STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE
THIRTEENTH COURT OF APPEALS CAMERON COUNTY
issue in this case is whether Samuel Osvaldo Garcia's
claim that he is entitled to relief because his attorney gave
him affirmative misadvice regarding his possible deportation
is cognizable or whether it is barred as a non-retroactive
Padilla claim. The court of appeals held that the
claim is cognizable as an affirmative misadvice claim, and we
agree. Consequently, we affirm the judgment of the court of
2002, Garcia was charged with possession of cocaine of at
least four grams but less than 200 grams of cocaine with
intent to deliver, a first-degree felony. The State offered
Garcia a plea bargain of 10 years' confinement probated
for 10 years and a $500 fine. Garcia asked his attorney
whether there would be adverse immigration consequences if he
took the plea offer because he was a lawful permanent
resident, and counsel responded that he "would probably
be okay" and that "the charge would probably not
result in deportation." Garcia pled guilty and was
sentenced to ten years' imprisonment. His sentence of
confinement was suspended, and he was placed on community
supervision for ten years and assessed a $500 fine. He was
eventually deported before returning to the United States and
filing an application for a writ of habeas corpus.
application, Garcia argued that he was entitled to a new
trial on his drug-trafficking charges because his trial
counsel ineffectively advised him that, if he pled guilty, he
probably would not be deported. Garcia asserted that, had
trial counsel not affirmatively misstated the law to him, he
would have pled not guilty and would have insisted on going
to trial. The habeas court granted relief, and the State
appealed. The court of appeals affirmed the judgment of the
habeas court. Ex parte Osvaldo, 534 S.W.3d 607 (Tex.
App.-Corpus Christi 2017).
State Prosecuting Attorney (SPA) filed a petition for
discretionary review asking us to review the decision of the
court of appeals. We granted only its first ground for
review, which asks whether "a claim that counsel
misadvised a defendant about the deportation consequences
associated with a guilty plea [is] cognizable on habeas
despite Ex parte De Los Reyes' holding that
Padilla does not apply retroactively on
habeas?" Because we agree with the court of appeals that
Garcia's claim is a cognizable affirmative-misadvice
claim, and not a claim based on Padilla, we affirm
the judgment of the court of appeals.
Padilla & Ex parte De Los
was a native Honduran who was a lawful permanent resident. He
was federally indicted for trafficking a large quantity of
marijuana in his tractor-trailer while driving in Kentucky.
Padilla v. Kentucky, 559 U.S. 356, 359 (2010). He
pled guilty after his attorney advised him that he "did
not have to worry about immigration status since he had been
in the country so long." Id. However, under
federal law it was clear that if Padilla pled guilty, he
would be deported. The issue the Supreme Court had to resolve
was whether Padilla's counsel was deficient because he
had a duty to advise Padilla that he would be deported if he
pled guilty to the charge. Id.
Court held that defense attorneys do have such a duty.
According to the Court, if immigration law regarding
deportation is "not succinct and straightforward, "
defense attorneys must merely advise their clients that they
could be deported, but when the law is "truly
clear" that the defendant would be deported if
convicted, defense attorneys have a duty to "give
correct advice [that] is equally clear." Id. at
369. In Ex parte De Los Reyes, 392 S.W.3d 675, 679
(Tex. Crim. App. 2013), this Court decided that the duty
announced in Padilla is not retroactive. Thus, if
Garcia's claim is a Padilla claim, it is not
cognizable because the new rule announced in Padilla
is not retroactive. Id.
thorough and well-reasoned opinion, the court of appeals
exhaustively reviewed state and federal jurisprudence before
concluding that Garcia's claim is cognizable.
Osvaldo, 534 S.W.3d at 618-21. We will not rehash
its entire decision here. It suffices to say that the court
of appeals ultimately held that the crucial distinction
between Padilla and Garcia's claim boiled down to this:
Padilla imposed an affirmative duty to advise a client that
he would be deported in certain cases, but Garcia's claim
is not that his attorney had an affirmative duty to advise
him (like Padilla); rather, he is arguing that when his
attorney rendered immigration advice, which he was under no
obligation to render, he had a duty to state the law
correctly. His claim is more akin to bad-probation advice
claims and bad parole-eligibility claims, which we have
entertained for a number of years. State v. Recer,815 S.W.2d 730, 731 (Tex. Crim. App. 1991) (bad probation
advice); Ex parte Moussazadeh,361 S.W.3d 684 (Tex.
Crim. App. 2012) (bad parole-eligibility advice). We see no
reason for this Court to treat Garcia's claim regarding
deportation consequences different than other similarly
situated ineffective-assistance-of counsel claims. Lee v.
United States,137 S.Ct. 1958 (2017) (granting relief on
an involuntary plea claim based on attorney's ...