Brian D. Lerner, Attorney At Law Christopher Reed, Attorney at Law Law Offices of Brian D.

Lerner, APC 3233_East_Broadway Long Beach, CA 90803 Tel: (562) 495-0554 Fax: (562) 608-8672 Attorneys for Defendant SUPERIOR COURT OF THE STATE OF ARIZONA FOR THE COUNTY OF YUMA The People of the State of Case No.: CR 89-203-PHX-PGR Arizona, Plaintiff, vs. NOTICE OF MOTION; MOTION TO VACATE; MEMORANDUM OF POINTS AND AUTHORITIES; AND SUPPORTING DOCUMENTS Date: Time:

Macedonio Guerrero Defendant Courtroom: Judge: To: The People of the State of Arizona: COMES NOW, Defendant, Macedonio Guerrero (Hereinafter as as Defendant), by and through his attorney of record, and gives NOTICE, at the time specified by the Honorable Judge, or as soon thereafter as the matter may be heard, Mr. Guerrero will move, and hereby moves, to vacate the judgment entered on September 20, 1989 (CR 89203-PHX-PGR) for Attempted Transportation of a Narcotic Drug for Sale, a class three
1

felony, committed on January 24, 1989, in violation of Arizona Revised Statute sections 13-80113-3408(A)(7), 13-3408(B)(7), 13-3408(D), and 13-3408(E). In support, and as more fully set forth in the affidavit and memorandum filed herewith, Mr. Guerrero states that: 1 Defendants plea was not knowing and voluntary because neither his counsel nor the court advised him of the grave immigration consequences for pleading guilty to Attempted Transportation of a Narcotic Drug for Sale. His plea was thus unknowing and involuntary in violation of the Fourteenth Amendment of the United States Constitution. (Boykin v. Alabama (1969) 395 U.S. 238, 242-244) 2 Defendant was denied effective assistance of counsel when his trial counsel failed to advise him that deportation and exclusion from readmission to the United States were likely consequences for a conviction of Attempted Transportation of a Narcotic Drug for Sale. (8 U.S.C. 1227(a)(2)(A)(iii); 8 U.S.C. 1227 (a)(2)(B)(i); 8 U.S.C. 1182(a)(2)(A)(i)(II); 8 U.S.C. 1182(a)(9)(A)(i); Padilla v. Kentucky (2010) 130 S.Ct. 1473 [citing Strickland v. Washington (1984) 466 U.S. 668]. 3 Had Defendant been aware of the immigration consequences of his plea, that he could be deported from the United States and permanently inadmissible to the country, he would never have entered such a plea.

This motion is based on this notice of motion, the memorandum of points and authorities served and filed herewith, on the records on file in this action and on such other evidence as may be presented at the hearing on the motion.

Dated: 2012, Respectfully Submitted

________________________ Christopher Reed Attorney for Defendant

LIST OF EXHIBITS Exhibit

1 2 3 4 5 6 7 8 9 10 11 12

Document Presentencing Report Plea Agreement Declaration of Mr. Guerrero Indictment Letters of Support Marriage Certificate of Mr. Guerrero Birth Certificate of US born spouse Birth Certificate of All Four US Born Children High School Diploma of Mr. Guerrero Contractors License of Mr. Guerrero Social Security cards of Mr. Guerrero, Spouse, and All Children Tax Returns 2011, 2010, and 2009

This memorandum is submitted in support of Mr. Guerreros Motion to Vacate Conviction in the above-entitled matter. Mr. Guerrero requests this Court to vacate the conviction in this matter as it was imposed in violation of the Sixth and Fourteenth Amendments of the United States Constitution. Mr. Guerrero brings his claim under Rule 32.1 of the Rules of Arizona Criminal Procedure, which provides relief when there has been significant change in the law. Ariz. R. Crim. P. 32.1(g). This court has ruled that the rule announced in Padilla v. Kentucky 130 S. Ct. 1473 (2010) represents such a significant change in the law. State v. Poblete , 260 P.3d 1102 (Ariz. App.2011)

I.
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FACTUAL AND PROCEDURAL BACKGROUND

Macedonio Guerrero, was born on April 15, 1958, in Morales, Mexico. (Exhibit 3). Mr. Guerrero first entered the United States in 1971 at the age of 13. (Exhibit 3). Mr. Guerrero had a valid green card and was able to legally reside and work in the United States. (Exhibit 3). His wife, Pauline, and children, John, Daniel, Rosalida, and Sarah are all U.S. Citizens (Exhibits 3, 8, 9). On January 24, 1989, the Southwest Border Alliance observed an individual arriving at Mr. Guerreros residence. (Exhibit 1). He left Mr. Guerreros residence holding a small package. (Exhibit 1). The Highway Patrol executed a stop and searched his vehicle. (Exhibit 1). A plastic bag containing three ounces of cocaine was under the vehicle console. (Exhibit 1). On April 17, 1989, an indictment was filed in the Superior Court, Yuma County, Arizona, charging Mr. Guerrero with felony crimes, including: count (1) Conspiracy to Transfer a Narcotic Drug, count (2) Transfer of a Narcotic Drug and count (3) Transporting a Narcotic Drug for Sale. (Exhibit 1). On September 20, 1989, Mr. Guerrero entered an Alford plea for attempted transportation of a narcotic drug for sale, in violations of sections 13-1001, 133408(A)(7), 13-3408(B)(7), 13-3408(D), and 13-3408(B) of the Arizona Revised Statute. (Exhibit 4). When entering the plea, the presiding judge did not advise Defendant of the immigration consequences (Exhibit 3) of his plea. Defendant was sentenced to five years in prison. (Exhibit 3). However, he was released early on good behavior after two and a half years. (Exhibit 3).

Throughout the proceedings, Mr. Guerrero was represented by Michael Terribile. (Exhibit 3). Mr. Terribile never fully advised Mr. Guerrero that in pleading guilty to a charge of attempted transportation of a narcotic, he could be subjected to removal from, and made inadmissible to, the United States. (Exhibit 3). Nor did Mr. Terribile negotiate a plea agreement that would have been less likely to subject Mr. Guerrero to immigration consequences. (Exhibit 3). To this day, Mr. Guerrero maintains that he is innocent of the crime for which he was convicted. (Exhibit 3). Mr. Terribile spent a mere five minutes with Mr. Guerrero before he had to enter his plea. (Exhibit 3). Mr. Terribile told Mr. Guerrero that the State had no evidence against him, yet advised him to enter a plea. He entered the Alford Plea at the time because of the many risks involved. (Exhibit 1, 3). Since he had to support his wife and four small children, he did not want to take the risk by going to trial and possibly being jailed for far longer than five years. (Exhibit 1, 3). Therefore, Mr. Guerrero took Mr. Terribiles advice and pled guilty. (Exhibit 3). Had Mr. Guerrero been aware of the immigration consequences, he would have rejected the plea and gone to trial. Upon being released in 1992, the Immigration and Naturalization Services had initiated deportation proceedings. It was then that Mr. Guerrero was notified of the immigration consequences of his guilty plea, including deportation. (Exhibit 3). Mr. Guerrero sought help and had his attorney, Bill Garvich, file for relief under INA section 212(h) in 1993, but his application was denied (Exhibit 3). His attorney appealed this denial and told Mr. Guerrero to wait for the response in the mail. Mr. Guerrero never received this response, and moved to San Diego after his parole ended.
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His attorney left the case after the funding of the community service project under which he was working was ended. In 2004 Mr. Guerrero was arrested from his home in San Diego by ICE. Although his new attorney, William Baker of Moreno Associates, filed a motion to stay deportation with the Ninth Circuit, but it was denied as it was entered over thirty days after the decision. Mr. Guerrero was deported and remained in Mexico for three months, returning to the US in 2005, where he has lived since. Since Mr. Guerreros sole conviction, he has lived a stellar life. (Exhibit 3, 5, 10, 11). He graduated from Poly Tech High School, Long Beach, California in 1977 with good grades and attended such vocational schooling as auto technician trade school. (Exhibit 1, 10). For the last 41 years, Mr. Guerrero has worked hard as a plumber, electrician, construction worker, and auto technician, in an effort to support himself and his family in the United States. (Exhibit 3). He has paid his taxes and has concentrated on his childrens education. (Exhibit 3, 5, and 13). Three of his siblings also reside in the US. (Exhibit 5) Mr. Guerrero does not know a life outside the United States. (Exhibit 3, 5).

II ARGUMENT

The Judgment Must Be Vacated Because Mr. Guerreros Plea Was Not Knowing and Voluntary in Violation of His Due Process Rights under the Fourteenth Amendment. If a defendant pleads guilty without an understanding of the proceedings, justice

cannot be done. (Boykin v. Alabama (1969) 395 U.S. 238, 242-244.) To comport with due process, a defendant's guilty plea must be voluntary, knowing and intelligent; a plea can only be voluntary if the defendant entered the plea while aware of the circumstances and consequences of his plea. (Brady v. United States, 397 U.S. 742, 748 (1970)). Here, because Defendant did not understand the full range of immigration consequences of his guilty plea, he did not enter into it knowingly and voluntarily. First, Mr. Guerrero did not receive any advice regarding the serious immigration consequences of a guilty plea. Mr. Guerrero had a strong desire to live in the United States. His family was living with him in Arizona, including all his US born children. His wife had no ties in Mexico and was not fluent in Spanish. Mr. Guerrero was the breadwinner of the house and the sole caretaker of his family. However, Mr. Guerrero, being uninformed of the consequences, pled guilty to an aggravated felony which, at the time of his conviction, meant probable deportation (as will be explained below).

Mr. Guerrero was not aware of any of the grave immigration consequences to pleading guilty. When Mr. Guerrero plead guilty, he believed, at most, he would lose his permanent residence status. (Exhibit 1). Neither his attorney nor the court advised him of the consequences to his immigration status. Mr. Guerreros counsel, Mr. Terribile, failed to advise him of the immigration consequences of his guilty plea. Mr. Terribile spent only five minutes with Mr. Guerrero before he had to enter his plea, and had hardly any time to think about it. (Exhibit 3). Mr. Guerrero felt rushed and forced to enter the plea. Exhibit 3. As a result of his attorneys failure to inform his client of the consequences of a guilty plea, Mr. Guerreros understanding of the proceedings and the meaning of his guilty plea were considerably diminished. Furthermore, Arizona Statute 17.2(f), requiring a judge to advise a defendant of the immigration consequences of a plea was not mandatory until 2004. Thus at the time, of Mr. Guerreros case, the court had no statutory duty to advise him of the immigration consequences, and there is no evidence it did. Neither does the plea agreement reflect such advisement. (Exhibit 2). As discussed below, immigration consequences are significant factors for a defendant to consider when faced with a plea. The fact that he was not informed of the consequences of his plea makes his plea unknowing and involuntary. In these circumstances, the guarantee of due process of law under the Fourteenth Amendment of the United States Constitution and Article II section 24 of the Arizona Constitution requires that Defendants guilty plea be vacated.

B. The Judgment Must Be Vacated Because Mr. Guerrero Was Denied Effective Assistance of Counsel in Violation of his Sixth Amendment Rights. The negotiation of a plea agreement is a critical phase of the criminal process which necessitates the protections of the Sixth Amendment right to effective assistance of counsel. (Padilla v. Kentucky, supra, 130 S.Ct., at p. 1486 [citing Hill v. Lockhart, (1985) 474 U.S. 52, 57.) During plea negotiations, a criminal defendant must be able to rely on and expect competent advice and representation from his or her attorney. Indeed, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea. (Padilla v. Kentucky, supra, 130 S.Ct. at p. 1485). This is especially so in the case of a non-citizen defendant, where the risk of exile from the country is at stake. (Padilla v. Kentucky, supra, 130 S.Ct. at p. 1486.) Recognizing the significant importance of informing criminal defendants that a guilty plea may carry immigration consequences, the State of Arizona enacted Arizona Rule of Criminal Procedure 17.2(f), which states, [b]efore accepting a plea of guilty or no contest, the court shall address the defendant personally in open court, informing him or her of and determining that he or she understands the following . . . (f) that if he or she is not a citizen of the United States, the plea may have immigration consequences. Specifically, the court shall state, if you are not a citizen of the United States, pleading guilty or no contest to a crime may affect your immigration status. Admitting guilt may result in deportation even if the charge is later dismissed. Your plea or admission of guilt could result in your deportation or removal, or could prevent you from becoming a United States citizen. The court shall also give the advisement in this section prior to finding of guilt or prior to any submission on the record. The defendant shall not be required to disclose his or her legal status in the United States to the court. Despite the courts statutory duty, Arizona case law had provided that an attorneys failure to advise a defendant of the immigration consequences of his or her plea was not ineffective assistance of counsel because such advice related to a
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collateral matter. (State v. Rosas (1995) 183 Ariz. 421, 423.) However, in 2010, the United States Supreme Court held that an attorneys failure to advise a criminal defendant of the immigration consequences of a guilty plea constitutes deficient performance. (Padilla v. Kentucky, supra, 130 St.Ct. at p. 1483.) However this court ruled in Poblete that the rule announced in Padilla did not have retroactive effect in cases in which a final decision was rendered prior to Padilla. We challenge this decision.

The Padilla Decision applies Retroactively in the Present Case as it did Not Institute a New Rule State and federal courts have differed as to whether the rule in Padilla, that a competent attorney must discuss deportation consequences of a guilty plea with his alien client, applies retroactively The Seventh Circuit in Chaidez v. U.S. , 655 F.3d 684, 688, 694 (7th Cir. 2011), cert. granted, April 30, 2012 decided that Padilla was not retroactive while the Tenth Circuit reached the same conclusion in United States v. Hong, 2011 WL 3805763 (10th Cir.2011). However the Third Circuit determined that Padilla did in fact apply to cases in which a final decision had been reached. United States v. Orocio, 645 F.3d 630 (3d Cir. 2011) Among state supreme courts, New Jersey has held Padilla not to be retroactive State v. Gaitan , 37 A.3d 1089 (S.Ct. N.J. 2012) while Maryland, Massachusetts and Georgia have reached the opposite conclusion. Denisyuk v. State, 30 A.3d 914, 925 (Md. 2011) Commonwealth v. Clarke, 949 N.E.2d 892, 903 (Mass. 2011); Smith v. State, 697 S.E.2d 177, 183 (Ga. 2010) Among state intermediate courts, a number have agreed with Arizona that Padilla is not retroactive See State v.Abukhalil , 2012 Ohio 1639 (Ohio App. 2012); Perez v. State, 807 N.W.2d 157 (Iowa App. 2011); Gale v. State, 57 So.3d 218 (Fla. App. 2011); State v. Alegrand, 23 A.3d 1250 (Conn. App. 2011);Gomez v. State, 2011WL 1797305 (Tenn. Crim. App. 2011); Hernandez v. State , 61 So.3d 1144 (Fla. App. 2011); Miller v.
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State, 11 A.3d 340 (Md. App. 2010). Other state intermediate courts have reached the opposite opinion See , e.g., People v. Gutierrez, 954 N.E.2d 365 (Ill. App. Ct. 2011); Campos v. State, 798 N.W.2d 565 (Minn. Ct.15 App. 2011); People v. Reynoso, 88 A.D.3d 1162 (N.Y. App. Div. 2011); Ex parte Tanklevskaya, 361 S.W.3d 86 (Tex. App. 2011). The difference of opinion hinges on the question of whether Padilla instituted a new rule. According to the rule formulated in Teague , retroactivity is applicable only when it is merely an application of the principle that governed, a previous Supreme Court decision, not a new rule. Teague v. Lane, 489 U.S 288, 307 (1989). By contrast, a new rule breaks new ground or imposes a new obligation on the States or the Federal Government. App. 7, 12, (citing Teague, 489 U.S. at 301). [A] case announces a new rule if the result was not dictated by precedent existing at the time the defendants conviction became final. App. 7, 12 (citing Teague, 489 U.S. at 301). Overruling a previous case creates new law. App. 7, 12 (citing Saffle v.Parks, 494 U.S. 484, 488 (1990)). Pobelete was incorrect in deciding that the Padilla announced a new rule, rather than an application of the Strickland test to the facts of a new case. The language of Strickland is clearly broad; it dos not list a particular set of obligations that an attorney must meet but rather requires that counsel must exhibit reasonableness under prevailing professional norms. Strickland, at 688. This language clearly contemplates changing circumstances and a case by case analysis. The Supreme Court has found that applying Strickland to new facts does not constitute a new rule:

12

It is past question that the rule set forth in Strickland qualifies as clearly established Federal law, as determined by the Supreme Court of the United States. That the Strickland test of necessity requires a case-by case examination of the evidence, Wright, 505 U.S., at 308 (Kennedy, J., concurring in judgment), obviates neither the clarity of the rule nor the extent to which the rule must be seen as established by this Court. Williams, 529 U.S. at 391. In Greene v. Fisher , 132 S. Ct. 38, __ (2011), this Court has explained that applying Strickland to attorneys failures to perform tasks beyond the facts of Strickland itself can hardly be said to break[] new ground or impose[] a new obligation on the States,Williams, 529 U.S at 391 (quoting Teague, 489 U.S. at 301). And in fact the Supreme Court has applied to a variety of fact scenarios Rompilla v. Beard, 545 U.S. 374 (2005) (failure to investigate nature of clients prior conviction), Wiggins v. Smith, 539 U.S. 510 (2003) (failure to conduct sufficient investigation concerning clients background), and Williams, 529 U.S. 362 (same) Similarly, the Padilla decision was merely an application of the Strickland test to a new set of facts and changing circumstances. In the wake of significant changes in immigration law, particularly the Congressional passage of the IIRIRA, which legislated mandatory deportation and other grave consequences for certain criminal offenses, professional norms evolved to include the duty of counsel to inform defendants about the possible deportation consequences of certain pleas. Padilla, 130 S Ct. at 1481-82 (citing various sources). Thus, the Court applied the Strickland doctrine and concluded that Padillas counsel had fallen short of the professional norms of the legal community. The

13

Padilla decision was thus a fact-specific application of Strickland, and not the establishment of a new rule. This Court also supported its argument that Padilla constituted new law for retroactive purposes by pointing out that Padilla overturned Arizonas collateral consequences rule, established by State v. Rosas, 904 P.2d 1245, 1247 (Ariz. App 1995) However, as indicated above, since the Rosas decision in 1995, significant changes had taken place in the legal landscape, highlighting the intersection of criminal and immigration law. As of April 1 1997, the date of the Illegal Immigration Reform and Immigrant Responsibility Act, a long list of aggravated felonies, were identified which mandated deportation. As indicated above, as of 2004 judges in Arizona were required to state any immigration consequences to aliens before accepting their pleas. See Ariz. R. Crim. P. 17.2 This new rule indicates that the change in the legal landscape had reached Arizona. Thus the use of Rosas as a standard to determine that Padilla constituted new law is faulty, as professional norms had long since evolved since its time.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate that his trial counsels performance was deficient and that the deficient performance prejudiced the defense. (Strickland v. Washington, supra, 466 U.S. at p. 687; State v. Gerlaugh (1985) 144 Ariz. 449, 455; State v. Nash (1985) 143 Ariz. 392, 397-98.) The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984) sets forth the test for claims of ineffective assistance of counsel under the Sixth Amendment:
14

First, the Defendant must show that the counsels performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. The defendant bears the burden of establishing both prongs of the test. (Strikcland v. Washington, supra, 466 U.S., at p. 687.) Deficient performance requires a showing that the attorneys performance was objectively unreasonable under prevailing professional norms. (Id. at p. 688.) On the other hand, prejudice focuses on the question of whether counsels deficient performance renders the results of the trial unreliable or the proceeding fundamentally unfair. (Lockhart v. Fretwell (1993) 506 U.S. 364, 372 [113 S.Ct. 838.) To make a showing of prejudice, a defendant must establish a reasonable probability that but for counsels unprofessional errors, the result of the proceeding would have been different. (Padilla v. Kentucky, supra, 130 S.Ct. at p. 1482 [quoting Strickland v. Washington, supra, 466 U.S. at p. 690].) Defense counsel has an affirmative duty to advise a defendant of the immigration consequences of a guilty plea. (Padilla v. Kentucky, supra, 130 S.Ct. at pp. 1486-1487.) Longstanding Sixth Amendment precedents, the seriousness of deportation [and inadmissibility] as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less. (Id. at p. 1486.) Accordingly, incompetent advice distorts the defendant's decision-making process and seems to call the fairness and integrity of the criminal proceeding itself into question. (Id. At p. 1493)
15

Here, Mr. Guerreros trial counsel, Mr. Terribile, rendered ineffective assistance of counsel where he failed to adequately inform Mr. Guerrero of the immigration consequences of his plea; and failed to negotiate a plea agreement that would have been less likely to carry immigration consequences.

Counsels failure to advise Defendant regarding the immigration consequences of a guilty plea fell below an objective standard of reasonableness. The Sixth Amendment of the Constitution guarantees a criminal defendant the

right to counsel. Furthermore, if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts. (McMann v. Richardson (1970) 397 U.S. 759, 771). In other words, the Court has recognized that the right to counsel is futile unless counsel is competent. The U.S. Supreme Court in Padilla v. Kentucky, 559 U. S. ____ (2010), 130 S. Ct. 1473 (2010), recently applied Strickland in the context of immigration advisals or lack thereof. In Padilla, the defendant, a Vietnam War veteran, was subject to

deportation/removal after pleading guilty to the transportation of a large amount of marijuana. Id. at 1477. In post-conviction proceedings, Padilla argued that his counsel not only failed to advise him of the immigration consequences of his guilty plea, but also gave him affirmative misleading information. Id. at 1478. Thus, Padilla sought postconviction relief arguing that he was denied his right to effective assistance of counsel under the Sixth Amendment. Id. However, the Supreme Court of Kentucky denied
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Padilla's claim, finding that the Sixth Amendments guarantee to effective assistance of counsel did not protect a criminal defendant from erroneous advice about deportation/removal because deportation/removal is merely a collateral consequence of a criminal conviction. Id. The U.S. Supreme Court reversed this denial, holding that in light of the severity of deportation/removal and the reality that immigration consequences of criminal convictions are inextricably linked to criminal proceedings, the Sixth Amendment requires defense counsel to provide affirmative and competent advice regarding the immigration consequences of a guilty plea. Id. at 1478-79. The Court explained that absent such advice, an alien may raise a claim of ineffective assistance of counsel, if prejudice, the second prong in the Strickland test, is established. Id. at 1478. The Court also clarified that the Sixth Amendment encompasses acts of commission, i.e., erroneous advice, and acts of omission, i.e., failure to advise. Id. at 1484. Thus, the Court

concluded that Padilla's counsels failure to provide her client with available advice about an issue such as deportation clearly satisfied the first prong of the Strickland test." Id. (quoting Hill v. Lockhart, 474 U.S. 52, 62, (1985). In the present case, the issue is whether Mr. Terribiles representation of his client, Mr. Guerrero, fell below an objective standard of reasonableness. 466 U. S. at 688. In the context of criminal proceedings and immigration advice, the weight of prevailing professional norms supports the view that counsel must advise his or her clients regarding the risk of deportation and other immigration consequences, especially when the risk and law is clear and straightforward. Padilla, 130 S.Ct. at 1482-83. Padilla

17

held that where the immigration consequences are truly clear, the duty to give correct advice is equally clear.1 (Padilla v. Kentucky, supra, 130 S.Ct. at p. 1482.) Here, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequences of Mr. Guerreros conviction. (Padilla v. Kentucky, supra, 130 S.Ct. at p. 1483.) Mr. Guerrero pled guilty of attempted transportation of a narcotic drug for sale. The Anti-Drug Abuse Act of 1988, which went into effect in November 18, 1988, amended the Immigration and Nationality Act by adding
INA 101(a)(43), which defined an aggravated felony to include any drug trafficking crime as defined in 18 U.S.C. 924(c) or Section 102 of the Controlled Substances Act.2 In addition, the statute drastically reduced the procedural rights of aggravated felons in removal proceedings, directing the Attorney General to expedite deportation proceedings for such persons even while still in prison, so they could actually be deported upon their release. A noncitizen convicted of an aggravated felony was conclusively presumed to be deportable from the United States.3

Thus, nearly a full year before Mr. Guerreros plea, the relevant law had defined drug trafficking as an aggravated felony and stated that noncitizens were presumptively deportable from the United States. The language of the statute was succinct and clear both as to what types of crimes constituted aggravated felonies as well as the heightened consequences for noncitizens convicted of aggravated felonies. However, despite the fact that Mr. Guerreros plea carried significant immigration consequences, he was never informed of those consequences by Mr. Terribile. (Exhibit 3). Thus, given the clarity of
1

1 2 3

The Supreme Court in Padilla made clear that its holding was not limited to affirmative misadvice, but that it included a failure to simply advise a non-citizen client of the immigration consequences of a plea. (Padilla v. Kentucky, supra, 130 S.Ct. at pp. 1484-1486.)

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 7341, 102 Stat. 4181 (November 18, 1988). Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 7347, 102 Stat. 4181 (November 18, 1988), adding INA 242A(c), 8 U.S.C. 1252a(c). 18

the statute, Mr. Terribiles failure to advise his client of the immigration consequences constituted an omission which fell below an objective standard of reasonableness. Furthermore, Mr. Terribile failed to negotiate a plea agreement that would have been less likely to carry immigration consequences. Although Mr. Terribile acknowledged that the prosecutions case against Mr. Guerrero was very weak, there is no evidence that he attempted to negotiate an offer which would not carry immigration consequences, such as possession. (Exhibit 3). even a plea which had harsher criminal consequences but would not have mandated deportation would have been preferable. If that was not possible, defense counsel could have at least insisted that Mr. Poblete seek counsel from an immigration attorney before accepting a plea. Given Mr. Guerreros ties to the United States and his desire to live in this country, there is little doubt that Mr. Guerrero would have taken an offer which included over five years of incarceration with no immigration consequences as opposed to five years of incarceration and possible deportation from the United States for life. (Exhibit 3). Had he been aware of the full extent of the immigration consequences of his plea, it is highly unlikely that he would have entered into it. Mr. Guerrero would not have risked losing his wife and four small children forever. (Exhibit 3). In addition, Mr. Guerrero was not advised that the criminal court judge could have signed a Judicial Recommendation Against Deportation (JRAD). Under JRAD, criminal court judges were given the authority to determine whether the defendant before them could evade deportation. (Immigration Act of 1917, ch. 29, 19, 39 Stat. 874, 88990 (codified in 8 U.S.C. 1251(b) (1994 ed.). The judge would make this decision based on the defendants family situation, criminal record, community ties, and evidence of rehabilitation. Though this doctrine has been presently abolished and replaced by Immigration & Nationality Act of 1990, it was in effect at the time of Mr. Guerreros trial
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and there would have been a high likelihood that the judge presiding his case would have ruled in favor of Mr. Guerrero during his plea in 1989. Mr. Guerrero had been living in AZ for a considerable amount of time, as the sole breadwinner for a family including four small children, and had no previous felony conviction on his criminal record (Exhibit 1, 3). Thus, this is not a difficult case in which to find deficiency as the consequences of Defendants plea could easily be determined from reading the relevant status and regulations and his counsels advice was incorrect.

On these facts, Mr. Terribiles failure to investigate, advise and utilize defense alternatives to a guilty plea to transportation of narcotic drugs constituted deficient performance. Had Mr. Guerrero been adequately informed of the immigration consequences of his plea, he would not have entered into it. Counsels ignorance of the applicable law in the instant case fell below an objective standard of reasonableness.

Mr. Guerrero Was Prejudiced By His Counsels Failure to Advise on the Immigration Consequences of His Plea, Leading to Deportation and a Permanent Bar on Re-entry.

The second prong in the Strickland test requires the defendant to show that he or she suffered prejudice as a result of counsel's constitutionally deficient performance. Prejudice focuses on the question of whether counsels deficient performance renders the results of the trial unreliable or the proceeding fundamentally unfair. (Lockhart v. Fretwell (1993) 506 U.S. 364, 372 [113 S.Ct. 838.) The Supreme Court has held that to show prejudice, a defendant must establish a reasonable probability that but for
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counsels unprofessional errors, the result of the proceeding would have been different. (Padilla v. Kentucky, supra, 130 S.Ct. at p. 1482; State v. Gerlaugh (1985) 144 Ariz. 449, 455; State v. Nash (1985) 143 Ariz. 392, 397-98.) In other words the defendant must show that the decision to reject the plea bargain would have been rational under the circumstances. Padilla, 130 S.Ct. at 1485. At the time of his conviction, Mr. Guerrero had been living and raising his family in the United States. (Exhibit 3). He believed that he was legally present in the United States on a valid, unexpired green card. (Exhibit 3). He was working as an electrical contractor and supporting his wife and four small children. (Exhibit 3). All four of Mr. Guerreros children, including his wife, were born in the United States. (Exhibit 3, 8, 9). They knew no other life outside of the United States. In addition to his wife and children, Mr. Guerrero has a close-knit extended family living in the United States. Three of his brothers and their families live here as well. (Exhibit 3, 4). In light of Mr. Guerreros

lengthy and significant ties to the United States, including his U.S. citizen family members, it is clear that the ability and right to stay in the U.S. would have been the primary consideration in his decision to enter into a plea agreement with the State. ((Exhibit 3); See also Padilla v. Kentucky, supra, 130 S.Ct. at p. 1483, preserving the clients right to remain in the United States may be more important to the client than any potential jail sentence [citing St. Cyr (1999) 533 U.S. at 323]). On September 20, 1989, Mr. Guerrero agreed to waive his preliminary hearing and plead guilty to an amended count 3, Attempted Transportation of a Narcotic Drug. He met his defense counsel, Mr. Terribile, shortly before he pled guilty. The first thing Mr. Terribile said to Mr. Guerrero when discussing the case was that the prosecutions
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case was very weak. (Exhibit 3). When Mr. Guerrero asked why a trial shouldnt be an option, Mr. Terribile responded that if he loses, he could be put away for a considerable amount of time. (Exhibit 3). He did not mention that he could be deported and permanently banned from re-entering the country. (Exhibit 3). When Mr. Guerrero asked for probation, Mr. Terribile responded that it is impossible for the prosecution to give probation, as they have spent too much money on his case. (Exhibit 3). Mr. Guerrero had an inkling that perhaps his green card would be taken away, but he did not think that there would be more serious immigration consequences than that. (Exhibit 3).Mr. Guerrero consistently denied that he committed the crime. (Exhibit 1, 3). However, he did not want to risk being away from his family for an extended period of time. Because of the coincidences involved, Mr. Guerrero entered an Alford Plea after the encouragement of his attorney and panic. (Exhibit 1, 2, 3). However, at the time he pled, he was unaware of the immigration consequences of his conviction, due to his attorneys failure to advise him. (Exhibit 3). As a result of this plea, Mr. Guerrero was subjected to mandatory removal and became inadmissible to the United States. (8 U.S.C.

1227(a)(2)(B)(i); 8 U.S.C. 1182(a)(2)(A)(i)(II).) Indeed, subsequent to being released from prison on good behavior within two and a half years, Mr. Guerrero was deported. Thus, had Mr. Guerrero been fully aware of the immigration consequences of his plea, there is certainly a reasonable probability that he would not have chosen to enter into it. He would have attempted new negotiations with the District Attorney and explored other discretionary possibilities. (Exhibit 3).If further negotiations had not worked, Mr. Guerrero would have insisted on going to trial, since Mr. Terribile had said that the prosecution had a weak case. (Exhibit 3). Given the fact that Mr. Guerrero had
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strong ties to the United States, and the fact that the prosecutions case was weak, Mr. Guerrero would have definitely asked for a better plea or risked going to trial in order to avoid the harsh and unexpected immigration consequences. It is clear that Mr. Guerrero had a triable case had this case gone to trial, and it is certainly a possibility that a jury would not have convicted Mr. Guerrero under these circumstances. (Exhibit 3). Thus the result of the proceedings would have been different if trial counsel had fully advised Mr. Guerrero of the immigration consequences of his plea. But for Mr. Terribiles failure to advise Mr. Guerrero of the immigration consequences of his plea, Mr. Guerrero would not have pled guilty and would have insisted on a better plea or gone to trial. (Exhibit 3). Mr. Guerrero was prejudiced by Mr. Terribiles ignorance of the applicable law in his case. As such, Mr. Guerrero has established prejudice as a result of his counsel's deficient performance and therefore, has satisfied the second prong in the Strickland test.

Retroactivity of Padilla State and federal courts have differed as to whether the rule in Padilla, that a competent attorney must discuss deportation consequences of a guilty plea with his alien client, applies to cases in which a final decision was issued prior to Padilla. The Seventh Circuit in Chaidez v. U.S. , 655 F.3d 684, 688, 694 (7th Cir. 2011), cert. granted, April 30, 2012 decided that Padilla was not retroactive while the Tenth Circuit reached the same conclusion in United States v. Hong, 2011 WL 3805763 (10th Cir.2011). However the Third Circuit- the only other Circuit to publish a decision on the issue- determined that Padilla did in fact apply to cases in which a final decision had been reached. United States v. Orocio, 645 F.3d 630 (3d Cir. 2011) Among state supreme courts, New Jersey has held Padilla not to be retroactive State v. Gaitan , 37 A.3d 1089 (S.Ct. N.J. 2012) while Maryland, Massachusetts and Georgia have reached the opposite conclusion. Denisyuk v. State , 30 A.3d 914, 925 (Md. 2011)
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Commonwealth v. Clarke , 949 N.E.2d 892, 903 (Mass. 2011); Smith v. State , 697 S.E.2d 177, 183 (Ga. 2010) Among state intermediate courts, a number have agreed with Arizona that Padilla is not retroactive See State v.Abukhalil , 2012 Ohio 1639 (Ohio App. 2012); Perez v. State, 807 N.W.2d 157 (Iowa App. 2011); Gale v. State, 57 So.3d 218 (Fla. App. 2011); State v. Alegrand, 23 A.3d 1250 (Conn. App. 2011);Gomez v. State, 2011WL 1797305 (Tenn. Crim. App. 2011); Hernandez v. State , 61 So.3d 1144 (Fla. App. 2011); Miller v. State, 11 A.3d 340 (Md. App. 2010).Other state intermediate courts have reached the opposite opinion See , e.g., People v. Gutierrez, 954 N.E.2d 365 (Ill. App. Ct. 2011); Campos v. State, 798 N.W.2d 565 (Minn. Ct.15 App. 2011); People v. Reynoso, 88 A.D.3d 1162 (N.Y. App. Div. 2011); Ex parte Tanklevskaya, 361 S.W.3d 86 (Tex. App. 2011); The difference of opinion hinges on the question of whether Padilla instituted a new rule. According to the rule formulated in Teague , retroactivity is applicable only when it is merely an application of the principle that governed, a previous Supreme Court decision, not a new rule. Teague v. Lane, 489 U.S 288, 307 (1989). By contrast, a new rule breaks new ground or imposes a new obligation on the States or the Federal Government. App. 7, 12, (citing Teague, 489 U.S. at 301). [A] case announces a new rule if the result was not dictated by precedent existing at the time the defendants conviction became final. App. 7, 12 (citing Teague, 489 U.S. at 301). Overruling a previous case creates new law. App. 7, 12 (citing Saffle v.Parks, 494 U.S. 484, 488 (1990)). Pobelete was incorrect in deciding that Padilla announced a new rule and thus was not retroactive. Applying the Strickland test to the facts of Padilla does not create a new law. The language of Strickland is clearly broad; it dos not list a particular set of obligations that an attorney must meet but rather requires that counsel must exhibit reasonableness under prevailing professional norms. This language clearly contemplates changing circumstances and a case by case analysis. The Supreme Court has found that applying Strickland to new facts does not constitute a new rule: It is past question that the rule set forth in Strickland qualifies as clearly established Federal law, as determined by the Supreme Court of the United States. That the Strickland test of necessity requires a case-by case examination of the evidence, Wright, 505 U.S., at 308 (Kennedy, J., concurring in judgment), obviates neither the clarity of the rule nor the extent to which the rule must be seen as established by this Court. Williams, 529 U.S. at 391.
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In Greene v. Fisher , 132 S. Ct. 38, __ (2011), this Court has explained that applying Strickland to attorneys failures to perform tasks beyond the facts of Strickland itself can hardly be said to break[] new ground or impose[] a new obligation on the States,Williams, 529 U.S at 391 (quoting Teague, 489 U.S. at 301). And in fact the Supreme Court has applied to a variety of fact scenarios Rompilla v. Beard , 545 U.S. 374 (2005) (failure to investigate nature of clients prior conviction), Wiggins v. Smith, 539 U.S. 510 (2003) (failure to conduct sufficient investigation concerning clients background), and Williams , 529 U.S. 362 (same)

Thus, the Padilla decision was merely an application of the Strickland test to a new set of facts. In the wake of significant changes in immigration law, particularly the Congressional passage of the IIRIRA, legislating mandatory deportation and other grave consequences for certain criminal offenses, professional norms evolved to include the duty of counsel to inform defendants about the possible deportation consequences of certain pleas. Padilla, 130 S Ct. at 1481-82 (citing various sources). Thus, the Court applied the Strickland doctrine and concluded that Padillas counsel had fallen short of the professional norms of the legal community. The Padilla decision was thus a factspecific application of Strickland, and not the establishment of a new rule. The Court of Appeals also supported its argument that Padilla constituted new law for retroactive purposes by pointing out that Padilla overturned Arizonas collateral consequences rule, established by State v. Rosas, 904 P.2d 1245, 1247 (Ariz. App. 1995) However, as indicated above, since the Rosas decision in 1995, significant changes had taken place in the legal landscape, highlighting the intersection of criminal and immigration law. As of April 1 1997, the date of the Illegal Immigration Reform and Immigrant Responsibility Act, a long list of aggravated felonies, were identified which mandated deportation. As of 2004 judges in Arizona were required to state the immigration consequences before accepting a plea. See Ariz. R. Crim. P. 17.2 This new rule indicates that the change in the legal landscape had reached Arizona. Thus the use of Rosas to determine that Padilla constituted new law is faulty, as Rosas was outdated by the time Padilla was decided; professional norms had long since evolved.
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strickland at 688 reasonableness under prevailing professional norms.

Under this legal framework, it is clear that Mr. Guerrero was denied effective assistance of counsel as required under the Sixth Amendment and therefore, his plea should be withdrawn and his conviction vacated.

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III. CONCLUSION Based on the foregoing, Defendant respectfully requests this Court to vacate the conviction in this matter due to violations of his federal and state constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article II section 24 of the Arizona Constitution. This result will achieve substantial justice.

Dated

Respectfully submitted,

Christopher Reed

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PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I, _____, declare that I am over the age of eighteen years and not a party to the within entitled action. I am a resident of and am employed in the County of Los Angeles, State of California. On __________________, 2011, I served the document(s) described as: NOTICE OF MOTION; MOTION TO VACATE CORAM NOBIS; MEMORANDUM OF POINTS AND AUTHORITIES; AND SUPPORTING DOCUMENTS on the interested parties in this action by delivering a true copy thereof to: Yuma County ____ (BY MAIL) I am familiar with the firms practice for collection and processing of correspondence for mailing, and above document(s), with postage thereon fully prepaid, will be deposited with the United States Postal Service on the date herein above in the ordinary course of business at Long Beach, California. ____ (BY PERSONAL SERVICE) I caused such document(s) to be delivered by hand to the office(s) of the addressee(s). ___ (BY OVERNIGHT COURIER) I caused the above-referenced document(s) to be delivered to an overnight courier service for delivery to the addressee(s). ___ (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this day, _____________, 2011, at Long Beach, CA. _______________________________

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