1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________

NO. 09-13-00082-CR



### _________________ EX PARTE AMIR TAVAKKOLI

___________________ __________________ __________________ _________________ On Appeal from the County Court at Law No. 1 Montgomery County, Texas Trial Cause No . 12-26808

___________________ __________________ __________________ _________________ MEMORANDUM OPINION This is an appeal from the trial court’ s denial of an application for writ of habeas corpus in which Amir Tavakkoli, a legal resident alien, alleged that trial counsel was ineffective for failing to pr operly advise him of the immigration consequences of his guilty plea. See Tex. Code Crim. Proc. Ann. art. 11.09 (West 2005). We affirm the trial court’s or der denying Tavakkoli’s application for writ of habeas corpus.

I. BACKGROUND Appellant, Amir Tavakkoli, was born in Iran on July 10, 1988. He moved to the United States in 2002 and became a legal permanent resident. On December2 8, 2006, Tavakkoli was arrest ed for reckless driving. After he was placed in custody, the arresting officer conducted an inventory of the car and found drug paraphernalia and marijuan a. Tavakkoli was charged with reckless driving and possession of marijuana. At the time of his arrest, he was an eighteen-year-old college student. On December 11, 2006 , Tavakkoli was appointed legal counsel. On December 15, 2006, appointed counsel met with Tavakkoli during the jail docket. On the same day, Tavakkoli pled guilty to po ssession of marijuana in exchange for a twenty-day jail sentence and dismissal of the reckless driving charge. After serving his twenty-d ay sentence, he was released. In July 2012, Tavakkoli left the United States to attend a family wedding in Sweden. Upon his return to the United St ates, he was denied reentry because of his 2006 guilty plea to possession of mariju ana. In January 2013, Tavakkoli filed an application for writ of habeas corpus under article 11.09 of the Texas Code of Criminal Procedure alleging that his trial c ounsel rendered ineff ective assistance of counsel by failing to advise him of the immigration consequences of pleading guilty to the drug possession charge in 2006. At the time of the filing of his application for habeas relie f, Tavakkoli was a second-year law student working at the Texas House of Representatives as a Te xas Legislature Intern. After a hearing,3 the trial court denied Tavakkoli’s applica tion for writ of habeas corpus and filed findings of fact and conclusions of law. This appeal followed.
II. STANDARD OF REVIEW A trial court’s decision to grant or deny relief on a writ of habeas corpus is reviewed under an abuse of discretion standard. Ex parte Klem , 269 S.W.3d 711, 718 (Tex. App.—Beaumont 2008, pet. ref’d). In revi ewing the trial court’s decision, we review the facts in the light most favorable to the trial court’s ruling and afford almost total deference to the trial court’s determin ation of historical facts supported by the record, especially when the trial c ourt’s findings of fact are based on an evaluation of credibility and demeanor. Id . We apply th is deferential standard of review regardless of whether the trial court’s findings are explicit or implied, or based on affida vits or live testimony. Ex parte Fassi , 388 S.W.3d 881, 886 (Tex. App.—Houston [14th Dist.] 2012, no pet.). When the resolution of the raised issue turns on an application of le gal standards, we revi ew the trial court’s determination de novo. Id . To obtain habeas relief an applicant must prove his allegations by a preponderance of the evidence. Id

. III. ANALYSIS In his application for habeas corpus, Tavakkoli alleged that his appointed counsel failed to advise him of the immigr ation consequences prior to him entering4 a guilty plea. Tavakkoli’s affida vit was attached to his app lication for habeas relief. In his affidavit, Tavakkoli asserted th at while in the Montgomery County Jail following his arrest, he learned that he c ould not be released on bond because of an immigration hold. Tavakkoli stated that wh en he met with his trial counsel during the jail docket, he informed counsel that he was not able to bond out because of an immigration hold even though he wa s a legal permanent resident. Tavakkoli testified that he had college final exam s coming up, and he wa s nervous he would not be able to take them. According to Tavakkoli, counsel stated, “‘as long as you are here legally don’t worry about it.’” In addition, Tavakkoli stated that counsel did not advise him in any way that he “would be deported, removed, or inadmissible to the United States upon reentr y if [he] plead guilty to possession of marijuana.” Tavakkoli alleged that counsel to ld him he could “‘get out of jail today or tomorrow’ in exchange for a plea of guilty to the posse ssion of marijuana charge; and further that the reckless dr iving charge would be dismissed.’” According to Tavakkoli, no other consequen ces were disclosed. In his application for writ of habeas corpus, Tavakkoli argued that under Padilla v. Kentucky , his attorney provided ineffec tive assistance of counsel. See 559 U.S. 356 (2010). On appeal, Tavakkoli argues that his guilty plea was involuntary and unknowing, and that counsel was ineffec tive for failing to advise him of the5 potential immigration consequences of his plea, by giving him affirmative misadvice, and by encouraging him to plead guilty though plausible defenses could have been pursued. 1
A. Ineffective Assistance under Padilla The Sixth Amendment to the Unite d States Constitution guarantees a defendant effective assistance of counsel in a plea hearing. Ex parte Harrington , 310 S.W.3d 452, 458 (Tex. Crim. App. 2010). In Padilla , the United States Supreme Court held that the Sixth Amendm ent requires that the defense attorney for a criminal defendant provide advice a bout the risk of deportation that arises from a guilty plea. 559 U.S. at 374. Recogni zing that immigration law is complex, the Supreme Court stated that “[w]hen the law is not succinct and straightforward . . ., a criminal defense a ttorney need do no more than advise a noncitizen client that pending criminal charges may ca rry a risk of adverse immigration consequences.” Id . at 369. But when the deportatio n consequence is clear, defense counsel has a duty to give correct advice regarding the depor tation consequences of defendant’s plea. Id . “[T]o obtain relief on this t ype of claim, a petitioner must

1 Tavakkoli also argues on appeal that his Fifth and Sixth Amendment rights were violated because counsel failed to conduct a thorough inves tigation, failed to subject the prosecution’s case to meaningf ul adversarial testing, and failed to pursue other viable plea options for a better outcome. Tavakkoli did not raise these arguments in the trial court. We declin e to address these arguments on appeal. See Tex. R. App. P. 33.1; see also Tex. R. App. P. 47.1.6 convince the court that a decision to re ject the plea bargain would have been rational under the circumstances.” Id . at 372.
In Chaidez v. United States , the Supreme Court held that Padilla is not applied retroactively. 133 S. Ct. 1103, 1113 (2013). “[D] efendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.” Id . The Court issued its decision in Padilla on March 31, 2010. See Padilla , 559 U.S. 356. Tavakkoli’s convicti on became final on December 15,
2006. See Tex. R. App. P. 21.4; Jones v. State , 77 S.W.3d 819, 820 (Tex. Crim. App. 2002) (holding that when there is no evidence that a defendant ever filed a notice of appeal, a conviction is deemed final on the date of sentencing). Therefore, the holding of Padilla is not applicable to Tavakkoli’s case. See Chaidez , 133 S. Ct. at 1113. On appeal, Tavakkoli argues that the tria l court erred in applying the holding of Chaidez to the present case because Chaidez does not apply to habeas proceedings. Tavakkoli urges this Court to apply Padilla retroactively to state habeas cases on collateral review. In Ex parte De Los Reyes , petitioner filed a writ of habeas corpus relying on Padilla and alleging he received ineffective assistance of counsel because his trial counsel fa iled to advise him of the deportation consequences of his guilty plea. 392 S. W.3d 675, 676 (Tex. Crim. App. 2013).7 The Texas Court of Criminal Appeals c oncluded, under the United States Supreme Court’s analysis in Teague v. Lane , “because Padilla imposed a ‘new rule’ of constitutional criminal procedure, . . . a defendant whose conviction was already final at the time that Padilla was handed down may not be nefit from that decision in a habeas or similar proceeding.” Id . at 679 (citing Teague v. Lane , 489 U.S. 288, 301 (1989)). The Court recognized that it “could accord retroactive effect to Padilla as a matter of state habeas law.” Id . (citing Danforth v. Minnesota , 552 U.S. 264 (2008) (holding that Teague does not constrain “the authority of state courts to give broader effect to new rule s of criminal procedure than is required by that opinion”)). But, it expressly declined to do so. Id. The court stated, “[w]e adhere to the retroactivity analysis in Chaidez and its holding that Padilla does not apply retroactively.” Id . Because Padilla does not apply retroac tively, we will not apply Padilla in analyzing Tavakkoli’s claim th at he received ineffective assistance of counsel. See id .; see also Chaidez , 133 S. Ct. at 1113.
B. Ineffective Assistance under Pre- Padilla Law To be valid, a guilty plea must be entered voluntarily, knowingly, and intelligently. Fuller v. State , 253 S.W.3d 220, 229 (T ex. Crim. App. 2008); Klem , 269 S.W.3d at 718. An involuntary plea violates a defendant’s Fifth Amendment right to due process. U.S. Const. amends. V, XIV; Burke v. State , 80 S.W.3d 82,8 93 (Tex. App.—Fort Worth 2002, no pet.). A plea is not voluntarily and knowingly entered if it is made as the resu lt of ineffective assistance of counsel. Ulloa v. State , 370 S.W.3d 766, 771 (Tex. App.—Hous ton [14th Dist.] 2011, pet. ref’d). To prevail on a claim that a plea was involuntary because it was entered upon ineffective advice of c ounsel a defendant must show (1) counsel’s advice was not within the wide range of competence required of criminal defense attorneys, and (2) there is a reasonable probability that, but for couns el’s errors, the defendant would have pleaded “not guilty ” and insisted on a trial. Id . (citing Ex parte
Morrow , 952 S.W.2d 530, 536 (Tex. Crim. App. 1997)). “There is a strong presumption that counsel’s conduct fell within a wide range of reasonable representation.” Id. To obtain relief, counsel’s ine ffective assistance “must be firmly founded in the record[.]” Id

. “Affirmative misadvice by counsel regardi ng a material issue that the plea hearing reflects was key to the defendant’s plea decision may constitute deficient performance.” Ex parte Arjona , 402 S.W.3d 312, 318 (Tex. App.—Beaumont 2013, no pet.). In Arjona , we recognized that even when counsel has no initial duty to advise a defendant of the immi gration consequences of his guilty plea because of the non-re troactive effect of Padilla , when counsel gives advice regarding the immigration consequences of the plea, he becomes obligated to9 provide the defendant with accurate information. Id. Without such a rule, counsel would be free to mislead a defendant me rely because there was no initial duty. Id

. The only evidence presented by Tavakkoli regarding counsel’s alleged ineffective assistance was Ta vakkoli’s testimony and affidavit. 2 Tavakkoli alleged in his affidavit that counsel made th e following affirmative representations: I informed [counsel] that I was not able to bond out because of an immigration hold . He asked me if I was here legally. I told [counsel] that I was not a United States citizen, but I was here legally as a permanent resident with a resident alien/green card

. .

. . He stated, ‘as long as you are he re legally don’t worry about it. ’

. . . . [Counsel] then stated ‘All you have to do is plead guilty to possession of marijuana and the reckless drivi ng charge will be dismissed;’ and he also said ‘you will get out toda y or tomorrow.’ I thought that was odd so I informed him immediately that I did not have or possess any marijuana. [Counsel] said ‘What do you want to do? You can take it to trial, but it may take a long time , they will probably take the police officer’s word over yours and you will be in jail for some time pending trial.’ I then said, ‘I just want to get out, I have class.’ [Counsel] responded by stating[ ,] ‘Just plead guilty, it’s not a big deal. You will get out tonight or tomorrow night.’ No other options were discussed. Tavakkoli’s testimony at the hearing comporte d with the allegations set forth in his affidavit.

2 Tavakkoli’s immigration attorney also testified at the habeas hearing regarding Tavakkoli’s immigr ation case and the immigration consequences of his guilty plea.10 At the habeas hearing, Tavakkoli’s tr ial counsel testified that he had no independent recollection of representing Ta vakkoli. Counsel stated that he has many Hispanic clients, both legal and illegal, and he is familiar with the immigration consequences for both in controll ed substance cases. He stated that if a client charged with only a misdemeanor was still in jail at the time of the jail docket call, he would inquire of the client as to why he was still in jail as bond is usually set very low for misdemeanor char ges. In this case, Tavakkoli was unable to bond out of jail due to an immigra tion hold. Tavakkoli was concerned with getting out of jail because of his impending college semester final exams. Counsel testified that when a client has an immi gration hold, while they are still entitled to bond, once the client bonds out, immigrati on officials normally transport them to an immigration center. Couns el was adamant that he would never tell a client under the circumstances alleged in this case, “don’t worry about it.” Counsel testified, based on his review of the allegations in the offense report, he saw no valid defenses to th e charged offenses. He explained that probable cause for the stop existed, Ta vakkoli was arrested, and an inventory search was conducted during wh ich the police found “a pipe with some debris in it and . . . a baggy with marijuana[,]” acco rding to the police report. Counsel explained that he would have advised Ta vakkoli that the prosecutor would have to11 bring the marijuana to court, they could have it tested, a nd the jury could look at it and decide if it was a usable amount of marijuana. Counsel disputed Tavakkoli’s assertion that counsel failed to pursue plau sible defenses, stating that if Tavakkoli had stated it was not his marijuana, they would have explored that defense. Counsel further explained that if Tavakko li had told him the baggie only contained “‘stems and seeds[,]’” he would have en couraged him to “fight ” the possession charge because “you have to have a usab le amount of marijuana” to be convicted of possession of marijuana. Regarding an assertion by Tavakkoli in hi s affidavit that at the time of the plea he did not understand English well, c ounsel testified that he would not have represented someone who was unable to understand him, that Tavakkoli would have been entitled to an interpreter if he did not understand English, and that notably, at the time of the plea hearing Tavakkoli was a college student. Though he did not recall the details related to Tavakkoli’s case, 3 counsel testified it is the practice of the court to have the parties st and before the court, and for the court to ask the defendant “‘Did you read the ad monishments and fully understand them and did you have them explai ned to you by an attorney’” inserting the attorney’s

3 We note that in this cas e we are without the benef it of a transcript of the plea hearing. Compare Arjona , 402 S.W.3d at 318 (A plea hearing may show relevant circumstances surroundi ng the entering of the plea).12 specific name into the sentence. Counsel characterized several of Tavakkoli’s allegations as “blatant lie [s].” Regarding Tavakkoli’s a llegation that counsel told him, “‘Just plead guilty. It’s not a big deal’” counsel testified, “I wouldn’t do that. No way.” When asked if he could have totally failed to discuss immigration consequences of the plea with Tavakkoli counsel responded, “[a]bsolutely not. And especially given the fact that he was a legal resident.” Counsel testified as follows: When you go through the admonishment s, they are set up fairly early in the admonishments. And the j udge – all the county court judges – all the judges in Montgomery County and have for years and years and years asked, “Are you a citizen[?]” And if they say no, they dwell on that and they make sure that they understand it clearly before they accept their plea. And when I go th rough it, especially when I have a young legal resident, I explain it very, very thoroughly, tell them that they do have a bond and then also that a drug charge can trip them up. The written admonishments signed by Tavakko li appear in the record before us and state: “I understand . . . that if I am not a citizen of the United States, my plea of guilty or nolo contendere may re sult in my deportation, exclusion from admission to this country, or denial of naturalization under fe deral laws[.]” Counsel further testified Tavakkoli’s a ssertion that counsel told him “‘[y]ou will get out today or tomorrow[]’” was a “b latant lie.” Counsel explained, “if somebody has an immigration hold on them, they are not going to get out until immigration deals with them.” Counsel st ated, “[t]ypically what I tell them when13 they’re --- when they’re here and there’s an immigration hold on them is if they plead guilty after they serve their time in jail, if that’s the offer that they took, then immigration is going to transfer them from jail to the immigration proceeding.” Counsel testified that if his client is a legal resident and facing a drug charge, theft charge, or felony charge and has an immigr ation hold on him, he advises them to get advice from an immigration attorney. C ounsel was adamant that with regard to his clients who have an immigration hold on them, he explains that if they plead guilty and serve time, once they finish their sentence, they will be transferred to the immigration facility. Counsel disputed Tavakkoli’s statement that he did not inform Tavakkoli of his rights and the consequences of pleadi ng guilty. Counsel maintained that he would have advised Tavakkoli, and any similarly situated clients, that they were entitled to a bond both at the jail and the immigration center. Counsel reiterated that the admonishments explain the immi gration consequences of pleading guilty and that he reviews those with clients: I go through the admonishments and admonishments that he signed and I dwell on them. And one of th e things that I dwell on is, look, a possession of marijuana charge counts just like a cocaine charge for immigration purposes . . . I say, l ook, as it stands right now they’re going to want to deport you for a dr ug charge. It could be that you could hire an attorney and they ma y be able to straighten it out but you’re going to need to consult with an immigration attorney about that.14 Counsel testified, “I told [Tavakkoli] wh at was going to happen if he . . . pled guilty. I mean, because it’s a conversation that takes place with everybody that has an immigration hold on them.” Counsel fu rther testified that he represents many Mexican Nationals who do not have immigration holds on them and it is his practice to advise his non-citizen clients that if they plead guilty, they cannot return to their home country because if they leav e the United States a nd try to come back “you’re not coming back in.” When aske d if he would have had a conversation with Tavakkoli about the difference betw een removability and admissibility after voluntarily leaving the country, counsel stated, “[a]bsolutely.” Counsel maintained throughout his testimony that he did not make the affirmative representations set forth in Tava kkoli’s affidavit, and that he advises all of his non-citizen clients of the depor tation and admissibility consequences of pleading guilty. Counsel also stated that he would not have discouraged Tavakkoli from going to trial, would not have told hi m trial would take a long time, and that he is not afraid to try a case in which it is his client’s word against an officer’s. Counsel explained that he has tried “ma ny cases” for non-citizen clients, the bulk of his trials have involved illegal immigran ts, that he would not tell them a jury was going to believe the police officer over them, and that during such trials he attacks the credibility of the testifying officer.15 In reviewing the trial court’s decision to grant or deny Tavakkoli’s application for habeas corpus relief, we view the facts in the light most favorable to the trial court’s ruling and defer to the tria l court’s implied factual findings that are supported by the record. Ex parte Wheeler , 203 S.W.3d 317, 325-26 (Tex. Crim. App. 2006). We will uphold the trial court’ s ruling absent an abuse of discretion. Ex parte Peterson , 117 S.W.3d 804, 819 (Tex. Crim . App. 2003) (per curiam), overruled on other grounds by Ex parte Lewis , 219 S.W.3d 335 (Tex. Crim. App. 2007). We afford almost total deference to the tria l court’s determination of historical facts that are supported by the r ecord, especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. Id

. Tavakkoli alleges that trial counsel failed to advise him regarding immigration consequences, told him “not to worry about” the immigration hold that was purportedly placed on him while in jail, advised him to plead guilty to possession of marijuana because it would be his word against the police officer’s, and failed to evaluate and pursue plausible defenses. As the fact finder, the trial court was entitled to disb elieve Tavakkoli’s testimony, even though it was supported by his affidavit. See Wheeler , 203 S.W.3d at 325-26. Likewise, it was within the trial court’s disc retion to believe trial counsel ’s testimony that he would have properly advised Ta vakkoli regarding his right to bond out, any relevant16 defenses, and the deportation and inadmissib ility consequences of pleading guilty. See Ulloa , 370 S.W.3d at 771-72 (Even where tr ial counsel could not recall his specific conversation with defendant, the trial judge was entitle d to believe trial counsel’s testimony that it was his policy to give special attention to informing clients that successful completion of sex- offender counseling t ypically requires an admission of guilt and that he would not ha ve told defendant that a “no contest” plea was the same as a “not guilty” plea.). We cannot hold that the trial court a bused its discretion in finding that Tavakkoli failed to prove by a preponderance of the eviden ce that counsel rendered ineffective assistance. Tavakkoli has not met his burden of showing that his state or federal constitutional rights were vi olated. We overrule Tavakkoli’s appellate issues. On the record before us we will not disturb the trial court’s ruling. We affirm the judgment of the trial court.
AFFIRMED.

__________________________ CHARLES KREGER Justice Submitted on July 11, 2013 Opinion Delivered September 25, 2013 Do not publish Before McKeithen, C.J., Kr eger and Horton, JJ.