Opinion issued March 21, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00292-CR
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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.
4
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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Josue Ibarra v. State
Combined Opinion