August 08, 2013 – State of New Mexico v. Cesar Favela, No. 32,044

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: August 8, 2013
NO. 32,044
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CESAR FAVELA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, District Judge
Gary K. King, Attorney General
Pranava Upadrashta, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Acting Chief Public Defender
Carlos Ruiz de la Torre, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	Defendant Cesar Favela appeals from the district court’s denial of his motion
for relief from judgment and petition for writ of habeas corpus, wherein Defendant
sought to set aside his guilty plea on grounds of ineffective assistance of counsel.
Defendant contends that his counsel did not adequately advise him of the immigration
consequences of his decision to enter a plea of guilty, as required by State v. Paredez,
2004-NMSC-036, ¶ 19, 136 N.M. 533, 101 P.3d 799. The facts of this case require
this Court to determine whether the district court, in determining whether Defendant’s
plea was knowing and voluntary, improperly relied on statements by the court
conducting the plea hearing (the trial court) regarding the immigration consequences
of Defendant’s plea. We hold that judicial statements made during the plea colloquy
about the immigration consequences of a plea do not cure counsel’s deficient
representation and should only be given minimal weight in determining whether a
defendant has demonstrated prejudice under Strickland v. Washington, 466 U.S. 668,
695-98 (1984). Accordingly, we reverse and remand.
BACKGROUND
{2} 	Defendant pleaded guilty to four counts of aggravated battery with a deadly
weapon and one count of driving under the influence. 	Defendant is a Mexican

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national and a United States permanent resident. At the plea and disposition hearing,
the following exchange took place.
Judge: 	Counsel, I just noticed the place of birth on this form. Is
there an immigration consequence in this case?
Counsel: 	There will be. [Defendant is] here legal and everything, he
has his paper documentation and everything, but more than
likely he will have a great consequence on . . . his papers
being taken away.
Judge: 	[Defendant], before I accept the plea and approve it at this
point, I want to be sure you understand, as your attorney
said, that a conviction will have an [e]ffect on your
immigration status and that effect would be deportation,
which is now called removal, exclusion from the United
States and denial of naturalization under the laws of the
United States. Do you understand that, sir?
Defendant: 	Yes, your Honor.
Judge: 	Alright then, is it still your desire to enter your plea of
guilty, sir?
Defendant: 	Yes, your Honor.
Judge: 	Alright, the court then approves that.
{3} 	The district court accepted Defendant’s guilty plea, and Defendant was
sentenced in accordance with the plea agreement. After serving his sentence with the
New Mexico Department of Corrections, Defendant was taken into custody by the
United States Immigration and Customs Enforcement Service (ICE).

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{4} 	While in the custody of ICE, Defendant filed a motion for relief from judgment
pursuant to Rule 1-060 NMRA and, alternatively, a petition for a writ of habeas
corpus. 	The district court entered an order summarily dismissing and denying
Defendant the relief he requested. 	Defendant filed a motion for reconsideration, a
hearing was held where testimony was presented, and the district court entered an
order denying Defendant’s motion. Defendant appeals.
DISCUSSION
I. 	Jurisdiction
{5} 	We begin by determining whether Defendant’s ineffective assistance of counsel
claim was properly brought as a motion for relief from judgment under Rule 1-060 or
as a petition for writ of habeas corpus under Rule 5-802 NMRA. Consistent with an
appeal taken from a denial of a petition for writ of habeas corpus, the district court’s
order informed Defendant that any appeal was to be taken by filing a petition for writ
of certiorari with the Supreme Court. See Rule 5-802(H)(2) (requiring a defendant to
petition for certiorari to our Supreme Court in order to obtain review of a district
court’s denial of a writ of habeas corpus). Defendant, instead, filed a direct appeal to
this Court.
{6} 	“Because [a d]efendant cannot appeal the denial of a writ of habeas corpus to
this Court,” we must begin by determining whether this appeal is properly before us.

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State v. Barraza, 2011-NMCA-111, ¶ 12, 267 P.3d 815. “The question of jurisdiction
is a controlling consideration that must be resolved before going further in a
proceeding and may even be raised by the appellate court on its own motion.” Id. ¶ 5.
We review jurisdictional issues de novo. See id.
{7} 	Rule 5-802(A) “governs the procedure for filing a writ of habeas corpus by
persons in custody or under restraint for a determination that such custody or restraint
is, or will be, in violation of the constitution or laws of the State of New Mexico or of
the United States[.]” “[W]here a prisoner ha[s] served his sentence and been released,
Rule 1-060(B)(4) [is] the vehicle to seek relief from a criminal judgment claimed to
be void.” State v. Tran, 2009-NMCA-010, ¶ 16, 145 N.M. 487, 200 P.3d 537. Thus,
whether a petition for writ of habeas corpus or a Rule 1-060(B)(4) motion is the
appropriate mechanism for seeking relief depends on whether the defendant was “in
custody” at the time the petition or motion was filed. 	See id. ¶ 15. 	In this case,
because the district court appears to have treated Defendant’s petition as one for a writ
of habeas corpus, we must determine whether, when Defendant was in the custody of
ICE, he was “in custody” for purposes of habeas corpus. 	By this inquiry, we will
determine whether we have jurisdiction to consider Defendant’s appeal.
{8} 	The question—what is the appropriate procedural mechanism for someone to
use while in the custody of ICE in order to challenge his or her conviction—is an issue

1 We note that in Tran, 2009-NMCA-010, ¶ 17, this Court concluded that a
Rule 1-060(B)(4) motion was the correct procedural mechanism for the defendant
to request relief. In Tran, however, unlike this case, the issue of the defendant’s
custodial status appears not to have been in dispute; as such, the custodial-status
issue was not discussed or considered by this Court.
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of first impression in New Mexico.1 Accordingly, we turn to federal habeas corpus
jurisprudence for guidance. In Maleng v. Cook, 490 U.S. 488, 492 (1989), the United
States Supreme Court stated that “once the sentence imposed for a conviction has
completely expired, the collateral consequences of that conviction are not themselves
sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon
it.” 	Federal circuit courts have relied on Maleng in determining that “one held in
immigration detention is not ‘in custody’ for the purpose of challenging a state
conviction[.]” Ogunwomoju v. United States, 512 F.3d 69, 75 (2d Cir. 2008); see
Resendiz v. Kovensky, 416 F.3d 952, 956-58 (9th Cir. 2005), abrogated on other
grounds as recognized by Chaidez v. United States, ___ U.S. ___, 130 S. Ct. 1103
(2013); Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004), abrogated on
other grounds by Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010); United
States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004); Kandiel v. United States, 964
F.2d 794, 796 (8th Cir. 1992).
{9} 	We note that the United States Supreme Court’s more recent opinion in Padilla
may call into question the characterization of deportation as a collateral consequence.

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In Padilla, the Supreme Court questioned the distinction between direct and collateral
consequences in defining “the scope of constitutionally ‘reasonable professional
assistance.’ ” Padilla, 559 U.S. at ___, 130 S. Ct. at 1481. In doing so, the Supreme
Court declined to characterize deportation as either a direct or collateral consequence,
stating that it was “uniquely difficult” to do so “because of [deportation’s] close
connection to the criminal process[.]” Id. at ___, 130 S. Ct. at 1481-82. The Supreme
Court concluded that “[t]he collateral versus direct distinction [was] ill-suited to
evaluating a Strickland claim concerning the specific risk of deportation.” Id. at ___,
130 S. Ct. at 1482.
{10} 	We note, however, that the definition of “collateral consequences” in one
context is not necessarily the same as that in another context. And Padilla did not
address the issue of collateral versus direct consequences with respect to the “in
custody” requirement for federal habeas jurisdiction. 	Moreover, we note that,
following Padilla, federal district courts have largely continued to hold that removal
proceedings do not satisfy the “in custody” requirement for filing a petition for writ
of habeas corpus even where the removal proceedings include detention by
immigration authorities. See Fenton v. Ryan, No. 11-2303, 2011 WL 3515376, at *2
(E.D. Pa. Aug. 11, 2011) (mem.) (holding that Padilla did not alter the custody
requirement and that a petitioner is not “in custody” after completing his sentence

7
merely because he faces deportation); United States v. Krboyan, No. CV-F-10-2016
OWW, 2010 WL 5477692, at *5 (E.D. Cal. Dec. 30, 2010) (recognizing a shared
view, among courts that have considered the issue, that “the collateral immigration
consequences of a petitioner’s conviction are not sufficient to satisfy the ‘in custody’
requirement of [habeas corpus], even when those consequences include detention by
immigration authorities”); Walker v. Holder, No. 10-10802-RWZ, 2010 WL 2105884,
at *1 (D. Mass. May 24, 2010) (holding that the petitioner, having previously served
his criminal sentence and who was being held as an immigration detainee, was not ‘in
custody’ for purposes of habeas corpus). 	But see Rodriguez v. United States, No.
1:10-CV-23718-WKW [WO], 2011 WL 3419614, at *5-6 (mem. & order) (S.D. Fla.
Aug. 4, 2011) (holding that, after Padilla, a petitioner who had fully served her
sentence was in custody because she faced deportation).
{11} 	We find Fenton, Krboyan, and Walker to be persuasive authority on this issue.
Accordingly, we conclude that the proper procedural mechanism for a defendant to
challenge his underlying criminal conviction when in the custody of ICE is to file a
Rule 1-060(B)(4) motion. We therefore conclude that this Court has jurisdiction to
hear Defendant’s appeal.

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II. 	Mootness
{12} 	The State asserts that this Court should decline to hear Defendant’s appeal
because the issue may be moot. The State relies on Republican Party of New Mexico
v. New Mexico Taxation & Revenue Department, 2012-NMSC-026, ¶ 10, 283 P.3d
853, to argue that Defendant’s removal from the United States moots his appeal. See
id. (stating the general rule that the appellate courts do not decide moot cases).
{13} 	“An appeal is moot when there is no actual controversy and when no actual
relief can be granted to the appellant.” State v. Wilson, 2005-NMCA-130, ¶ 14, 138
N.M. 551, 123 P.3d 784, aff’d, 2006-NMSC-037, 140 N.M. 218, 141 P.3d 1272.
While “[a] reviewing court generally does not decide academic or moot questions[,]”
Crutchfield v. New Mexico Dep’t of Taxation & Revenue, 2005-NMCA-022, ¶ 36, 137
N.M. 26, 106 P.3d 1273, “[a]ppellate courts review criminal convictions even after
a defendant’s term of incarceration ends because of the continuing collateral
consequences of a conviction, such as mandatory sentence increases for subsequent
offenses, limitations on eligibility for certain types of employment, and voting
restrictions.” State v. Sergio B., 2002-NMCA-070, ¶ 10, 132 N.M. 375, 48 P.3d 764.
{14} 	Defendant contends that if permitted to withdraw his plea, he will be eligible
to file a motion to reopen his immigration proceedings and request that the attorney
general exercise his discretion to parole Defendant back into the United States to face

9
trial. 	The Sixth Circuit Court of Appeals has held that the “contention that [a
defendant’s] conviction might affect the [a]ttorney [g]eneral’s discretionary decision
to allow him back in the country . . . satisfies whatever minimal collateral
consequence that [a defendant] might be required to show in order for this court to
retain jurisdiction over his claim.” 	United States v. Ashraf, 628 F.3d 813, 822 (6th
Cir. 2011); see also Garcia-Flores v. Gonzales, 477 F.3d 439, 441 n.1 (6th Cir. 2007)
(recognizing that “removal of an alien . . . does not moot a pending appeal” (omission
in original) (internal quotation marks and citation omitted)); Swaby v. Ashcroft, 357
F.3d 156, 160 (2d Cir. 2004); Chong v. Dist. Dir., I.N.S., 264 F.3d 378, 382-85 (3d
Cir. 2001) (same); United States v. Marsh, 747 F.2d 7, 9 n.2 (1st Cir. 1984) (holding
that because deported defendants’ narcotics convictions might prevent their reentry
into the country, the appeals were not moot).
{15} 	Because withdrawal of his guilty plea may have future consequences on
Defendant’s ability to reenter the United States, we conclude that his deportation on
January 28, 2012, does not render this appeal moot. 	We turn to the merits of
Defendant’s appeal.
III. 	Ineffective Assistance of Counsel
{16} 	Defendant contends that the district court erred in denying his motion to
withdraw his guilty plea, based on his counsel’s alleged failure to inform Defendant

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about the immigration consequences of entering his plea. “A motion to withdraw a
guilty plea is addressed to the sound discretion of the trial court, and we review the
trial court’s denial of such a motion only for abuse of discretion.” 	State v. Carlos,
2006-NMCA-141, ¶ 9, 140 N.M. 688, 147 P.3d 897. “An abuse of discretion occurs
when the ruling is clearly against the logic and effect of the facts and circumstances
of the case.” 	State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829
(internal quotation marks and citation omitted). 	An abuse of discretion may also
occur when the district court “exercises its discretion based on a misunderstanding of
the law.” State v. Sotelo, 2013-NMCA-028, ¶ 37, 296 P.3d 1232, cert. denied, 2013-
NMCERT-001, 299 P.3d 863. In the context of a guilty plea,
a trial court abuses its discretion when it acts unfairly or arbitrarily, or
commits manifest error by accepting a plea that is not knowingly and
voluntarily given. 	Where, as here, a defendant is represented by an
attorney during the plea process and enters a plea upon the advice of that
attorney, the voluntariness and intelligence of the defendant’s plea
generally 	depends 	on 	whether 	the 	attorney 	rendered 	ineffective
assistance in counseling the plea.
State v. Barnett, 1998-NMCA-105, ¶ 12, 125 N.M. 739, 965 P.2d 323 (citation
omitted). To prove ineffective assistance of counsel, Defendant must show (1) that
counsel’s performance fell below that of a reasonably competent attorney, and (2) that
defendant was prejudiced by the deficient performance. State v. Hester, 1999-NMSC-
020, ¶ 9, 127 N.M. 218, 979 P.2d 729. “We afford de novo review of mixed questions

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of law and fact concerning the ineffective assistance of counsel.” 	Barnett, 1998-
NMCA-105, ¶ 13.
A. 	Deficient Representation
{17} 	Our New Mexico Supreme Court has clearly articulated what constitutes
effective assistance of counsel with respect to advising a criminal defendant of the
immigration consequences of his or her plea. In Paredez, our 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. 	In so holding, our Supreme Court
agreed “with those jurisdictions that have held that an affirmative misrepresentation
by counsel as to the deportation consequences of a guilty plea is . . . objectively
unreasonable” and went “one step further” in concluding that “an attorney’s non-
advice to an alien defendant on the immigration consequences of a guilty plea would
also be deficient performance.” 	Id. ¶¶ 15-16 (internal quotation marks and citation
omitted). 	According to our Supreme Court, advice that a defendant “could” or
“might” be deported is also inadequate, as such advice is “incomplete and therefore
inaccurate” because “ ‘[s]tating that a person ‘may’ be subject to deportation implies
there is some chance, potentially a good chance, that the person will not be

12
deported.’ ” 	Id. ¶ 15 (quoting Gonzalez v. State, 83 P.3d 921, 925 (Or. Ct. App.
2004)). This Court has since interpreted Paredez as requiring “a definite prediction
as to the likelihood of deportation based on the crimes to which a defendant intends
to plead and the crimes listed in federal law for which a defendant can be deported.”
Carlos, 2006-NMCA-141, ¶ 14.
{18} 	Six years after our Supreme Court’s holding in Paredez, the United States
Supreme Court in Padilla “similarly held that ‘counsel must inform her client whether
his plea carries a risk of deportation.’ ” State v. Ramirez, 2012-NMCA-057, ¶ 4, 278
P.3d 569 (quoting Padilla, 559 U.S. at ___, 130 S. Ct. at 1486), cert. granted, 2012-
NMCERT-006, 294 P.3d 1244. The United States Supreme Court’s holding, while
similar in nature to Paredez, was not as broad on the issue of what constitutes
deficient representation. Rather, the United States Supreme Court held that “when the
deportation consequence is truly clear, . . . the duty to give correct advice is equally
clear”; however, “[w]hen the law is not succinct and straightforward . . ., a criminal
defense attorney need do no more than advise a non[-]citizen client that pending
criminal charges may carry a risk of adverse immigration consequences.” Padilla, 559
U.S. at ___, 130 S. Ct. at 1483 (emphasis added). We note that our Supreme Court’s
opinion in Paredez contains no such limitation. We further note that, to the extent
there are distinctions to be drawn between the rights provided by the New Mexico

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Supreme Court in Paredez and the rights articulated by the United States Supreme
Court in Padilla, this Court is bound by the “applicable precedents of [the New
Mexico] Supreme Court.” Carlos, 2006-NMCA-141, ¶ 17 (internal quotation marks
and citation omitted).
B. 	Prejudice
1. 	Demonstrating Prejudice in Cases Involving Immigration Issues
{19} 	This Court has previously recognized that “[t]here are no mechanical rules for
determining prejudice.” Id. ¶ 20 (internal quotation marks and citation omitted); see
also Strickland, 466 U.S. at 696 (stating that “the ultimate focus of inquiry must be
on the fundamental fairness of the proceeding whose result is being challenged”).
Instead, “the question whether a given defendant has made the requisite [prejudice]
showing will turn on the facts of a particular case.” Roe v. Flores-Ortega, 528 U.S.
470, 485 (2000). 	This Court has previously considered such factors as “pre-
conviction statements or actions indicating the defendant’s preference to plead or to
go to trial” and “the strength of the evidence against the defendant[.]” 	State v.
Edwards, 2007-NMCA-043, ¶ 35, 141 N.M. 491, 157 P.3d 56. 	We have also
considered a defendant’s testimony about his connection to the United States. 	See
Carlos, 2006-NMCA-141, ¶ 21 (“[The d]efendant’s testimony that he has lived in the
United States virtually his whole life, having been brought to [t]his country right after

14
he was born, may have been an important factor in his decision whether to enter a
plea.”). We are not limited, however, to these considerations in assessing prejudice.
See Edwards, 2007-NMCA-043, ¶ 36 (noting that our Supreme Court “did not limit
the types of additional evidence a defendant may provide in order to establish what
he or she would have done given the appropriate advice prior to entering a plea”).
{20} 	While Padilla was not as broad as Paredez in its analysis of what constitutes
deficient representation, the United States Supreme Court appears to have taken a
broad approach to how a defendant can demonstrate prejudice. Padilla states 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,
559 U.S. at ___, 130 S. Ct. at 1485. This “rational under the circumstances” standard
has been heralded as being “much broader and allow[ing] for consideration of a
different type of risk analysis by a defendant” as compared with traditional analyses
of prejudice in the context of ineffective assistance of counsel claims. Jenny Roberts,
Proving Prejudice, Post-Padilla, 54 How. L.J. 693, 713 (2011).
{21} 	Given this arguably broader framework permitted by Padilla, some scholars
have advocated incorporating considerations into the prejudice analysis that more
fully reflect the impact that accurate advice regarding immigration consequences can
have on a decision to plead. See, e.g., Roberts, supra, at 722 (“It is critical to integrate

15
into the prejudice inquiry these realities of plea bargaining, which include negotiating
over both charges and sentence, and the effect of these negotiations on a defendant’s
decision-making process.”). Such an approach acknowledges that
[i]f full information about required matters—which now includes
automatic deportation . . .—would lead a defendant to reject the plea,
three things could follow: (1) he could go to trial; (2) his attorney could
attempt to re-negotiate the plea for one that either avoided imposition of
the consequence or lowered the charge and/or sentence in recognition of
the fact that deportation . . . would follow the conviction; or (3) assuming
the plea did not include a sentence bargain, his attorney could use the
additional consequence in post-plea sentencing advocacy before the
judge.
Roberts, supra, at 722-23. Owing to the impact that accurate immigration advice may
have on a defendant’s decision-making during the plea bargain process, ineffective
assistance claims that arise in this context require courts to analyze factors that differ
from those that pertain to non-immigration-related ineffective assistance claims. See
Roberts, supra, at 737 (asserting that “[i]n failure-to-warn cases, [the strength of the
evidence] should not weigh as heavily[,] . . . because the relevant initial inquiry is
simply whether, given fully accurate information about the collateral consequence, it
is reasonably probable that the defendant would have rejected the plea offer”); State
v. Sandoval, 249 P.3d 1015, 1022 (Wash. 2011) (en banc) (concluding that, in light
of deportation consequences to someone who had earned permanent residency in this
country and made it his home, it would be “rational” for a defendant to “take his

16
chances at trial” even though he “would have risked a longer prison term by going to
trial”); see also United States v. Kwan, 407 F.3d 1005, 1017 (9th Cir. 2005)
(determining that the defendant had demonstrated that he was prejudiced by his
counsel’s ineffectiveness where his counsel failed to advise him of the immigration
consequences of a plea bargain), abrogated on other grounds by Padilla, 559 U.S.
356, 130 S. Ct. 1473. 	Thus, under this approach, a defendant could demonstrate
prejudice by submitting evidence, for instance, that a different plea could have been
negotiated that would have avoided automatic deportation, even if that plea would
have resulted in a conviction of a crime requiring a longer period of incarceration. See
Vivian Chang, Note, Where Do We Go From Here: Plea Colloquy Warnings and
Immigration Consequences Post-Padilla, 45 U. Mich. J.L. Reform 189, 194 (2011)
(recognizing that “non-citizen defendants may be interested in serving longer
sentences in order to avoid adverse immigration consequences”).
{22} 	The broader, inclusive prejudice analysis described in the preceding paragraphs
is not inconsistent with existing New Mexico case law. 	Our Supreme Court has
recognized that “[d]eportation can often be the harshest consequence of a non-citizen
criminal defendant’s guilty plea, so that in many misdemeanor and low-level felony
cases . . . [he or she] is usually much more concerned about immigration consequences
than about the term of imprisonment.” Paredez, 2004-NMSC-036, ¶ 18 (omission and

17
alteration in original) (internal quotation marks and citation omitted). 	Also, in
Paredez, our Supreme Court held that for a defendant to demonstrate prejudice in the
context of immigration, a defendant must show “he would not have entered into the
plea agreement if he had been given constitutionally adequate advice about the effect
that his guilty plea would have on his immigration status.” Id. ¶ 20 (internal quotation
marks and citation omitted); see Edwards, 2007-NMCA-043, ¶ 34 (noting that “a
defendant who was convicted on a plea is not required to prove that a trial would have
resulted in acquittal” (alteration, internal quotation marks, and citation omitted)).
Thus, similar to the United States Supreme Court’s approach in Padilla, New Mexico
courts appear to approve implementing a broad approach to assessing prejudice in the
context of immigration.
2. 	A Trial Court’s Warnings Regarding Immigration Consequences During
the Plea Colloquy
{23} 	In the present case, in determining prejudice, this Court must determine what
weight, if any, should be given to the trial court advising Defendant during the plea
colloquy that he would be deported. 	The district court entered an order accepting
Defendant’s allegations that his counsel had failed to inform him of the immigration
consequences of his plea, but concluding that because the trial court “itself
admonished . . . [D]efendant that his plea and conviction in this case would surely
result in his being deported[,]” and Defendant “personally told the [trial c]ourt that he

2 While the State argues that Defendant did not meet his burden of
establishing a prima facie showing of ineffective assistance of counsel under Tran,
we do not address this argument because the district court permitted Defendant to
present testimony at the hearing on the motion to reconsider. See Tran, 2009-
NMCA-010, ¶ 23 (indicating that a prima facie showing of ineffective assistance of
counsel entitles a defendant to an evidentiary hearing). Following the testimony,
the district court entered an order denying Defendant’s motion for reconsideration
based on the reasons set forth in the original order denying Defendant’s request for
relief.
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understood 	that 	he 	would 	be 	deported[,]” 	Defendant’s 	plea 	was 	“knowing,
intelligent[,] and voluntary.” 	Thus, the district court appears to have accepted
Defendant’s allegations that he was not informed by his counsel of the immigration
consequences of his plea. 	Because failure to inform a defendant about the
immigration consequences of his plea is sufficient to establish the first prong of
ineffective assistance of counsel under Paredez, we limit our review to the district
court’s reliance on the trial court’s advice to Defendant in deciding that Defendant had
not demonstrated prejudice. 2 Because our appellate courts have not previously
addressed this issue, we turn to authority from other jurisdictions to guide our
decision.
{24} 	We note that some courts have viewed a district court’s advice to counsel
during a plea colloquy as “curing” counsel’s deficient representation and precluding
a showing of prejudice even where the court’s warnings were equivocal. 	See, e.g.,
State v. Martinez, 729 S.E.2d 390, 392 (Ga. 2012) (“A trial court’s plea colloquy

19
warnings of adverse immigration consequences, especially where . . . the defendant
affirmatively acknowledge[d] his understanding that he is certain or almost certain to
face deportation, generally shows that the defendant cannot demonstrate prejudice or
that any prejudice was cured, regardless of whether plea counsel had previously given
affirmative misadvice or failed to give any advice.”); Mendoza v. United States, 774
F. Supp. 2d 791, 799 (E.D. Va. 2011) (stating, in dicta, that “[the] petitioner’s
ineffective assistance of counsel claim flatly fails on the prejudice prong” because
“[the] petitioner was explicitly advised in the course of the . . . colloquy that her guilty
plea would render her subject to deportation and [she] acknowledged, under oath, that
she understood this possible consequence”); see also De La Rosa v. United States,
Nos. 09-Cv-22646-COHN, 08-Cr-20685-COHN, 2012 WL 4466533, at *8 (S.D. Fla.
Aug. 17, 2012) (holding that, because the court specifically advised the movant that
his plea could lead to his removal from the United States, “the [c]ourt cured any error
due to counsel’s alleged misadvice and [the] movant’s plea was voluntarily entered
with full knowledge of its possible deportation consequences”); Amreya v. United
States, Nos. 4:10-CV-503-A, 4:08-CR-033-A, 2010 WL 4629996, at *5 (N.D. Tex.
Nov. 8, 2010) (holding that “the record conclusively demonstrates a lack of prejudice”
where the court had “specifically advised [the] movant that an adjudication of guilt
could result in deportation” (emphasis added) (alteration, internal quotation marks,

20
and citation omitted)). 	Generally, courts that view the district court’s colloquy as
“curing” counsel’s ineffectiveness and precluding prejudice therefrom appear to rely
on the importance of sworn statements in open court. See, e.g., De La Rosa, 2012 WL
4466533, at *6 (“[A] defendant’s sworn answers during a plea colloquy must mean
something” and they “constitute a formidable barrier in any subsequent collateral
proceedings.” (internal quotation marks and citation omitted)); see also Danielle M.
Lang, Note, 	Padilla v. Kentucky: The Effect of Plea Colloquy Warnings on
Defendants’ Ability to Bring Successful Padilla Claims, 121 Yale L.J. 944, 983 (2012)
(stating that most courts holding that a defendant could not demonstrate prejudice in
light of court advice during a plea colloquy “bolstered their no-prejudice holdings
with language emphasizing the importance of sworn statements in open court”).
{25} 	To the contrary, some courts have held that a trial court’s advice during the plea
colloquy, while relevant, cannot “cure” a counsel’s inadequate representation. 	See
Hernandez v. State, __ So. 3d __, 2012 WL 5869660, at *4 (Fla. Nov. 21, 2012)
(stating that “a colloquy containing an equivocal warning from the trial court and an
acknowledgment from the defendant contributes to the totality of the circumstances
by providing evidence that the defendant is aware of the possibility that a plea could
affect his immigration status” but it “cannot, by itself, remove prejudice resulting from
counsel’s deficiency”); Commonwealth v. Clarke, 949 N.E.2d 892, 907 n.20 (2011)

21
(stating that, while a deportation warning was given to the defendant, “the receipt of
such warnings is not an adequate substitute for defense counsel’s professional
obligation to advise her client of the likelihood of specific and dire immigration
consequences that might arise from such a plea,” but “it may be relevant to the
prejudice prong”), abrogated on other grounds by Chaidez, __ U.S. __, 133 S. Ct.
1103; People v. Garcia, 907 N.Y.S.2d 398, 406-07 (Sup. Ct. 2010) (“[W]here . . .
[the] defendant is found in fact to have been misled by bad advice from a so-called
retained specialist and by a lack of advice from his defense attorney, the [c]ourt’s
general [deportation] warning[s] will not automatically cure counsel’s failure nor erase
the consequent prejudice.”); see also Lang, supra, at 978-79 (noting that courts that
did not allow plea colloquy warnings to bar a finding of prejudice “focused on the
holding in Padilla that effective assistance requires not only a blanket warning of
possible immigration consequences, but also, where the deportation consequence is
clear, specific advice on the particular immigration consequences of the plea”).
{26} 	Given that our Supreme Court’s holding in Paredez requires “a definite
prediction as to the likelihood of deportation[,]” Carlos, 2006-NMCA-141, ¶ 14, we
agree with those courts that have held an equivocal warning by the trial court to be
insufficient to cure counsel’s deficient representation. However, even where the trial
court’s warning is unequivocal, as it was here, we do not rely on those cases that hold

22
that a trial court’s warning can cure counsel’s deficient representation. 	As our
Supreme Court noted in Paredez, “a sufficient advisement from the trial court
regarding the immigration consequences of a defendant’s plea does not entail that the
defendant has received effective assistance of counsel in evaluating or responding to
such advisements.” 	2004-NMSC-036, ¶ 12 (emphasis added) (alteration, internal
quotation marks, and citation omitted). 	Thus, we hold that a court’s warning or
advisement to a defendant regarding possible immigration consequences of accepting
a plea is never, by itself, sufficient to cure the prejudice that results from ineffective
assistance of counsel in that regard.
{27} 	“Effective assistance of counsel is necessary during plea negotiations because
the most important decision for a defendant in a criminal case is generally whether to
contest 	a 	charge 	or 	enter 	into 	a 	plea 	agreement.” 	Patterson 	v. 	LeMaster,
2001-NMSC-013, ¶ 16, 130 N.M. 179, 21 P.3d 1032; see also Padilla, 559 U.S. at
___, 130 S. Ct. at 1486 (recognizing the importance of negotiation of a plea bargain
as “a critical phase of litigation for purposes of the Sixth Amendment right to effective
assistance of counsel”). The right to effective assistance of counsel amounts to more
than simply relaying information. See Strickland, 466 U.S. at 688 (recognizing that
“[r]epresentation of a criminal defendant entails certain basic duties[,]” including the
“overarching duty to advocate the defendant’s cause[,] . . . to consult with the

23
defendant on important decisions[,] and to keep the defendant informed”). “The role
of defense counsel is to investigate, advise, and counsel her client through every phase
of the criminal process. The court, as a neutral arbiter, cannot fulfill this role.” Lang,
supra, at 996. “Even where warnings are more specific, judges, given their position,
cannot gauge defendants’ priorities, counsel defendants on how to proceed, or use the
information strategically in negotiating pleas.” Id. at 988. A defendant who has been
“advised” of the immigration consequences of his plea by the trial court during the
plea colloquy has not been provided the same assistance of counsel as an attorney who
has represented a client with knowledge that the defendant faced possible deportation.
As the United States Supreme Court acknowledged in Padilla,
informed consideration of possible deportation can only benefit both the
[s]tate and non[-]citizen defendants during the plea-bargaining process.
By bringing deportation consequences into this process, the defense and
prosecution may well be able to reach agreements that better satisfy the
interests of both parties. As in this case, a criminal episode may provide
the basis for multiple charges, of which only a subset mandate
deportation following conviction. 	Counsel who possess the most
rudimentary 	understanding 	of 	the 	deportation 	consequences 	of 	a
particular criminal offense may be able to plea bargain creatively with
the prosecutor in order to craft a conviction and sentence that reduce the
likelihood of deportation, as by avoiding a conviction for an offense that
automatically triggers the removal consequence. At the same time, the
threat of deportation may provide the defendant with a powerful
incentive to plead guilty to an offense that does not mandate that penalty
in exchange for a dismissal of a charge that does.

24
559 U.S. at ___, 130 S. Ct. at 1486. 	Because a defendant whose attorney has not
advised him of the immigration consequences of his plea has likely not advocated for
a plea aimed at avoiding automatic deportation, the trial court’s advice to a defendant
that he may or will be deported cannot cure counsel’s deficient representation.
{28} 	Moreover, we note concerns with the efficacy of immigration warnings given
by a trial court. “[A] nervous defendant taking a plea in front of a criminal judge will
rarely be able to meaningfully process the many formalized warnings included in the
plea colloquy. While these warnings may be administered in a way that is supportive
of the spirit of Padilla, they are no replacement for meaningful advice by counsel.”
Heidi Altman, Prosecuting Post-Padilla: State Interests and the Pursuit of Justice for
Non[-]citizen Defendants, 101 Geo. L.J. 1, 21 (2012) (footnote omitted); Chang,
supra, at 216 (noting “that defendants do not currently pay attention to the rote nature
of warnings at plea colloquy, and that non-citizen defendants therefore would not
actually be put on notice of the immigration consequences they might face”). While
we do not go so far as to hold that such warnings are irrelevant to a prejudice analysis,
given the formalistic nature of the warnings, we caution that such warnings should be
given very little weight when considering prejudice where the defendant was not

3 To the extent the State argues that the plea and disposition agreement
signed by Defendant stated that it “may have an effect upon [his] immigration or
naturalization status,” neither the equivocal nature of the warning nor the
formalistic nature of its delivery provide support for it being given significant
weight in determining prejudice.
4 While the State advocates for this Court to conclude that Defendant did
not establish prejudice because he “made no showing that the charges to which he
25
given the opportunity to speak with counsel between receiving the warnings and
entering his plea.3
{29} 	In an effort to attempt to lessen claims of ineffective assistance of counsel such
as the one now before this Court, in cases in which the district court is presented with
a guilty or nolo contendere plea, we recommend that the district court inquire of both
the defendant and the defendant’s lawyer the extent to which the immigration
consequences of accepting the plea were discussed (1) before the defendant signed his
plea agreement, (2) before the defendant entered his plea in court, and (3) before
sentencing.
{30} 	In the present case, the district court appears to have placed significant weight
on the trial court’s immigration warnings to Defendant. For the reasons articulated
earlier, we conclude that placing significant weight on the trial court’s warnings was
improper where Defendant was not provided the opportunity to consult with counsel
or consider what other options may exist that would permit him to avoid deportation.
We therefore remand to the district court for further proceedings.4 On remand, the

pleaded guilty were not based on strong evidence[,]” the strength of the evidence is
but one factor to be considered in determining prejudice. Although our courts have
recognized “a direct relationship between the strength of the case against a
defendant and the likelihood that he or she will plead guilty or no contest[,]”
Edwards, 2007-NMCA-043, ¶ 35 (internal quotation marks and citation omitted),
when viewed in light of our acknowledgment that immigration consequences may
often be the overriding concern of a criminal defendant, the strength of the
evidence against a defendant is less indicative of whether the defendant may have
taken a chance at trial. See Roberts, supra, at 737 (asserting that “[i]n failure-to-
warn cases, [the strength of the evidence] should not weigh as heavily[,] . . .
because the relevant initial inquiry is simply whether, given fully accurate
information about the collateral consequence, it is reasonably probable that the
defendant would have rejected the plea offer”); id. at 719 (noting that it may be
“rational” for a defendant “to take his chances at trial, however slim the likelihood	15
of acquittal, . . . because it was the only route to avoiding deportation”).	16
26
district court may hear evidence and reconsider both prongs of Defendant’s ineffective
assistance of counsel claim. Given that objective evidence may be sparse in this type
of case, see Carlos, 2006-NMCA-141, ¶ 21, by this Court’s broadening of the
approach in analyzing prejudice, the district court will have more to draw from than
Defendant’s self-serving statements in determining whether he was prejudiced by
counsel’s failure to warn regarding the immigration consequences of his plea. 	See
Patterson, 2001-NMSC-013, ¶ 29 (“Because courts are reluctant to rely solely on the
self-serving statements of defendants, which are often made after they have been
convicted and sentenced, a defendant is generally required to adduce additional
evidence to prove that there is a reasonable probability that he or she would have gone
to trial.”). On remand, the district court should consider the various considerations

27
discussed herein, in light of the harsh and drastic consequences that deportation poses.
CONCLUSION
{31} 	The district court’s order denying Defendant’s motion for reconsideration is
reversed. 	This matter is remanded to the district court for further proceedings
consistent with this Opinion.
{32} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
___________________________________
CYNTHIA A. FRY, Judge
_________________________________
LINDA M. VANZI, Judge