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.
2
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.
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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.”
8
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.