Cossio v. United States, 2:11-cv-00471

Petitioner Francisco Cossio filed a 28 U.S.C. § 2255 motion challenging his drug-quiet plea and sentence.
Hearing held Aug. 9, 2012; Petitioner testified, Government presented Atty. Alan Kaufman testimony and exhibits (Plea Agreement, waiver, cheat sheet).
MagistrateJudge recommended denial of the § 2255 petition after credibility analysis favoring Kaufman’s testimony.
Petitioner claimed Padilla v. Kentucky immigration consequences were not discussed and requested an appeal; defense counsel allegedly failed to file an appeal.
Plea occurred Feb. 8, 2010; sentence with a safety valve reduction followed; Petitioner signed a waiver of appeal after sentencing.
Court examines Padilla retroactivity and effectiveness of counsel under Strickland; credibility weighed between Petitioner and counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Padilla retroactivity on pre-plea conduct	Cossio argues Padilla should apply to deportation risk.	Kaufman argues Padilla not retroactive to pre-Padilla plea.	Padilla not retroactive; no ineffective assistance.
Whether Kaufman adequately discussed the Plea Agreement	Cossio claims insufficient discussion of plea terms and immigration consequences.	Kaufman asserts detailed review; Petitioner reviewed and signed.	Court credits Kaufman; Plea discussed and understood.
Whether Kaufman failed to file an appeal despite requests	Cossio wanted an appeal; not informed of status.	Kaufman explained waiver of appeal; Petitioner signed ‘no appeal’ form.	No appeal filed; no ineffective assistance.
Standard for evaluating ineffective assistance in this context	Padilla requires counsel to warn about deportation risk; failure = ineffective.	Padilla not applicable; pre-Padilla plea; Strickland standard governs; no prejudice shown.	Under Strickland, no ineffective assistance; Padilla not controlling here.

Padilla v. Kentucky, 130 S. Ct. 1473 (U.S. 2010) (holding that counsel must inform noncitizen clients of deportation risk; not retroactive here)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-pronged test for ineffective assistance of counsel)
Gomez-Diaz v. U.S., 433 F.3d 788 (11th Cir. 2005) (per se deficient performance when counsel fails to file an appeal upon request)
Ramirez-Chilel v. United States, 289 F.3d 744 (11th Cir. 2002) (credibility standard for weighing witness testimony)
U.S. v. Walker, 198 F.3d 811 (11th Cir. 1999) (cites collateral attack standards for § 2255)
United States v. Campbell, 778 F.2d 764 (11th Cir. 1985) (requirement to assess whether counsel consulted about appeal rights)
Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011) (Padilla retroactivity discussion in some circuits)