Ex Parte Yekaterina Tanklevskaya ( 2013 )

Opinion issued August 27, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00627-CR
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EX PARTE YEKATERINA TANKLEVSKAYA, Applicant
On Appeal from the County Criminal Court at Law Number 11
Harris County, Texas
Trial Court Case No. 1686832
MEMORANDUM OPINION ON REMAND FROM
THE COURT OF CRIMINAL APPEALS
In 2009, applicant, Yekaterina Tanklevskaya, pleaded guilty to the Class B
misdemeanor offense of possession of less than two ounces of marijuana, and the
trial court assessed punishment at four days’ confinement in the Harris County Jail
and a six-month suspension of applicant’s driver’s license.1 Applicant did not
appeal her conviction. Applicant, a permanent legal resident, then left the country
to visit relatives. She was detained by Immigration and Naturalization Services
officials upon her return. In 2010, shortly after the United States Supreme Court
decided Padilla v. Kentucky, applicant filed a petition for writ of habeas corpus,
arguing that her trial counsel had rendered ineffective assistance when he failed to
inform her of the specific adverse immigration consequences of her guilty plea,
namely, that when she returned from her planned trip abroad she would be
inadmissible and subject to removal proceedings. The trial court denied habeas
corpus relief.
We originally reversed the judgment of the trial court and held, among other
things, that Padilla v. Kentucky should be applied retroactively. See Ex parte
Tanklevskaya, 361 S.W.3d 86, 95 (Tex. App.—Houston [1st Dist.] 2011)
(“Tanklevskaya I”), vacated, 393 S.W.3d 787 (Tex. Crim. App. 2013) (per curiam).
The United States Supreme Court subsequently held, in Chaidez v. United States,
133 S. Ct. 1103 (2013), that Padilla does not apply retroactively to cases on
collateral review, and the Court of Criminal Appeals adopted this holding in Ex
parte De Los Reyes, 392 S.W.3d 675 (Tex. Crim. App. 2013). The Court of
Criminal Appeals then vacated our judgment in Tanklevskaya I and remanded the
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(1) (Vernon 2010).
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case for us to consider whether the trial court properly denied habeas corpus relief
in light of De Los Reyes. See Ex parte Tanklevskaya, 393 S.W.3d 787 (Tex. Crim.
App. 2013) (per curiam) (“Tanklevskaya II”).
We affirm.
Background
In April 2009, applicant was charged with the misdemeanor offense of
possession of less than two ounces of marijuana. Tanklevskaya I, 361 S.W.3d at
89. On the advice of her plea counsel, applicant pleaded guilty to the offense. Id.
The trial court accepted the guilty plea and assessed punishment at four days’
confinement in the Harris County Jail and a six-month suspension of applicant’s
driver’s license. Id. Applicant did not appeal her conviction. Id. Shortly after her
guilty plea, applicant traveled to Germany to visit her father. Id. Upon her return,
immigration officials detained applicant in Memphis, confiscated her permanent
resident card, and allowed her to return to Houston pending the initiation of
removal proceedings. Id. Immigration officials subsequently initiated removal
proceedings against applicant on the basis that her conviction rendered her
“inadmissible” to the United States. See 8 U.S.C.S. § 1182(a)(2)(A)(i)(II) (2008)
(stating that alien convicted of violating any state law relating to controlled
substances is inadmissible).
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On May 27, 2010, applicant filed a habeas corpus petition in the trial court,
alleging that her guilty plea was involuntary because her plea counsel rendered
ineffective assistance when he did not advise her of the specific immigration
consequences of her guilty plea, as required by the Supreme Court’s decision in
Padilla. See 559 U.S. 356, 130 S. Ct. 1473 (2010). At the hearing on applicant’s
habeas petition, the parties stipulated that plea counsel informed applicant of the
“general immigration consequences to a guilty plea, but he did not specifically tell
her that, upon leaving and attempting to return to the United States, she would be
presumptively inadmissible.” Tanklevskaya I, 361 S.W.3d at 90. Applicant
testified that, had she known that she would be presumptively inadmissible upon
returning to the United States, she “would [not] have accepted the plea as [she]
did.” Id. at 90–91. The trial court denied habeas corpus relief. Id. at 91.
We initially determined that Padilla should be applied retroactively to cases
on collateral review, that applicant’s inadmissibility upon returning to the United
States was “presumptively mandatory,” and that this adverse immigration
consequence was clear “from reading the inadmissibility and removal statutes.” Id.
at 95, 97. We ultimately held that applicant established that her plea counsel
rendered ineffective assistance, and we granted habeas corpus relief. Id. at 99.
The State then filed a petition for discretionary review. While that petition
was pending before the Court of Criminal Appeals, the United States Supreme
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Court decided Chaidez in February 2013 and held that Padilla should not be
applied retroactively to cases on collateral review. 133 S. Ct. at 1111, 1113. The
Court of Criminal Appeals adopted this holding in De Los Reyes. 392 S.W.3d at
679. That same day, the Court of Criminal Appeals vacated our judgment in
Tanklevskaya I and remanded the case to us to consider in light of Chaidez and De
Los Reyes. See Tanklevskaya II, 393 S.W.3d at 787.
Retroactivity of Padilla v. Kentucky
In her habeas corpus petition, applicant sought relief from her prior
conviction on the sole basis that, pursuant to Padilla, her plea counsel rendered
ineffective assistance when he did not inform her of the specific adverse
immigration consequences of her guilty plea, namely, that her conviction for
possession of less than two ounces of marijuana made her presumptively
inadmissible and subject to removal from the United States. See 8 U.S.C.S.
§ 1182(a)(2)(A)(i)(II).
In Padilla, the Supreme Court noted that deportation is “uniquely difficult to
classify as either a direct or a collateral consequence” of a criminal conviction and
that “[t]he collateral versus direct distinction is thus ill-suited to evaluating a
Strickland [v. Washington]2 claim concerning the specific risk of deportation.”
2
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), sets
out the general standard of proof for ineffective assistance of counsel claims in a
criminal case.
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130 S. Ct. at 1482. The Court concluded that professional advice concerning
deportation “is not categorically removed from the ambit of the Sixth Amendment
right to counsel,” and, therefore, Strickland applied to Padilla’s claim for relief. Id.
The Supreme Court ultimately held in Padilla that trial counsel must inform his
client whether his plea carries a risk of deportation. See id. at 1486.
The Court did not address the question of whether its holding in Padilla
applied retroactively, such that defendants whose convictions were already final at
the time it issued its opinion could seek relief on this basis in a collateral
proceeding. The Supreme Court settled this question in Chaidez. 133 S. Ct. at
1113; see also De Los Reyes, 392 S.W.3d at 678–79 (applying Chaidez); Ibarra v.
State, No. 01-12-00292-CR, 2013 WL 1163967, at *2 (Tex. App.—Houston [1st
Dist.] Mar. 21, 2013, no pet. h.) (same).
In Chaidez, the Supreme Court noted that, under its prior decision in Teague
v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989), the question of whether its criminal
procedure decisions are retroactive “turn[s] on whether they are novel.” 133 S. Ct.
at 1107. When the Court announces a “new rule,” a person whose conviction is
already final may not benefit from application of that rule in a collateral
proceeding. Id. A case announces a new rule “when it breaks new ground or
imposes a new obligation,” such that “the result was not dictated by precedent
existing at the time the defendant’s conviction became final.” Id. (quoting Teague,
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489 U.S. at 301, 109 S. Ct. at 1070) (emphasis in original). A holding is not so
dictated “unless it would have been ‘apparent to all reasonable jurists.’” Id.
(quoting Lambrix v. Singletary, 520 U.S. 518, 527–28, 117 S. Ct. 1517, 1525
(1997)). On the other hand, a case does not announce a new rule “[when] it ‘[is]
merely an application of the principle that governed’ a prior decision to a different
set of facts.” Id. (quoting Teague, 489 U.S. at 307, 109 S. Ct. at 1073).
The Supreme Court explained in Chaidez that Padilla was more than just an
application to a new set of facts of Strickland’s general test for determining
whether trial counsel was constitutionally ineffective. Id. at 1108. In Hill v.
Lockhart, 474 U.S. 52, 106 S. Ct. 366 (1985), the Court had “explicitly left open”
the question of whether trial counsel’s “advice concerning a collateral consequence
must satisfy Sixth Amendment requirements.” Id. In Padilla, the Court “answered
a question about the Sixth Amendment’s reach that [it] had left open,” and, thus,
no precedent of the Supreme Court dictated Padilla’s specific conclusion rejecting
the “categorical approach” to collateral consequences and holding that trial counsel
has an obligation to inform his clients of the risk of adverse immigration
consequences. Id. at 1110–11; see also De Los Reyes, 392 S.W.3d at 679
(“[W]hen the Supreme Court handed down Padilla . . . . [I]t broke new ground and
imposed a new obligation.”). The Court thus announced a “new rule” in Padilla,
and “defendants whose convictions became final prior to Padilla therefore cannot
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benefit from its holding.” Chaidez, 133 S. Ct. at 1111, 1113; Ibarra, 2013 WL
1163967, at *2 (“Because Padilla announced a ‘new rule,’ it is not retroactive and
appellant may not now avail himself of the decision on collateral review.”). In De
Los Reyes, the Court of Criminal Appeals noted that it had the ability to “accord
retroactive effect to Padilla as a matter of state habeas law.” 392 S.W.3d at 679
(citing Danforth v. Minnesota, 552 U.S. 264, 275, 128 S. Ct. 1029, 1038 (2008)).
The court declined to do so, however, and instead decided to follow Chaidez’s
holding that Padilla does not apply retroactively.
Here, applicant pleaded guilty in 2009 to the offense of possession of less
than two ounces of marijuana, and she did not appeal her conviction. This
conviction thus became final before the Supreme Court decided Padilla. Because
Padilla does not apply retroactively, applicant cannot rely on Padilla in a collateral
proceeding to argue that her plea counsel rendered ineffective assistance. See
Chaidez, 133 S. Ct. at 1113 (“Under Teague, defendants whose convictions
became final prior to Padilla therefore cannot benefit from its holding.”); De Los
Reyes, 392 S.W.3d at 679 (“Applicant may not rely on Padilla in arguing that he
was denied effective assistance of counsel.”); Ibarra, 2013 WL 1163967, at *3
(stating that “appellant may not raise a Padilla issue by way of a collateral attack
on the judgment”).
8
In her reply brief filed before original submission, applicant argued that the
State waived the issue of Padilla’s retroactive effect because it did not argue that
before the trial court as a basis for denying habeas corpus relief but instead raised it
for the first time on appeal. We disagree.
General rules of error preservation state that the complaining party must
preserve error in the trial court by bringing the complaint to the trial court’s
attention at a time when the trial court can correct the error. See, e.g., Pena v.
State, 285 S.W.3d 459, 463–64 (Tex. Crim. App. 2009). This is a burden placed
upon the “losing” party in the trial court, which, in this case, is applicant. See State
v. Rhinehart, 333 S.W.3d 154, 160 (Tex. Crim. App. 2011) (“[T]he State, as the
losing party in the trial court, failed to preserve the claims that it presented for the
first time on appeal in the court of appeals.”). In this situation, the State, the
“winning” party in the trial court, had no such burden to present its argument to the
trial court that Padilla should not be applied retroactively. See Vennus v. State,
282 S.W.3d 70, 74 (Tex. Crim. App. 2009) (“[T]he State won in the trial court, and
‘ordinary notions of procedural default’ did not prevent it from raising the invited
error claim on appeal as a basis to affirm the trial court’s ruling denying
appellant’s suppression motion.”) (quoting Hailey v. State, 87 S.W.3d 118, 121–22
(Tex. Crim. App. 2002)).
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Applicant points to no authority holding otherwise. Indeed, Texas courts
have repeatedly held that a trial court’s decision should be upheld if it is correct on
any theory of law applicable to the case and supported by the record. See, e.g.,
Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011) (stating that appellate
court will not disturb trial court’s evidentiary ruling if ruling is correct on any
theory of law applicable to ruling, even if trial court gave wrong reason for correct
ruling); Mahaffey v. State, 316 S.W.3d 633, 637 (Tex. Crim. App. 2010) (holding
that State could permissibly make new argument in support of trial court’s ruling
for first time on appeal because “an appellate court will uphold the trial court’s
ruling if that ruling is ‘reasonably supported by the record and is correct on any
theory of law applicable to the case’”) (quoting State v. Dixon, 206 S.W.3d 587,
590 (Tex. Crim. App. 2006)).
We overrule applicant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Bland.
Do Not Publish. TEX. R. APP. P. 47.2(b).
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