April 16, 2012 – State of New Mexico v. Martin Ramirez, a/k/a Richard G. Sanchez, No. 30,205

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	____________
Filing Date: 	April 16, 2012
NO. 30,205
STATE OF NEW MEXICO,
Respondent-Appellee,
v.
MARTIN RAMIREZ, a/k/a
RICHARD G. SANCHEZ,
Petitioner-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alan M. Malott, District Judge
Gary K. King, Attorney General
William Lazar, Assistant Attorney General
Santa Fe, NM
for Appellee
Dane Eric Hannum, Attorney at Law
Dane Eric Hannum
Albuquerque, NM
for Appellant

The Appellate Law Office of Scott M. Davidson
Scott M. Davidson
Albuquerque, NM
Amicus Curiae for New Mexico Criminal Defense Lawyers Association

OPINION
KENNEDY, Judge.
{1} 	Martin Ramirez, a/k/a Richard Sanchez, (Petitioner) appeals the district court’s
denial of his writ of coram nobis, which sought to vacate Petitioner’s twelve-year-old
conviction due to ineffective assistance of counsel under State v. Paredez, 2004-
NMSC-036, 136 N.M. 533, 101 P.3d 799. 	Paredez requires appointed counsel to
instruct defendants about the specific immigration consequences associated with a
conviction for the charged crime prior to pleading guilty. Id. ¶ 9. This duty is more
pressing in a case like this in which deportation was a near certainty for a relatively
minor offense. 	The district court denied the writ on the ground that the rule
announced in Paredez should not be applied retroactively to collateral challenges to
final judgments and sentences. We reverse and hold that the ineffective assistance of
counsel rules stated in Paredez and Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010)
(holding that defense counsel must inform his or her client whether the client’s plea
carries a risk of deportation) are but extensions of a previously entrenched duty to
provide representation and are retroactive. 	We remand for further proceedings
consistent with this Opinion.

2
I. 	BACKGROUND
{2} 	In 2009, Petitioner filed a writ of coram nobis, requesting the district court to
vacate his 1997 misdemeanor convictions for possession of marijuana (under one
ounce), possession of drug paraphernalia, and concealing identity. 	In his writ,
Petitioner contended that he was denied his right to effective assistance of counsel
because his appointed counsel failed to instruct him about any immigration
consequences of pleading guilty to the crimes as required by Paredez, 2004-NMSC-
036, ¶ 19.
{3} 	At the hearing, Petitioner proffered evidence to prove that his attorney failed
to instruct him about the immigration consequences and that this failure prejudiced
him. The State did not contest the evidence, arguing only that it was irrelevant and
that Petitioner was not entitled to relief because Paredez was not retroactive. 	The
district court, accordingly, found that Petitioner’s proffer was “essentially admitted
. . . [and] not disputed” and proceeded to hear argument on whether Paredez was
retroactive. The district court subsequently denied Petitioner’s request on the ground
that Paredez did not apply retroactively. Petitioner now appeals the district court’s
denial of his writ of coram nobis. We interpret such actions as motions pursuant to
Rule 1-060(B) NMRA. State v. Barraza, 2011-NMCA-111, ¶ 5, ___ N.M. ___ , 267
P.3d 815.

3
II. 	DISCUSSION
A. 	Paredez and Padilla Apply Retroactively
{4} 	In Paredez, the New Mexico Supreme Court held that “criminal defense
attorneys are obligated to determine the immigration status of their clients. If a client
is a non-citizen, the attorney must advise that client of the specific immigration
consequences of pleading guilty, including whether deportation would be virtually
certain.” 2004-NMSC-036, ¶ 19. Our Supreme Court concluded that failure to inform
the defendant of these consequences would constitute ineffective assistance of counsel
if the defendant suffered prejudice due to the omission. Id. Six years later, the United
States Supreme Court in Padilla similarly held that “counsel must inform her client
whether his plea carries a risk of deportation.” 	130 S. Ct. at 1486. 	The Supreme
Court explained: “Our longstanding Sixth Amendment precedents, the seriousness
of deportation as a consequence of a criminal plea, and the concomitant impact of
deportation on families living lawfully in this country demand no less.” 	Id. 	The
question before us today is whether the rule stated in Paredez and Padilla applies
retroactively to cases on collateral review. “Retroactivity is a legal question, which
we review de novo.” 	Kersey v. Hatch, 2010-NMSC-020, ¶ 14, 148 N.M. 381, 237
P.3d 683 (internal quotation marks and citation omitted).

4
{5} 	Although this is an issue of first impression in New Mexico, a number of state
and federal appellate decisions have addressed the issue of retroactivity, causing a
national split. 	A number have held that Padilla is retroactive. 	United States v.
Orocio, 645 F.3d 630 (3d Cir. 2011); People v. Gutierrez, 954 N.E.2d 365 (Ill. App.
Ct. 2011); Denisyuk v. State, 30 A.3d 914 (Md. 2011); Commonwealth v. Clarke, 949
N.E.2d 892 (Mass. 2011); Campos v. State, 798 N.W.2d 565 (Minn. Ct. App. 2011);
People v. Nunez, 917 N.Y.S.2d 806 (N.Y. App. Term 2010); Ex parte De Los Reyes,
350 S.W.3d 723 (Tex. Ct. App. 2011). On the other hand, some have held that Padilla
is not retroactive. 	Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011); United
States v. Chang Hong, No. 10-6294, 2011 WL 3805763 (10th Cir. Aug. 30, 2011);
State v. Poblete, 260 P.3d 1102 (Ariz. Ct. App. 2011); Hernandez v. State, 61 So. 3d
1144 (Fla. Dist. Ct. App. 2011); State v. Shaikh, 65 So.3d 539 (Fla. Dist. Ct. App.
2011); Barrios-Cruz v. State, 63 So. 3d 868 (Fla. Dist. Ct. App. 2011); 	Gomez v.
State, No. E2010-01319-CCA-R3-PC, 2011 WL 1797305 (Tenn. Crim. App. May 12,
2011) (unpublished decision). The primary dividing line is the question of whether
this principle is a “new” or “old” rule of law. 	“Old” rules are generally accorded
retroactivity. For the reasons explained below, we are persuaded that those courts,
which conclude that Padilla does not establish a new rule and is retroactive, represent
the better reasoned view.

5
{6} 	New Mexico has adopted the approach set out by the United States Supreme
Court in Teague v. Lane, 489 U.S. 288 (1989), to determine whether a rule is new or
old for purposes of retroactivity. See State v. Frawley, 2007-NMSC-057, ¶ 34, 143
N.M. 7, 172 P.3d 144. 	“If it is an old rule, it applies both on direct and collateral
review. If it is a new rule, it generally applies only to cases that are still on direct
review.” Id. ¶ 34 (internal quotation marks and citations omitted). The exception to
this principle is that “[a] new rule . . . may apply retroactively in a collateral
proceeding only if (1) the rule is substantive or (2) the rule is a watershed rul[e] of
criminal procedure implicating the fundamental fairness and accuracy of the criminal
proceeding.” Id. (internal quotation marks and citation omitted).
{7} 	Thus, the threshold issue here is whether the rule that attorneys must inform
their clients about immigration consequences is new or old. “[A] court establishes a
new rule when its decision is flatly inconsistent with the prior governing precedent
and is an explicit overruling of an earlier holding.” Id. ¶ 35 (internal quotation marks
and citation omitted). This typically results in the court “break[ing] new ground or
impos[ing] a new obligation on the [s]tates or the [f]ederal [g]overnment. To put it
differently, a case announces a new rule if the result was not dictated by precedent
existing 	at 	the 	time 	the 	defendant’s 	conviction 	became 	final.” 	Kersey,
2010-NMSC-020, ¶ 16 (internal quotation marks and citation omitted). As explained

6
below, neither the decision of the New Mexico Supreme Court nor the United States
Supreme Court were flatly inconsistent or explicitly contrary to precedent. 	As a
result, we conclude that the rule stated in Paredez and Padilla are old rules and thus
retroactive.
{8} 	In Paredez, 2004-NMSC-036, ¶¶ 19-20, our Supreme Court defined counsel’s
failure to inform the defendant of his specific immigration consequences as ineffective
assistance of counsel by applying Strickland v. Washington, 466 U.S. 668 (1984). The
United States Supreme Court likewise held that defendants were constitutionally
guaranteed effective assistance of counsel under Strickland in the form of advice
about both certain and potential immigration consequences before pleading guilty.
Padilla, 130 S. Ct. at 1483. In Strickland, the Supreme Court held that a defendant
must prove both deficient performance by counsel and prejudice for that deficiency
to succeed on an ineffective assistance claim. 466 U.S. at 687. The Supreme Court
explained that “[r]epresentation of a criminal defendant entails certain basic duties.”
Id. at 688. After listing some basic duties, including the duty of loyalty and avoiding
conflicts of interest, the Supreme Court stated that “[t]hese basic duties neither
exhaustively define the obligations of counsel nor form a checklist for judicial
evaluation of attorney performance.” Id. Because the circumstances of each case are
different, 	“a 	court 	deciding 	an 	actual 	ineffectiveness 	claim 	must 	judge 	the

7
reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” Id. at 690.
{9} 	Even while applying an individualized inquiry, the United States Supreme
Court has stated that a defendant’s right to effective assistance of counsel as stated in
Strickland is a clearly established rule. In concluding that a defendant was entitled to
relief for ineffective assistance of counsel on collateral review, the Supreme Court
stated that “it can hardly be said that recognizing the right to effective counsel breaks
new ground or imposes a new obligation on the [s]tates[.]” Williams v. Taylor, 529
U.S. 362, 391 (2000) (internal quotation marks and citation omitted). 	As Justice
Kennedy has commented in regard to the Teague analysis, “[w]here the beginning
point is a rule of this general application, a rule designed for the specific purpose of
evaluating a myriad of factual contexts, it will be the infrequent case that yields a
result so novel that it forges a new rule, one not dictated by precedent.” 	Wright v.
West, 505 U.S. 277, 309 (1992).
{10} 	We conclude that Paredez and Padilla forge no new rule. Neither imposed a
new obligation on counsel or directly contradicted precedent because defendants in
New Mexico have been guaranteed effective assistance of counsel as set forth in
Strickland since 1984. Both cases apply well-established principles regarding the
effective assistance of counsel to a set of facts that have taken on a rising trajectory

8
of importance to criminal jurisprudence. Strickland is a rule designed for application
to a myriad of factual contexts, and we conclude that its application in this context
fails to contradict existing norms or forge new precedent in such a way that would
require us to consider it a new rule. 	As the Padilla Court pointed out in citing a
number of sources that date back prior to Petitioner’s conviction, “[t]he weight of
prevailing professional norms supports the view that counsel must advise her client
regarding the risk of deportation.” 	130 S. Ct. at 1482. 	The Court concluded that
“[f]or at least the past [fifteen] years, professional norms have generally imposed an
obligation on counsel to provide advice on the deportation consequences of a client’s
plea.” 	Id. at 1485. 	Paredez and Padilla simply apply an old rule with established
norms of effective representation to a new set of facts. Under those facts, it had been
clear before Petitioner’s conviction that those norms obligated attorneys to advise
their clients about deportation consequences.
{11} 	The State argues that both Paredez and Padilla broke with longstanding
precedent. The majority of the State’s argument relies on the fact that other state and
federal circuit courts had precedent that did not require defendants to be instructed
about immigration consequences. To the extent that the State cites out-of-state case
law for the proposition that Padilla broke with longstanding precedent, we consider
New Mexico precedent more persuasive and, as we explain below, the New Mexico

9
cases that the State relies on are not applicable. 	With regard to New Mexico
precedent, the State contends that Paredez contradicted established law in State v.
House, 1996-NMCA-052, 121 N.M. 784, 918 P.2d 370, and State v. Miranda, 100
N.M. 690, 675 P.2d 422 (Ct. App. 1983). Though both House and Miranda dealt with
issues unrelated to immigration consequences, Miranda held that defense counsel had
no duty to advise the defendant about the collateral consequences of a deferred
sentence. 	100 N.M. at 692, 675 P.2d at 424. 	In House, the defendant appealed a
sentencing enhancement on his second DWI conviction because the magistrate, who
convicted him of his first DWI for which he represented himself, did not explain the
consequences of the prior guilty plea. 1996-NMCA-052, ¶¶ 28-29. Paredez clearly
enunciates a standard for effective representation that deals with a completely
different context. Here, Paredez enunciates a norm of conduct specific to advising a
criminal defendant of immigration consequences of his plea.
{12} 	To the extent that the State argues Paredez and Padilla overrule cases, which
indicate that counsel does not have a duty to instruct a client about collateral
consequences of a plea agreement, we view the departure as reflecting that collateral
consequences are more robust in some varieties, such as deportation that affects a very
broad scope of interests. Padilla stated that “distinction [of collateral consequences]
is . . . ill-suited to evaluating a Strickland claim concerning the specific risk of

10
deportation[.]” 	130 S. Ct. at 1476. 	The Supreme Court in Padilla explained that,
“[a]lthough removal proceedings are civil, deportation is intimately related to the
criminal process, which makes it uniquely difficult to classify as either a direct or a
collateral consequence.” Id. Thus, precedent about unrelated collateral consequences
is inapplicable to Paredez and Padilla.
{13} 	The State also contends that “Padilla established a ‘new rule’ by categorically
creating a claim for relief where none existed before.” The State argues that “[a] court
adjudicating the first prong of a Paredez-Padilla claim does not have to engage in the
highly deferential review of evidence [that] Strickland commands for other types of
ineffective assistance claims.” 	The State cites Strickland in arguing that “[i]t is
unnecessary to review counsel’s performance ‘from counsel’s perspective at the time,’
to avoid ‘the distorting effects of hindsight[.]’” 	We point out that the highly
deferential review to which the State refers is limited to the Strickland analysis of trial
tactics pursued by counsel. 	Lytle v. Jordan, 2001-NMSC-016, ¶ 43, 130 N.M. 198,
22 P.3d 666 (“On appeal, we will not second guess the trial strategy and tactics of the
defense counsel.” (internal quotation marks and citation omitted)). To the extent that
the State argues that Paredez and Padilla establish categorical rules not requiring a
thorough review of the facts, the holdings in both cases require a thorough inquiry into
the facts as to what advice the defendant should have been afforded, whether he was

11
given it, and whether the defendant was prejudiced by not receiving the advice. {14}
Other aspects of the Padilla opinion indicate that the Supreme Court did not
create a new rule. For example, the absence of a Teague analysis in Padilla alone
indicates that this is not a new rule. 	In Teague, the United States Supreme Court
stated that
implicit in the retroactivity approach . . . is the principle that habeas
corpus cannot be used as a vehicle to create new constitutional rules of
criminal procedure unless those rules would be applied retroactively to
all defendants on collateral review through one of the two exceptions we
have articulated.
489 U.S. at 316. The Court shortly thereafter clarified in Penry v. Lynaugh that when
a case is before the Court on collateral review, the Court “must determine, as a
threshold matter, whether granting [the defendant] the relief he seeks would create a
‘new rule.’” 492 U.S. 302, 313 (1989) (citation omitted). “Under Teague, new rules
will not be applied or announced in cases on collateral review unless they fall into one
of two exceptions [specified in Teague].” Penry, 492 U.S. at 313. We note that the
procedural posture in Padilla indicates that the defendant’s conviction was final, and
he was attacking it on collateral review. Commonwealth v. Padilla, 253 S.W.3d 482,
483 (Ky. 2008), overruled by Padilla, 130 S. Ct. at 1486. Therefore, if the Supreme
Court intended its holding in Padilla to create a new rule, it would have to determine
as a threshold issue whether the rule was old or new under Teague because the

12
conviction in Padilla was on collateral review. The Court clearly did not engage in
this analysis, and we must conclude that the Padilla court did not believe it was
establishing a new rule.
{15} 	Moreover, the Padilla court made clear references to the opinion’s application
to collateral proceedings attacking guilty pleas. In addressing Kentucky’s concern
that 	requiring 	defense 	counsel 	to 	provide 	information 	about 	immigration
consequences would open the floodgates to collateral appeals of finalized convictions,
the United States Supreme Court explained why it doubted a flood would follow in
the wake of Padilla. The Supreme Court compared this issue to its holding in Hill v.
Lockhart, requiring counsel to advise clients about their parole eligibility before
pleading guilty. 	474 U.S. 52, 62 (1985). 	The Supreme Court concluded that “[a]
flood did not follow in that decision’s wake” and explained that “to obtain relief on
this type of claim, a petitioner must convince the court that a decision to reject the plea
bargain would have been rational under the circumstances.” 	Padilla, 130 S. Ct. at
1485. The Supreme Court further stated:
[P]leas are less frequently the subject of collateral challenges than
convictions obtained after a trial. . . . The nature of relief secured by a
successful collateral challenge to a guilty plea—an opportunity to
withdraw the plea and proceed to trial—imposes its own significant
limiting principle: Those who collaterally attack their guilty pleas lose
the benefit of the bargain obtained as a result of the plea. Thus, a
different calculus informs whether it is wise to challenge a guilty plea in
a habeas proceeding because, ultimately, the challenge may result in a

13
less favorable outcome for the defendant, whereas a collateral challenge
to a conviction obtained after a jury trial has no similar downside
potential.
Id. at 1485-86. 	From this, we conclude that the Supreme Court contemplated
Padilla’s application on collateral attacks in making its decision.
{16} 	Based on the above analysis, we conclude that Paredez and Padilla do not
establish a new rule and should be applied retroactively. We now apply Paredez and
Padilla to the case at bar.
B. 	Application of Paredez and Padilla to the Facts of This Case
{17} 	A reviewing court must look at the individual facts of the case to establish what
type of advice about immigration consequences should have been given to the
defendant. Both misinforming and failing to inform a defendant of the immigration
consequences of a plea are objectively unreasonable and constitute deficient
performance. Paredez, 2004-NMSC-036, ¶¶ 15-16. Moreover, “general advice that
a guilty plea ‘could,’ ‘may,’ or ‘might’ have an effect on immigration status” is
equally unacceptable. Id. ¶ 17. Misadvice, no advice, and general advice all fail to
provide the defendant with “information sufficient to make an informed decision to
plead guilty.” Id.
{18} 	In this case, Petitioner was facing definite deportation at the time of his
conviction. Petitioner was convicted of several charges, including possession of drug

1This section of the AEDPA amended the Immigration and Nationality Act, 8
U.S.C. § 1182(c) (1997) to state that the Attorney General’s discretionary relief “shall
not apply to an alien who is deportable by reason of having committed any criminal
offense covered in [S]ection 1251(a)(2)(A)(iii), (B), (C), or (D) of this title[.]” One
of the deportable offenses that was no longer afforded discretion included “a violation
of . . . any law or regulation of a [s]tate, the United States, or a foreign country relating
to a controlled substance . . . other than a single offense involving possession for one’s
own use of [thirty] grams or less of marijuana.” 8 U.S.C. 1251(A)(2)(B)(i) (1997).
14
paraphernalia on January 6, 1997. This date is significant because about nine months
prior to his guilty plea, Congress removed any discretionary relief available to those
who commit any offense related to a controlled substance, other than the possession
of thirty grams or less of marijuana, by enacting the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, § 440(d)(2), 110 Stat. 1214
(1996).1 If Petitioner had been convicted prior to April 24, 1996, when the AEDPA
became effective, the Attorney General would have had the authority to grant
discretionary relief from deportation under the 1952 Immigration and Nationality Act.
Padilla, 130 S. Ct. at 1480; Allen v. Siebert, 552 U.S. 3, 4 (2007) (stating that “April
24, 1996 [is the] AEDPA’s effective date”). This “authority . . . had been exercised
[by the Attorney General] to prevent the deportation of over 10,000 non[-]citizens
during the [five]-year period prior to 1996[.]” Padilla, 130 S. Ct. at 1480. The United
States Supreme Court has explained that “[p]rior to AEDPA . . . , aliens . . . had a
significant 	likelihood 	of 	receiving 	[discretionary] 	relief.” 	Immigration 	&
Naturalization Serv. v. St. Cyr, 533 U.S. 289, 325 (2001).

15
{19} 	Thus, it was clear that, at the time of his conviction, Petitioner had entered into
a plea agreement that would almost certainly guarantee his deportation from the
United States. We conclude that Petitioner should have been given advice about these
likely consequences before entering into a plea agreement with the State.
{20} 	In his motion, Petitioner alleged that his counsel failed to inform him about any
immigration consequences. A plea to time served in a magistrate court for offenses
that are minor, under most other circumstances than this, makes Petitioner’s story
believable, and the State and the district court apparently took these facts at face
value. 	At the hearing, Petitioner repeated the proffer of evidence laid out in his
motion to prove that his attorney failed to instruct him about the immigration
consequences and that this failure prejudiced him. 	When asked to respond to
Petitioner’s proffer, the State stated that it “defer[red] to what the [c]ourt wants to do.
[T]he State will argue again that the [c]ourt had reviewed this previously [in a
different case] and . . . rul[ed] that [Paredez] is not retroactive. As such, the testimony
would be irrelevant.” The district court responded that the testimony would not be
irrelevant, but the court had nonetheless “found in reading the materials [provided by
Petitioner that] there doesn’t seem to be any factual dispute that [Petitioner’s alleged]
facts exist.” The court then found that Petitioner’s proffer was “essentially admitted
[and] not disputed.”

16
{21} 	We conclude that the district court found at the hearing that Petitioner had not
received advice about immigration consequences from his attorney, and he was
prejudiced because of this failure. To the extent the State argues that Petitioner failed
to establish a prima facie case for ineffective assistance of counsel sufficient to justify
a hearing, we determine that the State has waived this argument because, at the
hearing, the State failed to contest the factual basis to Petitioner’s claim of ineffective
assistance of counsel. Thus, Defendant has met the requirements set forth in Paredez,
2004-NMSC-036, ¶ 19, and Padilla, 130 S. Ct. at 1486.
III. 	CONCLUSION
{22} 	We reverse the district court and hold that Paredez and Padilla are retroactive.
In this case, Petitioner should have been advised that deportation would almost
certainly result from his conviction of possession of drug paraphernalia. 	Because
Petitioner has completely established ineffective assistance of counsel and prejudice,
we remand this case to the district court for Petitioner to have an opportunity to
withdraw his plea.

17
{23} 	IT IS SO ORDERED.
_______________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
CYNTHIA A. FRY, Judge