Lucero v. State

¶1ON WRIT OF CERTIORARI.

¶2In this post-conviction relief (PCR) action, the State argues the PCR court erred in finding Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), applied retroactively and granting Ken Lucero’s application for PCR. The State also contends the PCR court erred in denying its motion to dismiss on the basis that the application was barred by the statute of limitations and laches. We reverse.

¶3*242FACTS

¶4Lucero was born in Ecuador, moved to the United States in 1993, and became a “permanent resident alien” in 2000. On June 6, 2002, she was traveling in a rental car from New York City, where she lived, to Orlando, Florida, when police executed a traffic stop in Dorchester County, South Carolina. According to Lucero, because she did not speak English, she was unsure why police stopped her. Police searched her vehicle and found heroin in the trunk, but she asserted she had never seen heroin or transported it for other people.

¶5The State indicted Lucero for trafficking heroin in an amount more than one hundred grams but less than two hundred grams. In November 2002, she pled guilty to the lesser included offense of possession of heroin, and the plea court sentenced her to two years’ imprisonment suspended on three years’ probation.1 Lucero did not file a direct appeal. In February 2011, an immigration judge ordered Lucero removed to Ecuador due to her conviction.

¶6On April 14, 2011, Lucero filed an application for PCR alleging ineffective assistance of counsel based on Padillabecause plea counsel failed to inform her of the possibility of deportation due to her conviction. At the PCR hearing, Lucero testified she met with plea counsel on three occasions and plea counsel never informed her of the possibility of deportation. She testified she would not have pled guilty if she knew she could be deported.

¶7The State argued Lucero’s application was barred by the statute of limitations because she pled guilty in 2002, never filed a direct appeal, and filed her PCR application in 2011, in excess of the one-year statute of limitations for PCR. The State claimed Padillawas not retroactive; therefore, her application was “far beyond the [one-year] statute of limitations.” Alternatively, the State argued even if Padillawas retroactive, Lucero’s application was still barred by the statute of limitations because she waited more than one year from the day the Supreme Court issued Padilla. The State also claimed the doctrine of laches barred Lucero’s application.

¶8*243The PCR court found Lucero was entitled to PCR and vacated her conviction. Initially, the PCR court determined Lucero’s application fell within the one-year statute of limitations provided under section 17-27-45(B) of the South Carolina Code (2014) because Padillawas “ ‘intended to be applied retroactively.’ ” Further, the PCR court ruled the one-year statute of limitations contained in section 17-27-45(B) begins from the day the Supreme Court issues its “mandate” because “[t]his is analogous to the state court’s issuing of the remittitur under Rule 221, SCACR.” The PCR court explained because the Supreme Court issued its mandate for Padillaon May 3, 2010, Lucero’s application, filed on April 14, 2011, was within one year of Padillabecoming final. Finally, the PCR court found the doctrine of laches did not bar Lucero’s application because “the severe consequences of [Lucero] being deported outweigh any prejudice caused to the [S]tate by trying this case.”

¶9The State filed a petition for writ of certiorari from the grant of Lucero’s application for PCR. This court granted the petition.

¶10STANDARD OF REVIEW

¶11On review, we will uphold a PCR court’s findings if any evidence of probative value supports them. Simuel v. State, 390 S.C. 267, 270, 701 S.E.2d 738, 739 (2010). “This [e]ourt will reverse the PCR [court]’s decision when it is controlled by an error of law.” Suber v. State, 371 S.C. 554, 558-59, 640 S.E.2d 884, 886 (2007). We “give[ ] great deference to the PCR court’s findings of fact and conclusions of law.” Porter v. State, 368 S.C. 378, 383, 629 S.E.2d 353, 356 (2006).

¶12LAW/ANALYSIS

¶13The State argues the PCR court erred by finding Padillaapplied retroactively. Specifically, the State claims the ruling in Padillawas a “new rule” under Teague2because it applied the ineffective assistance of counsel analysis from Strickland3for the first time to decide whether plea counsel’s *244failure to inform a defendant about deportation consequences constituted ineffective assistance. According to the State, because Padillawas a “new rule,” it does not apply retroactively and the PCR court should have dismissed Lucero’s application as barred by the statute of limitations. The State further asserts Padilla’s ruling was not a watershed rule of criminal procedure. We agree.

¶14“In a PCR proceeding, the applicant bears the burden of establishing that he or she is entitled to relief.” Lomax v. State, 379 S.C. 93, 100, 665 S.E.2d 164, 167 (2008). “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. “The defendant must first demonstrate that counsel was deficient and then must also show the deficiency resulted in prejudice.” Walker v. State, 407 S.C. 400, 404-05, 756 S.E.2d 144, 146 (2014). “There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case.” Morris v. State, 371 S.C. 278, 282, 639 S.E.2d 53, 55 (2006). “The two-part test adopted in Stricklandalso applies to challenges to guilty pleas based on ineffective assistance of counsel.” Holden v. State, 393 S.C. 565, 572, 713 S.E.2d 611, 615 (2011) (internal quotation marks omitted).

¶15“To satisfy the first prong, a defendant must show counsel’s performance fell below an objective standard of reasonableness.” Walker, 407 S.C. at 405, 756 S.E.2d at 146 (internal quotation marks omitted). “To prove prejudice, an applicant must show there is a reasonable probability that but for counsel’s deficient performance, the result of the proceeding would have been different.” Id.(internal quotation marks omitted). To prove prejudice in the context of a guilty plea, an applicant must show that but for counsel’s errors, there is a reasonable probability the applicant would not have pled guilty and would have insisted on going to trial. Roscoe v. State, 345 S.C. 16, 20, 546 S.E.2d 417, 419 (2001).

¶16In Padilla, 559 U.S. at 360, 130 S.Ct. 1473, the Supreme Court addressed whether plea counsel must inform his or her client of the risk of deportation associated with a potential guilty plea. The Supreme Court explained:

*245It is our responsibility under the Constitution to ensure that no criminal defendant — whether a citizen or not — is left to the mercies of incompetent counsel. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. 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.

¶17Id. at 374, 130 S.Ct. 1473 (citation and internal quotation marks omitted). Further, to be effective, counsel must inform a defendant whether his or her plea carries a risk of deportation because it is a critical factor when deciding whether to plead guilty or proceed to trial. Hamm v. State, 403 S.C. 461, 463 n. 1, 744 S.E.2d 503, 504 n. 1 (2013).

¶18The Supreme Court has found the retroactivity of federal criminal procedure decisions “turn[s] on whether they are novel,” i.e., whether they constitute a “new rule.” Chaidez v. United States, — U.S. —, 133 S.Ct. 1103, 1107, 185 L.Ed.2d 149 (2013). When the Supreme Court announces a “ ‘new rule,’ a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding.” Id.“Only when [the Supreme Court] applies] a settled rule may a person avail herself of the decision on collateral review.” Id.“A case announces a new rule ... when it breaks new ground or imposes a new obligation on the government” or “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Id.(brackets omitted) (internal quotation marks omitted). A case does not announce a new rule when it is “merely an application of the principle that governed a prior decision to a different set of facts.” Id.(internal quotation marks omitted). In Chaidez,4 the Supreme Court found Padillaannounced a “new rule” because its “holding that the failure to advise about a noncriminal consequence could violate the Sixth Amendment would not have been ... ‘apparent to all reasonable jurists’ prior to [Padilla].” Id. at 1111. Accordingly, the Supreme Court found Padilladid not apply retroactively and “defen*246dants whose convictions became final prior to Padillatherefore cannot benefit from its holding.” Id. at 1107, 1113.

¶19Our supreme court has acknowledged the Supreme Court’s decision in Chaidez. See Hamm, 403 S.C. at 465 n. 4, 744 S.E.2d at 505 n. 4 (“[T]he [Supreme Court] held Padillaannounced a new rule; therefore, the Court concluded it does not apply retroactively.”). Additionally, the Hammcourt found a PCR applicant “failed to file a PCR application raising any issue related to Padillawithin one year of that decision, issued March 31, 2010, as required by section 17-27-45 of the South Carolina Code.” Id. at 464, 744 S.E.2d at 504 (citing S.C.Code Ann. § 17-27-45(B) (2014)).

¶20Despite its decisions addressing and applying retroactivity of “new” constitutional criminal procedure rules, the Supreme Court has also decided individual states are free to provide constitutional protections in excess of the minimum required by the Constitution. See Danforth v. Minnesota, 552 U.S. 264, 288, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008). Specifically, the Supreme Court concluded “the remedy a state court chooses to provide its citizens for violations of the Federal Constitution is primarily a question of state law. Federal law simply sets certain minimum requirements that States must meet but may exceed in providing appropriate relief.” Id.(internal quotation marks omitted).5’6 In Aiken v. Byars, our *247supreme court noted it “ha[d] not addressed whether it should employ a more expansive analysis for determining retroactivity after Danforth ..., which held that state courts can use a broader test than Teague.” 410 S.C. 534, 539 n. 4, 765 S.E.2d 572, 575 n. 4 (2014) (citing Danforth, 552 U.S. at 282, 128 S.Ct. 1029 (holding Teague “does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed ‘nonretroactive’ under Teague”)). The supreme court found “it unnecessary to [determine whether to use a broader test in that case] because [the new rule] is clearly retroactive under Teague.” Id.

¶21Since the supreme court’s ruling in Chaidezthat Padillais not retroactive, states have split over whether to apply Padillaretroactively in their state. However, states all seem to rely on the determination of whether Padillacreated a new right in their state. The states that have found Padillaapplies retroactively point to their state’s prior case law, statutes, rules, or expected attorney practices requiring attorneys to advise their clients of deportation consequences when pleading guilty. See, e.g., Sylvain, 995 N.E.2d at 770-71 (“We conclude that Padilladid not announce a ‘new1 rule for the purposes of our retroactivity test under Bray.... Padilla did not announce a ‘new5 rule for the simple reason that it applied a general standard — designed to change according to the evolution of existing professional norms — to a specific factual situation. We also are not persuaded that Massachusetts precedent at the time Padillawas decided would have dictated an outcome contrary to that in Padilla. Indeed, long before Padillawas decided, it was customary for practitioners in Massachusetts to warn their clients of the possible deportation consequences of pleading guilty.” (citation omitted)); Ramirez v. State, 333 P.3d 240, 243 (N.M.2014) (“We decline to follow Chaidez ... because since 1990, the New Mexico Supreme Court rules and forms have required an attorney to certify *248having engaged the client in detail in a guilty plea colloquy that included immigration consequences. Because the requirements that Form 9406 imposes are not new in New Mexico, our holding in Paredez imposing requirements that were effective in 1990 applies retroactively to 1990, the adoption date of the Form 9-406 amendment that required a defendant to understand the possible immigration consequences of a plea conviction.”).

¶22The states that have not applied Padillaretroactively have found Padillarecognizes a new right, one that was not previously recognized in their state. See Miller v. State, 435 Md. 174, 77 A.3d 1030, 1044-45 (2013) (“The issue before us in the instant case, thus, becomes whether Miller’s claims of involuntariness or ineffective assistance of counsel resulting from his failure to be advised of the adverse immigration consequences of his plea had independent state bases in Maryland in 1999. When queried on this point at oral argument, Miller’s counsel could not identify any such state bases for affording Miller relief, because there are none.... By 1999, moreover, even after we adopted Rule 4-242(e), which mandated a trial court inform a defendant of the possibility of adverse immigration consequences, we further articulated that the failure to so advise a defendant did not itself mandate that the plea be declared invalid. The Rules Commentary acknowledged that the new Rule 4-242(e) did not overrule Daley v. State, in which the Court of Special Appeals held that the failure to advise of adverse immigration consequences did not render a guilty plea involuntary because possible deportation is merely collateral to his guilty plea, because it arises from a separate civil proceeding and, under immigration law at that time, deportation was not definite nor largely automatic.” (citations and internal quotation marks omitted)); People v. Baret, 23 N.Y.3d 777, 992 N.Y.S.2d 738, 16 N.E.3d 1216, 1230-31 (2014) (“In 1995 we held in Ford that defense counsel were not under a duty to warn defendants of the possible deportation consequences before entering a guilty plea; and, stated another way, that the failure of counsel to warn defendant of the possibility of deportation [did not] constitute ineffective assistance of counsel. Thus, Padillaflatly contradicted and supplanted Ford’s holding as to whether defense attorneys were obligated to advise their noncitizen clients about the *249immigration consequences of a guilty plea. We agree with Justice Kagan that ‘[i]f [this] does not count as break[ing] new ground or impos[ing] a new obligation, we are hard pressed to know what would.’ Thus, Padillacreated a new rule of federal constitutional criminal procedure in New York which, consistent with Teague and Eastman, does not apply retroactively in CPL 440.10 proceedings.” (alterations by court) (citations and internal quotation marks omitted)); State v. Alshaif, 219 N.C.App. 162, 724 S.E.2d 597, 603 (2012) (“Persuaded by the reasoning of Chang Hong, we conclude that Padillaannounced a new rule. Prior to Padilla, neither our state courts nor federal courts had interpreted Stricklandas requiring counsel to advise a client of the immigration consequences of a guilty plea. We are aware that Stricklandis a fact-specific test, and must naturally evolve over time as practical norms and underlying legal consequences change. However, we find that Padillawas an application of Stricklandthat would have been unreasonable to expect attorneys to have foreseen — especially those attorneys unfamiliar with immigration law. We therefore hold that Padillaannounced a new rule.” (citations omitted)); State v. Garcia, 834 N.W.2d 821, 823-26 (S.D.2013) (“This Court, however, has previously deemed the Teague rule to be unduly narrow as to what issues it will consider on collateral review. We opined that [w]hile the substance of what is to be applied is a federal constitutional matter, the decision on what criteria to use to determine prospective or retroactive application is a nonconstitutional state decision. Accordingly, we use the following criteria to determine whether a particular decision should be given [retroactive] effect [in South Dakota]: (1) The purpose of the decision, (2) reliance on the prior rule of law, and (3) the effect upon the administration of justice. Thus, while the trial court relied on the Teague factors in its analysis of the Padilladecision, we adhere to the Cowell precedent in analyzing whether Padillaapplies retroactively.... At the time of Garcia’s guilty plea in 2004, this Court had not yet addressed whether the failure to advise a defendant of the risk of deportation amounted to ineffective assistance of counsel. In our 2005 decision in Nikolaev v. Weber, we held that the overwhelming majority of courts to have addressed the question have held that deportation is a collateral consequence of *250the criminal process, and hence that, nothing else appearing, the failure to advise the defendant of the possibility of deportation does not amount to ineffective assistance of counsel. Subsequently, we denied Nikolaev relief on the same basis. Accordingly, the rule of law pronounced in Nikolaev in 2005 was exactly the opposite of the rule announced in Padillain 2010.... In weighing the three Cowell criteria together, we will not apply the United States Supreme Court’s decision in Padillaretroactively to cases that were decided prior to Padilla.” (all alterations by court except last two) (citations and internal quotation marks omitted)); see also Thiersaint v. Comm’r of Corr., 316 Conn. 89, 111 A.3d 829, 848 (2015) (“Thus, by describing the holding in Padillaas an extension of Strickland, which was not a new rule, the court in Sylvain ignored the fact that the question of whether attorneys are constitutionally required to advise noncitizen criminal defendants of the deportation consequences of a guilty plea had never been addressed before Padilla. The court in Sylvain also ignored the fact that the ruling in Padillawas grounded in a legal analysis of the direct and indirect consequences of a plea, and that the court in Padillahad examined prevailing professional norms under the performance prong of Stricklandonly after resolving the threshold constitutional question of whether the rule applied in that case. We thus dismiss the reasoning in Sylvain because it fails to recognize that the rule announced in Padillawas new, and not merely an extension of the rule articulated in Strickland.” (footnote and citation omitted)).

Generally, new procedural rules should [not be] applied retroactively to cases on collateral review, unless the new rule falls within one of two exceptions to the general rule. The first exception is when the rule “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” The second exception is when the rule “requires the observance of those procedures that ... are implicit in the concept of ordered liberty.” The second exception is “reserved for watershed rules of criminal procedure” which implicate the fundamental fairness and accuracy of the proceeding.

¶23*251Talley v. State, 371 S.C. 535, 543, 640 S.E.2d 878, 882 (2007) (second alteration by court) (quoting Teague, 489 U.S. at 305, 310-11, 109 S.Ct. 1060).

¶24Lucero argues that although Padillacreated a new rule, South Carolina should apply it retroactively because it is a watershed rule of criminal procedure, which implicates the fundamental fairness and accuracy of the proceeding. We find it is not a watershed rule.

¶25The Idaho Court of Appeals has noted, “We are aware of no court that has found that Padillaapplies retroactively under Teague’s watershed exception.” Gutierrez-Medina v. State, 157 Idaho 34, 333 P.3d 849, 853 (Ct.App.2014). “The Tenth Circuit Court of Appeals addressed the question in United States v. Chang Hong, 671 F.3d 1147 (10th Cir.2011), after determining (pre-Chaidez) that Padillaestablished a new rule of criminal procedure.” Id.(footnote omitted). “The [Chang Hong ] court first noted the Supreme Court has not hesitated to hold that less sweeping and fundamental rules than Gideon do not fall within Teague’s second exception.” Id.The Chang Hongcourt determined Padilladid not announce a watershed rule of criminal procedure:

Simply put, Padillais not Gideon. Padilla does not concern the fairness and accuracy of a criminal proceeding, but instead relates to the deportation consequences of a defendant’s guilty plea. The rule does not affect the determination of a defendant’s guilt and only governs what advice defense counsel must render when his noncitizen client contemplates a plea bargain. Padillawould only be at issue in cases where the defendant admits guilt and pleads guilty. In such situations, because the defendant’s guilt is established through his own admission — with all the strictures of a Rule 11 plea colloquy — Padilla is simply not germane to concerns about risks of inaccurate convictions or fundamental procedural fairness.

¶26Chang Hong, 671 F.3d at 1158.

¶27The Minnesota Supreme Court has also found Padilladid not create a watershed rule. Campos v. State, 816 N.W.2d 480, 498 (Minn.2012).

Requiring counsel to inform his noncitizen client of the immigration consequences of a guilty plea does not decrease *252the risk of an inaccurate conviction. Padillais only implicated “in cases where the defendant admits guilt and pleads guilty.” Chang Hong, 671 F.3d at 1158. In such cases, “because the defendant’s guilt is established through his own admission ... Padillais simply not germane to concerns about risks of inaccurate convictions or fundamental procedural fairness.” Id.Moreover, Padilla’s holding, unlike the expansive rule in Gideon establishing a right to counsel in all felony cases, affects only a small subset of defendants, indicating that the rule does not have a fundamental and profound impact on criminal proceedings generally.

¶28Campos, 816 N.W.2d at 498-99 (alteration by court) (citing United States v. Mandanici, 205 F.3d 519, 528 (2d Cir.2000) (explaining that a watershed rule must institute “a sweeping change that applies to a large swathe of cases rather than a narrow right that applies only to a limited class of cases” (internal quotation marks omitted)); Ellis v. United States, 806 F.Supp.2d 538, 549 (E.D.N.Y.2011) (concluding that the rule announced in Padillawas not a watershed rule because “the rule has nothing to do with the accuracy of a defendant’s conviction,” applied “a relatively narrow holding,” and “only applies to a limited class of defendants — noncitizen defendants who face charges that carry with them immigration consequences”)).

¶29In Gutierrez-Medina, 333 P.3d at 857, the appellant contended “because Idaho has a broader statutory right to counsel than is imposed by the federal Constitution, a lower threshold for finding Padillais a watershed rule should be applicable in this case.” The court found the appellant was “correct that in some instances, Idaho’s statutory right to counsel is more expansive than the federal right to counsel.” Id.“It does not automatically follow, however, that this distinction supports a finding that Padillaannounced a watershed rule. As we noted above, despite our Supreme Court’s adoption of a modified approach to Teague, the fundamental questions inherent in that analysis are still applicable.” Id.“It still stands that in order to be considered a watershed rule, a procedural rule must be one without which the likelihood of *253an accurate conviction is seriously diminished.” Id.The court found the appellant made “no argument that without the Padillarule, the likelihood of accurate convictions was seriously diminished.” Id.The court “agree[d] with the numerous jurisdictions ... that have explicitly concluded that Padillais simply not germane to concerns about risks of inaccurate convictions given that it does not affect the determination of a defendant’s guilt.” Id.(internal quotation marks omitted).

¶30The PCR court erred by ruling Padillawas retroactive in South Carolina. See Suber v. State, 371 S.C. 554, 558-59, 640 S.E.2d 884, 886 (2007) (“This [c]ourt will reverse the PCR [court]’s decision when it is controlled by an error of law.”). The Supreme Court determined Padillawas not retroactive for a collateral attack on a conviction in a federal proceeding. Chaidez, 133 S.Ct. at 1113. However, the Supreme Court also explicitly ruled a remedy in state court for a violation of the Federal Constitution is primarily a question of state law so long as the state law remedy meets the “minimum requirements” of the Federal Constitution. Danforth, 552 U.S. at 288, 128 S.Ct. 1029. Because of the Supreme Court’s decision in Danforth, our supreme court’s ruling in Talley, 371 S.C. at 541, 640 S.E.2d at 880, that “we are required to follow the ... Supreme Court’s decisions on retroactivity” is no longer accurate. As such, our state is not required to follow the Supreme Court’s holding in Chaidez. Therefore, we must determine whether Padillawill be retroactive for purposes of collateral attacks in state PCR proceedings.7

¶31We found no South Carolina case, statute, or rule requiring an attorney to advise a client of the deportation consequences that could arise from his or her guilty plea. Accordingly, Padillacreated a new rule in South Carolina. Padilladid not provide for a right to counsel in a situation in which one had *254not previously been entitled to it. It simply added a new type of advice counsel should give. Padilladoes not raise any concern about risks of inaccurate convictions or fundamental procedural fairness because a defendant has admitted guilt. See Talley, 371 S.C. at 544, 640 S.E.2d at 882 (finding a new rule was “a watershed rule of criminal proceeding because the right to counsel undeniably implicates the fundamental fairness and accuracy of the proceeding”). Therefore, this rule is not a watershed rule.

¶32Further, Lucero contends section 17-27-45(B) would be pointless if a new rule did not apply retroactively. However, she overlooks the part of the subsection that states “a substantive standard not previously recognized or a right not in existence at the time of the state court trial, and if the standard or right is intended to be applied retroactively.” The section clearly indicates the new rule must be intended to apply retroactively. For the reasons discussed above, the rule announced in Padillashould not apply retroactively in South Carolina. Therefore, the PCR court erred as a matter of law in finding Padillaapplied retroactively in South Carolina.8 Accordingly, the PCR’s court granting of Lucero’s PCR application is

¶33REVERSED.