Ex Parte: Joel De Los Reyes.

• Decision Date: 11 January 2012
• Docket Number: No. 08–10–00239–CR.,08–10–00239–CR.
• Citation: 350 S.W.3d 723
• Parties: Ex parte: Joel DE LOS REYES.
• Court: Texas Court of Appeals

350 S.W.3d 723

Ex parte: Joel DE LOS REYES.

No. 08–10–00239–CR.

Court of Appeals of Texas, El Paso.

Aug. 31, 2011.Discretionary Review Granted Jan. 11, 2012.

Matthew DeKoatz, Attorney at Law, El Paso, TX, for Appellant.Jaime E. Esparza, District Attorney, El Paso County Courthouse, El Paso, TX, for The State of Texas.Before CHEW, C.J., McCLURE, and RIVERA, JJ.

OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Joel De Los Reyes appeals the trial court's denial of his application for writ of habeas corpus. In a single issue, Appellant contends he is entitled to relief by writ of habeas corpus, and the trial court erred by denying his application, on the basis that he suffered ineffective assistance of counsel during his original criminal prosecution. By cross-appeal, the State contends that the trial court lacks subject-matter jurisdiction over the case, as Appellant is currently in federal custody. We reverse.

Appellant has been a permanent resident in the United States since 1993. In 1997, he pled guilty to misdemeanor theft. In 2004, he pled guilty to another misdemeanor theft and was sentenced to one day of confinement in the El Paso County Jail and ordered to pay a monetary fine.

Appellant was taken into custody by the Department of Immigration and Customs Enforcement in February of 2010. While in custody at a United States Immigration and Detention Facility, Appellant filed an application for writ of habeas corpus seeking a new trial for the 2004 theft offense on the basis that his guilty plea was involuntary because his attorney failed to inform him that his plea would lead to deportation. In support of his application, Appellant submitted two affidavits and a “Memorandum of Law.” In the first affidavit, Appellant stated that he pled guilty to the 2004 misdemeanor on the advice of his attorney and that his attorney did not advise him that the plea would lead to deportation. In the second affidavit, Appellant's attorney testified that he did, in fact, advise Appellant to plead guilty to the offense, and that he did so without knowledge of Appellant's prior theft conviction. The affidavit includes counsel's admission that he did not properly investigate and review Appellant's history, and that had he done a more thorough review he would not have advised Appellant to plead guilty. Counsel also stated that he did not properly advise Appellant of the consequences of his plea. He concluded that Appellant is facing deportation as a “direct result” of his failure to advise Appellant of the potential impact on his immigration status.

Although not cited directly in his memorandum of law, Appellant also submitted excerpts from the United States Supreme Court's recent decision in Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Padilla, the Court concluded that counsel engaged in deficient performance under the Strickland v. Washington standard by failing to advise his client that a guilty plea made him subject to deportation. Padilla, ––– U.S. at ––––, 130 S.Ct. at 1483, citing Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).

In its answer, the State argued Appellant was not entitled to relief by writ of habeas corpus, primarily on the basis that Appellant could not meet his burden to establish ineffective assistance of counsel under Strickland, and that Appellant could not rely on the ruling in Padilla because the case was decided long after the allegedly deficient performance occurred. The State also argued that Appellant's application should be denied under the doctrine of laches, due to Appellant's unexplained six-year delay in applying for habeas corpus relief.

The trial court heard evidence and argument on the application on July 8, 2010. Appellant's trial counsel was the only witness to testify during the hearing. He reiterated his affidavit testimony and admitted that he did not discuss the possible immigration consequences with Appellant prior to Appellant's guilty plea. He testified, “I did not advise him of any type of immigration consequences or deportation at all.” Counsel explained that when he was notified that Appellant was taken into federal custody, he researched the issue further and discovered that although the 2004 misdemeanor theft offense was not sufficient by itself to lead to deportation, the fact that it was actually Appellant's second theft conviction provided grounds for the federal government to remove Appellant from the country. Counsel also testified that Appellant would not have pled guilty if he had known this.

At the close of the hearing, the trial court denied the State's motion to dismiss and denied Appellant's application. During its ruling, the trial court noted that the written plea agreement Appellant signed in 2004 included an admonishment regarding the potential effect on Appellant's immigration status. While recognizing the Supreme Court's ruling in Padilla, as well as counsel's testimony, the trial court concluded that the written admonishment was sufficient to give Appellant notice of the consequences of his plea, despite any failure by defense counsel.

On appeal, Appellant raises a single issue in which he contends the trial court's ruling was erroneous under the United States Supreme Court's decision in Padilla v. Kentucky. By cross-appeal, the State also raises a single issue, arguing that the case should have been dismissed for lack of subject-matter jurisdiction. Because of its potential impact on this Court's jurisdiction, we will address the State's issue first.

In its cross-appeal, the State reasserts its argument that the trial court lacked jurisdiction over Appellant's application pursuant to Article 11.63 of the Texas Code of Criminal Procedure. See Tex.Code Crim.Proc.Ann. art. 11.63 (West 2005); Ex parte Nguyen, 31 S.W.3d 815 (Tex.App.-Dallas 2000, orig. proceeding). As a question of law, subject-matter jurisdiction is subject to de novo review. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003), overruled on other grounds, Ex parte Lewis, 219 S.W.3d 335, 371 (Tex.Crim.App.2007). The statute and case law state that the trial court lacks the authority to issue a writ of habeas corpus to compel the release of an individual from federal custody. In re State, 304 S.W.3d 581, 584 (Tex.App.-El Paso 2010, orig. proceeding); Nguyen, 31 S.W.3d at 817. Based on the statute and case law, the State argues that since Appellant is being held under the authority of the federal government, the matter is under federal jurisdiction, and it is up to the federal courts to allow the release of an applicant in federal custody. The State concludes that a state trial court has no subject-matter jurisdiction to grant relief because Article 11.63 limits the trial court's authority on the application.

This Court considered this issue on review by petition for writ of mandamus in In re State. In our discussion, we noted that the state court did not have authority to compel the federal government to produce the applicant during the habeas proceedings. In re State, 304 S.W.3d at 584. We denied the State's petition, however, on the basis that the state court retained jurisdiction to consider, and rule on, the applicant's request for relief regarding his state conviction. Id. at 584–85.

Parallel to the facts in In re State, although Mr. De Los Reyes is in federal custody, the relief sought in his application for writ of habeas corpus was limited to reversal of his state court conviction and a new trial. The trial court has jurisdiction to consider such an application, and to grant the requested relief if appropriate. See Tex.Code Crim.Proc.Ann. art. 11.10; In re State, 304 S.W.3d at 584. Therefore, the State has not demonstrated that the trial court lacked jurisdiction to consider the writ application, and we deny the State's request to dismiss the application for lack of jurisdiction. The State's cross-issue is overruled.

An applicant seeking relief by writ of habeas corpus must prove his claim by a preponderance of the evidence. Ex parte Morrow, 952 S.W.2d 530, 534 (Tex.Crim.App.1997). When reviewing a trial court's ruling on an application for writ of habeas corpus, we view the evidence presented in the light most favorable to the ruling, and we must uphold that ruling absent an abuse of discretion. Ex parte Peterson, 117 S.W.3d at 819. The trial court's fact findings in a habeas proceeding will be afforded almost total deference, particularly when those findings are based on evaluations of credibility and demeanor. Ex parte White, 160 S.W.3d 46, 50 (Tex.Crim.App.2004). To the extent the ultimate resolution of the application turns on an application of law, we review the determination de novo. Ex parte Peterson, 117 S.W.3d at 819.

In Appellant's sole issue on appeal, he contends the trial court erred by denying the application based on the United States Supreme Court's decision in Padilla. Before we address Appellant's argument directly, however, we must address the State's contention that Padilla is not applicable because the decision was issued approximately six years after Appellant pled guilty to the misdemeanor.

Generally, new rules affecting federal constitutional standards of criminal procedure are only applied in future trials, cases pending on direct review, and federal habeas corpus proceedings. Ex parte Lave, 257 S.W.3d 235, 236 (Tex.Crim.App.2008), citing Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). As the Court went on to explain, the “ Teague rule” was crafted with an eye toward the goals of federal habeas proceedings, “not to limit a state court's authority to grant relief for violations of new rules of constitutional law when reviewing its own State's convictions.” Danforth v. Minnesota, 552 U.S. 264, 280–81, 128 S.Ct. 1029, 1041, 169 L.Ed.2d 859 (2008). The Teague decision itself neither requires nor prohibits state courts from...