Ex parte Karedia, 03-11-00831-CR

• Decision Date: 15 February 2013
• Docket Number: NO. 03-11-00831-CR,NO. 03-11-00832-CR,03-11-00831-CR,03-11-00832-CR
• Parties: Ex parte Safiq Karedia
• Court: Court of Appeals of Texas

Ex parte Safiq Karedia

NO. 03-11-00831-CR

NO. 03-11-00832-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Filed: February 15, 2013

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NOS. D-1-DC-08-300752-A & D-1-DC-08-300753-A

HONORABLE CLIFFORD BROWN, JUDGE PRESIDING

MEMORANDUM OPINION

Safiq Karedia appeals the denial of his applications for writs of habeas corpus. Karedia pleaded guilty in 2008 to a charge of trademark counterfeiting in an amount between $20,000 and $100,000 and a charge of engaging in organized criminal activity. He was placed on deferred-adjudication community supervision. The trial court later revoked his community supervision, adjudicated him guilty, and assessed a ten-year prison term suspended for eight years of community supervision. Karedia filed these applications for writs of habeas corpus, claiming that his original plea was not knowing or voluntary because his plea counsel provided ineffective assistance. He also contends that the trial court erred by refusing to hold a contested hearing on his habeas applications and that the affidavit supporting the State's opposition to his applications is invalid because the notary has an interest in the outcome of this suit. We will affirm the trial court's denials of the applications.

BACKGROUND

When Karedia was four years old, he and his family entered the United States from India in 1985 on tourist visas. His father was killed while working at a convenience store, and Karedia, his brother, and their mother overstayed their visas. Karedia and his brother applied for permanent residency status in 2004, and their mother moved toward obtaining full citizenship. That same year, Karedia and his family opened a store at which they all worked. Karedia was listed as the owner.

Police began investigating the store for selling pirated compact and digital video discs as well as merchandise with counterfeit trademarks. In May 2006, police raided the store and seized merchandise, but filed no charges. Karedia hired attorney Malcolm Nettles. After a second raid in November 2007, police arrested Karedia, his brother, and their mother. Nettles agreed to represent all three family members.

Karedia pleaded guilty in 2008 to trademark counterfeiting and organized criminal activity. He signed a plea of guilty that stated in relevant part as follows: "If you are not a citizen of the United States of America, a plea of Guilty or nolo contendere for this offense may result in your deportation, your exclusion from admission to this country, or your denial of naturalization under federal law." At the plea hearing, the court told him that, "[i]n the event you are not a citizen of the United States of America, your plea of guilty here this morning could result in deportation, the denial of admission to this country and other consequences with the Homeland Security Agency." The prosecutor stated and Karedia agreed that he understood that cases against "two relatives" would "be disposed of at the sentencing on this case." The trial court deferred adjudication and placed him on community supervision for seven years.

In 2010, the State moved to revoke Karedia's community supervision. At the hearing, Karedia agreed that he had fully understood all the terms and conditions of community supervision. He pleaded true to the allegation that he violated those terms and the law by knowingly possessing an 8-liner designed for gambling purposes, using a building as a gambling place, and conspiring with his mother and brother to commit these acts. The court revoked his probation, adjudicated him guilty in the 2008 case, and imposed a sentence of ten years in prison, but suspended service of the sentence and placed him on community supervision for eight years.

Karedia filed these applications for writs of habeas corpus, asserting that his plea was neither knowing nor voluntary because he did not fully understand his rights and the consequences of his plea due to his counsel's ineffectiveness. He contended that his 2008 plea counsel was ineffective in two ways: (1) counsel misinformed Karedia that his guilty plea would have no adverse immigration consequences if he abided by his probationary terms, and (2) counsel was compromised by the conflict of interest from his simultaneous representation of Karedia's brother and mother on related charges. Karedia attached affidavits from himself and his mother in support of these allegations. He asked the court to reverse his convictions based on the 2008 plea. The State answered the applications, relying on an affidavit from attorney Nettles contradicting Karedia's claims regarding his performance. Nettles's affidavit was notarized by his wife.

The trial court considered the merits of the applications based on the documents filed and on personal knowledge. The court made the following findings relevant to this issue:

(h) The record reflects that Applicant was informed both orally and in writing that if he is not a citizen, a plea of guilty may result in deportation.

(i) Applicant signed the plea document, affirming that he understood the document and that his counsel, Mr. Nettles, read and explained the document to him.. . . .

(k) At the plea hearing, the Court orally informed Applicant that he could face immigration consequences if he was not a U.S. citizen.

(1) Applicant expressed no concern to the Court at the time he entered his plea and directly informed the Court that he had reviewed the plea documents with his attorney.

. . . .

(n) Mr. Nettles has practiced criminal law for more than 30 years.

(o) Mr. Nettles denies that he misinformed Applicant about the immigration consequences his plea would have on his status.

(p) Mr. Nettles further believed that Applicant had an immigration attorney advising him as to those consequences as well.

(q) Mr. Nettles explains that all parties—Applicant, his mother, and brother consented to the course of action taken.

(r) Mr. Nettles followed Applicant's instructions of obtaining dismissals of the charges against his mother and brother. This was especially important to Applicant since his mother was in the process of obtaining citizenship.

(s) This Court is familiar with Mr. Nettles and finds his statement credible.

(t) Considering this record as a whole, including the plea documents, the transcribed plea hearing, as well as Mr. Nettles'[s] affidavit, this Court finds that Applicant was aware that his guilty pleas would impact his immigration status.

(u) Further, Applicant has not convinced this Court that a decision to reject the plea offer would have been rational, especially since to challenge the State's case would have required shifting blame onto his own mother.

. . . .

(x) Finally, Applicant's subsequent conduct of violating the conditions of his release by possessing 8-liners and conspiring with his mother and brother to keep a place of gambling not only reveals that the fear of deportation was not Applicant's main concern but further diminishes the merit of the claims he now raises.

The court also made conclusions of law, including the following:

(ii) Applicant has failed to meet his burden of proof and his self-serving statements lack credibility. The record reflects that he was admonished and his attorney confirms that Applicant entered his pleas knowing that he would face immigration consequences.

(jj) Applicant has not shown that an actual conflict of interest adversely affected his lawyer's performance when his lawyer proceeded with Applicant's consent and direction. See Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).

. . . .

(ll) Finally, the Court concludes that counsel's actions did not prejudice Applicant.

(mm) In sum, this Court concludes that Applicant has failed to show that his pleas were entered involuntarily and unknowingly or that counsel's actions adversely affected Applicant.

The trial court refused to grant the relief Karedia requested in his applications for writs of habeas corpus.

DISCUSSION

On appeal, Karedia challenges two procedural decisions by the trial court and reiterates his arguments on the substance of his applications. Karedia contends that the trial court abused its discretion by failing to hold a contested hearing on the merits of his applications. He also argues that Nettles's affidavit supporting the State's response to the applications was invalid because it was notarized by someone with an interest in the outcome of the case. Karedia also reiterates his trial-court assertions that his counsel rendered ineffective assistance.Decision not to hold a hearing

Karedia contends that the trial court erred by refusing to hold a hearing regarding his applications because the issues are difficult to assess from the cold record. He contends that his claims regarding counsel's misinformation and conflict of interest require credibility determinations that would benefit from development through cross-examination of witnesses. In general, a trial court's ruling in a habeas proceeding should not be overturned absent a clear abuse of discretion. Ex parte Mann, 34 S.W.3d 716, 718 (Tex. App.—Fort Worth 2000, no pet.). A trial court abuses its discretion when it acts without reference to any guiding rules or principles or when it acts arbitrarily or unreasonably. Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd). "In making its determination, the court may order affidavits, depositions, interrogatories, or a hearing, and may rely on the court's personal recollection." Tex. Code Crim. Proc. Ann. art. 11.072, § 6(b) (West 2005). The trial court is not required to hold a hearing. Ex parte Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.). The trial court in this case did not hold a hearing, concluding that its review of affidavits, review of the record, and personal knowledge of the plea attorney were sufficient to determine the issues. Karedia has not shown and the record does not demonstrate that...