PD-1344-15 PD-1344-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 11/16/2015 8:30:10 PM Accepted 11/17/2015 2:17:15 PM IN THE ABEL ACOSTA CLERK TEXAS COURT OF CRIMINAL APPEALS
JOSE E. DUQUE,
Petitioner,
vs. No.
THE STATE OF TEXAS,
Respondent.
******************************************************************************
PETITION FOR DISCRETIONARY REVIEW ******************************************************************************
Rivera y Bujosa Law Office
Octavio M. Rivera-Bujosa SBN 24081261 333 Simonton Street, Suite 210 Conroe, Texas 77301 Phone: (832) 296-6048 Fax: (936) 756-5961 oriverabujosahou@gmail.com
November 17, 2015
PETITIONER REQUESTS ORAL ARGUMENT
1 IDENTITIES OF JUDGE, PARTIES, AND COUNSEL
Jose E. Duque, Petitioner:
Raul Rodriguez, attorney for Petitioner during the plea hearing before the trial court; 3801 Barnett Street Houston, Texas 77017-3019; Phone: (713) 641-4477; email: rrod1959@aol.com
Octavio M. Rivera-Bujosa, attorney for Petitioner at the Habeas Corpus Hearing, on appeal, and on Petition for Discretionary Review; 333 Simonton Street, Suite 210, Conroe, Texas 77301; email: oriverabujosahou@gmail.com; Phone: (832) 296-6048; Fax: (936) 756-5961
State of Texas, Respondent:
Ryan Mclearen, Harris County Assistant District Attorney, Attorney for Respondent at the Habeas Corpus Hearing; Harris County District Attorney’s Office, 1201 Franklin Street, Suite 600 Houston, Texas 77002-1923, Phone: (713) 755-5800
Devon Anderson, Harris County District Attorney, Attorney for Respondent, Harris County District Attorney’s Office 1201 Franklin Street, Suite 600 Houston, Texas 77002, Phone: (713) 755-5800
Melissa Hervey, Harris County Assistant District Attorney, Attorney for Respondent; Harris County District Attorney’s Office 1201 Franklin Street, Suite 600 Houston, Texas 77002-1923; email: Melissa@dao.hctx.net
Lisa McMinn, State Prosecuting Attorney, Attorney for Respondent; P.O. Box 13046, Austin, Texas 78711-3046; Phone: (512) 463-1660; Fax: (512) 463-5724, email: Lisa.McMinn@spa.texas.gov.
Stacey M. Goldstein, Assistant State Prosecuting Attorney, Attorney for Respondent; P.O. Box 13046, Austin, Texas 78711-3046; Phone: (512) 463-1660; Fax: (512) 463- 5724; email: information@spa.texas.gov
2 184th Judicial District Court, Honorable Jan Krocker, Presiding Judge, 17th Floor, Harris County District Court, 1201 Franklin St, Houston, Texas 77002. Phone: (713) 755-6358; Fax: (713) 368-9219
Justice Laura Carter Higley, Justice Terry Jennings and Justice Harvey G. Brown, First Court of Appeals, 301 Fannin St, Houston, Texas 77002
3 TABLE OF CONTENTS
Index of Authorities……………………………………………………….………6-7
Statement Regarding Oral Argument……………………………………………….8
Statement of the Case……………………………………………………………….8
Statement of Procedural History……………………………………………………9
Abbreviations………………………………………………………...…..……….…9
Grounds for Review…………………………………………………...………….....10
Argument……………………………………………………………. ……….…11-25
1. The First Court of Appeals conducted an improper prejudice inquiry under Padilla v. Kentucky; the four-factor analysis applied by the First Court of Appeals in the instant case to guide its analysis of prejudice under Strickland v. Washington, failed to consider the totality of the circumstances that are material to the determination of whether or not a defendant has been prejudice by the legal advice of his incompetent counsel. By failing to consider in its analysis the totality of the circumstances surrounding the Petitioner, the First Court of Appeals applied an analysis that does not conform to the standard established by the SCOTUS……………………11-16
2. The First Court of Appeals’ erred in its prejudice analysis, when it did not account for the possibility that Petitioner could have demonstrated prejudice by showing that it was reasonable for Petitioner, under the particular circumstances surrounding his case, to reject the State’s plea offer to continue negotiate in hope of securing an immigration-friendly plea offer…………………16-25
A) Petitioner was not forbidden from resetting the case in hope of securing a more immigration-friendly plea deal………19
B) There were other reasonable plea alternatives that could have been negotiated and would have not put Petitioner in removal 4 proceedings………………………………...…………19-21
C) It was rational for the Petitioner to reject the State’s plea bargain offer because of the impact that it would have had on his immigration status…………………………………21-23
D) Deferred adjudication is not an option for a non-citizen when the predicate conviction is going to place the non-citizen in removal proceedings……………………….…………23-25
Prayer for Relief………………………………………………………………25
Certificate of Service……………………………………………….………...27
Certificate of Compliance………………………………………………...…..27
Appendix……………………………… ……………………..........……28-29
5 INDEX OF AUHORITIES
Cases Chaidez v. United States, 133 S.Ct. 1103 (2013)…………………………………….………………22 Ex parte De Los Reyes, No. 350 S.W.3d 723 (Tex.App.--El Paso 2011, pet. granted), rev’d on retroactivity grounds, 392 S.W.3d 675 (Tex.Crim.App. 2013). (memorandum opinion)……………………..……..............................14 Ex Parte Duque, No. 01-15-00014-CR, 2015 Tex. App. LEXIS 5040 (Tex.App.Houston Nov. 15, 2015) 393 S.W.3d 781 (Tex. Crim. App. 2013) (unpublished opinion)………………………………….…12, 17, 22, 24 Ex parte Tanklevskaya, 361 S.W.3d 86 (Tex. App. Houston [1st Dist.] 2011, pet. granted), rev’d on retroactivity grounds, 393 S.W.3d 787 (Tex. Crim. App. 2013)……………………………………………….…14 Ex parte Torres, No. 08-12-00244-CR, 2014 Tex. App. LEXIS 3168, 2014 WL 1168929 (Tex. App. El Paso, March 21, 2014, pet. granted) (memorandum opinion) .........................................................12, 13, 15 Hill v. Lockhart, 474 U.S. 52 (1985) .......................................................................... 11 INS v. St. Cyr, 533 U.S. 289 (2001)………………………………………………….…………….…….21 Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014)………………………..……………………11 Matter of Salazar-Regino, 23 I&N Dec. 223 (BIA 2002)……………….............. …......20 Missouri v. Frye, 132 S.Ct. 1399 (2012) ..............................................................11, 15 Moosa v. INS, 171 F.3d 994 (5th Cir. 1999).......................................................... ..20 Padilla v. Kentucky, 559 U.S. 356 (2010) ..........................................11, 13, 14, 15, 23 Roe v. Flore-Ortega, 528 U.S. 470 (2000) ................................................................ 11 Salazar v. State, 361 S.W.3d 99 (Tex. App. Eastland 2011, no pet.)………………...…. 22 State v. Sandoval, 249 P.3d 1015 (Wash. 2011)......................................................... 22 Strickland v. Washington, 466 U.S. 668 (1984) ............................................. 11, 12, 15 United States v. Batamula, No. 12-20630, (5th Cir. 2015) ...................................... 15 United States v. Choi, 581 F. Supp. 2d 1162 (N.D. Fla. 2008) ............................ ...23 United States v. Orocio, 645 F.3d 630 (3d Cir. 2011)............................................... 22 United States v. Rodriguez-Vega, No. 13-56415, (9th Cir. 2015)............................. 13
6 Statutes Code of Criminal Procedure art. 11.072……………………………………..…………………………..8 Texas Penal Code § 22.01………………………………………………………..…………………………..20 8 U.S.C. 1101(a)(48)(A)……………………………………………..…..…………………………………..20 8 U.S.C. 1182(a)(2)(A)(ii)………………………………………………………….…………………………20 8 U.S.C. 1226(c)………………………………………………………………………………………..…………24
Rules TRAP 9.4…………………………………………………………..……………….27 TRAP 9.5………………………………………………….………………………..27 TRAP 66.3(a)……………………………………………………...……………..8, 16 TRAP 66.3(b)…………………………………………………...……………….9, 16 TRAP 66.3(c)…………………………………………………………………….8, 16
7 STATEMENT REGARDING ORAL ARGUMENT
Petitioner believes oral argument would be helpful to the Court because the issues raised in the instant Petition are issues that address a conflicting decision with another court of appeals’ decision on the same issue and also, it has not been , but should be, settled by this Honorable Court. Petitioner respectfully believes that these issues could be better discussed in the context of oral argument, where the Court can ask questions and consider alternatives that counsel is prepared to discuss.
STATEMENT OF THE CASE
This case concerns a defendant that was advised to accept the State’s plea offer by his plea counsel, less than an hour after the counsel had met the defendant in the holdover cell, for the very first time.1 Those thirty (30) to sixty (60) minutes did not allow plea counsel to conduct any type of investigation regarding the merits of defendant’s criminal case, or the immigration consequences of defendant’s guilty plea.2 A few months after defendant pleaded guilty, defendant was put into removal proceedings and ordered removed from the United States.3 Defendant lost his legal permanent status in the U.S. and was separated from his U.S. citizen wife and from his four (4) U.S. citizen children.4 The Defendant filed an application for a writ of habeas corpus, under Texas Code of Criminal Procedure article 11.072 before the 184th District Court, Harris County, Texas. At the end of the writ hearing, the District Court stated that she “th[ought] it [was] a close call,” but recommended denying the writ on the record.5 Defendant appealed the District Judge’s decision to the Court of Appeals for the First District of Texas. The Court of Appeals noted, that there was no need to analyze the first prong of Strickland because the second prong, prejudice, was dispositive.6 The Court of Appeals applied a four factor analysis to conclude that it would have not been rational for the defendant to proceed or to insist on going to trial.7 This petition challenges the First Court of Appeals decision because the four factor analysis applied by the First Court of Appeals conflicts with the applicable decisions of the Supreme Court of the United States (SCOTUS) on this issue and with the decision of another court of appeals on this issue. TRAP 66.3 (c), (a). It
1 3 RR 11 2 3 RR 11 3 Ex Parte Jose E. Duque, No. 01-15-00014-CR, 2015 Tex. App. LEXIS 5040 (Tex. App. Houston Nov. 15, 2015), pages 2- 3 4 3 RR 46 5 Duque, at * 7 6 Duque, Id. *16 7 Id *16 8 also concerns an issue that has not been, but should be, settled by this Honorable Court. TRAP 66.3 (b).
STATEMENT OF PROCEDURAL HISTORY
(1) Date of opinion from Court of Appeals: September 15, 2015.
(2) Date of Motion for Rehearing: None was filed.
(3) Date Motion for Rehearing Disposed: N/A
(4) Date of Motion for Extension of Time: (2) Date October 15,of Motion for Rehearing: 2015. (3) Date Motion for Rehearing Disposed
ABBREVIATIONS AND REFERENCES
The required documents are attached to this Petition in the Appendix. The pages of the Appendix are numbered in the lower, right-hand corner for ease of reference and use by the Court.
The Reporter’s Record (RR) is referred to by volume number, then page number (e.g. 3 RR 69-80).
9 GROUNDS FOR REVIEW
1. The First Court of Appeals conducted an improper prejudice inquiry under Padilla v. Kentucky; the four-factor analysis applied by the First Court of Appeals in the instant case to guide its analysis of prejudice under Strickland v. Washington, failed to consider the totality of the circumstances that are material to the determination of whether or not Petitioner has been prejudiced by the legal advice of his incompetent counsel. By failing to consider in its analysis the totality of the circumstances surrounding the Petitioner, the First Court of Appeals applied an analysis that does not conform to the standard established by the SCOTUS.
2. The First Court of Appeals’ erred in its prejudice analysis, when it did not account for the possibility that Petitioner could have demonstrated prejudice by showing that it was reasonable for Petitioner, under the particular circumstances surrounding his case, to reject the State’s plea offer to continue negotiate in hope of securing an immigration-friendly plea offer.
10 ARGUMENT
1. The First Court of Appeals conducted an improper prejudice inquiry under Padilla v. Kentucky; the four-factor analysis applied by the First Court of Appeals in the instant case to guide its analysis of prejudice under Strickland v. Washington, failed to consider the totality of the circumstances that are material to the determination of whether or not Petitioner has been prejudiced by the legal advice of his incompetent counsel. By failing to consider in its analysis the totality of the circumstances surrounding the Petitioner, the First Court of Appeals applied an analysis that does not conform to the standard established by the SCOTUS.
Under Strickland v. Washington, a defendant proves prejudice by
demonstrating that without the attorney’s error, the outcome of the proceeding at
issue would have been different. 466 U.S. 668, 695 (1984). To demonstrate that the
actions of counsel prejudiced a defendant when he entered a guilty plea, the
defendant must show that it would have been rational under the circumstances to
reject that plea in the absence of counsel’s error. Padilla v. Kentucky, 559 U.S. 356,
372 (2010); Roe v. Flore-Ortega, 528 U.S. 470, 480, 486 (2000). A defendant can
establish the rational nature of the decision to reject the plea agreement by
establishing a “reasonable probability” that “but for counsel’s errors” she would
have either “insisted on going to trial,” Hill v. Lockhart, 474 U.S. 52, 59 (1985)
because of her desire to avoid deportation, or that she would have continued to
negotiate for an alternative plea that mitigated the deportation consequence.
Missouri v. Frye, 132 S.Ct. 1399, 1408-9 (2012) (Hill test is not the only test for
prejudice); Kovacs v. United States, 744 F.3d 44, 52 (2d Cir. 2014) (prejudice where -11- showing that defendant would have continued to negotiate). Strickland mandates
that courts employ a case-by-case “totality of the circumstances” standard for
evaluating a defendant’s claim of prejudice. 466 U.S. at 695.8
In conducting the prejudice inquiry in the instant case, the First Court of
Appeals COA applied a test that was focused on determining whether or not it would
have been rational for the Petitioner to insist on going to trial under the following
four (4) factors:
(1) whether there is evidence of the applicant’s guilt,
(2) whether the applicant had any factual or legal defenses,
(3) whether immigration status was his primary concern, and
(4) how the plea deal compared to the penalties risked at trial. Duque, at *16
As noted, the four (4) factor analysis does not consider the totality of the
circumstances surrounding Petitioner at the moment when he entered his guilty plea.
In doing so, the Court of Appeals failed to consider other factors that would have
shown that Petitioner was prejudiced by his plea counsel’s ineffective advice.
Additionally, the COA analysis fails to take into account weather or not it
would have been rational for Petitioner to reject the State’s plea offer to pursue a
more immigration friendly plea offer. The COA analysis is being conducted from
the perspective of whether or not it would have been rational under the
8 Adopted from the Amicus Brief presented by the Texas Fair Defense Project “TFDP” filed in Ex parte Torres, No. 08- 12-00244-CR, 2014 Tex. App. Lexis 3168, 2014 WL 1168929 (Tex. App. El Paso, March 21, 2014 , pet. granted) -12- circumstances to insist on going to trial. By focusing on whether or not it would
have been rational under the circumstances to insist on going to trial9, the COA failed
to consider whether or not it would have been rational for Petitioner to reject the plea
bargain offer tendered by the State to try to pursue a more immigration-friendly plea
offer.
Petitioner respectfully submits to the consideration of this Honorable Court
that the analysis applied by the COA does not conform adequately to the standard of
proof enunciated by the SCOUT. As to this standard of proof, the U.S. Court of
Appeals for the Ninth Circuit recently stated that “[a] ‘reasonable probability’ is a
standard of proof ‘sufficient to undermine confidence in the outcome’ and is
‘somewhat lower’ than a preponderance of the evidence. Id. ‘[T]o obtain relief on
this type of claim, a petitioner must convince the court that a decision to reject the
plea bargain would have been rational under the circumstances.’ Padilla, 559 U.S.
at 372. Where ineffective assistance leads a petitioner to accept a plea bargain, a
different result means that ‘but for counsel's errors, [Rodriguez-Vega] would either
have gone to trial or received a better plea bargain.’ Howard, 381 F.3d at 882.”
U.S.A. v. Rodriguez-Vega, No. 13-56415, at 11-12 (9th Cir. 2015) (emphasis added)
Indeed, in Ex parte Manuel Torres, supra, the COA for the Eight District of
Texas rejected the State’s invitation to apply the four factor analysis applied in the
9 Duque, at * 16 (emphasis added) -13- instant case. The COA for the Eight District reasoned that “[w]hile the State points
us to a four-factor approach to prejudice that our sister circuit in Houston has taken
that assesses a defendant’s probability of success at trial,…, we have previously
rejected a solely merits-based prejudice analysis, recognizing that ‘[d]eprivation of
a trial’ stemming from a Padilla violation ‘is a structural defect, which amounts to
a serious denial of the entire judicial proceeding itself, and it demands a presumption
of prejudice.’ Ex parte De Los Reyes, 350 S.W.3d 723, 730 (Tex.App.--El Paso
2011, pet. granted), rev’d on retroactivity grounds, 392 S.W.3d 675 (Tex.Crim.App.
2013). ‘The focus of the prejudice inquiry . . . is whether the defendant was deprived
of a particular proceeding by counsel’s deficient performance, not whether the
outcome of that proceeding would have been favorable to the defendant.’ Id. at 731.
‘Therefore, the defendant must demonstrate that but for counsel’s performance, he
would have availed himself of the proceeding in question.’ Id. In assessing prejudice,
‘we are to consider the circumstances surrounding [the] guilty plea and the gravity
of the advice that [the defendant] did not receive as it pertained to [the defendant’s]
plea determination.’ Ex parte Tanklevskaya, 361 S.W.3d at 97…In viewing the
totality of the circumstances, we find that Appellant has met his burden in
establishing prejudice. Ex parte De Los Reyes, 350 S.W.3d at 730. Such prejudice
could not be cured by the one paragraph admonishment in the plea papers stating
that the plea ‘may’ result in his removal. Id. at 731; Ex parte Tanklevskaya, 361
-14- S.W.3d at 99.” Torres, at * 11-12 (emphasis added)
Similarly, the U.S. Court of Appeals for the Fifth Circuit recently stated that
“[w]ere we to hold that the judge’s mere statement to Batamula during his plea
colloquy that he would ‘likely’ be deported vitiated his ability to establish prejudice
under Strickland and Padilla, we would be turning a blind eye to the reality of the
plea bargaining and plea colloquy process and flouting the Supreme Court’s
mandate that a defendant has a constitutionally protected right to the effective
assistance of counsel throughout the pre-plea stage—a right that carries more than
can be supplied by a judge’s general and equivocal last-moment warning that
deportation is likely to result from the guilty plea. ‘[C]riminal defendants require
effective counsel during plea negotiations. Anything less . . . might deny a defendant
effective representation by counsel at the only stage when legal aid and advice would
help him.’ Frye, 132 S. Ct. at 1407–08 (emphasis added) (internal quotation marks
omitted) (second alteration in original).” U.S.A. v. Innocent Batamula 12-20630, at
*15 (5th Cir. 2015) (emphasis added)
In sum, Petitioner respectfully submits to the consideration of this Honorable
Court that the rationale cited above is indicative of the fact that COA for the First
District of Texas erred in applying to the facts of the present case a prejudice
analysis, that does not take into account the totality of the circumstances that would
have made it rational for the defendant to reject the State’s plea bargain offer to
-15- continue negotiating an immigration-friendly plea bargain or insisting on going to
trial.
More importantly, as previously discussed, the opinion issued by the COA for
the First District of Texas conflicts with the decision issued by the COA for the Eight
District of Texas on the same issue. TRAP 66.3(a) Therefore, Petitioner respectfully
submits to the consideration of this Honorable Court that this important question of
state and federal law should be, but has not been settled, by this Honorable Court.
TRAP 66.3(b).
Finally, as to this matter, Petitioner asserts that by limiting the totality of the
circumstances approach to the four factors previously mentioned, and also, by not
considering the option of rejecting a plea bargain offer to continue negotiating a
favorable plea offer, the COA for the First District of Texas erred in complying with
the SCOTUS mandate that courts employ a case-by-case “totality of the
circumstances” standard for evaluating a defendant’s claim of prejudice. TRAP
66.3(c)
2. The Court of Appeals erred in its prejudice analysis when it did not account for the possibility that Petitioner could have demonstrated prejudice by showing that it was rational for Petitioner, under the particular circumstances surrounding his case, to reject the State’s plea offer to continue negotiate in hope of securing an immigration-friendly plea offer.
Petitioner respectfully submits to the consideration of this Honorable Court -16- that a closer look to the totality of the circumstances surrounding his case, would
show that it would have been rational for him to reject the State’s plea bargain offer.
In the case at hand, the trial court found that the testimony offered by
Petitioner’s previous attorney, Raul Rodriguez, was credible. Duque, at * 8
Attorney Rodriguez testified during the Habeas’ hearing and made the
following statements that are material to the prejudice inquiry:
1. That he was appointed to represent Mr. Duque back in 2012. 3 RR 10 2. That he spoke to Duque at the holdover cell, which is to the left of the courtroom. 3 RR 11 3. That Duque was charged with an offense of assault -- felony assault, third-degree felony of assault by impeding breathing. 3 RR 10 4. That he had a conversation with Duque about what he was charged with and the facts that were presented to him by the State. 3 RR 10 5. That the conversation between him and Duque lasted approximately 30 minutes to one (1) hour. 3 RR 11 6. That the aforementioned conversation was the only conversation that he had with Duque regarding Duque’s case. 3 RR 11 7. That he discussed with Duque the information contained in the offense report. 3 RR 12 8. That he asked the State what was it that they wanted to do as far as maybe making a recommendation. 3 RR 12 9. That the State offered a two-year deferred adjudication probation if Duque was to decide to plea. 3 RR 12 10. That he went back to Duque and informed him of what he had; the option to go to trial or that the State was offering him a two-year deferred adjudication. 3 RR 12 11. That Mr. Duque decided to go ahead and accepted the two-year deferred adjudication probation. 3 RR 12 12. That Duque had informed him that he was not a U.S. citizen. 3 RR 12 13. That during his conversation with Duque he did not inform Duque that the offense to which Duque was pleading guilty was considered a crime involving moral turpitude for immigration purposes. 3 RR 14 14. That at the time he was not aware that the crime for which Duque was being charged was a crime involving moral turpitude for immigration purposes. 3 RR 14 -17- 15. That at any moment he told Duque that he was going to be put into removal proceedings as a result of the conviction for the offense that he was charged. 3 RR 15 16. That he was unaware at the time that the immigration consequence of pleading guilty to that offense was that Duque was going to be put into removal proceedings. 3 RR 15 17. That knowing what he knows now about the immigration consequence of pleading guilty to the offense charged to Duque, he would have not given Duque the same advice. 3 RR 15 18. That he did not know at the time that deferred adjudication could have a legal permanent resident removed from the United States. 3 RR 20 19. That he did not remember if he told the Judge of the warnings that he had given to Duque about his immigration status. 3 RR 21 20. That as a general rule, he will tell a defendant who is a legal permanent resident, that a guilty plea could result in deportation, denial of naturalization or denial of citizenship under federal law. 3 RR 18 21. That he (Rodriguez) acknowledged that the trial court admonished Duque that he could be deported. 3 RR 27
As this Honorable Court would notice, it is undisputed that Petitioner’s plea
attorney had just met him. 3 RR 10-11 It is also uncontested that, that same day,
without conducting any type of investigation, after a thirty (30) minutes to one (1)
hour conversation, and in total ignorance of the immigration consequences of
Petitioner’s guilty plea; Petitioner’s plea attorney advised him to accept the State’s
plea offer. 3 RR 11-12
Petitioner was prejudiced by his counsel ineffective advice because his
counsel’s advice made him instantly or de facto deportable. Petitioner respectfully
brings to the attention of the Honorable Court the following circumstances, that were
not considered by the COA, but from which this Honorable Court could infer that it
was reasonable for the Petitioner, to reject the State’s plea offer and either, continue -18- to negotiate in hope of securing a more immigration-friendly plea deal or taking his
case to trial.
A) Petitioner was not forbidden from resetting the case in hope of securing a more immigration-friendly plea deal:
There was no rush to take the plea. It was just the first court setting. Petitioner
was under no pressure to take the State’s plea offer. Petitioner could have easily
decided that he was going to wait for the State to discover the evidence before making
such an important decision. Thus, Petitioner respectfully submits to the consideration
of the Court that it is reasonable to think that if Petitioner would have been adequately
informed of the immigration consequences of his guilty plea, he would have taken
advantage of the fact that he was not pressure in any way to make a final decision in
his case and would have negotiated in hope of securing a more immigration-friendly
plea deal. The fact that Petitioner’s plea attorney, could have reset the case to fully
investigate the impact of the State’s plea offer on the immigration status of the
Petitioner, and chose not take advantage of that opportunity, was not considered by
the COA and certainly prejudiced the Petitioner.
B) There were other reasonable plea alternatives that could have been negotiated and would have not put Petitioner in removal proceedings:
Petitioner’s plea attorney did not conducted any type of negotiation in the
instant case. He just asked the State for a plea offer and communicated it to the
-19- Petitioner.
Sadly, there were several plea deals that would have not put the Petitioner in
removal proceedings. In Petitioner’s case, the State first offer was for deferred
adjudication. It is well to remember that for immigration purposes, deferred
adjudication community supervision is the same as a conviction.10, 11 Therefore,
Petitioner could have negotiated other similar plea deals that would be considered a
conviction under Texas Law but that would have not put him in removal
proceedings. For example, Petitioner could have pleaded guilty to the offense of
“Assault Family Violence”, a Class C Misdemeanor12 with a punishment
recommendation of almost six months of imprisonment; no probation. That plea
offer would have not put the Petitioner in removal proceedings because Petitioner
had no prior convictions.13 Thus, the proposed conviction would have fallen within
the “Petty Offense Exception” for immigration purposes and it would have not have
a negative impact on Petitioner’s immigration status.14
More importantly, there is no reason to believe that the State would have been
reluctant to agree to this type of plea offer when the same conveys a harsher
10 See 8 U.S.C. § 1101(a)(48)(A); Matter of Salazar- Regino, 23 I&N Dec. 223 (BIA 2002); Moosa v. INS, 171 F.3d 994, 1005-1006 (5th Cir. 1999). 11 The fact that deferred adjudication is considered a conviction for immigration purposes was also ignored by Duque’s plea counsel. 3 RR 20 12 Texas Penal Code § 22.01 13 See 3 RR 46, (Q. “Besides the offense for which we are here today, have you ever been convicted of any offense during the 17-year period that you have been living in the United States?” A. “No.”) 14 Immigration and Nationality Act, Section 212(a)(2)(A)(ii) Exception.-Clause
-20- punishment than the two (2) years deferred adjudication that was offered to
Petitioner’s plea attorney. Thus, it is reasonable to think that if Petitioner would
have been adequately informed of the immigration consequences of his guilty plea,
he would have negotiated and accepted a plea offer that would have put him in jail
for almost six months, but that would have not put him in removal proceedings.
The fact that Petitioner’s plea attorney did not advocate for other plea bargain
options that would have not put the Petitioner in removal proceedings, was not
considered by the COA and certainly prejudiced the Petitioner.
C) It was rational for the Petitioner to reject the State’s plea bargain offer because of the impact that it would have had on his immigration status:
It bears repeating that the Supreme Court has consistently recognized the fact
that for a non-citizen like the Petitioner, preserving his right to remain in the United
States may be more important than any potential jail sentence. INS v. St. Cyr, 533
U.S. 289, 322 (2001) Ergo, it is not irrational for a defendant to reject a plea
agreement offer in favor of pursuing an alternative plea offer, or a trial, even at the
risk of a more serious conviction or sentence, because the defendant wants to avoid
deportation.15
Petitioner’s case is no different.
15 See, e.g., State v. Sandoval, 249 P.3d 1015, 1021-1023 (Wash. 2011); United States v.Orocio, 645 F.3d 630, 645 (3d Cir. 2011) (abrogated on retroactivity grounds by Chaidez v. United States, 133 S.Ct. 1103 (2013)). See also Salazar, 361 S.W.3d at 102 (holding the decision to reject an offer of up to two years in state jail and up to a $10,000 fine, to face a potentially longer sentence at trial, in order to avoid deportation would have been rational given defendant’s lack of criminal history and young age) -21- Petitioner is a native of Honduras who entered the United States in 1997.
Duque, at * 2 By October 8th, 2012, Petitioner had been living in the United States
for more than seventeen (17) years. 3 RR 46 During those years in this country,
Petitioner got married and had four (4) children.16 According to Petitioner, those
children are the reason why he is fighting to stay in the United States, because his
children are all minors and they need him because his wife did not work. 3 RR 46
Petitioner also stated that he had obtained a lawful permanent resident status and
was authorized to work in this country. Duque, at * 2
Based upon the foregoing, it is extremely difficult to imagine a reason why
Petitioner’s primary concern on October 8th, 2012 would have not been his
immigration status. The fact that Petitioner informed the trial court of his desire to
remain in this country, the lengthily residency, the strong family ties to this country
and his employment history in this country are excellent indicators of the fact that
the immigration status was a primary concern for the Petitioner.
None of those factors surrounding Petitioner were considered by the COA in
its conclusion that the immigration status was not a primary concern for the
Petitioner.
What the COA describes as repeated warnings from the trial court, are just the
trial court’s admonishments stating to the Petitioner that he could be deported. That
16 3 RR 46 -22- specific type of warning was considered and rejected by the Supreme Court in
Padilla, supra.. As Justice Alito himself conceded; “the Court’s opinion would not
just require defense counsel to warn the client of a general risk of removal; it would
also require counsel, in at least some cases, to specify what the removal
consequences of a conviction would be.” Padilla, 559 U.S. at 377 (Alito, J.
concurring) (emphasis added) The stark difference between the two is aptly
illustrated by Honorable Robert L. Hinkle, addressing the government’s argument
that a defendant pleading to an aggravated felony need only know that deportation
was a possibility: “Well, I know every time that I get on an airplane that it could
crash, but if you tell me it’s going to crash, I’m not getting on.” United States v.
Choi, 581 F. Supp. 2d 1162 (N.D. Fla. 2008), Transcript of Motion Hearing (Sept.
24, 2008).
In sum, Petitioner respectfully submits to the consideration of this Honorable
Court that by failing to account for the particular circumstances previously
discussed, the COA erred in its conclusion the immigration status was no a primary
concern for the Petitioner.
D) Deferred adjudication is not an option for a non-citizen when the predicate conviction is going to place the non-citizen in removal proceedings:
As previously discussed, deferred adjudication probation is considered a
conviction for immigration purposes. Particularly, Petitioner’s conviction made him -23- instantly removable because the conviction made him immediately an outlaw in the
eyes of the immigration authorities. A sort of fugitive. In other words, because
Petitioner’s conviction made him instantly removable from the United States, the
immigration authorities had the duty under the law to track him down, arrest him and
put him in removal proceedings. To make matters even worse, Petitioner’s
conviction made him subjected to mandatory detention.17
Based upon the foregoing, deferred adjudication was not an option for
Petitioner because after his arrest and detention by the immigration authorities,
Petitioner was not going to be able to report to his Community Supervision Officer.
May be the best explanation of why deferred adjudication probation was not a
realistic option for a non-citizen like the Petitioner was provided by one of the
witnesses presented by the State during the Habeas Corpus hearing; Harris County
Assistant District Attorney, Tim Ballengee. Duque, at *10
The trial court found that the testimony offered by Harris County Assistant
District Attorney (ADA), Tim Ballengee was credible. Id., at *10
ADA Ballengee made the following statements during his direct examination
at the Habeas’ hearing:
Question. “What was unique about the plea circumstances?
Answer. We did -- my recollection was that we did Padilla
17 INA, Section 236(c) -24- warnings on the plea but that he was receiving deferred adjudication,
which was odd considering that he was most likely -- well, he was going
to be deported as a result of pleading to a deferred adjudication in my
understanding. (emphasis added)
Question. Why did you think he was going to be deported, taking a
deferred adjudication?
Answer. My experience just in the -- these kind of cases, and
specifically assault family member cases, is that they are typically
deported. It's almost certain. And then, also -- well, also when we
were taking the plea, that was what he was told. ”18 3 RR 55-56
There was no logical reason why Petitioner should have accepted the State’s
plea offer. Therefore, the COA erred by not taken into account in its analysis of
prejudice, the fact that deferred adjudication probation was not an option for the
Petitioner. As it turned out, the State’s plea offer ended up removing the Petitioner
from this Country and from his family.
PRAYER FOR RELIEF
This Petition should be granted.
18 Note: ADA Ballengee testified that Duque was told that he was going to be deported. However, the Habeas Judge made the following statement to clarify the Record: “But just so the record is clear, I never tell anyone: I believe you will be deported, unless the lawyer tells me that. So, because I don't know how many years he has been a resident, I have no way of knowing the details that are part of the attorney-client relationship; but I didn't tell him he would be. I think he just admonished him so strongly that the prosecutor remembered it that way. But if I would have told him he will be deported, I would have written that on the papers.” 3 RR 82
-25- For the reasons stated in this Petition for Discretionary Review the
Petitioner prays that this Court revokes the Opinion and judgment of the First
Court of Appeals.
Petitioner also requests such other and further relief as is just.
RESPECTFULLY SUBMITTED:
_/s/ Octavio M. Rivera-Bujosa Octavio M. Rivera-Bujosa SBN 24081261 333 Simonton Street, Suite 210 Conroe, Texas 77301 Phone: (832) 296-6048 Fax: (936) 756-5961 oriverabujosahou@gmail.com
-26- CERTIFICATE OF SERVICE
I hereby certify that on November 16, 2015, a true and correct copy of this Petition for Discretionary Review was served on Melissa Hervey, Harris County Assistant District Attorney, by email to Hervey_Melissa@dao.hctx.net, on Stacey M. Goldstein and the State Prosecuting Attorney, by email to information@spa.texas.gov and to Lisa.McMinn@spa.texas.gov, and on the Harris County District Attorney, by e-mail to da@dao.hctx.net See Tex. Rule App. Proc. 9.5 (2015) and Tex. Rule App. Proc. 68.11 (2015)
_/s/ Octavio M. Rivera-Bujosa Octavio M. Rivera-Bujosa
CERTIFICATE OF COMPLIANCE
This certifies that this document complies with the type-volume limitations because this document is computer-generated and does not exceed 4,500 words. Using the word- count feature of Microsoft Word, the undersigned certifies that this document contains 4,495 words in the document except in the following sections: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix. This document also complies with the typeface requirements because it has been prepared in a proportionally-spaced typeface using 14-point font. See Tex. Rule App. Proc. 9.4 (2015).
_/s/ Octavio M. Rivera-Bujosa Octavio M. Rivera Bujosa
-27- IN THE TEXAS COURT OF CRIMINAL APPEALS
vs. No. _ _
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APPENDIX – PETITION FOR DISCRETIONARY REVIEW *************************************************************************** ***
Index:
1-22 Court of Appeals Opinion dated September 15, 2015 and Judgment
23 8 U.S.C. § 1101 (a)(48)(A)
24-25 8 U.S.C. § 1182 (a)(2)(A)(ii)
26 8 U.S.C. § 1226 (c)
27-29 3 RR 10-12
30-31 3 RR 14-15
32 3 RR 18
33-34 3 RR 20-21
-28- 35 3 RR 27
36 3 RR 46
37-38 3 RR 55-56
-29-