                                                                           FILED BY CLERK
                                                                               JUL 28 2011
                                                                               COURT OF APPEALS
                              IN THE COURT OF APPEALS                            DIVISION TWO
                                  STATE OF ARIZONA
                                    DIVISION TWO


THE STATE OF ARIZONA,                         )           2 CA-CR 2011-0136-PR
                                              )           DEPARTMENT A
                              Respondent,     )
                                              )           OPINION
                                              )
                     v.                       )
                                              )
GERARDO POBLETE,                              )
                                              )
                                Petitioner.   )
                                              )


  PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PINAL COUNTY

                              Cause No. S1100CR200500234

                     Honorable Robert C. Brown, Judge Pro Tempore

                          REVIEW GRANTED; RELIEF DENIED


Law Offices of Richard La Paglia
 By Mary Z. La Paglia                                                                    Eloy
                                                                     Attorneys for Petitioner


B R A M M E R, Judge.


¶1            Petitioner Gerardo Poblete seeks review of the trial court‟s order denying

his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. “We

will not disturb a trial court‟s ruling on a petition for post-conviction relief absent a clear
abuse of discretion.” State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App.

2007). Poblete has not sustained his burden of establishing such abuse here.

¶2            Pursuant to a plea agreement, Poblete was convicted of one count of

attempted possession of a narcotic drug for sale. The trial court suspended the imposition

of sentence and placed him on probation for a period of four years, ordering that he serve

sixty days in the county jail as a condition of probation.         Poblete‟s probation was

terminated early, in September 2008. Poblete, who is a non-citizen, legal resident of the

United States, later consulted an immigration attorney in 2009, and the attorney informed

him that, as a result of his conviction, he was subject to deportation under 8 U.S.C.A.

§ 1227.

¶3            In December 2010, Poblete initiated Rule 32 proceedings, asserting his

failure to file timely his notice of post-conviction relief had not been his fault, but rather

“was attributable to the ineffectiveness of his prior criminal counsel” in not informing

him of the immigration consequences of his guilty plea. And, he maintained, he was

entitled to relief based on the Supreme Court‟s decision in Padilla v. Kentucky, ___ U.S.

___, 130 S. Ct. 1473 (2010), which he characterized as a significant change in the law for

purposes of Rule 32.1(g). Poblete averred that neither the trial court1 nor his attorney had



       1
      On review Poblete concedes that the trial court did warn him of the possible
immigration consequences of a guilty plea. Indeed, the court advised Poblete:

                     I also have to advise you by rule that if you are not a
              citizen of the United States, pleading guilty or no contest to a
              crime may affect your immigration status.

                                              2
advised him “of the immigration consequences that would result from [his] plea of

guilty” and that he “would not have pled guilty” had he known of those consequences.

The court denied relief, concluding that because it had advised Poblete of the possible

immigration consequences of his plea he was not entitled to relief under Rule 32.2(f) and

that Padilla was not applicable retroactively and did not constitute a significant change in

the law.

¶4            In his petition for review, Poblete again maintains he could not have sought

post-conviction relief timely because “he did not become aware until . . . later that this

plea would result in mandatory removal from the United States” and argues Padilla was a

significant change in the law entitling him to relief. He contends the trial court erred in

concluding otherwise.

¶5            As the trial court correctly pointed out, Poblete‟s petition was untimely.

Therefore he is entitled to relief only on certain grounds, among them that he was

“without fault” for the delay in filing his notice, and that “[t]here has been a significant

change in the law that if determined to apply to defendant‟s case would probably overturn

the defendant‟s conviction or sentence.” Ariz. R. Crim. P. 32.1(f), (g) and 32.4(a).




                     Admitting guilt may result in your deportation even if
              the charge is later dismissed. Your plea or admission of guilt
              could result in your deportation or removal. Could prevent
              you from ever being able to get legal status in the United
              States or could prevent you from becoming a United States
              citizen.

The court then asked Poblete if he understood “these potential consequences,” and
Poblete responded, “Yes.”
                                             3
¶6             Poblete first claims he is entitled to relief under Rule 32.1(f) because he

“was not in a position to seek post-conviction relief within [ninety] days of his conviction

because he did not become aware until a few years later that this plea would result in

mandatory removal from the United States.” Rule 32.1(f) provides that a petitioner may

request the right to file a delayed notice of post-conviction relief if his failure to file

timely was “without fault on the [petitioner‟s] part.” Relief should be granted under this

rule if the trial court failed to advise the defendant of his right to seek of-right post-

conviction relief or if the defendant intended to seek post-conviction relief in an of-right

proceeding and had believed mistakenly his counsel had filed a timely notice or request.

See Ariz. R. Crim. P. 32.1(f) 2007 cmt.

¶7             Poblete is not arguing he was unaware of his right to petition for post-

conviction relief or of the time within which a notice of post-conviction relief must be

filed or that he intended to challenge the court‟s decision but his attorney or someone else

interfered with his timely filing of a notice as contemplated by Rule 32.1(f). See Ariz. R.

Crim. P. 32.1(f) 2007 cmt. Indeed, the trial court informed Poblete that he had a right to

seek post-conviction relief. Rather, his claim is essentially that, based on information

that later came to light, he regretted having failed to challenge his conviction. Such a

claim is not cognizable under Rule 32.1(f). See Ariz. R. Crim. P. 32.1(f) 2007 cmt.; cf.

State v. Montez, 102 Ariz. 444, 447, 432 P.2d 456, 459 (1967) (“[A] convicted felon may

acquiesce in the advice and decision of counsel not to appeal, so as to make that decision

his. We will not recognize the claim that the decision of counsel in which he acquiesced

deprived him of the right to counsel . . . so as . . . to permit it to be asserted as the basis of

                                                4
good cause for a delayed appeal.”); David B. Wexler & Andrew Silverman, Representing

Prison Inmates: A Primer on an Emerging Dimension of Poverty Law Practice, 11 Ariz.

L. Rev. 385, 397-400 (1969) (“Plainly . . . a defendant‟s decision not to appeal . . . will

preclude the possibility of a subsequent delayed appeal.”).

¶8            We must then consider whether Poblete is entitled to relief under Rule

32.1(g), which provides relief when there has been a “significant change in the law.”

“Rule 32 does not define „a significant change in the law.‟ But plainly a „change in the

law‟ requires some transformative event, a „clear break from the past.‟” State v. Shrum,

220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009), quoting State v. Slemmer, 170 Ariz.

174, 182, 823 P.2d 41, 49 (1991).

¶9            In Padilla, the Supreme Court concluded “Padilla‟s counsel had an

obligation to advise him that the offense to which he was pleading guilty would result in

his removal from this country.” ___ U.S. at ___, 130 S. Ct. at 1478. Because counsel

had not so advised Padilla, the Court ruled he had established deficient performance

under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and

remanded the matter to the state court to determine whether Padilla could establish he had

been prejudiced by counsel‟s failure to advise him of the immigration consequences of

his guilty plea. Padilla, ___ U.S. at ___, 130 S. Ct. at 1483-84. Thus, under Padilla,

failure to advise a client of the immigration consequences of a guilty plea constitutes

deficient performance under Strickland. Id. at ___, 130 S. Ct. at 1483.

¶10           We agree with Poblete that Padilla constitutes a significant change in the

law. Before Padilla, the law in Arizona provided that an attorney‟s failure to advise a

                                            5
defendant of the immigration consequences of his or her plea was not ineffective

assistance of counsel because such advice related to a “collateral” matter. See State v.

Rosas, 183 Ariz. 421, 423, 904 P.2d 1245, 1247 (App. 1995). The majority of other

states and every federal circuit that had considered the issue pre-Padilla followed a

similar rule. See People v. Kabre, 905 N.Y.S.2d 887, 893-94 (Crim. Ct. 2010); see also

Miller v. State, 11 A.3d 340, 349-51 (Md. Ct. Spec. App. 2010). Because the Supreme

Court rejected this approach in Padilla, we conclude Padilla represents a significant

change in the law.

¶11           The question remains, however, whether this significant change in the law

applies to Poblete. See Ariz. R. Crim. P. 32.1(g) (relief based on significant change in the

law “that if determined to apply to defendant‟s case would probably overturn the

defendant‟s conviction or sentence.”)     To answer that question, we must determine

whether Padilla is applicable retroactively to cases, like Poblete‟s, that were final at the

time it was decided. State v. Towery, 204 Ariz. 386, ¶ 8, 64 P.3d 828, 831-32 (2003) (“A

defendant‟s case becomes final when „a judgment of conviction has been rendered, the

availability of appeal exhausted, and the time for a petition for certiorari elapsed or a

petition for certiorari finally denied.‟”), quoting Griffith v. Kentucky, 479 U.S. 314, 321

n.6 (1987).

¶12           New constitutional rules generally are not applicable to cases already final

when the rule is announced. See State v. Febles, 210 Ariz. 589, ¶ 8, 115 P.3d 629, 632

(App. 2005); see also Whorton v. Bockting, 549 U.S. 406, 416 (2007) (“[A]n old rule

applies both on direct and collateral review, but a new rule is generally applicable only to

                                             6
cases that are still on direct review.”). A rule clearly is “new” when a court expressly

overturns its own precedent. Saffle v. Parks, 494 U.S. 484, 488 (1990). When, as in

Padilla, the court extends existing law, however, the determination of whether the rule

being announced is new is more complicated. Id.; see also Teague v. Lane, 489 U.S. 288,

301 (1989) (plurality opinion). In Teague, the Supreme Court defined a new rule as a

rule that “breaks new ground,” “imposes a new obligation on the States or the Federal

Government,” or was not “dictated by precedent existing at the time the defendant‟s

conviction became final.” 489 U.S. at 301.

¶13           Poblete argues on review that although Padilla “is new and is a significant

change in the law,” it was “not a new basis for setting aside a conviction,” and was

therefore not a new rule for retroactivity purposes.2 We disagree. We recognize that, as

Poblete suggests, the Padilla Court applied the existing Strickland standard.          But,

although a new rule generally is not created by the application of an established rule, a

new rule may be announced if “the prior decision is applied in a novel setting, thereby

extending the precedent.” Stringer v. Black, 503 U.S. 222, 228 (1992). The “new rule”

principle is meant to “„validate[] reasonable, good-faith interpretations of existing

precedents . . . even though they are shown to be contrary to later decisions.‟” Saffle, 494


       2
         We note, however, in his petition below Poblete asserted Padilla was “new law,”
although apparently in the context of the meaning of “a significant change in the law”
under Rule 32.1(g). He made no separate argument about the retroactive application of
Padilla. Neither, however, did the state; it argued Padilla was “[n]ot new law” because
Rule 17.2(F), Ariz. R. Crim. P., was in effect when Poblete pled guilty and was sentenced
and Padilla “merely confirm[ed] what the State of Arizona had already codified into
statute.”

                                             7
U.S. at 488. The question then is whether a “court considering [a defendant‟s] claim at

the time his conviction became final would have felt compelled by existing precedent to

conclude that the rule . . . was required by the Constitution.” Id.; Teague, 489 U.S. at

301. As discussed above, before Padilla, courts uniformly rejected claims of ineffective

assistance of counsel based on counsel‟s failure to advise the defendant of the

immigration consequences of a guilty plea.

¶14            Indeed, in Padilla, the Court noted that although it never had applied the

“distinction between direct and collateral consequences,” many other courts had. 3 ___

U.S. at ___, 130 S. Ct. at 1481, 1481 n.9. And, in his concurrence in Padilla, Justice

Alito characterized the Court‟s decision as a “dramatic departure from precedent.” Id. at

1488 (Alito, J., concurring). Although “the mere existence of conflicting authority does

not necessarily mean a rule is new,” Williams v. Taylor, 529 U.S. 362, 410 (2008), as to

this issue, significantly more than mere conflicting authority existed in the case law.

Most courts, including those in Arizona, would not have felt compelled to reach the same

conclusion as did the Court in Padilla; instead, they would have been compelled to reach

precisely the opposite conclusion. Thus, Padilla introduced a new rule. See Teague, 489

U.S. at 301.

¶15            Padilla therefore is not applicable to Poblete‟s case unless it falls within

certain narrow exceptions established by Teague. See Febles, 210 Ariz. 589, ¶ 8, 115

       3
        We note, however, that although the “denial of a writ of certiorari imports no
expression of opinion upon the merits of the case,” United States v. Carver, 260 U.S.
482, 490 (1923) (Holmes, J.), the Supreme Court denied certiorari in at least one case that
applied the “collateral consequences” rule. See United States v. Amador-Leal, 276 F.3d
511 (2002), cert. denied, 535 U.S. 1070 (2002).
                                             8
P.3d at 632. “The first exception does not apply because it only relates to new rules that

forbid punishment of certain conduct and rules that prohibit a certain category of

punishment for a class of defendants because of their status offense.” Id. ¶ 14.

¶16           Likewise, we conclude the second Teague exception does not apply. That

exception provides that “watershed rules of criminal procedure that implicate the

fundamental fairness and accuracy of the proceeding” are applicable retroactively. Id.

¶ 15. This exception is extremely narrow and applies “„only to a small core of rules

requiring observance of those procedures that . . . are implicit in the concept of ordered

liberty.‟” Id., quoting Beard v. Banks, 542 U.S. 406, 417 (2004). Such a rule must be

“„central to an accurate determination of innocence or guilt.‟” Id., quoting Beard, 542

U.S. at 417. We cannot say the rule Padilla announced constitutes such a “core” rule.

See State v. Sepulveda, 201 Ariz. 158, ¶ 6, 32 P.3d 1085, 1087 (App. 2001) (noting

“second exception is construed narrowly to facilitate the finality of criminal convictions”

and no new constitutional rule satisfied second exception since Teague decided). “The

Teague watershed exception actually requires two showings. First, „[i]nfringement of the

rule must seriously diminish the likelihood of obtaining an accurate conviction.‟ In

addition, „the rule must alter our understanding of the bedrock procedural elements

essential to the fairness of a proceeding.‟” Towery, 204 Ariz. 386, ¶ 17, 64 P.3d at 833

(citations omitted), quoting Tyler v. Cain, 533 U.S. 656, 665 (2001) (alterations in

Towery). We cannot say a violation of the rule introduced in Padilla would impact the

accuracy of conviction, and therefore it is not a watershed rule.        Thus, although a



                                             9
significant change in the law, we agree with the trial court that Padilla does not apply to

Poblete‟s case. Therefore, although we grant the petition for review, we deny relief.




                                          /s/ J. William Brammer, Jr.
                                          J. WILLIAM BRAMMER, JR., Judge


CONCURRING:



/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge




/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge




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