Opinion issued August 6, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00922-CR ——————————— EX PARTE GREGORIO VASQUEZ MANDUJANO, Applicant-Appellant
Original Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
Gregorio Vasquez Mandujano appeals from the denial of his application for
a writ of habeas corpus, contending that his plea counsel’s failure to provide
accurate immigration advice as required under Padilla v. Kentucky, 559 U.S. 356,
130 S. Ct. 1473 (2010), amounted to constitutionally ineffective assistance of
counsel in violation of the Sixth Amendment and, as a result, rendered his guilty plea involuntary. We hold that the trial court acted within its discretion in denying
the application and affirm.
Background
Vasquez Mandujano, a citizen of Mexico, had held lawful permanent
resident status in the United States since 2006. In August 2011, Officer Mesa of
the Houston Police Department stopped Vasquez Mandujano for failure to use his
right turn signal. The officer found cocaine in the center console of the car.
Vasquez Mandujano was the driver and the sole occupant. He was charged with
the state jail felony of possession of a controlled substance, namely, cocaine, less
than one gram by aggregate weight, including any adulterants and dilutants. See
TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2009); TEX. PENAL CODE
ANN. § 12.35(a) (West 2011).
Through counsel, Vasquez Mandujano reached a plea agreement with the
State in which he pleaded guilty in exchange for two years’ community service and
deferred adjudication. On January 6, 2012, the trial court held a plea hearing,
during which a Spanish-English interpreter assisted in translating the proceedings
for Vasquez Mandujano and the Court.
The trial court admonished Vasquez Mandujano as follows:
Q. Mr. Mandujano, it’s come to my attention you plan on – or your intent is to plead guilty to possession of a controlled substance and have the Court defer a finding of guilt and place you on two-year
2 probation. I want to make sure you understand, even if you are a lawful permanent resident here, if you plead guilty to certain types of offenses, the federal government can automatically deport you, even if it’s considered a deferred adjudication, because under the federal government immigration law, deferred is considered a conviction. Possession of a controlled substance under the federal immigration law is considered an aggravated felony offense and you become automatically deportable. I want to make sure it’s clear now.
Have you had an opportunity to discuss with your attorney what will happen to your immigration status if you plead guilty to this offense?
A. If I file my papers, it can be taken away from me.
Q. No, that wasn’t my question. My question was have you had an opportunity to talk to your attorney about what would happen to your immigration status if you plead guilty to this offense? That’s either “yes” or “no.”
A. Yes.
Q. What is your understanding is going to happen to you if you plead guilty to this possession of a controlled substance as it relates to your immigration status?
A. If I fail or something, I could be deported.
Q. If you fail. I don’t understand what you mean.
A. For example, if I’m going to get this probation, can I be deported for this?
Q. That’s what I’m trying to make sure you understand. You are automatically deportable if you accept this probation and plead guilty. Once I place you on probation, the federal government can start deportation hearings against you. Do you understand all that?
A. Yes, I do.
3 Q. Knowing that, that you are automatically deportable once you get placed on this probation, . . . the federal government can start deportation hearings, do you still want to go forward with this plea of guilty or do you want to try to see if you can try the case and have a jury find you not guilty in hopes of avoiding this issue of deportation?
A. I’d rather go to trial.
Q. All right.
The court set the case on the trial docket.
The parties returned to court on February 3, not for trial, but to enter the plea
agreement. The record does not contain a transcript of this plea hearing. The trial
court found that Vasquez Mandujano appeared with counsel, and the State and a
certified Spanish-English court interpreter also were present. The visiting judge
officiated the admonishments, and the parties signed the plea papers.
Subsequently, Immigrations and Customs Enforcement [ICE] apprehended
Vasquez Mandujano, placed him on an immigration hold, and instituted
deportation proceedings. ICE charged that Vasquez Mandujano was subject to
removal from the United States under section 237(a)(2)(B)(i) of the Immigration
and Nationality Act, which provides:
Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is . . . convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)),
4 other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i).
Habeas Corpus
I. Applicable Law and Standard of Review
Vasquez Mandujano challenges the trial court’s denial of his application for
habeas corpus relief, contending that his plea counsel rendered ineffective
assistance under Strickland v. Washington by failing to accurately inform him that
his guilty plea would make him automatically subject to removal from the United
States. In Padilla, the Supreme Court held that the Sixth Amendment requires an
attorney for a criminal defendant to provide advice about the risk of deportation
arising from a guilty plea. 559 U.S. at ___, 130 S. Ct. at 1473. Vasquez
Mandujano entered his plea after the United States Supreme Court decided Padilla,
so this is not a case in which retroactivity bars Padilla’s application. See Chaidez
v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1113 (2013); Ibarra v. State,
No. 01-12-00292-CR, ___ S.W.3d ___, 2013 WL 1163967, *2 (Tex. App.—
Houston [1st Dist.] Mar. 21, 2013, no pet.).
An applicant seeking habeas corpus relief based on an involuntary guilty
plea must prove his claim by a preponderance of the evidence. Kniatt v. State, 206
S.W.3d 657, 664 (Tex. Crim. App.2006) (citing Ex parte Morrow, 952 S.W.2d
530, 535 (Tex. Crim. App. 1997)). The applicant bears the burden to establish that
5 a reasonable probability exists that, but for counsel’s advice, he would not have
pleaded guilty and would have insisted on going to trial. Ex parte Ali, 368 S.W.3d
827, 835 (Tex. App.—Austin 2012, pet. ref’d). Further, the applicant must show
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Opinion issued August 6, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00922-CR ——————————— EX PARTE GREGORIO VASQUEZ MANDUJANO, Applicant-Appellant
Original Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
Gregorio Vasquez Mandujano appeals from the denial of his application for
a writ of habeas corpus, contending that his plea counsel’s failure to provide
accurate immigration advice as required under Padilla v. Kentucky, 559 U.S. 356,
130 S. Ct. 1473 (2010), amounted to constitutionally ineffective assistance of
counsel in violation of the Sixth Amendment and, as a result, rendered his guilty plea involuntary. We hold that the trial court acted within its discretion in denying
the application and affirm.
Background
Vasquez Mandujano, a citizen of Mexico, had held lawful permanent
resident status in the United States since 2006. In August 2011, Officer Mesa of
the Houston Police Department stopped Vasquez Mandujano for failure to use his
right turn signal. The officer found cocaine in the center console of the car.
Vasquez Mandujano was the driver and the sole occupant. He was charged with
the state jail felony of possession of a controlled substance, namely, cocaine, less
than one gram by aggregate weight, including any adulterants and dilutants. See
TEX. HEALTH & SAFETY CODE ANN. § 481.112 (West 2009); TEX. PENAL CODE
ANN. § 12.35(a) (West 2011).
Through counsel, Vasquez Mandujano reached a plea agreement with the
State in which he pleaded guilty in exchange for two years’ community service and
deferred adjudication. On January 6, 2012, the trial court held a plea hearing,
during which a Spanish-English interpreter assisted in translating the proceedings
for Vasquez Mandujano and the Court.
The trial court admonished Vasquez Mandujano as follows:
Q. Mr. Mandujano, it’s come to my attention you plan on – or your intent is to plead guilty to possession of a controlled substance and have the Court defer a finding of guilt and place you on two-year
2 probation. I want to make sure you understand, even if you are a lawful permanent resident here, if you plead guilty to certain types of offenses, the federal government can automatically deport you, even if it’s considered a deferred adjudication, because under the federal government immigration law, deferred is considered a conviction. Possession of a controlled substance under the federal immigration law is considered an aggravated felony offense and you become automatically deportable. I want to make sure it’s clear now.
Have you had an opportunity to discuss with your attorney what will happen to your immigration status if you plead guilty to this offense?
A. If I file my papers, it can be taken away from me.
Q. No, that wasn’t my question. My question was have you had an opportunity to talk to your attorney about what would happen to your immigration status if you plead guilty to this offense? That’s either “yes” or “no.”
A. Yes.
Q. What is your understanding is going to happen to you if you plead guilty to this possession of a controlled substance as it relates to your immigration status?
A. If I fail or something, I could be deported.
Q. If you fail. I don’t understand what you mean.
A. For example, if I’m going to get this probation, can I be deported for this?
Q. That’s what I’m trying to make sure you understand. You are automatically deportable if you accept this probation and plead guilty. Once I place you on probation, the federal government can start deportation hearings against you. Do you understand all that?
A. Yes, I do.
3 Q. Knowing that, that you are automatically deportable once you get placed on this probation, . . . the federal government can start deportation hearings, do you still want to go forward with this plea of guilty or do you want to try to see if you can try the case and have a jury find you not guilty in hopes of avoiding this issue of deportation?
A. I’d rather go to trial.
Q. All right.
The court set the case on the trial docket.
The parties returned to court on February 3, not for trial, but to enter the plea
agreement. The record does not contain a transcript of this plea hearing. The trial
court found that Vasquez Mandujano appeared with counsel, and the State and a
certified Spanish-English court interpreter also were present. The visiting judge
officiated the admonishments, and the parties signed the plea papers.
Subsequently, Immigrations and Customs Enforcement [ICE] apprehended
Vasquez Mandujano, placed him on an immigration hold, and instituted
deportation proceedings. ICE charged that Vasquez Mandujano was subject to
removal from the United States under section 237(a)(2)(B)(i) of the Immigration
and Nationality Act, which provides:
Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is . . . convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)),
4 other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i).
Habeas Corpus
I. Applicable Law and Standard of Review
Vasquez Mandujano challenges the trial court’s denial of his application for
habeas corpus relief, contending that his plea counsel rendered ineffective
assistance under Strickland v. Washington by failing to accurately inform him that
his guilty plea would make him automatically subject to removal from the United
States. In Padilla, the Supreme Court held that the Sixth Amendment requires an
attorney for a criminal defendant to provide advice about the risk of deportation
arising from a guilty plea. 559 U.S. at ___, 130 S. Ct. at 1473. Vasquez
Mandujano entered his plea after the United States Supreme Court decided Padilla,
so this is not a case in which retroactivity bars Padilla’s application. See Chaidez
v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1113 (2013); Ibarra v. State,
No. 01-12-00292-CR, ___ S.W.3d ___, 2013 WL 1163967, *2 (Tex. App.—
Houston [1st Dist.] Mar. 21, 2013, no pet.).
An applicant seeking habeas corpus relief based on an involuntary guilty
plea must prove his claim by a preponderance of the evidence. Kniatt v. State, 206
S.W.3d 657, 664 (Tex. Crim. App.2006) (citing Ex parte Morrow, 952 S.W.2d
530, 535 (Tex. Crim. App. 1997)). The applicant bears the burden to establish that
5 a reasonable probability exists that, but for counsel’s advice, he would not have
pleaded guilty and would have insisted on going to trial. Ex parte Ali, 368 S.W.3d
827, 835 (Tex. App.—Austin 2012, pet. ref’d). Further, the applicant must show
that a decision to reject the plea bargain would have been rational under the
circumstances. Padilla, 559 U.S. at ___, 130 S. Ct. at 1485.
When reviewing a trial court’s ruling on a habeas corpus application, we
view the evidence presented in the light most favorable to that ruling, and we must
uphold that ruling absent an abuse of discretion. Ali, 368 S.W.3d at 831 (citing Ex
parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on
other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007)).
We give almost total deference to a trial court’s fact findings in habeas
proceedings, particularly when they are based upon an evaluation of credibility and
demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App.2006)
(quoting Ex parte White, 160 S.W.3d 46, 50 (Tex. Crim. App. 2004)); see also Ex
parte Wheeler, 203 S.W.3d 317, 324 n.23 (Tex. Crim. App. 2006) (noting that we
should also defer to trial court’s “implicit factual findings” that support trial court’s
ultimate ruling); Peterson, 117 S.W.3d at 819 (noting same). We similarly defer to
the trial court’s application of the law to the facts if that resolution turns upon
credibility and demeanor determinations. Peterson, 117 S.W.3d at 819. If the
6 resolution of the ultimate question turns on an application of law, we review the
determination de novo. Id.
II. Analysis
Vasquez Mandujano specifically claims that his plea counsel misinformed
him that a guilty plea could make him subject to deportation, not that it would
automatically subject him to deportation. Padilla declares that, if a deportation
consequence is truly clear, such as when the client is subject to automatic
deportation, the duty to give correct advice is equally clear, and constitutionally
competent counsel must advise the client accordingly. 559 U.S. at ___, 130 S. Ct.
at 1478, 1483.
At the habeas hearing, Vasquez Mandujano and his plea counsel disputed
the accuracy of plea counsel’s advice about the effect of a guilty plea on Vasquez
Mandujano’s immigration status. Vasquez Mandujano equivocated in his own
testimony on the issue. The record shows that the trial court expressly admonished
Vasquez Mandujano that he would become automatically deportable if he pleaded
guilty and accepted the probation, and the trial court found that, following the
admonishment, Vasquez Mandujano understood that he would be automatically
deportable if he entered a guilty plea. We defer to the trial court’s finding on this
issue, as its resolution turns on an evaluation of the witnesses’ credibility and
demeanor. See Ex parte Amezquita, 223 S.W.3d at 367.
7 With respect to the second prong of Strickland, the record supports the trial
court’s finding that Vasquez Mandujano opted for the plea agreement because he
wanted to keep his job, if possible, and did not want to risk going to jail. As a
result, the trial court acted within its discretion in concluding that Vasquez
Mandujano failed to prove that, but for any faulty advice, he would have rejected
the plea agreement and have gone to trial.
Conclusion
We affirm the trial court’s order denying habeas relief.
Jane Bland Justice
Panel consists of Justices Keyes, Higley, and Bland.
Do not publish. TEX.R.APP. P. 47.2(b)