EX PARTE AHMED v. << (2022)

OPINION

This is a habeas corpus case dealing with an allegation of ineffective assistance of counsel. Because Texas law does not afford grounds for relief, we affirm the trial court's order denying the writ of habeas corpus.

Background

Appellant Zohair Ahmed was charged with drug possession with intent to deliver. He pled no contest and entered into a plea agreement for deferred adjudication. The trial court approved the plea.

After his case was deferred, Ahmed was faced with immigration deportation proceedings by the Department of Homeland Security. Ahmed retained a habeas attorney, who filed an application for a writ of habeas corpus on his behalf. In his application, Ahmed alleged his trial attorney failed to adequately advise him of the immigration consequences of his no contest plea. The trial court did not agree. The trial court denied Ahmed's application, finding that Ahmed's trial attorney advised Ahmed of the immigration consequences. Ahmed's habeas attorney appealed the denial of the writ with this court.

Nearly a year later, and due to delays relating to the pandemic, Ahmed's habeas attorney filed a brief. In that brief, Ahmed's attorney explicitly stated that, under Texas law, Ahmed was not entitled to relief but that under federal law, he was. Later, the habeas attorney supplemented the record with an opinion from the Board of Immigration Appeals in which the Board terminated Ahmed's deportation proceedings without prejudice due to a lack of sufficient evidence to support the basis for deportation.

The issues we must resolve are (a) whether this court has jurisdiction, and if so, (b) whether Ahmed is entitled to a writ of habeas corpus under Texas law.

Jurisdiction

Generally, a court of appeals has no jurisdiction in a post-conviction habeas case. Tex. Code Crim. Proc. Ann. art. 11.07, § 3; Hoang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993); Ex parte Alexander, 685 S.W.2d 57, 60 (Tex. Crim. App. 1985).

Here, Ahmed pled no contest to a drug possession charge to gain the benefit of a deferred-adjudication plea bargain. Because Ahmed's case adjudication was deferred pursuant to his plea agreement, Ahmed's conviction is not final. See Middleton v. State, 634 S.W.3d 46, 51 (Tex. Crim. App. 2021); Jordan v. State, 36 S.W.3d 871, 876 (Tex. Crim. App. 2001).

Ahmed's ineffective assistance of counsel claim from his habeas application is cognizable on habeas review. Ex Parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013). So this Court has jurisdiction over Ahmed's appeal. See Arreola v. State, 207 S.W.3d 387, 390 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006)).

We next decide whether Ahmed is entitled to a writ of habeas corpus.

Is Ahmed entitled to a writ of habeas corpus?

Ahmed concedes that under Texas caselaw and based the trial court's findings, he is not entitled to relief from this court. See Ex Parte Torres, 483 S.W.3d 35, 51 (Tex. Crim. App. 2016) (deficient immigration advice in a plea case may not result in prejudice if the advice would not have led to a rational rejection of a plea bargain). Instead, Ahmed contends that under Padilla v. Kentucky, he is entitled to habeas corpus relief. See Padilla v. Kentucky, 559 U.S. 356, 373, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).

Without deciding whether Ahmed is entitled to habeas corpus relief under federal law and acknowledging Ahmed's right to preserve error for federal review under Padilla, we find that Ahmed is not entitled to such relief under Texas law. On this ground alone, we affirm the judgment of the trial court. See Hill v. State, No. 01-86-00069-CR, 1987 WL 6135, at *1 (Tex. App.—Houston [1st Dist.] Feb. 5, 1987, no pet.) (mem. op., not designated for publication).

Conclusion

This court has jurisdiction to review Ahmed's appeal from the trial court's denial of his application for writ of habeas corpus. Because Texas law does not afford Ahmed relief, we affirm the trial court's judgment.

Opinion by: Patricia O. Alvarez, Justice