Opinion issued July 24, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-01043-CR ——————————— EX PARTE PEI WEN CHEN
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 99-DCR-32612HC2
MEMORANDUM OPINION
Pei Wen Chen appeals from the trial court’s order denying her petition for
writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal
Procedure.1 Chen contends that her trial counsel rendered ineffective assistance of
counsel in the year 2000 when they purportedly affirmatively misadvised Chen of
1 See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West 2005) (providing for appeal in felony or misdemeanor case in which applicant seeks relief from order or judgment of conviction ordering community supervision). the immigration consequences of her plea of no contest. We hold that Padilla v.
Kentucky, 559 U.S. 356 (2010), does not apply retroactively to this case, and that
even if Chen’s counsel’s performance was deficient under pre-Padilla law, the trial
court did not err in concluding that Chen was not prejudiced by the alleged
deficiency. Accordingly, we affirm the trial court’s judgment.
Background
On May 19, 2000, Chen pleaded no contest to a charge of credit card abuse,
a state jail felony. She was sentenced to four years’ deferred adjudication and
assessed a $500 fine, plus court costs. She also was required to perform 250 hours
of community service, pay restitution in the amount of $1,178.44, make a $50.00
donation to Fort Bend County Crime Stoppers, and write a letter of apology.
Twelve years later, on May 21, 2012, Chen filed her application for writ of
habeas corpus. Chen contended that her no-contest plea was involuntary, asserting
that Padilla applied retroactively and that her trial counsel were ineffective under
Strickland v. Washington, 466 U.S. 668 (1984), because they did not correctly
advise Chen of the immigration consequences of her plea. In 2013, after the
United States Supreme Court issued its opinion in Chaidez v. United States, 133 S.
Ct. 1103 (2013) and the Court of Criminal Appeals issued Ex parte De Los Reyes,
392 S.W.3d 675 (Tex. Crim. App. 2013), Chen filed an amended application in
which she acknowledged that Padilla does not apply retroactively. Nevertheless,
2 Chen asserted in her amended application that she is entitled to habeas relief under
pre-Padilla law because her counsel “rendered affirmative misadvice.”
A. Standard of Review and Applicable Law
We review a trial court’s denial of habeas corpus relief for an abuse of
discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011); Ex
parte Wheeler, 203 S.W.3d 317, 326 (Tex. Crim. App. 2006); Ex parte Necessary,
333 S.W.3d 782, 787 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In
conducting our review, we view the facts in the light most favorable to the trial
court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We
review questions of law de novo. Ex parte Necessary, 333 S.W.3d at 787.
The test for determining the validity of a guilty plea is whether the plea
represents a voluntary and intelligent choice among the alternative courses of
action open to the criminal defendant. North Carolina v. Alford, 400 U.S. 25, 31
(1970). The Strickland two-pronged test for ineffective assistance of counsel
applies in the plea context. Hill v. Lockhart, 474 U.S. 52, 58 (1985) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective
assistance of counsel, a criminal defendant must prove by a preponderance of the
evidence that (1) his trial counsel’s representation was deficient in that it fell below
the standard of prevailing professional norms and (2) there is a reasonable
probability that, but for counsel’s deficiency, the result of the proceeding would
3 have been different. See Strickland, 466 U.S. at 687; Salinas v. State, 163 S.W.3d
734, 740 (Tex. Crim. App. 2005). Failure to show either deficient performance or
sufficient prejudice defeats the claim of ineffectiveness. Strickland, 466 U.S. at
697.
In order to satisfy the second (prejudice) prong of the Strickland test in the
guilty plea context, a criminal defendant or habeas corpus applicant must show that
there is a reasonable probability that, but for his trial counsel’s errors, he would not
have pled guilty and would have insisted on going to trial. Hill, 474 U.S. at 59; Ex
parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). When determining
whether a defendant would have refused to plead guilty but for the allegedly
deficient advice of his trial counsel, we consider the circumstances surrounding the
plea and the gravity of the misrepresentation material to that determination. Ex
parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999).
B. Analysis
In the trial court, appellant argued that the holding in Padilla should be
applied retroactively. The United States Supreme Court held in Chaidez that
Padilla announced a “new rule” of criminal procedure so that “a person whose
conviction is already final may not benefit from the decision in a habeas or similar
proceeding.” Chaidez v. United States, 113 S. Ct. at 1107–08 (citing Teague v.
Lane, 489 U.S. 288, 301 (1989)). In addition, the Court of Criminal Appeals held
4 that Padilla’s rule does not apply retroactively under the Texas Constitution. See
Ex parte De Los Reyes, 392 S.W.3d at 679 (“defendants whose convictions became
final prior to Padilla [March 31, 2010]….cannot benefit from its holding”).
Accordingly, as Chen acknowledges, Padilla does not apply retroactively to the
representation in the underlying case. See Allen v. Hardy, 478 U.S. 255, 258 n.1
(1986) (“Final” means judgment of conviction rendered, the availability of appeal
exhausted, and the time for petition for certiorari has elapsed.”); Ex parte Martinez,
2013 WL 2949546, *3 (Tex. App.—Corpus Christi June 13, 2013, no pet.)
(“conviction became final when the trial court accepted his guilty plea and entered
an order of deferred adjudication”).
Citing Ex parte Arjona, 402 S.W.3d 312 (Tex. App.—Beaumont 2013, no pet.),
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Opinion issued July 24, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-01043-CR ——————————— EX PARTE PEI WEN CHEN
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 99-DCR-32612HC2
MEMORANDUM OPINION
Pei Wen Chen appeals from the trial court’s order denying her petition for
writ of habeas corpus pursuant to Article 11.072 of the Texas Code of Criminal
Procedure.1 Chen contends that her trial counsel rendered ineffective assistance of
counsel in the year 2000 when they purportedly affirmatively misadvised Chen of
1 See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8 (West 2005) (providing for appeal in felony or misdemeanor case in which applicant seeks relief from order or judgment of conviction ordering community supervision). the immigration consequences of her plea of no contest. We hold that Padilla v.
Kentucky, 559 U.S. 356 (2010), does not apply retroactively to this case, and that
even if Chen’s counsel’s performance was deficient under pre-Padilla law, the trial
court did not err in concluding that Chen was not prejudiced by the alleged
deficiency. Accordingly, we affirm the trial court’s judgment.
Background
On May 19, 2000, Chen pleaded no contest to a charge of credit card abuse,
a state jail felony. She was sentenced to four years’ deferred adjudication and
assessed a $500 fine, plus court costs. She also was required to perform 250 hours
of community service, pay restitution in the amount of $1,178.44, make a $50.00
donation to Fort Bend County Crime Stoppers, and write a letter of apology.
Twelve years later, on May 21, 2012, Chen filed her application for writ of
habeas corpus. Chen contended that her no-contest plea was involuntary, asserting
that Padilla applied retroactively and that her trial counsel were ineffective under
Strickland v. Washington, 466 U.S. 668 (1984), because they did not correctly
advise Chen of the immigration consequences of her plea. In 2013, after the
United States Supreme Court issued its opinion in Chaidez v. United States, 133 S.
Ct. 1103 (2013) and the Court of Criminal Appeals issued Ex parte De Los Reyes,
392 S.W.3d 675 (Tex. Crim. App. 2013), Chen filed an amended application in
which she acknowledged that Padilla does not apply retroactively. Nevertheless,
2 Chen asserted in her amended application that she is entitled to habeas relief under
pre-Padilla law because her counsel “rendered affirmative misadvice.”
A. Standard of Review and Applicable Law
We review a trial court’s denial of habeas corpus relief for an abuse of
discretion. Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011); Ex
parte Wheeler, 203 S.W.3d 317, 326 (Tex. Crim. App. 2006); Ex parte Necessary,
333 S.W.3d 782, 787 (Tex. App.—Houston [1st Dist.] 2010, no pet.). In
conducting our review, we view the facts in the light most favorable to the trial
court’s ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). We
review questions of law de novo. Ex parte Necessary, 333 S.W.3d at 787.
The test for determining the validity of a guilty plea is whether the plea
represents a voluntary and intelligent choice among the alternative courses of
action open to the criminal defendant. North Carolina v. Alford, 400 U.S. 25, 31
(1970). The Strickland two-pronged test for ineffective assistance of counsel
applies in the plea context. Hill v. Lockhart, 474 U.S. 52, 58 (1985) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective
assistance of counsel, a criminal defendant must prove by a preponderance of the
evidence that (1) his trial counsel’s representation was deficient in that it fell below
the standard of prevailing professional norms and (2) there is a reasonable
probability that, but for counsel’s deficiency, the result of the proceeding would
3 have been different. See Strickland, 466 U.S. at 687; Salinas v. State, 163 S.W.3d
734, 740 (Tex. Crim. App. 2005). Failure to show either deficient performance or
sufficient prejudice defeats the claim of ineffectiveness. Strickland, 466 U.S. at
697.
In order to satisfy the second (prejudice) prong of the Strickland test in the
guilty plea context, a criminal defendant or habeas corpus applicant must show that
there is a reasonable probability that, but for his trial counsel’s errors, he would not
have pled guilty and would have insisted on going to trial. Hill, 474 U.S. at 59; Ex
parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). When determining
whether a defendant would have refused to plead guilty but for the allegedly
deficient advice of his trial counsel, we consider the circumstances surrounding the
plea and the gravity of the misrepresentation material to that determination. Ex
parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999).
B. Analysis
In the trial court, appellant argued that the holding in Padilla should be
applied retroactively. The United States Supreme Court held in Chaidez that
Padilla announced a “new rule” of criminal procedure so that “a person whose
conviction is already final may not benefit from the decision in a habeas or similar
proceeding.” Chaidez v. United States, 113 S. Ct. at 1107–08 (citing Teague v.
Lane, 489 U.S. 288, 301 (1989)). In addition, the Court of Criminal Appeals held
4 that Padilla’s rule does not apply retroactively under the Texas Constitution. See
Ex parte De Los Reyes, 392 S.W.3d at 679 (“defendants whose convictions became
final prior to Padilla [March 31, 2010]….cannot benefit from its holding”).
Accordingly, as Chen acknowledges, Padilla does not apply retroactively to the
representation in the underlying case. See Allen v. Hardy, 478 U.S. 255, 258 n.1
(1986) (“Final” means judgment of conviction rendered, the availability of appeal
exhausted, and the time for petition for certiorari has elapsed.”); Ex parte Martinez,
2013 WL 2949546, *3 (Tex. App.—Corpus Christi June 13, 2013, no pet.)
(“conviction became final when the trial court accepted his guilty plea and entered
an order of deferred adjudication”).
Citing Ex parte Arjona, 402 S.W.3d 312 (Tex. App.—Beaumont 2013, no pet.),
Chen argues that she nevertheless is entitled to relief under pre-Padilla law
because her plea counsel did not merely fail to advise her of the immigration
consequences of her plea but, rather, affirmatively gave her incorrect advice about
those consequences. Ex parte Aronja notes in passing that there is “a possibility of
an assumed duty by counsel” who affirmatively rendered immigration advice pre-
Padilla. Id. at 319. But, ultimately, the Ninth Court of Appeals did not analyze
the merits of Aronja’s claim; it instead set aside the trial court’s order denying the
application and remanded the case to the trial court for a hearing, because the trial
court had twice scheduled but never held one. Id. at 320. Ex parte Aronja thus
5 does not support Chen’s contention that she is entitled to habeas relief here.
Even if Chen could make a case under pre-Padilla law that her counsel’s
performance was constitutionally deficient, we conclude, based upon our review of
the trial court’s findings and the record, that Chen failed to prove the second prong
of her ineffective assistance claim. See Strickland, 466 U.S. at 697 (“[A] court
need not determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged deficiencies.”).
This prong required Chen to show a reasonable probability that, but for her
counsel’s erroneous immigration advice, she would have rejected the plea bargain
and insisted on going to trial. Hill, 474 U.S. at 59.
Here, only Chen’s affidavit and that of her uncle, Tzuey-Zen Chien, support
Chen’s contentions that remaining in the United States was so important to her that
she would have rejected the plea agreement but for her counsel’s deficient
performance. The trial court did not credit this evidence; it expressly found that
Chen “did not prove that a decision to reject the plea bargain and proceed to trial
would have been rational in this case.” We conclude that we may not disturb this
finding on appeal.
First, Chen’s expert, Scott Benson, averred that Chen became immediately
deportable upon pleading no contest to the credit card abuse charge. But,
importantly, Chen would have faced the same immigration consequence if she
6 decided to go to trial and was found guilty by a jury. 8 U.S.C. § 1227 (a)(2)(A)(i)
(Supp. 2013) (alien convicted of a crime involving moral turpitude within five
years after the date of admission and for which a sentence of one year or longer
may be imposed is deportable); LaHood v. State, 171 S.W.3d 613, 620 (Tex.
App.—Houston [14th Dist.] 2005, pet. ref’d) (noting that theft is a crime of moral
turpitude and credit card abuse similarly is a crime of deception); United States v.
Ramirez, 367 F.3d 274, 277 (5th Cir. 2004) (“The term ‘conviction’ is now defined
as a formal judgment of guilt entered by the court or, if an adjudication of guilt has
been withheld, where the judge has imposed some form of punishment, penalty or
restraint on the alien’s liberty”). And, if she had risked going to trial, she faced a
sentence of up to two years’ confinement and a $10,000 fine if found guilty. Tex.
Pen. Code Ann. § 12.35 (a),(b) (West Supp. 2013). Accepting the State’s plea
offer, by contrast, allowed Chen to avoid confinement altogether.
Second, the trial court found that Chen “presented no credible evidence” of
any defense to the credit card abuse charge. Indeed, the offense report in the
record reflects that Chen confessed to the crime. Thus, the State’s case against
Chen was strong.
Third, the trial court credited the affidavit of Chen’s counsel to the effect
that “[t]here was no better deal available to Chen as the prosecutor was not willing
to offer a plea to a reduced charge.” As a result, Chen’s only options were to
7 accept the plea presented or risk being found guilty at trial, in which case she faced
up to 2 years’ confinement, a fine of up to $10,000.00, and deportation.
The record supports the trial court’s conclusion that Chen did not
demonstrate by a preponderance of the evidence that it would have been rational
for her to reject the plea bargain and proceed to trial. Therefore, we hold that
Chen was not prejudiced as a result of any alleged deficient conduct by her counsel
in the underlying case. See Ex parte Luna, 401 S.W.3d 329 (Tex. App.—Houston
[14th Dist.] 2013, no pet.) (affirming trial court’s denial of habeas relief because,
even if applicant could have made a case under pre-Padilla law that his counsel’s
performance was constitutionally deficient, applicant failed to prove the second
prong Strickland claim where he was subject to removal regardless of whether he
plead guilty or was found guilty by a jury and evidence against applicant in
underlying case was strong).
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).