United States v. Orocio
2011 U.S. App. LEXIS 13214
3rd Cir.2011Background
- Orocio pled guilty in 2004 to simple possession of methamphetamine under 21 U.S.C. § 844(a) following a plea agreement; removal proceedings later ensued.
- He was born in the Philippines, became a lawful permanent resident in 1997, and was questioned about immigration status during arrest.
- Orocio claimed plea counsel Portelli failed to inform him of immigration consequences of the plea; he accepted a plea to possession instead of trafficking.
- Sentence imposed in 2005 was time served with two years of supervised release; he completed incarceration and supervision by 2007.
- Removal proceedings began years after sentencing; Orocio petitioned for writ of error coram nobis in 2009; the district court denied in 2010, prompting appeal.
- Padilla v. Kentucky (2010) announced a rule about advising on removal consequences; this court held Padilla retroactively applicable on collateral review and remanded for proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Padilla retroactivity on collateral review | Orocio argues Padilla is new rule not retroactive under Teague. | Government contends Padilla is new rule not retroactive. | Padilla retroactively applicable; remand for further proceedings. |
| Padilla's application to plea counsel duty under Strickland | Orocio contends counsel failed to warn about removal; Padilla extends Strickland duty. | Government disputes extension beyond direct/collateral contexts. | Padilla clarifies that failure to advise on removal falls within Strickland's duty; deficient performance alleged. |
| Was counsel's performance deficient under Padilla/Strickland | Orocio affidavits allege counsel did not advise on near-certain removal consequences. | Government argues norms of 2004 did not require such warning. | Affirmative deficiency alleged; counsel failed to meet prevailing professional norms. |
| Prejudice under Strickland after Padilla | But-for counsel's errors, Orocio would have gone to trial to avoid removal. | District court found no reasonable probability of different outcome. | Prejudice requires remand for evidentiary development; a rational rejection of the plea could have occurred. |
| Impact of district court warnings on prejudice | Court warnings about INS/ICE did not cure removal risk from the plea. | Warnings mixed with plea binding nature limit prejudice. | Warnings insufficient; prejudice shown on the face of alleged removal consequences; remand warranted. |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. _ (2010) (counsel must inform noncitizen defendants of removal consequences to satisfy Strickland)
- Teague v. Lane, 489 U.S. 288 (1989) (retroactivity framework for new vs old rules on collateral review)
- Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice prong requires a reasonable probability of trial outcome change)
- Nino v. United States, 878 F.2d 101 (3d Cir. 1989) (prejudice depends on whether defendant would have gone to trial)
- Premo v. Moore, 131 S. Ct. 733 (2011) (recognizes burden of showing prejudice in plea-based claims; confirms ongoing applicability of Hill framework)
- St. Cyr, 533 U.S. 289 (2001) (removal consequences and plea decisions context in evaluating relief)