Cesar Barrera v. The Warden, State Prison (2010)

MEMORANDUM OF DECISION

MEMORANDUM OF DECISION

It's important to note that this is not a proceeding that addresses the immigration order of removal that has been entered against Mr. Barrera.

This is a case in which a petitioner comes before this court seeking to withdraw what appears to be a voluntary plea of guilty to charges.

Now, at the outset it's important to remember that there is this critical difference between the legal status of a person who's been accused of a crime as opposed to one who's been convicted of a crime.

The person who's been accused of a crime is entitled to that presumption of his or her innocence;  a petitioner in a habeas corpus petition is not.

The presumption of innocence does not outlast the judgment of conviction at trial.   The burden, therefore, of proving a right to habeas relief rests with the petitioner because in the eyes of the law the petitioner does not come before the court as one who is innocent, but on the contrary is one who has been convicted by due process of law, Summerville versus Warden.

Now, not only has the petitioner in this case been convicted of the offenses, he's been convicted pursuant to his plea of guilty, and a valid guilty plea generally operates as a waiver of all defects in the prosecution except those involving the canvass of the plea and the court's subject matter jurisdiction, State versus Reddick.

Looking at the guilty plea in this case this court has no basis or an insufficient basis to find that the plea and the canvass by the court are defective.   The bare minimum standards are set forth of course in Boykin versus Alabama, and it's clear that the canvass in this case, while not a perfect canvass by any stretch of the imagination, does satisfy the minimal standards.

It's clear that the judge inquired as to whether the elements of the crime had been explained by counsel and while there may be some ambiguity in the response by the petitioner, the court is satisfied that the response was an affirmation of the fact that Mr. Barber had explained the elements of the offense, the offenses to which he was pleading guilty.   That's sufficient to satisfy the minimal requirements of a plea canvass.

As to the issue of intoxication on the part of the petitioner, the only evidence in this case is the evidence submitted by the petitioner that he was high and that he had been using drugs illegally.

When I review the plea canvass I don't see anything in the plea canvass to indicate to me that there was any question raised in the minds of anybody in the courtroom that day that would support a finding that the petitioner was under the influence of any illegal drugs or other drugs.

The direct testimony of Mr. Barber to the fact that he didn't see anything that would lead him to conclude that Mr. Barrera was incompetent and-I'm sorry-was intoxicated and therefore unable to understand what was going on.

I'm not sure exactly what I said.   Let me make it clear.

There was nothing in Mr. Barber's testimony to make-to lead this court to conclude that Mr. Barrera was anything other than alert and aware of what was going on.   I don't find any evidence other than the bare statement of the petitioner that he was under the influence of any illegal substance.

I have no evidence that allows this court to conclude what the effects of heroin are on an individual.   I have no evidence as to the dosage that the petitioner had used, if any.   I have no evidence from anybody to establish that the petitioner was acting in any unusual manner.

The fact that Attorney Barber's sister had a heroin problem and he apparently failed to recognize that, while one inference one can draw is that Mr. Barber's unable to determine when somebody is under the influence of heroin.   The other inference that can be draw is that when is under the influence of heroin it's not detectable by other people.

As a result the court finds that the petitioner has failed in his burden of proof to demonstrate that he was intoxicated and, therefore, unable to knowingly, voluntarily and intelligently waive his trial rights and enter guilty pleas.

As far as the argument that the petitioner might not have been competent to enter a guilty plea, there is not a shred of evidence presented to this court that would allow this court to conclude at the time of the guilty plea there was any issue surrounding the petitioner's competence.   So, therefore, as far the issues of the plea canvass, the intoxication and competence all of those are decided adversely to the petitioner.

Now, that brings us back though to what is really the crux of this case and that is the issue of whether an appropriate inquiry was made as to Mr. Barrera's citizenship and whether Mr. Barrera was adequately advised as to the consequences of his guilty plea and convictions on his immigration status.

It's clear, and there's no evidence to suggest that anything else happened in this case, that it's not the trial defense counsel's decision as to the plea to be entered by a petitioner, a defendant.   That is a decision for the defendant to reach.   However, because the defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the right to effective counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction, Copas versus Commissioner.   An attorney must to a client in determining whether to plead guilty or to take the matter to trial.

It is disputed as to whether Mr. Barber did, in fact, discuss immigration consequences with Mr. Barrera, and this court has no direct evidence that is conclusive in either direction.   Mr. Barrera testifies he was never advised there was never any discussion of immigration and citizenship implications.   Mr. Barber, while he says he has no specific recollection of having that conversation, is confident, is certain that he did discuss the citizenship and immigration consequences with Mr. Barrera.

Now, counsel is correct that it is not incumbent upon the client to address the issue of citizenship.   It is incumbent upon counsel to consider that matter.   Nevertheless, the facts in this particular case demonstrate that Mr. Barrera is not exactly a babe in the woods when it comes to immigration issues.   He did have an earlier brush with the INS, the predecessor agency of ICE, on the basis of prior convictions that came close to getting him deported.   Moreover, during the plea canvass the judge did discuss immigration implications with Mr. Barrera.   Given Mr. Barrera's prior involvement, given the judge's discussion of immigration consequences, to the extent there was any hesitance on the part of Mr. Barrera to plead not guilty and take the matter to trial, a red flag would have been waving in his face at that point.

As a result this court will conclude that Mr. Barrera was more than likely aware of the immigration issues and the court will conclude that Mr. Barber, perhaps not to the extent he should have or could have, at least broached the subject of immigration issues with Mr. Barrera.

But at its heart, of course, this petition is an allegation of ineffective assistance of trial defense counsel and the governing case is Strickland versus Washington and there are two prongs to the requirement that Strickland versus Washington sets down.   A petitioner must first show that counsel's performance was deficient and that requires showing that the counsel made errors so serious that counsel was not functioning as the counsel guaranteed to the defendant by the Sixth Amendment.   And the performance of counsel must be in accordance with the appropriate standard of care that a reasonably prudent practitioner would have met.

Clearly, in the post Pedia versus Kentucky phase it is now incumbent upon defense counsel to discuss immigration implications with clients.

It's arguable in 2006, that it likewise was a requirement of counsel to discuss immigration implications with clients, but what's important is to understand that there is a second prong to the Strickland matter and that requires a showing that as a result of the deficient performance of counsel that the petitioner was prejudiced.

A habeas court is free to deny a petition on either ground.   In order to prevail a petitioner must make a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable and unless the defendant makes both showings it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.

Now, Strickland, of course, applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on petitioner's constitutional rights and the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea, and that's Hill versus Lockhart.

In Hill, in order to show prejudice the petitioner must demonstrate that he would not have pleaded guilty, but for his lawyer's deficient performance, that he would have insisted on going to trial and that the evidence that had been undiscovered during the offenses he claimed should have been introduced were likely to have been successful at trial.   In other words the petition must prove that but his attorney's inadequacies he would have pled not guilty, gone to trial and been acquitted.

There is no evidence presented to this court that would allow this court to conclude that the standard set forth in Hill versus Lockhart would have been met.   Indeed, there's precious little evidence presented to this court about the underlying offense, offenses.

Based upon statements of the petitioner that he was involved, based upon testimony by Mr. Barber, based upon the court's reading of the recitation of facts by the prosecutor in the plea canvass, it does appear that the petitioner was involved at a minimum as an accessory, more likely as the perpetrator of this act, and that had he gone to trial there is a very high likelihood that he would have been convicted and that the result would have been the same;  deportation would have followed.

As a result this court cannot conclude, even if it makes the assumption that Mr. Barber's actions in not adequately discussing immigration, implications was deficient performance, there is no way this court can conclude that any prejudice is inured to the petitioner.   The most likely result is that the petitioner would have served a much longer sentence and then face deportation.

Further, the court is going to find that there is a procedural default that applies in this matter.   As to paragraphs B, C, D, E, F, and G, the petitioner's remedy should have been a motion for a new trial or a motion to set aside his guilty plea.   That wasn't done.   There has been no showing of cause for that failure.   The cause and prejudice standard has not been met.   Consequently, the petitioner is found to have been procedurally defaulted.   That's as an additional ground.

As I said at the outset this isn't an immigration proceeding and this court recognizes that Mr. Barrera has been living in this country since he was approximately 10-years-old.   There is no evidence that Mr. Barrera ever speaks Spanish anymore.   There is no evidence that Mr. Barrera knows anybody in Venezuela, but that's not an issue that this court can deal with.   That's an immigration issue which is left with the federal court.

While the court can sympathize with Mr. Barrera for having to be deported from the country in which he's lived for the past twenty-five years and the court can be sympathetic that sometimes the application of laws can be draconic, that simply is not within the mandate of this court to do anything about it.

As a result the petition for writ of habeas corpus will be denied.

And while you may not necessarily believe me, Mr. Barrera, I do hope that this works out for you in some way, shape or form.

Appeal papers are given to the petitioner.

Are there any matters out that need to come up before we adjourn?

ATTY. PILLSBURY:  No, Your Honor.

ATTY. POLAN:  No, Your Honor.

THE COURT:  All right.   Court will be adjourned.

Fuger, J.

Fuger, S.T., J.