Opinion issued March 21, 2013.




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                            NO. 01-12-00292-CR
                         ———————————
                        JOSUE IBARRA, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 174th District Court
                          Harris County, Texas
                      Trial Court Case No. 1332441



                                 OPINION

     Appellant, Josue Ibarra, appeals from the trial court’s order denying him

habeas corpus relief pursuant to Article 11.072 of the Texas Code of Criminal

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (Vernon 2005)
(providing for appeal in felony or misdemeanor case in which applicant seeks

relief from order or judgment of conviction ordering community supervision).

Appellant contends that the habeas court erred in finding that trial counsel had

provided him with effective assistance of counsel, despite counsel’s alleged failure

to discuss clear immigration consequences of appellant’s guilty plea, in violation

of Padilla v. Kentucky, 559 U.S. 356, ___, 130 S. Ct. 1473 (2010). We affirm.

                                   BACKGROUND

      In 1998, appellant, a legal permanent resident at the time, was charged with

sexual assault.   On March 16, 1998, he pleaded guilty to a lesser charge of

misdemeanor assault, and the trial court assessed punishment at one year

confinement in jail, but suspended the sentence and placed appellant on

community supervision for two years.             Appellant was deported in 1998, 1 but

almost immediately returned to the United States illegally.

      In September 2011, appellant was arrested again and is currently being

detained by federal immigration authorities. On January 6, 2012, appellant filed a
1
      “Any alien who is convicted of an aggravated felony at any time after admission is
      deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). An “aggravated felony” is defined as
      “murder, rape, or sexual abuse of a minor” or “a crime of violence (as defined in [
      18 U.S.C. § 16] . . .) for which the term of imprisonment [is] at least one year.” 8
      U.S.C. § 1101(a)(43)(A), (F). Section 16 defines “crime of violence” in pertinent
      part as an offense “that, by its nature, involves a substantial risk that physical force
      against the person or property of another may be used in the course of committing
      the offense.” 18 U.S.C. § 16(b).


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petition for writ of habeas corpus in the trial court, alleging that he received

ineffective assistance of counsel in the trial court because trial counsel did not

warn him of the immigration consequences of his plea. At a hearing on March 15,

2012, appellant testified that his trial counsel did not tell him about the

immigration consequences associated with his guilty plea. Specifically, appellant

alleged that his counsel, M. Barerra, told him that “it was only a misdemeanor . . .

as though I had been in a traffic citation.” Appellant further testified that, had he

known the immigration consequences of his plea, he would have insisted on going

to trial. Barerra filed an affidavit in which he stated, “I do not recall if I advised or

did not advise Mr. Ibarra of the consequences regarding his immigration status if

he plead guilty.” After the hearing, the trial court denied appellant habeas relief.

This appeal followed.

               RETROACTIVITY OF PADILLA V. KENTUCKY

      In Padilla v. Kentucky, the Supreme Court held that the Sixth Amendment

requires an attorney for a criminal defendant to provide advice about the risk of

deportation arising from a guilty plea. 559 U.S. ___, 130 S. Ct. at 1473. In his

petition for writ of habeas corpus, appellant argued that he received ineffective

assistance because his trial counsel did not comply with Padilla. On appeal,

appellant contends that the trial court erred in overruling his ineffective assistance

claim, which was based on trial counsel’s failure to comply with Padilla. The

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State responds that appellant was convicted almost 15 years ago, and Padilla

should not be applied retroactively.

      This Court has previously held that the ruling in Padilla applies

retroactively. See Enyong v. State, 369 S.W.3d 593, 600 (Tex. App.—Houston

[1st. Dist.] 2012, no pet.); Ex parte Tanklevskaya, 361 S.W.3d 86, 95 (Tex. App.—

Houston [1st Dist.] 2011, pet. filed). However, since Enyong and Tanklevskaya

were decided, the United States Supreme Court has addressed the issue and held

that Padilla does not apply retroactively. See Chaidez v. United States, No. 11-

820, 568 U.S. ___, slip op. at * 1 (February 20, 2013).

      In Chaidez, the petitioner, a lawful permanent resident, pleaded guilty to two

counts of mail fraud, and her conviction became final in 2004.                Id.    She

subsequently filed a writ of coram nobis, 2 arguing that her trial counsel’s failure to

advise her of the immigration consequences of pleading guilty constituted

ineffective assistance of counsel. Id. at *2. The Supreme Court, confronted with

the issue of whether Padilla could be applied retroactively, had to decide whether

Padilla announced a “new rule” because “[o]nly when [the Supreme Court]

appl[ies] a settled rule may a person avail herself of the decision on collateral

review.” Id. at *4.


2
      A writ of coram nobis provides a way to collaterally attack a criminal conviction
      for a person who is no longer “in custody” and thus unable to seek relief by a writ
      of habeas corpus. Id. at *2.
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      The Court rejected the argument that Padilla merely applied the settled law

of ineffective assistance of counsel as set forth in Strickland v. Washington, 46

U.S. 668 (1984). Id. at * 5-6. In so holding, the Court stated as follows:

      But Padilla did something more [than apply settled law]. Before
      deciding if failing to provide such advice “fell below an objective
      standard of reasonableness,” Padilla considered a threshold question:
      Was advice about deportation “categorically removed” from the scope
      of the Sixth Amendment right to counsel because it involved only a
      “collateral consequence” of a conviction, rather than a component of
      the criminal sentence?

Id.   By first rejecting a categorical distinction between direct and collateral

consequences in relation to the right to counsel, the court “resolved the threshold

question before[it] by breaching the previously chink-free wall between direct and

collateral consequences” before then applying the well-settled law of Strickland v.

Virginia.   Id. at 9.   “If that does not count as ‘break[ing] new ground’ or

‘impos[ing] a new obligation, we are hard pressed to know what would.” Id. at

*9–10. Because “Padilla’s holding that the failure to advise about a non-criminal

consequence could violate the Sixth Amendment would not have been—in fact,

was not—‘apparent to all reasonable jurists’” prior to Padilla, the Court concluded

that Padilla announced a “new rule.” Id. at * 10–11. As such, “defendants whose

convictions became final prior to Padilla therefore cannot benefit from its

holding.” Id. at *15.




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      Here, appellant was convicted in 1998—twelve years before Padilla was

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

appellant may not now avail himself of the decision on collateral review.

                                  CONCLUSION

      In light of our holding that appellant may not raise a Padilla issue by way of

a collateral attack on the judgment, we need not address his issue regarding the

propriety of the trial court’s findings of fact and conclusions of law, and decline to

do so. We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Publish. TEX. R. APP. P. 47.2(b).




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