New Mexico Supreme Court on Chaidez: Ramirez v. State

"In State v. Paredez, 2004-NMSC-036, ¶ 19, 136 N.M. 533, 101 P.3d 799, we held that a criminal defense attorney who represents a noncitizen client “must advise that client of the specific immigration consequences of pleading guilty” to pending charges. An attorney’s failure to do so will be ineffective assistance of counsel if the client is prejudiced. Id. Ramirez pleaded guilty in 1997 and now asserts that his attorney did not advise him about any immigration consequences of his pleas. The question in this case is whether our holding in Paredez applies retroactively and, if it does, whether Ramirez has a claim for ineffective assistance of counsel that could justify withdrawal of his pleas.

We hold that Paredez applies retroactively to 1990, the year that this Court began to prohibit courts from accepting a guilty plea from a defendant without fulfilling the following requirements: the court must (1) ascertain that the defendant understood that a conviction may have an effect on the defendant’s immigration status; (2) obtain an affidavit from the defendant that the judge personally advised the defendant of the possible effect of a conviction on the defendant’s immigration status; and (3) obtain a certification from the defendant’s attorney that the attorney had conferred with the defendant and explained in detail the contents of the affidavit signed by the defendant. See Form 9-406 NMRA (1990); Rule 5-303(E)(5) NMRA (1990); Rule 6-502(D)(2) NMRA (1990); Rule 7-502(E)(2) NMRA (1990); & Rule 8-502(D)(2) NMRA (1990). These requirements were not new in 1997 at the time Ramirez pleaded guilty, and they were “designed to ensure a guilty plea is made knowingly and voluntarily.” See State v. Garcia, 1996-NMSC-013, ¶ 8, 121 N.M. 544, 915 P.2d 300 (stating that “New Mexico has long recognized that for a guilty plea to be valid it must be knowing and voluntary”) ...

We decline to follow Chaidez and we affirm the Court of Appeals because since 1990, the New Mexico Supreme Court rules and forms have required an attorney to certify having engaged the client in detail in a guilty plea colloquy that included immigration consequences. Because the requirements that Form 9-406 imposes are not new in New Mexico, our holding in Paredez imposing requirements that were effective in 1990 applies retroactively to 1990, the adoption date of the Form 9-406 amendment that required a defendant to understand the possible immigration consequences of a pleaconviction. ... 

Although in Chaidez the United States Supreme Court clarifies “that a lawyer who neglects to inform a client about the risk of deportation is professionally incompetent,” ___ U.S. at ___, 133 S. Ct. at 1108, the Court held that Padilla imposed “a new obligation” on attorneys to counsel their clients about the immigration consequences of their pleas, id. at 1110-11 (internal quotation marks and citation omitted). Rule 11 of the Federal Rules of Criminal Procedure governs the taking of guilty pleas. See Fed. R. Crim. P. 11. Prior to Chaidez, immigration consequences were not part of the plea colloquy under Rule 11(b). However, in 2013, after Chaidez, Rule 11 was amended to require the court to “inform the defendant of, and determine that the defendant understands, the following . . . that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.” Fed. R. Crim. P. 11(b)(1)(O).  Unlike the federal system, since 1990 New Mexico has required attorneys in all trial courts to advise their clients of the details of the plea colloquy. ... 

Our holding today aligns with Justice Sotomayor’s dissent in Chaidez, where she wrote,

Padilla did nothing more than apply the existing rule of Strickland . . . in a new setting, the same way the Court has done repeatedly in the past: by surveying the relevant professional norms and concluding that they unequivocally required attorneys to provide advice about the immigration consequences of a guilty plea.

Chaidez, ___ U.S. at ___, 133 S. Ct. at 1114 (Sotomayor, J., dissenting) (internal citation omitted). ... 

Although we may have decided to follow the majority opinion in Chaidez had we not historically included checks regarding immigration consequences in our guilty plea proceedings, the fact is that the State of New Mexico has had such a requirement since 1990. ... 

We hold today that Ramirez has a viable claim for withdrawal of his 1997 guilty pleas based on ineffective assistance of counsel pursuant to Form 9-406 (1990), which required attorneys to inform their clients in detail of the possible immigration consequences of a guilty plea. We fail to see how our holding in Paredez—seven years after Ramirez’s pleas and fourteen years after Form 9-406 was amended to require that the trial court assure a defendant’s understanding that a guilty plea could affect the defendant’s immigration status—announced a new rule." - Ramirez v. State, June 19, 2014.