Ex Parte Alicia Brumant

Opinion

ACCEPTED 14-15-00337-cr FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 6/10/2015 6:02:12 PM CHRISTOPHER PRINE CLERK

NO. 14-15-00337-CR

IN THE 14th COURT OF APPEALS FILED IN 14th COURT OF APPEALS at Houston, Texas HOUSTON, TEXAS 6/10/2015 6:02:12 PM EX PARTE ALICIA BRUMANT CHRISTOPHER A. PRINE Appellant, Clerk

v. The State of Texas Appellee.

APPELLANT’S BRIEF

HINOJOSA & SALINAS, PLLC ROBERTO M. HINOJOSA Texas Bar No. 24043730 2020 Southwest Fwy. Ste. 220 Houston, Texas 77098 Tel. (713)665-5060 Fax. (713)520-8808 Attorney for Appellant, Alicia Brumant

ALAN CURRY Chief Prosecutor, Appellant Division Harris County 1201 Franklin, Suite 600 Houston, TX 77002 Tel. (713) 755-5800 Fax (713) 755-5809 Attorney for Appellee, The State of Texas

APPELLANT REQUESTS ORAL ARGUMENT Brumant, Alicia– Appellant’s Brief 1 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 1 INDEX OF AUTHORITIES 4 STATEMENT OF THE CASE 8 ISSUES PRESENTED 9 STATEMENT OF FACTS 12 SUMMARY OF THE ARGUMENT 15 ARGUMENT 18 I. Standard of Review 18 II. Appellant was presumptively prejudiced and received ineffective assistance of counsel when a clear conflict of interest arose and trial counsel proceeded with advising Appellant to enter a guilty plea despite the dual representation that gave rise to the conflict. 20 A. Prejudice is presumed when counsel fails to subject the prosecution’s case to adversarial testing. Such failure has occurred in the case before us when counsel advised Appellant to enter a guilty plea despite the fact she was aware that Appellant had a defense that should have been presented. 24 III. Chaidez v. United States and Ex parte De Los Reyes do not apply to the case before us, since Appellant was affirmatively misadviced under Ex parte Arjona 1 as to the consequences of her plea, and therefore maintains a claim under Padilla and the Sixth Amendment. 25 A. Noncitizens can continue to raise claims involving affirmative “material misrepresentations.” 29 IV. The decision reached in Chaidez applies to those who were convicted prior to the holding in Padilla and as such, the retroactivity bar is not applicable to Appellant—a Legal Permanent Resident (LPR)—because

1 Ex parte Arjona, 402 S.W. 3d 312 (Tex. App.-Beaumont 2013). Brumant, Alicia– Appellant’s Brief 2 she was given deferred adjudication and successfully completed probation, therefore she did not have a final conviction. 32 A. In the state of Texas, if you are a citizen, who has been given deferred adjudication for an offense and who successfully completes probation, you will not be considered to have a conviction. However, if you are a Legal Permanent Resident who has also been given deferred adjudication and who successfully completes probation, you may be considered to have a conviction pursuant to State v. Guerrero. This is a violation of the Equal Protection and Due Process Clauses of the 14th Amendment because this is precisely the type of Harm those Constitutional Clauses were meant to preclude. 33 B. The “new rule vs. old rule” threshold question of Teague is not applicable to an ineffective assistance of counsel claim that is the functional equivalent of a direct appeal pursuant to the clearly established precedent in Martinez v. Ryan and Trevino v. Thaler. 43 C. The Power vested in the Supreme Court is to interpret the constitution and laws of the United States. Teague v. Lane is not meant to apply to new holdings based on the United States Constitution because the Supreme Court is not a “super legislature.” 44 V. This Writ shall be considered an “initial” Writ of Habeas Corpus, because a dismissal and denial of a Writ are treated differently, and therefore the Trial Court maintained the power to review this Writ since the first Writ was dismissed without a hearing on its merits. 47

PRAYER 50 CERTIFICATE OF SERVICE 52

Brumant, Alicia– Appellant’s Brief 3 INDEX OF AUTHORITIES

Cases: Padilla v. Kentucky, 130 S.Ct. 1473, 1484 (2010)…8, 9, 11, 12, 15, 16, 18, 22, 25- 28, 30-33, 41, 43, 44, 46-50

Strickland v. Washington, 466 U.S. 668 (1984)………21-23, 30, 45, 46, 50

Ex Parte Tanklevskaya v. State of Texas, 361 S.W. 3d 86 (Tex. App. – Houston [1st Dist.] 2011, pet. filed)………………..…………18, 19, 49, 50

Chaidez v. United States, 133 S. Ct. 1103 (2013)…8, 9, 11, 12, 16, 25-33, 41, 42, 49, 50

Ex parte De Los Reyes, 392 S.W.3d 675(Tex. Crim. App. 2013)…9, 11, 25- 29, 41

State v. Guerrero, 400 S.W.3d 576 (Tex. Crim. App. 2013)…9, 10, 17, 33- 39, 42, 43

Ex parte Arjona, 402 S.W. 3d 312 (Tex. App.-Beaumont 2013)…2, 11, 25, 31

Cuyler v. Sullivan, 100 S.Ct. 1708 (1980)………………..15, 23- 25, 30, 50

Thompson v. State, 94 S.W.3d 11(2002)……………………….…15, 22, 50

Teague v. Lane, 489 U.S. 288 (1989)…………………16, 27-28, 32, 43-47

Yick Wo v. Hopkins, 118 U.S. 356 (1886)……………………………18, 38

Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006)…….………18

Ex parte Ali, 368 S.W. 3d 827, 831 (Tex.App.-Austin 2012, pet. ref’d)…19

Ex Parte Peterson, 117 S.W. 3d 804, 819 (Tex. Crim. App. 2003)………19

Harrington v. Richter, 131 S.Ct. 770, 785 (2011)………………………..19

Brumant, Alicia– Appellant’s Brief 4 Holloway v. Arkansas, 98 S.Ct. 1173 (1978)………………………….… 22

Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997)………23-24

Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir.2000)……………………24

U.S. v. Cronic, 104 S.Ct. 2039 (1984)……………………………………25

United States v. Rivas-Lopez, 678 F.3d 353, 356-57 (5th Cir.2012)……..25

Marroquin v. U.S., 480 Fed.Appx. 94 (5th Cir. 2012)……………………25

Hill v. Lockhart, 106 S.Ct. 366 (1985)………………………………..25, 27

Santos-Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008)……27-28, 30

United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005)……………….27-30

United States v. Couto, 311 F.3d 179 (2nd Cir 2002)…………………27-30

James v. Cain, 56 F. 3d. 662 (5th Cir. 1995)………………………………27

Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014)………………………27

Chavarria v. United States, 739 F.3d 360, 362 (7th Cir. 2013)…………….27

U.S. v. Amer, 681 F.3d 211 (5th Cir. 2012…………………………….28-29

United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995)…28, 30

Downs-Morgan v. United States, 765 F.2d 1534 (11th Cir. 1985)………..29

Ex parte Wei His Chien, 2014 WL 3697918, (Tex.App.-Hous.1 Dist)……31

Plyler v. Doe, 102 S.Ct. 2382 (1982)………………………………………36

Oyama v. California, 68 S.Ct. 269 (1948)……………………………….40 Texas v. Juvrud, 187 S.W.3d 492 (Tex. Crim. App. 2006)……………….41 Brumant, Alicia– Appellant’s Brief 5 Price v. State, 866 S.W. 2d 606, 611 (Tex. Crim. App. 1993)……………41

Busby v. State, 984 S.W. 2d 627, 629 (Tex. Crim. App. 1998)……………41

Jordan v. State, 36 S.W. 3d 871, 872, 876 (Tex. Crim. App. 2001)…….…41

Galvan v. Press, 347 U.S. 522 (1954)……………………………………...42

Harisiades v. Shaugnessy, 342 U.S. 580 (1952)………………………..….42

Martinez v. Ryan, 132 S.Ct. 1309 (2012)……………………...………43- 46

Trevino v. Thaler, 133 S.Ct. 1911(2013)………………………………43- 44

Robinson v. State, 16 S.W. 3d 808, 811 (Tex. Crim. App. 2000)………..44

Griffith v. Kentucky, 479 U.S. 314 (1987)………………………….….…44

Danforth v. Minnesota, 128 S.Ct. 1029, 1034 (2008)……………….……45

Massaro v. United States, 123 S.Ct. 1690, 1698 (2003)…………..………45

Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012)………………………..….46

Ex Parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004)…………47

Ex Parte Torres, 943 S.W. 2d 469, 472 (Tex. Crim. App. 1997)……….…47

Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998)………..……….48

Ex parte McPherson, 32 S.W.3d 860 (Tex. Crim. App. 2000)…………….49

Ex Parte Moussazadeh, 361 S.W.3d. 684 (Tex.Crim.App. 2012)……..…..49

U.S. Constitutions: U.S. CONST. amend. VI………………………………………..9, 13, 16-31

U.S. CONST. amend. XIV……………………………………………..…26 Brumant, Alicia– Appellant’s Brief 6 U.S. CONST. art. I § 9…………………………………………………….43

U.S. CONST. art. III…………….………………………………….…47- 48

Statutes: 8 U.S.C. § 1182 (a)(2)(A)(i)(II)………………………………………..14, 17

8 U.S.C. § 1101(a)(48)(A) (as amended)……………………………….…38

INA § 212(a)(2)(A)(i)(II)………………………………………………14, 17

Tex. Crim. Proc. Code Ann. art. 11.072 ……………………..………….9, 50

Tex. Crim. Proc. Code art. 42.12 § 5 (c)………..……………….………41

Tex. Crim. Proc. Code Ann. art.11.072 § (9)(a)………………..………19, 50

Other: H.R. Conf. Rep. No. 828, 104th Cong., 2nd Sess. 1996……………..….…38

Dr. Suess, Horton Hears a Who! (Random House 1954)…….…………….41

Rebecca Sharpless, et. al., Teague New Rules Must Apply in Initial-Review

Collateral Proceedings: The Teachings of Padilla, Chaidez, and Martinez,

67 Univ. of Miami L. Rev. (2013)…………………………………...…….44

Brumant, Alicia– Appellant’s Brief 7 STATEMENT OF THE CASE

Appellant, Alicia Brumant, filed an “Application for Writ of Habeas

Corpus Pursuant to Tex. Crim. Proc. Code Ann. art. 11.072 and Based on

new Legal Developments from the U.S. Supreme Court.” (See Clerk’s

Record, CR, at 4, 97)2. The Writ was denied without a hearing on the merits.

(See CR at 97 and Clerk’s Supplemental Record, CSR, at 5-7). 3 Because

there was no hearing on the merits there was also no Court Reporter and no

Reporters Record. The “State’s Proposed Findings of Fact, Conclusions of

Law and Order” adopted by the Court, are incomplete. (See CSR at 5-7).

The Writ filed by Appellant was not based exclusively on Padilla v.

Kentucky, 130 S. Ct. 1473 (2010). It also argued that Chaidez v. United

States, 133 S. Ct. 1103 (2013), did not apply to affirmative misadvice. (See

CR at 4-6). The Writ also argued that there was a conflict of interest that

essentially deprived her of right to counsel under the Sixth Amendment to

the U.S. Constitution. 4 (See CR at 4-6). The Writ discussed the previously

filed Writ of Habeas arguing that since it was dismissed, the present writ is

in essence the first writ. (See CR 4-6). The Trial Court determined that the

2 All references to “CR” are to the trial court Clerk’s Record. 3 All references to “CSR” are to the trail court Clerk’s Supplemental Record. 4 U.S. CONST. amend. VI. Brumant, Alicia– Appellant’s Brief 8 Application for a Writ of Habeas filed by Appellant should be dismissed

because the conviction was prior to Padilla and therefore, under Chaidez

and Ex parte De Los Reyes, 392 S.W.3d 675(Tex. Crim. App. 2013), the

benefits of Padilla were not applied retroactive. (See CSR at 7). The Trial

Court further determined that “due to the fact that Appellant’s co-defendant

had pled prior to her agreement to plead guilty, no actual conflict of interest

existed at the time of Appellant’s plea.” (See CSR at 7). The Trial Court

gave no legal authority for the proposition that a co-defendant’s prior plea

would eliminate the conflict of interest. (See CSR at 7). The Trial Court

seems to have correctly treated the present writ as a first writ, but it is not

clear from the “State’s Proposed Findings of Fact, Conclusions of Law and

Order” adopted by the Court. (See CSR at 5-7).

The Trial Court did not address the issues of Affirmative misadvise,

and the inapplicability of State v. Guerrero, 400 S.W.3d 576 (Tex. Crim.

App. 2013). (See CSR at 5-7). The Appellant’s counsel orally requested the

Trial Court to add to the “State’s Proposed Findings of Fact, Conclusions of

Law and Order” that the Court found State v. Guerrero was applicable in

this case.5 The Court refused to make such additional finding or conclusion

5 Appellant’s Counsel for the present writ is the same that is filing this brief. Appellant’s counsel believes that it was a mistake not to address the State v. Guerrero issue at the Brumant, Alicia– Appellant’s Brief 9 of law and unfortunately none of that conversation was recorded. The

Record therefore shows that the Trial Court did not address the issue of the

inapplicability of State v. Guerrero to a case involving deferred adjudication

that was successfully completed by a defendant who was a Legal Permanent

Resident (LPR). (See CSR at 5-7).

ISSUES PRESENTED

Appellant, Alicia Brumant, entered a guilty plea to Possession of a

Controlled Substance, less than one gram, Cause No. 875141, in the 351st

District Court of Texas, pursuant to a plea agreement. Her sentence was 150

hours of community service; three years deferred probation, and $300 fine.

Appellant’s Trial Counsel told her that she would not have a conviction as

long as she successfully completed the terms of her deferred probation an

did not commit another crime. Appellant successfully completed the

deferred probation.

Appellant traveled outside the country and upon her return was

apprehended by the Department of Homeland Security (DHS) and placed in

removal proceedings. She was found to be inadmissible and ordered

removed as a consequence of her guilty plea for “Possession of a Controlled

Trial Court level or the issue of affirmative misadvice. At the very least the Trial Court should have addressed the additional arguments raised by Appellant’s application in the Findings of Fact and Conclusions of Law. Brumant, Alicia– Appellant’s Brief 10 Substance, less than one gram, Cause No. 875141, in the 351st District Court

of Texas.”

The Trial Counsel that represented her also represented the co-

defendant in the same matter. The Trial Counsel was informed by Appellant

and by co-defendant, that Appellant was not in possession of any controlled

substance or aware of the existence of the controlled substance and that the

whole of the controlled substance belonged to co-defendant. The Trial

Counsel, ignoring the defense being raised by Appellant, advised her to enter

a guilty plea.

ISSUES:

1. Appellant was presumptively prejudiced and received

ineffective assistance of counsel when a clear conflict of interest arose and

trial counsel proceeded with advising Appellant to enter a guilty plea despite

the dual representation that gave rise to the conflict.

2. Chaidez v. United States and Ex parte De Los Reyes do not

apply to the case before us, since Appellant was affirmatively misadviced

under Ex parte Arjona 6 as to the consequences of her plea, and therefore

maintains a claim under Padilla and the Sixth Amendment.

6 Ex parte Arjona, 402 S.W. 3d 312 (Tex. App.-Beaumont 2013). Brumant, Alicia– Appellant’s Brief 11 3. The decision reached in Chaidez applies to those who were

convicted prior to the holding in Padilla and as such, the retroactivity bar is

not applicable to Appellant—a Legal Permanent Resident (LPR)—because

she was given deferred adjudication and successfully completed probation.

Therefore, she did not have a final conviction.

4. This Writ shall be considered an “initial” Writ of Habeas

Corpus, because a dismissal and denial of a Writ are treated differently, and

therefore the Trial Court maintained the power to review this Writ since the

first Writ was dismissed without a hearing on its merits.7

STATEMENT OF FACTS

Appellant, Alicia Brumant, filed an Application for Writ of Habeas

Corpus in The 351st District Court of Harris County Texas on October 29,

2014. (See CR, at 4, 97). On February 25, 2015 the Application was denied.

(See CR at 97, and CSR, at 7). Alicia Brumant was not advised of the

immigration consequences of her guilty plea in Cause No. 875141 in Harris

County. (See CR at 6, 60-61). However, even if she had been advised as her

trial counsel states in her affidavit, the advice given did not amount to

7 This issue seems to have been admitted by the State and assumed by the Trial Court. However, since it is not clearly addressed in the “State’s Proposed Findings of Fact, Conclusions of Law and Order” adopted by the Court, it raised here again for the sake of thoroughness. Brumant, Alicia– Appellant’s Brief 12 effective assistance of counsel. (See CR at 63). Appellant has been a Legal

Permanent Resident (LPR) since September 2, 1995 and is the mother of a

United States Citizen daughter, and wife of a United States Citizen. (See CR

at 41-42, 54). On October 5, 2001, Appellant pled guilty to Possession of a

Controlled Substance, less than one gram, Cause No. 875141, in the 351st

District Court of Texas, pursuant to a plea agreement. Her sentence was 150

hours of community service; three years deferred probation, and $300 fine.

(See CR at 44-50). She complied with all the conditions of her probation

and successfully completed probation. (See CR at 52). Petitioner has been a

Legal Permanent Resident (LPR) since September 2, 1995. (See CR at 54).

She is a native of Dominica. The Department of Homeland Security (DHS)

and Immigration and Customs Enforcement, (ICE) initiated Removal

Proceedings against her pursuant to 8 U.S.C. § 1182 (a)(2)(A)(i)(II), INA §

212(a)(2)(A)(i)(II). (See CR at 56-58).

When Petitioner entered her guilty plea in 2001, she was not aware

that as a consequence she would be deported. (See CR at 60-61). Appellant’s

Trial Counsel admits she did not know that Petitioner was going to be

removed because she pled guilty to Possession of a Controlled Substance

other than less than 30 grams of marijuana. (See CR at 63). A quick reading

of the Immigration and Nationality Act (“INA”) would have warned counsel Brumant, Alicia– Appellant’s Brief 13 of the immigration consequence that Appellant would face in light of

Appellant’s guilty plea. Although Appellant had a defense, Trial Counsel

advised Appellant to plea guilty instead of going to trial. The plea rendered

her subject to mandatory deportation, and in addition, if Appellant left the

United States, she would be classified as an arriving alien and be

inadmissible. In addition, Trial Counsel reassured Appellant that the plea

was in her best interest and told her that the offense could be expunged from

her record after seven years and that Trial Counsel would charge seven

hundred dollars for the process. (See CR at 60-61). Trial Counsel also

explained that if she successfully completed probation and there was no

other charge, she would not have a conviction. (See CR at 60-61).

Furthermore, the same Trial Counsel that represented Appellant at the

trial level, represented her now husband, who was her boyfriend at the time,

Mr. Pickett, in the same matter. Appellant and Mr. Pickett were arrested at

the same time for the same offense, and indicted for different amounts of the

controlled substance. It is clear on the face of the indictment that the two

cases were related. (See CR at 65, 67-68).8 However, contrary to established

professional standards, Trial Counsel met with both clients simultaneously

8 For further proof that the same attorney, Ms. Irvin represented both clients in the same matter, please look at the second document in exhibit 9, in the space “attorney for defendant.” Brumant, Alicia– Appellant’s Brief 14 and represented Appellant and Mr. Pickett in court. Furthermore, Trial

Counsel advised both clients to enter a plea deal, including the plea that

rendered Appellant subject to mandatory deportation and inadmissibility.

Mr. Pickett asserts in his sworn affidavit that he informed Trial Counsel that

all of the drugs belonged to him and not the Appellant. (See CR at 70). In

spite of this, the attorney did not go to trial, which would have been in the

best interest of Appellant, but perhaps not in the best interest of Mr. Pickett,

creating a clear conflict of interest. Alicia Brumant seeks Habeas Corpus

relief because her plea counsel rendered ineffective assistance under the

Sixth Amendment and Padilla v. Kentucky and Cuyler v. Sullivan, 9 and

Thompson v. State,10 respectively. 11 Appellant’s prior Writ of Habeas

Corpus filed on March 5, 2012 was dismissed on July 17, 2013, without a

hearing on the merits. (See CR at 72-73).

SUMMARY OF THE ARGUMENT

Appellant was prejudiced and received ineffective assistance of

counsel when a clear conflict of interest arose in that Appellant and a

9 Cuyler v. Sullivan, 100 S.Ct. 1708 (1980). 10 Thompson v. State, 94 S.W.3d 11(2002). 11 Appellant has been ordered removed as she was found inadmissible. The immigration Judge’s order was appealed to the BIA and dismissed, affirming the Immigration Judge’s decision. The decision was appealed to the 5th Circuit in case No. 13-60916. The 5th Circuit denied the appeal and affirmed the BIA. The decision may still be appealed to the U.S. Supreme Court. Brumant, Alicia– Appellant’s Brief 15 defendant from the same incident were represented by the same attorney and

the attorney advised Appellant to enter a guilty plea when the other

defendant committed the crime and admitted this to the attorney.

Appellant, Alicia Brumant, has been restrained in her liberty when

The Department of Homeland Security (DHS) and Immigration and

Customs Enforcement, (ICE) initiated Removal Proceedings against her

pursuant to 8 U.S.C. § 1182 (a)(2)(A)(i)(II), INA § 212(a)(2)(A)(i)(II) based

on her April 19, 2001 guilty plea in the 351st District Court of Texas in

Houston. The underlying retroactivity issue based on Chaidez should not

apply to the case before us because Appellant was affirmatively misadvised

as to the consequences of her plea and therefore maintains a claim under

Padilla and the Sixth Amendment.

Appellant’s removability pursuant to 8 U.S.C. § 1182 (a)(2)(A)(i)(II),

INA § 212(a)(2)(A)(i)(II) is the result of ineffective assistance of counsel

which is contrary to the Sixth Amendment and Padilla v. Kentucky.

Appellant was denied effective assistance when she was advised by trial

counsel to enter a plea that rendered her subject to mandatory deportation.

The non-retroactivity principal reached in Teague v. Lane12 should not apply

to Padilla-type challenges to federal convictions because such principal

12 Teague v. Lane, 489 U.S. 288 (1989). Brumant, Alicia– Appellant’s Brief 16 would assume that habeas petitioners have already had full and fair

opportunities to raise constitutional claims.

In the State of Texas, if you are a U.S. citizen who hasbeen given

deferred adjudication and who successfully completed probation, you will

not be considered to have a conviction. However, if you are a Legal

Permanent Resident (LPR) who has also been given deferred adjudication

and who successfully completed probation, you will be considered to have a

conviction pursuant to State v. Guerrero. This is a violation of the Equal

Protection and Due Process Clause of the 14th Amendment. This is

precisely the type of harm meant to be precluded by the Equal Protection

and Due Process Clause of the 14th Amendment. State v. Guerrero, can be

interpreted to apply to those who would have been deported regardless of the

conviction. Appellant in this case, unlike Guerrero, was an LPR who would

not have been removed but for the conviction.

“The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: “Nor shall any state deprive any person of the life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons in the territorial jurisdiction, without regard to any difference in race, color or nationality; and the equal protection of the laws is a pledge of the protection of equal laws. Therefore, the questions we must consider and decide in these cases are to be treated as involving the rights of every citizen of the United States equally with those of the Brumant, Alicia– Appellant’s Brief 17 strangers and aliens who now invoke the jurisdiction of the court.”13

Appellant’s prior Writ was dismissed. However, when the prior Writ

was filed, the rule reached under Padilla could be applied retroactively. The

first Writ was dismissed and as such this Writ does not count as a second

Writ, since the first Writ did not reach the merits of the case. However, even

if this Writ is to be considered a second Writ, under 11.072 § (9)(a), the Writ

may still be filed if it contains sufficient specific facts establishing that the

current claims and issues have not been and could not have been presented

previously because the factual or legal basis for the claim was unavailable

on the date the Appellant filed the previous application.

ARGUMENT

I. Standard of Review

In seeking Habeas Corpus relief based on an involuntary guilty plea,

Appellant must prove her claim by a preponderance of the evidence. Ex

parte Tanklevskaya, 361 S.W.3d at 91 (citing Kniatt v. State, 206 S.W.3d

657, 664 (Tex.Crim.App. 2006)). A trial court’s denial of a Writ of Habeas

Corpus is reviewed under an abuse of discretion standard. Kniatt v. State,

13 Yick Wo v. Hopkins, 118 U.S. 356 (1886). Brumant, Alicia– Appellant’s Brief 18 206 S.W.3d 657, 664 (Tex.Crim.App.2006). A defendant who claims his

plea was not knowingly and voluntary given must prove that claim by a

preponderance of the evidence. Id. The Court shall review facts in light most

favorable to the trial court’s ruling and must uphold that ruling absent abuse

of discretion. Id. However, a de novo review is applied when the facts are

uncontested and the trial court’s ruling does not turn on the credibility or

demeanor of witnesses. Ex parte Ali, 368 S.W. 3d 827, 831 (Tex.App.-

Austin 2012, pet. ref’d). Furthermore, appellate courts review de novo those

“mixed questions of law and fact” that do not depend upon credibility and

demeanor. Ex Parte Peterson, 117 S.W. 3d 804, 819 (Tex. Crim. App.

2003). The First Court of Appeals has also noted that appellate courts review

de novo those “mixed questions of law and fact” that do not depend upon

credibility and demeanor. Ex parte Tanklevskaya, 361 S.W.3d 86, 91

(Tex.App.--Houston [1st Dist.] 2011, pet. granted), rev'd on retroactivity

grounds, 393 S.W.3d 787 (Tex.Crim.App. 2013). Ineffective assistance of

counsel in a guilty plea proceeding of such magnitude as to render a guilty

plea involuntary also has the effect of vitiating any waiver of Habeas Corpus

relief with respect to that claim. Harrington v. Richter, 131 S.Ct. 770, 785

(2011). In this case the appropriate standard of review is de novo since the

issues raised are mainly legal questions and credibility is not a factor placed Brumant, Alicia– Appellant’s Brief 19 in dispute by the “State’s Proposed Findings of Fact, Conclusions of Law

and Order” adopted by the Court.

II. Appellant was presumptively prejudiced and received ineffective assistance of counsel when a clear conflict of interest arose and trial counsel proceeded with advising Appellant to enter a guilty plea despite the dual representation that gave rise to the conflict. The same attorney who represented Appellant at the trial level,

represented her now husband, who was her boyfriend at the time, Mr.

Pickett, in the same matter. Appellant and Mr. Pickett were arrested at the

same time for the same offense, and indicted for different amounts of the

controlled substance. The indictment, when viewed on its face, clearly

shows that the two cases were related. However, contrary to established

professional standards, the attorney met with both clients simultaneously and

represented Appellant and Mr. Pickett in court. Furthermore, the attorney

advised both clients to enter a plea deal, including the plea that rendered

Appellant subject to mandatory deportation and inadmissibility.

Mr. Pickett asserts in his sworn affidavit that he informed trial counsel

that all of the drugs belonged to him and not Appellant. When viewing the

offenses, we are able to see that Appellant was charged with a small amount

of the controlled substance, less than one gram, and Mr. Pickett was charged

with possessing a larger amount. In spite of this, the attorney did not go to Brumant, Alicia– Appellant’s Brief 20 trial, which would have been in the best interest of Appellant, but perhaps

not in the best interest of Mr. Pickett, creating a clear conflict of interest. If

trial counsel would have gone to trial, it would have likely benefitted the

Appellant because she had a defense due to the fact that Mr. Pickett said the

full amount of the contraband belonged to him. However, Appellant was

denied representation in her best interest because the attorney was

representing both clients, and proceeding to trial would have been

detrimental to Mr. Pickett, while benefitting Appellant.

To establish prejudice in cases where a defendant complains that

ineffective assistance led him to accept a plea offer as opposed to proceeding

to trial, the defendant must show a reasonable probability that, but for

counsel’s errors, he would have not pleaded guilty and would have insisted

on going to trial. The Supreme Court has established the minimum

requirements of the Sixth Amendment as interpreted in Strickland, and

States have the discretion to add procedural protections under state law if

they choose. Missouri v. Fry, 132 S.Ct. 1399 (2012). Therefore, it was clear

that Appellant was prejudiced by the actions and conflicting interests of her

attorney when she was advised to enter a plea that rendered her subject to

Brumant, Alicia– Appellant’s Brief 21 mandatory deportation and such plea would have likely not been entered but

for the dual representation and conflict of interest.14

In Thompson v. State, 94 S.W.3d 11 (Tex. App.—Houston [14th Dist.]

2002, pet. ref’d), the Court held that the proper standard for determining

ineffective assistance of counsel due to a conflict of interest should be

determined under Strickland v. Washington. The Sixth Amendment to the

United States Constitution guarantees in all criminal prosecutions that the

accused shall have a right to reasonably effective assistance of counsel.

Thompson at 15, citing Strickland v. Washington, 466 U.S. 668, 686 (1984).

The Sixth Amendment also guarantees a defendant the right to “conflict-

free” representation Missouri v. Fry, 132 S.Ct. 1399 (2012). The mere

physical presence of an attorney does not fulfill the Sixth Amendment’s

guarantee when the advocate’s conflicting obligations have effectively

sealed his lips on crucial matters. Holloway v. Arkansas, 98 S.Ct. 1173

(1978). The vast majority of claims alleging ineffective assistance of

counsel fall within the familiar Strickland standard. Under this standard, to

prove ineffective assistance of counsel, appellant must show that (1)

counsel’s representation or advice fell below the objective standards of 14 It should be noted that the holding in Padilla will not be satisfied by counsel advising a defendant to seek the advice of an immigration attorney after they have already been detained. Brumant, Alicia– Appellant’s Brief 22 reasonableness; and (2) the result of the proceeding would have been

different but for counsel’s deficient performance. Strickland at 688.

Although Strickland governs claims based of ineffective assistance of

counsel based on attorney error, Cuyler v. Sullivan, a case the United States

Supreme Court decided four years before Strickland, controls certain claims

of ineffective assistance of counsel involving conflicts of interest. See

Cuyler v. Sullivan, 100 S.Ct. 1708 (1980). Under Cuyler, a defendant

demonstrates a violation of his right to reasonably effective assistance of

counsel based on a conflict of interest if he can show that (1) his counsel was

burdened by an actual conflict of interest; and (2) the conflict had an adverse

effect on specific instances of counsel’s performance. Cuyler, 100 S.Ct.

1708. Until a defendant shows his counsel actively represented conflicting

interests, he has not established the constitutional predicate for his claim of

ineffective assistance. Id. at 1708. A showing of the “possibility of conflict

of interest” is not sufficient to overturn a criminal conviction. Id. But, if

appellant shows an actual conflict, prejudice is presumed. Id. An actual

conflict of interest exists if counsel is required to make a choice between

advancing her client’s interest in a fair trial or advancing other interests to

the detriment of her client’s interest. See Monreal v. State, 947 S.W.2d 559,

Brumant, Alicia– Appellant’s Brief 23 564 (Tex.Crim.App.1997); Perillo v. Johnson, 205 F.3d 775, 781 (5th

Cir.2000).

When a lawyer undertakes simultaneous representation of multiple

criminal defendants, the risk of prejudice to one client or the other is so great

that the law imposes an automatic assumption of prejudice. Cuyler, 100

S.Ct. 1708, 1709 (1980). This prejudice is perhaps best illustrated in those

cases in which there is a blame shifting defense--- one of the defendants

claims the other committed the offense. See Monreal, 923 S.W.2d at 64. If a

lawyer represents two or more co-defendants in the same matter, she is

legally and ethically deprived of utilizing the time-honored defense of

blaming the other defendant. Id. Under those circumstances, the automatic

presumption of prejudice is quite valid. Id. In this case, the attorney for

Appellant was legally and ethically deprived of utilizing the time-honored

defense of blaming the other defendant. Therefore, there should be an

automatic presumption of prejudice in this case.

A. Prejudice is presumed when counsel fails to subject the prosecution’s case to adversarial testing. Such failure has occurred in the case before us when counsel advised Appellant to enter a guilty plea despite the fact she was aware that Appellant had a defense that should have been presented.

Brumant, Alicia– Appellant’s Brief 24 It has been long recognized that “the breakdown in the adversarial

process that implicates the Sixth Amendment is not limited to counsel’s

performance as a whole; specific errors and omissions may be the focus of a

claim of ineffective assistance as well.” U.S. v. Cronic, 104 S.Ct. 2039

(1984). In Cronic, the court held that counsel’s failure to subject

prosecution’s case to adversarial testing amounts to constructive denial of

counsel, and the reviewing court should not require petitioner to show

prejudice. Id. 15 Furthermore, even prior to the holding in Padilla, the Fifth

Circuit has observed that providing counsel to assist a defendant in deciding

whether to plea guilty is ‘[o]ne of the most precious applications of the Sixth

Amendment.’” United States v. Rivas-Lopez, 678 F.3d 353, 356-57 (5th

Cir.2012).

III. Chaidez v. United States and Ex parte De Los Reyes do not apply to the case before us, since Appellant was affirmatively misadvised under Ex parte Arjona 16 as to the consequences of her plea, and therefore maintains a claim under Padilla and the Sixth Amendment. 15 Moreover, regarding the issue of prejudice, in Marroquin v. U.S., 480 Fed.Appx. 94 (5th Cir. 2012),in a concurring opinion a justice spoke to the issue of presumed prejudice when stating “The district court reasoned that a court can erase the prejudice resulting from a defense attorney’s failure to competently advise a noncitizen defendant during the plea process merely by stating at the plea entry proceeding that a guilty plea felony conviction would result in deportation. I find this rational deeply flawed. The negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” Marroquin, citing Hill v. Lockhart, 106 S.Ct. 366 (1985). 16 Ex parte Arjona, 402 S.W. 3d 312 (Tex. App.-Beaumont 2013). Brumant, Alicia– Appellant’s Brief 25 This case is about the Appellant not being advised of the immigration

consequences for a guilty plea. Padilla v. Kentucky, 130 S. Ct. 1473 (2010),

gave Appellant the opportunity to challenge the voluntariness and validity of

her guilty plea. However, before this case was resolved, the U.S. Supreme

Court in Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013), held “that

when the court announces a ‘new rule’, a person whose conviction is already

final may not benefit from the decision in habeas or similar proceeding

subject to two exceptions”; see also Ex parte De Los Reyes, 392 S.W.3d

675, 678 (Tex. Crim. App. 2013). Appellant's plea could not have been

entered into knowingly and voluntarily pursuant to the requirements of

Padilla and the law as it existed in the Fifth Circuit at the time because

Appellant received affirmative misadvice. Furthermore, Chaidez maintains

the right of immigrant defendants to use Padilla to challenge convictions

that were not final as of March 31, 2010. Even in the case of an immigrant

whose conviction became final before March 31, 2010, Chaidez preserves

the right of an immigrant to establish ineffective assistance under the Sixth

Amendment, at least in certain jurisdictions, if the immigrant can show she

was affirmatively misadvised regarding immigration consequences of the

criminal case, as in the case before us. Trial Counsel for Appellant not only

failed to inform her that the plea would make her deportable, she told Brumant, Alicia– Appellant’s Brief 26 Appellant that the offense could be expunged from her record in seven years

and she would charge seven hundred dollars for the service. Trial Counsel

further explained that Appellant would not have a conviction.

It has already been established that affirmative misadvice such as the

advice Appellant was given violates the effective assistance of counsel

principle under the Sixth Amendment. This right extends to collateral

consequences, specifically parole eligibility, and immigration. See Santos-

Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008), United States v.

Kwan, 407 F.3d 1005 (9th Cir. 2005), United States v. Couto, 311 F.3d 179

(2nd Cir 2002), Hill v. Lockhart, 474 U.S. 52 (1985), James v. Cain, 56 F.

3d. 662 (5th Cir. 1995) and Kovacs v. United States, 744 F.3d 44 (2d Cir.

2014). 17 It should be noted that the two cases which may be viewed as

negative authority to this argument are Ex Parte De Los Reyes and U.S. v. 17 In Chaidez the Court held that Padilla’s rule was new for Teague purposes because the almost unanimous consensus among lower courts, until Padilla, was that advice about collateral consequences was categorically outside the Sixth Amendment. Chaidez v. United States, 133 S. Ct. 1103, 1109 (2013). (Also see Chaidez at nn. 7-9). By Contrast virtually all Courts held that affirmative misadvice on matters material to a guilty plea, even about collateral consequences (including deportation), could give rise to a Sixth Amendment violation. The Federal Circuits are divided on whether Chaidez’s non- retroactivity rule extends to affirmative misadvice claims. The Second Circuit correctly held that, notwithstanding Chaidez, the affirmative misadvice rule was so well entrenched that a defendant could raise it on collateral review even after his conviction became final. See Kovacs v. United States, 744 F.3d 44, 50 (2d Cir. 2014). On the other side of the divide, the Seventh Circuit has held that the pre-Padilla state of the law governing affirmative misadvice did not dictate Padilla’s outcome with respect to affirmative misadvice cases. See Chavarria v. United States, 739 F.3d 360, 362 (7th Cir. 2013). Brumant, Alicia– Appellant’s Brief 27 Amer. 18 In both of these cases, the defendants attempted to challenge their

convictions under Padilla but were not able to do so because the Court

applied the “new rule” issue under Teague. However, these two cases are in

contrast to the case of the Appellant because Appellant never received a

final conviction. Furthermore, De Los Reyes and Amer did not address

whether affirmative misadvice would still violate the established principles

of the Sixth Amendment. The 5th Circuit has not held that the retroactivity

issue in Chaidez precludes the remedies that are required when counsel

affirmatively misadvises the outcome of a plea. See Santos-Sanchez v.

United States, 548 F.3d 327 (5th Cir. 2008) (acknowledging the legitimacy

of Couto and Kwan but finding no affirmative misrepresentation). See also

United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995)

(“[T]he clear consensus is that an affirmative misstatement regarding

deportation may constitute ineffective assistance”). In the case before us,

Trial Counsel not only failed to inform Appellant that she would be

deported, she told Appellant that after 7 years Appellant could have the

offense expunged from her record and she would charge seven hundred

dollars for the procedure, and that Appellant would not have a conviction. 18 Ex Parte De Los Reyes, 392 S.W. 3d 675 (Tex.Crim.App. 2013), U.S. v. Amer, 681 F.3d 211 (5th Cir. 2012), both cases held that Padilla did not apply retroactively to the convictions resulting from a plea which rendered the defendants subject to mandatory deportation. Brumant, Alicia– Appellant’s Brief 28 This is a material misrepresentation. Therefore, Appellant’s case is

distinguishable as she received affirmative misadvice and should be

examined despite the holdings of De Los Reyes and Amer.

A. Noncitizens can continue to raise claims involving affirmative “material misrepresentations.” A Sixth Amendment challenge based on erroneous advice is arguably

not governed by the holding in Chaidez. The Chaidez Court explicitly

distinguished these claims from the claim at issue in Chaidez, referring to a

“separate rule for misrepresentations.” Chaidez v. United States, 133 S. Ct.

1103, 1112 (2013). A lawyer violates the Sixth Amendment when she

“affirmatively misrepresents her expertise or otherwise actively misleads her

client on any important matter, however related to a criminal prosecution.”

Id. This argument has had the greatest force in the Second, Ninth and

Eleventh Circuits, which the Court identified as recognizing this harm. 19

The Court’s focus was on circuits that had so held at the time of Ms.

Chaidez’s plea. The Fifth Circuit held after the time of Ms. Chaidez’s plea

19 See United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005); United States v. Couto, 311 F.3d 179 (2nd Cir. 2002); Downs-Morgan v. United States, 765 F.2d 1534 (11th Cir. 1985). Brumant, Alicia– Appellant’s Brief 29 that affirmative misrepresentations regarding immigration consequences

could establish a claim for ineffective assistance. 20

In light of the holding in Chaidez, we would like to draw a distinction.

There was a “new” rule reached in Padilla in that the Strickland standard

applies to counsel when failing to advise a client of immigration

consequence. Padilla’s new rule according to Chaidez is confined to the

duty to inform of immigration consequences. It applies to no advice but it

does not change the obligation to give accurate advice; that is, affirmative

misadvice is not encompassed in the Chaidez retroactivity ruling. The new

rule is clear, as it is now a requirement under the Sixth Amendment for trial

counsel to inform an alien when a plea will result in immigration

consequences. However, it has already been an established right that

ineffective assistance of counsel does not satisfy the Sixth Amendment right

to counsel and is applicable to the states through the Fourteenth

Amendment. Cuyler v. Sullivan, 100 S.Ct. 1708 (1980). This right to

adequate assistance under the Sixth Amendment is not part of the “new rule”

noted above that was established by Padilla.

20 Santos-Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008) (acknowledging the legitimacy of Couto and Kwan but finding no affirmative misrepresentation). See also United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995) (“[T]he clear consensus is that an affirmative misstatement regarding deportation may constitute ineffective assistance”). Brumant, Alicia– Appellant’s Brief 30 Even if counsel might have had no initial duty to advise defendant of

the deportation consequence of his guilty plea, once counsel responded to

the court’s admonishment with volunteered advice, he became obligated to

provide the court and defendant with accurate information. Ex parte Arjona,

402 S.W. 3d 312 (Tex. App.-Beaumont 2013), Ex parte Wei His Chien,

2014 WL 3697918, (Tex.App.-Hous.1 Dist). Affirmative misadvice by

counsel regarding a material issue that the plea hearing reflects was key to

the defendant’s plea decision, may constitute deficient performance. Ex

parte Arjona at 318. Therefore, the “new rule” reached in Padilla and

analyzed under Chaidez is not applicable to Appellant. Appellant was

affirmatively misadvised as to the consequences of her plea when counsel

told her that she could later expunge the offense after seven years from

Appellant’s record and informed Appellant what she would charge seven

hundred dollars for the service down the road, and further explained the she

would not have a conviction. However, such advice was not accurate

because it implied she would not be deported, first, because she would be

here in seven years, and second, because it implied that she would not have a

conviction upon which immigration authorities could remove her. 21

21 Deportation and removal are the same but current changes in the immigration law now use the term “removal”. For purposes of this Writ, the terms are interchangeable. Brumant, Alicia– Appellant’s Brief 31 IV. The decision reached in Chaidez applies to those who were convicted prior to the holding in Padilla and as such, the retroactivity bar is not applicable to Appellant—a Legal Permanent Resident (LPR)—because she was given deferred adjudication and successfully completed probation, therefore she did not have a final conviction. In Chaidez, the defendant filed a petition for “coram nobis” because it

was a way to collaterally attack a criminal conviction. Chaidez v. U.S., 133

S.Ct. 1103 (2013). Padilla v. Kentucky held that the Sixth Amendment

requires defense counsel to advise a defendant about the risk of deportation

arising from a guilty plea but Chaidez narrowed its application to

convictions that became final after Padilla was decided. Id. The Chaidez

Court makes it clear that its holding applies to final convictions. The “new

rule” bar that was decided in Chaidez was based on Teague v. Lane . The

Court in Chaidez cited the language from Teague that gave way to the

holding “Under Teague, a person whose conviction is already final may not

benefit from a new rule of criminal procedure on collateral review. A case

announces a new rule if the result was not dictated by precedent existing at

the time the defendant’s conviction become final.” Chaidez, 133 S.Ct. 1103,

citing Teague, 489 U.S., at 301, 109 S.Ct. 1060.

The use of the term “conviction” in both Chaidez and Teague

explicitly shows that this rule is only applicable to final convictions. In light

Brumant, Alicia– Appellant’s Brief 32 of the holding in both cases, nothing indicates that offenses that are given

deferred adjudication which are followed by the successful completion of

probation, for which no conviction ultimately results, are meant to be treated

as convictions. Therefore, the Chaidez holding should not prevent the

assertion of ineffective assistance under Padilla when there is no final

conviction.

A. In the State of Texas, if you are a U.S. citizen who has been given deferred adjudication for an offense and who successfully completes probation, you will not be considered to have a conviction. However, if you are a Legal Permanent Resident who has also been given deferred adjudication and who successfully completes probation, you may be considered to have a conviction pursuant to State v. Guerrero. This is a violation of the Equal Protection and Due Process Clauses of the 14th Amendment because this is precisely the type of harm those consitutional clauses were meant to preclude. In State v. Guerrero the Texas Court of Criminal Appeals held that

the defendant was not entitled to admonishments regarding collateral

deportation consequences of entering a guilty plea for possession of less than

two ounces of marijuana before he could waive his right to counsel. In

addition, the Court decided his guilty plea could be recognized as intelligent

and voluntary since defendant was an undocumented immigrant who was

deportable for that reason alone, and thus the prospect of removal, and

therefore the ineffectiveness of his trial attorney, could not have reasonably

Brumant, Alicia– Appellant’s Brief 33 affected his decision to plea guilty. State v. Guerrero, 400 S.W.3d 576, 588

(Tex. Crim. App. 2013).

In Guerrero, the Court noted that, the “Texas deferred-adjudication

statute was intended to allow one to rehabilitate and have charges dismissed.

In the eyes of the Texas legislature, those who have suffered a single fall

from grace need not spend an entire life saddled with all the collateral

consequences a criminal “conviction” carries with it. However, Congress is

not required to recognize the same concepts of rehabilitation and

forgiveness, as do the many states that do not consider “deferred

adjudication” a ‘conviction.’ And it has explicitly rejected any such notion

in the context of immigration law.” Id. at 587.

However, this should not be applicable in the case before us because

the Appellant here was a legal permanent resident without any other offenses

on her record. But for Appellant’s guilty plea for which she was given

deferred adjudication, she would not have been deportable. This fact in our

case is in direct contrast to the facts surrounding the defendant in Guerrero,

who was an undocumented immigrant and subject to deportation based on

that status alone.

Brumant, Alicia– Appellant’s Brief 34 It would be a violation of the Fourteenth Amendment if Guerrero

were to apply to Appellant. If we were to only apply the “Guerrero

standard” to those who are undocumented and were already deportable,

prejudice could not be shown and there would be no Fourteenth

Amendment, Equal Protection violation or it would be a harmless error. The

Guerrero standard should only apply to those aliens that were already

removable due to the fact they were undocumented, as the defendant in the

Guerrero case. If the same standard is applicable to those aliens who were

not deportable but for the deferred adjudication offense, then it would

violate the Fourteenth Amendment. This is because the Equal Protection

Clause of the Fourteenth Amendment forbids classes of people, such as

aliens, or Legal Permanent Residents, to be treated differently under the law

or denied equal due process, based on their status. This holds particularly

true to our case because the Appellant was not deportable but for the offense

that resulted in deferred adjudication. 22

22 While this difference is admitted, the statement by the Court of Criminal Appeals that Congress is not required to recognize the same concepts as the State of Texas, is misapplied in this context because it directly challenges the mandate of the U.S. Supreme Court that no State pursuant to the 14th Amendment shall apply its laws, including criminal laws, differently among people subject to its jurisdiction on the basis of nationality or alienage and at the end of the day the difference pointed out in this case is irrelevant. While discussing the difference between an alien that is deportable independent of the conviction, as the one in Guerrero, and an alien such as Mrs. Brumant, who is deportable or inadmissible as a result of the conviction, it is nonetheless Brumant, Alicia– Appellant’s Brief 35 Section one of the Fourteenth Amendment states: “all persons born or

naturalized in the United States, and subject to the jurisdiction thereof, are

citizens of the United States and the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty or property, without due process of law; nor deny any

person within its jurisdiction the equal protection of the laws.” U.S. Const.

Amend. 14.

The plain meaning of the Fourteenth Amendment is clear. No State

shall deprive any person of life, liberty or property without due process of

law; nor deny any person within its jurisdiction equal protection of the laws.

Id. “Whatever his status under the immigration laws, an alien is surely a

“person” in any ordinary sense of that term, and thus, is entitled to protection

under equal protection laws.” Plyler v. Doe, 102 S.Ct. 2382 (1982).

Furthermore, with respect to suspect classifications such as aliens, it is

appropriate to enforce the mandate under Equal Protection and require a

State to demonstrate that its classification has been precisely tailored to

serve a compelling governmental interest. “For Equal Protection purposes,

a constitutional principle that States cannot differentiate among its residents on the basis of alienage. The arguments here advanced should not be construed as suggesting that the principle established in Guerrero is constitutionally defendable. Brumant, Alicia– Appellant’s Brief 36 the Supreme Court cannot ignore significant social costs borne by our nation

when select groups are denied the means to absorb the values and skills

which our social order rests.” Id.

If the holding in Guerrero were to apply to those aliens who received

deferred adjudication and would otherwise not be deportable but for that

offense, it would violate the constitution. This is because deferred

adjudication is applied differently to citizens versus non-citizens. To allow a

procedure to be rehabilitative for citizens and not for aliens violates equal

protection under the Fourteenth Amendment. Declaring that “deferred

adjudication” shall be treated as a “conviction” for the purposes of

immigration laws and not a conviction in any other context, does not serve a

compelling interest and we cannot ignore when select social groups are

targeted in violation of the Fourteenth Amendment.

The argument made in Guerrero supporting a new treatment of

“deferred adjudication” is as follows: 8 U.S.C. § 1101(a)(48)(A) (as

amended), applied and this statute broadened the definition of the term

“conviction” to include deferred adjudication so that “aliens who have

clearly been guilty of criminal behavior and whom Congress intended to be

considered ‘convicted’” could no longer escape the immigration

Brumant, Alicia– Appellant’s Brief 37 consequences normally attendant upon a conviction.” H.R. Conf. Rep. No.

828, 104th Cong., 2nd Sess. 1996. This is problematic because it applies a

civil definition of conviction in the criminal context.

The language cited by the Court of Criminal Appeals does not justify

its deviation from the mandate under the Fourteenth Amendment because

such justification is not an amendment to the constitution that meets all the

requirements of Article V of the constitution. This is a clear violation of the

Equal Protection Clause because it treats aliens with offenses that resulted in

deferred adjudication as if they had a final conviction, while treating U.S.

citizens who receive the same deferred adjudication as if they do not have a

final conviction. The Guerrero decision treats similarly situated individuals

differently based on alienage. The State of Texas cannot constitutionally

apply its criminal laws differently to U.S. citizens, LPRs, or any other alien.

See Yick Wo v. Hopkins, 118 U.S. 356 (1886). This is a cardinal rule of

constitution comport. And while Guerrero is precedent and binding

authority for this court, the U.S. Constitution is also binding authority on

this court.23

23 One of the reasons for congress’s authority to create and change immigration law is that the Supreme Court and congress have consistently perceived immigration as a civil Brumant, Alicia– Appellant’s Brief 38 Therefore, in order to avoid constitutional conflict, Guerrero should

be interpreted alternatively when applied to aliens who would not be subject

to deportation but for the offense in which they received deferred

adjudication.24 There is more than one way of interpreting Guerrero that

could relieve the holding from being in direct conflict with the Fourteenth

Amendment. It should be emphasized that the defendant in Guerrero was

still subject to removability simply for the fact that he was undocumented.

The holding in Guerrero cannot be applied to Legal Permanent Residents

without violating the Equal Protection Clause because to do so would treat

aliens with offenses that resulted in deferred adjudication differently than

U.S. citizens with the same offenses which also resulted in deferred

adjudication. This difference is extreme and condemns any alien with a

blemish on their criminal record that otherwise would not be a final

conviction and subjects them to deportation. Therefore, Appellant’s offense

that resulted in deferred adjudication should not be considered a “final

conviction” when it is not even a “conviction”. “In reviewing a case in

which federal constitutional rights are asserted, the United States Supreme

matter and not criminal, and the Supreme Court has repeatedly stated that the prohibition against ex post facto law only applies to criminal law. 24 An alien who is mandatorily deportable as a result of a conviction is prejudiced when he declines to go to trial because his attorney did not tell him that he would be mandatorily deportable. The holding in Guerrero is based on the fact that in that case there was no prejudice, but prejudice is present in this case. Brumant, Alicia– Appellant’s Brief 39 Court must inquire not merely whether those rights have been denied in

express terms but also whether they have been denied in substance and

effect, and must review independently both legal issues and factual matters

with which they are commingled.” Oyama v. California, 68 S.Ct. 269

(1948). For these reasons, the Sixth Amendment should protect Appellant

and not treat her differently simply because she is an alien and a Legal

Permanent Resident who received deferred adjudication. If Appellant’s

offense is to be treated as a conviction, it would violate the Equal Protection

clause of the Fourteenth Amendment because the State of Texas would be

applying its laws differently among equally situated residents of the State. 25

TEX. CRIM. PROC. CODE art. 42.12 § 5 (c) states that “[o]n

expiration of a community supervision period imposed under subsection (a),

if the judge has not proceeded to adjudication of guilt, the judge shall

dismiss the proceedings against the defendant and discharge him….a

dismissal and discharge under this section may not be deemed a conviction

for the purposes of disqualifications or disabilities imposed by law for

conviction of an offense.” When a judge discharges a defendant from

25 In the classic children’s book by Dr. Seuss, Horton Hears a Who!, we were taught as children that a person is a person no matter how small. DR. SUESS, HORTON HEARS A WHO! (Random House 1954). These are values reflected in the constitution that we should not ignore. Brumant, Alicia– Appellant’s Brief 40 Deferred Adjudication, he has no discretion but must dismiss the

proceedings against the defendant who is left with no conviction. Texas v.

Juvrud, 187 S.W.3d 492 (Tex. Crim. App. 2006). In this case, Appellant was

placed on Deferred Adjudication and community supervision and

discharged, so she did not have a final conviction. Price v. State, 866 S.W.

2d 606, 611 (Tex. Crim. App. 1993). When a court grants Deferred

Adjudication probation there has been no conviction. Busby v. State, 984

S.W. 2d 627, 629 (Tex. Crim. App. 1998). Defendant may be convicted at

the moment that he violates probation or the judge may dismiss the

proceedings against him leaving him with no conviction if he successfully

completes probation. Jordan v. State, 36 S.W. 3d 871, 872, 876 (Tex. Crim.

App. 2001). The holdings in Chaidez v. United States and Ex parte De Los

Reyes do not apply to this case because each of these cases require a final

conviction for Padilla retroactivity issue to apply. Appellant does not have a

final conviction according to Texas law. Chaidez v. United States, 133 S.Ct.

1103, 1107 (2013) [states that when the court announces a “new rule,” a

person whose conviction is already final may not benefit from the decision

in a habeas or similar proceeding subject to two exceptions]; see also Ex

parte De Los Reyes, 392 S.W.3d 675, 678 (Tex. Crim. App. 2013). The

Texas Court of Criminal Appeals has taken the position that although Brumant, Alicia– Appellant’s Brief 41 deferred adjudication is not a conviction under Texas law it is a final

conviction for purposes of Immigration law. Texas will apply immigration

law in the context of a writ of habeas governed by the code of criminal

procedure. State v. Guerrero, 400 S.W. 3d 576, 587-588 (Tex. Crim. App.

2013). The flaw with this reasoning is that the definition of a final

conviction for immigration purposes does not control what constitutes a final

conviction for habeas corpus under the code of criminal procedure. The

United States Congress has almost unfettered power in matters of

immigration precisely because the U.S. Supreme Court has stated that

immigration and deportation proceedings are civil in nature. See Galvan v.

Press, 347 U.S. 522 (1954) and Harisiades v. Shaugnessy, 342 U.S. 580

(1952). If now State Courts begin to apply immigration law to their criminal

proceedings, the long standing doctrine of the U.S. Supreme Court would be

out the window, and the U.S. Const. art. I § 9 forbidding ex post facto

enactments would be a major restriction on Congress’ ability to implement

immigration law. Pursuant to the longstanding doctrine of the U.S. Supreme

Court, deportation is civil rather than criminal. The civil immigration laws

cannot control the criminal process.

Brumant, Alicia– Appellant’s Brief 42 The Fourteenth Amendment does not allow States to “deprive any

person of life, liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of the laws.” 26 Under

State v. Guerrero, similarly situated individuals would benefit from the

Padilla ruling merely by not being aliens. In Texas, a deferred adjudication

is not a final conviction for Padilla purposes unless you are an alien. For this

reason State v. Guerrero is contrary to basic constitutional concepts of due

process and equal protection.

B. The “new rule vs. old rule” threshold question of Teague is not applicable to an ineffective assistance of counsel claim that is the functional equivalent of a direct appeal pursuant to the clearly established precedent in Martinez v. Ryan and Trevino v. Thaler. In Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Supreme Court

concluded, “[w]here, as here, the initial-review collateral proceeding is the

first designated proceeding for a prisoner to raise a claim of ineffective

assistance at trial, the collateral proceeding is in many ways the equivalent

of a prisoner’s direct appeal as to the ineffective assistance claim.” Martinez

v. Ryan at 1317. In Trevino v. Thaler, 133 S.Ct. 1911(2013), the Supreme

Court applied the Martinez exception to a Texas case despite the fact that the

theory of the ineffective assistance of counsel claim could have been brought

26 U.S. CONST. amend. XIV § 1. Brumant, Alicia– Appellant’s Brief 43 on direct appeal, but the opportunity was not meaningful. 27 In Trevino v.

Thaler, the Supreme Court noted, “[t]he structure and design of the Texas

system in actual operation, however, make it ‘virtually impossible’ for an

ineffective assistance claim to be presented on direct review. See Robinson

v. State, 16 S.W. 3d 808, 811 (Tex. Crim. App. 2000). 28 After this notation

the court concludes that the Martinez exception applies. Considering that in

Texas the collateral proceeding as to Ineffective Assistance of Counsel

Claim is the equivalent to a direct appeal, this case does not present a “new

rule v. old rule” problem under Teague. The logic of Griffith v. Kentucky,

479 U.S. 314 (1987) that new rules apply to all cases not yet final on direct

appeal applies here. As such, this court should follow the precedent of the

Supreme Court.

C. The Power vested in the Supreme Court is to interpret the constitution and laws of the United States. Teague v. Lane is not meant to apply to new holdings based on the United States Constitution because the Supreme Court is not a “super legislature.” 29

27 See Rebecca Sharpless, et. al., Teague New Rules Must Apply in Initial-Review Collateral Proceedings: The Teachings of Padilla, Chaidez, and Martinez, 67 Univ. of Miami L. Rev. (2013). 28 Trevino v. Thaler, 133 S.Ct. 1911, 1915 (2013), citing Robinson v. State Robinson v. State, 16 S.W. 3d 808, 811 (Tex.Crim.App. 2000). 29 We are aware that this statement is contrary to the holding of Chaidez but we still would like to advocate the plausibility of such argument to preserve error. Brumant, Alicia– Appellant’s Brief 44 Teague v. Lane, 489 U.S. 288 (1989), did not present, and the

Supreme Court did not resolve, the question of whether its retroactivity

regime applies to post-conviction filings challenging federal, as opposed to

state, convictions. See Teague, 498 U.S. at 327 n.1 (Brennan, J.,

dissenting)(noting that the Court “does not address whether the rule it

announces today extends to claims brought by federal, as well as state,

prisoners”). Years later, the Supreme Court expressly reserved this issue.

Danforth v. Minnesota, 128 S.Ct. 1029, 1034 (2008). Teague’s bar against

the retroactive application of new constitutional rules of criminal procedure

rests on two bases: comity and finality. Teague, 489 U.S. at 308. Neither of

these interests justifies applying Teague to a person seeking collateral relief

from a federal conviction due to ineffective assistance of counsel. Comity

considerations are absent when a federal court is reviewing a federal

conviction and Strickland’s highly deferential framework already

accommodates the finality interest at stake when a court adjudicates an

ineffective-assistance challenge to a federal conviction of collateral

review. 30 Teague’s non-retroactivity principle relies on a critical assumption

that habeas petitioners have already had a full and fair opportunity to raise

their constitutional claims. Teague, 489 U.S. at 308-309. This assumption

30 Strickland v. Washington, 466 U.S. 668, 687 (1984). Brumant, Alicia– Appellant’s Brief 45 does not apply to initial Padilla-type challenges to federal convictions. In

Massaro v. United States, 123 S.Ct. 1690, 1698 (2003), the Supreme Court

instructed that ineffective-assistance challenges to federal convictions must

be raised for the first time on collateral review, at least when they depend on

evidence outside the trial record. Padilla claims fit that mold. Specifically,

trial records generally do not include evidence as to whether defense

attorneys advised their clients that pleading guilty would have resulted in

deportation consequences. See Padilla, 130 S.Ct. at 1483. Even in the rare

instances in which a trial record does include such information, it does not

provide evidence necessary to show, as required by the prejudice prong of

the Strickland/Padilla test, that if the defendant had received such advice,

she would have not have pled guilty. Id. Accordingly, Padilla-type claims

must be litigated in what the Supreme Court has called “initial-review

collateral proceedings.” Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012). As

such, there is no basis for applying Teague in this context.

Teague v. Lane was meant to correct the problem that arguably the

Supreme Court acts as a legislature when it chooses which laws are new and

old and which should apply retroactively or not, it was not meant to give the

Supreme Court power to decide when constitutionally interpreted

Brumant, Alicia– Appellant’s Brief 46 protections should begin or end. If the U.S. Supreme Court has the power to

interpret what the constitution meant and whether it could be applied

retroactively or not based on whether the rule is new or old, it would be

acting as a constitutional convention. Teague did not give the Supreme

Court the power to act as a constitutional convention. See Article III of the

U.S. Constitution. When the U.S. Supreme Court announces a rule

regarding constitutional rights it is in a very narrow sense only recognizing a

constitutional right that was always there, because article III of the U.S.

Constitution does not empower the U.S. Supreme Court to act as a

legislature much less as a Constitutional Convention. In my view, I

respectfully disagree with the concept that the United States Supreme Court

can make Constitutional decisions such as the one involving the Sixth

amendment in Padilla and classify it as a “new or old rule”. Once the U.S.

Supreme Court has made a constitutional decision the classification of new

or old should have no impact. Rather, the fact that it is a constitutional

decision should mean that only in the rarest of circumstances the decision

would not be applied retroactively.

V. This Writ shall be considered an “initial” Writ of Habeas Corpus, because a dismissal and denial of a Writ are treated differently, and therefore the Trial Court maintained the power to review this

Brumant, Alicia– Appellant’s Brief 47 Writ since the first Writ was dismissed without a hearing on its merits. A “denial” of a Writ means the court addressed and rejected the merits

of a particular claim or determined that its merits are not cognizable. A

“dismissal” means the court declined to consider the claim for reasons

unrelated to the merits. Ex Parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim.

App. 2004), Ex Parte Torres, 943 S.W. 2d 469, 472 (Tex. Crim. App. 1997).

The Writ filed on behalf of the Appellant on July 13, 2013, was dismissed.

Subsequent writ applications (i.e., those filed after final disposition of an

initial application challenging the same conviction) will get the prisoner

nothing unless he meets the § 4 exceptions. However, where the initial

application did not challenge the conviction, a subsequent application doing

so will be treated as an initial application. Ex parte Evans, 964 S.W.2d 643

(Tex. Crim. App. 1998) (subsequent writ application not barred by statute

because prior application did not involve claim challenging his conviction).

See also Ex parte McPherson, 32 S.W.3d 860 (Tex. Crim. App. 2000)

(application seeking out-of-time appeal does not bar subsequent application

Brumant, Alicia– Appellant’s Brief 48 challenging conviction)31; Evans, supra (application challenging prior parole

revocation does not bar subsequent application challenging conviction).

The initial Writ for Habeas Corpus in the case before us was filed on

July 17, 2013, and was dismissed without any consideration or a hearing on

the merits. Therefore, the Writ that was dismissed never challenged the

conviction and, as such, this Writ shall be considered the initial Writ.

Appellant’s prior Writ was dismissed. However, when the prior Writ

was filed, the rule reached under Padilla could be applied retroactively

because Chaidez had not been decided. Furthermore, the holding of

Tanklevskaya was still good law and had not been overturned. 32 The first

Writ was dismissed and as such, this Writ does not count as a second Writ,

because the first Writ did not reach the merits of the case. However, even if

this Writ is to be considered a second Writ, under 11.072 § (9)(a), the Writ

may still be filed and considered if it contains sufficient specific facts

31 An initial writ of habeas corpus seeking an out-of-time appeal does not constitute a challenge to the conviction and does not bar subsequent writ applications. Ex Parte Moussazadeh, 361 S.W.3d. 684 (Tex.Crim.App. 2012). 32 Ex parte Tanklevskaya, 361 S.W.3d 86 (Tex. App.—Houston 1st Dist. 2011), held that plea counsel’s failure to specifically inform defendant that a guilty plea would render her presumptively inadmissible upon leaving and attempting to re-enter the United States constituted deficient performance and defendant was prejudiced by the deficient performance and that trial court’s statutory admonishment prior to accepting guilty plea did not cure the prejudice. This was good law until 2013, when the judgment was vacated. See Ex parte Tanklevskaya, 393 S.W.3d 787 (Crim. App. Tex. 2013). Brumant, Alicia– Appellant’s Brief 49 establishing that the current claims and issues have not been and could not

have been presented previously because the factual or legal basis for the

claim was unavailable on the date the Appellant filed the previous

application. The arguments of this Writ are based on new developments of

law that did not exist at the time the dismissed Writ was filed. At the time

the dismissed Writ was filed Chaidez had not yet been decided. Furthermore,

in the State of Texas Padilla had been applied retroactively. See Ex parte

Tanklevskaya, 361 S.W.3d 86 (Tex. App.—Houston 1st Dist. 2011), later

vacated by Ex parte Tanklevskaya, 393 S.W.3d 787 (Crim. App. Tex. 2013).

Therefore, this Writ may also be considered based upon Tex. Crim. Proc.

Code Ann. art. 11.072 § (9) (Vernon 2012).

VI. Prayer

Accordingly, Appellant has established that his plea counsel's

representation constituted deficient performance under the Sixth

Amendment, Strickland , Padilla v. Kentucky, Cuyler v. Sullivan,33 and

Thompson v. State, and that, but for counsel's deficient advice, she would not

have pleaded guilty. Furthermore, due to plea counsel's ineffective

33 Cuyler v. Sullivan, 100 S.Ct. 1708 (1980). Brumant, Alicia– Appellant’s Brief 50 assistance, Appellant involuntarily pleaded guilty. Therefore, habeas corpus

relief should be GRANTED.

Respectfully submitted,

/s/ Roberto M. Hinojosa ROBERTO M. HINOJOSA Texas Bar No. 24043730 2020 Southwest Fwy. Ste. 220 Houston, Texas 77098 Tel. (713)665-5060 Fax. (713)520-8808 Attorney for Appellant, Alicia Brumant

Brumant, Alicia– Appellant’s Brief 51 CERTIFICATE OF SERVICE

I certify that on June 10, 2015 a true and correct copy of Appellant’s brief was served via electronic filing e-service to each person listed below by the method indicated.

/s/ Roberto M. Hinojosa ROBERTO M. HINOJOSA

Via eService Only

ALAN CURRY Chief Prosecutor, Appellant Division Harris County 1201 Franklin, Suite 600 Houston, TX 77002 Tel. (713) 755-5800 Fax (713) 755-5809 Attorney for Appellee, The State of Texas

Brumant, Alicia– Appellant’s Brief 52