Ex parte Tanklevskaya

• Decision Date: 26 May 2011
• Docket Number: No. 01–10–00627–CR.,01–10–00627–CR.
• Citation: 361 S.W.3d 86
• Parties: Ex parte Yekaterina TANKLEVSKAYA, Applicant.
• Court: Texas Court of Appeals

361 S.W.3d 86

Ex parte Yekaterina TANKLEVSKAYA, Applicant.

No. 01–10–00627–CR.

Court of Appeals of Texas, Houston (1st Dist.).

May 26, 2011.

Roberto M. Hinojosa, Houston, TX, for Appellant.

Mandy Goldman Miller, Assistant District Attorney, Patricia R. Lykos, Harris County District Attorney, Houston, TX, for Appellee.

Panel consists of Justices KEYES, HIGLEY, and BLAND.

OPINION

EVELYN V. KEYES, Justice.

In 2009, applicant, Yekaterina Tanklevskaya, a legal permanent resident of the United States, pleaded guilty to the Class B misdemeanor offense of possession of less than two ounces of marijuana and did not appeal her conviction.¹ Applicant then traveled outside of the country to visit her father. Upon her return to the United States, Immigration and Naturalization Services officials detained her and subsequently initiated removal proceedings against her. Shortly after the United States Supreme Court decided Padilla v. Kentucky in March 2010,² applicant filed an application for a writ of habeas corpus, arguing that her guilty plea was involuntary because her plea counsel failed to inform her of the immigration consequences of a guilty plea. The trial court denied habeas corpus relief. In one issue, applicant contends that the trial court erred in denying habeas relief because, pursuant to Padilla, her plea counsel provided ineffective assistance when he failed to specifically inform her that a guilty plea would render her presumptively inadmissible upon leaving and attempting to re-enter the United States.

We reverse the judgment of the trial court and grant habeas corpus relief.

Background

In April 2009, the State charged applicant with the Class B misdemeanor offense of possession of less than two ounces of marijuana. Applicant pleaded guilty, and the trial court assessed punishment at four days' confinement in the Harris County Jail and a six-month suspension of her driver's license. ³ Applicant did not directly appeal her conviction, and she successfully completed the terms of her punishment.

Shortly after pleading guilty, applicant, a Ukrainian citizen and legal permanent resident of the United States, left the country to visit her father in Germany. Upon her return to the United States, immigration officials detained applicant in Memphis, confiscated her permanent resident card, and allowed her to return to Houston pending removal proceedings. The Immigration and Naturalization Service subsequently initiated removal proceedings against applicant on the ground that her conviction rendered her “inadmissible” to the United States. See 8 U.S.C.S. § 1182(a)(2)(A)(i)(II) (2008) (stating that alien convicted of violating any state law relating to controlled substances is inadmissible).

In March 2010, the United States Supreme Court decided Padilla v. Kentucky, which addressed whether defense counsel's failure to provide information regarding the immigration consequences of a guilty plea constitutes ineffective assistance of counsel under Strickland v. Washington and therefore renders a guilty plea involuntary. See Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 1482–84, 176 L.Ed.2d 284 (2010); Strickland, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). The Padilla Court held that defense counsel “must inform her client whether his plea carries a risk of deportation” to satisfy the requirements of the Sixth Amendment. Padilla, 130 S.Ct. at 1486. The Court clarified that when the relevant immigration law is “not succinct and straightforward,” defense counsel need only “advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences”; however, when the deportation consequences are “truly clear,” counsel has an “equally clear” duty to give correct advice. Id. at 1483.

On May 27, 2010, applicant filed an application for a writ of habeas corpus alleging that her plea counsel did not sufficiently advise her of the immigration consequences of her guilty plea and therefore provided ineffective assistance under Padilla, rendering her guilty plea involuntary. At the habeas hearing, neither the State nor applicant called applicant's plea counsel as a witness, but both parties stipulated that he would testify that he informed applicant of the general immigration consequences to a guilty plea, but he did not specifically tell her that, upon leaving and attempting to return to the United States, she would be presumptively inadmissible. Nor did he tell her that she could not request a waiver of the inadmissibility provision because the information in the original case did not specify that the quantity of marijuana allegedly possessed was less than thirty grams.⁴ Both parties agreed that applicant signed the usual “plea paperwork,” which includes the acknowledgement that “I understand that upon a plea of guilty/ nolo contendere ... that if I am not a citizen of the United States my plea of guilty/ nolo contendere may result in my deportation, exclusion from admission to this country, or denial of naturalization under federal law,” and that the trial court admonished applicant regarding the general immigration consequences before accepting her guilty plea pursuant to Code of Criminal Procedure article 26.13(a).

At the hearing, applicant testified that, when she met with her plea counsel, she informed him that she planned to visit her father in Germany and he confirmed her belief that she could not travel outside of the United States while on probation. Plea counsel informed applicant that an additional option to probation would be to plead guilty and receive a suspension of her driver's license. According to applicant, plea counsel did not tell her that if she left the country, she would be inadmissible and subject to removal proceedings upon her return to the United States. Applicant also testified that counsel never discussed how the State's failure to specify in the information the precise quantity of marijuana that she allegedly possessed affected her ability to obtain a waiver of the inadmissibility provision.⁵ Applicant stated that had she known that she would be inadmissible upon her return to the country, she “would [not] have accepted the plea as [she] did.” When asked whether she “would have decided maybe to go to trial,” applicant responded that she “would have thought about it” and “would have probably done so.” The trial court then had a brief discussion with defense counsel regarding how applicant's situation would be different if she had accepted deferred adjudication. Defense counsel indicated that applicant would not be facing removal proceedings if she had accepted, and the trial court had approved, deferred adjudication.

On cross-examination, applicant conceded that her plea counsel informed her of the “general possibilities” regarding the immigration consequences of a guilty plea by a noncitizen. Applicant also admitted that she signed the “green sheet,” which states the consequences of a plea of guilty or nolo contendere and includes a warning that a conviction may result in deportation or inadmissibility to the country. Applicant also had the following exchange with the prosecutor:

State: You testified earlier that would have possibly thought about a jury trial had you known about other consequences; is that correct?

Applicant: That is absolutely correct. I would have certainly weighed my options differently had I known what would result by taking the trip outside of the country.

Applicant further acknowledged that she knew that she was voluntarily waiving her right to a jury trial when she signed the plea documents and entered her guilty plea.

The trial court subsequently denied habeas corpus relief. Applicant did not request findings of fact and conclusions of law.

Standard of Review

An applicant seeking habeas corpus relief based on an involuntary guilty plea must prove her claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App.2006) (citing Ex parte Morrow, 952 S.W.2d 530, 535 (Tex.Crim.App.1997)). When reviewing a trial court's ruling on a habeas corpus application, we view the evidence presented in the light most favorable to the trial court's ruling, and we must uphold that ruling absent an abuse of discretion. Id. (citing 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)). We afford almost total deference to a trial court's findings in habeas proceedings, particularly when those findings are based upon an evaluation of credibility and demeanor. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex.Crim.App.2006) (quoting Ex parte White, 160 S.W.3d 46, 50 (Tex.Crim.App.2004)); see also Ex parte Wheeler, 203 S.W.3d 317, 324 n. 23 (Tex.Crim.App.2006) (noting that we should also defer to trial court's “implicit factual findings” that support trial court's ultimate ruling); Peterson, 117 S.W.3d at 819 (noting same). We similarly defer to the trial court's application of the law to the facts if that resolution turns upon credibility and demeanor determinations. Peterson, 117 S.W.3d at 819. If the resolution of the ultimate question turns on an application of law, we review the determination de novo. Id.

Ineffective Assistance of Counsel

In her sole issue, applicant contends that the trial court erred in denying habeas corpus relief because her plea counsel rendered ineffective assistance under Strickland v. Washington and Padilla v. Kentucky. Applicant specifically complains about her plea counsel's failure to inform her that (1) her guilty plea would make her inadmissible to return to the United States after traveling abroad and (2) she could not request a waiver of the inadmissibility provision because the information failed to specify that the quantity of marijuana allegedly possessed was less than thirty grams. Because of plea counsel's alleged ineffective assistance, applicant...