Perez v. State

• Decision Date: 08 June 2012
• Docket Number: No. 10–1315.,10–1315.
• Citation: 816 N.W.2d 354
• Parties: Sergio PEREZ, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

816 N.W.2d 354

Sergio PEREZ, Appellant,
v.
STATE of Iowa, Appellee.

No. 10–1315.

Supreme Court of Iowa.

June 8, 2012.

[816 N.W.2d 355]

Michael H. Said of Law Offices of Michael H. Said, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Jennifer A. Miller, County Attorney, and James S. Scheetz, Assistant County Attorney, for appellee.

MANSFIELD, Justice.

In Padilla v. Kentucky, the United States Supreme Court decided a criminal defendant has a Sixth Amendment right to receive advice from counsel regarding the risk of deportation before pleading guilty. ––– U.S. ––––, ––––, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284, 299 (2010). Sergio Perez argues he did not receive such advice from his attorney in 2000 before he pled guilty to a misdemeanor drug possession charge. For this reason, Perez has filed an application for postconviction relief seeking to have that conviction set aside.

We conclude Perez is not entitled to relief because only two possibilities exist here. One alternative is Padilla establishes a “new” rule of constitutional criminal procedure. If that is so, however, Padilla does not apply retroactively, and Perez may not rely upon it to set aside an earlier conviction. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334, 356 (1989) (generally denying retroactivity when a Supreme Court decision establishes a new rule of constitutional criminal procedure). The other possibility is that Padilla is not a new rule. But if that is the case, then Perez's application is time-barred because he could have filed it within three years of the date when his conviction became final and failed to do so. SeeIowa Code § 822.3 (2009) (generally requiring postconviction relief applications to be filed within three years from the date the conviction is final unless the ground could not have been raised within the applicable time period). In short, Perez's claim cannot go forward because either it may not be raised retroactively or it is barred by the statute of limitations. Therefore, we affirm the judgment of the district court and the decision of the court of appeals, both of which denied Perez's claims.

I. Background Facts and Proceedings.

According to the original minutes of testimony, on October 22, 2000, a large fight broke out at the El Parral Bar in Marshalltown. Police found the defendant Sergio Perez dazed but conscious lying on the ground outside. An ambulance soon arrived. One of the emergency medical technicians (EMT) who was treating Perez saw a plastic bag fall from his pants pocket. The EMT informed a Marshalltown police officer, who retrieved the bag. It contained a powdery substance which was

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later identified as 6.75 grams of methamphetamine.

Perez was initially charged with possession of more than five grams of a Schedule II controlled substance with intent to deliver in violation of Iowa Code section 124.401(1) ( b ) (1999), a class “B” felony, and failure to attach a drug tax stamp in violation of Iowa Code section 453B.12, a class “D” felony. Perez agreed to a plea bargain in which the charges were reduced to a single misdemeanor charge of possession of a Schedule II controlled substance in violation of Iowa Code section 124.401(5) and signed a written plea of guilty on December 22, 2000.

Perez's plea was accepted by the district court, and judgment was entered on December 22, 2000. As part of the plea agreement, Perez received a thirty-day jail sentence, with credit for thirty days already served. Perez did not appeal his conviction or sentence.

Perez is not a United States citizen. On April 12, 2010, over nine years after final judgment was entered in his criminal case and less than two weeks after the Supreme Court's Padilla decision, Perez filed an application for postconviction relief. In the application, he alleged his attorney had not notified him of the immigration implications of his guilty plea. Iowa precedent at that time did not require attorneys to provide this information. See State v. Ramirez, 636 N.W.2d 740, 745–46 (Iowa 2001). Perez also sought relief on the grounds that his rights to an interpreter and a recording of proceedings under Iowa Code sections 622A.2 and 622A.8 were violated during his guilty plea proceedings.

The State filed a motion to dismiss, urging that Iowa Code section 822.3 (2009) requires postconviction relief petitions to be filed within three years from the time a conviction becomes final and that Perez's application over nine years later was therefore time-barred. Perez resisted, maintaining that he could not have reasonably been expected to raise these objections to his plea proceedings within the applicable time period.

Following a hearing, the district court denied Perez's application on all grounds. Perez filed a timely appeal, and we transferred the case to the court of appeals. The court of appeals affirmed the district court's dismissal of Perez's application for postconviction relief, holding among other things that Perez had “failed to establish Padilla should apply retroactively to his postconviction relief application.”

We granted Perez's application for further review.

II. Standard of Review.

“Generally, an appeal from a denial of an application for postconviction relief is reviewed for correction of errors at law.” Goosman v. State, 764 N.W.2d 539, 541 (Iowa 2009). We must “affirm if the trial court's findings of fact are supported by substantial evidence and the law was correctly applied.” Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003). Where the applicant alleges constitutional error, our “review is de novo ‘in light of the totality of the circumstances and the record upon which the postconviction court's rulings w[ere] made.’ ” Goosman, 764 N.W.2d at 541 (quoting Giles v. State, 511 N.W.2d 622, 627 (Iowa 1994)).

III. Analysis.

A. The Padilla Decision. Perez's primary argument on appeal is that his trial counsel failed to advise him regarding the risk of deportation, a constitutional duty recognized by the United States Supreme Court in Padilla. See––– U.S. at ––––, 130 S.Ct. at 1486, 176 L.Ed.2d at 299.Padilla, like the present case, involved a defendant who pled guilty to drug-related charges.

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Id. at ––––, 130 S.Ct. at 1477, 176 L.Ed.2d at 290. He later petitioned for postconviction relief, claiming ineffective assistance of counsel because he was not told that his plea could negatively affect his immigration status (and allegedly was affirmatively told he “did not have to worry about [his] immigration status since he had been in the country so long”). ––– U.S. at ––––, 130 S.Ct. at 1478, 176 L.Ed.2d at 290 (citation and internal quotation marks omitted).¹ The Kentucky Supreme Court affirmed the denial of Padilla's petition. Id. It held, as had eleven federal circuit courts and most state supreme courts, that the Sixth Amendment guarantee of effective assistance of counsel did not require an attorney to notify his or her client about collateral consequences of a guilty plea, including the effect on immigration status. Id. at ––––, 130 S.Ct. at 1481, 176 L.Ed.2d at 293;id. at ––––, 130 S.Ct. at 1487, 176 L.Ed.2d at 300 (Alito, J., concurring).

The United States Supreme Court reversed. Id. at ––––, 130 S.Ct. at 1487, 176 L.Ed.2d at 299. The Court concluded that “constitutionally competent counsel” should have informed Padilla of the risk of deportation resulting from his plea. Id. at ––––, 130 S.Ct. at 1478, 1480, 176 L.Ed.2d at 290. The Court noted it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” Id. at ––––, 130 S.Ct. at 1481, 176 L.Ed.2d at 293 (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694 (1984)). The Court concluded that “[t]he collateral versus direct distinction is ... ill-suited to evaluating a Strickland claim concerning the specific risk of deportation” and that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” Id. at ––––, 130 S.Ct. at 1482, 176 L.Ed.2d at 294.

Thus, applying the first part of the Strickland framework, the Court found that the assistance of Padilla's attorney fell below an objective standard of reasonableness established by “prevailing professional norms” as defined by American Bar Association standards and similar practice guides. Id. The Court noted that “[f]or at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea.” Id. at ––––, 130 S.Ct. at 1485, 176 L.Ed.2d at 297–98. The Court added that “the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction.” Id. at ––––, 130 S.Ct. at 1483, 176 L.Ed.2d at 295. Hence, the Court concluded that “[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand” that counsel inform a defendant if his or her plea subjects him or her to the risk of deportation. Id. at ––––, 130 S.Ct. at 1486, 176 L.Ed.2d at 299.

The Court did not ultimately find that Padilla was entitled to relief. Under the two-part framework established in Strickland, Padilla still had to demonstrate prejudice, i.e., that he would not have pled guilty if properly informed of the risk of deportation. The Court noted that those “who collaterally attack their guilty pleas

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lose the benefit of the bargain obtained as a result of the plea.” Id. at ––––, 130 S.Ct. at 1485, 176 L.Ed.2d at 298. Thus, it remanded the case for further proceedings in the Kentucky courts to determine whether Padilla had...