcia appeals the district court’s denial of his

application for postconviction relief (PCR), arguing that his trial counsel failed to

inform him of the immigration consequences of his guilty plea. We conclude

Garcia’s PCR application is time-barred and affirm the district court ruling.

       I. Background Facts and Proceedings.

       On May 30, 2008, Garcia, an undocumented immigrant from Mexico,

pleaded guilty to one count of forgery and one count of identity theft in violation of

Iowa Code sections 715A.2 and .8 (2007). At all times relevant here, Garcia was

represented by counsel and assisted by a Spanish-language interpreter.

       During the plea hearing, Garcia’s attorney explained the conversation she

and Garcia had about the immigration consequences of his guilty plea,

       I’ve advised him, and he’s aware, that the date he was in custody
       that—I think it’s called ICE now—immigration placed a hold on him.1
       But I think he’s pretty certain that he will be deported. We don’t know
       for sure, but I think he believes that he will be deported upon
       completion of this case and his release from Scott County Jail.

       Based upon this discussion, the judge asked Garcia if he understood that

his plea could affect his immigration status. In response, Garcia confirmed that he

understood and he was satisfied with the advice from his attorney. The court

accepted his plea. Consequently, the court later sentenced Garcia to a suspended

prison sentence and placed him on probation for two years.2




1
  There are documents in the criminal case record suggesting an ICE hold had been in
place since at least April 2008.
2
  Garcia successfully completed probation and discharged his sentence in January 2010.
                                              3


          After the plea and sentencing process, Garcia did not appeal his conviction

or sentence. Shortly after the plea, Immigration and Customs Enforcement (ICE)

took Garcia into custody to begin removal proceedings. He was in jail for one week

until he posted bond. Given the fear of removal from the country, Garcia then hired

an immigration attorney and contested his deportation. That challenge to removal

failed and an immigration judge ordered his deportation from the United States.

He appealed this deportation decision.3

          In February 2018, almost ten years after his guilty plea, Garcia applied for

postconviction relief asking the court to vacate his plea and sentence. Relying on

a recent Iowa Supreme Court case, Morales Diaz v. State, 896 N.W.2d 723 (Iowa

2017), Garcia argued that his attorney was ineffective by failing to explain the

immigration consequences of his guilty plea before he entered it. According to

Garcia, had he known the immigration consequences, he would not have pleaded

guilty.

          In the ruling on Garcia’s application, the district court discussed the three-

year time-bar for PCR applications, but it did not conclude that Garcia’s application

fell outside the statute of limitations. Instead, the district court determined that any

new law created in Morales Diaz did not apply retroactively and that Garcia failed

to prove his trial counsel’s ineffectiveness as his counsel “provided him more

information than was even required at the time.” The court denied Garcia’s PCR

application. Garcia appeals.




3
    At the time of the PCR trial in October 2018, the deportation order was on appeal.
                                              4


       II. Standard of Review.

       We generally review the district court’s denial of a PCR application for

correction of errors at law. Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012). If

the applicant raises a constitutional issue, however, our review is de novo. Id.

       III. Analysis.

       The State argues that Garcia’s PCR application is time-barred. Garcia

concedes that he did not file his application within three years after his conviction

became final but he claims his application falls under an exception to the statutory

time-bar.

       Iowa Code section 822.3 establishes the statutory time-bar for PCR

applications. A PCR application

       must be filed within three years from the date the conviction or
       decision is final or, in the event of an appeal, from the date the writ
       of procedendo is issued. However, this limitation does not apply to
       a ground of fact or law that could not have been raised within the
       applicable time period.

Iowa Code § 822.3.

       Fatal to his appeal, Garcia does not explain his late PCR application. In

short, Garcia realized the immigration consequences at the time of—or shortly

after—his guilty plea.4 At the plea hearing, his attorney discussed the immigration

hold ICE had placed on Garcia. Likewise, ICE detained Garcia shortly after his

plea, removal proceedings began, and Garcia began working with an immigration

attorney to fight his deportation. See, e.g., Escobar v. State, No. 11-1707, 2012




4
  The record supports Garcia’s knowledge of problems with his immigration status prior to
the expiration of the appeal period, prior to the expiration of his sentence, and prior to the
three-year statute of limitations period.
                                        5


WL 3860457, at *2 (Iowa Ct. App. Sept. 6, 2012) (“[T]he deportation consequences

were in existence at the time of [the applicant’s] plea and sentencing, and could

have been addressed in a postconviction proceeding within the full three-year

period.”).

       Nevertheless, Garcia argues his 2018 application is timely because he filed

it within three years after the Iowa Supreme Court’s 2017 opinion in Morales Diaz.

896 N.W.2d at 732. Garcia argues that the ruling in Morales Diaz constitutes “a

ground of fact or law that could not have been raised within the applicable time

period.” Iowa Code § 822.3. He asks us to apply Morales Diaz retroactively to his

case and vacate his guilty plea.

       However, in 2010, during the three-year period after Garcia’s 2008

conviction became final, the United States Supreme Court decided Padilla v.

Kentucky, 559 U.S. 356 (2010). In Padilla, the Supreme Court held that a criminal

defendant has a Sixth Amendment right to advice from counsel on the immigration

consequences of a criminal conviction before pleading guilty. 559 U.S. at 367–68.

Likewise, the Supreme Court later decided that Padilla announced a new rule that

did not apply retroactively, so “defendants whose convictions became final prior to

Padilla therefore cannot benefit from its holding.” Chaidez v. United States, 568

U.S. 342, 344 (2013).

       Given the Supreme Court’s ruling in Padilla, the Iowa Supreme Court in

Morales Diaz held “counsel has an obligation to inform his or her client of all the

adverse immigration consequences that competent counsel would uncover.” 896

N.W.2d at 732. Morales Diaz requires that “the specific statutory consequences
                                          6


need to be explained with reasonable clarity so a full and measured decision to

plead guilty can be made.” Id.

       We have concluded Morales Diaz “is not a change in law but rather an

application of the existing law found in Padilla.” Ramirez v. State, No. 16-1893,

2018 WL 2727707, at *5 (Iowa Ct. App. June 6, 2018); accord Zacarias v. State,

No. 18-0686, 2019 WL 3714815, at *2 (Iowa Ct. App. Aug. 7, 2019) (finding that

because Morales Diaz merely applied existing law, it provided the appropriate

standard for evaluating a case that became final after Padilla but before Morales

Diaz). Because Morales Diaz applied existing law, it does not qualify as a new-

ground-of-law exception to the three-year time-bar of Iowa Code section 822.3.

See, e.g., Perez, 816 N.W.2d at 360–61 (noting that if Padilla had merely clarified

existing law, it would apply retroactively but the PCR applicant “should have raised

his claim regarding failure to advise of immigration consequences within the three-

year limitations period of section 822.3”). As a result, Garcia’s postconviction

application is time-barred.

       IV. Disposition.

       For the above stated reasons, we affirm the district court’s denial of Garcia’s

application for postconviction relief.

       AFFIRMED.

       Potterfield, P.J., concurs; May, J., concurs specially.
                                          7


MAY, Judge (concurring specially)

       I agree the district court properly denied relief. I write separately to suggest

the district court was also correct in concluding Morales Diaz v. State, 896 N.W.2d

723 (Iowa 2017) created a “new rule” that should not be applied retroactively.

       Like the district court, I think Teague v. Lange, 489 U.S. 288, 310 (1989),

provides useful guidance for deciding whether criminal-procedure decisions like

Padilla v. Kentucky, 559 U.S. 356 (2010) and Morales Diaz apply retroactively.

See also Brewer v. State, 444 N.W.2d 77, 81 (Iowa 1989) (adopting Teague’s

holding). “Teague makes the retroactivity of . . . criminal procedure decisions turn

on whether they are novel.” Chaidez v. United States, 568 U.S. 342, 347 (2013).

When a case announces a “new rule,” a postconviction-relief (PCR) applicant

usually cannot “benefit from the decision.” Id.; see Nguyen v. State, No. 11-0549,

2013 WL 1170326, at *1–2 (Iowa 2013) (applying Chaidez in an Iowa PCR).

       But what is a “new rule”? Under Teague, “a case announces a new rule

when it breaks new ground or imposes a new obligation on the States or the

Federal Government.” 489 U.S. at 301. “To put it differently, a case announces a

new rule if the result was not dictated by precedent existing at the time the

defendant’s conviction became final.” Id. “And a holding is not so dictated,” the

Supreme Court later explained, “unless it would have been ‘apparent to all

reasonable jurists.’” Chaidez, 568 U.S. at 347 (quoting Lambrix v. Singletary, 520

U.S. 518, 527–28 (1997)).

       So, the question is this: In light of Padilla, would the requirements imposed

by Morales Diaz have been “apparent to all reasonable jurists”? Like the district

court, I believe the answer is “no.”
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       Padilla focused on “deportation,” a word that appears over fifty times in the

majority opinion alone. 559 U.S. at 369. The Padilla court emphasized the

“unique” nature of deportation, a severe “penalty” equivalent to “banishment or

exile.” Id. at 365, 373. At the same time, Padilla recognized “[i]mmigration law

can be complex, and it is a legal specialty of its own.” Id. at 369. So, the court

imposed only limited immigration responsibilities on criminal defense counsel.

Specifically, under Padilla, if a review of federal statutes makes it “truly clear” that

a plea will result in “deportation,” counsel must clearly advise the client about that

deportation consequence.         Id.   But when “the law is not succinct and

straightforward,”—when it is not clear whether the plea will subject the client to

deportation—“a criminal defense attorney need do no more than advise a

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

immigration consequences.” Id. That is all Padilla required. Id.; Lopez-Penaloza

v. State, 804 N.W.2d 537, 546 (Iowa Ct. App. 2011) (“Because the statutory

provision governing the deportation consequences of Lopez–Penaloza’s guilty

plea was not ‘succinct, clear, and explicit,’ we conclude defense counsel owed her

the more limited duty of advising her ‘that pending criminal charges may carry a

risk of adverse immigration consequences.’ . . . No more was required under

Padilla.” (Citation omitted)).

       Morales Diaz requires much more. Morales Diaz requires criminal “defense

counsel [to] embrace his or her new role as a ‘crimmigration’ attorney.” 896

N.W.2d at 728. Under Morales Diaz, it is no longer enough for defense counsel to

advise about the deportation consequence alone.           Id. at 732. In addition to

addressing deportation, or “removal,” Morales Diaz requires counsel to also advise
                                         9


clients about “all” other “potential adverse” immigration “consequences” of the

plea. See id. Those potential consequences include: “removal, exclusion, bars to

relief from removal, immigration detention, denial of citizenship, and adverse

consequences to the client’s immediate family.” Id. (citation omitted).

      I believe these new requirements broke “new ground.” Compare id., with

Padilla, 559 U.S. at 369.     They went well beyond Padilla’s requirement of

deportation-related advice. They were not “dictated” by Padilla. Morales Diaz, 896

N.W.2d at 732 (stating “[w]e do not believe clients expect their counsel to only

advise them that the chances of deportation are certain or possible,” which was

Padilla’s sole mandate). They would not have been “apparent to all reasonable

jurists” who had read Padilla. They were not “apparent” to the concurring justices

in Morales Diaz. Nor were they “apparent” to several other appellate courts who

had “declined to expand Padilla’s scope beyond advice on deportation.” Id. at 735

(Mansfield, J., specially concurring). For example, as the Morales Diaz majority

acknowledged, appellate courts in Florida and Tennessee had read Padilla “to

impose a duty on counsel only to warn of the risk of deportation, not of other

consequences such as foreclosure of cancellation of removal or a permanent bar

on reentry.” Id. at 730 (emphasis added).

      So I believe Morales Diaz should not be applied retroactively.        But I

acknowledge that, in two prior cases, our court has concluded otherwise. See

Zacarias v. State, No. 18-0686, 2019 WL 3714815, at *2 (Iowa Ct. App. Aug. 7,

2019) (holding Morales Diaz was “the appropriate standard for evaluating”

attorney’s performance concerning pre-Morales Diaz plea); Ramirez v. State, No.

16-1893, 2018 WL 2727707, at *5 (Iowa Ct. App. June 6, 2018) (rejecting State’s
                                       10

argument that Padilla—rather than Morales Diaz—controlled analysis of counsel’s

performance in a 2012 pre-Morales Diaz plea; holding Morales Diaz “is not a

change in law but rather an application of the existing law found in Padilla”). I

respectfully suggest we should consider a different approach.
