Ex Parte Felipe Nery Luna

Opinion

Opinion issued June 18, 2013.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00054-CR ——————————— EX PARTE FELIPE NERY LUNA

On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 06DCR043655

MEMORANDUM OPINION

Felipe Nery Luna appeals from the trial court’s order denying him habeas

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

TEX. CODE CRIM. PROC. ANN. art. 11.072 (West 2005). Luna contends that the trial

court erred in denying his requested relief in light of his counsel’s alleged failure to

discuss the clear immigration consequences of his guilty plea, in violation of

Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010). We affirm. Background

In 2006, Luna, a citizen of El Salvador and an undocumented alien in the

United States, was charged with one count of aggravated assault with a deadly

weapon and one count of assault causing bodily injury. On June 8, 2006, Luna

pleaded guilty to the aggravated assault with a deadly weapon charge, a second

degree felony punishable by imprisonment for a term of not more than twenty

years or less than two years, and a maximum $10,000 fine. See TEX. PENAL CODE

ANN. § 22.02(a), (b) (West 2011); id. § 12.33. Pursuant to his plea agreement with

the State, the trial court deferred adjudication of Luna’s guilt and placed him on

community supervision for eight years.

On September 19, 2011, the Department of Homeland Security initiated

removal proceedings against Luna on the grounds that he was present in the United

States without being admitted or paroled and that his conviction of a crime of

moral turpitude rendered him removable from the United States. See 8 U.S.C.

§ 1182(a)(6)(A)(i) (West 2013) (stating that “[a]n alien present in the United States

without being admitted or paroled, or who arrives in the United States at any time

or place other than as designated by the Attorney General, is inadmissible” and

“ineligible to be admitted to the United States”); id. § 1227(a)(2)(A) (stating that

alien is deportable if he is convicted of crime of moral turpitude for which sentence

of one year or longer may be imposed, within five years after date of admission). On December 4, 2012, Luna filed an application for a writ of habeas corpus,

alleging that his plea counsel did not adequately advise him of the immigration

consequences of his guilty plea and, therefore, provided ineffective assistance of

counsel under Padilla. At the hearing on January 10, 2013, Luna testified that his

plea counsel, Hector Ruiz, did not tell him about the immigration consequences of

his guilty plea, and, had he known the immigration consequences of his plea, he

would have insisted on going to trial. Ruiz testified that, although he could not

remember the specifics of his conversation with Luna, it was his strict practice to

go over each admonishment contained in the plea papers, including the

admonishment relating to the possible immigration consequences of a guilty plea,

with his clients. He further testified that his notes did not reflect that Luna had

expressed any concerns about his immigration status after Ruiz reviewed the

admonishment contained in the plea papers. Following the hearing, the trial court

denied Luna’s requested habeas relief. Luna appealed.

Ineffective Assistance of Counsel

In his petition for writ of habeas corpus and on appeal, Luna argues that he

received ineffective assistance because his plea counsel did not comply with

Padilla. In Padilla, the United States Supreme Court held that counsel’s “advice

regarding deportation is not categorically removed from the ambit of the Sixth

Amendment right to counsel” and, therefore, counsel for a criminal defendant is required to provide advice regarding the immigration consequences following a

guilty plea. Padilla, 559 U.S. at ___, 130 S. Ct. at 1482. However, the United

States Supreme Court has since held that Padilla announced a new rule of criminal

procedure and, therefore, does not apply retroactively. Chaidez v. United States,

568 U.S. ___, 133 S. Ct. 1103, 1113 (2013). The Texas Court of Criminal Appeals

has recognized the holding in Chaidez and held that Padilla does not apply

retroactively under the Texas Constitution. Ex parte De Los Reyes, 392 S.W.3d

675, 679 (Tex. Crim. App. 2013) (explicitly rejecting the opportunity to accord

retroactive effect to Padilla as matter of state habeas law); see also Ibarra v. State,

No. 01-12-00292-CR, 2013 WL 1163967, at *2 (Tex. App.—Houston [1st Dist.]

Mar. 21, 2013, no pet.) (declining to apply Padilla retroactively in light of

Chaidez).

Here, Luna pleaded guilty in 2006, four years before Padilla was decided.

In light of the holdings in Chaidez and Ex parte De Los Reyes, we conclude that

Padilla does not apply retroactively to Ruiz’s representation of Luna in the

underlying case. See Chaidez, 568 U.S. at ___, 133 S. Ct. at 1113; Ex parte De

Los Reyes, 392 S.W.3d at 679.

Luna does not argue that his counsel’s performance was deficient under pre-

Padilla law; therefore, we overrule Luna’s sole issue on appeal. See, e.g., Ex parte Juarez, No. 14-12-00564-CR, 2013 WL 1316768, at *1 (Tex. App.—Houston

[14th Dist.] Apr. 2, 2013, no pet.) (mem. op., not designated for publication).

Conclusion

We affirm the trial court’s order denying habeas corpus relief.

Rebeca Huddle Justice

Panel consists of Justices Jennings, Brown, and Huddle.

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