Ex Parte Enrique P. Gomez

Opinion issued June 11, 2013

In The

Court of Appeals

For The

First District of Texas

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NO. 01-12-00972-CR

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EX PARTE ENRIQUE P. GOMEZ, APPELLANT

On Appeal from the 344th District Court

Chambers County, Texas

Trial Court Case No. 14571A

MEMORANDUM OPINION

Enrique P. Gomez appeals from the trial court’s order denying him habeas

corpus relief pursuant to Article 11.072 of the Texas Code of Criminal Procedure. 1

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See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West 2005) (providing for

appeal in felony or misdemeanor case in which applicant seeks relief from order or

judgment of conviction ordering community supervision).

Gomez contends that the trial court erred in denying his ineffective assistance

claim, despite his trial counsel’s alleged failure to advise him of the immigration

consequences associated with his guilty plea in light of Padilla v. Kentucky, 559

U.S. 356, 130 S. Ct. 1473 (2010). We affirm the trial court’s judgment.

Background

In 2008, Gomez, a legal permanent resident of the United States, pleaded

guilty to aggravated assault with a deadly weapon, a motor vehicle. The trial court

deferred a finding of guilt and placed Gomez on community supervision for a

period of six years. Almost four years later, the Department of Homeland Security,

Immigration and Customs Enforcement began removal proceedings against Gomez

based on his conviction of a crime involving of moral turpitude for which a

sentence of one year or longer may be imposed, within five years after his

admission to the United States. See 8 U.S.C. § 1227(a)(2)(A)(i) (“Any alien who . .

. is convicted of a crime involving moral turpitude committed within five years . . .

after the date of admission, and . . . for which a sentence of one year or longer may

be imposed, is deportable.”). 2 Gomez was released from ICE custody on bond.

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The federal statute does not define “moral turpitude.” See generally 8 U.S.C.

§ 1101 (definitions). A guilty plea and term of deferred adjudication community

supervision constitutes a conviction for federal immigration law purposes. See id.

at § 1101(a)(48) (defining “conviction” to include “if adjudication of guilt has

been withheld, where . . . the alien has entered a plea of guilty or nolo contendere”

and “the judge has ordered some form of punishment, penalty, or restraint on the

alien’s liberty to be imposed”); Moosa v. INS, 171 F.3d 994, 1005–06 (5th

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After receiving notice to appear, Gomez filed his application for writ of

habeas corpus. He contended that he received ineffective assistance of counsel in

the trial court because his lawyer did not give him specific advice on the

immigration consequences of his guilty plea. According to Gomez, his trial counsel

“only informed [him] of the general possible immigration consequences and not

the virtual certainty and presumptively mandatory removability under the

immigration statutes.”

At the habeas hearing, Gomez testified that he asked his trial counsel about

the immigration consequences of a guilty plea. Counsel told him that, if he

satisfied his probation terms, the charges against him would be dropped and that

there would be no immigration problems; however, if he committed a crime during

his probation, there would be immigration consequences. His counsel did not

explain to him that, because he had been a legal permanent resident for less than

five years, he would be deported if he pleaded guilty to the offense. Gomez stated

that, if his trial counsel had explained that consequence, he would not have

accepted the plea agreement.

Gomez’s trial counsel testified at the hearing. She testified that she did not

recall Gomez, but had looked at the transcript of the plea agreement, the agreed

Cir.1999) (explaining that deferred adjudication after plea of guilty under Texas

law is considered conviction for immigration purposes).

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punishment recommendation, and the written plea admonishments. She further

testified that, through an interpreter, she reviewed the written plea admonishments

with Gomez. The admonishments state, “If you are not a U.S. citizen, a plea of

guilty or nolo contendere may result in your deportation, exclusion from admission

to the county [sic] or denial of your naturalization under federal law.” She told him

that his plea could affect his immigration status and explained that she does not

practice immigration law “so he would have to consult an attorney that deals in

immigration.” After the hearing, the trial court denied Gomez habeas relief.

Retroactivity of Padilla

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. 356, 130 S. Ct. at 1486. Gomez

contends that the trial court erred in overruling his ineffective assistance claim,

which was based on Padilla. The State responds that Padilla should not be applied

retroactively.

This Court 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. granted, jgm’t vacated, 393 S.W.3d 787 (Tex. Crim. App. 2013).

After we so held, however, the Supreme Court determined that Padilla does not

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apply retroactively. See Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013);

see also Ex parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013)

(“We adhere to the retroactivity analysis in Chaidez and its holding that Padilla

does not apply retroactively.”).

In Chaidez, a lawful permanent resident pleaded guilty to two counts of mail

fraud, an “aggravated felony” that subjected her to mandatory removal from the

United States. Her conviction became final in 2004. Chaidez, 133 S. Ct. at 1105–

06. In a collateral attack on her conviction, she argued that her trial counsel’s

failure to advise her of the immigration consequences of pleading guilty

constituted ineffective assistance of counsel. Id. at 1106. 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 1107.

The Court rejected the argument that Padilla merely applied the settled law

of ineffective assistance of counsel. Id. at 1108–09 (referencing well known

standard in Strickland v. Washington, 46 U.S. 668, 104 S. Ct. 2052 (1984)). In so

holding, the Court stated:

But Padilla did something more. 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

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to counsel because it involved only a “collateral consequence” of a

conviction, rather than a component of the criminal sentence? In other

words, prior to asking how the Strickland test applied (“Did this

attorney act unreasonably?”), Padilla asked whether the Strickland

test applied (“Should we even evaluate if this attorney acted

unreasonably?”).

Id. at 1108 (citation omitted). By rejecting a categorical distinction between direct

and collateral consequences in relation to the right to counsel, the Court resolved

the threshold question “by breaching the previously chink-free wall between direct

and collateral consequences” before applying the well-settled law of Strickland. Id.

at 1110. “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. 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’” before Padilla, the Court concluded that Padilla announced a

“new rule.” Id. at 1111. As such, “defendants whose convictions became final prior

to Padilla cannot benefit from its holding.” Id. at 1113.

In this case, Gomez was convicted two years before Padilla was decided.

Because Padilla announced a “new rule,” it is not retroactive and Gomez may not

now avail himself of the decision on collateral review. See Ibarra v. State, No. 01-

12-00292-CR, 2013 WL 1163967, at *2 (Tex. App.—Houston [1st Dist.] Mar. 21,

2013, no pet. h.) (concluding that appellant who was convicted twelve years before

Padilla could not rely on Padilla and affirming denial of habeas relief).

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Conclusion

Because Padilla does not apply retroactively, we affirm the trial court’s

judgment.

Harvey Brown

Justice

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

Do not publish. TEX. R. APP. P. 47.2(b).

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