Olvera motion for rehearing went in the mail today.

And the verdict is...

NOT retroactive!

Chaidez v. US

Another Kagan opinion, Thomas concurring, only Sotomayor and Ginsburg dissenting. I haven't read the full opinion yet, but I'm pleased with the result.

I dunno about other counties, but I'm going to have a number of disappointed writ applicants here in Collin County...

Anyone tracking the actual number of their Padilla writ applicants who were ultimately deported? That might give some interesting insight. Anyway, I guess the percentages will be going up now.

Well, the CCA has officially adopted Chaidez. They vacated and remanded several Padilla cases that had been pending. Woohoo!

Yep, 5 separate cases remanded under that holding. I bet there are lots more floating around. I have three pending in trial courts right now, another on appeal.

I've just gotten a writ where the def is arguing that his pleas were void because he couldn't actually complete the terms of probation due to his immigration status and ICE eventually coming to get him.

In other words, because he didn't know he could get deported (because his attorney didn't tell him), then his pleas should go away. They're relying on a 1960s case to get around Padillia.

Have y'all seen anything like this?

I seem to recall a plea that looked like it would get busted where the defendant was required to become a citizen as part of probation. Gutierrez v. State, 969 S.W.2d 16 (Tex. Crim. App. 2012).

Even though all of my Padilla issues seem to have resolved themselves, I did get a Motion for En Banc Rehearing in Ex Parte Gomez http://www.search.txcourts.gov...px?cn=01-12-00972-CR based on the argument that Chaidez was a Coram Nobis not a Writ of Habeas Corpus and that since Gomez was still on deferred and the writ was filed under 11.072 that somehow Chaidez did not apply. Has anyone seen this argument and should I get ready to concern myself with it. Please feel free to discuss.

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This message has been edited. Last edited by: Andrea Jacobs,

The decision that the evidence substantiates one's guilt and the order for community supervision become "final" after the expiration of 30 days. That a conditional door is left open for further proceedings (e.g., a motion to adjudicate guilt) does not affect the finality of the decision after 30 days. That is why an 11.072 writ is a collateral attack. Otherwise, your remedy would be to file a motion to withdraw the plea in the original proceeding. In any event, the new duty imposed by Padilla was just that, a new duty arising only after it became known. But, affirmative misadvice about a guilty plea consequence was a different issue even before Padilla. Wholly discounting a likely consequence can be bad medicine. Your case, however, involved a swearing match about the nature or content of the "advice," as I read the panel opinion.

Olvera was affirmed on remand today. link My favorite part was lying on my back in the well re-directing the officer about how he was positioned when the defendant was on top of him.

I am still getting these Padilla writs on pre-Chaidez cases. Does anyone have a canned response to these things that they would be willing to send me...I would hate to reinvent the wheel...many thanks

Fred: Here is the language that was added to our model response:

As of March 20, 2013, it is now clear that Padilla did not create a standard for judging the assistance provided by counsel under the Sixth Amendment in Texas prior to the announcement of the Padilla decision. Ex parte De los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013).

Applicant’s claim that his counsel was ineffective under the Sixth Amendment was effectively extinguished for purposes of collateral attack by the decision in De los Reyes. It simply cannot be said that the requirement created in Padilla was the prevailing professional norm in Texas prior to March 30, 2010. Many courts had held exactly the opposite. E.g., Ex parte Dumitru, 850 S.W.2d 243, 245 (Tex. App.—Houston [1st Dist.] 1993, no pet.) (“When a defendant is fully advised of the direct consequences of her plea, her ignorance of a collateral consequence does not render the plea involuntary.”). One court specifically implied that the “settled” law was: “counsel’s alleged failure to advise [the defendant] about such a collateral consequence as the impact of her guilty plea on her immigration status does not rise to the level of ineffective assistance of counsel.” Ex parte Wongjaroen, No. 14-07-00593-CR, 2008 Tex. App. LEXIS 8319, at *14 (Tex. App.—Houston [14th Dist.] Nov. 6, 2008, pet. ref’d) (mem. op., not designated for publication); accord Perez v. State, 31 S.W.3d 365, 368 (Tex. App.—San Antonio 2000, no pet.). Another court held: “Notwithstanding counsel’s advice, deportation and other adverse immigration consequences are generally considered to be collateral consequences of a guilty plea. Any failure of counsel to advise a defendant of the possibility of deportation or other collateral consequences of a guilty plea does not render the plea involuntary.” Ex parte Hernandez, No. 02-06-00290-CR, 2007 Tex. App. LEXIS 4242, at *13 (Tex. App.—Fort Worth May 24, 2007, no pet.) (not designated for publication). See also State v. Alshaif, 724 S.E.2d 597, 603 (N.C. App. 2012) (“we find that Padilla was an application of Strickland that would have been unreasonable to expect attorneys to have foreseen - especially those attorneys unfamiliar with immigration law”).

quote:

Originally posted by Eric C. Carcerano:
Even though all of my Padilla issues seem to have resolved themselves, I did get a Motion for En Banc Rehearing in Ex Parte Gomez http://www.search.txcourts.gov...px?cn=01-12-00972-CR based on the argument that Chaidez was a Coram Nobis not a Writ of Habeas Corpus and that since Gomez was still on deferred and the writ was filed under 11.072 that somehow Chaidez did not apply. Has anyone seen this argument and should I get ready to concern myself with it. Please feel free to discuss.

Evidently this is never going to go away. Today I received notice from the United States Supreme Court that my response in Gomez v. Texas is due May 29. Forty copies with orange covers.

The interest of the state in the validity and finality of the plea is no different under 42.12, sec. 5 than under 42.01. The provision that "all proceedings, including assessment of punishment, pronouncement of sentence," etc. "continue as if" the clock had stopped, was never intended to permit a delayed attack on the validity of the plea or to start the proceeding completely over. It is interesting that neither Chaidez nor Padilla actually involved a habeas procedure, but any distinction between 11.072 and those procedures is "without a difference." Good luck.

This message has been edited. Last edited by: Martin Peterson,

Here is the Supreme Court docket page: http://www.supremecourt.gov/Se...ketfiles/13-1036.htm

I'm very intersted in this. Any chance to argue Padilla was wrongly decided because that whole immigration thing is so murky?

quote:

Originally posted by Eric C. Carcerano:
Evidently this is never going to go away. Today I received notice from the United States Supreme Court that my response in Gomez v. Texas is due May 29. Forty copies with orange covers.

I just wrote an article for the Prosecutor on these writs. Hopefully your case doesn't invalidate everything I said before it even gets published. I also have one up there, 13-994, Luna. They haven't requested a response though and I am keeping my fingers crossed. I have dealt with several of these on appeal, so please let me know if I can be of any help.

Anyone who wants to join this party, please feel free.

"I could use a good man to help me get my project on wheels." Andy Dufresne.

The State's brief in Gomez is on its way to SCOTUS.

The argument boiled down to 3 points:
1. This matter was addressed in Chaidez and the court does not need to revisit it,
2. Texas could have made Padilla retroactive pursuant to Danforth in DeLosReyes, but like everyone else except Massachusetts chose not to, and
3. Chavarria essentially foreclosed petitioner's arguments.

As always, thanks to the folks in Collin, Harris and Ft. Bend for their words of advice. As an aside, I would encourage everyone to procure the elusive Letter of Good Standing from the Texas Supreme Court because when one of these lands on your desk you are going to need it before you can file your reply. As always, the adventure continues.