IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 23, 2024

HECTOR WILLIAM ZARATE CAPRIEL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamblen County

No. 23CR75 Alex Pearson, Judge

No. E2023-00892-CCA-R3-PC

The petitioner, Hector William Zarate Capriel, appeals the denial of his petition for postconviction relief, which petition challenged his guilty-pleaded conviction of misdemeanor

child abuse, alleging that he was deprived of the effective assistance of counsel. Discerning 

no error, we affirm the denial of post-conviction relief.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR. and TOM GREENHOLTZ, JJ., joined.

Rodolfo Cortes, Knoxville, Tennessee, for the appellant, Hector William Zarate Capriel.

Jonathan Skrmetti, Attorney General and Reporter; Garrett D. Ward, Senior Assistant 

Attorney General; Dan E. Armstrong, District Attorney General; and Dustin Click, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The petitioner was charged with one count of aggravated child abuse.1 On 

March 7, 2022, the petitioner waived his right to a preliminary hearing and pleaded guilty 

in the General Sessions Court of Hamblen County to one count of misdemeanor child 

abuse, and the trial court sentenced him to 11 months and 29 days suspended to supervised 

probation.

With the assistance of counsel, the petitioner filed a timely post-conviction 

petition, alleging that his guilty plea was not knowing and voluntary because trial counsel 

 

1 The circumstances giving rise to the charge are not provided in the record.

07/12/2024
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failed to advise him that his conviction would make him inadmissible under immigration 

law.

At the May 2023 evidentiary hearing, the petitioner testified that he was an 

undocumented immigrant in the United States but that he was married to a United States 

citizen. He said that he met with trial counsel only once, for five minutes prior to his court 

appearance, before entering his guilty plea. He said that trial counsel did not discuss the 

immigration consequences of his guilty plea, including that he would be inadmissible under 

immigration law if he pleaded guilty to misdemeanor child abuse. He said that he would 

not have pleaded guilty had he known that he would be inadmissible. He said that he was 

not being detained on an Immigration and Customs Enforcement hold and was not in 

deportation proceedings.

During cross-examination, the petitioner acknowledged that he was 

originally charged with aggravated child abuse. He said that trial counsel explained to him 

that aggravated child abuse was a felony charge and acknowledged that counsel explained 

to him the sentencing exposure he faced for a conviction of aggravated child abuse. He 

also acknowledged that counsel negotiated a plea agreement in which the petitioner could 

plead guilty to misdemeanor child abuse. He denied that trial counsel advised him to seek 

the advice of an immigration attorney.

During redirect examination, the petitioner said that he successfully 

completed his probationary sentence and all the behavioral classes required of him.

Upon questioning by the court, the petitioner acknowledged that he signed 

the guilty plea form. He said that he could not read English and that, although he was 

provided an interpreter during the trial proceedings, no one read the part of the plea form 

to him that said, “[T]his conviction may affect my ability to stay in the United States or 

any chances of obtaining legal status in the future.” He told the court that he “[m]aybe” 

would not have pleaded guilty if he had known the immigration consequences of his 

conviction but emphasized that his priority at the time of his guilty plea was to return to 

his family. When the post-conviction court asked what relief he was seeking, the petitioner 

said, “What I would like is if they can put lesser charges, not that they take away entirely 

the charges, but that they put lesser charges so that I can process my paperwork so that I 

can help myself and my kids for the future.”

Trial counsel testified that it was his practice to “always try to alert my

Hispanic clients that any kind of plea or any kind of charge they have on their record could 

affect their immigration status.” He said that he did not tell the petitioner that his guilty 

plea “would for sure affect his immigration status, but typically what I do is tell them that 
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this could have an effect, I suggest you contact an immigration attorney.” He said that he 

did not have a specific recollection of the conversation with the petitioner but said, “I do 

know that I had one phone interview with him with [a translator] early on. Then I had an 

interview with him on the court date with the clerk translator.” He reiterated that his 

practice was to tell clients that “this could have an effect on your immigration status.”

During cross examination, trial counsel testified that the petitioner did not 

ask him to reach out to an immigration attorney on his behalf or to request a continuance 

to allow him time to consult an immigration attorney. He said that a court interpreter 

reviewed the plea form with the petitioner and that “they seem to be very thorough in going 

over each and every line item.”

Exhibited to trial counsel’s testimony was an affidavit of trial counsel that 

stated he did not tell the petitioner that a conviction for misdemeanor child abuse “would 

specifically make him inadmissible under immigration law” but that he “did explain to [the 

petitioner] that any criminal conviction would have an impact on his immigration status 

and that he would be well served to check with an immigration attorney.”

At the close of the hearing, the post-conviction court made oral findings and 

conclusions and memorialized those in a written order denying post-conviction relief. The 

court found that the petitioner failed to establish that trial counsel performed deficiently or 

that he was prejudiced by counsel’s actions. The court accredited trial counsel’s testimony 

that he advised the petitioner that his guilty plea could affect his immigration status and 

that he should consult an immigration attorney. The court also found that the plea form 

signed by the petitioner provided the following statement, “If I’m an immigrant, this 

conviction may affect my ability to stay in the United States or any chances of obtaining 

legal status in the future.” The court found the petitioner incredible as to his statement that 

he would not have taken the plea agreement had he known the immigration consequences 

of the conviction. The court found that the petitioner was an undocumented alien “and is 

deportable for that reason alone” and that he “cannot demonstrate that his deportability 

status was a consequence of his guilty plea.”

In this timely appeal, the petitioner reasserts his argument that trial counsel 

performed deficiently by failing to advise him that his guilty-pleaded conviction would 

render him inadmissible under immigration law. The State argues that the post-conviction

court did not err by denying relief. We agree with the State.

We view the petitioner’s claim with a few well-settled principles in mind. 

Post-conviction relief is available only “when the conviction or sentence is void or voidable 

because of the abridgment of any right guaranteed by the Constitution of Tennessee or the 
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Constitution of the United States.” T.C.A. § 40-30-103. A post-conviction petitioner bears 

the burden of proving his or her factual allegations by clear and convincing evidence. Id.

§ 40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s 

findings of fact the weight of a jury verdict, and these findings are conclusive on appeal 

unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79 

(Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast, 

the post-conviction court’s conclusions of law receive no deference or presumption of 

correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

Before a petitioner will be granted post-conviction relief based upon a claim 

of ineffective assistance of counsel, the record must affirmatively establish, via facts 

clearly and convincingly established by the petitioner, that “the advice given, or the 

services rendered by the attorney, are [not] within the range of competence demanded of 

attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and 

that counsel’s deficient performance “actually had an adverse effect on the defense,” 

Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must 

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. at 694. Should the 

petitioner fail to establish either deficient performance or prejudice, he is not entitled to 

relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, 

. . . that course should be followed.” Strickland, 466 U.S. at 697.

When considering a claim of ineffective assistance of counsel, a reviewing 

court “begins with the strong presumption that counsel provided adequate assistance and 

used reasonable professional judgment to make all significant decisions,” Kendrick v. 

State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears the 

burden of overcoming this presumption,” id. (citations omitted). We will not grant the 

petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or 

provide relief on the basis of a sound, but unsuccessful, tactical decision made during the 

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). 

Such deference to the tactical decisions of counsel, however, applies only if the choices are 

made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. 

Crim. App. 1992).

We first note that the post-conviction court found that the petitioner was 

deportable based on his undocumented status and not because of his conviction; however, 

the petitioner argued that his conviction rendered him inadmissible not deportable. In other 

words, the petitioner argues that because of his conviction, he is no longer eligible to seek 
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legal residency. Despite this confusion by the post-conviction court, the petitioner is not 

entitled to relief.

In Padilla v. Kentucky, the Supreme Court ruled that counsel performs 

deficiently by giving a criminal defendant incorrect advice regarding the immigration 

consequences of a criminal conviction or by failing to advise the defendant of the 

immigration consequences when the “consequence is truly clear.” Padilla v. Kentucky, 

559 U.S. 356, 369 (2010). However, when the effect of a criminal conviction on 

immigration proceedings “is not succinct and straightforward . . . , a criminal defense 

attorney need do no more than advise a noncitizen client that pending criminal charges may 

carry a risk of adverse immigration consequences.” Id. The Immigration and Nationality 

Act (“INA”) provides that, with limited exceptions, “any alien convicted of . . . a crime 

involving moral turpitude . . . is inadmissible,” rendering him “ineligible to receive visas 

and ineligible to be admitted to the United States.” 8 U.S.C. § 1182(a)(2)(A). As our 

supreme court has previously noted, “a crime involving moral turpitude is nowhere defined 

in the [INA] or in the Code of Federal Regulations.” Garcia v. State, 425 S.W.3d 248, 260 

(Tenn. 2013).

The post-conviction court accredited trial counsel’s testimony that he advised 

the petitioner that his guilty plea could affect his immigration status and that he should 

consult an immigration attorney. Because the law is not immediately clear whether a 

Tennessee conviction for misdemeanor child abuse renders the petitioner inadmissible and 

because the petitioner’s admissibility under immigration law “turn[s] upon an 

interpretation of a provision of the [INA] broadly classifying crimes,” Garcia, 425 S.W.3d 

at 261, trial counsel “fulfilled [his] obligation by advising the petitioner that the guilty plea 

‘may carry a risk of adverse immigration consequences.’” Id. (quoting Padilla, 559 U.S. at 

369). Moreover, the post-conviction court explicitly discredited the petitioner’s testimony 

that he would have rejected the plea agreement had he known the immigration

consequences of his conviction; consequently, the petitioner has not established that he was 

prejudiced by counsel’s conduct.

Accordingly, the judgment of the post-conviction court is affirmed.

__________________________________

JAMES CURWOOD WITT, JR., JUDGE