An intermediate state court in Texas recently held in a published decision that Padilla applies retroactively to convictions entered before the date Padilla was issued. State v. Golding, No. 01-10-00685-CR, slip op. (Tex. App. May 12, 2011) (Bland, Radack, and Alcala). The court then affirmed the trial court’s vacation of a conviction. Justice Bland wrote the panel’s decision.
This case involved an LPR convicted of two Texas misdemeanors in 1994, driving while intoxicated and unlawful possession of a firearm. Golding, No. 01-10-00685-CR, slip op. at 2. The firearm conviction renders him removable for having been “convicted under any law of…possessing…or carrying…a firearm.” INA § 237(a)(2)(C). Because he did not find out about this immigration problem until years after his convictions when he sought an immigration lawyer’s assistance to naturalize, Golding complained that his 1994 defense attorney’s failure to inform him about the immigration consequences of his firearm conviction constitutes ineffective assistance of counsel under Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
As a threshold matter, the court determined that there was jurisdiction to consider Golding’s claim despite the fact that he was not imprisoned and had long since completed his sentence. Golding, No. 01-10-00685-CR, slip op. at 7-8. As the court explained the Texas post-conviction relief mechanism, “To be entitled to habeas corpus relief, an applicant must establish that he was either ‘confined’ or ‘restrained’ unlawfully at the time he applied for relief. … A showing of collateral legal consequences is sufficient to show that an applicant is ‘confined.’” Golding, No. 01-10-00685-CR, slip op. at 7 (citations omitted).
While Texas courts have long considered “detainment for deportation proceedings” to satisfy the habeas confinement requirement, Golding was not detained (indeed, removal proceedings had not been initiated) therefore this was irrelevant to his claim. As such, the court considered whether the possibility that removal proceedings resulting in deportation or ineligibility for naturalization could satisfy the habeas confinement requirement.
The court determined that either immigration consequence was sufficient could: “Consequently, we hold that the denial of Golding’s opportunity to apply for naturalization and the fact that Golding’s plea renders him deportable if apprehended are sufficient collateral legal consequences to invoke the trial court’s habeas jurisdiction.” Golding, No. 01-10-00685-CR, slip op. at 8-9.
To do otherwise, the court added, would be nonsensical: “A requirement that habeas relief is unavailable until the applicant actually suffers the negative immigration consequences would be particularly burdensome, especially for individuals, like Golding, who wish to apply for naturalization.” Golding, No. 01-10-00685-CR, slip op. at 8-9.
Having decided that jurisdiction exists to consider Golding’s claim, the court then turned to whether Padilla applies retroactively—that is, whether it applies to convictions that became final before the date Padilla was issued, March 31, 2010.
The State, citing Teague v. Lane, 489 U.S. 288 (1989), argued that Padilla is not retroactive because it represents a new rule of criminal procedure. Golding, No. 01-10-00685-CR, slip op. at 17. In almost all circumstances, a new rule of criminal procedure applies prospectively only. As with any rule, there is of course an exception. A criminal procedure decision applies retroactively if it either puts certain behavior beyond the reach of criminal law or constitutes a watershed rule of criminal procedure.
Behavior that is moved beyond the reach of criminal law is behavior that can no longer be punished criminally. Consensual adult homosexual sexual activity is probably the best example. What was once a criminal act was moved beyond the reach of criminal law by the Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003).
A watershed rule of criminal procedure, on the other hand, is a rule that would prevent a significant risk of convicting innocent individuals and alters understandings of bedrock principles of criminal procedure. The best example of this is the right to appointed counsel announced in Gideon v. Wainwright, 372 U.S. 335 (1963).
In contrast, an extension of existing criminal procedure doctrine is not a new rule; rather, it is merely an application of an existing rule to a new set of facts. Golding argued that Padilla falls into this category.
Because “Padilla relies primarily on Strickland [v. Washington, 466 U.S. 668 (1984)] as well as the secondary sources discussing prevailing professional norms at the time of Padilla’s plea” and because Padilla “observed that the extent of the advice counsel is required to provide depends wholly on the facts,” the Texas court concluded that “Padilla does not announce a new rule, but merely extends Strickland.” Golding, No. 01-10-00685-CR, slip op. at 20. As such, “we hold that Padilla—as an extension of Strickland, and not a new constitutional rule—applies to this case.” Golding, No. 01-10-00685-CR, slip op. at 25.
Having decided that jurisdiction exists to consider Golding’s Padilla claim and that Padilla applies to convictions entered before it was issued, the court turned to whether his defense attorney’s performance was deficient and, if so, whether Golding was prejudiced by that deficient performance (the two-pronged ineffective assistance of counsel standard announced in Strickland).
The court did not devote much space to these issues (the last three pages of twenty-eight page opinion) given that it was simply reviewing the trial court’s determination for abuse of discretion. Golding, No. 01-10-00685-CR, slip op. at
Addressing the deficient performance prong, the court explained that Golding’s “plea counsel acknowledged that he was aware Golding was not a citizen, that, as counsel, he had a duty to investigate immigration consequences, and that he had failed both to advise Golding of the immigration consequences of his plea or recommend that he consult with an immigration attorney.” Golding, No. 01-10-00685-CR, slip op. at 25. Consequently, the court held that the trial court did not abuse its discretion in determining that Golding’s defense attorney’s performance was deficient. Golding, No. 01-10-00685-CR, slip op. at 26.
The court had similarly little trouble concluding that the attorney’s deficient performance prejudiced Golding. The State argued that Golding was not prejudiced because the trial court admonished him about potential immigration consequences. Golding, No. 01-10-00685-CR, slip op. at 26.
This, the court held, was insufficient to cure the defense attorney’s deficiency. “Where adequate representation reasonably would have led criminal defense counsel to advise against entering a guilty plea, the general admonition about the risk of adverse immigration consequences in the court’s plea papers did not put Golding on notice that his plea of guilty to the misdemeanor charged would absolutely render him deportable and ineligible for naturalization.” Golding, No. 01-10-00685-CR, slip op. at 27.
It’s worth noting that the day before Golding was issued, the Texas Court of Criminal Appeals issued an unpublished opinion that seems to vacate a conviction based on a Padilla claim. Ex Parte Herrera, No. AP-76,556, slip op. (Tex. Crim. App. May 11, 2011) (unpublished). Most likely because it’s an unpublished decision, the opinion does not provide much help to advocates looking for examples of successful Padilla claims. At best it provides a glimpse of where the Texas Court of Criminal Appeals is leaning on Padilla retroactivity. (Thanks to reader Daniel G. for pointing me to Herrera.)