In re Lujan

• Decision Date: 12 June 2015
• Docket Number: No. 08-13-00298-CR,08-13-00298-CR
• Parties: EX PARTE: JESUS ARANDA LUJAN.
• Court: Texas Court of Appeals

EX PARTE: JESUS ARANDA LUJAN.

No. 08-13-00298-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

June 12, 2015

Appeal from the 83rd District Court of Pecos County, Texas

(TC#2936)

OPINION

Jesus Aranda Lujan filed a Petition for Writ of Habeas Corpus challenging a plea of nolo contendere that he entered to a charge of aggravated sexual assault of a child. The petition, filed pursuant to TEX.CODE CRIM.PROC.ANN. art. 11.072 (West 2015), asserts that Lujan was not adequately informed of the immigration consequences of his plea as described in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). From this, he contends he was denied effective assistance of counsel as explained in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Factual Summary

Lujan was indicted for the aggravated sexual assault of a child younger than fourteen. The offense occurred on March 25, 2009. Lujan would have been 63 years old at the time. Heentered a plea of nolo contendere to that allegation on February 2, 2011, and under the terms of the plea, he received six years' deferred adjudication, a $2,500 fine, and 240 hours of community service. He also agreed to comply with some forty-nine terms for community supervision that included payment of various fees, compliance with a curfew, and compliance with special conditions for sex offenders. He was advised that if convicted of the charge, he would have faced a possible sentence of life imprisonment, or a term of not more than 99 years, but not less than five years, in addition to a fine of up to $10,000.

The date of the plea occurred after issuance of the Supreme Court's decision in Padilla, the seminal case outlining a defense counsel's obligation to advise clients about the immigration impact of a guilty plea. At the plea hearing, the trial court inquired about Lujan's immigration status:

THE COURT: Mr. Lujan, are you a citizen of the United States?

THE DEFENDANT: Not yet.

THE COURT: Let me advise you that the sentence in this case might affect--might have some effect on your status in this country. Do you understand this?

MR. JOHNSON [Defendant's trial counsel]: Remember we went over that, that it's possible you could be deported? You understood that.

THE DEFENDANT: Right. Yes.

Later at the same hearing, his plea counsel questioned Lujan:

Q. [By Mr. Johnson]: I also advised you that you might be sent to deportation by the INS if something comes up in regards to this; is that correct?

A. [by Defendant]: Yes.

. . .

Q. And you're asking the Judge to accept this plea because this is what you want to do, right?

A. Yes, sir.

. . .

Q. Even though you know there may be consequences later on; is that correct?

A. Yes, sir.

The plea papers contained the statutory admonishment patterned on TEX.CODE CRIM.PROC.ANN. art. 26.13(a)(4)(West Supp. 2014):

If you are not a citizen of the United States of America, a plea of guilty or nolo contendere (no contest) for or in connection with the offense with which you are changed [sic] in this case may result in your deportation, or your exclusion from admission to this country, or your denial of naturalization under federal law.

Lujan initialed this specific admonishment.

Some two years later, the Department of Homeland Security issued a Notice to Appear which summoned Lujan to a removal proceeding. It alleged that Lujan was a citizen of Mexico who was admitted to the United States in 1983 as an IR-1 immigrant, but that by virtue of his conviction on February 2, 2011, he was subject to removal from the United States. Lujan's plea of nolo contendere, resulting in deferred adjudication, is counted as a conviction for the purposes of federal immigration law. 8 U.S.C. § 1101(a)(48)(A); U.S. v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004)(deferred adjudication is included as a conviction). Under 8 U.S.C. § 1227(a)(2)(A)(iii), "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." The term "aggravated felony" is a defined term under the immigration statute and includes "murder, rape, or sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). In June 2013, Lujan was ordered removed from the United States.

Lujan filed his Petition for Writ of Habeas Corpus on June 21, 2013.¹ He attached to the Petition the affidavit of his habeas attorney attesting to the truth of the facts as alleged in the pleading; a notice for Lujan to appear in a federal removal proceeding; an Order of Deferred Adjudication reflecting his state court plea; an Order Imposing Conditions of Community Supervision; and his own affidavit (in Spanish and English). Mr. Lujan's affidavit claims:

"I hired J.W. Johnson to represent me. Mr. Johnson did not advise me of the specific immigration consequences of pleading nolo contendre [sic]. I informed Mr. Johnson that I was a lawful permanent resident, not a citizen of the United States.

"Mr. Johnson told me that this plea probably would not affect my immigration status. I have been a lawful permanent resident of the United States for thirty years. Deportation is the most severe penalty I could have gotten as a result. Had I known I would be deported, I would have fought my case and asked for a jury trial."

The trial court also had before it the court's file and plea paperwork from the underlying criminal case and the transcript of the plea hearing. After reviewing the pleadings and hearing argument, the trial court denied the application on October 2, 2013.

Lujan appealed and upon order of this Court, the trial court made findings of facts and conclusions of law on the two-part inquiry under Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 2064-68, 80 L.Ed.2d 674 (1984)(whether counsel's representation fell below an objective standard of reasonableness and whether there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different). The trial court did so and reaffirmed its denial of the application. In aid of developing those findings, the trial court solicited sworn testimony from Lujan's plea counsel who stated: "It is my habit and practice to inform clients who are not U.S. citizens of deportation consequences if they aresubject to being convicted of a deportable offense. Due to the passage of time, I do not remember the specifics of my conversations with Mr. Lujan concerning the deportation consequences of his plea."

The trial court's findings of fact specifically found that the plea counsel's sworn statement was truthful and credible. The trial court found that Lujan's claim that he was told his plea would probably not affect his immigration status was not credible. At the hearing, the trial court specifically noted that Lujan's affidavit conflicted with his statements made in open court at the plea. The trial court's concluding findings read as follows:

9. The Court finds that Mr. Johnson advised Applicant of the deportation consequences of his plea, and that Applicant knowingly and voluntarily entered into his plea, disregarding deportation consequences and admonishments.

10. Therefore, the court finds that Applicant was not deprived of effective assistance of counsel under Padilla and suffered no prejudice by voluntarily waiving his right to trial and knowingly and voluntarily entering his plea of nolo contendere in this case.

Issue on Appeal

Lujan brings forward one issue complaining that the trial court erred in finding plea counsel's performance constitutionally sufficient under Padilla. He contends that under applicable federal law, it was certain that his plea would result in his deportation and exclusion from the United States. Accordingly, the various warnings that he received from the judge who took the plea, his plea counsel, and the plea paperwork that he "might" or "could" be deported were insufficient. .

Standard of Review

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, 534-35 (Tex.Crim.App. 1997). When reviewing a trial court's ruling on an application for writ of habeas corpus, weview 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 804, 819 (Tex.Crim.App. 2003), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App. 2007). A trial court only abuses its discretion when its ruling is arbitrary or unreasonable. Manning v. State, 114 S.W.3d 922, 926 (Tex.Crim.App. 2003). The mere fact that we might decide a discretionary matter in a different manner does not demonstrate an abuse of discretion. Id. 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.

Analysis

Lujan's claim is based on Padilla and we begin there. In that case, Padilla pled guilty to transporting a large quantity of marijuana. When later faced with deportation, he attacked the guilty plea contending his plea counsel had not advised him of the immigration consequences. Id. at 359, 130 S.Ct. at 1477-78. The United States Supreme Court agreed with Padilla, noting that legislative changes in 1996 made deportation "practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General" when a non-citizen is convicted of particular offenses. Id. at 363-64, 130 S.Ct. at 1480.

In Padilla's case, the relevant immigration statute was 8 U.S.C. § 1227(a)(2)(B)(i) which the court viewed as "succinct, clear, and explicit in defining the removal consequence for Padilla's conviction." Id. at 368, 130 S.Ct. at 1483. By...