Mukimiyan, Milat

In the Court of Criminal
Appeals of Texas
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No. WR-94,933-02
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EX PARTE MILAT MUKIMIYAN,
Applicant

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On Application for Writ of Habeas Corpus
In Cause No. 11-430-K26 B in the 26th District Court
Williamson County
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YEARY, J., filed a dissenting opinion in which KEEL and
SLAUGHTER, JJ., joined.

Applicant, of Iranian birth, was charged with, and convicted of,
the offense of fraudulent use of identifying information, in this instance
a state-jail felony. TEX. PENAL CODE § 32.51(b)(1), (c)(1). He pled guilty
to that offense but, pursuant to a plea bargain with the State, was
punished “for a Class A misdemeanor” at one year’s confinement in the
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county jail, under Section 12.44(a) of the Penal Code. TEX. PENAL CODE
§ 12.44(a). He now claims his plea was involuntary because he was not
admonished that it would render him susceptible to deportation as a
matter of federal law, relying upon Padilla v. Kentucky, 559 U.S. 356
(2010). The State agrees that Applicant is entitled to relief, and this
Court today grants it.
I would not—at least not yet. Even if Applicant has established
the deficient-performance prong of his ineffective assistance of counsel
claim under the Sixth Amendment, I cannot agree that he has yet
satisfied the prejudice prong. See Hill v. Lockhart, 474 U.S. 52, 59 (1985)
(“[I]n order to satisfy the ‘prejudice’ requirement [of Strickland v.
Washington, 466 U.S. 668 (1984), in a guilty plea context], the defendant
must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on
going to trial.”). Under the current state of the record, Applicant has not
convinced me that, but for his counsel’s failure to inform him of the clear
adverse effect of his guilty plea upon his immigration status, there is a
reasonable probability that he would have foregone the State’s plea
bargain and insisted on going to trial.
The convicting court judge who presided over Applicant’s guilty
plea proceedings in 2011 is different than the convicting court judge who
now presides over Applicant’s present post-conviction habeas corpus
proceedings some twelve years later, in 2023. The current convicting
court judge recommends that we find that “Applicant would not have
entered his plea had he been properly advised.” For his part, Applicant
has claimed in an affidavit that he would have eschewed the plea
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bargain and insisted on a trial for the following reason:
Staying in the U.S. was (and is) extremely important to me
as I fled my native country of Iran under fear of death and
torture and came to the United States as a refugee seeking
Asylum (which was later approved). Being deported to Iran
would be the most traumatic and life threatening
punishment possible and avoidable at all costs.

The current convicting court judge has recommended that we accept this
explanation as sufficient proof that Applicant would have insisted on
going to trial. But she did not conduct an evidentiary hearing at which
to assay the credibility of this claim in person. In my view, we have good
reason to doubt that credibility.
The record shows that Applicant was admonished at the time of
his guilty plea—at least on paper—pursuant to Article 26.13(a)(4) of the
Texas Code of Criminal Procedure about the possibility of deportation
resulting from the plea. TEX. CODE CRIM. PROC. art. 26.13(a)(4).
Specifically, one of the written admonishments informed Applicant in
the language of the statute that,
[i]f the Defendant is not a citizen of the Unites States of
America, a plea of guilty or no contest for the offense
charged may result in deportation, the exclusion of
admission to this country, or the denial of naturalization
under federal law.

During the plea colloquy in 2011, 1 Applicant personally acknowledged

1 The Court also grants Applicant relief without addressing the question

whether his present claim should be barred by laches. Applicant offers no
explanation why it has taken him a dozen years to raise his Padilla claim,
which has been available to him since the time he entered his plea. Though the
State may choose not to contest habeas corpus relief based upon laches, courts
are free to inquire sua sponte. Ex parte Smith, 444 S.W.3d 661, 667 (Tex. Crim.
App. 2014).
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that he had gone over the written admonishments with counsel, had
understood them, and had voluntarily signed that document. In their
respective affidavits in support of Applicant’s present claim, his trial
lawyers do not contest that they at least reviewed these written
admonishments with him, even while they admit they did not more
specifically advise him of the deportation consequences of his guilty
plea. 2
Thus, the record shows Applicant was certainly made aware of
the possibility that his guilty plea could result in deportation, even if the
near certainty that it would render him deportable was not brought
home to him by counsel as it arguably should have been. That he pled
guilty in the knowledge of at least the possibility of deportation renders
questionable his claim that the prospect of torture and/or death upon
deportation to his home country was so daunting that it would have
prevented him from ever accepting the State’s plea offer, however
favorable to him it may have been and however compelling the State’s
evidence of his guilt may have been. 3

2 For example, Applicant’s lead attorney now concedes: “I probably told

[Applicant] something general along the lines of ‘I don’t practice immigration
law, and this could possibly affect your legal residence or possibly cause you
issues with deportation.’” The attorney who actually accompanied Applicant to
the plea proceeding now attests: “I can say with certainty that I did not give
[Applicant] any specific admonishments outside of the statements on the plea
admonishments about how his conviction and sentence for Fraudulent Use of
Identifying Information would affect his immigration status[.]” (emphasis
added).

3 By accepting the State’s plea offer, Applicant avoided having to serve

his sentence in a state jail. Presumably he regarded this as beneficial to him
in some way. The potential evidence that could have been presented at a trial
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For this reason, if no other, I would not grant Applicant relief on
the present state of the record. If nothing else, I would remand this cause
for an evidentiary hearing to test the credibility of Applicant’s prejudice
claim before I would grant him relief. Because the Court now grants
relief anyway, I respectfully dissent.

FILED: September 27, 2023
PUBLISH

that Applicant fraudulently presented his cousin’s driver’s license to a police
officer during a traffic stop seems fairly compelling.