Ernesto Reyes-Alcazar, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0531

Ernesto Reyes-Alcazar, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 8, 2019
Affirmed
Cleary, Chief Judge

Hennepin County District Court
File No. 27-CR-15-11414

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin Coun ty Attorney, Linda K. Jenny, A ssistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Cleary, Chi ef Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant Ernesto Reyes-Alcazar pleaded guilty to first-degree arson in violation of
Minn. Stat. § 609.561, subd. 2(b ) (2014). In postconviction pr oceedings, he moved to

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withdraw his plea, claiming ineffective assistance of counsel. The postconviction court
denied the motion. Now on the first review of his conviction, Reyes-Alcazar argues that
the postconviction court erred in finding that counsel adequate ly informed him of the
immigration consequences of his plea and in failing to order an evidentiary hearing on his
other claims of ineffective assistance of counsel. He also argues for the first time that his
plea was not accurate. We affirm.
FACTS
In 2014, emergency personnel responded to a fire at M.R.’s hou se. The fire marshal
determined that two fires had been intentionally set in-between the screen and storm doors
at the front and back of the house. M.R. told police that she had received a text message
from Reyes-Alcazar, her ex-partner, on the night of the fire. Reyes-Alcazar threatened to
burn down M.R.’s house if she refused to let him into her house or go to his house. When
the officers asked if M.R. still had the messages, she stated t hat she had deleted them.
Police arrested Reyes-Alcazar and questioned him at the police station. After the officers
read Reyes-Alcazar a Miranda warning, he invoked his right to counsel, but while walking
back to his cell, he changed his mind and stated that he wanted to speak with the officers.
After a few questions, officers asked Reyes-Alcazar where he st arted the fires. He
responded:
I don’t know. I already discussed the one when I had a lawyer
present that way I’m not going to incriminate myself worse
than I already am. But, like I said, it was just a mistake and I
don’t hold nothing against him, hurt no one. I’m a young man,
I know what’s wrong and right — the difference between right
and wrong. So, it was just a mistake. Hopefully I can do
something and fix my life. It was just a bad experience.

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The officers continued to ask him what he meant by “mistake,” a nd eventually, Reyes-
Alcazar confessed to starting the fires.
Reyes-Alcazar was charged with first-degree arson under Minn. S tat. § 609.561,
subd. 2(b) and through, counsel negotiated a plea deal. At the plea hearing, Reyes-Alcazar
agreed that counsel had explained that a conviction would impact his immigration case and
“it’s very likely that that’s going to be the case.” Additionally, the district court cautioned
Reyes-Alcazar that he should be advised on the immigration consequences of his plea and
offered to give him more time to discuss the consequences with an attorney. Reyes-Alcazar
responded that he wanted to move forward with the plea.
The state then established the factual basis. Reyes-Alcazar admitted that he went to
M.R.’s house, demanded to come in, and threatened to start a fi re. He also admitted that
he reasonably anticipated that people were inside the home; that he started a fire; and that
the fire damaged part of the house. Reyes-Alcazar signed a ple a petition which included
an explanation that he is not a United States citizen and that a guilty plea could result in
deportation. This line was circled and “Padilla v. Kentucky” w as written next to it. The
district court accepted Reyes-Alcazar’s guilty plea and sentenced him pursuant to the plea
agreement.
While serving his sentence, Reyes-Alcazar learned that his Defe rred Action for
Childhood Arrivals (DACA) 1 status had been revoked. Immigration and Customs

1 DACA is “a program under which noncitizens who come to the United States as children
can receive a limited deferral from removal proceedings.” Sanchez v. State, 890 N.W.2d
716, 718 (Minn. 2017).

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Enforcement had previously initiated removal proceedings against Reyes-Alcazar, but the
proceedings were administratively closed when Reyes-Alcazar qualified for DACA. After
his felony-arson conviction, Reyes-Alcazar no longer qualified for DACA, and the removal
proceedings against him were reopened.
In 2017 and through new counsel, Reyes-Alcazar filed a petition for postconviction
relief, requesting that the court allow him to withdraw his ple a. He argued that counsel
was ineffective for failing (1) to advise him of the immigration consequences of his guilty
plea, and (2) to challenge the a dmissibility of his confession. The postconviction court
granted the request for an evidentiary hearing solely as to the claim that he was not fully
informed of the immigration consequences of his plea.
At the evidentiary hearing, Reyes-Alcazar and the attorney who represented him
during the plea process testified. The postconviction court denied Reyes-Alcazar’s motion
to withdraw, finding that trial counsel credibly testified that he had multiple conversations
with Reyes-Alcazar and advised him that pleading guilty to felo ny arson would result in
deportation. The postconviction court concluded that counsel’s performance was
reasonable and accordingly, Reyes-Alcazar’s claim failed. In a separate order and without
an evidentiary hearing, the postconviction court rejected Reyes -Alcazar’s claim that
counsel was ineffective for fail ing to challenge Reyes-Alcazar’ s confession and the text
messages sent by Reyes-Alcazar. The postconviction court found that any decision to
pursue plea bargaining, rather than seek an evidentiary hearing on the admissibility of the
evidence, was trial strategy. Because the claim was related to trial strategy, the
postconviction court deferred to counsel’s decision. On appeal, Reyes-Alcazar now argues

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that the postconviction court e rred in denying his motion to wi thdraw his plea and in
declining to order an evidentiary hearing on his other claims.
D E C I S I O N
Appellate courts review the denial of a petition for postconviction relief for an abuse
of discretion. Henderson v. State, 906 N.W.2d 501, 505 (Minn. 2018). A postconviction
court abuses its discretion if it “exercised its discretion in an arbitrary or capricious manner,
based its ruling on an erroneous view of the law, or made clear ly erroneous factual
findings.” Id. (quotation omitted). We review t he postconviction court’s fac tual
determinations for clear error and its legal determinations de novo. Gulbertson v. State,
843 N.W.2d 240, 244 (Minn. 2014).
A defendant does not have an absolute right to withdraw a guilt y plea. State v.
Raleigh, 778 N.W.2d 90, 93 (Minn. 2010). But upon a timely motion, a court must allow
a defendant to withdraw his guilty plea if withdrawal is necess ary to correct a manifest
injustice. Minn. R. Crim. P. 15.05, subd. 1. “A manifest injustice exists if a guilty plea is
not valid.” Raleigh, 778 N.W.2d at 94. “To be constitutionally valid, a guilty pl ea must
be accurate, voluntary, and intelligent.” Id. “A defendant bears the burden of showing his
plea was invalid.” Id. The validity of a guilty plea is a legal question that we revie w de
novo. Id.
Reyes-Alcazar argues that trial counsel did not adequately adv ise him of the
immigration consequences of a guilty plea. He asserts that this was ineffective assistance
of counsel, rendering his guilty plea involuntary and unintelli gent. See Sanchez v. State ,
868 N.W.2d 282, 286 (Minn. App. 2015) (“Ineffective assistance of counsel renders a

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guilty plea involuntary and unintelligent.”), aff’d, 890 N.W.2d 716 (Minn. 2017). In order
to succeed on an ineffective-assi stance-of-counsel claim, Reyes -Alcazar must satisfy a
two-prong test. First, he must show that counsel’s representation fell below an objective
standard of reasonableness. Id. at 287. Next, he must prove that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. Id. When reviewing “a postconvic tion court’s denial of relief on a
claim of ineffective assistance of counsel, we will consider the court’s factual findings that
are supported in the record, [and] conduct a de novo review of the legal implication of
those facts on the ineffective assistance claim.” State v. Nicks, 831 N.W.2d 493, 503-04
(Minn. 2013).
We conclude that the postconvi ction court did not err in findi ng that counsel’s
performance did not fall outside an objective standard of reasonableness. Under Padilla v.
Kentucky, counsel has a duty to advise a noncitizen client regarding the risk of deportation.
559 U.S. 356, 367-69, 130 S. Ct. 1473, 1482-83 (2010). When th e deportation
consequences are unclear, couns el need only advise the client t hat a criminal conviction
may result in adverse immigration consequences. Id. at 369, 130 S. Ct. at 1483. But if the
deportation consequence is clear, counsel must accurately advis e the client of that
consequence. Id.
The postconviction court found that counsel advised Reyes-Alca zar that a
conviction would subject him to deportation. This finding is s upported by the record.
Although the plea petition states that the guilty plea “may res ult in deportation,” counsel
testified at the evidentiary hear ing that he told Reyes-Alcazar multiple times that, if

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convicted, he would be deported. The postconviction court foun d counsel’s testimony to
be credible despite Reyes-Alcazar’s testimony that he was not a dvised of the deportation
consequences. This court defers to credibility determinations made by the postconviction
court. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992). Because counsel adequately
advised Reyes-Alcazar that if convicted then he would be deported, counsel’s performance
did not fall below an objective standard of reasonableness.
Reyes-Alcazar argues that under Padilla, he is entitled to more specific advice on
the immigration consequences, su ch as that he would no longer q ualify for DACA. But
the Court in Padilla focused on the ultimate deportation consequences of criminal charges
and recognized that a noncitizen client may prioritize remaining in the country rather than
a shorter jail sentence. Padilla, 559 U.S. at 368, 130 S. Ct. at 1483 (“[P]reserving the
client’s right to remain in the United States may be more impor tant to the client than any
potential jail sentence.” (quota tion omitted)). In other words , a defendant should be
advised on whether he will be allo wed to remain in the country if he is convicted of the
crime charged so he may make an informed decision about whether he would accept a plea
deal and be deported, or go to trial and risk a longer sentence in hopes that a not-guilty
verdict will allow him to remain. Here, Reyes-Alcazar was told that he would be deported,
and so he had the information he needed to make an informed dec ision. That is all that is
required of counsel. Reyes-Alca zar does not cite any authority that would support his
expansive reading of Padilla to require that counsel specifically advise a defendant that his
DACA status would be rescinded.

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Reyes-Alcazar also argues that the postconviction court abused its discretion when
it declined to order an evidentiary hearing on his claim that c ounsel was ineffective for
failing to file a motion to suppress any evidence of the text messages he sent to M.R. and
the statement he gave to law enforcement. A petitioner is entitled to an evidentiary hearing
“[u]nless the petition and the f iles and records of the proceed ing conclusively show that
the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2018). We review the
denial of a request for an evidentiary hearing for an abuse of discretion. Henderson, 906
N.W.2d at 505. When deciding whether to grant an evidentiary h earing, a postconviction
court must take the facts alleged in the petition as true and construe them in the light most
favorable to the petitioner. Andersen v. State, 913 N.W.2d 417, 422-23 (Minn. 2018). If
the petitioner’s alleged facts, taken as true, are legally insu fficient to grant relief, then an
evidentiary hearing is not required. Henderson, 906 N.W.2d at 505. Accordingly, in order
to obtain an evidentiary hearing on a claim of ineffective assi stance of counsel, Reyes-
Alcazar must allege facts that, if taken as true, would establish that counsel’s performance
fell below an objective standard of reasonableness, and that a reasonable probability exists
that the outcome would have been different but for counsel’s errors. Nicks, 831 N.W.2d at
504.
The postconviction court did not err in declining to order an evidentiary hearing on
Reyes-Alcazar’s claim. The postconviction court found that Reyes-Alcazar failed to allege
facts that, if true, would show that counsel’s performance fell below an objective standard
of reasonableness because Reyes-A lcazar’s claim was based on co unsel’s strategic
decisions. A decision not to file a motion to suppress evidence is related to trial strategy.

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See Carridine v. State, 867 N.W.2d 488, 494 (Minn. 2015) (declining to consider counsel’s
alleged failure to file a motion to suppress evidence and concl uding the postconviction
court did not abuse its discreti on in denying the claim without an evidentiary hearing).
There is a strong presumption that counsel’s performance was re asonable, and particular
deference is given to trial strategy. Carney v. State, 692 N.W.2d 888, 892 (Minn. 2005).
Appellate courts will generally decline to review ineffective-a ssistance-of-counsel claims
based on trial strategy. Sanchez-Diaz v. State, 758 N.W.2d 843, 848 (Minn. 2008). We
are convinced that, in this cas e, counsel’s decision to pursue plea negotiations instead of
an evidentiary hearing was strategic and we defer to counsel’s strategy decisions.
Even if the postconviction court would have granted an evidentiary hearing, success
on that claim was not certain. Reyes-Alcazar argues that his s tatement — “I already
discussed the one when I had a lawyer present that way I’m not going to incriminate myself
worse than I already am” — was, at the very least, an ambiguous request for counsel. He
argues that, because the officers did not stop and clarify the statement, his confession was
obtained in violation of Miranda. It appears that while a motion to suppress would not be
frivolous, success was not certain. See State v. Risk, 598 N.W.2d 642, 649 (Minn. 1999)
(“[N]ot every mention of the word ‘lawyer’ or ‘counsel’ or ‘att orney’ by a suspect
‘arguably’ suggests that the sus p e c t w a n t s a l a w y e r b e f o r e s u b mitting to further
questioning.” (quotation omitted)); State v. Hale , 453 N.W.2d 704, 708 (Minn. 1990)
(concluding that a defendant’s “ fleeting, off-hand comment in m id-sentence about his
future need for a good attorney in defending himself” was not a rguably an invocation of
his Miranda right to counsel). Under these circumstances, a reasonable at torney could

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determine that it would be more advantageous to use the possibi lity of suppression as
leverage in plea negotiations rather than risk losing the suppression motion.
Reyes-Alcazar argues that an evid entiary hearing should be held to determine
whether counsel made a strategic decision and whether the strat egy was reasonable. But
the supreme court has previously held that a postconviction cou rt did not abuse its
discretion when it declined to hold an evidentiary hearing on counsel’s strategy. Opsahl v.
State, 677 N.W.2d 414, 421 (Minn. 20 04) (concluding that appellant c hallenged his
counsel’s strategy and the postconviction court did not abuse its discretion in declining to
hold an evidentiary hearing).
Finally, Reyes-Alcazar argues that he must be allowed to withdr aw his plea under
the manifest-injustice standard because his plea is not accurat e. Reyes-Alcazar did not
raise this issue in his postconviction petition. “It is well settled that a party may not raise
issues for the first time on appeal from denial of postconviction relief.” Azure v. State, 700
N.W.2d 443, 447 (Minn. 2005) (qu otation omitted). Reyes-Alcaza r does not frame his
accuracy argument as an ineffec tive-assistance-of-postconviction-counsel claim. See
Schleicher v. State , 718 N.W.2d 440, 445 (Minn. 2006) (concluding petitioner’s
ineffective-assistance-of-postconviction-counsel claim was properly raised on appeal from
denial of first petition for postconviction relief); see also Zornes v. State, 880 N.W.2d 363,
369 (Minn. 2016) (holding that ineffective-assistance-of-trial-counsel claim must be raised
on direct appeal if further development of the record is not required to consider the claim).
Although in his reply brief, Reyes-Alcazar mentions ineffective assistance of counsel, new
issues may not be raised in a reply brief. Minn. R. Civ. App. P. 128.02, subd. 3. Reyes-

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Alcazar’s claim regarding the accuracy of his plea is, therefor e, forfeited for purposes of
this appeal.
Because this is Reyes-Alcazar’s first review of his conviction by postconviction,
Reyes-Alcazar is not precluded from pursuing a claim of ineffective assistance of appellate
counsel for failing to raise a claim that postconviction counse l was ineffective for failing
to challenge the accuracy of appellant’s guilty plea. See Schneider v. State , 725 N.W.2d
516, 521 (Minn. 2007) (concluding ineffective-assistance-of-app ellate-counsel claim was
not barred by Knaffla because appellant could not have known of appellate counsel’s
ineffective assistance at the time of direct appeal). We offer no opinion, however, as to the
likelihood of success in pursuing such relief, other than to observe that Reyes-Alcazar did
not have a direct appeal and was, therefore, entitled to the effective assistance of appellate
counsel in the first review of his conviction by postconviction under the state constitution.
Compare Deegan v. State , 711 N.W.2d 89, 98 (Minn. 2006) (holding that a defendant’s
right to the assistance of counsel under the Minnesota Constitu tion extends to one review
of a criminal conviction, whether by direct appeal or a first r eview by postconviction
proceeding), with Ferguson v. State, 826 N.W.2d 808, 816 (Minn. 2013) (stating defendant
who was represented by counsel on direct appeal has no state co nstitutional right to
counsel—“effective or otherwise”—in subsequent postconviction proceedings).
Affirmed.