State v. Ramirez

• Decision Date: 05 June 2012
• Docket Number: No. 30,205.,30,205.
• Citation: 278 P.3d 569,2012 -NMCA- 057
• Parties: STATE of New Mexico, Respondent–Appellee, v. Martin RAMIREZ, a/k/a Richard G. Sanchez, Petitioner–Appellant.
• Court: Court of Appeals of New Mexico

278 P.3d 569

2012 -NMCA- 057

STATE of New Mexico, Respondent–Appellee,

v.Martin RAMIREZ, a/k/a Richard G. Sanchez, Petitioner–Appellant.

No. 30,205.

Court of Appeals of New Mexico.

April 16, 2012.

Certiorari Granted, June 5, 2012, No. 33,604.

Gary K. King, Attorney General, William Lazar, Assistant Attorney General, Santa Fe, NM, for Appellee.

Dane Eric Hannum, Attorney at Law, Dane Eric Hannum, Albuquerque, NM, for Appellant.

The Appellate Law Office of Scott M. Davidson, Scott M. Davidson, Albuquerque, NM, Amicus Curiae for New Mexico Criminal Defense Lawyers Association.

OPINION

KENNEDY, Judge.

{1} Martin Ramirez, a/k/a Richard Sanchez, (Petitioner) appeals the district court's denial of his writ of coram nobis, which sought to vacate Petitioner's twelve-year-old conviction due to ineffective assistance of counsel under State v. Paredez, 2004–NMSC–036, 136 N.M. 533, 101 P.3d 799.Paredez requires appointed counsel to instruct defendants about the specific immigration consequences associated with a conviction for the charged crime prior to pleading guilty. Id. ¶ 9. This duty is more pressing in a case like this in which deportation was a near certainty for a relatively minor offense. The district court denied the writ on the ground that the rule announced in Paredez should not be applied retroactively to collateral challenges to final judgments and sentences. We reverse and hold that the ineffective assistance of counsel rules stated in Paredez and Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010) (holding that defense counsel must inform his or her client whether the client's plea carries a risk of deportation) are but extensions of a previously entrenched duty to provide representation and are retroactive. We remand for further proceedings consistent with this Opinion.

I. BACKGROUND

{2} In 2009, Petitioner filed a writ of coram nobis, requesting the district court to vacate his 1997 misdemeanor convictions for possession of marijuana (under one ounce), possession of drug paraphernalia, and concealing identity. In his writ, Petitioner contended that he was denied his right to effective assistance of counsel because his appointed counsel failed to instruct him about any immigration consequences of pleading guilty to the crimes as required by Paredez, 2004–NMSC–036, ¶ 19, 136 N.M. 533, 101 P.3d 799.

{3} At the hearing, Petitioner proffered evidence to prove that his attorney failed to instruct him about the immigration consequences and that this failure prejudiced him. The State did not contest the evidence, arguing only that it was irrelevant and that Petitioner was not entitled to relief because Paredez was not retroactive. The district court, accordingly, found that Petitioner's proffer was “essentially admitted ... [and] not disputed” and proceeded to hear argument on whether Paredez was retroactive. The district court subsequently denied Petitioner's request on the ground that Paredez did not apply retroactively. Petitioner now appeals the district court's denial of his writ of coram nobis. We interpret such actions as motions pursuant to Rule 1–060(B) NMRA. State v. Barraza, 2011–NMCA–111, ¶ 5, 267 P.3d 815.

II. DISCUSSIONA. Paredez and Padilla Apply Retroactively

{4} In Paredez, the New Mexico Supreme Court held that “criminal defense attorneys are obligated to determine the immigration status of their clients. If a client is a non-citizen, the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain.” 2004–NMSC–036, ¶ 19, 136 N.M. 533, 101 P.3d 799. Our Supreme Court concluded that failure to inform the defendant of these consequences would constitute ineffective assistance of counsel if the defendant suffered prejudice due to the omission. Id. Six years later, the United States Supreme Court in Padilla similarly held that “counsel must inform her client whether his plea carries a risk of deportation.” 130 S.Ct. at 1486. The Supreme Court explained: “Our 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 no less.” Id. The question before us today is whether the rule stated in Paredez and Padilla applies retroactively to cases on collateral review. “Retroactivity is a legal question, which we review de novo.” Kersey v. Hatch, 2010–NMSC–020, ¶ 14, 148 N.M. 381, 237 P.3d 683 (internal quotation marks and citation omitted).

{5} Although this is an issue of first impression in New Mexico, a number of state and federal appellate decisions have addressed the issue of retroactivity, causing a national split. A number have held that Padilla is retroactive. United States v. Orocio, 645 F.3d 630 (3d Cir.2011); People v. Gutierrez, 352 Ill.Dec. 505, 954 N.E.2d 365 (Ill.App.Ct.2011); Denisyuk v. State, 422 Md. 462, 30 A.3d 914 (2011); Commonwealth v. Clarke, 460 Mass. 30, 949 N.E.2d 892 (2011); Campos v. State, 798 N.W.2d 565 (Minn.Ct.App.2011); People v. Nunez, 30 Misc.3d 55, 917 N.Y.S.2d 806 (N.Y.App. Term 2010); Ex parte De Los Reyes, 350 S.W.3d 723 (Tex.Ct.App.2011). On the other hand, some have held that Padilla is not retroactive. Chaidez v. United States, 655 F.3d 684 (7th Cir.2011); United States v. Chang Hong, 671 F.3d 1147 (10th Cir.2011); State v. Poblete, 227 Ariz. 537, 260 P.3d 1102 (App.2011); Hernandez v. State, 61 So.3d 1144 (Fla.Dist.Ct.App.2011); State v. Shaikh, 65 So.3d 539 (Fla.Dist.Ct.App.2011); Barrios–Cruz v. State, 63 So.3d 868 (Fla.Dist.Ct.App.2011); Gomez v. State, No. E2010–01319–CCA–R3–PC, 2011 WL 1797305 (Tenn.Crim.App. May 12, 2011) (unpublished decision). The primary dividing line is the question of whether this principle is a “new” or “old” rule of law. “Old” rules are generally accorded retroactivity. For the reasons explained below, we are persuaded that those courts, which conclude that Padilla does not establish a new rule and is retroactive, represent the better reasoned view.

{6} New Mexico has adopted the approach set out by the United States Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to determine whether a rule is new or old for purposes of retroactivity. See State v. Frawley, 2007–NMSC–057, ¶ 34, 143 N.M. 7, 172 P.3d 144. “If it is an old rule, it applies both on direct and collateral review. If it is a new rule, it generally applies only to cases that are still on direct review.” Id. ¶ 34 (internal quotation marks and citations omitted). The exception to this principle is that “[a] new rule ... may apply retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a watershed rul[e] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. (internal quotation marks and citation omitted).

{7} Thus, the threshold issue here is whether the rule that attorneys must inform their clients about immigration consequences is new or old. “[A] court establishes a new rule when its decision is flatly inconsistent with the prior governing precedent and is an explicit overruling of an earlier holding.” Id. ¶ 35 (internal quotation marks and citation omitted). This typically results in the court “break[ing] new ground or impos [ing] a new obligation on the [s]tates or the [f]ederal [g]overnment. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.” Kersey, 2010–NMSC–020, ¶ 16, 148 N.M. 381, 237 P.3d 683 (internal quotation marks and citation omitted). As explained below, neither the decision of the New Mexico Supreme Court nor the United States Supreme Court were flatly inconsistent or explicitly contrary to precedent. As a result, we conclude that the rules stated in Paredez and Padilla are old rules and thus retroactive.

{8} In Paredez, 2004–NMSC–036, ¶¶ 19–20, 136 N.M. 533, 101 P.3d 799, our Supreme Court defined counsel's failure to inform the defendant of his specific immigration consequences as ineffective assistance of counsel by applying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States Supreme Court likewise held that defendants were constitutionally guaranteed effective assistance of counsel under Strickland in the form of advice about both certain and potential immigration consequences before pleading guilty. Padilla, 130 S.Ct. at 1483. In Strickland, the Supreme Court held that a defendant must prove both deficient performance by counsel and prejudice for that deficiency to succeed on an ineffective assistance claim. 466 U.S. at 687, 104 S.Ct. 2052. The Supreme Court explained that “[r]epresentation of a criminal defendant entails certain basic duties.” Id. at 688. After listing some basic duties, including the duty of loyalty and avoiding conflicts of interest, the Supreme Court stated that “[t]hese basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance.” Id. Because the circumstances of each case are different, “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id. at 690.

{9} Even while applying an individualized inquiry, the United States Supreme Court has stated that a defendant's right to effective assistance of counsel as stated in Strickland is a clearly established rule. In concluding that a defendant was entitled to relief for ineffective assistance of counsel on collateral review, the Supreme Court stated that “it can hardly be said that recognizing the right to effective counsel breaks new ground or imposes a new obligation on the [s]tates[.]” Williams v. Taylor, 529 U.S. 362, 391, ...