On Appeal from the County Criminal Court at Law No. 1 Harris County, Texas Trial Court Cause No. 1805540A
Panel consists of Justices Keyes, Sharp, and Huddle.
OPINION
Rebeca Huddle Justice
Stanley Anozie Obi challenges the trial court’s denial of the requested habeas relief. In his sole issue on appeal, Obi contends that his trial counsel rendered ineffective assistance by failing to adequately advise him of the immigration consequences of his guilty plea for the misdemeanor offense of assault of a family member. We affirm.
BACKGROUND
On January 24, 2012, Obi pleaded guilty to assault of a family member, a misdemeanor offense punishable by up to one year in prison and a $4, 000 fine. Pursuant to his plea agreement with the State, the trial court deferred adjudication of his guilt and placed him on community supervision for eighteen months. Shortly after Obi pleaded guilty, the Department of Homeland Security initiated removal proceedings against Obi, who is a Nigerian citizen and a legal permanent resident of the United States, on the ground that his conviction for a crime of moral turpitude rendered him removable from the United States. See 8 U.S.C.S § 1227(a)(2)(A) (LexisNexis 2007 & Supp. 2013) (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 June 13, 2012, Obi 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 v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473 (2010), rendering his guilty plea involuntary. In support of his application, Obi attached his own affidavit as well as the affidavit of his plea counsel, Allen Guidry.
Obi’s affidavit stated that he and his wife argued the night before he was arrested for assaulting her. He stated that his wife was abusing him and the children, so he called the police, but his wife left the house before police arrived. The following day, his wife called the police to report that Obi physically and sexually assaulted her, which Obi claimed was false and was retaliation for his calling the police the night before. Obi claimed he told Guidry the above information but that Guidry failed to investigate his claim. Obi asserted that Guidry advised him to plead to the deferred adjudication because deferred adjudication is not a conviction and he could "avoid a final conviction on [his] record by taking the plea." He stated that Guidry did not tell him that deferred adjudication is considered a conviction for immigration purposes or that his guilty plea would subject him to mandatory deportation. Rather, according to Obi, Guidry merely read him the general warnings regarding immigration consequences contained in the plea papers.[1] He further stated that had he been correctly advised that deferred adjudication is a conviction for immigration purposes and that a guilty plea would subject him to mandatory deportation, he would not have pleaded guilty and would have taken his case to trial.
Guidry testified that he gave more thorough advice. His affidavit stated that he "read the admonishments contained in the plea papers" and also "advised [Obi] that he may be deported for this offense and that this plea would be used against [him] in any immigration hearings related to deportation." Guidry further averred that Obi never claimed to be innocent of the crime because, if he had, Guidry would not have advised him to plead guilty in this matter. Rather, Obi asked if Guidry could get him a better deal, and Guidry responded that this was the lowest offer the State was willing to make that day. Guidry averred that Obi agreed to plead guilty, signed the plea papers that included the general admonishments about immigrations consequences of a guilty plea, and received the trial judge’s admonishments regarding deportation, which tracked the language contained in the plea papers. When the judge asked Obi whether the immigration admonishment changed Obi’s decision to plead guilty, Obi answered no.
The trial court conducted a hearing on Obi’s application and heard live testimony from Obi and Guidry. Obi testified that he met with Guidry one time, for about ten to fifteen minutes, to discuss his plea. He informed Guidry that he was a legal permanent resident and asked what effect a guilty plea would have on his status. Obi stated that Guidry told him that, because deferred adjudication was not a conviction, his case would be dismissed immediately after he completed the probation and it would not affect his immigration status. Obi testified that Guidry did not tell him that he would be deported as a result of the plea. Rather, according to Obi, Guidry only read the general admonishment contained in the plea papers and did not go into more detail about the immigration consequences of a guilty plea. He testified that he would have gone to trial had he known that a guilty plea would result in his deportation.
By contrast, Guidry testified that he not only read the immigration admonishment contained in the plea papers to Obi, but also elaborated on the consequences of a guilty plea on Obi’s immigration status after he determined Obi was not a citizen of the United States. Guidry had recently received CLE training on the Padilla case, so once he discovered that Obi was not a citizen of the United States, he knew he needed to make Obi aware of the immigration consequences of a guilty plea. Guidry also testified that he knew he had a duty under Padilla to advise defendants considering entering guilty pleas for certain offenses that they will be subject to deportation as a result of those pleas and that it is not enough merely to advise a defendant that he may be deported. Guidry testified that after he read the admonishment verbatim, he advised Obi that the consequences of his plea "will result in him being subject to deportation." Guidry further testified that he told Obi he "would be subject to deportation"—but not that he "would be deported"—because a removal hearing would be held before Obi was deported and Guidry could not predict its outcome with certainty.
The trial court denied Obi’s requested relief and issued findings of fact and conclusions of law. It found: (1) Guidry’s testimony was a true and credible statement of the facts of this case; (2) prior to Obi pleading guilty, Guidry read the admonishment regarding immigration consequences in the plea papers; (3) Guidry further told Obi that the consequences of his plea would result in him being subject to deportation; (4) Guidry told Obi that he was "subject to deportation" instead of using the language "would be deported" because deportation would be determined after a future hearing of which he could not predict the outcome; (5) after receiving the information regarding the consequences of his guilty plea, Obi did not reject the state’s plea bargain and request a trial but instead signed the guilty plea; and (6) the trial court reiterated the immigration consequences admonishment contained in the plea papers and specifically asked Obi if he wanted to proceed with a plea of guilty, to which Obi responded that he did. The trial court concluded that Guidry’s performance did not fall below the objectively reasonable standard regarding potential immigration consequences as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) and Padilla and, therefore, Obi freely and voluntarily entered his guilty plea. Obi appealed.
INEFFECTIVE ASSISTANCE
In his sole issue on appeal, Obi contends that the trial court erred in denying habeas corpus relief because his plea counsel rendered ineffective assistance under Strickland and Padilla. Specifically, Obi argues that (1) Guidry’s testimony at the habeas hearing was not credible because it contradicted his affidavit, and (2) even if Guidry’s testimony that he informed Obi that he "would be subject to deportation" as a result of his guilty plea was credible, under Padilla, Guidry was required to provide more specific advice because Obi’s removability was presumptively mandatory.
A. Standard of Review
We review a trial court’s determination on an application for writ of habeas corpus for an abuse of discretion. Ex parte Murillo, 389 S.W.3d 922, 926 (Tex. App.—Houston [14th Dist.] 2013, no pet.). The applicant has the burden to prove his claim by a preponderance of the evidence. Id. In reviewing a trial court’s decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court’s ruling. Id. The appellate court affords almost total deference to a trial court’s factual findings in habeas proceedings when supported by the record, especially when those findings are based on credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006); Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin 2012, pet. ref’d).
B. Applicable Law
Obi sought habeas relief on the theory that he was denied effective assistance of counsel under Strickland, and such ineffectiveness rendered his guilty plea involuntary under Padilla. 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 defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164 (1970). The two-pronged Strickland test applies to challenges to guilty pleas, such as the one in the present case, premised on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370 (1985). Thus, to be entitled to relief, Obi was required to show by a preponderance of the evidence that (1) trial counsel’s performance fell below the objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. at 2068. Failure to establish either deficient performance or prejudice will defeat a claim of ineffectiveness. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
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 the two-pronged Strickland test applies to a claim that counsel’s advice regarding the immigration consequences following a guilty plea was deficient.[2] See Padilla, 130 S.Ct. at 1482. "The weight of prevailing professional norms supports the view that counsel must advise [his] client regarding the risk of deportation." Id. But, the extent of counsel’s advice depends on the terms of the relevant immigration statute. See Ex parte Ali, 368 S.W.3d at 834. When "the terms of the relevant immigration statutes are succinct, clear, and explicit in defining the removal consequence" of a conviction and "the deportation consequence is truly clear, " counsel’s duty to give correct advice regarding the immigration consequences of a guilty plea "is equally clear." Padilla, 130 S.Ct. at 1483. However, "[w]hen the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id.
C. Deficient Performance
Obi first argues that Guidry’s claim at the habeas hearing—that he informed Obi that he "would be subject to deportation" as a consequence of his guilty plea— is not credible because it conflicts with Guidry’s statement in his affidavit that he informed Obi he "may be deported" for this offense. Obi also contends that Guidry’s testimony regarding his advice on the immigration consequences of Obi’s plea conflicts with other statements Guidry made during the hearing, such as his statements that he did not read the relevant sections of the Immigration and Nationality Act (INA) and that he did not know for certain whether Obi would be deported.
These arguments turn on the credibility of the witnesses. In his affidavit and at the habeas hearing, Obi stated that Guidry only read the general admonishment contained in the plea papers and said nothing else about the immigration consequences of a guilty plea. Guidry, on the other hand, stated in his affidavit that he informed Obi that he "may be deported for this offense and that this plea would be used against [him] in any immigration hearings related to deportation." At the hearing, Guidry testified that his affidavit did not reflect the entirety of his interaction with Obi. He testified that he not only read Obi the immigration admonishment contained in the plea papers, but also explained that by pleading guilty, Obi would be subject to deportation. Guidry testified that the reason he used the words "would be subject to deportation"—rather than "would be deported"—was because the actual deportation consequence would be determined following a hearing, the outcome of which Guidry could not predict. The trial court expressly found that Guidry’s testimony was a "true and credible statement of the facts of this case." The finding is supported by the record and, therefore, we must defer to the trial court’s credibility judgment. See Ex parte Amezquita, 223 S.W.3d at 367; Ex parte Ali, 368 S.W.3d at 830.
Therefore, we turn to whether Obi satisfied the first prong of Strickland. Padilla, 130 S.Ct. at 1482. Obi pleaded guilty to misdemeanor assault of a family member and, consequently, was deemed removable and ordered to appear before an immigration judge pursuant to 237(a)(2)(A)(i) of the INA, as amended. See 8 U.S.C. § 1227(a)(2)(A)(i). Section 1227(a)(2)(A)(i) provides that "[a]ny alien who . . . is convicted of a crime involving moral turpitude[3] committed within five years . . . after the date of admission, and . . . is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable." Id. And, there is another provision of the INA that supports the conclusion that, upon entry of his guilty plea for assault of a family member, Obi was deportable: "[a]ny alien who at any time after admission is convicted of a crime of domestic violence . . . is deportable." 8 U.S.C. § 1227(a)(2)(E)(i). A "crime of domestic violence" includes "any crime of violence[4] . . . against a person committed by a current or former spouse of the person." Id. Based on these statutes, Obi was presumptively deportable from the United States as a result of his guilty plea to misdemeanor assault of a family member, and Guidry had a duty to inform Obi of this. See Ex parte Murillo, 389 S.W.3d at 931 (noting that applicant was presumptively deportable based on his guilty plea to assault of a family member).
Relying primarily on our opinion in Ex parte Tanklevskaya, 361 S.W.3d 86 (Tex. App.—Houston [1st Dist.] 2011), judgment vacated by Ex parte Tankleskaya, 393 S.W.3d 787 (Tex. Crim. App. 2013), Obi contends that even if Guidry’s testimony at the habeas hearing—that he informed Obi he would be subject to deportation—is to be believed, that advice was insufficient. In Tanklevskaya, we held counsel’s performance deficient under Strickland’s first prong because, while he informed Tanklevskaya of the general immigration consequences of her guilty plea, he failed to inform her that they were a "virtual certainty." Tanklevskaya, 361 S.W.3d at 97. Similarly, in Enyong, we held that the deportation consequences of a misdemeanor conviction for assault of a family member were "truly clear" and counsel, who only reviewed the general admonishments in the plea papers, but did not advise his client that removal was virtually certain and presumptively mandatory, rendered deficient performance. Enyong v. State, 369 S.W.3d 593, 601–02 (Tex. App.—Houston [1st Dist.] 2012), judgment vacated by Ex parte Enyong, 397 S.W.3d 208 (Tex. Crim. App. 2013)
We note that the Texas Court of Criminal Appeals has vacated Tanklevskaya and Enyong in light of Chaidez. See Tanklevskaya 393 S.W.3d at 787; Ex parte Enyong, 397 S.W.3d at 208. However, even if we accorded precedential value to these vacated opinions, we would conclude that Guidry, unlike counsel in those two cases, discharged his duty by informing Obi that he "would be subject to deportation" as a result of his guilty plea. Despite Obi’s assertion to the contrary, and unlike the counsel in Tanklevskaya and Enyong, Guidry did more than read the general admonishment in the plea papers or simply inform Obi of the "possible" immigration consequences of his guilty plea. After reviewing the admonishment contained in the plea papers, Guidry specifically told Obi he would be subject to deportation and that his guilty plea would be used by the federal government in those deportation proceedings. We do not interpret Padilla, or the cases applying it, to require counsel to use the words "presumptively mandatory" or "virtually certain" to describe the likelihood or certainty of deportation, provided the words used convey the same meaning. Here, Guidry told Obi that his plea would make him deportable under immigration law by advising him that he "would be subject to deportation" as a result of his guilty plea. We conclude that Guidry, in so advising Obi, discharged his duty under Padilla. See Ex parte Hernandez, No. 05-12-00737-CR, 2013 WL 363779, at *4 (Tex. App.—Dallas Jan. 31, 2013, no pet.) (not designated for publication) (holding that counsel’s advice that a guilty plea would have "fatal" deportation consequences satisfied counsel’s obligations to render correct immigration advice); Ex parte Gonzales, No. 10-10-00441-CR, 2012 WL 3629366, at *3 (Tex. App.—Waco Aug. 23, 2012, no pet.) (mem. op., not designated for publication) (holding that counsel did not render ineffective assistance where counsel testified he told defendant that her guilty plea "would" make her deportable and inadmissible and trial court found counsel to be credible); Ex parte Nguyen, No. 03-11-00710-CR, 2012 WL 2989251, at *7 (Tex. App.— Austin July 18, 2012, no pet.) (mem. op., not designated for publication) (holding that counsel appropriately and correctly advised defendant about the immigration consequences of his plea by informing him that he "faced deportation" upon conviction for the offense). Cf. Enyong, 369 S.W.3d at 602 (holding that counsel who, at most, reviewed general admonishments in plea papers, which advised appellant that his pleas "may" result in deportation, but did not advise his that his subsequent removal was virtually certain and presumptively mandatory, rendered deficient performance); Tanklevskaya, 361 S.W.3d at 99 (holding that counsel who only informed client of possible immigration consequences of guilty plea, and did not inform client that inadmissibility and subsequent removal were virtually certain and presumptively mandatory, provided deficient performance).
Therefore, we hold that Guidry’s performance was not deficient under Strickland and the trial court did not err in denying Obi’s application for writ of habeas corpus.
CONCLUSION
We affirm the judgment of the trial court denying habeas relief.
Justice Sharp, dissenting, Opinion to follow.
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Notes:
[1] The plea papers contained the following admonishment: "I understand that upon a plea of guilty/nolo contendere . . . that if I am not a citizen of the United States, my plea of guilty or nolo contendere may form the legal basis for my deportation, exclusion from admission to this country or denial of naturalization under federal laws."
[2] This year, the United States Supreme Court held that Padilla could not be applied retroactively to cases in which the judgment became final before Padilla issued. Chaidez v. United States, 133 S.Ct. 1103 (2013); see also Ex parte De Los Reyes, 392 S.W.3d 675, 678–79 (Tex. Crim. App. 2013) (applying Chaidez to Texas cases). Because Obi pleaded guilty and his conviction became final after Padilla issued, the Padilla standard applies to Obi and governs the disposition of this case.
[3] The term "moral turpitude" is not defined in the INA, but the State does not dispute that Obi’s conviction would qualify as a crime of moral turpitude.
[4] "[C]rime of violence" is defined as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C.S § 16(a) (LexisNexis 2009).
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