Texas Padilla Retroactivity News: Good and Weird

First the good: State v. Golding, out of the First Court of Appeals today, is an appeal from the granting of a Padilla writ by the best damn judge in the Harris County Criminal Justice Center, our friend Larry Standley. Judge Standley showed yet again that he is not afraid to grant habeas relief, and the State appealed, arguing that Judge Standley erred because (1) the doctrine of laches barred Golding‘s request for relief; (2) the trial court did not have jurisdiction to grant habeas relief; and (3) Golding failed to show that he received ineffective counsel at the time of his guilty plea. The court of appeals shot down all three arguments.

Part of the State’s third argument (the failure to show a right to relief) was that Padilla was not retroactive, so that Mr. Golding‘s counsel was not required to advise him of the immigration consequences of his guilty plea at the time he entered it.

Beginning at page 17 of the opinion, the court discussed retroactivity. It missed what I think is the most glaring point—that the Supreme Court itself applied the rule retroactively in Padilla—but found that the Padilla rule is an extension of Strickland, rather than a new rule. For my money, this is where the Supreme Court is eventually going to come out, making Padilla first-writ retroactive but not successive-writ retroactive.

Now the weird: Ex parte Raul Pina Herrera, out of the Texas Court of Criminal Appeals yesterday. The full text of the (unpublished) opinion follows:

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to attempted murder and originally received a ten-year probated sentence. His probation was later revoked, and he was sentenced to ten years’ imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that his plea was involuntary because neither trial counsel nor the trial court advised him of the immigration consequences of his guilty plea. We remanded this application to the trial court for findings of fact and conclusions of law.

The trial court pointed out on remand that Applicant has previously sought habeas relief on the grounds that he was not properly admonished as to the immigration consequences of his plea. However, at the time of his first writ application, Applicant had not been subject to deportation proceedings. At the time he filed this, his second application, Applicant had been deported, and is currently serving a federal sentence for illegal re-entry.

Relief is granted. The judgment in Cause No. 61141-243-2 in the 243rd Judicial District Court of El Paso County is set aside, and Applicant is remanded to the custody of the sheriff of El Paso County to answer the charges as set out in the indictment.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.

Mr. Herrera is allowed to file a subsequent writ, but there’s no discussion of Padilla, of retroactivity or, indeed, of procedural posture at all. One possibility is that the CCA saw Mr. Herrera’s deportation as a newly discovered fact, so that they didn’t think they had to discuss subsequent-writ retroactivity. That could mean that the CCA sees Padilla as first-writ retroactive. (I discuss the two sorts of retroactivity here.) Or it could mean nothing at all.

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