Ex parte Martinez

Ex parte Moses Martinez

NO. 03-15-00334-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

August 31, 2016

FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY

NO. 2C11-07750, HONORABLE JOHN MICHAEL MISCHTIAN, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Moses Martinez pleaded no contest to the misdemeanor offense of driving while intoxicated and was sentenced to three days in jail and an $850 fine.¹ Subsequently, Martinez filed an application for a writ of habeas corpus, asserting that his trial counsel had rendered ineffective assistance by failing to advise him of the immigration consequences of his guilty plea.² The trial court denied relief. In a single issue on appeal, Martinez asserts that the trial court abused its discretion by doing so. We will affirm the trial court's order.

BACKGROUND

The record reflects that Martinez was arrested for driving while intoxicated on September 3, 2011, and that he pleaded no contest to that offense on August 9, 2012. In his habeas application, Martinez asserted that, prior to his plea, trial counsel had failed to advise him of "the severe immigration consequences that would result from his pleading no contest to the criminalcharges against him." Specifically, Martinez claimed that pleading no contest to driving while intoxicated made him ineligible for the Deferred Action for Childhood Arrivals program ("DACA"), and, according to Martinez, counsel had failed to warn him of that fact.³ Martinez also claimed that, as a result of his plea, he is "unable to apply for DACA and has been ordered to be deported to Mexico." Martinez alleged that, had he been "advised of the severe consequences of his driving while intoxicated conviction and his ineligibility for immigration relief, he would not have chosen to plead to the listed offense; rather he would have insisted on a trial on the merits."

The only witnesses to testify at the habeas hearing were Martinez and his trial counsel during the DWI proceedings, Scott Sinsabaugh. Martinez, who was 24 years old at the time of the hearing, testified that he had been brought into the United States by his parents when he was one year old, had lived in Austin as a child, and had graduated from Reagan High School. Martinez explained that, following his arrest for DWI, he had hired Sinsabaugh to represent him in that matter. Martinez added that he had also hired an immigration attorney following his arrest. According to Martinez, neither Sinsabaugh nor his immigration attorney had informed him of DACA. Martinez further testified that he was unaware at the time of his plea that a conviction for DWI would make himineligible for DACA. However, Martinez acknowledged on cross-examination that, prior to his plea, he was aware that he could be deported from the United States as a result of his status as an illegal alien, which is why he had hired an immigration attorney in addition to Sinsabaugh following his arrest.

Sinsabaugh testified that he could not recall the specific details of his conversations with Martinez regarding the DWI case or whether he had ever discussed with Martinez the immigration consequences of a plea, although Sinsabaugh explained that it was his customary practice to do so with all of his clients. Sinsabaugh also testified that he was aware at the time of his representation that Martinez had also hired an immigration attorney and that Martinez "had an immigration question or issues at some point prior" to his plea, but Sinsabaugh could not recall what those issues were. Sinsabaugh further testified that he had heard of DACA but did not know the date when it began, and he acknowledged that, at the time of his representation of Martinez, he was unaware of any eligibility of Martinez for DACA or that a DWI conviction would make Martinez ineligible for DACA.

In addition to the testimony of Martinez and Sinsabaugh, the trial court also considered the probable-cause affidavit and plea paperwork from Martinez's underlying DWI case. At the conclusion of the hearing, the trial court took the matter under advisement and subsequently denied relief. This appeal followed.

STANDARD OF REVIEW

In reviewing the trial court's decision to grant or deny habeas corpus relief, we view the facts in the light most favorable to the trial court's ruling and uphold that ruling absent an abuseof discretion.⁴ A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding rules or principles.⁵ We are not to reverse the trial court's ruling unless the decision "is so clearly wrong as to lie outside that zone within which reasonable persons might disagree."⁶

"An applicant for a post-conviction writ of habeas corpus bears the burden of proving his claim by a preponderance of the evidence."⁷ "To demonstrate that he is entitled to post-conviction relief on the basis of ineffective assistance of counsel, an applicant must demonstrate that (1) counsel's performance was deficient, in that it fell below an objective standard of reasonableness, and (2) the applicant was prejudiced as a result of counsel's errors, in that, but for those errors, there is a reasonable probability of a different outcome."⁸ "In the context of a collateral challenge to a guilty [or no-contest] plea, the focus of the prejudice inquiry is on 'whether counsel's constitutionally ineffective performance affected the outcome of the plea process,' and on whether a defendant has shown that 'but for counsel's errors, he would not have pleaded guilty [or no contest] and would have insisted on going to trial.'"⁹

ANALYSIS

In his sole issue on appeal, Martinez asserts that the trial court abused its discretion in denying his application for writ of habeas corpus because, in Martinez's view, the record establishes conclusively that trial counsel was ineffective. According to Martinez, he proved by the preponderance of the evidence that counsel was deficient in failing to advise him that a DWI conviction would make him ineligible for DACA and, further, that Martinez would have insisted on going to trial if he had been so advised.

We first address the deficiency prong. In Padilla v. Kentucky, the United States Supreme Court held that "[t]he weight of prevailing professional norms supports the view that counsel must advise [his] client regarding the risk of deportation" when "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for [a] conviction."¹⁰ However, the Court added, "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."¹¹ The Court explained:

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited.¹²

In Padilla, counsel was found to be deficient because he had failed to advise his client that a conviction for a drug offense would make Padilla subject to "automatic deportation" pursuant to the terms of an immigration statute that were "succinct, clear, and explicit in defining the removal consequence for Padilla's conviction."¹³ In this case, unlike in Padilla, counsel's alleged deficiency was not a failure to warn his client that a conviction would subject him to "automatic deportation." Instead, counsel's alleged deficiency was a failure to warn Martinez that a conviction would make him ineligible for DACA, a "directive" of "deferred action" on the enforcement of immigration laws that had been announced by the Department of Homeland Security in June 2012, only two months prior to Martinez's plea.¹⁴ Although "[i]gnorance of well-defined general laws, statutes and legal propositions is not excusable and such ignorance may lead to a finding of constitutionally deficient assistance of counsel," the "specific legal proposition must be 'well considered and clearly defined.'"¹⁵ Thus, counsel should not be declared ineffective when counsel's claimed error is based on law that is not "well considered and clearly defined."¹⁶ On this record, it would not be outside the zone of reasonable disagreement for the trial court to conclude that, at the time of Martinez'splea, DACA was not "well considered and clearly defined" and thus that counsel was not deficient in failing to advise Martinez that a DWI conviction would make him ineligible for DACA.¹⁷

Moreover, even if counsel's performance had been deficient, it would not be outside the zone of reasonable disagreement for the trial court to conclude that Martinez had failed to prove that he had been prejudiced as a result of that performance. In the context of a Padilla claim, "the proper standard for determining prejudice is the one set forth in Hill, which requires an applicant to show a reasonable probability that counsel's errors affected the outcome of the plea proceedings, in the sense that, but for counsel's errors, the applicant would have rejected the plea bargain and instead pursued a trial."¹⁸ "Stated another way, he 'must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.'"¹⁹ "In determining whether an applicant would not have pleaded guilty but for counsel's deficient advice, a court is to consider 'the circumstances surrounding the plea and the gravity of the misrepresentation material to that determination.'"²⁰ "'The test is objective; it turns on what a reasonable person in the defendant's shoes would do.'"²¹ Factors to consider in the analysis include "the evidence supportingan applicant's assertions, the likelihood of his success at trial, the risks...