Ex Parte Javier Ordonez

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00445-CR

EX PARTE JAVIER ORDONEZ, APPELLANT

On Appeal from the 69th District Court Moore County, Texas Trial Court No. 3754-W2, Honorable Ron Enns, Presiding

October 21, 2019

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Appellant, Javier Ordonez, appeals from the habeas court’s denial of his

application for writ of habeas corpus. Appellant contends that his 2005 guilty plea for

possession of a controlled substance was involuntary because his attorney affirmatively

misadvised him of the immigration consequences of his plea. We affirm the order of the

habeas court. Background

In November of 2005, pursuant to an agreed punishment recommendation,

appellant entered a plea of guilty to the offense of possession of a controlled substance,

cocaine, in an amount of less than one gram. The offense is a state jail felony.1

Appellant is a citizen of Mexico and was formerly a lawful permanent resident of

the United States. At the time of his plea, he received a Plea of Guilty, Waiver, Stipulation

and Judicial Confession, written admonishments that explained, among other things, “I

understand that if I am not a citizen of the United States that my plea may result in

deportation, the exclusion of admission to this country, or denial of naturalization under

federal law.” Appellant signed the document, acknowledging that he understood the

admonitions of the court and was aware of the consequences of his plea. Appellant’s trial

counsel also signed, indicating that he had consulted with appellant and that appellant

was aware of the consequences of his plea. During the hearing, the trial court asked

appellant if he understood everything in the document, was aware of the consequences

of his plea, had an opportunity to have the entire plea document translated,2 and had all

his questions answered. Appellant answered affirmatively to these questions from the

trial court. Appellant then testified that he reviewed the plea documents with his attorney

before the hearing, that an interpreter had translated the documents for him, and that he

did not have questions about them.

1 See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2017).

2 The record reflects that an interpreter was provided for appellant in the trial court proceedings.

2 The trial court entered an order deferring adjudication of guilt and placed appellant

on community supervision for a period of three years. In December of 2008, appellant

was successfully discharged from community supervision.

In March of 2014, when appellant was returning to Texas from a vacation abroad

with his wife, he was arrested by immigration officials at Houston’s George Bush

Intercontinental Airport. Because of his guilty plea and the deferred adjudication order

for the 2005 offense, appellant was subject to deportation. He was deported to Mexico

on May 7, 2014. His wife and four children, all of whom are U.S. citizens, have since

moved from Texas to join him there.

Appellant filed an application for writ of habeas corpus in September of 2018. He

asserted that he received ineffective assistance of counsel because his attorney

affirmatively misadvised him of the immigration consequences of his guilty plea and that

he suffered prejudice as a result. Specifically, appellant’s trial attorney restated the

admonition in the written admonishments—which explained that appellant’s plea of guilty

may result in his deportation—when in fact the plea resulted in his mandatory deportation

under federal immigration law. Appellant argues that his plea was not “intelligent and

voluntary” because he was unaware that a plea of guilty would subject him to deportation

from the United States.

Appellant’s application came on for hearing on November 28, 2018. The habeas

judge was the same trial judge who accepted appellant’s guilty plea in 2005. No

witnesses testified at the hearing, but the habeas court received into evidence exhibits

3 attached to appellant’s application and the State’s answer thereto. The evidence included

an affidavit from appellant, in which he averred:

I pleaded guilty because I thought I would only get probation. As a result of pleading guilty, I got deported. I simply signed the papers where [my attorney] told me to sign. He told me there was a portion on the plea agreement that stated that if I am not a citizen of the United States that my plea might result in my deportation but this was in all plea agreements and so I did not worry about it. I was going to get deferred adjudication and the case would be dismissed after I completed probation. So I didn’t worry about being deported. I didn’t have any problems until I was arrested by immigration at the Houston airport in 2014.

The habeas court denied the application and appellant timely appealed. Because

the habeas court did not enter findings of fact and conclusions of law, this Court granted

appellant’s motion to abate the appeal for the filing of findings of fact and conclusions of

law. The habeas court subsequently entered its findings and conclusions, which stated

that the case records “show a conviction in due form and in accordance with the laws of

the State of Texas in effect at the time of said proceedings.” The habeas court concluded

that appellant’s “allegations of ineffectiveness are groundless.”

Standard of Review

Generally, we review a habeas court’s decision on an application for writ of habeas

under an abuse of discretion standard. Ex parte Jessep, 281 S.W.3d 675, 678 (Tex.

App.—Amarillo 2009, pet. ref’d). A court abuses its discretion if its decision lies outside

the zone of reasonable disagreement. Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—

Houston [14th Dist.] 2009, pet. ref’d).

The applicant for a writ of habeas corpus has the burden of proving his allegations

by a preponderance of the evidence. Id. In reviewing the habeas court’s ruling on a

4 habeas corpus application, we must review the record evidence in the light most favorable

to the ruling, and we must uphold that ruling absent an abuse of discretion. Kniatt v.

State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We decide whether a court abused

its discretion by determining whether the court acted arbitrarily or unreasonably, that is,

without reference to any guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502

(Tex. Crim. App. 1993) (en banc). The judge of the habeas court is the factfinder in

habeas corpus proceedings and we afford the utmost deference to the judge’s

determination of the facts that are supported by the record. Ex parte Colson, No. 07-16-

00447-CR, 2017 Tex. App. LEXIS 9240, at *4 (Tex. App.—Amarillo Sept. 29, 2017, no

pet.) (mem. op., not designated for publication).

Law and Analysis

In his sole issue on appeal, appellant asserts that he received ineffective

assistance of counsel prior to pleading guilty and that the district court abused its

discretion in denying habeas relief for that reason. The Sixth Amendment to the U.S.

Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right . . .

to have the Assistance of Counsel for his defence.” U.S. CONST. amend. VI. The proper

standard for attorney performance is “reasonably effective” assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Counsel’s advice can be so deficient that it renders a guilty plea involuntary. Hill v.

Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (citing McMann v.

Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)). A guilty plea is

not knowing or voluntary if made as a result of ineffective assistance of counsel. Ex parte

Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980) (en banc).

5 To demonstrate his plea was involuntary because of ineffective assistance,

appellant must prove that (1) his counsel’s representation fell below an objective standard

of reasonableness, and (2) this deficient performance prejudiced him by causing him to

give up his right to a trial. Strickland, 466 U.S. at 687; Ex parte Morrow, 952 S.W.2d 530,

536 (Tex. Crim. App. 1997). Under the first prong of the test, appellant must overcome a

strong presumption that counsel’s performance fell within the wide range of reasonable

professional assistance. Strickland, 466 U.S. at 689. The reasonableness of counsel’s

performance is judged under prevailing professional norms. Id. at 688. This court’s

review must be highly deferential to trial counsel and avoid the deleterious effects of

hindsight. Id. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

In Padilla v. Kentucky, the Supreme Court held that, for purposes of the Sixth

Amendment right to effective assistance of counsel, “counsel must inform her client

whether his plea carries a risk of deportation.” 559 U.S. 356, 374, 130 S. Ct. 1473, 176

L. Ed. 2d 284 (2010). However, both the United States Supreme Court and the Texas

Court of Criminal Appeals have determined that the rule announced in Padilla in 2010

does not apply retroactively, so it does not apply to appellant’s 2005 proceeding. See

Chaidez v. United States, 568 U.S. 342, 344, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013);

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

But in this case, appellant’s specific complaint on appeal is not that his trial counsel

failed to advise him of a risk of deportation. Instead, he asserts that his trial counsel

misadvised him that his plea of guilty “may” have adverse immigration consequences.

This advice was wrong, appellant contends, because under federal law, “Any alien who

at any time after admission has been convicted of a violation of . . . any law or regulation

6 of a State, the United States, or a foreign country relating to a controlled substance . . . is

deportable.” 8 U.S.C. § 1227(a)(2)(B)(i) (2012).3 Deferred adjudication constitutes a

“conviction” under federal immigration law. 8 U.S.C. § 1101(a)(48)(A) (2012).

Additionally, “any alien convicted of, or who admits having committed . . . a violation

of . . . any law or regulation of a State, the United States, or a foreign country relating to

a controlled substance . . . is inadmissible” to the United States. 8 U.S.C.

§ 1182(a)(2)(A)(i)(II) (2012).

Appellant asserts that “[t]ruthful immigration advice was certain deportation.” He

maintains that his claim therefore falls within the “affirmative misadvice” category of cases

discussed in Ex parte Garcia, 547 S.W.3d 228, 229-30 (Tex. Crim. App. 2018) (citing Lee

v. United States, 137 S. Ct. 1958, 1962, 198 L. Ed. 2d 476 (2017)). In Garcia, the Court

of Criminal Appeals explained that an affirmative misadvice claim, where an attorney is

under no duty to render immigration-consequence advice but renders incorrect advice to

the client, is cognizable and differs from Padilla’s imposition of an affirmative duty to

advise a client of the immigration consequences of a plea in certain cases. Id. at 230.

Such claims are therefore “more akin to bad-probation advice claims and bad parole-

eligibility claims,” according to the Court. Id.

We recognize that, under Garcia, affirmative misadvice regarding immigration

consequences can give rise to a claim of ineffective assistance of counsel. The facts of

this case, however, are distinguishable from Garcia. In Garcia, when the defendant asked

his attorney about potential adverse immigration consequences, his attorney told him that

3 Appellant was ineligible to apply for discretionary relief from deportation because he had not lawfully resided in the United States for the requisite number of years prior to the date of the commission of the offense. See 8 U.S.C. § 1229b(a)(1) (2012).

7 he “would probably be okay” and “the charge would probably not result in deportation.”

Id. at 228-29. In short, Garcia’s trial counsel indicated that Garcia’s immigration status

was not a matter of concern.

Here, on the other hand, appellant’s trial counsel did not suggest that appellant

had no cause for concern. Instead, he correctly advised him that his guilty plea carried a

risk of deportation. Appellant’s trial counsel testified in an affidavit that he discussed the

case “fully” with appellant and explained to appellant the portion of the paperwork that

states, “I understand that if I am not a citizen of the United States that my plea may result

in deportation, the exclusion of admission to this country, or denial of naturalization under

federal law.” Trial counsel added, “I did not give [appellant] any advice on immigration

issues other than this provision. I certainly did not tell him such consequences could be

ignored.”

The record reflects that appellant informed the trial court that he understood the

consequences of his plea. There is no indication that appellant sought any additional

information or clarification regarding the immigration-related admonishments.

Although appellant’s trial counsel did not inform him that his deportation was a

certainty, as appellant suggests he should have, he did advise appellant that deportation

was a potential consequence of his plea. This advice was correct. Appellant’s plea of

guilty was made with the knowledge that there was a possibility of an adverse effect on

his immigration status.

In its findings of fact and conclusions of law, the habeas court determined that

appellant’s allegations of ineffective assistance were groundless. We cannot conclude

8 on this record that the habeas court abused its discretion in determining that appellant’s

trial counsel rendered reasonably competent assistance when he informed him that his

plea carried a risk of deportation.

Prejudice

Because he has not met his burden to establish deficient performance, we do not

reach the question of whether appellant has shown he was prejudiced. See Strickland,

466 U.S. at 697.

Conclusion

We affirm the habeas court’s order denying relief on appellant’s application for writ

of habeas corpus.

Judy C. Parker Justice

Do not publish.