The Court of Criminal Appeals of Texas, the state’s highest criminal court, held that a person who waived his right to an attorney in a misdemeanor drug possession prosecution did not do so impermissibly despite not having been told that he might be deportable upon conviction. State v. Guerrero, No. PD-1258-12, slip op. (Tex. Crim. App. June 5, 2013) (Cochran, Keller, Price, Womack, Johnson, Keasler, Hervey, and Alcala, JJ.). Judge Cochran wrote the court’s opinion.

This case presents like the picture of interior immigration enforcement in the age of crImmigration law. The defendant entered the United States without inspection in 1992 when he was 12-years-old. A few years later, as a high school junior, he was caught with 1.9 grams of marijuana and charged with possession of less than two ounces of marijuana. State v. Guerrero, No. PD-1258-12, slip op. at 2-3. Guerrero waived his right to counsel, pled guilty, and was sentenced to deferred adjudication community supervision for 180 days, which he successfully completed. State v. Guerrero, No. PD-1258-12, slip op. at 3. In 2009, the local police stopped him for “traffic violations.” There is no mention whether he was prosecuted or even fined for these violations. He was, however, turned over to ICE which initiated removal proceedings. State v. Guerrero, No. PD-1258-12, slip op. at 3.

He subsequently sought to vacate his 1998 marijuana possession conviction—which appears to be his only criminal offense—to remain eligible for cancellation of removal. State v. Guerrero, No. PD-1258-12, slip op. at 1. Presumably he was trying to avoid the “stop-time” rule by which physical presence ceases to accrue upon commission of a controlled substances offense that falls within INA § 212(a)(2). INA § 240A(d)(1). The trial judge granted Guerrero’s motion and the intermediate appellate court affirmed.

The Court of Criminal Appeals, however, took a much harsher view of things. First, the court found fault with the fact that the trial court heard only unsworn testimony from Guerrero’s habeas counsel. (In Texas, post-conviction attacks on cases in which community supervision was issued must be brought under Tex. Code Crim. P. article 11.072 which establishes procedures for writs of habeas corpus.) The attorney informed the trial court that Guerrero is facing deportation and that, prior to waiving his right to counsel, he was not told that pleading guilty could result in deportation. State v. Guerrero, No. PD-1258-12, slip op. at 3-4. The attorney also informed the trial court that Guerrero was available to testify “if the Court would like to hear from him on this matter,” to which the trial judge responded, “‘No, that’s all right,’ and granted [Guerrero’s] motion.” State v. Guerrero, No. PD-1258-12, slip op. at 4.

Though “[a]n applicant’s live, sworn testimony is a sufficient basis for upholding a decision to grant relief in an Article 11.072 habeas proceeding because the trial judge may believe any or all of a witness’s testimony,” and “reviewing courts will defer to a trial judge’s factual findings,” the court nonetheless determined that Guerrero failed to meet his burden of proving, by a preponderance of the evidence, that he was improperly denied the right to counsel before pleading guilty. State v. Guerrero, No. PD-1258-12, slip op. at 8-9.

The court concluded that the trial court improperly considered the unsworn statements by Guerrero’s attorney. Unsworn statements from counsel cannot be considered evidence, the court concluded, unless “counsel is speaking from first-hand knowledge.” State v. Guerrero, No. PD-1258-12, slip op. at 11. Without question, Guerrero’s habeas attorney had no “first-hand knowledge” of the 1998 prosecution. State v. Guerrero, No. PD-1258-12, slip op. at 11. Because the trial judge turned down Guerrero’s offer (through his habeas counsel) to testify, there was no other evidence in the record about what happened in 1998. Consequently, the court concluded, “no evidence was introduced in support of habeas-corpus relief, [thus] appellee failed to satisfy his requisite burden of proof.” State v. Guerrero, No. PD-1258-12, slip op. at 12.

Interestingly, the court recognized that an obvious solution to this problem would have been to remand the case to the trial court where Guerrero would have had the opportunity to introduce proper evidence about the 1998 prosecution. Given that he offered to testify once before, it would seem likely that he would offer to testify again which, if believed by the trial judge, could be sufficient to obtain habeas relief. State v. Guerrero, No. PD-1258-12, slip op. at 12-13. But remanding, the court stated, “would be futile here” because, even if the habeas attorney’s statements were considered, Guerrero still failed to show that his waiver of counsel was not knowing, intelligent, and voluntary. State v. Guerrero, No. PD-1258-12, slip op. at 13.

The court began its analysis of Guerrero’s invalid waiver of counsel claim by adopting what amounts to a very narrow view of the relevant factors a noncitizen defendant might rationally consider when deciding whether to accept a plea offer or not. Noting that waiver is not voluntary if it is coerced, the court characterized the state’s offer of deferred adjudication as “most attractive” and “especially favorable.” State v. Guerrero, No. PD-1258-12, slip op. at 13. This, of course, can only be true because the court ignores the fact that this plea offer meant that Guerrero—who has now spent more than 20 years in the USA and 12 outside—is facing deportation for having been caught with about three or four marijuana cigarettes while he was a teen-aged high school student.

The court then went on to explain that the U.S. Supreme Court’s ruling in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that the Sixth Amendment right to effective assistance of counsel requires advice about the deportation consequence of conviction prior to pleading, does not help Guerrero. For one thing, the court explained, Padilla does not apply retroactively. State v. Guerrero, No. PD-1258-12, slip op. at 15 (citing Ex Parte De Los Reyes, 392 S.W. 675, 679 (Tex. Crim. App. 2013), which adopts the U.S. Supreme Court’s reasoning in Chaidez v. United States, 133 S. Ct. 1103 (2013)).

Secondly, the court seemed to imply that Padilla would not have applied to Guerrero anyway because “[t]here is no such blanket rule for those who are undocumented aliens.” State v. Guerrero, No. PD-1258-12, slip op. at 15. “Unlike Jose Padilla, appellee was an undocumented immigrant and was deportable for that reason alone, both in 1998 and today.” State v. Guerrero, No. PD-1258-12, slip op. at 17.

True, but Guerrero’s claim was not that the marijuana possession conviction makes him deportable; rather, his claim is that it makes him ineligible for cancellation of removal. In a footnote, the court makes light of this point and belies its poor understanding of immigration law enforcement and removal proceedings. Footnote 55 states, in its entirety:

Appellee argues that, because of the 1998 marijuana case, he is now not even eligible
to be considered for cancellation of removal under 8 U.S.C. § 1229b. But, what matters is the state of the law and the state of appellee’s knowledge at the time he entered his plea, not events that have occurred since then. For example, under Section 1229b(b)(1)(A), an undocumented alien is eligible for cancellation of removal proceedings only if he has been “physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of his application.” Appellee could not possibly predict, back in 1998, whether he would be able to comply with that provision. Nor could he predict if he could establish that his removal would “result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child[.]” Id., § 1229b(b)(1)(D). Furthermore, the federal statute permits the cancellation of removal for only a total of 4,000 aliens a year. Id., § 1229b(e)(1). Clearly, given the odds and the number of undocumented aliens in the U.S. both in 1998 and today, a reasonable defendant would not likely have based his 1998 decision on whether to enter a guilty
plea and accept deferred-adjudication community supervision upon the infinitesimal chance that, if he did not plead guilty, he would (1) be found not guilty; (2) be able to remain undetected in the United States as an undocumented alien for the next ten years without being detained; (3) qualify for cancellation of removal after that ten-year period, and (4) be among the lucky 4,000 aliens a year whose cancellation of removal is permitted. Those are not decent Las Vegas odds.

There is so much wrong with this statement. First, people do in fact make decisions that turn on relief that may be available years ahead. For example, relief under former INA § 212(c) remains available to individuals who relied on its existence at the time of conviction but held off applying for many years, even after it was repealed in 1996. Indeed, the U.S. Court of Appeals for the Fifth Circuit, in which Texas sits, requires only a “likelihood” that noncitizens relied on the existence of § 212(c) relief at the time of conviction to remain eligible. Carranza v. Holder, No. 11-60396, slip op (5th Cir. Nov. 6, 2012) (which I wrote about here).

Second, the 4,000 cancellation cap does not mean that otherwise meritorious cancellation claims are denied. It just means that the decision to grant the claim is postponed until the following fiscal year. This is far from ideal for everyone involved, but it’s also a far cry from what the court appears to think happens—every meritorious claim that comes before an immigration judge is denied if 4,000 cancellation applications have already been granted during that fiscal year.

Third, it’s entirely reasonable to believe it’s possible to remain undetected in the United States for ten years. Literally millions of people do this. To borrow the court’s Las Vegas betting analogy, but to do so in a way that accurately reflects immigration law, these are poor odds for the house.

As such, the court is simply wrong in assuming that “[t]he prospect of removal…could not reasonably have affected his decision to waive counsel and plead guilty” because “[h]e could have been deported immediately after walking out of criminal courthouse.” State v. Guerrero, No. PD-1258-12, slip op. at 18. The likelihood of being detained by the former INS upon “walking out of the criminal courthouse” was quite low, and, in fact, did not happen. He didn’t enter immigration officials’ radar until 11 years later when he was pulled over for a traffic violation. Moreover, Guerrero didn’t argue that the conviction is what makes him deportable; rather, he argued that the conviction makes it much less likely that he will be able to remain in the United States. And in that he’s entirely correct. With the conviction, his eligibility for cancellation of removal for non-LPRs becomes more difficult because he will have a harder time showing that he has the requisite ten years continuous physical presence. INA § 240A(b)(1)(A).

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