N.M. Court Tosses Old Pot Conviction Due To Ineffective Assistance of Counsel

"The order was short, but for Martin Ramirez, very sweet.  After years of litigation that took his case to the New Mexico Supreme Court, the misdemeanor convictions he acquired over a decade ago – and which made his efforts to become a legal resident virtually impossible – were set aside.  Second District Judge Alan Malott signed an order Tuesday vacating Ramirez’s 1997 convictions for possession of less than an ounce of marijuana, possession of drug paraphernalia and concealing identity.  The basis for the order was a finding that he had ineffective assistance of counsel, based on the state Supreme Court’s June 2014 opinion.  Malott earlier had said he found it distasteful but necessary under the law as it then stood to reject Ramirez’s request, meaning Ramirez also was a potential candidate for deportation.  Now 51, Ramirez had come north from his native Sinaloa, Mexico, after his mother died when he was 17 years old.  He married a U.S. citizen, helped to raise her children as his own, and began applying for residency.  But when she died in 2001, it was all still in limbo.  The Department of Homeland Security then denied Ramirez’s request for a waiver, even though he had what the agency calls “a qualifying relationship” with a child who is a citizen.  One of the children he considers his own, Anita Quezada, accompanied him to court Tuesday, along her son, 5-month-old Tommy.  In a letter from the department, Ramirez was told that while the separation and disruption might be “challenging,” they weren’t really so uncommon.  In a 2012 interview, Ramirez said he had no interest in returning to Mexico, loved the United States, his grandchildren and his job at an auto shop in Albuquerque.  “If something happens,” he said at the time, “I’m a dead man. … For me, ‘God Bless America.’ ”  Through his attorneys Eric Hannum and Scott Davidson, Ramirez appealed Malott’s order and won at the New Mexico Court of Appeals.  The state asked for and got the Supreme Court to review the Court of Appeals ruling, predicting mayhem if defendants could retroactively claim ineffective assistance by their lawyers when they pleaded guilty.  Lawyers for the state said retroactivity could fuel a surge in requests to set aside long-ago convictions.  The Supreme Court took up the issue.  Its June opinion said it had ordered lower courts in 1990 to refuse guilty pleas without an affidavit showing that the defendant actually had been told of immigration consequences, and that without having been given such advice, a defendant could claim ineffective assistance of counsel.  Ramirez’s plea in 1997 came following an arrest in a Barelas park, an overnight in jail and five-minute meeting with his public defender the next day.  The lawyer advised him to take the state’s plea in Metropolitan Court and get out of jail.  Ramirez did. No records exist in Ramirez’s case from the Metro Court during that time period.  It’s not all over yet – Ramirez has a hearing in a few weeks before an immigration judge.  But when Ramirez left the courthouse with his daughter, grandson, lawyer Hannum and court order setting aside the old convictions, he seemed grateful to everyone.  “Thank you,” he said in Spanish. “Thank you.” " - Albuquerque Journal, Oct. 8, 2014.