{ "id": 4077581, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. CESAR FAVELA, Defendant-Appellant", "name_abbreviation": "State v. Favela", "decision_date": "2013-10-18", "docket_number": "No. 34,311; Docket No. 32,044", "first_page": "84", "last_page": "97", "citations": [ { "type": "official", "cite": "2013-NMCA-102" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "101 Geo. L.J. 1", "category": "journals:journal", "reporter": "Geo. L.J.", "year": 2012, "pin_cites": [ { "page": "21", "parenthetical": "footnote omitted" } ], "opinion_index": 0 }, { "cite": "2001-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352473 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0179-01" ] }, { "cite": "907 N.Y.S.2d 398", "category": "reporters:state", "reporter": "N.Y.S.2d", "case_ids": [ 3770185 ], "year": 2010, "pin_cites": [ { "page": "406-07" } ], "opinion_index": 0, "case_paths": [ "/misc3d/29/0756-01" ] }, { "cite": "133 S. Ct. 1103", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12407511 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/us/568/0342-01" ] }, { "cite": "949 N.E.2d 892", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2011, "opinion_index": 0 }, { "cite": "2012 WL 5869660", "category": "reporters:specialty_west", "reporter": "WL", "year": 2012, "pin_cites": [ { "page": "*4" } ], "opinion_index": 0 }, { "cite": "121 YaleL.J. 944", "category": "journals:journal", "reporter": "Yale L.J.", "opinion_index": 0 }, { "cite": "2012 WL 4466533", "category": "reporters:specialty_west", "reporter": "WL", "pin_cites": [ { "page": "*6" } ], "opinion_index": 0 }, { "cite": "2010 WL 4629996", "category": "reporters:specialty_west", "reporter": "WL", "year": 2010, "pin_cites": [ { "page": "*5", "parenthetical": "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, and citation omitted)" } ], "opinion_index": 0 }, { "cite": "774 F. Supp. 2d 791", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 3826981 ], "year": 2011, "pin_cites": [ { "page": "799" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/774/0791-01" ] }, { "cite": "729 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 3650425 ], "year": 2012, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ga/291/0455-01" ] }, { "cite": "45 U. Mich. J.L. Reform 189", "category": "journals:journal", "reporter": "U. Mich. J.L. Reform", "year": 2011, "pin_cites": [ { "page": "194", "parenthetical": "recognizing that \"non-citizen defendants may be interested in serving longer sentences in order to avoid adverse immigration consequences\"" } ], "opinion_index": 0 }, { "cite": "407 F.3d 1005", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 8974743 ], "year": 2005, "pin_cites": [ { "page": "1017", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/f3d/407/1005-01" ] }, { "cite": "249 P.3d 1015", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2011, "pin_cites": [ { "page": "1022", "parenthetical": "en banc" } ], "opinion_index": 0 }, { "cite": "54 How. L.J. 693", "category": "journals:journal", "reporter": "How. 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"year": 1984, "pin_cites": [ { "parenthetical": "holding that because deported defendants' narcotics convictions might prevent their reentry into the country, the appeals were not moot" } ], "opinion_index": 0, "case_paths": [ "/f2d/747/0007-01" ] }, { "cite": "357 F.3d 156", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9056651 ], "year": 2004, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/f3d/357/0156-01" ] }, { "cite": "477 F.3d 439", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3779249 ], "year": 2007, "pin_cites": [ { "parenthetical": "recognizing that \"removal of an alien . . . does not moot a pending appeal\" (omission in original) (internal quotation marks and citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/f3d/477/0439-01" ] }, { "cite": "628 F.3d 813", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4076734 ], "year": 2011, "pin_cites": [ { "page": "822" } ], 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"opinion_index": 0, "case_paths": [ "/f3d/358/1251-01" ] }, { "cite": "130 S. Ct. 1103", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 6, "year": 2013, "pin_cites": [ { "page": "1481-82" }, { "page": "1482" }, { "page": "1486" }, { "page": "1486", "parenthetical": "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\"" } ], "opinion_index": 0 }, { "cite": "416 F.3d 952", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 8943785 ], "year": 2005, "pin_cites": [ { "page": "956-58" } ], "opinion_index": 0, "case_paths": [ "/f3d/416/0952-01" ] }, { "cite": "512 F.3d 69", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 4071747 ], "year": 2008, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/f3d/512/0069-01" ] }, { "cite": "490 U.S. 488", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 606062 ], "year": 1989, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/us/490/0488-01" ] }, { "cite": "2009-NMCA-010", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242025 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 16" }, { "page": "\u00b6 15" }, { "page": "\u00b6 17" }, { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0487-01" ] }, { "cite": "267 P.3d 815", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2011-NMCA-111", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4187110 ], "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0029-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "695-98" }, { "page": "696", "parenthetical": "stating that \"the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged\"" }, { "page": "688", "parenthetical": "recognizing that \"[Representation of a criminal defendant entails certain basic duties},]\" including the \"overarching duty to advocate the defendant's cause},] ... to consult with the defendant on important decisions},] and to keep the defendant informed\"" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "2004-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224634 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 19" }, { "page": "\u00b6 19" }, { "page": "\u00b6 18" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0533-01" ] } ], "analysis": { "cardinality": 1479, "char_count": 41353, "ocr_confidence": 0.774, "pagerank": { "raw": 1.338762246758941e-07, "percentile": 0.630700863254962 }, "sha256": "9e49e62e928f11c34d6c98c2f4d6d8bf7befad0324c8402a30b9f3406a2bf6bd", "simhash": "1:a3606702ae8b1797", "word_count": 6477 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JONATHAN B. SUTIN, Judge", "CYNTHIA A. FRY, Judge", "LINDA M. VANZI, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. CESAR FAVELA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\n{1} Defendant Cesar Favela appeals from the district court\u2019s 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, \u00b6 19, 136 N.M. 533, 101 P.3d 799. The facts ofthis case require this Court to determine whether the district court, in determining whether Defendant\u2019s 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\u2019s plea. We hold that judicial statements made during the plea colloquy about the immigration consequences of a plea do not cure counsel\u2019s 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.\nBACKGROUND\n{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 national and a United States permanent resident. At the plea and disposition hearing, the following exchange took place.\nJudge: Counsel, I just noticed the place of birth on this form. Is there an immigration consequence in this case?\nCounsel: 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.\nJudge: [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?\nDefendant: Yes, your Honor.\nJudge: Alright then, is it still your desire to enter your plea of guilty, sir?\nDefendant: Yes, your Honor.\nJudge: Alright, the court then approves that.\n{3} The district court accepted Defendant\u2019s 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).\n{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\u2019s motion. Defendant appeals.\nDISCUSSION\nI. Jurisdiction\n{5} We begin by determining whether Defendant\u2019s 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\u2019s 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\u2019s denial of a writ of habeas corpus). Defendant, instead, filed a direct appeal to this Court.\n{6} \u201cBecause [a djefendant cannot appeal the denial of a writ of habeas corpus to this Court,\u201d we must begin by determining whether this appeal is properly before us. State v. Barraza, 2011-NMCA-111, \u00b6 12, 267 P.3d 815. \u201cThe 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.\u201d Id. \u00b6 5. We review jurisdictional issues de novo. See id.\n{7} Rule 5-802(A) \u201cgoverns 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[.]\u201d \u201c[Wjhere 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.\u201d State v. Tran, 2009-NMCA-010, \u00b6 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 \u201cin custody\u201d at the time the petition or motion was filed. See Tran, 2009-NMCA-010, \u00b6 15. In this case, because the district court appears to have treated Defendant\u2019s petition as one for a writ of habeas corpus, we must determine whether, when Defendant was in the custody of ICE, he was \u201cin custody\u201d for purposes of habeas corpus. By this inquiry, we will determine whether we have jurisdiction to consider Defendant\u2019s appeal.\n{8} The question \u2014 what is the appropriate procedural mechanism for someone to use while in the custody of ICE in order to challenge his or her conviction \u2014 is an issue of first impression in New Mexico. 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 \u201conce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual \u2018in custody\u2019 for the purposes of a habeas attack upon it.\u201d Federal circuit courts have relied on Maleng in determining that \u201cone held in immigration detention is not \u2018in custody\u2019 for the purpose of challenging a state convictionf.]\u201d 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).\n{9} We note that the United States Supreme Court\u2019s more recent opinion in Padilla may call into question the characterization of deportation as a collateral consequence. In Padilla, the Supreme Court questioned the distinction between direct and collateral consequences in defining \u201cthe scope of constitutionally \u2018reasonable professional assistance.\u2019 \u2019\u2019 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 \u201cuniquely difficult\u201d to do so \u201cbecause of [deportation\u2019s] close connection to the criminal process[.]\u201d Id. at __, 130 S. Ct. at 1481-82. The Supreme Court concluded that \u201c[t]he collateral versus direct distinction [was] ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.\u201d Id. at __, 130 S. Ct. at 1482.\n{10} We note, however, that the definition of \u201ccollateral consequences\u201d 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 \u201cin custody\u201d 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 \u201cin custody\u201d 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 \u201cin custody\u201d after completing his sentence 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 \u201cthe collateral immigration consequences of a petitioner\u2019s conviction are not sufficient to satisfy the \u2018in custody\u2019 requirement of [habeas corpus], even when those consequences include detention by immigration authorities\u201d); 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 \u2018in custody\u2019 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).\n{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\u2019s appeal.\nII. Mootness\n{12} The State asserts that this Court should decline to hear Defendant\u2019s 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, \u00b6 10, 283 P.3d 853, to argue that Defendant\u2019s removal from the United States moots his appeal. See id. (stating the general rule that the appellate courts do not decide moot cases).\n{13} \u201cAn appeal is moot when there is no actual controversy and when no actual relief can be granted to the appellant.\u201d State v. Wilson, 2005-NMCA-130, \u00b6 14, 138 N.M. 551, 123 P.3d 784, aff'd, 2006-NMSC-037, 140 N.M. 218, 141 P.3d 1272. While \u201c[a] reviewing court generally does not decide academic or moot questions[,]\u201d Crutchfield v. New Mexico Dep\u2019t of Taxation & Revenue, 2005-NMCA-022, \u00b6 36, 137 N.M. 26, 106 P.3d 1273, \u201c[ajppellate courts review criminal convictions even after a defendant\u2019s 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.\u201d State v. Sergio B., 2002-NMCA-070, \u00b6 10, 132 N.M. 375, 48 P.3d 764.\n{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 trial. The Sixth Circuit Court of Appeals has held that the \u201ccontention that [a defendant\u2019s] conviction might affect the [attorney [g]eneral\u2019s 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.\u201d 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 \u201cremoval of an alien . . . does not moot a pending appeal\u201d (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.,26A 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\u2019 narcotics convictions might prevent their reentry into the country, the appeals were not moot).\n{15} Because withdrawal ofhis guiltyplea may have future consequences on Defendant\u2019s 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\u2019s appeal.\nIII. Ineffective Assistance of Counsel\n{16} Defendant contends that the district court erred in denying his motion to withdraw his guilty plea, based on his counsel\u2019s alleged failure to inform Defendant about the immigration consequences of entering his plea. \u201cA motion to withdraw a guilty plea is addressed to the sound discretion of the trial court, and we review the trial court\u2019s denial of such a motion only for abuse of discretion.\u201d State v. Carlos, 2006-NMCA-141, \u00b6 9, 140 N.M. 688, 147 P.3d 897. \u201cAn abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case.\u201d State v. Rojo, 1999-NMSC-001, \u00b6 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 \u201cexercises its discretion based on a misunderstanding of the law.\u201d State v. Sotelo, 2013-NMCA-028, \u00b6 37, 296 P.3d 1232, cert. denied, 2013-NMCERT-001, 299 P.3d 863. In the context of a guilty plea,\na 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\u2019s plea generally depends on whether the attorney rendered ineffective assistance in counseling the plea.\nState v. Barnett, 1998-NMCA-105, \u00b6 12, 125 N.M. 739, 965 P.2d 323 (citation omitted). To prove ineffective assistance of counsel, Defendant must show (1) that counsel\u2019s performance fell below that of a reasonably competent attorney, and (2) that the defendant was prejudiced by the deficient performance. State v. Hester, 1999-NMSC-020, \u00b6 9, 127 N.M. 218, 979 P.2d 729. \u201cWe afford de novo review of mixed questions of law and fact concerning the ineffective assistance of counsel.\u201d Barnett, 1998-NMCA-105, \u00b6 13.\nA. Deficient Representation\n{17} OurNewMexico 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 \u201ccriminal 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.\u201d 2004-NMSC-036, \u00b6 19. In so holding, our Supreme Court agreed \u201cwith those jurisdictions that have held that an affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is . . . objectively unreasonable\u201d and went \u201cone step further\u201d in concluding that \u201can attorney\u2019s non-advice to an alien defendant on the immigration consequences of a guilty plea would also be deficient performance.\u201d Id. \u00b6\u00b6 15-16 (internal quotation marks and citation omitted). According to our Supreme Court, advice that a defendant \u201ccould\u201d or \u201cmight\u201d be deported is also inadequate, as such advice is \u201cincomplete and therefore inaccurate\u201d because \u201c \u2018[s]tating that a person \u2018may\u2019 be subject to deportation implies there is some chance, potentially a good chance, that the person will not be deported.\u2019 \u201d Id. \u00b6 15 (quoting Gonzalez v. State, 83 P.3d 921, 925 (Or. Ct. App. 2004)). This Court has since interpreted Paredez as requiring \u201ca 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.\u201d Carlos, 2006-NMCA-141, \u00b6 14.\n{18} Six years after our Supreme Court\u2019s holding in Paredez, the United States Supreme Court in Padilla \u201csimilarly held that \u2018counsel must inform her client whether his plea carries a risk of deportation.\u2019 \u201d State v. Ramirez, 2012-NMCA-057, \u00b6 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\u2019s 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 \u201cwhen the deportation consequence is truly clear, ... the duty to give correct advice is equally clear\u201d; however, \u201c[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.\u201d Padilla, 559 U.S. at ___, 130 S. Ct. at 1483 (emphasis added). We note that our Supreme Court\u2019s 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 Supreme Court in Paredez and the rights articulated by the United States Supreme Court in Padilla, this Court is bound by the \u201capplicable precedents of [the New Mexico] Supreme Court.\u201d Carlos, 2006-NMCA-141, \u00b6 17 (internal quotation marks and citation omitted).\nB. Prejudice\n1. Demonstrating Prejudice in Cases Involving Immigration Issues\n{19} This Court has previously recognized that \u201c[t]here are no mechanical rules for determining prejudice.\u201d Id. \u00b6 20 (internal quotation marks and' citation omitted); see also Strickland, 466 U.S. at 696 (stating that \u201cthe ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged\u201d). Instead, \u201cthe question whether a given defendant has made the requisite [prejudice] showing will turn on the facts of a particular case.\u201d Roe v. Flores-Ortega, 528 U.S. 470, 485 (2000). This Court has previously considered such factors as \u201cpre-conviction statements or actions indicating the defendant\u2019s preference to plead or to go to trial\u201d and \u201cthe strength of the evidence against the defendant}.]\u201d State v. Edwards, 2007-NMCA-043, \u00b6 35, 141 N.M. 491, 157 P.3d 56. We have also considered a defendant\u2019s testimony about his connection to the United States. See Carlos, 2006-NMCA-141, \u00b6 21 (\u201c[The defendant\u2019s testimony that he has lived in the United States virtually his whole life, having been brought to [t]his country right after he was born, may have been an important factor in his decision whether to 'enter a plea.\u201d). We are not limited, however, to these considerations in assessing prejudice. See Edwards, 2007-NMCA-043, \u00b6 36 (noting that our Supreme Court \u201cdid 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\u201d).\n{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 \u201cto 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.\u201d Padilla, 559 U.S. at___, 130 S. Ct. at 1485. This \u201crational under the circumstances\u201d standard has been heralded as being \u201cmuch broader and allowing] for consideration of a different type of risk analysis by a defendant\u201d 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).\n{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 (\u201cIt is critical to integrate 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\u2019s decision-making process.\u201d). Such an approach acknowledges that\n[i]f full information about required matters \u2014 which now includes automatic deportation . . . \u2014 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.\nRoberts, supra, at 722-23. Owing to the impact that accurate immigration advice may have on a defendant\u2019s 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 \u201c[i]n failure-to-warn cases, [the strength of the evidence] should not weigh as heavilyf,] . . . 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\u201d); 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 \u201crational\u201d for a defendant to \u201ctake his chances at trial\u201d even though he \u201cwould have risked a longer prison term by going to trial\u201d); 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\u2019s 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 \u201cnon-citizen defendants may be interested in serving longer sentences in order to avoid adverse immigration consequences\u201d).\n{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 \u201c[d]eportation can often be the harshest consequence of a non-citizen criminal defendant\u2019s 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.\u201d Paredez, 2004-NMSC-036, \u00b6 18 (omission and 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 \u201che 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.\u201d Id. \u00b6 20 (internal quotation marks and citation omitted); see Edwards, 2007-NMCA-043, \u00b6 34 (noting that \u201ca defendant who was convicted on a plea is not required to prove that a trial would have resulted in acquittal\u201d (alteration, internal quotation marks, and citation omitted)). Thus, similar to the United States Supreme Court\u2019s approach in Padilla, New Mexico courts appear to approve implementing a broad approach to assessing prejudice in the context of immigration.\n2. A Trial Court\u2019s Warnings Regarding Immigration Consequences During the Plea Colloquy\n{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\u2019s allegations that his counsel had failed to inform him of the immigration consequences of his plea, but concluding that because the trial court \u201citself admonished . . . [Defendant that his plea and conviction in this case would surely result in his being deported},]\u201d and Defendant \u201cpersonally told the [trial c]ourt that he understood that he would be deported},]\u201d Defendant\u2019s plea was \u201cknowing, intelligent},] and voluntary.\u201d Thus, the district court appears to have accepted Defendant\u2019s 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\u2019s reliance on the trial court\u2019s advice to Defendant in deciding that Defendant had not demonstrated prejudice. Because our appellate courts have not previously addressed this issue, we turn to authority from other jurisdictions to guide our decision.\n{24} We note that some courts have viewed a district court\u2019s advice to counsel during a plea colloquy as \u201ccuring\u201d counsel\u2019s deficient representation and precluding a showing of prejudice even where the court\u2019s warnings were equivocal. See, e.g., State v. Martinez, 729 S.E.2d 390, 392 (Ga. 2012) (\u201cA trial court\u2019s plea colloquy warnings of adverse immigration consequences, especially where the defendant affirmatively acknowledgefd] 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.\u201d); Mendoza v. United States, 774 F. Supp. 2d 791, 799 (E.D. Va. 2011) (stating, in dicta, that \u201c[the] petitioner\u2019s ineffective assistance of counsel claim flatly fails on the prejudice prong\u201d because \u201c[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\u201d); see also De La Rosa v. United States, Nos. 09-Cv-22646-COHN, 08-Cr-20685-COHN, 2012 WL4466533, 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, \u201cthe [c]ourt cured any error due to counsel\u2019s alleged misadvice and [the] movant\u2019s plea was voluntarily entered with full knowledge of its possible deportation consequences\u201d); 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 \u201cthe record conclusively demonstrates a lack of prejudice\u201d where the court had \u201cspecifically advised [the] movant that an adjudication of guilt could result in deportation\u201d (emphasis added) (alteration, internal quotation marks, and citation omitted)). Generally, courts that view the district court\u2019s colloquy as \u201ccuring\u201d counsel\u2019s 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 (\u201c[A] defendant\u2019s sworn answers during a plea colloquy must mean something\u201d and they \u201cconstitute a formidable barrier in any subsequent collateral proceedings.\u201d (internal quotation marks and citation omitted)); see also Danielle M. Lang, Note, Padilla v. Kentuc/cy: The Effect of Plea Colloquy Warnings on Defendants\u2019 Ability to Bring Successful Padilla Claims, 121 YaleL.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 \u201cbolstered their no-prejudice holdings with language emphasizing the importance of sworn statements in open court\u201d).\n{25} To the contrary, some courts have held that a trial court\u2019s advice during the plea colloquy, while relevant, cannot \u201ccure\u201d a counsel\u2019s inadequate representation. See Hernandez v. State, __So. 3d __, 2012 WL 5869660, at *4 (Fla. Nov. 21, 2012) (stating that \u201ca colloquy containing an equivocal warning from the trial court and an acknowledgment from the defendant contributes to the totality ofthe circumstances by providing evidence that the defendant is aware ofthe possibility that a plea could affect his immigration status\u201d but it \u201ccannot, by itself, remove prejudice resulting from counsel\u2019s deficiency\u201d); Commonwealth v. Clarke, 949 N.E.2d 892, 907 n.20 (2011) (stating that, while a deportation warning was given to the defendant, \u201cthe receipt of such warnings is not an adequate substitute for defense counsel\u2019s professional obligation to advise her client of the likelihood of specific and dire immigration consequences that might arise from such a plea,\u201d but \u201cit may be relevant to the prejudice prong\u201d), 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) (\u201c[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\u2019s general [deportation] warning[s] will not automatically cure counsel\u2019s failure nor erase the consequent prejudice.\u201d); see also Lang, supra, at 978-79 (noting that courts that did not allow plea colloquy warnings to bar a finding of prejudice \u201cfocused 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\u201d).\n{26} Given that our Supreme Court\u2019s holding in Paredez requires \u201ca definite prediction as to the likelihood of deportation},]\u201d Carlos, 2006-NMCA-141, \u00b6 14, we agree with those courts that have held an equivocal warning by the trial court to be insufficient to cure counsel\u2019s deficient representation. However, even where the trial court\u2019s warning is unequivocal, as it was here, we do not rely on those cases that hold that a trial court\u2019s warning can cure counsel\u2019s deficient representation. As our Supreme Court noted in Paredez, \u201ca sufficient advisement from the trial court regarding the immigration consequences of a defendant\u2019s plea does not entail that the defendant has received effective assistance of coimsel in evaluating or responding to such advisements.\u201d 2004-NMSC-036, \u00b6 12 (emphasis added) (alteration, internal quotation marks, and citation omitted). Thus, we hold that a court\u2019s 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.\n{27} \u201cEffective 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.\u201d Patterson v. LeMaster, 2001-NMSC-013, \u00b6 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 \u201ca critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel\u201d). The right to effective assistance of counsel amounts to more than simply relaying information. See Strickland, 466 U.S. at 688 (recognizing that \u201c[Representation of a criminal defendant entails certain basic duties},]\u201d including the \u201coverarching duty to advocate the defendant\u2019s cause},] ... to consult with the defendant on important decisions},] and to keep the defendant informed\u201d). \u201cThe 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.\u201d Lang, supra, at 996. \u201cEven where warnings are more specific, judges, given their position, cannot gauge defendants\u2019 priorities, counsel defendants on how to proceed, or use the information strategically in negotiating pleas.\u201d Id. at 988. A defendant who has been \u201cadvised\u201d 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,\ninformed 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.\n559 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\u2019s advice to a defendant that he may or will be deported cannot cure counsel\u2019s deficient representation.\n{28} Moreover, we note concerns with the efficacy of immigration warnings given by a trial court. \u201c[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.\u201d 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 \u201cthat 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\u201d). 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 given the opportunity to speak with counsel between receiving the warnings and entering his plea.\n{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\u2019s 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.\n{30} In the present case, the district court appears to have placed significant weight on the trial court\u2019s immigration warnings to Defendant. For the reasons articulated earlier, we conclude that placing significant weight on the trial court\u2019s warnings was improper where D efendant 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. On remand, the district court may hear evidence and reconsider both prongs of Defendant\u2019s ineffective assistance of counsel claim. Given that objective evidence may be sparse in this type of case, see Carlos, 2006-NMCA-141, \u00b6 21, by this Court\u2019s broadening of the approach in analyzing prejudice, the district court will have more to draw from than Defendant\u2019s self-serving statements in determining whether he was prejudiced by counsel\u2019s failure to warn regarding the immigration consequences ofhis plea. See Patterson, 2001-NMSC-013, \u00b6 29 (\u201cBecause 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.\u201d). On remand, the district court should consider the various considerations discussed herein, in light of the harsh and drastic consequences that deportation poses.\nCONCLUSION\n{31} The district court\u2019s order denying Defendant\u2019s motion for reconsideration is reversed. This matter is remanded to the district court for further proceedings consistent with this Opinion.\n{32} IT IS SO ORDERED.\nJONATHAN B. SUTIN, Judge\nWE CONCUR:\nCYNTHIA A. FRY, Judge\nLINDA M. VANZI, Judge\nWe note that in Tran, 2009-NMCA-010, \u00b6 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\u2019s custodial status appears not to have been in dispute; as such, the custodial-status issue was not discussed or considered by this Court.\nWhile 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, \u00b6 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\u2019s motion for reconsideration based on the reasons set forth in the original order denying Defendant\u2019s request for relief.\nTo the extent the State argues that the plea and disposition agreement signed by Defendant stated that it \u201cmay have an effect upon [his] immigration or naturalization status,\u201d 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.\nWhile the State advocates for this Court to conclude that Defendant did not establish prejudice because he \u201cmade no showing that the charges to which he pleaded guilty were not based on strong evidence],]\u201d the strength of the evidence is but one factor to be considered in determining prejudice. Although our courts have recognized \u201ca direct relationship between the strength of the case against a defendant and the likelihood that he or she will plead guilty or no contest[,]\u201d Edwards, 2007-NMCA-043, \u00b6 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 \u201c[i]n failure-to-wam 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\u201d); id. at719 (noting that it may be \u201crational\u201d for a defendant \u201cto take his chances at trial, however slim the likelihood of acquittal, . . . because it was the only route to avoiding deportation\u201d).", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Pranava Upadrashta, Assistant Attorney General Santa Fe, NM for Appellee", "Bennett J. Baur, Acting ChiefPublic Defender Carlos Ruiz de la Torre, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Granted, October 18, 2013,\nNo. 34,311\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-102\nFiling Date: August 8, 2013\nDocket No. 32,044\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. CESAR FAVELA, Defendant-Appellant.\nGary K. King, Attorney General Pranava Upadrashta, Assistant Attorney General Santa Fe, NM for Appellee\nBennett J. Baur, Acting ChiefPublic Defender Carlos Ruiz de la Torre, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0084-01", "first_page_order": 100, "last_page_order": 113 }