After Chaidez, Padilla Not Retroactive in Texas: Ex Parte De Los Reyes

"Applicant below, Joel De Los Reyes, filed an application for writ of habeas corpus, in which he alleged that he received ineffective assistance of counsel because his trial counsel failed to advise Applicant that he was almost certainly subject to deportation after he pled guilty to a second crime of moral turpitude. See Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010); see also 8 U.S.C. § 1227(a)(2)(A)(ii). The trial court denied the application, but the El Paso Court of Appeals granted relief, holding that the rule from Padilla should be applied retroactively and that trial counsel was ineffective under that rule. Ex parte De Los Reyes, 350 S.W.3d 723, 728-31 (Tex. App.—El Paso 2011). We granted the State’s petition for discretionary review and will reverse the judgment of the court of appeals because Padilla announced a new rule of constitutional criminal procedure not applicable to cases pending on collateral review. Chaidez v. United States, No. 11-820, 2013 U.S. LEXIS 1613 (2013)." - Ex Parte De Los Reyes, Mar. 20, 2013.

NOTE: César Cuauhtémoc García Hernández comments as follows: "Interestingly, the court acknowledged that it was not beholden to the Chaidez analysis. Indeed, it explained that state courts are not required to follow the Teague v. Lane, 489 U.S. 288 (1989), retroactively framework used in the federal courts and adopted by many state courts. “We recognize that we could accord retroactive effect to Padilla as a matter of state habeas law,” the court explained. “But we decline to do so. We adhere to the retroactivity analysis in Chaidez and its holding that Padilla does not apply retroactively. This Court follows Teague as a general matter of state habeas practice, and this case does not present us a reason to deviate here.” Ex parte De Los Reyes, No. PD-1457-11, slip op. at 8.

Things just got a lot tougher for Texas attorneys and their clients hoping that Padilla would provide a bit of relief for old convictions. But perhaps all is not lost. In an essay for crImmigration.com, Dawn Seibert of the Immigrant Defense Project listed seven arguments that may remain available afterChaidez:

“1) State courts can apply broader state retroactivity principles to award relief on PadillaPCR motions; 2) there may be an independent state constitutional right to effective assistance of counsel, which is unaffected by Chaidez; 3) Chaidez does not impact the viability of a Padilla claim for a defendant whose conviction was not final (all possibility of appeal exhausted) as of March 31, 2010; 4) Padilla applies in a first post-conviction proceeding, whether federal or state, because such a proceeding is akin to the initial criminal proceeding for purposes of an ineffective assistance claim; 5) Chaidez preserves the right of an immigrant to obtain relief if the immigrant can show that he or she was affirmatively misadvised regarding the immigration consequences of his criminal case; 6)Padilla may continue to apply to state post-conviction cases filed prior to March 31, 2010; and 7) Chaidez does not interfere with the right of an immigrant whose criminal lawyer failed to investigate and advise regarding immigration consequences to present the claim for relief, where appropriate, as one that violated an earlier recognized constitutional duty, such as a duty to negotiate the best possible plea.”

Seibert collaborated on a more detailed practice advisory that attorneys dealing with a conviction that preceded March 31, 2010 (the date Padilla was announced) should review." - crImmigration.com, Mar. 21, 2013.