Tx Ct App: Padilla retroactive; vacates conviction (again)

Following what is fast becoming a trend among Texas intermediate appellate courts as well as courts in other states and a few federal district courts, the Court of Appeals for the First District of Texas held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively to convictions that became final before the date it was issued (March 31, 2010).  Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. (Tex. App. May 26, 2011) (Keyes, Higley, and Bland). The court went on to hold that a plea attorney’s failure to advise a noncitizen defendant that she would be inadmissible upon conviction and ineligible for a waiver of inadmissibility constituted deficient performance that prejudiced her. Accordingly, the court vacated the conviction. Justice Keyes wrote the panel’s decision.

This case involved an LPR who pleaded guilty to misdemeanor possession of less than two ounces of marijuana. Tex. Health & Safety Code Ann. § 481.121(b)(1). She was sentenced to four days imprisonment in the county jail and her driver’s license was suspended for six months. Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 2. She completed her sentence without incident. The record of conviction did not state exactly what quantity of marijuana was involved. Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 5 & n.5.

After completion of her sentence, Tanklevskaya traveled abroad to visit her father. Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 2. Upon return she was detained and DHS initiated removal proceedings. Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 2.

In an interesting twist from the usual Padilla claim that centers on deportation, Tanklevskaya argued that her plea attorney violated her Sixth Amendment right to counsel by

“fail[ing] to inform her that (1) her guilty plea would make her inadmissible to return to the United States after traveling abroad and (2) she could not request a waiver of the inadmissibility provision because the information failed to specify that the quantity of marijuana allegedly possessed was less than thirty grams.”

Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 8.

Though the plea attorney did not testify,

“both parties stipulated that he would testify that he informed applicant of the general immigration consequences to a guilty plea, but he did not specifically tell her that, upon leaving and attempting to return to the United States, she would be presumptively inadmissible. Nor did he tell her that she could not request a waiver of the inadmissibility provision because the information in the original case did not specify that the quantity of marijuana allegedly possessed was less than thirty grams.”

Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 4. Had the record of conviction specified that she was convicted of possession of 30 grams or marijuana or less she would have been eligible for a waiver of inadmissibility pursuant to INA § 212(h).

Because Tanklevskaya’s conviction became final before Padilla was issued, the court first considered whether Padilla applies retroactively. Turning to the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288 (1989), the case that guides the retroactivity analysis (which I explained in previous post), the court “h[e]ld that the Supreme Court’s decision in Padilla should be applied retroactively to cases on collateral review.” Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 16.

Importantly, the court relied on two federal district court cases to reach this conclusion: United States v. Hubenig, No. 6:03-mj-040, 2010 WL 2650625 (E.D. Cal. July 1, 2010) and Marroquin v. United States, No. M-10-156, 2011 WL 488985 (S.D. Tex. Feb. 4, 2011). The Hubenig court “concluded that Padilla did not establish a new rule under Teague, and, thus, it applied Padilla retroactively.” Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 14. Similarly, Marroquin “held that, ‘in Padilla, the Supreme Court has not announced a new law, it has applied existing law to a new set of facts; therefore, this Court concludes Padilla applies retroactively.’” Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 16.

I wrote about Marroquin a few months back and recently learned from Maurice Hew, a professor at Texas Southern University’s Thurgood Marshall School of Law, that the case is scheduled for argument before the U.S. Court of Appeals for the Fifth Circuit in the coming months. Professor Hew, a talented and downright nice person, is arguing for Marroquin.

Having determined that Padilla applies retroactively, the Texas appellate court turned to the merits of the Padilla-based ineffective assistance of counsel claim. The court first addressed the first prong of the ineffective assistance analysis required by Strickland v. Washington, 466 U.S. 668 (1984): whether plea counsel’s representation fell below an objective standard of reasonableness (i.e., whether counsel’s performance was deficient).

A few aspects of the court’s deficient performance discussion stand out. First, the basis of the claim was that the conviction resulted in inadmissibility and ineligibility for a § 212(h) waiver. Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 18. Second, the court noted in a footnote that Tanklevskaya remained eligible for Cancellation of Removal, but this did not affect the court’s analysis. Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 18 n.7.

Third, the court explicitly determined that the plea attorney’s advisory that Tanklevskaya “may be subject to deportation, inadmissibility, or denial of naturalization” was not sufficient to satisfy Padilla. That decision, the court held, requires that plea counsel have advised Tanklevskaya that “her inadmissibility and subsequent removal was presumptively mandatory, especially because she did not qualify for the ‘simple possession’ waiver due to the information’s failure to specify that the quantity of marijuana possessed was less than thirty grams.” Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 19, 20. Consequently, the court held that plea “counsel’s performance was deficient under the first prong of Strickland.” Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 20.

Turning to Strickland’s second prong—whether the attorney’s deficient performance prejudiced the client—the court first explained how Texas courts interpret this requirement: “The Court of Criminal Appeals has stated that, to demonstrate prejudice in this situation, the defendant must show a reasonable probability that, absent counsel’s errors, ‘a particular proceeding would have occurred,’ but she need not show that she would have received a ‘more favorable disposition’ had she gone to trial.” Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 21 (quoting Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005)).

Applying this standard to Tanklevskaya’s statements during the post-conviction relief evidentiary hearing, the court “conclude[d] that based on her testimony at the habeas hearing, applicant met her burden of demonstrating that, but for her plea counsel‘s deficient and incomplete advice regarding the immigration consequences of a guilty plea, an issue of vital importance to applicant, she would not have pleaded guilty.” Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 23.

The court added one final important determination. It held that the trial court’s admonishment in compliance with Tex. Code of Crim. Procedure article 26.13(a) “only requires the court to inform a defendant that the guilty plea ‘may’ result in deportation, inadmissibility, or the denial of naturalization.” Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 25. This, the court held, was insufficient to cure plea counsel’s deficient performance, at least under these facts: “we hold that under these facts, the trial court’s statutory admonishment prior to accepting applicant’s guilty plea does not cure the prejudice arising from plea counsel’s failure to inform applicant that, upon pleading guilty, she would be presumptively inadmissible.” Ex Parte Tanklevskaya, No. 01-10-00627-CR, slip op. at 26.