Ex Parte Alicia Brumant ( 2015 )

ACCEPTED
14-15-00337-cr
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
6/10/2015 6:02:12 PM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00337-CR
IN THE 14th COURT OF APPEALS FILED IN
14th COURT OF APPEALS
at Houston, Texas HOUSTON, TEXAS
6/10/2015 6:02:12 PM
EX PARTE ALICIA BRUMANT CHRISTOPHER A. PRINE
Appellant, Clerk
v.
The State of Texas
Appellee.
APPELLANT’S BRIEF
HINOJOSA & SALINAS, PLLC
ROBERTO M. HINOJOSA
Texas Bar No. 24043730
2020 Southwest Fwy. Ste. 220
Houston, Texas 77098
Tel. (713)665-5060
Fax. (713)520-8808
Attorney for Appellant,
Alicia Brumant
ALAN CURRY
Chief Prosecutor, Appellant Division
Harris County
1201 Franklin, Suite 600
Houston, TX 77002
Tel. (713) 755-5800
Fax (713) 755-5809
Attorney for Appellee,
The State of Texas
APPELLANT REQUESTS ORAL ARGUMENT
Brumant, Alicia– Appellant’s Brief 1
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 1
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 8
ISSUES PRESENTED 9
STATEMENT OF FACTS 12
SUMMARY OF THE ARGUMENT 15
ARGUMENT 18
I. Standard of Review 18
II. Appellant was presumptively prejudiced and
received ineffective assistance of counsel when a
clear conflict of interest arose and trial counsel
proceeded with advising Appellant to enter a guilty
plea despite the dual representation that gave rise to
the conflict. 20
A. Prejudice is presumed when counsel fails to
subject the prosecution’s case to adversarial
testing. Such failure has occurred in the case
before us when counsel advised Appellant to
enter a guilty plea despite the fact she was aware
that Appellant had a defense that should have
been presented. 24
III. Chaidez v. United States and Ex parte De Los Reyes
do not apply to the case before us, since Appellant was
affirmatively misadviced under Ex parte Arjona 1 as to
the consequences of her plea, and therefore maintains
a claim under Padilla and the Sixth Amendment. 25
A. Noncitizens can continue to raise claims
involving affirmative “material
misrepresentations.” 29
IV. The decision reached in Chaidez applies to those who
were convicted prior to the holding in Padilla and as
such, the retroactivity bar is not applicable to
Appellant—a Legal Permanent Resident (LPR)—because
1
Ex parte Arjona, 402 S.W.3d 312 (Tex. App.-Beaumont 2013).
Brumant, Alicia– Appellant’s Brief 2
she was given deferred adjudication and successfully
completed probation, therefore she did not have a final
conviction. 32
A. In the state of Texas, if you are a citizen, who
has been given deferred adjudication for an
offense and who successfully completes probation,
you will not be considered to have a conviction.
However, if you are a Legal Permanent Resident
who has also been given deferred adjudication and
who successfully completes probation, you may be
considered to have a conviction pursuant to State v.
Guerrero. This is a violation of the Equal
Protection and Due Process Clauses of the 14th
Amendment because this is precisely the type of
Harm those Constitutional Clauses were meant
to preclude. 33
B. The “new rule vs. old rule” threshold question
of Teague is not applicable to an ineffective
assistance of counsel claim that is the
functional equivalent of a direct appeal pursuant
to the clearly established precedent in
Martinez v. Ryan and Trevino v. Thaler. 43
C. The Power vested in the Supreme Court is to
interpret the constitution and laws of the
United States. Teague v. Lane is not meant to
apply to new holdings based on the United States
Constitution because the Supreme Court is not
a “super legislature.” 44
V. This Writ shall be considered an “initial” Writ of
Habeas Corpus, because a dismissal and denial of a
Writ are treated differently, and therefore the Trial
Court maintained the power to review this Writ
since the first Writ was dismissed without a hearing
on its merits. 47
PRAYER 50
CERTIFICATE OF SERVICE 52
Brumant, Alicia– Appellant’s Brief 3
INDEX OF AUTHORITIES
Cases:
Padilla v. Kentucky, 130 S. Ct. 1473, 1484 (2010)…8, 9, 11, 12, 15, 16, 18,
22, 25- 28, 30-33, 41, 43, 44, 46-50
Strickland v. Washington, 466 U.S. 668 (1984)………21-23, 30, 45, 46, 50
Ex Parte Tanklevskaya v. State of Texas, 361 S.W.3d 86 (Tex. App. –
Houston [1st Dist.] 2011, pet. filed)………………..…………18, 19, 49, 50
Chaidez v. United States, 133 S. Ct. 1103 (2013)…8, 9, 11, 12, 16, 25-33,
41, 42, 49, 50
Ex parte De Los Reyes, 392 S.W.3d 675(Tex. Crim. App. 2013)…9, 11, 25-
29, 41
State v. Guerrero, 400 S.W.3d 576 (Tex. Crim. App. 2013)…9, 10, 17, 33-
39, 42, 43
Ex parte Arjona, 402 S.W.3d 312 (Tex. App.-Beaumont 2013)…2, 11, 25,
31
Cuyler v. Sullivan, 100 S. Ct. 1708 (1980)………………..15, 23- 25, 30, 50
Thompson v. State, 94 S.W.3d 11(2002)……………………….…15, 22, 50
Teague v. Lane, 489 U.S. 288 (1989)…………………16, 27-28, 32, 43-47
Yick Wo v. Hopkins, 118 U.S. 356 (1886)……………………………18, 38
Kniatt v. State, 206 S.W.3d 657, 664 (Tex.Crim.App. 2006)…….………18
Ex parte Ali, 368 S.W.3d 827, 831 (Tex.App.-Austin 2012, pet. ref’d)…19
Ex Parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003)………19
Harrington v. Richter, 131 S. Ct. 770, 785 (2011)………………………..19
Brumant, Alicia– Appellant’s Brief 4
Holloway v. Arkansas, 98 S. Ct. 1173 (1978)………………………….… 22
Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997)………23-24
Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir.2000)……………………24
U.S. v. Cronic, 104 S. Ct. 2039 (1984)……………………………………25
United States v. Rivas-Lopez, 678 F.3d 353, 356-57 (5th Cir.2012)……..25
Marroquin v. U.S., 480 Fed.Appx. 94 (5th Cir. 2012)……………………25
Hill v. Lockhart, 106 S. Ct. 366 (1985)………………………………..25, 27
Santos-Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008)……27-28, 30
United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005)……………….27-30
United States v. Couto, 311 F.3d 179 (2nd Cir 2002)…………………27-30
James v. Cain, 56 F. 3d. 662 (5th Cir. 1995)………………………………27
Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014)………………………27
Chavarria v. United States, 739 F.3d 360, 362 (7th Cir. 2013)…………….27
U.S. v. Amer, 681 F.3d 211 (5th Cir. 2012…………………………….28-29
United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va.
1995)…28, 30
Downs-Morgan v. United States, 765 F.2d 1534 (11th Cir. 1985)………..29
Ex parte Wei His Chien, 2014 WL 3697918, (Tex.App.-Hous.1 Dist)……31
Plyler v. Doe, 102 S. Ct. 2382 (1982)………………………………………36
Oyama v. California, 68 S. Ct. 269 (1948)……………………………….40
Texas v. Juvrud, 187 S.W.3d 492 (Tex. Crim. App. 2006)……………….41
Brumant, Alicia– Appellant’s Brief 5
Price v. State, 866 S.W.2d 606, 611 (Tex. Crim. App. 1993)……………41
Busby v. State, 984 S.W.2d 627, 629 (Tex. Crim. App. 1998)……………41
Jordan v. State, 36 S.W.3d 871, 872, 876 (Tex. Crim. App. 2001)…….…41
Galvan v. Press, 347 U.S. 522 (1954)……………………………………...42
Harisiades v. Shaugnessy, 342 U.S. 580 (1952)………………………..….42
Martinez v. Ryan, 132 S. Ct. 1309 (2012)……………………...………43- 46
Trevino v. Thaler, 133 S. Ct. 1911(2013)………………………………43- 44
Robinson v. State, 16 S.W.3d 808, 811 (Tex. Crim. App. 2000)………..44
Griffith v. Kentucky, 479 U.S. 314 (1987)………………………….….…44
Danforth v. Minnesota, 128 S. Ct. 1029, 1034 (2008)……………….……45
Massaro v. United States, 123 S. Ct. 1690, 1698 (2003)…………..………45
Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012)………………………..….46
Ex Parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim. App. 2004)…………47
Ex Parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997)……….…47
Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998)………..……….48
Ex parte McPherson, 32 S.W.3d 860 (Tex. Crim. App. 2000)…………….49
Ex Parte Moussazadeh, 361 S.W.3d. 684 (Tex.Crim.App. 2012)……..…..49
U.S. Constitutions:
U.S. CONST. amend. VI………………………………………..9, 13, 16-31
U.S. CONST. amend. XIV……………………………………………..…26
Brumant, Alicia– Appellant’s Brief 6
U.S. CONST. art. I § 9…………………………………………………….43
U.S. CONST. art. III…………….………………………………….…47- 48
Statutes:
8 U.S.C. § 1182 (a)(2)(A)(i)(II)………………………………………..14, 17
8 U.S.C. § 1101(a)(48)(A) (as amended)……………………………….…38
INA § 212(a)(2)(A)(i)(II)………………………………………………14, 17
Tex. Crim. Proc. Code Ann. art. 11.072 ……………………..………….9, 50
Tex. Crim. Proc. Code art. 42.12 § 5 (c)………..……………….………41
Tex. Crim. Proc. Code Ann. art.11.072 § (9)(a)………………..………19, 50
Other:
H.R. Conf. Rep. No. 828, 104th Cong., 2nd Sess. 1996……………..….…38
Dr. Suess, Horton Hears a Who! (Random House 1954)…….…………….41
Rebecca Sharpless, et. al., Teague New Rules Must Apply in Initial-Review
Collateral Proceedings: The Teachings of Padilla, Chaidez, and Martinez,
67 Univ. of Miami L. Rev. (2013)…………………………………...…….44
Brumant, Alicia– Appellant’s Brief 7
STATEMENT OF THE CASE
Appellant, Alicia Brumant, filed an “Application for Writ of Habeas
Corpus Pursuant to Tex. Crim. Proc. Code Ann. art. 11.072 and Based on
new Legal Developments from the U.S. Supreme Court.” (See Clerk’s
Record, CR, at 4, 97)2. The Writ was denied without a hearing on the merits.
(See CR at 97 and Clerk’s Supplemental Record, CSR, at 5-7). 3 Because
there was no hearing on the merits there was also no Court Reporter and no
Reporters Record. The “State’s Proposed Findings of Fact, Conclusions of
Law and Order” adopted by the Court, are incomplete. (See CSR at 5-7).
The Writ filed by Appellant was not based exclusively on Padilla v.
Kentucky, 130 S. Ct. 1473 (2010). It also argued that Chaidez v. United
States, 133 S. Ct. 1103 (2013), did not apply to affirmative misadvice. (See
CR at 4-6). The Writ also argued that there was a conflict of interest that
essentially deprived her of right to counsel under the Sixth Amendment to
the U.S. Constitution. 4 (See CR at 4-6). The Writ discussed the previously
filed Writ of Habeas arguing that since it was dismissed, the present writ is
in essence the first writ. (See CR 4-6). The Trial Court determined that the
2
All references to “CR” are to the trial court Clerk’s Record.
3
All references to “CSR” are to the trail court Clerk’s Supplemental Record.
4
U.S. CONST. amend. VI.
Brumant, Alicia– Appellant’s Brief 8
Application for a Writ of Habeas filed by Appellant should be dismissed
because the conviction was prior to Padilla and therefore, under Chaidez
and Ex parte De Los Reyes, 392 S.W.3d 675(Tex. Crim. App. 2013), the
benefits of Padilla were not applied retroactive. (See CSR at 7). The Trial
Court further determined that “due to the fact that Appellant’s co-defendant
had pled prior to her agreement to plead guilty, no actual conflict of interest
existed at the time of Appellant’s plea.” (See CSR at 7). The Trial Court
gave no legal authority for the proposition that a co-defendant’s prior plea
would eliminate the conflict of interest. (See CSR at 7). The Trial Court
seems to have correctly treated the present writ as a first writ, but it is not
clear from the “State’s Proposed Findings of Fact, Conclusions of Law and
Order” adopted by the Court. (See CSR at 5-7).
The Trial Court did not address the issues of Affirmative misadvise,
and the inapplicability of State v. Guerrero, 400 S.W.3d 576 (Tex. Crim.
App. 2013). (See CSR at 5-7). The Appellant’s counsel orally requested the
Trial Court to add to the “State’s Proposed Findings of Fact, Conclusions of
Law and Order” that the Court found State v. Guerrero was applicable in
this case.5 The Court refused to make such additional finding or conclusion
5
Appellant’s Counsel for the present writ is the same that is filing this brief. Appellant’s
counsel believes that it was a mistake not to address the State v. Guerrero issue at the
Brumant, Alicia– Appellant’s Brief 9
of law and unfortunately none of that conversation was recorded. The
Record therefore shows that the Trial Court did not address the issue of the
inapplicability of State v. Guerrero to a case involving deferred adjudication
that was successfully completed by a defendant who was a Legal Permanent
Resident (LPR). (See CSR at 5-7).
ISSUES PRESENTED
Appellant, Alicia Brumant, entered a guilty plea to Possession of a
Controlled Substance, less than one gram, Cause No. 875141, in the 351st
District Court of Texas, pursuant to a plea agreement. Her sentence was 150
hours of community service; three years deferred probation, and $300 fine.
Appellant’s Trial Counsel told her that she would not have a conviction as
long as she successfully completed the terms of her deferred probation an
did not commit another crime. Appellant successfully completed the
deferred probation.
Appellant traveled outside the country and upon her return was
apprehended by the Department of Homeland Security (DHS) and placed in
removal proceedings. She was found to be inadmissible and ordered
removed as a consequence of her guilty plea for “Possession of a Controlled
Trial Court level or the issue of affirmative misadvice. At the very least the Trial Court
should have addressed the additional arguments raised by Appellant’s application in the
Findings of Fact and Conclusions of Law.
Brumant, Alicia– Appellant’s Brief 10
Substance, less than one gram, Cause No. 875141, in the 351st District Court
of Texas.”
The Trial Counsel that represented her also represented the co-
defendant in the same matter. The Trial Counsel was informed by Appellant
and by co-defendant, that Appellant was not in possession of any controlled
substance or aware of the existence of the controlled substance and that the
whole of the controlled substance belonged to co-defendant. The Trial
Counsel, ignoring the defense being raised by Appellant, advised her to enter
a guilty plea.
ISSUES:
1. Appellant was presumptively prejudiced and received
ineffective assistance of counsel when a clear conflict of interest arose and
trial counsel proceeded with advising Appellant to enter a guilty plea despite
the dual representation that gave rise to the conflict.
2. Chaidez v. United States and Ex parte De Los Reyes do not
apply to the case before us, since Appellant was affirmatively misadviced
under Ex parte Arjona 6 as to the consequences of her plea, and therefore
maintains a claim under Padilla and the Sixth Amendment.
6
Ex parte Arjona, 402 S.W.3d 312 (Tex. App.-Beaumont 2013).
Brumant, Alicia– Appellant’s Brief 11
3. The decision reached in Chaidez applies to those who were
convicted prior to the holding in Padilla and as such, the retroactivity bar is
not applicable to Appellant—a Legal Permanent Resident (LPR)—because
she was given deferred adjudication and successfully completed probation.
Therefore, she did not have a final conviction.
4. This Writ shall be considered an “initial” Writ of Habeas
Corpus, because a dismissal and denial of a Writ are treated differently, and
therefore the Trial Court maintained the power to review this Writ since the
first Writ was dismissed without a hearing on its merits.7
STATEMENT OF FACTS
Appellant, Alicia Brumant, filed an Application for Writ of Habeas
Corpus in The 351st District Court of Harris County Texas on October 29,
2014. (See CR, at 4, 97). On February 25, 2015 the Application was denied.
(See CR at 97, and CSR, at 7). Alicia Brumant was not advised of the
immigration consequences of her guilty plea in Cause No. 875141 in Harris
County. (See CR at 6, 60-61). However, even if she had been advised as her
trial counsel states in her affidavit, the advice given did not amount to
7
This issue seems to have been admitted by the State and assumed by the Trial Court.
However, since it is not clearly addressed in the “State’s Proposed Findings of Fact,
Conclusions of Law and Order” adopted by the Court, it raised here again for the sake of
thoroughness.
Brumant, Alicia– Appellant’s Brief 12
effective assistance of counsel. (See CR at 63). Appellant has been a Legal
Permanent Resident (LPR) since September 2, 1995 and is the mother of a
United States Citizen daughter, and wife of a United States Citizen. (See CR
at 41-42, 54). On October 5, 2001, Appellant pled guilty to Possession of a
Controlled Substance, less than one gram, Cause No. 875141, in the 351st
District Court of Texas, pursuant to a plea agreement. Her sentence was 150
hours of community service; three years deferred probation, and $300 fine.
(See CR at 44-50). She complied with all the conditions of her probation
and successfully completed probation. (See CR at 52). Petitioner has been a
Legal Permanent Resident (LPR) since September 2, 1995. (See CR at 54).
She is a native of Dominica. The Department of Homeland Security (DHS)
and Immigration and Customs Enforcement, (ICE) initiated Removal
Proceedings against her pursuant to 8 U.S.C. § 1182 (a)(2)(A)(i)(II), INA §
212(a)(2)(A)(i)(II). (See CR at 56-58).
When Petitioner entered her guilty plea in 2001, she was not aware
that as a consequence she would be deported. (See CR at 60-61). Appellant’s
Trial Counsel admits she did not know that Petitioner was going to be
removed because she pled guilty to Possession of a Controlled Substance
other than less than 30 grams of marijuana. (See CR at 63). A quick reading
of the Immigration and Nationality Act (“INA”) would have warned counsel
Brumant, Alicia– Appellant’s Brief 13
of the immigration consequence that Appellant would face in light of
Appellant’s guilty plea. Although Appellant had a defense, Trial Counsel
advised Appellant to plea guilty instead of going to trial. The plea rendered
her subject to mandatory deportation, and in addition, if Appellant left the
United States, she would be classified as an arriving alien and be
inadmissible. In addition, Trial Counsel reassured Appellant that the plea
was in her best interest and told her that the offense could be expunged from
her record after seven years and that Trial Counsel would charge seven
hundred dollars for the process. (See CR at 60-61). Trial Counsel also
explained that if she successfully completed probation and there was no
other charge, she would not have a conviction. (See CR at 60-61).
Furthermore, the same Trial Counsel that represented Appellant at the
trial level, represented her now husband, who was her boyfriend at the time,
Mr. Pickett, in the same matter. Appellant and Mr. Pickett were arrested at
the same time for the same offense, and indicted for different amounts of the
controlled substance. It is clear on the face of the indictment that the two
cases were related. (See CR at 65, 67-68).8 However, contrary to established
professional standards, Trial Counsel met with both clients simultaneously
8
For further proof that the same attorney, Ms. Irvin represented both clients in the same
matter, please look at the second document in exhibit 9, in the space “attorney for
defendant.”
Brumant, Alicia– Appellant’s Brief 14
and represented Appellant and Mr. Pickett in court. Furthermore, Trial
Counsel advised both clients to enter a plea deal, including the plea that
rendered Appellant subject to mandatory deportation and inadmissibility.
Mr. Pickett asserts in his sworn affidavit that he informed Trial Counsel that
all of the drugs belonged to him and not the Appellant. (See CR at 70). In
spite of this, the attorney did not go to trial, which would have been in the
best interest of Appellant, but perhaps not in the best interest of Mr. Pickett,
creating a clear conflict of interest. Alicia Brumant seeks Habeas Corpus
relief because her plea counsel rendered ineffective assistance under the
Sixth Amendment and Padilla v. Kentucky and Cuyler v. Sullivan, 9 and
Thompson v. State,10 respectively. 11 Appellant’s prior Writ of Habeas
Corpus filed on March 5, 2012 was dismissed on July 17, 2013, without a
hearing on the merits. (See CR at 72-73).
SUMMARY OF THE ARGUMENT
Appellant was prejudiced and received ineffective assistance of
counsel when a clear conflict of interest arose in that Appellant and a
9
Cuyler v. Sullivan, 100 S. Ct. 1708 (1980).
10
Thompson v. State, 94 S.W.3d 11(2002).
11
Appellant has been ordered removed as she was found inadmissible. The immigration
Judge’s order was appealed to the BIA and dismissed, affirming the Immigration Judge’s
decision. The decision was appealed to the 5th Circuit in case No. 13-60916. The 5th
Circuit denied the appeal and affirmed the BIA. The decision may still be appealed to the
U.S. Supreme Court.
Brumant, Alicia– Appellant’s Brief 15
defendant from the same incident were represented by the same attorney and
the attorney advised Appellant to enter a guilty plea when the other
defendant committed the crime and admitted this to the attorney.
Appellant, Alicia Brumant, has been restrained in her liberty when
The Department of Homeland Security (DHS) and Immigration and
Customs Enforcement, (ICE) initiated Removal Proceedings against her
pursuant to 8 U.S.C. § 1182 (a)(2)(A)(i)(II), INA § 212(a)(2)(A)(i)(II) based
on her April 19, 2001 guilty plea in the 351st District Court of Texas in
Houston. The underlying retroactivity issue based on Chaidez should not
apply to the case before us because Appellant was affirmatively misadvised
as to the consequences of her plea and therefore maintains a claim under
Padilla and the Sixth Amendment.
Appellant’s removability pursuant to 8 U.S.C. § 1182 (a)(2)(A)(i)(II),
INA § 212(a)(2)(A)(i)(II) is the result of ineffective assistance of counsel
which is contrary to the Sixth Amendment and Padilla v. Kentucky.
Appellant was denied effective assistance when she was advised by trial
counsel to enter a plea that rendered her subject to mandatory deportation.
The non-retroactivity principal reached in Teague v. Lane12 should not apply
to Padilla-type challenges to federal convictions because such principal
12
Teague v. Lane, 489 U.S. 288 (1989).
Brumant, Alicia– Appellant’s Brief 16
would assume that habeas petitioners have already had full and fair
opportunities to raise constitutional claims.
In the State of Texas, if you are a U.S. citizen who hasbeen given
deferred adjudication and who successfully completed probation, you will
not be considered to have a conviction. However, if you are a Legal
Permanent Resident (LPR) who has also been given deferred adjudication
and who successfully completed probation, you will be considered to have a
conviction pursuant to State v. Guerrero. This is a violation of the Equal
Protection and Due Process Clause of the 14th Amendment. This is
precisely the type of harm meant to be precluded by the Equal Protection
and Due Process Clause of the 14th Amendment. State v. Guerrero, can be
interpreted to apply to those who would have been deported regardless of the
conviction. Appellant in this case, unlike Guerrero, was an LPR who would
not have been removed but for the conviction.
“The Fourteenth Amendment to the Constitution is not confined
to the protection of citizens. It says: “Nor shall any state
deprive any person of the life, liberty, or property without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.” These provisions are universal
in their application, to all persons in the territorial jurisdiction,
without regard to any difference in race, color or nationality;
and the equal protection of the laws is a pledge of the protection
of equal laws. Therefore, the questions we must consider and
decide in these cases are to be treated as involving the rights of
every citizen of the United States equally with those of the
Brumant, Alicia– Appellant’s Brief 17
strangers and aliens who now invoke the jurisdiction of the
court.”13
Appellant’s prior Writ was dismissed. However, when the prior Writ
was filed, the rule reached under Padilla could be applied retroactively. The
first Writ was dismissed and as such this Writ does not count as a second
Writ, since the first Writ did not reach the merits of the case. However, even
if this Writ is to be considered a second Writ, under 11.072 § (9)(a), the Writ
may still be filed if it contains sufficient specific facts establishing that the
current claims and issues have not been and could not have been presented
previously because the factual or legal basis for the claim was unavailable
on the date the Appellant filed the previous application.
ARGUMENT
I. Standard of Review
In seeking Habeas Corpus relief based on an involuntary guilty plea,
Appellant must prove her claim by a preponderance of the evidence. Ex
parte Tanklevskaya, 361 S.W.3d at 91 (citing Kniatt v. State, 206 S.W.3d
657, 664 (Tex.Crim.App. 2006)). A trial court’s denial of a Writ of Habeas
Corpus is reviewed under an abuse of discretion standard. Kniatt v. State,
13
Yick Wo v. Hopkins, 118 U.S. 356 (1886).
Brumant, Alicia– Appellant’s Brief 18
206 S.W.3d 657, 664 (Tex.Crim.App.2006). A defendant who claims his
plea was not knowingly and voluntary given must prove that claim by a
preponderance of the evidence. Id. The Court shall review facts in light most
favorable to the trial court’s ruling and must uphold that ruling absent abuse
of discretion. Id. However, a de novo review is applied when the facts are
uncontested and the trial court’s ruling does not turn on the credibility or
demeanor of witnesses. Ex parte Ali, 368 S.W.3d 827, 831 (Tex.App.-
Austin 2012, pet. ref’d). Furthermore, appellate courts review de novo those
“mixed questions of law and fact” that do not depend upon credibility and
demeanor. Ex Parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App.
2003). The First Court of Appeals has also noted that appellate courts review
de novo those “mixed questions of law and fact” that do not depend upon
credibility and demeanor. Ex parte Tanklevskaya, 361 S.W.3d 86, 91
(Tex.App.--Houston [1st Dist.] 2011, pet. granted), rev'd on retroactivity
grounds, 393 S.W.3d 787 (Tex.Crim.App. 2013). Ineffective assistance of
counsel in a guilty plea proceeding of such magnitude as to render a guilty
plea involuntary also has the effect of vitiating any waiver of Habeas Corpus
relief with respect to that claim. Harrington v. Richter, 131 S. Ct. 770, 785
(2011). In this case the appropriate standard of review is de novo since the
issues raised are mainly legal questions and credibility is not a factor placed
Brumant, Alicia– Appellant’s Brief 19
in dispute by the “State’s Proposed Findings of Fact, Conclusions of Law
and Order” adopted by the Court.
II. Appellant was presumptively prejudiced and received ineffective
assistance of counsel when a clear conflict of interest arose and
trial counsel proceeded with advising Appellant to enter a guilty
plea despite the dual representation that gave rise to the conflict.
The same attorney who represented Appellant at the trial level,
represented her now husband, who was her boyfriend at the time, Mr.
Pickett, in the same matter. Appellant and Mr. Pickett were arrested at the
same time for the same offense, and indicted for different amounts of the
controlled substance. The indictment, when viewed on its face, clearly
shows that the two cases were related. However, contrary to established
professional standards, the attorney met with both clients simultaneously and
represented Appellant and Mr. Pickett in court. Furthermore, the attorney
advised both clients to enter a plea deal, including the plea that rendered
Appellant subject to mandatory deportation and inadmissibility.
Mr. Pickett asserts in his sworn affidavit that he informed trial counsel
that all of the drugs belonged to him and not Appellant. When viewing the
offenses, we are able to see that Appellant was charged with a small amount
of the controlled substance, less than one gram, and Mr. Pickett was charged
with possessing a larger amount. In spite of this, the attorney did not go to
Brumant, Alicia– Appellant’s Brief 20
trial, which would have been in the best interest of Appellant, but perhaps
not in the best interest of Mr. Pickett, creating a clear conflict of interest. If
trial counsel would have gone to trial, it would have likely benefitted the
Appellant because she had a defense due to the fact that Mr. Pickett said the
full amount of the contraband belonged to him. However, Appellant was
denied representation in her best interest because the attorney was
representing both clients, and proceeding to trial would have been
detrimental to Mr. Pickett, while benefitting Appellant.
To establish prejudice in cases where a defendant complains that
ineffective assistance led him to accept a plea offer as opposed to proceeding
to trial, the defendant must show a reasonable probability that, but for
counsel’s errors, he would have not pleaded guilty and would have insisted
on going to trial. The Supreme Court has established the minimum
requirements of the Sixth Amendment as interpreted in Strickland, and
States have the discretion to add procedural protections under state law if
they choose. Missouri v. Fry, 132 S. Ct. 1399 (2012). Therefore, it was clear
that Appellant was prejudiced by the actions and conflicting interests of her
attorney when she was advised to enter a plea that rendered her subject to
Brumant, Alicia– Appellant’s Brief 21
mandatory deportation and such plea would have likely not been entered but
for the dual representation and conflict of interest.14
In Thompson v. State, 94 S.W.3d 11 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d), the Court held that the proper standard for determining
ineffective assistance of counsel due to a conflict of interest should be
determined under Strickland v. Washington. The Sixth Amendment to the
United States Constitution guarantees in all criminal prosecutions that the
accused shall have a right to reasonably effective assistance of counsel.
Thompson at 15, citing Strickland v. Washington, 466 U.S. 668, 686 (1984).
The Sixth Amendment also guarantees a defendant the right to “conflict-
free” representation Missouri v. Fry, 132 S. Ct. 1399 (2012). The mere
physical presence of an attorney does not fulfill the Sixth Amendment’s
guarantee when the advocate’s conflicting obligations have effectively
sealed his lips on crucial matters. Holloway v. Arkansas, 98 S. Ct. 1173
(1978). The vast majority of claims alleging ineffective assistance of
counsel fall within the familiar Strickland standard. Under this standard, to
prove ineffective assistance of counsel, appellant must show that (1)
counsel’s representation or advice fell below the objective standards of
14
It should be noted that the holding in Padilla will not be satisfied by counsel advising a
defendant to seek the advice of an immigration attorney after they have already been
detained.
Brumant, Alicia– Appellant’s Brief 22
reasonableness; and (2) the result of the proceeding would have been
different but for counsel’s deficient performance. Strickland at 688.
Although Strickland governs claims based of ineffective assistance of
counsel based on attorney error, Cuyler v. Sullivan, a case the United States
Supreme Court decided four years before Strickland, controls certain claims
of ineffective assistance of counsel involving conflicts of interest. See
Cuyler v. Sullivan, 100 S. Ct. 1708 (1980). Under Cuyler, a defendant
demonstrates a violation of his right to reasonably effective assistance of
counsel based on a conflict of interest if he can show that (1) his counsel was
burdened by an actual conflict of interest; and (2) the conflict had an adverse
effect on specific instances of counsel’s performance. Cuyler, 100 S. Ct.
1708. Until a defendant shows his counsel actively represented conflicting
interests, he has not established the constitutional predicate for his claim of
ineffective assistance. Id. at 1708. A showing of the “possibility of conflict
of interest” is not sufficient to overturn a criminal conviction. Id. But, if
appellant shows an actual conflict, prejudice is presumed. Id. An actual
conflict of interest exists if counsel is required to make a choice between
advancing her client’s interest in a fair trial or advancing other interests to
the detriment of her client’s interest. See Monreal v. State, 947 S.W.2d 559,
Brumant, Alicia– Appellant’s Brief 23
564 (Tex.Crim.App.1997); Perillo v. Johnson, 205 F.3d 775, 781 (5th
Cir.2000).
When a lawyer undertakes simultaneous representation of multiple
criminal defendants, the risk of prejudice to one client or the other is so great
that the law imposes an automatic assumption of prejudice. Cuyler, 100
S. Ct. 1708, 1709 (1980). This prejudice is perhaps best illustrated in those
cases in which there is a blame shifting defense--- one of the defendants
claims the other committed the offense. See Monreal, 923 S.W.2d at 64. If a
lawyer represents two or more co-defendants in the same matter, she is
legally and ethically deprived of utilizing the time-honored defense of
blaming the other defendant. Id. Under those circumstances, the automatic
presumption of prejudice is quite valid. Id. In this case, the attorney for
Appellant was legally and ethically deprived of utilizing the time-honored
defense of blaming the other defendant. Therefore, there should be an
automatic presumption of prejudice in this case.
A. Prejudice is presumed when counsel fails to subject the
prosecution’s case to adversarial testing. Such failure has
occurred in the case before us when counsel advised Appellant to
enter a guilty plea despite the fact she was aware that Appellant
had a defense that should have been presented.
Brumant, Alicia– Appellant’s Brief 24
It has been long recognized that “the breakdown in the adversarial
process that implicates the Sixth Amendment is not limited to counsel’s
performance as a whole; specific errors and omissions may be the focus of a
claim of ineffective assistance as well.” U.S. v. Cronic, 104 S. Ct. 2039
(1984). In Cronic, the court held that counsel’s failure to subject
prosecution’s case to adversarial testing amounts to constructive denial of
counsel, and the reviewing court should not require petitioner to show
prejudice. Id. 15 Furthermore, even prior to the holding in Padilla, the Fifth
Circuit has observed that providing counsel to assist a defendant in deciding
whether to plea guilty is ‘[o]ne of the most precious applications of the Sixth
Amendment.’” United States v. Rivas-Lopez, 678 F.3d 353, 356-57 (5th
Cir.2012).
III. Chaidez v. United States and Ex parte De Los Reyes do not apply to
the case before us, since Appellant was affirmatively misadvised
under Ex parte Arjona 16 as to the consequences of her plea, and
therefore maintains a claim under Padilla and the Sixth
Amendment.
15
Moreover, regarding the issue of prejudice, in Marroquin v. U.S., 480 Fed.Appx. 94
(5th Cir. 2012),in a concurring opinion a justice spoke to the issue of presumed prejudice
when stating “The district court reasoned that a court can erase the prejudice resulting
from a defense attorney’s failure to competently advise a noncitizen defendant during the
plea process merely by stating at the plea entry proceeding that a guilty plea felony
conviction would result in deportation. I find this rational deeply flawed. The negotiation
of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment
right to effective assistance of counsel.” Marroquin, citing Hill v. Lockhart, 106 S. Ct.
366 (1985).
16
Ex parte Arjona, 402 S.W.3d 312 (Tex. App.-Beaumont 2013).
Brumant, Alicia– Appellant’s Brief 25
This case is about the Appellant not being advised of the immigration
consequences for a guilty plea. Padilla v. Kentucky, 130 S. Ct. 1473 (2010),
gave Appellant the opportunity to challenge the voluntariness and validity of
her guilty plea. However, before this case was resolved, the U.S. Supreme
Court in Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013), held “that
when the court announces a ‘new rule’, a person whose conviction is already
final may not benefit from the decision in habeas or similar proceeding
subject to two exceptions”; see also Ex parte De Los Reyes, 392 S.W.3d
675, 678 (Tex. Crim. App. 2013). Appellant's plea could not have been
entered into knowingly and voluntarily pursuant to the requirements of
Padilla and the law as it existed in the Fifth Circuit at the time because
Appellant received affirmative misadvice. Furthermore, Chaidez maintains
the right of immigrant defendants to use Padilla to challenge convictions
that were not final as of March 31, 2010. Even in the case of an immigrant
whose conviction became final before March 31, 2010, Chaidez preserves
the right of an immigrant to establish ineffective assistance under the Sixth
Amendment, at least in certain jurisdictions, if the immigrant can show she
was affirmatively misadvised regarding immigration consequences of the
criminal case, as in the case before us. Trial Counsel for Appellant not only
failed to inform her that the plea would make her deportable, she told
Brumant, Alicia– Appellant’s Brief 26
Appellant that the offense could be expunged from her record in seven years
and she would charge seven hundred dollars for the service. Trial Counsel
further explained that Appellant would not have a conviction.
It has already been established that affirmative misadvice such as the
advice Appellant was given violates the effective assistance of counsel
principle under the Sixth Amendment. This right extends to collateral
consequences, specifically parole eligibility, and immigration. See Santos-
Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008), United States v.
Kwan, 407 F.3d 1005 (9th Cir. 2005), United States v. Couto, 311 F.3d 179
(2nd Cir 2002), Hill v. Lockhart, 474 U.S. 52 (1985), James v. Cain, 56 F.
3d. 662 (5th Cir. 1995) and Kovacs v. United States, 744 F.3d 44 (2d Cir.
2014). 17 It should be noted that the two cases which may be viewed as
negative authority to this argument are Ex Parte De Los Reyes and U.S. v.
17
In Chaidez the Court held that Padilla’s rule was new for Teague purposes because the
almost unanimous consensus among lower courts, until Padilla, was that advice about
collateral consequences was categorically outside the Sixth Amendment. Chaidez v.
United States, 133 S. Ct. 1103, 1109 (2013). (Also see Chaidez at nn. 7-9). By Contrast
virtually all Courts held that affirmative misadvice on matters material to a guilty plea,
even about collateral consequences (including deportation), could give rise to a Sixth
Amendment violation. The Federal Circuits are divided on whether Chaidez’s non-
retroactivity rule extends to affirmative misadvice claims. The Second Circuit correctly
held that, notwithstanding Chaidez, the affirmative misadvice rule was so well
entrenched that a defendant could raise it on collateral review even after his conviction
became final. See Kovacs v. United States, 744 F.3d 44, 50 (2d Cir. 2014). On the other
side of the divide, the Seventh Circuit has held that the pre-Padilla state of the law
governing affirmative misadvice did not dictate Padilla’s outcome with respect to
affirmative misadvice cases. See Chavarria v. United States, 739 F.3d 360, 362 (7th Cir.
2013).
Brumant, Alicia– Appellant’s Brief 27
Amer. 18 In both of these cases, the defendants attempted to challenge their
convictions under Padilla but were not able to do so because the Court
applied the “new rule” issue under Teague. However, these two cases are in
contrast to the case of the Appellant because Appellant never received a
final conviction. Furthermore, De Los Reyes and Amer did not address
whether affirmative misadvice would still violate the established principles
of the Sixth Amendment. The 5th Circuit has not held that the retroactivity
issue in Chaidez precludes the remedies that are required when counsel
affirmatively misadvises the outcome of a plea. See Santos-Sanchez v.
United States, 548 F.3d 327 (5th Cir. 2008) (acknowledging the legitimacy
of Couto and Kwan but finding no affirmative misrepresentation). See also
United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995)
(“[T]he clear consensus is that an affirmative misstatement regarding
deportation may constitute ineffective assistance”). In the case before us,
Trial Counsel not only failed to inform Appellant that she would be
deported, she told Appellant that after 7 years Appellant could have the
offense expunged from her record and she would charge seven hundred
dollars for the procedure, and that Appellant would not have a conviction.
18
Ex Parte De Los Reyes, 392 S.W.3d 675 (Tex.Crim.App. 2013), U.S. v. Amer, 681
F.3d 211 (5th Cir. 2012), both cases held that Padilla did not apply retroactively to the
convictions resulting from a plea which rendered the defendants subject to mandatory
deportation.
Brumant, Alicia– Appellant’s Brief 28
This is a material misrepresentation. Therefore, Appellant’s case is
distinguishable as she received affirmative misadvice and should be
examined despite the holdings of De Los Reyes and Amer.
A. Noncitizens can continue to raise claims involving affirmative
“material misrepresentations.”
A Sixth Amendment challenge based on erroneous advice is arguably
not governed by the holding in Chaidez. The Chaidez Court explicitly
distinguished these claims from the claim at issue in Chaidez, referring to a
“separate rule for misrepresentations.” Chaidez v. United States, 133 S. Ct.
1103, 1112 (2013). A lawyer violates the Sixth Amendment when she
“affirmatively misrepresents her expertise or otherwise actively misleads her
client on any important matter, however related to a criminal prosecution.”
Id. This argument has had the greatest force in the Second, Ninth and
Eleventh Circuits, which the Court identified as recognizing this harm. 19
The Court’s focus was on circuits that had so held at the time of Ms.
Chaidez’s plea. The Fifth Circuit held after the time of Ms. Chaidez’s plea
19
See United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005); United States v. Couto, 311
F.3d 179 (2nd Cir. 2002); Downs-Morgan v. United States, 765 F.2d 1534 (11th Cir.
1985).
Brumant, Alicia– Appellant’s Brief 29
that affirmative misrepresentations regarding immigration consequences
could establish a claim for ineffective assistance. 20
In light of the holding in Chaidez, we would like to draw a distinction.
There was a “new” rule reached in Padilla in that the Strickland standard
applies to counsel when failing to advise a client of immigration
consequence. Padilla’s new rule according to Chaidez is confined to the
duty to inform of immigration consequences. It applies to no advice but it
does not change the obligation to give accurate advice; that is, affirmative
misadvice is not encompassed in the Chaidez retroactivity ruling. The new
rule is clear, as it is now a requirement under the Sixth Amendment for trial
counsel to inform an alien when a plea will result in immigration
consequences. However, it has already been an established right that
ineffective assistance of counsel does not satisfy the Sixth Amendment right
to counsel and is applicable to the states through the Fourteenth
Amendment. Cuyler v. Sullivan, 100 S. Ct. 1708 (1980). This right to
adequate assistance under the Sixth Amendment is not part of the “new rule”
noted above that was established by Padilla.
20
Santos-Sanchez v. United States, 548 F.3d 327 (5th Cir. 2008) (acknowledging the
legitimacy of Couto and Kwan but finding no affirmative misrepresentation). See also
United States v. Mora-Gomez, 875 F. Supp. 1208, 1212 (E.D. Va. 1995) (“[T]he clear
consensus is that an affirmative misstatement regarding deportation may constitute
ineffective assistance”).
Brumant, Alicia– Appellant’s Brief 30
Even if counsel might have had no initial duty to advise defendant of
the deportation consequence of his guilty plea, once counsel responded to
the court’s admonishment with volunteered advice, he became obligated to
provide the court and defendant with accurate information. Ex parte Arjona,
402 S.W.3d 312 (Tex. App.-Beaumont 2013), Ex parte Wei His Chien,
2014 WL 3697918, (Tex.App.-Hous.1 Dist). Affirmative misadvice by
counsel regarding a material issue that the plea hearing reflects was key to
the defendant’s plea decision, may constitute deficient performance. Ex
parte Arjona at 318. Therefore, the “new rule” reached in Padilla and
analyzed under Chaidez is not applicable to Appellant. Appellant was
affirmatively misadvised as to the consequences of her plea when counsel
told her that she could later expunge the offense after seven years from
Appellant’s record and informed Appellant what she would charge seven
hundred dollars for the service down the road, and further explained the she
would not have a conviction. However, such advice was not accurate
because it implied she would not be deported, first, because she would be
here in seven years, and second, because it implied that she would not have a
conviction upon which immigration authorities could remove her. 21
21
Deportation and removal are the same but current changes in the immigration law now
use the term “removal”. For purposes of this Writ, the terms are interchangeable.
Brumant, Alicia– Appellant’s Brief 31
IV. The decision reached in Chaidez applies to those who were
convicted prior to the holding in Padilla and as such, the
retroactivity bar is not applicable to Appellant—a Legal
Permanent Resident (LPR)—because she was given deferred
adjudication and successfully completed probation, therefore she
did not have a final conviction.
In Chaidez, the defendant filed a petition for “coram nobis” because it
was a way to collaterally attack a criminal conviction. Chaidez v. U.S., 133
S. Ct. 1103 (2013). Padilla v. Kentucky held that the Sixth Amendment
requires defense counsel to advise a defendant about the risk of deportation
arising from a guilty plea but Chaidez narrowed its application to
convictions that became final after Padilla was decided. Id. The Chaidez
Court makes it clear that its holding applies to final convictions. The “new
rule” bar that was decided in Chaidez was based on Teague v. Lane . The
Court in Chaidez cited the language from Teague that gave way to the
holding “Under Teague, a person whose conviction is already final may not
benefit from a new rule of criminal procedure on collateral review. A case
announces a new rule if the result was not dictated by precedent existing at
the time the defendant’s conviction become final.” Chaidez, 133 S. Ct. 1103,
citing Teague, 489 U.S., at 301, 109 S. Ct. 1060.
The use of the term “conviction” in both Chaidez and Teague
explicitly shows that this rule is only applicable to final convictions. In light
Brumant, Alicia– Appellant’s Brief 32
of the holding in both cases, nothing indicates that offenses that are given
deferred adjudication which are followed by the successful completion of
probation, for which no conviction ultimately results, are meant to be treated
as convictions. Therefore, the Chaidez holding should not prevent the
assertion of ineffective assistance under Padilla when there is no final
conviction.
A. In the State of Texas, if you are a U.S. citizen who has been given
deferred adjudication for an offense and who successfully
completes probation, you will not be considered to have a
conviction. However, if you are a Legal Permanent Resident who
has also been given deferred adjudication and who successfully
completes probation, you may be considered to have a conviction
pursuant to State v. Guerrero. This is a violation of the Equal
Protection and Due Process Clauses of the 14th Amendment
because this is precisely the type of harm those consitutional
clauses were meant to preclude.
In State v. Guerrero the Texas Court of Criminal Appeals held that
the defendant was not entitled to admonishments regarding collateral
deportation consequences of entering a guilty plea for possession of less than
two ounces of marijuana before he could waive his right to counsel. In
addition, the Court decided his guilty plea could be recognized as intelligent
and voluntary since defendant was an undocumented immigrant who was
deportable for that reason alone, and thus the prospect of removal, and
therefore the ineffectiveness of his trial attorney, could not have reasonably
Brumant, Alicia– Appellant’s Brief 33
affected his decision to plea guilty. State v. Guerrero, 400 S.W.3d 576, 588
(Tex. Crim. App. 2013).
In Guerrero, the Court noted that, the “Texas deferred-adjudication
statute was intended to allow one to rehabilitate and have charges dismissed.
In the eyes of the Texas legislature, those who have suffered a single fall
from grace need not spend an entire life saddled with all the collateral
consequences a criminal “conviction” carries with it. However, Congress is
not required to recognize the same concepts of rehabilitation and
forgiveness, as do the many states that do not consider “deferred
adjudication” a ‘conviction.’ And it has explicitly rejected any such notion
in the context of immigration law.” Id. at 587.
However, this should not be applicable in the case before us because
the Appellant here was a legal permanent resident without any other offenses
on her record. But for Appellant’s guilty plea for which she was given
deferred adjudication, she would not have been deportable. This fact in our
case is in direct contrast to the facts surrounding the defendant in Guerrero,
who was an undocumented immigrant and subject to deportation based on
that status alone.
Brumant, Alicia– Appellant’s Brief 34
It would be a violation of the Fourteenth Amendment if Guerrero
were to apply to Appellant. If we were to only apply the “Guerrero
standard” to those who are undocumented and were already deportable,
prejudice could not be shown and there would be no Fourteenth
Amendment, Equal Protection violation or it would be a harmless error. The
Guerrero standard should only apply to those aliens that were already
removable due to the fact they were undocumented, as the defendant in the
Guerrero case. If the same standard is applicable to those aliens who were
not deportable but for the deferred adjudication offense, then it would
violate the Fourteenth Amendment. This is because the Equal Protection
Clause of the Fourteenth Amendment forbids classes of people, such as
aliens, or Legal Permanent Residents, to be treated differently under the law
or denied equal due process, based on their status. This holds particularly
true to our case because the Appellant was not deportable but for the offense
that resulted in deferred adjudication. 22
22
While this difference is admitted, the statement by the Court of Criminal Appeals that
Congress is not required to recognize the same concepts as the State of Texas, is
misapplied in this context because it directly challenges the mandate of the U.S.
Supreme Court that no State pursuant to the 14th Amendment shall apply its laws,
including criminal laws, differently among people subject to its jurisdiction on the basis
of nationality or alienage and at the end of the day the difference pointed out in this case
is irrelevant. While discussing the difference between an alien that is deportable
independent of the conviction, as the one in Guerrero, and an alien such as Mrs.
Brumant, who is deportable or inadmissible as a result of the conviction, it is nonetheless
Brumant, Alicia– Appellant’s Brief 35
Section one of the Fourteenth Amendment states: “all persons born or
naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty or property, without due process of law; nor deny any
person within its jurisdiction the equal protection of the laws.” U.S. Const.
Amend. 14.
The plain meaning of the Fourteenth Amendment is clear. No State
shall deprive any person of life, liberty or property without due process of
law; nor deny any person within its jurisdiction equal protection of the laws.
Id. “Whatever his status under the immigration laws, an alien is surely a
“person” in any ordinary sense of that term, and thus, is entitled to protection
under equal protection laws.” Plyler v. Doe, 102 S. Ct. 2382 (1982).
Furthermore, with respect to suspect classifications such as aliens, it is
appropriate to enforce the mandate under Equal Protection and require a
State to demonstrate that its classification has been precisely tailored to
serve a compelling governmental interest. “For Equal Protection purposes,
a constitutional principle that States cannot differentiate among its residents on the basis
of alienage. The arguments here advanced should not be construed as suggesting that the
principle established in Guerrero is constitutionally defendable.
Brumant, Alicia– Appellant’s Brief 36
the Supreme Court cannot ignore significant social costs borne by our nation
when select groups are denied the means to absorb the values and skills
which our social order rests.” Id.
If the holding in Guerrero were to apply to those aliens who received
deferred adjudication and would otherwise not be deportable but for that
offense, it would violate the constitution. This is because deferred
adjudication is applied differently to citizens versus non-citizens. To allow a
procedure to be rehabilitative for citizens and not for aliens violates equal
protection under the Fourteenth Amendment. Declaring that “deferred
adjudication” shall be treated as a “conviction” for the purposes of
immigration laws and not a conviction in any other context, does not serve a
compelling interest and we cannot ignore when select social groups are
targeted in violation of the Fourteenth Amendment.
The argument made in Guerrero supporting a new treatment of
“deferred adjudication” is as follows: 8 U.S.C. § 1101(a)(48)(A) (as
amended), applied and this statute broadened the definition of the term
“conviction” to include deferred adjudication so that “aliens who have
clearly been guilty of criminal behavior and whom Congress intended to be
considered ‘convicted’” could no longer escape the immigration
Brumant, Alicia– Appellant’s Brief 37
consequences normally attendant upon a conviction.” H.R. Conf. Rep. No.
828, 104th Cong., 2nd Sess. 1996. This is problematic because it applies a
civil definition of conviction in the criminal context.
The language cited by the Court of Criminal Appeals does not justify
its deviation from the mandate under the Fourteenth Amendment because
such justification is not an amendment to the constitution that meets all the
requirements of Article V of the constitution. This is a clear violation of the
Equal Protection Clause because it treats aliens with offenses that resulted in
deferred adjudication as if they had a final conviction, while treating U.S.
citizens who receive the same deferred adjudication as if they do not have a
final conviction. The Guerrero decision treats similarly situated individuals
differently based on alienage. The State of Texas cannot constitutionally
apply its criminal laws differently to U.S. citizens, LPRs, or any other alien.
See Yick Wo v. Hopkins, 118 U.S. 356 (1886). This is a cardinal rule of
constitution comport. And while Guerrero is precedent and binding
authority for this court, the U.S. Constitution is also binding authority on
this court.23
23
One of the reasons for congress’s authority to create and change immigration law is
that the Supreme Court and congress have consistently perceived immigration as a civil
Brumant, Alicia– Appellant’s Brief 38
Therefore, in order to avoid constitutional conflict, Guerrero should
be interpreted alternatively when applied to aliens who would not be subject
to deportation but for the offense in which they received deferred
adjudication.24 There is more than one way of interpreting Guerrero that
could relieve the holding from being in direct conflict with the Fourteenth
Amendment. It should be emphasized that the defendant in Guerrero was
still subject to removability simply for the fact that he was undocumented.
The holding in Guerrero cannot be applied to Legal Permanent Residents
without violating the Equal Protection Clause because to do so would treat
aliens with offenses that resulted in deferred adjudication differently than
U.S. citizens with the same offenses which also resulted in deferred
adjudication. This difference is extreme and condemns any alien with a
blemish on their criminal record that otherwise would not be a final
conviction and subjects them to deportation. Therefore, Appellant’s offense
that resulted in deferred adjudication should not be considered a “final
conviction” when it is not even a “conviction”. “In reviewing a case in
which federal constitutional rights are asserted, the United States Supreme
matter and not criminal, and the Supreme Court has repeatedly stated that the prohibition
against ex post facto law only applies to criminal law.
24
An alien who is mandatorily deportable as a result of a conviction is prejudiced when
he declines to go to trial because his attorney did not tell him that he would be
mandatorily deportable. The holding in Guerrero is based on the fact that in that case
there was no prejudice, but prejudice is present in this case.
Brumant, Alicia– Appellant’s Brief 39
Court must inquire not merely whether those rights have been denied in
express terms but also whether they have been denied in substance and
effect, and must review independently both legal issues and factual matters
with which they are commingled.” Oyama v. California, 68 S. Ct. 269
(1948). For these reasons, the Sixth Amendment should protect Appellant
and not treat her differently simply because she is an alien and a Legal
Permanent Resident who received deferred adjudication. If Appellant’s
offense is to be treated as a conviction, it would violate the Equal Protection
clause of the Fourteenth Amendment because the State of Texas would be
applying its laws differently among equally situated residents of the State. 25
TEX. CRIM. PROC. CODE art. 42.12 § 5 (c) states that “[o]n
expiration of a community supervision period imposed under subsection (a),
if the judge has not proceeded to adjudication of guilt, the judge shall
dismiss the proceedings against the defendant and discharge him….a
dismissal and discharge under this section may not be deemed a conviction
for the purposes of disqualifications or disabilities imposed by law for
conviction of an offense.” When a judge discharges a defendant from
25
In the classic children’s book by Dr. Seuss, Horton Hears a Who!, we were taught as
children that a person is a person no matter how small. DR. SUESS, HORTON HEARS A
WHO! (Random House 1954). These are values reflected in the constitution that we
should not ignore.
Brumant, Alicia– Appellant’s Brief 40
Deferred Adjudication, he has no discretion but must dismiss the
proceedings against the defendant who is left with no conviction. Texas v.
Juvrud, 187 S.W.3d 492 (Tex. Crim. App. 2006). In this case, Appellant was
placed on Deferred Adjudication and community supervision and
discharged, so she did not have a final conviction. Price v. State, 866 S.W.
2d 606, 611 (Tex. Crim. App. 1993). When a court grants Deferred
Adjudication probation there has been no conviction. Busby v. State, 984
S.W.2d 627, 629 (Tex. Crim. App. 1998). Defendant may be convicted at
the moment that he violates probation or the judge may dismiss the
proceedings against him leaving him with no conviction if he successfully
completes probation. Jordan v. State, 36 S.W.3d 871, 872, 876 (Tex. Crim.
App. 2001). The holdings in Chaidez v. United States and Ex parte De Los
Reyes do not apply to this case because each of these cases require a final
conviction for Padilla retroactivity issue to apply. Appellant does not have a
final conviction according to Texas law. Chaidez v. United States, 133 S. Ct.
1103, 1107 (2013) [states that when the court announces a “new rule,” a
person whose conviction is already final may not benefit from the decision
in a habeas or similar proceeding subject to two exceptions]; see also Ex
parte De Los Reyes, 392 S.W.3d 675, 678 (Tex. Crim. App. 2013). The
Texas Court of Criminal Appeals has taken the position that although
Brumant, Alicia– Appellant’s Brief 41
deferred adjudication is not a conviction under Texas law it is a final
conviction for purposes of Immigration law. Texas will apply immigration
law in the context of a writ of habeas governed by the code of criminal
procedure. State v. Guerrero, 400 S.W.3d 576, 587-588 (Tex. Crim. App.
2013). The flaw with this reasoning is that the definition of a final
conviction for immigration purposes does not control what constitutes a final
conviction for habeas corpus under the code of criminal procedure. The
United States Congress has almost unfettered power in matters of
immigration precisely because the U.S. Supreme Court has stated that
immigration and deportation proceedings are civil in nature. See Galvan v.
Press, 347 U.S. 522 (1954) and Harisiades v. Shaugnessy, 342 U.S. 580
(1952). If now State Courts begin to apply immigration law to their criminal
proceedings, the long standing doctrine of the U.S. Supreme Court would be
out the window, and the U.S. Const. art. I § 9 forbidding ex post facto
enactments would be a major restriction on Congress’ ability to implement
immigration law. Pursuant to the longstanding doctrine of the U.S. Supreme
Court, deportation is civil rather than criminal. The civil immigration laws
cannot control the criminal process.
Brumant, Alicia– Appellant’s Brief 42
The Fourteenth Amendment does not allow States to “deprive any
person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.” 26 Under
State v. Guerrero, similarly situated individuals would benefit from the
Padilla ruling merely by not being aliens. In Texas, a deferred adjudication
is not a final conviction for Padilla purposes unless you are an alien. For this
reason State v. Guerrero is contrary to basic constitutional concepts of due
process and equal protection.
B. The “new rule vs. old rule” threshold question of Teague is not
applicable to an ineffective assistance of counsel claim that is the
functional equivalent of a direct appeal pursuant to the clearly
established precedent in Martinez v. Ryan and Trevino v. Thaler.
In Martinez v. Ryan, 132 S. Ct. 1309 (2012), the Supreme Court
concluded, “[w]here, as here, the initial-review collateral proceeding is the
first designated proceeding for a prisoner to raise a claim of ineffective
assistance at trial, the collateral proceeding is in many ways the equivalent
of a prisoner’s direct appeal as to the ineffective assistance claim.” Martinez
v. Ryan at 1317. In Trevino v. Thaler, 133 S. Ct. 1911(2013), the Supreme
Court applied the Martinez exception to a Texas case despite the fact that the
theory of the ineffective assistance of counsel claim could have been brought
26
U.S. CONST. amend. XIV § 1.
Brumant, Alicia– Appellant’s Brief 43
on direct appeal, but the opportunity was not meaningful. 27 In Trevino v.
Thaler, the Supreme Court noted, “[t]he structure and design of the Texas
system in actual operation, however, make it ‘virtually impossible’ for an
ineffective assistance claim to be presented on direct review. See Robinson
v. State, 16 S.W.3d 808, 811 (Tex. Crim. App. 2000). 28 After this notation
the court concludes that the Martinez exception applies. Considering that in
Texas the collateral proceeding as to Ineffective Assistance of Counsel
Claim is the equivalent to a direct appeal, this case does not present a “new
rule v. old rule” problem under Teague. The logic of Griffith v. Kentucky,
479 U.S. 314 (1987) that new rules apply to all cases not yet final on direct
appeal applies here. As such, this court should follow the precedent of the
Supreme Court.
C. The Power vested in the Supreme Court is to interpret the
constitution and laws of the United States. Teague v. Lane is not
meant to apply to new holdings based on the United States
Constitution because the Supreme Court is not a “super
legislature.” 29
27
See Rebecca Sharpless, et. al., Teague New Rules Must Apply in Initial-Review
Collateral Proceedings: The Teachings of Padilla, Chaidez, and Martinez, 67 Univ. of
Miami L. Rev. (2013).
28
Trevino v. Thaler, 133 S. Ct. 1911, 1915 (2013), citing Robinson v. State Robinson v.
State, 16 S.W.3d 808, 811 (Tex.Crim.App. 2000).
29
We are aware that this statement is contrary to the holding of Chaidez but we still would like to advocate
the plausibility of such argument to preserve error.
Brumant, Alicia– Appellant’s Brief 44
Teague v. Lane, 489 U.S. 288 (1989), did not present, and the
Supreme Court did not resolve, the question of whether its retroactivity
regime applies to post-conviction filings challenging federal, as opposed to
state, convictions. See Teague, 498 U.S. at 327 n.1 (Brennan, J.,
dissenting)(noting that the Court “does not address whether the rule it
announces today extends to claims brought by federal, as well as state,
prisoners”). Years later, the Supreme Court expressly reserved this issue.
Danforth v. Minnesota, 128 S. Ct. 1029, 1034 (2008). Teague’s bar against
the retroactive application of new constitutional rules of criminal procedure
rests on two bases: comity and finality. Teague, 489 U.S. at 308. Neither of
these interests justifies applying Teague to a person seeking collateral relief
from a federal conviction due to ineffective assistance of counsel. Comity
considerations are absent when a federal court is reviewing a federal
conviction and Strickland’s highly deferential framework already
accommodates the finality interest at stake when a court adjudicates an
ineffective-assistance challenge to a federal conviction of collateral
review. 30 Teague’s non-retroactivity principle relies on a critical assumption
that habeas petitioners have already had a full and fair opportunity to raise
their constitutional claims. Teague, 489 U.S. at 308-309. This assumption
30
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Brumant, Alicia– Appellant’s Brief 45
does not apply to initial Padilla-type challenges to federal convictions. In
Massaro v. United States, 123 S. Ct. 1690, 1698 (2003), the Supreme Court
instructed that ineffective-assistance challenges to federal convictions must
be raised for the first time on collateral review, at least when they depend on
evidence outside the trial record. Padilla claims fit that mold. Specifically,
trial records generally do not include evidence as to whether defense
attorneys advised their clients that pleading guilty would have resulted in
deportation consequences. See Padilla, 130 S. Ct. at 1483. Even in the rare
instances in which a trial record does include such information, it does not
provide evidence necessary to show, as required by the prejudice prong of
the Strickland/Padilla test, that if the defendant had received such advice,
she would have not have pled guilty. Id. Accordingly, Padilla-type claims
must be litigated in what the Supreme Court has called “initial-review
collateral proceedings.” Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). As
such, there is no basis for applying Teague in this context.
Teague v. Lane was meant to correct the problem that arguably the
Supreme Court acts as a legislature when it chooses which laws are new and
old and which should apply retroactively or not, it was not meant to give the
Supreme Court power to decide when constitutionally interpreted
Brumant, Alicia– Appellant’s Brief 46
protections should begin or end. If the U.S. Supreme Court has the power to
interpret what the constitution meant and whether it could be applied
retroactively or not based on whether the rule is new or old, it would be
acting as a constitutional convention. Teague did not give the Supreme
Court the power to act as a constitutional convention. See Article III of the
U.S. Constitution. When the U.S. Supreme Court announces a rule
regarding constitutional rights it is in a very narrow sense only recognizing a
constitutional right that was always there, because article III of the U.S.
Constitution does not empower the U.S. Supreme Court to act as a
legislature much less as a Constitutional Convention. In my view, I
respectfully disagree with the concept that the United States Supreme Court
can make Constitutional decisions such as the one involving the Sixth
amendment in Padilla and classify it as a “new or old rule”. Once the U.S.
Supreme Court has made a constitutional decision the classification of new
or old should have no impact. Rather, the fact that it is a constitutional
decision should mean that only in the rarest of circumstances the decision
would not be applied retroactively.
V. This Writ shall be considered an “initial” Writ of Habeas Corpus,
because a dismissal and denial of a Writ are treated differently,
and therefore the Trial Court maintained the power to review this
Brumant, Alicia– Appellant’s Brief 47
Writ since the first Writ was dismissed without a hearing on its
merits.
A “denial” of a Writ means the court addressed and rejected the merits
of a particular claim or determined that its merits are not cognizable. A
“dismissal” means the court declined to consider the claim for reasons
unrelated to the merits. Ex Parte Grigsby, 137 S.W.3d 673, 674 (Tex. Crim.
App. 2004), Ex Parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997).
The Writ filed on behalf of the Appellant on July 13, 2013, was dismissed.
Subsequent writ applications (i.e., those filed after final disposition of an
initial application challenging the same conviction) will get the prisoner
nothing unless he meets the § 4 exceptions. However, where the initial
application did not challenge the conviction, a subsequent application doing
so will be treated as an initial application. Ex parte Evans, 964 S.W.2d 643
(Tex. Crim. App. 1998) (subsequent writ application not barred by statute
because prior application did not involve claim challenging his conviction).
See also Ex parte McPherson, 32 S.W.3d 860 (Tex. Crim. App. 2000)
(application seeking out-of-time appeal does not bar subsequent application
Brumant, Alicia– Appellant’s Brief 48
challenging conviction)31; Evans, supra (application challenging prior parole
revocation does not bar subsequent application challenging conviction).
The initial Writ for Habeas Corpus in the case before us was filed on
July 17, 2013, and was dismissed without any consideration or a hearing on
the merits. Therefore, the Writ that was dismissed never challenged the
conviction and, as such, this Writ shall be considered the initial Writ.
Appellant’s prior Writ was dismissed. However, when the prior Writ
was filed, the rule reached under Padilla could be applied retroactively
because Chaidez had not been decided. Furthermore, the holding of
Tanklevskaya was still good law and had not been overturned. 32 The first
Writ was dismissed and as such, this Writ does not count as a second Writ,
because the first Writ did not reach the merits of the case. However, even if
this Writ is to be considered a second Writ, under 11.072 § (9)(a), the Writ
may still be filed and considered if it contains sufficient specific facts
31
An initial writ of habeas corpus seeking an out-of-time appeal does not constitute a
challenge to the conviction and does not bar subsequent writ applications. Ex Parte
Moussazadeh, 361 S.W.3d. 684 (Tex.Crim.App. 2012).
32
Ex parte Tanklevskaya, 361 S.W.3d 86 (Tex. App.—Houston 1st Dist. 2011), held that
plea counsel’s failure to specifically inform defendant that a guilty plea would render her
presumptively inadmissible upon leaving and attempting to re-enter the United States
constituted deficient performance and defendant was prejudiced by the deficient
performance and that trial court’s statutory admonishment prior to accepting guilty plea
did not cure the prejudice. This was good law until 2013, when the judgment was
vacated. See Ex parte Tanklevskaya, 393 S.W.3d 787 (Crim. App. Tex. 2013).
Brumant, Alicia– Appellant’s Brief 49
establishing that the current claims and issues have not been and could not
have been presented previously because the factual or legal basis for the
claim was unavailable on the date the Appellant filed the previous
application. The arguments of this Writ are based on new developments of
law that did not exist at the time the dismissed Writ was filed. At the time
the dismissed Writ was filed Chaidez had not yet been decided. Furthermore,
in the State of Texas Padilla had been applied retroactively. See Ex parte
Tanklevskaya, 361 S.W.3d 86 (Tex. App.—Houston 1st Dist. 2011), later
vacated by Ex parte Tanklevskaya, 393 S.W.3d 787 (Crim. App. Tex. 2013).
Therefore, this Writ may also be considered based upon Tex. Crim. Proc.
Code Ann. art. 11.072 § (9) (Vernon 2012).
VI. Prayer
Accordingly, Appellant has established that his plea counsel's
representation constituted deficient performance under the Sixth
Amendment, Strickland , Padilla v. Kentucky, Cuyler v. Sullivan,33 and
Thompson v. State, and that, but for counsel's deficient advice, she would not
have pleaded guilty. Furthermore, due to plea counsel's ineffective
33
Cuyler v. Sullivan, 100 S. Ct. 1708 (1980).
Brumant, Alicia– Appellant’s Brief 50
assistance, Appellant involuntarily pleaded guilty. Therefore, habeas corpus
relief should be GRANTED.
Respectfully submitted,
/s/ Roberto M. Hinojosa
ROBERTO M. HINOJOSA
Texas Bar No. 24043730
2020 Southwest Fwy. Ste. 220
Houston, Texas 77098
Tel. (713)665-5060
Fax. (713)520-8808
Attorney for Appellant,
Alicia Brumant
Brumant, Alicia– Appellant’s Brief 51
CERTIFICATE OF SERVICE
I certify that on June 10, 2015 a true and correct copy of Appellant’s
brief was served via electronic filing e-service to each person listed below
by the method indicated.
/s/ Roberto M. Hinojosa
ROBERTO M. HINOJOSA
Via eService Only
ALAN CURRY
Chief Prosecutor, Appellant Division
Harris County
1201 Franklin, Suite 600
Houston, TX 77002
Tel. (713) 755-5800
Fax (713) 755-5809
Attorney for Appellee,
The State of Texas
Brumant, Alicia– Appellant’s Brief 52