State v. Sosa

Decision Date15 October 2012
Docket NumberNo. S12A1130.,S12A1130.
Citation291 Ga. 734,733 S.E.2d 262
PartiesSTATE v. SOSA.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Ronald Joseph Poirier, Asst. Dist. Atty., for appellant.

Kimberly Laverne Copeland, Kimberly L. Copeland & Associates, LLC, Jesup, for appellee.

HUNSTEIN, Chief Justice.

Daniel Sosa filed a petition for writ of habeas corpus contending that his attorney was ineffective for failing to advise him that his guilty plea would subject him to removal or deportation. The State moved to dismiss the petition as untimely. The habeas court denied the motion and granted habeas relief on the ground that Sosa received ineffective assistance of counsel at his plea hearing in 2002. Because Sosa's habeas petition was untimely under the four-year statute of limitations in OCGA § 9–14–42, we reverse.

On May 9, 2002, Sosa entered a plea of guilty to child molestation in violation of OCGA § 16–6–4. He was sentenced to ten years on sexual offender probation, and his conviction became final after 30 days. See OCGA § 5–6–38(a). At the time, he was a permanent resident of the United States; his wife and four children are citizens. In November 2010, Sosa was detained under the Immigration and Nationality Act as an immigrant who had committed an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). He was deported a month later to Mexico.

Sosa filed his habeas corpus petition on January 12, 2012, challenging his conviction under the U.S. Supreme Court decision in Padilla v. Kentucky, 559U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Specifically, he maintained that his attorney at the plea hearing was ineffective for failing to advise him of the effect that his guilty plea might have on his immigration status and, further, that he did not knowingly enter the guilty plea with the understanding that he was likely to be deported. In support of his petition, Sosa filed an affidavit stating that he was innocent of the charge and would have proceeded to trial had he known a guilty plea would affect his ability to remain in this country as a permanent resident. The State moved to dismiss the petition as time barred under the four-year statute of limitation in OCGA § 9–14–42(c).

Denying the motion to dismiss, the habeas court found that Sosa's attorney did not remember advising Sosa that his guilty plea could result in his deportation, and the transcript of the guilty plea shows that the trial court did not advise him of the possibility. Based on these findings, the habeas court concluded that Sosa's attorney was deficient for failing to advise Sosa of the risk of deportation from his guilty plea and the attorney's deficient performance prejudiced Sosa because there is a reasonable probability he would not have pleaded guilty but for his attorney's errors. As a result, the habeas court granted relief and vacated Sosa's conviction. The State appeals.

1. Our habeas corpus statute provides for a period of limitations to seek a writ of habeas corpus in state court for the denial of a federal or state constitutional right. OCGA § 9–14–42(c). In the case of a felony other than one involving a death sentence, any action must be filed within four years from:

(1) The judgment of conviction becoming final by the conclusion of direct review or the expiration of the time for seeking such review; provided, however, that any person whose conviction has become final as of July 1, 2004, regardless of the date of conviction, shall have ... until July 1, 2008, in the case of a felony to bring an action pursuant to this Code section;

....

(3) The date on which the right asserted was initially recognized by the Supreme Court of the United States or the Supreme Court of Georgia, if that right was newly recognized by said courts and made retroactively applicable to cases on collateral review.

Id. (effective July 1, 2004).

In this case, Sosa's felony conviction was final prior to July 1, 2004, and he was required under subsection (c)(1) to bring his habeas action by July 1, 2008, unless the exception in subsection (c)(3) applies. To toll the statute of limitations under that exception, the right must be both newly recognized and made retroactively applicable to cases on collateral review. See Alford v. State, 287 Ga. 105, 695 S.E.2d 1 (2010) (applying new criminal procedural rule involving right to counsel retroactively to case on collateral review).

2. In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment right to effective assistance of counsel requires an attorney to inform a client when a guilty plea carries a risk of deportation. 559 U.S. at ––––, 130 S.Ct. at 1486. Under Padilla, “a defendant who is not a United States citizen and can show that his lawyer did not adequately advise him of the risks of deportation resulting from his guilty plea” will establish deficient performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but must still prove prejudice by showing that ‘there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ Smith v. State, 287 Ga. 391, 396(2)(b), 697 S.E.2d 177 (2010) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

The Supreme Court has granted certiorari to consider this term whether the Padilla rule applies retroactively to persons whose convictions became final before Padilla was decided. See Chaidez v. United States, 655 F.3d 684 (7th Cir.2011), cert. granted, ––– U.S. ––––, 132 S.Ct. 2101, 182 L.Ed.2d 867 (2012) (No. 11–820). To determine whether a constitutional rule of criminal procedure applies retroactively to judgments in criminal cases that are final before the new rule is announced, we apply the analysis set out in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Alford, 287 Ga. at 106, 695 S.E.2d 1.

Under Teague, a rule of criminal procedure applies to all cases on direct and collateral review if it is an old rule applied to new facts, but a new rule generally applies only to cases that are still on direct review unless it falls within one of two exceptions. Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). “A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. (citations and punctuation omitted).

The federal and state appellate courts are split on whether Padilla applies retroactively to persons whose convictions became final before its announcement. Three federal courts of appeals and two state supreme courts have concluded that Padilla announced a new rule that does not apply on collateral review. United States v. Amer, 681 F.3d 211, 214 (5th Cir.2012); United States v. Chang Hong, 671 F.3d 1147, 1155 (10th Cir.2011); Chaidez, 655 F.3d at 694;Campos v. Minnesota, 816 N.W.2d 480, 490 (Minn.2012); State v. Gaitan, 209 N.J. 339, 37 A.3d 1089, 1108 (2012). In Chaidez, the Seventh Circuit Court of Appeals reasoned that the outcome in Padilla was susceptible to debate given the differing views expressed by the justices in the opinion; the pre-Padilla decisions in state and lower federal courts, which did not require defense counsel to provide advice regarding collateral consequences; and the “sufficiently novel” result in Padilla where the Court held that the Sixth Amendment requires a criminal defense attorney to provide advice about matters not directly related to a client's criminal prosecution. Id. at 689–693.

Assuming these cases are correct and Padilla announced a new rule, it does not fall within either exception for retroactive application under Teague. It is neither a change in substantive criminal law nor a watershed rule of criminal procedure. See United States v. Mathur, 685 F.3d 396, 399 (4th Cir.2012). In rejecting the argument that Padilla announced a watershed rule, the Eleventh Circuit concluded: [W]e cannot say that Padilla has altered our understanding of bedrock procedural elements, given that the Court merely defined the contours of deficient and effective representation under Strickland. Figuereo–Sanchez v. United States, 678 F.3d 1203, 1208 (11th Cir.2012) (citation omitted); see also Perez v. State, 816 N.W.2d 354, 359 (Iowa 2012) (no court has so far held the Padilla rule qualifies for the watershed exception).

Alternatively, the Third Circuit Court of Appeals and two state supreme courts have concluded that Padilla applies retroactively to cases on collateral review because it did not announce a new rule. See United States v. Orocio, 645 F.3d 630, 641 (3d Cir.2011); Commonwealth v. Clarke, 460 Mass. 30, 949 N.E.2d 892, 904 (2011); Denisyuk v. State, 422 Md. 462, 30 A.3d 914, 923 (2011). These courts conclude that Padilla followed from the clearly established principles of the guarantee of effective assistance for counsel under Strickland v. Washington and therefore “ broke no new ground in holding the duty to consult also extended to counsel's obligation to advise the defendant of the immigration consequences of a guilty plea.” Orocio, 645 F.3d at 639–640 (citation and punctuation omitted); see also Clarke, 949 N.E.2d at 903 (Padilla merely applies on a case-by-case basis the constitutional standard in Strickland );Denisyuk, 30 A.3d at 925 (Padilla is the application of Strickland to a specific set of facts)....

To continue reading

Request your trial
5 cases
  • Stubbs v. Hall
    • United States
    • Georgia Supreme Court
    • March 13, 2020
    ...describing the events contemplated in subsections (c) (3) and (c) (4) as "toll[ing]" the statute of limitations); State v. Sosa , 291 Ga. 734, 736, 733 S.E.2d 262 (2012) (describing OCGA § 9-14-42 (c) (3) as an "exception" that "toll[s] the statute of limitations").16 Stubbs also argues tha......
  • Kennedy v. Kohnle
    • United States
    • Georgia Supreme Court
    • February 19, 2018
    ...A new rule generally applies only to cases that are still on direct review when the new rule is announced. See State v. Sosa, 291 Ga. 734, 737 (2), 733 S.E.2d 262 (2012) (citing Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) ; Teague v. Lane, 489 U.S. 288, 109 ......
  • Gutierrez-Medina v. State
    • United States
    • Idaho Court of Appeals
    • August 20, 2014
    ...the rule introduced in Padilla would impact the accuracy of conviction, and therefore it is not a watershed rule."); State v. Sosa, 291 Ga. 734, 733 S.E.2d 262, 265 (2012) (determining, with little discussion, that Padilla did not amount to a watershed rule of criminal procedure); Perez v. ......
  • Abrams v. Laughlin
    • United States
    • Georgia Supreme Court
    • June 18, 2018
    ...one involving a death sentence, any action must be filed within four years from" one of four alternative dates. State v. Sosa , 291 Ga. 734, 735–736 (1), 733 S.E.2d 262 (2012). The time provided in paragraph (c) (1) begins to run upon "[t]he judgment becoming final by the conclusion of dire......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT