EX PARTE AMITI v. << (2026)

OPINION

Appellant Ajdin Amiti pleaded guilty to theft of property valued at $30,000 or more but less than $150,000, a third-degree felony. See Tex. Penal Code § 31.03(a), (e)(5). The trial court adjudicated him guilty and sentenced him to ten years' imprisonment, with the sentence suspended and community supervision imposed for ten years. The judgment of conviction also directed Amiti to pay $2,000 in fines and $71,976.37 in restitution.

Amiti, a non-citizen, subsequently filed an application for writ of habeas corpus arguing that his guilty plea was involuntarily made because his counsel did not advise him of the “clear and unavoidable” consequences arising therefrom—i.e., “mandatory immigration detention and removal.” See Tex. Code Crim. Proc. art. 11.072; Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The court denied the application. By one issue in this appeal, Amiti argues the habeas court abused its discretion by failing to hold an evidentiary hearing on his application. We affirm.

I. Background

Amiti was charged by indictment in 2024, and a plea hearing was held on April 28, 2025. At the outset of the hearing, defense counsel Sergio J. Sanchez agreed that Amiti would pay the ordered restitution in 120 monthly payments of $600. Amiti confirmed to the trial court that he is employed by Samsung as a pipefitter and “can pay that.” The court then proceeded to conduct a joint plea colloquy for Amiti and another defendant in an unrelated case. During the colloquy, Sanchez asked to be excused because he was “being called to two other courts.” The trial court and Amiti agreed that the other defendant's attorney, Francisco Gonzales, would stand in to represent Amiti. The following exchange then occurred:

THE COURT: Do you understand in your case, Mr. Amiti, you are charged with a third[-]degree felony which carries with it the range of punishment of confinement in the institutional division for a term of no less than 2 years, not more than 10 years, and an optional fine not to exceed $10,000? Do you understand that?

[Amiti]: Yes, ma'am.

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THE COURT: Counsel, in discussing the cases with your respective clients, do you find them each to be mentally competent to stand trial and to assist in their own defense?

MR. GONZALES: Yes as to both, Judge.

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THE COURT: Court finds each defendant is mentally competent to stand trial and to assist in their own defense.

Do you each also understand that if you are not a U.S. citizen and you plead guilty or no contest, your plea may result in deportation, your exclusion from the United States, or you may be denied naturalization under federal law?

[Amiti]: Yes, ma'am.

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THE COURT: Counsel, have you each had the required [Padilla] discussions with your respective clients?

MR. GONZALES: Yes, Your Honor.

Amiti then pleaded guilty to the charged offense in open court. He also signed an admonishment form stating in part:

If you are not a citizen of the United States of America, a plea of guilty or no contest may, and under current Federal immigration rules is almost certain to, result in your deportation, the exclusion from admission to this country, or the denial of naturalization under federal law, and I, the Defendant, have been so advised by my attorney.

․

I, Defendant in the above numbered and styled case, have had the foregoing admonitions explained to me by my attorney, and I understand them and I am aware of the consequences of my plea.

The trial court found Amiti's plea was entered voluntarily and knowingly. The prosecutor summarized the fact allegations underlying the charge on the record, and Amiti agreed the allegations were true. The trial court then convicted and sentenced him as set forth above.

In his habeas application, Amiti stated that, though he has been a lawful permanent resident of the United States since 2000, he “was detained by immigration authorities and placed in removal proceedings immediately following his conviction.” He specifically argued Sanchez provided ineffective assistance under Padilla because he “did not advise [Amiti] that a guilty plea with a suspended ten-year sentence for theft would constitute an ‘aggravated felony’ under 8 U.S.C. § 1101(a)(43) and thereby subject him to mandatory immigration detention and removal.” In support of his application, Amiti attached an affidavit by Mary Lynn Tedesco, his immigration attorney, stating in relevant part:

5. [ ]I am intimately familiar with immigration law as it pertains to deportation and removal, including having practiced extensively in that area, and having taught numerous continuing education courses to attorneys with a focus on the immigration consequences of criminal convictions.

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9. The law is abundantly clear when it comes to theft-related crimes as aggravated felonies and their impact on a permanent resident. A conviction for an aggravated felony would render a permanent resident deportable, subject to mandatory detention, and with few, if any, possibilities to remain in or ever lawfully return to the United States. In other words, it is a death sentence for any immigration possibilities.

10. [A] conviction for theft where a sentence of one (1) year or more is ordered clearly qualifies as an aggravated felony, and would certainly trigger removal proceedings and a removal order (and has done so).

11. The charge qualifies as an aggravated felony as defined in 8 U.S.C. § 1101(a)(43). Specifically:

A. Mr. Amiti pled guilty to a theft offense; and

B. [t]he sentence consequent to Mr. Amiti's guilty plea was a “sentence of confinement suspended” for a term of ten (10) years (clearly more than one year).

12. According to the Immigration and Nationality [A]ct: “Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” 8 U.S.C. §[ ]1101(a)(48)(B).

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14. Any advice from [Sanchez] that a plea to [ ] “straight probation” would not affect Mr. Amiti's immigration status would have been incorrect, misleading, and contrary to the plain language of the Immigration and Nationality Act.

15. Had I (or any other reasonably competent immigration attorney) been consulted on these issues prior to the entry of a plea, ․ I would have advised the consulting attorney of the inevitable consequences that would result from a criminal conviction. In fact, those consequences have come to fruition, as Mr. Amiti has been ordered removed and must now endure further time in immigration custody as the instant matter proceeds, and while he appeals the removal order.

16. In the course of my representation of Mr. Amiti in his immigration proceedings, he has informed me that had he been properly advised of the mandatory and irreversible immigration consequences flowing from a conviction in this case, he would not have accepted the plea agreement. It is his position that he would have rejected the plea offer and exercised his right to trial. This understanding further supports my opinion that Mr. Amiti's plea was not entered knowingly or voluntarily.

17. It is therefore my opinion that Mr. Amiti received ineffective assistance of counsel because he was not informed of the clear and obvious consequences that would (and did) flow from his conviction. He was not in custody at the time of his guilty plea. As a lawful permanent resident of the United States since September 26, 2000, he would have no reason to plead guilty knowing that doing so would be inevitably abandoning his entire life and family who are exclusively US Citizens in the United States.

The State filed a response which included an affidavit by Sanchez stating in relevant part:

I was hired by Mr. Amiti with respect to a federal criminal investigation of fraud. I worked with an IRS special agent out of Brownsville regarding this case and was ultimately able to help convince the federal charges to be dropped. The significance is that it prevented a likely lengthy federal prison sentence followed by deportation. Mr. Amiti's criminal case ended up being pursued at the state level in Hidalgo County, Texas. The case landed in the 206th [D]istrict [C]ourt. I worked with [the prosecutor] regarding an exchange of discovery which I reviewed with Mr. Amiti. The prosecution originally had a recommendation of state prison because of the large amount of restitution owed (approx. $71,000.00)[.] I was able to eventually negotiate a recommendation of probation of 10 years with a repayment schedule of the restitution amount. I discussed all of this with Mr. Amiti as well as claiming that this conviction would result negatively for immigration purposes. I also mentioned that this case would lead to a final conviction. We also discussed the fact that probation was a way better result than federal prison, it was a better result than state prison, and Mr. Amiti ultimately agreed and pled guilty. I discussed the immigration consequences in compliance with [Padilla].

After receiving the State's response, Amiti filed a “Motion to Hold an Evidentiary Hearing” arguing: (1) “the plea hearing transcript directly conflicts with material assertions” made by Sanchez in his affidavit; (2) Sanchez “was absent for a significant portion of the plea colloquy, including the immigration-admonishment exchange”; and (3) Sanchez “participated in plea negotiations under circumstances that strongly suggest he misunderstood—or failed to discuss—the immigration consequences of [Amiti's] guilty plea.”

The trial court denied Amiti's motion for evidentiary hearing, and on November 20, 2025, it signed a written order denying Amiti's habeas application. The order contained findings of fact and conclusions of law, including the following:

The Court takes judicial notice that:

[3.] The merits of the instant Application can be and are being determined on pleadings, exhibits and affidavits.

[4.] To prevail on a post-conviction habeas action alleging ineffective assistance of counsel when the applicant has entered a guilty plea, two showings must be made: that the performance of trial counsel was deficient, and that but for such substandard performance the applicant would have not pled guilty but would have instead insisted on proceeding to contested trial.

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[6.] Satisfying the ‘prejudice’ element where, as here, the Applicant entered a plea of ‘guilty[,]’ requires showing that a decision to reject the plea offer and insist on proceeding to contested trial would have been rational under the circumstances; in making the required assessment, factors “such as the evidence supporting an applicant's assertions, the likelihood of his success at trial, the risks the applicant would have faced at trial, the benefits received from the plea bargain, and the trial court's admonishments” may be considered.

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The Court makes the following findings and exercises judicial notice as follows:

[1.] The Court takes judicial notice that the undersigned habeas judge ․ is the same jurist who presided over the plea proceeding at issue; and renders these findings, conclusions and orders upon personal recollection to the extent appropriate.

[2.] The Court takes judicial notice of the offense report admitted in the underlying case.[1]

[3.] The Court takes judicial notice that Applicant does not present an affidavit of himself or any other person with direct knowledge of the discussions between Applicant and counsel preceding the plea proceedings.

[4.] The Court finds the statement of trial counsel in his affidavit denying the claim that he advised Applicant that no adverse consequences would result from a [ ]‘guilty’ plea to be credible. The Court finds the statements of trial counsel in his affidavit that he ‘discussed the immigration consequences in compliance with [Padilla]’ to be credible.

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[7.] The Court takes judicial notice of the plea admonishment putting Applicant on notice that deportation was ‘almost certain to’ result from a guilty plea.

The Court therefore FINDS that:

Applicant fails to prove deficient performance.

A decision to reject the plea offer, under the circumstances of the case, would not be rational; therefore, Applicant fails to prove prejudice.

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The Court concludes as a matter of law that the Application is not meritorious.

This appeal followed. See Tex. R. App. P. 31.2(b) (providing that an appeal in a habeas proceeding “shall be submitted and heard at the earliest practicable time”).

II. Hearing on Habeas Application

A. Applicable Law and Standard of Review

Under Texas Code of Criminal Procedure Article 11.072, a defendant seeking relief from a judgment ordering community supervision may file an application for post-conviction writ of habeas corpus. See Tex. Code Crim. Proc. art. 11.072, § 1; Ex parte Torres, 483 S.W.3d 35, 42 (Tex. Crim. App. 2016). Under the statute, the applicant “bears the burden of proving, by a preponderance of the evidence, the facts that would entitle him to relief.” Ex parte Lalonde, 570 S.W.3d 716, 725 (Tex. Crim. App. 2019). “In making its determination, the trial court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal recollection.” Tex. Code Crim. Proc. art. 11.072, § 6(b). “If a hearing is ordered, the hearing may not be held before the eighth day after the day on which the applicant and the state are provided notice of the hearing.” Id. § 6(c). “Article 11.072 does not require a hearing when the issues can be resolved without one.” Ex parte Salazar, 510 S.W.3d 619, 627 (Tex. App.—El Paso 2016, pet. ref'd) (first citing Ex parte Arjona, 402 S.W.3d 312, 319 (Tex. App.—Beaumont 2013, no pet.); and then citing Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.)).

A court's decision to grant or deny an evidentiary hearing to evaluate a non-frivolous ² habeas application is reviewed for abuse of discretion. See id. at 626–27; see Ex parte Cummins, 169 S.W.3d at 757; see also Ex parte Motta, No. 13-13-00667-CR, 2014 WL 6602280, at *3 (Tex. App.—Corpus Christi–Edinburg Nov. 20, 2014, no pet.) (mem. op., not designated for publication). A trial court abuses its discretion when it acts arbitrarily or unreasonably or without reference to any guiding rules and principles. State v. Lerma, 639 S.W.3d 63, 68 (Tex. Crim. App. 2021).

In habeas proceedings, “the fact finder is the exclusive judge of the credibility of the witnesses.” Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996). Accordingly, we afford almost total deference to the habeas court's findings of fact if they are supported by the record. See Ex parte Torres, 483 S.W.3d at 43. On the other hand, purely legal questions are reviewed de novo, as are mixed questions of law and fact that do not depend upon the evaluation of a witness's credibility. Ex parte Zantos-Cuebas, 429 S.W.3d 83, 87 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

B. Analysis

Amiti argues that the habeas court abused its discretion in refusing to hold an evidentiary hearing on his application because Sanchez's “affidavit is incomplete and conflicts with the plea record.” He notes that Sanchez “was not even present during the Padilla part of the plea colloquy” and argues that, in light of the contemplated ten-year restitution payment plan, “[t]he only reasonable inference from [the plea hearing] is that both [Amiti] and [Sanchez] were unaware at the time of his plea that his deportation was inevitable.”

Amiti relies on Ex parte Salazar, in which the El Paso court of appeals found the trial court abused its discretion in refusing to hold a hearing on appellant's habeas application. 510 S.W.3d 619, 627 (Tex. App.—El Paso 2016, pet. ref'd). However, the applicant in Salazar advanced a claim of actual innocence, and the El Paso court's ruling was based at least in part on authority indicating that an “evidentiary hearing is required if a habeas applicant raises an actual innocence claim.” Id. (citing Ex parte Franklin, 310 S.W.3d 918, 921–23 (Tex. App.—Beaumont 2010, no pet.) (holding victim's affidavit admitting past claims of sexual molestation were untrue constituted “affirmative evidence” of innocence that entitled applicant to evidentiary hearing)). Here, Amiti does not claim he is actually innocent; instead, his habeas application is based entirely on his assertion that Sanchez provided ineffective assistance in failing to advise him that his guilty plea would result in “mandatory” detention and deportation. And unlike Article 11.072 claims based on actual innocence, courts “generally agree that no evidentiary hearing is per se required when an applicant brings an Article 11.072 claim for ineffective assistance of counsel.” Id. (citing, e.g., Ex parte Crook, No. 08-08-00313-CR, 2010 WL 2961580, at *4 (Tex. App.—El Paso July 28, 2010, pet. ref'd) (not designated for publication) (noting in ineffective assistance of counsel case that “[f]rom the plain language of the statute it is clear that the decision whether to hold a hearing is within the discretion of the trial court”)).

“[A] person claiming ineffective assistance of counsel must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense.” Ex parte Covarrubias, 665 S.W.3d 605, 609 (Tex. Crim. App. 2023) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel's actions are deficient if they “fell below an objective standard of reasonableness under prevailing professional norms, considering the facts of the case viewed from counsel's perspective at the time of the representation.” Ex parte Garza, 620 S.W.3d 801, 808–09 (Tex. Crim. App. 2021). With respect to plea negotiations in particular, “counsel must advise [his] client regarding the risk of deportation” following a guilty plea. Padilla, 559 U.S. at 366–67, 130 S.Ct. 1473.

When 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. But when the deportation consequence is truly clear, ․ the duty to give correct advice is equally clear.

Id. at 369, 130 S.Ct. 1473 (footnote omitted). The Texas Court of Criminal Appeals has stated that counsel's duty under Padilla extends to advising non-citizens that their guilty plea will cause them to “automatically lose legal immigration status and become removable.” Ex parte Aguilar, 537 S.W.3d 122, 129 (Tex. Crim. App. 2017); see State v. Garcia, 651 S.W.3d 506, 513 (Tex. App.—Houston [14th Dist.] 2022, pet. ref'd) (“When a client has committed an offense that would trigger mandatory deportation under federal law, counsel must correctly advise the client that the client faces mandatory deportation.”).

It is undisputed that, for the reasons detailed in Tedesco's affidavit, the state criminal offense to which Amiti pleaded guilty on April 28, 2025, was an “aggravated felony” as defined in the Immigration and Nationality Act, notwithstanding the suspension of his prison sentence. See 8 U.S.C. § 1101(a)(43), (48)(B). Further, the State does not dispute Tedesco's assertion that a guilty plea to an “aggravated felony” would “certainly trigger removal proceedings and a removal order”—in other words, these consequences were “truly clear” at the time of counsel's representation. See Padilla, 559 U.S. at 369, 130 S.Ct. 1473; see also 8 U.S.C. § 1227(a)(2)(iii) (providing that “[a]ny alien ․ in and admitted to the United States shall, upon the order of the Attorney General, be removed” if the alien “is convicted of an aggravated felony at any time after admission”). Here, though the trial court's oral admonishment merely alluded to the possibility of deportation, Amiti signed a written admonishment form specifically stating not only that a guilty plea “is almost certain to ․ result in your deportation” but also that Sanchez advised him of this fact.

Even assuming, without deciding, that Sanchez's performance was deficient under Padilla, the record shows Amiti was not prejudiced by the deficiency. To show prejudice after pleading guilty, a habeas applicant must show there is a reasonable probability that, but for counsel's deficient performance, the applicant would have “insisted on going to trial” rather than pleading guilty. Lee v. United States, 582 U.S. 357, 364–65, 137 S.Ct. 1958, 198 L.Ed.2d 476 (2017); see Ex parte Torres, 483 S.W.3d at 47; see also Ex parte Martinez, No. 13-21-00269-CR, 2023 WL 4771272, at *5 (Tex. App.—Corpus Christi–Edinburg July 27, 2023, no pet.) (mem. op., not designated for publication). To do that, the applicant must in turn establish that “a decision to reject the plea bargain would have been rational under the circumstances.” Ex parte Torres, 483 S.W.3d at 48 n.6 (quoting United States v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir. 2015)). The determination of whether rejection of a plea bargain would be rational “is made on a case-by-case basis, considering the circumstances surrounding the plea and the gravity of the alleged failure.” Ex parte Fassi, 388 S.W.3d 881, 887–88 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Factors relevant to the inquiry include:

(1) evidence of the applicant's guilt; (2) whether the applicant presented evidence of any factual or legal defenses to the charge; (3) whether the applicant presented evidence indicating that the immigration consequences of her plea had been her “paramount concern”; and (4) the circumstances of the plea deal compared to the penalties the applicant risked by going to trial.

Ex parte Uribe, 516 S.W.3d 658, 667–68 (Tex. App.—Fort Worth 2017, pet. ref'd) (citing Ex parte Murillo, 389 S.W.3d 922, 928–31 (Tex. App.—Houston [14th Dist.] 2013, no pet.)); see Ex parte Torres, 483 S.W.3d at 43.

Reviewing these factors, we cannot conclude that rejection of the plea offer would have been rational even if Amiti had been explicitly advised that a guilty plea would inevitably result in detention and deportation. First, Amiti has never offered any factual or legal defense to the theft charge, either before or after he made his guilty plea. See Ex parte Uribe, 516 S.W.3d at 668. At the plea hearing, the State was not called upon to formally present evidence of Amiti's guilt, but after the prosecutor recited the allegations in the indictment, Amiti conceded that they were true. Accordingly, on this record, conviction was overwhelmingly likely in the event Amiti chose to go to trial.

More importantly, the record does not support a finding that avoiding adverse immigration consequences was Amiti's “paramount concern” at the time he was evaluating the plea offer. Cf. Ex parte Torres, 483 S.W.3d at 48–49 (“[W]here the totality of the circumstances indicate that a defendant has placed a particular emphasis on the immigration consequences of a plea in deciding whether or not to accept it, this may constitute a circumstance that weighs in favor of a finding of prejudice.”). Amiti informed Tedesco he would have “exercised his right to trial” had he been properly advised of the “mandatory and irreversible immigration consequences flowing from a conviction in this case.” But the record does not contain any affidavit or unsworn declaration by Amiti confirming this. Even if it did, “[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies.” Lee, 582 U.S. at 369, 137 S.Ct. 1958; see State v. Cabeza-Torres, 736 S.W.3d 927, 932 (Tex. App.—Houston [14th Dist.] 2026, no pet.); Ex parte Fassi, 388 S.W.3d at 888 (noting “the habeas court was free to disbelieve appellant's self-serving testimony that he would not have pled guilty if he had been aware of the immigration consequences of his plea”). Rather, we must “look to contemporaneous evidence to substantiate a defendant's expressed preferences.” Lee, 582 U.S. at 369, 137 S.Ct. 1958. Tedesco noted that Amiti has been a lawful permanent resident since 2000 and that his family members are “exclusively” United States citizens; however, there was no contemporaneous evidence demonstrating that any immigration-neutral disposition was realistically available to Amiti. Thus, it would have been manifestly irrational for him to proceed to trial and risk an actual lengthy prison sentence while still facing the same deportation consequences. See Ex parte Fassi, 388 S.W.3d at 888; see also Ex parte Moreno, 382 S.W.3d 523, 529 (Tex. App.—Fort Worth 2012, pet. ref'd) (finding no prejudice when there was no evidence the State would have considered or accepted a plea bargain for a charge not resulting in the same immigration consequences).

As illustrated above, the record shows there was no prejudice arising from Amiti's ineffective assistance claim. See Ex parte Torres, 483 S.W.3d at 48 n.6. Therefore, his habeas application was capable of resolution without a hearing, and the habeas court did not abuse its discretion by declining to hold one.³ See Ex parte Salazar, 510 S.W.3d at 627; see also Ex parte Rodriguez, No. 05-24-00853-CR, 2025 WL 757144, at *2 (Tex. App.—Dallas Mar. 10, 2025, no pet.) (mem. op., not designated for publication) (concluding the habeas court did not abuse its discretion “in making a decision on the application without a hearing” where “both appellant's application and the State's response included affidavits, which the trial court was entitled to consider as evidence”); Ex parte Motta, 2014 WL 6602280, at *3 (same). We overrule Amiti's issue.

III. Conclusion

The trial court's judgment is affirmed.

FOOTNOTES

1.   No offense report appears in the appellate record.

2.   “Upon receiving a habeas corpus application, the trial court may dispose of it in one of two ways.” Ex parte Salazar, 510 S.W.3d 619, 626 (Tex. App.—El Paso 2016, pet. ref'd). “If the court determines from the face of an application or documents attached to the application that the applicant is manifestly entitled to no relief, the court shall enter a written order denying the application as frivolous.” Id. (quoting Tex. Code Crim. Proc. art. 11.072, § 7(a)). “In all other cases, a second procedure applies, and the trial court cannot rule on the application without entering findings of fact and conclusions of law.” Id. (citing Ex parte Baldez, 510 S.W.3d 492, 495 (Tex. App.—San Antonio 2014, no pet.)). Here, as in Salazar, the trial court entered findings of fact and conclusions of law, “meaning that the court did not find the application frivolous on its face.” Id.

3.   Amiti does not argue that the trial court, having determined it would hear the application by submission, erred by denying it; instead, he complains only of the trial court's failure to hold a hearing.

Opinion by Justice Fonseca