State v. Favela

• Decision Date: 18 October 2013
• Docket Number: No. 32,044.,32,044.
• Citation: 311 P.3d 1213
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Cesar FAVELA, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

311 P.3d 1213

STATE of New Mexico, Plaintiff–Appellee,

v.Cesar FAVELA, Defendant–Appellant.

No. 32,044.

Court of Appeals of New Mexico.

Aug. 8, 2013.

Certiorari Granted Oct. 18, 2013.

Gary K. King, Attorney General, Pranava Upadrashta, Assistant Attorney General, Santa Fe, NM, for Appellee.

Bennett J. Baur, Acting Chief Public Defender, Carlos Ruiz de la Torre, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} Defendant Cesar Favela appeals from the district court's denial of his motion for relief from judgment and petition for writ of habeas corpus, wherein Defendant sought to set aside his guilty plea on grounds of ineffective assistance of counsel. Defendant contends that his counsel did not adequately advise him of the immigration consequences of his decision to enter a plea of guilty, as required by State v. Paredez, 2004–NMSC–036, ¶ 19, 136 N.M. 533, 101 P.3d 799. The facts of this case require this Court to determine whether the district court, in determining whether Defendant's plea was knowing and voluntary, improperly relied on statements by the court conducting the plea hearing (the trial court) regarding the immigration consequences of Defendant's plea. We hold that judicial statements made during the plea colloquy about the immigration consequences of a plea do not cure counsel's deficient representation and should only be given minimal weight in determining whether a defendant has demonstrated prejudice under Strickland v. Washington, 466 U.S. 668, 695–98, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, we reverse and remand.

BACKGROUND

{2} Defendant pleaded guilty to four counts of aggravated battery with a deadly weapon and one count of driving under the influence. Defendant is a Mexican national and a United States permanent resident. At the plea and disposition hearing, the following exchange took place.

Judge: Counsel, I just noticed the place of birth on this form. Is there an immigration consequence in this case?

Counsel: There will be. [Defendant is] here legal and everything, he has his paper documentation and everything, but more than likely he will have a great consequence on ... his papers being taken away.

Judge: [Defendant], before I accept the plea and approve it at this point, I want to be sure you understand, as your attorney said, that a conviction will have an [e]ffect on your immigration status and that effect would be deportation, which is now called removal, exclusion from the United States and denial of naturalization under the laws of the United States. Do you understand that, sir?

Defendant: Yes, your Honor.

Judge: Alright then, is it still your desire to enter your plea of guilty, sir?

Defendant: Yes, your Honor.

Judge: Alright, the court then approves that.

{3} The district court accepted Defendant's guilty plea, and Defendant was sentenced in accordance with the plea agreement. After serving his sentence with the New Mexico Department of Corrections, Defendant was taken into custody by the United States Immigration and Customs Enforcement Service (ICE).

{4} While in the custody of ICE, Defendant filed a motion for relief from judgment pursuant to Rule 1–060 NMRA and, alternatively, a petition for a writ of habeas corpus. The district court entered an order summarily dismissing and denying Defendant the relief he requested. Defendant filed a motion for reconsideration, a hearing was held where testimony was presented, and the district court entered an order denying Defendant's motion. Defendant appeals.

DISCUSSIONI. Jurisdiction

{5} We begin by determining whether Defendant's ineffective assistance of counsel claim was properly brought as a motion for relief from judgment under Rule 1–060 or as a petition for writ of habeas corpus under Rule 5–802 NMRA. Consistent with an appeal taken from a denial of a petition for writ of habeas corpus, the district court's order informed Defendant that any appeal was to be taken by filing a petition for writ of certiorari with the Supreme Court. SeeRule 5–802(H)(2) (requiring a defendant to petition for certiorari to our Supreme Court in order to obtain review of a district court's denial of a writ of habeas corpus). Defendant, instead, filed a direct appeal to this Court.

{6} “Because [a d]efendant cannot appeal the denial of a writ of habeas corpus to this Court,” we must begin by determining whether this appeal is properly before us. State v. Barraza, 2011–NMCA–111, ¶ 12, 267 P.3d 815. “The question of jurisdiction is a controlling consideration that must be resolved before going further in a proceeding and may even be raised by the appellate court on its own motion.” Id. ¶ 5. We review jurisdictional issues de novo. See id.

{7} Rule 5–802(A) “governs the procedure for filing a writ of habeas corpus by persons in custody or under restraint for a determination that such custody or restraint is, or will be, in violation of the constitution or laws of the State of New Mexico or of the United States[.]” “[W]here a prisoner ha [s] served his sentence and been released, Rule 1–060(B)(4) [is] the vehicle to seek relief from a criminal judgment claimed to be void.” State v. Tran, 2009–NMCA–010, ¶ 16, 145 N.M. 487, 200 P.3d 537. Thus, whether a petition for writ of habeas corpus or a Rule 1–060(B)(4) motion is the appropriate mechanism for seeking relief depends on whether the defendant was “in custody” at the time the petition or motion was filed. See Tran, 2009–NMCA-010, ¶ 15. In this case, because the district court appears to have treated Defendant's petition as one for a writ of habeas corpus, we must determine whether, when Defendant was in the custody of ICE, he was “in custody” for purposes of habeas corpus. By this inquiry, we will determine whether we have jurisdiction to consider Defendant's appeal.

{8} The question—what is the appropriate procedural mechanism for someone to use while in the custody of ICE in order to challenge his or her conviction—is an issue of first impression in New Mexico.¹ Accordingly,we turn to federal habeas corpus jurisprudence for guidance. In Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), the United States Supreme Court stated that “once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.” Federal circuit courts have relied on Maleng in determining that “one held in immigration detention is not ‘in custody’ for the purpose of challenging a state conviction[.]” Ogunwomoju v. United States, 512 F.3d 69, 75 (2d Cir.2008); see Resendiz v. Kovensky, 416 F.3d 952, 956–58 (9th Cir.2005), abrogated on other grounds as recognized by Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir.2004), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); United States v. Esogbue, 357 F.3d 532, 534 (5th Cir.2004); Kandiel v. United States, 964 F.2d 794, 796 (8th Cir.1992).

{9} We note that the United States Supreme Court's more recent opinion in Padilla may call into question the characterization of deportation as a collateral consequence. In Padilla, the Supreme Court questioned the distinction between direct and collateral consequences in defining “the scope of constitutionally ‘reasonable professional assistance.’ ” Padilla, 559 U.S. at 365, 130 S.Ct. at 1481. In doing so, the Supreme Court declined to characterize deportation as either a direct or collateral consequence, stating that it was “uniquely difficult” to do so “because of [deportation's] close connection to the criminal process[.]” Id. at 365–67, 130 S.Ct. at 1481–82. The Supreme Court concluded that “[t]he collateral versus direct distinction [was] ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.” Id. at 366, 130 S.Ct. at 1482.

{10} We note, however, that the definition of “collateral consequences” in one context is not necessarily the same as that in another context. And Padilla did not address the issue of collateral versus direct consequences with respect to the “in custody” requirement for federal habeas jurisdiction. Moreover, we note that, following Padilla, federal district courts have largely continued to hold that removal proceedings do not satisfy the “in custody” requirement for filing a petition for writ of habeas corpus even where the removal proceedings include detention by immigration authorities. See Fenton v. Ryan, No. 11–2303, 2011 WL 3515376, at *2 (E.D.Pa. Aug. 11, 2011) (mem.) (holding that Padilla did not alter the custody requirement and that a petitioner is not “in custody” after completing his sentence merely because he faces deportation); United States v. Krboyan, No. CV–F–10–2016 OWW, 2010 WL 5477692, at *5 (E.D.Cal. Dec. 30, 2010) (recognizing a shared view, among courts that have considered the issue, that “the collateral immigration consequences of a petitioner's conviction are not sufficient to satisfy the ‘in custody’ requirement of [habeas corpus], even when those consequences include detention by immigration authorities”); Walker v. Holder, No. 10–10802–RWZ, 2010 WL 2105884, at *1 (D.Mass. May 24, 2010) (holding that the petitioner, having previously served his criminal sentence and who was being held as an immigration detainee, was not ‘in custody’ for purposes of habeas corpus). But see Rodriguez v. United States, No. 1:10–CV–23718–WKW [WO], 2011 WL 3419614, at *5–6 (mem. & order) (S.D.Fla. Aug. 4, 2011) (holding that, after Padilla, a petitioner who had fully served her sentence was in custody because she faced deportation).

{11} We find Fenton, Krboyan, and Walker to be persuasive authority on this issue. Accordingly, we conclude that the proper procedural mechanism for a defendant to challenge his...