Ex parte Rosa Maria Cruces v. << (2016)

MEMORANDUM OPINION

Appellant Rosa Maria Cruces appeals from the denial of her application for writ of habeas corpus.  In 2011, Cruces pleaded guilty to burglary.  In 2014, Cruces filed an application for habeas relief, claiming ineffective assistance of counsel.  Cruces asserted that her appointed counsel for the burglary charge misled her as to the immigration consequences of her guilty plea and that she would not have pleaded guilty had she known of the consequences.  The trial court denied her application.

By one issue on appeal, Cruces urges ineffective assistance of counsel and asserts that the trial court erred in denying habeas relief.  We affirm.

I. Background

Cruces is a Mexican citizen who obtained status as a lawful permanent resident of the United States in 1965.  In September 2010, she was arrested for burglary in Brownsville, Texas.  See Tex. Penal Code Ann. § 30.02 (West, Westlaw through 2015 R.S.).  The trial court appointed attorney Enrique Juarez to represent Cruces.  On February 28, 2011, Cruces entered a plea of guilty, as did her co-defendant in the burglary.  The trial court sentenced Cruces to two years' confinement, but suspended her sentence and placed her on community supervision for five years.  Because she was convicted of burglary with the sentence of at least one year, Cruces was subject to automatic deportation.  See 8 U.S.C.A. §§ 1101(a)(43)(G) (West, Westlaw through P.L. 114–143) (defining “aggravated felony” as including a burglary conviction with a prison term of at least one year), 1228(c) (West, Westlaw through P.L. 114–143) (“An alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States.”).

After deportation proceedings were initiated, Cruces filed a motion to modify the judgment in 2014, seeking a reduction of her sentence—from two years to 364 days—so that she could avoid automatic deportation.  See 8 U.S.C.A. §§ 1101(a)(43), 1228(c).  The trial court denied her motion because the court's plenary power had expired.

Cruces then filed an application for writ of habeas corpus, claiming ineffective assistance of counsel from Juarez, her appointed attorney.  The trial court held an evidentiary habeas hearing on February 24, 2015.  At the hearing, Cruces testified that

Juarez had misled her as to the potential immigration consequences of pleading guilty to burglary.  Cruces testified that prior to pleading guilty in 2011, she had only briefly spoken to Juarez twice:  a phone conversation when he was first appointed to her case and a conversation when she met Juarez for the first time, shortly before the hearing wherein she pleaded guilty.  According to Cruces, Juarez advised her that if she went to trial, she would be convicted, sentenced to multiple years in prison, and deported.  Juarez further advised her that if she pleaded guilty, however, she would receive community supervision and would not be deported or imprisoned.

At the 2015 habeas hearing, Cruces also adduced the testimony of immigration attorney Nicole Eymard, a former employee of the Department of Homeland Security (DHS).  Eymard testified that Cruces's plea of guilty to burglary charges carrying a sentence of more than a year would have rendered deportation a “one-hundred percent” certainty under federal law and related DHS enforcement policy.

For its part, the State offered a police report concerning the burglary, which was admitted into the habeas record without objection.  In the report, the owner of the burglarized location described how she surprised Cruces and a co-defendant during the offense, whereupon they fled the scene, with Cruces driving;  the owner followed Cruces and flagged down a police unit while in pursuit, which apprehended Cruces and the co-defendant.  The police report incorporated several digital photographs of equipment found in the bed of Cruces's vehicle, which the owner identified as her stolen property.  Finally, the owner stated that she recognized Cruces's vehicle—a maroon Dodge pickup—from security footage of another incident of theft that had occurred two weeks before.

The State also introduced several pieces of evidence which suggested that Cruces had been warned of deportation consequences by Juarez and by the trial court.  The State introduced Cruces's written guilty plea, which read in part:

Defendant, in person, together with his counsel [sic], in pleading Guilty further states under oath in open court to the Court:

․

If not a citizen of the United States of America I understand that a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this Country, or the denial of naturalization under federal law.

In the same plea agreement, Juarez subscribed to the following:  “I further certify that the defendant has been advised that if he/she is not a citizen of the United States that he/she may be subject to removal (deportation) from the United States, exclusion from admission to the United States, and/or denial of naturalization under federal law.”  The State also introduced a transcript from the 2011 plea hearing.  At the plea hearing, Juarez told the trial court that he had explained the plea agreement to Cruces beforehand.¹  The trial court also admonished Cruces as follows:

THE COURT:  Are you a U.S. Citizen, Ms. Cruces?

CRUCES:  No, ma'am, a resident.

THE COURT:  Ms. Cruces, you understand that since you are not a U.S. citizen that in pleading guilty here today, it may result in your deportation from this country, your exclusion from admission from this country—

CRUCES:  Yes, ma'am.

THE COURT:  —or denial of naturalization under federal law?

CRUCES:  Yes, ma'am.

THE COURT:  And understanding that, you still wish to continue with your plea?

CRUCES:  Yes, ma'am.

JUAREZ:  That is what we talked about where I explained it to

you she was going to ask you, “Do you still want to, knowing all of this?”

CRUCES:  Yes, ma'am.

THE COURT:  So you still do, ma'am?

CRUCES:  Yes, ma'am.

Following the evidentiary hearing, the trial court denied Cruces's application for habeas relief.  This appeal followed.  We abated the appeal and remanded the matter to allow the trial court to clarify its order of denial and to enter, if necessary, findings of fact and conclusions of law.  See Tex.Code.Crim. Proc. Ann. art. 11.072, § 7(a) (West, Westlaw through 2015 R.S.) ² On remand, the trial court entered findings of fact and conclusions of law.  With these findings and conclusions in hand, we proceed to consider Cruces's appeal of the denial of her habeas application.

II. Ineffective Assistance of Counsel Under Padilla

In her sole issue on appeal, Cruces argues that she was denied effective assistance of counsel because her trial counsel failed to warn her that a plea of guilty may affect her immigration status.  Cruces contends that had she known of these consequences, she would not have pleaded guilty and would have insisted on going to trial.

A. Standard of Review

An applicant seeking post-conviction habeas corpus relief bears the burden of establishing by a preponderance of the evidence that the facts entitle her to relief.  Ex parte Richardson, 70 S.W.3d 865, 870 (Tex.Crim.App.2002);  Ex parte Reed, 402 S.W.3d 39, 41–42 (Tex.App.—Houston [14th Dist.] 2013, pet. ref'd).  Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  DeLeon v. State, 322 S.W.3d 375, 381 (Tex.App.—Houston [14th Dist.] 2010, pet. ref'd).

In reviewing a claim of ineffective assistance of counsel on appeal from habeas proceedings, we afford almost complete deference to the habeas court's determination of historical facts supported by the record, especially when those factual findings rely on an evaluation of credibility and demeanor.  Ex Parte Torres, 483 S.W.3d 35, 42 (Tex.Crim.App.2016).  We apply the same deference to review the habeas court's determination of mixed questions of law and fact which rest on an evaluation of credibility and demeanor.  Reed, 402 S.W.3d at 42.  We review the determination of purely legal questions de novo.  Id.

B. Applicable Law

To establish a claim of ineffective assistance of counsel, the defendant must satisfy a two-prong test under Strickland v. Washington, 466 U.S. 668 (1984).  See Jackson v. State, 877 S.W.2d 768, 770 (Tex.Crim.App.1994).  The defendant must first show that counsel's representation fell “below an objective standard of reasonableness.”  Strickland, 466 U.S. at 687–88.  The first prong of Strickland has special dimensions where a criminal defendant is also subject to potential immigration consequences if convicted.  See Padilla v. Kentucky, 559 U.S. 356, 367 (2010).  In such cases, defense counsel has a duty to inform the defendant of the deportation consequences, and to do so with that degree of clarity which the circumstances reasonably allow.  See id. at 369.  Under Padilla, failure to so advise the defendant is a violation of the first prong of Strickland.  Id.

With the first prong established, the defendant must then show the second prong:  prejudice.  Strickland, 466 U.S. at 694.  Under the second prong, the defendant must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Id. In the context of a collateral challenge to a guilty plea, the focus of the prejudice inquiry is on whether counsel's constitutionally ineffective performance affected the outcome of the plea process, and on whether the habeas applicant has shown that “but for counsel's errors, [she] would not have pleaded guilty and would have insisted on going to trial.”  Torres, 483 S.W.3d at 43 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).  The applicant must “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”  Id. at 48 (quoting Padilla, 559 U.S. at 372).  “Surmounting Strickland's high bar is never an easy task.”  Padilla, 559 U.S. at 371.  An applicant is not absolutely required, however, to show that she would have received a more favorable disposition had she gone to trial, but only that the applicant “could have rationally gone to trial in the first place.”  Torres, 483 S.W.3d at 48.

C. Analysis

In her sole issue, Cruces argues that she was denied effective assistance of counsel because her trial counsel failed to warn her that a plea of guilty may affect her immigration status.  Cruces contends that had she known of these consequences, she would not have pleaded guilty.

Cruces's evidence on the first prong of Strickland solely consisted of her testimony that Juarez never informed her of the immigration risks involved in her guilty plea;  Cruces did not adduce testimony from Juarez on this point.  See 466 U.S. at 688.  Nonetheless, even assuming for the sake of argument that the record showed deficient performance under the first prong of Strickland, we do not believe that Cruces carried her burden of showing prejudice under the second prong.  See Jackson, 877 S.W.2d at 770.  To assess an applicant's showing of prejudice, we consider the totality of the circumstances, including factors such as the evidence supporting an applicant's assertions, the likelihood of success at trial, the risks the applicant would have faced at trial, the benefits received from the plea bargain, the trial court's admonishments, whether the applicant made any prior efforts to withdraw the guilty plea, and any particular emphasis that the applicant placed on the immigration consequences of a plea in deciding whether or not to accept it.  See Torres, 483 S.W.3d at 48–49;  United States v. Kayode, 777 F.3d 719, 725–27 (5th Cir.2014);  see also United States v. Batamula, No. 12–20630, _ F.3d _, _, 2016 WL 2342943, at *3 (5th Cir. May 3, 2016) (en banc).

In view of the totality of the circumstances, the balance of these factors shows that Cruces was not prejudiced by any deficiency in her representation.  First, the police report regarding Cruces's arrest is a harbinger that she had a low likelihood of success at trial.  See Torres, 483 S.W.3d at 48.  The report indicates the potential availability of the following evidence:  testimony from an eyewitness who surprised Cruces in the act and witnessed her and a co-defendant flee the scene;  testimony from an officer who apprehended her nearby;  photographs of stolen items in Cruces's vehicle;  and, for punishment purposes, a security video possibly implicating Cruces in a similar offense just weeks before.  See id.  Cruces does not appear to have a viable defense against this evidence.  See Kayode, 777 F.3d at 727;  see also Sandoval–Moschetto v. United States, Nos. EP–09–CR–892(1)–KC, EP–09–CR–892(1)–KC, 2013 WL 321767, at *11 (W.D.Tex. Jan. 25, 2013) (order, not designated for publication) (rejecting an ineffective assistance claim in part because the defendant did “not appear to have a viable defense against the eyewitness and physical evidence”).  Second, this evidence in turn suggests that Cruces would have faced the same near-certain risk of deportation, but with the added punishment of a felony-grade prison sentence.  See Torres, 483 S.W.3d at 48;  see also 8 U.S.C.A. §§ 1101(a)(43)(G), 1228(c);  Tex. Penal Code Ann. § 30.02.  The plea bargain allowed Cruces to avoid this punishment, which was of benefit to Cruces.  See Torres, 483 S.W.3d at 48.  Cruces did not produce any evidence that she had “special concern” for the immigration consequences of her plea.  See id. at 49.

Second, there is ample evidence suggesting that Cruces was admonished of the consequences of her plea.  The trial court warned Cruces of deportation risks during the plea hearing, and Cruces stated that she was aware of these risks and voluntarily agreed to undertake them, both verbally and in writing.  See id.

However, we do note that Cruces had previously attempted to withdraw her guilty plea.  See Kayode, 777 F.3d at 727.  This factor favors Cruces's argument.

After reviewing evidence from Cruces and the State, the trial court concluded:

After considering the totality of the circumstances, including Defendant's evidence to support her assertion, her likelihood of success at trial, the risks Defendant would have faced at trial, the record concerning her communications with her trial counsel, and this court's admonishments concerning the immigration consequences of a plea of guilty, this Court further finds that Defendant has not demonstrated she would have proceeded to trial if she had known of the likely immigration consequences of her plea.

We agree with the trial court's assessment.  In the present case, Cruces failed to prove by a preponderance of the evidence that a decision to reject the plea bargain would have been rational under the circumstances.  See Torres, 483 S.W.3d at 48;  Richardson, 70 S.W.3d at 870.  Cruces's case fails on the prejudice prong of Strickland.  See 466 U.S. at 694.  We overrule Cruces's sole issue.

II. Conclusion

We affirm the judgment of the trial court.

FOOTNOTES

1.   Juarez told the trial court he had explained the documents to Cruces in English because she had completed a tenth-grade education in the United States.  Juarez explained that Cruces may have nonetheless been “losing something in translation.”  Cruces does not contend on appeal that she was unable to understand Juarez's representations to her.

2.   On appeal, this Court noted that the trial court's order of denial neither found the application to be frivolous, nor included findings of fact and conclusions of law explaining its decision, as required by the Texas Code of Criminal Procedure.  See Tex.Code.Crim. Proc. Ann. art. 11.072, § 7(a) (West, Westlaw through 2015 R.S.) (stating that unless a habeas application is found to be “frivolous,” the trial court must enter findings of fact and conclusions of law);  Ex parte Cherry, 232 S.W.3d 305, 308 (Tex.App.—Beaumont 2007, pet. refd);  Ex parte Enriquez, 227 S.W.3d 779, 784 (Tex.App.—El Paso 2005, pet. ref'd).

Memorandum Opinion by Justice Rodriguez