Summary
holding that appellant failed to show deficient performance when appellant told his counsel that he was U.S. citizen
Summary of this case from Ex parte IzquiredoOpinion
NO. 14-17-00591-CR
05-08-2018
EX PARTE RAPHEK RAULEON PINNOCK, Appellant
On Appeal from the County Criminal Court at Law No. 5 Harris County, Texas
Trial Court Cause No. 2132445
MEMORANDUM OPINION
Appellant Raphek Rauleon Pinnock, born in Jamaica and a legal United States resident since 2008, was convicted of a misdemeanor in 2013 after pleading guilty to the charge. Appellant contends that he is now subject to deportation as a result of his conviction. Appellant filed an application for writ of habeas corpus, in which he alleged that his guilty plea was involuntary because his plea counsel failed to admonish him of the immigration consequences of his plea, thereby rendering ineffective assistance. After a hearing, the trial court denied habeas relief. Appellant now challenges that ruling.
We conclude that the trial court did not abuse its discretion in denying appellant's application. Accordingly, we affirm the trial court's order.
Background
Appellant is a native of Jamaica and a permanent legal resident of the United States. In 2013, appellant was charged with possession of marijuana under two ounces, a Class B misdemeanor offense. The trial court appointed counsel to represent appellant. Appellant pleaded guilty to the charge pursuant to a plea bargain with the State. The trial court assessed punishment of twenty-five days' confinement in county jail. Appellant did not appeal his conviction.
Over three years later, appellant filed an application for writ of habeas corpus. Appellant challenged the voluntariness of his conviction based on a claim of ineffective assistance of counsel.
The trial court held a hearing on appellant's application. After the hearing, the trial court denied habeas relief.
Appellant now appeals the trial court's order.
Jurisdiction and Standard of Review
Appellant was convicted of a misdemeanor. Texas Code of Criminal Procedure article 11.09 allows a person who is "confined on a charge of misdemeanor" to apply for habeas relief. Tex. Code Crim. Proc. art. 11.09. We have appellate jurisdiction from the denial of an application for writ of habeas corpus challenging a misdemeanor conviction. See Ex parte Jordan, 659 S.W.2d 827, 828 (Tex. Crim. App. 1983).
The State does not dispute that appellant is "confined" for purposes of article 11.09 because he faces collateral legal consequences resulting from his misdemeanor conviction. See, e.g., Le v. State, 300 S.W.3d 324, 326-27 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (applicant's federal detention and potential deportation were based on Texas misdemeanor convictions and thus she faced "collateral legal consequences"); State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) (the term "confinement" encompasses, inter alia, any restraint on personal liberty).
We review a trial court's decision on an application for writ of habeas corpus for abuse of discretion. See Ex parte Garcia, 353 S.W.3d 785, 787 (Tex. Crim. App. 2011); Ex parte Roberts, 494 S.W.3d 771, 774 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). An applicant seeking misdemeanor post-conviction habeas corpus relief must establish entitlement to such relief by a preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).
The trial court sits as the fact finder in a habeas proceeding brought under article 11.09. See Ex parte Martinez, 451 S.W.3d 852, 856 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). In such cases, the habeas court is the sole judge of witness credibility, and we will not disturb its ruling absent a clear abuse of discretion. See id.; see also Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). The habeas court may accept or reject any or all of any witness's testimony, even if that testimony is uncontroverted. Ex parte Peterson, 117 S.W.3d at 819 n.68; Rios v. State, 377 S.W.3d 131, 135 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd); see also, e.g., Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008) (describing abuse-of-discretion standard generally); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (stating, in motion to suppress context, "the judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted"); cf. Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.—Houston [1st Dist.] 1996, pet. ref'd) (holding that, in motion for new trial context, trial court not required to accept as true testimony of accused or any defense witness simply because it was uncontroverted).
We imply all findings of fact that are necessary to support the habeas court's ruling. See Ex parte Martinez, 451 S.W.3d at 856. We defer to the habeas court's implied or explicit findings of fact that are supported by the record, even when no witnesses testify and all of the evidence is submitted through affidavits. See Ex parte Wheeler, 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006). We consider the evidence presented in the light most favorable to the habeas court's ruling. Ex parte Fassi, 388 S.W.3d 881, 886 (Tex. App.—Houston [14th Dist.] 2012, no pet.). We will uphold the habeas court's judgment as long as it is correct on any theory of law applicable to the case. Ex parte Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001) (per curiam).
Analysis
A person who proves by a preponderance of the evidence that a guilty plea was not voluntary or knowing is entitled to habeas relief. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). Appellant argues that he entered his guilty plea involuntarily and without knowledge due to his plea counsel's ineffective assistance.
A defendant has a constitutional right to effective assistance of counsel. Ex parte Reedy, 282 S.W.3d 492, 500-01 (Tex. Crim. App. 2009); see also U.S. Const. amend. VI; Tex. Const. art. I, § 10. This right extends to the plea bargaining process. See Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991); Hill v. Lockhart, 474 U.S. 52, 57-58 (1985) (applying the two-part test of Strickland v. Washington, 466 U.S. 668 (1984), to challenges to guilty pleas based on ineffective assistance of counsel). When an applicant for habeas corpus relief challenges the validity of a plea entered upon the advice of counsel and contends that his counsel was ineffective, he must show that (1) his counsel's advice with respect to accepting a plea offer did not fall within the range of competence demanded of attorneys in criminal cases, and (2) but for the counsel's errors or deficiencies, the applicant would not have pleaded guilty and would have insisted on going to trial. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010) (citing Ex parte Reedy, 282 S.W.3d at 500; Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999)).
As the reviewing court, we indulge a strong presumption that counsel's actions and decisions fell within the wide range of reasonable professional assistance. See Ex parte Chandler, 182 S.W.3d 350, 354 (Tex. Crim. App. 2005). To overcome this presumption, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the ineffectiveness. See Ex parte Wolf, 296 S.W.3d 160, 168-69 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd) (citing Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). A habeas applicant has the burden to show by a preponderance of the evidence that counsel's performance fell below a reasonable standard of competence. See Ex parte Moody, 991 S.W.2d at 858.
Appellant claims he received ineffective assistance of counsel because his plea counsel did not admonish appellant regarding the immigration consequences of his plea. Under United State Supreme Court precedent, defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea. Padilla v. Kentucky, 559 U.S. 356, 367-69 (2010); see also Ex parte De Los Reyes, 392 S.W.3d 675, 677 (Tex. Crim. App. 2013). The failure to do so falls below the objective standard of reasonableness demanded of defense attorneys in criminal cases. Padilla, 559 U.S. at 368.
Appellant raised a second ground in his habeas petition—that his plea counsel was ineffective by failing to investigate the facts of the case—but he did not brief this argument on appeal so we do not address it. See Fields v. City of Texas City, 864 S.W.2d 66, 68 n.1 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (arguments raised in trial court are abandoned on appeal when not raised in appellate brief).
Appellant's plea counsel submitted an affidavit and also testified at the habeas hearing. Counsel testified that appellant wanted to plead guilty in order to resolve the case quickly, that counsel had a "very specific practice" of always ascertaining his clients' citizenship or immigration status both at the beginning of representation and when filling out plea paperwork, and that counsel was "certain" appellant said he was a United States citizen.
Appellant also testified at the habeas hearing. Appellant denied telling his plea counsel that he was a citizen, and claimed that his attorney told him that a guilty plea would not subject him to deportation. Appellant also claimed that the trial judge who accepted his plea never asked appellant whether he was a citizen.
The plea document, reflecting appellant's plea of guilty to the misdemeanor charge of possession of marijuana pursuant to a plea bargain agreement with the State, shows a check mark next to the statement "The defendant informed me that he or she is a United States citizen." The other option—"The defendant informed me that he or she is not a United States citizen, and I admonished the defendant that a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law."—has no corresponding check mark. The trial judge who accepted the plea signed the document. The same trial judge also stated at the habeas hearing that she "ask[s] . . . in every single case" whether the defendant is a United States citizen.
There is seemingly no dispute in this case that appellant's plea counsel did not advise appellant regarding the immigration consequences of his plea. But there is no evidence, other than appellant's testimony during this habeas proceeding, that appellant's plea counsel knew his client was a non-citizen and therefore required admonishment of the immigration consequences of a guilty plea. To the contrary, appellant's plea counsel said that appellant affirmatively represented that he was a United States citizen. Specifically, counsel testified:
. . . Applicant informed [me] he was a citizen of the United States. I never discussed any immigration consequences with Applicant, because he never told me he was not a United State's [sic] citizen, nor was I made aware of his non-citizen status by any document. . . .
I further instructed Applicant that the Court would ask him if he was a United States citizen. Applicant told me again that he was a citizen and understood my instruction before going to see the judge.
Appellant argues that an entry in a "clerk's record" document—in actuality, a printout from the district clerk's website—shows that he is a non-citizen, and that, had his plea counsel looked at this document, the attorney would have known of appellant's immigration status. But appellant's plea counsel testified that no document he reviewed indicated that appellant was not a citizen, and the habeas judge (again, the same judge who accepted appellant's plea) stated that she had "never seen that version of the clerk's record before this hearing and it's not normally part of the Court's file or the DA's file that goes to [appointed] counsel." The habeas court was free to accept counsel's testimony that he had never been made aware of appellant's immigration status and instead relied on appellant's assurance that he was a United States citizen. Ex parte Peterson, 117 S.W.3d at 819 n.68.
The habeas court was free to believe counsel's testimony and disbelieve appellant's testimony. See, e.g., Ex parte Obi, 446 S.W.3d 590, 599 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (op. on reh'g) ("The trial court did not credit Obi's self-serving testimony; and, given the conflicting evidence, it was free to disregard it."). The Dallas Court of Appeals has reached this same conclusion in a factually analogous case. See Ex parte Amanze, No. 05-16-00579-CR, 2016 WL 7166552 (Tex. App.—Dallas Nov. 30, 2016, pet. ref'd) (mem. op., not designated for publication). In Amanze, the appellant, a non-citizen, sought habeas relief on the basis that his trial counsel did not admonish Amanze on the immigration consequences of his guilty plea. Id. at *1. Trial counsel testified that his usual practice was to ascertain a client's citizenship status and that he believed Amanze never informed counsel that Amanze was a non-citizen. Id. at *2-3. Amanze admitted that he never brought up his immigration status with trial counsel and that the arraignment paperwork showed that he told three separate magistrate judges that he was a citizen of the United States. Id. at *2 & n.2. The trial court denied Amanze's habeas application, and the appellate court deferred to the trial court's implied finding that trial counsel's account was credible and appellant's testimony was not credible. Id. at *7. The court of appeals also declined to impose "a broad affirmative duty on counsel to uncover a client's deception and determine definitively the client's immigration status." Id. at *8.
We similarly conclude that the present record supports the habeas court's implied findings that appellant told his plea counsel that he was a United States citizen and that, therefore, appellant's plea counsel was not aware of a need to advise appellant of the immigration consequences of his plea under Padilla. We defer to the habeas court's factual determinations. See Ex parte Wheeler, 203 S.W.3d at 325-26. Accordingly, appellant has failed to show by a preponderance of the evidence that his counsel's performance was deficient.
Because appellant has failed to make the requisite showing under the first Strickland prong, we need not address whether he can show prejudice. Strickland, 466 U.S. at 697.
We hold that the trial court did not abuse its discretion in denying appellant's application for writ of habeas corpus on the ground that he received ineffective assistance of counsel, and we overrule appellant's sole issue.
Conclusion
We affirm the trial court's order denying habeas relief.
/s/ Kevin Jewell
Justice Panel consists of Justices Busby, Brown, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).