Post-Conviction Relief Presenters: Belinda M. Arroyo and Gary C. Frost

Common Methods of Post Conviction Relief Sentence Modifications Motions for New Trial Writ of Habeas-Based on Ineffective Assistance of Counsel

Sentence Modifications Matter of Song- 23 I&N Dec. 173 (BIA 2001)- Board held that the modification of a sentence is entitled to full faith and credit since the modification does not implicate the definition of “conviction” at 101(a)(48)(A) but instead implicates 101(a)(48)(B) the definition of a “term of imprisonment.” State v. Aguilera, 165 S.W.3d 695, 704 (Tex.Crim.App.2005) At a minimum, a trial court retains plenary power to modify its sentence if a motion for new trial, or motion in arrest of judgment is filed within 30 days of sentencing. We hold that a trial court also retains plenary power to modify its sentence if, as in this case, the modification is made on the same day as the assessment of the initial sentence and before the court adjourns for the day.

Sentence Modifications Should be considered if your client is on probation for a conviction that implicates a provision of the INA that has a term of imprisonment Better vehicle for PCR if the sentence is the only issue because Renteria issue in the 5th Circuit is not implicated

Motions for New Trial T.R.A.P. RULE 22: 30 days to file Broad grounds for reopening under the rule Defendant is restored to the position they had before they plead or were found guilty For this reason be sure the Defendant really wants reopening because absent an agreement with the prosecutors they could lose the benefit of their plea

Writ of Habeas-Padilla v. Kentucky Writ of Habeas Corpus, pursuant to Tex. Code Crim. Proc. Ann. Art. 11.07 and 11.072 11.07 is for felony cases where there was a straight sentence to imprisonment 11.072 is for felony or misdemeanor cases in which probation was granted and has also been construed to include deferred adjudication

Writ of Habeas-Establish Jurisdiction Furthermore, Respondent could not have obtained the requested relief by means of an appeal under Article 44.02 and Rule 25.2, Texas Rules of Appellate Procedure.” The right to appeal is very limited in cases involving a plea bargain. Article 44.02 limit’s the right to appeal in a plea bargain case to the following: 1) upon permission of the trial court and 2) on matters which have been raised by written motion prior to trial. No motions were filed with the trial court prior to trial so the only means of appeal would have been to seek permission of the trial court. In the present case Applicant did not learn of the issues that are the basis of his ineffective assistance counsel claim until well outside of the 30 day time period given by the Texas Rule of Appellate Procedure 26.2 to perfect an appeal and therefore would have been unable to seek permission of the trial court. See Tex. Code Crim. Proc. Ann. Art. 44.02

Standard for Ineffective Assistance-Padilla Two standards in Padilla: Clear consequences of the plea “Counsel is required to inform his client of the consequence or his performance will be deficient under the Sixth Amendment.” Law is not clear or straight forward “Need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

Standard for Voluntariness of the Plea-State Law Applicant asserts that but for Counsel’s error the results would have been different. In assessing the voluntariness of a plea depends on “1) whether counsel’s advice was within the range of competence demanded of attorney’s in criminal cases and, if not 2) whether there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty or nolo contendere and would have insisted on going to trial.”

Fell Below Objective Standard of Reasonableness Beware of the argument that admonishments by the judge somehow alleviate the responsibility of the Defendant’s attorney. It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so "clearly satisfies the first prong of the Strickland analysis." Hill v. Lockhart, 474 U.S. 52, 62, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (White, J., concurring in judgment). Padilla V. Kentucky. Go straight to Padilla the decision is golden!

But for the Error Defendant Would Not Have Plead Guilty The Applicant could have sought a plea deal that would have avoided the immigration consequences The Applicant’s ties to the United States: Padilla v. Kentucky, that “preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” The Court can review from the totality of the circumstances that it is unlikely that this individual would have given up his right to a trial despite the astonishingly harsh immigration consequences.

United States v. Renteria-Gonzalez, 322 F. 3d 804 (5th Cir United States v. Renteria-Gonzalez, 322 F.3d 804 (5th Cir. 2002) reh’g denied (5th Cir. 2003). Renteria interpreted the definition of conviction where the petitioner's conviction had been vacated for immigration purposes. The court held that based on the definition of conviction under the INA the conviction remained a conviction. This case is still followed by some Immigration Judges in the Fifth Circuit. The government however takes the position of the Board of Immigration Appeals in Matter of Pickering, 23 I&N Dec. 621, 624 n.2 (BIA 2003). Also see See Discipio v. Ashcroft (Discipio I), 369 F.3d 472, 473-75 (5th Cir. 2004)