Cazun v. State

When it is “truly clear” that removal from this country will result from a guilty plea, a trial counsel must advise a client that deportation is presumptively mandatory. Padilla v. Kentucky, 559 US 356, 369, (2010)

Petitioner, (non-United States citizen), plead guilty to one count of second-degree theft. After she sought post-conviction relief, the post-conviction court denied her claims: first, that trial counsel was constitutionally ineffective; and second, that her plea was invalid for not being knowing, voluntary, and intelligent. She argued that under Padilla and Diaz-Lizarraga, counsel’s failure to properly advise her of the immigration consequences of her guilty plea was constitutionally ineffective and prejudiced her. Petitioner also argued that because of counsel’s failure to properly advise her, she could not have entered a plea that was knowing, voluntary, or intelligent. Under Padilla, defense counsel is constitutionally required to provide advice regarding the risk of deportation upon a defendant’s guilty plea “when the deportation consequence is truly clear.” Padilla v. Kentucky, 559 US 356, 369, 130 S Ct 1473, 176 L Ed 2d 284 (2010). The deportation consequence of Petitioner’s plea was not clear at the time of her decision, and the holding that Diaz-Lizarraga did not apply retroactively was issued after Petitioner’s guilty plea. Furthermore, it was not a case where any competent attorney would have been able to discern the immigration consequences of the plea. Because of these reasons, the Court held that Petitioner did not establish that trial counsel was ineffective. Therefore, the post-conviction court did not err in its conclusions. AFFIRMED.