“Is a claim that counsel misadvised a defendant about the deportation consequences associated with a guilty plea cognizable on habeas despite Ex parte De Los Reyes’ holding that Padilla does not apply retroactively on habeas?”
Garcia pled guilty to possession and, after being deported and then illegally returning to the United States, he filed an Article 11.072 application for a writ of habeas corpus. He claimed that his trial counsel wrongly admonished him that he would not be deported if convicted. He further asserted that his misadvice claim is not barred under the United State Supreme Court’s decision in Chaidez v. United States, 568 U.S. 342 (2013), which held that claims under Padilla v. Kentucky, 559 U.S. 356 (2009), are not retroactive for purposes of habeas. Chaidez, according to Garcia, left open the possibility that claims of ineffective assistance of counsel based on affirmative misadvice (versus no advice) about deportation consequences would not be Teague-barred. The Court of Criminal Appeals adopted Chaidez’s holding for purposes of Texas’ habeas jurisprudence in Ex parte De Los Reyes. 392 S.W.3d 675 (Tex. Crim. App. 2013). The habeas court granted relief. The court of appeals affirmed, holding that Garcia’s affirmative misadvice claim is cognizable.
The State contends that there is a clear split among federal and state courts and Judges on the Court of Criminal Appeals about retroactivity and deportation “misadvice” claims. The technical distinction being that “misadvice” claims are not true Padilla claims and thus retroactivity is a nonstarter. The State contends that the Court needs to finally resolve the issue and points out that it already expressed an interest in the matter in Ex parte Aguilar, which was filed and set to decide, “notwithstanding Padilla, whether a defendant’s guilty or no contest plea will be rendered involuntary if counsel affirmatively misadvises a defendant about the immigration consequences of his plea.” Ex parte Aguilar, WR-82,014-01, 2016 Tex. Crim. App. Unpub. LEXIS 323, at *2 (Tex. Crim. App. Apr. 6, 2016). The State’s position in Ex parte Aguilar is that there is a justiciable IAC-based involuntary plea claim when counsel wrongly advised a defendant about immigration consequences (not just deportation consequences).