This case involves an ineffective assistance of counsel claim concerning the effect of Chavarria’s guilty plea on his immigration status. Defendant Julio Cesar Chavarria, born in Mexico, became a legal permanent resident of the United States in 1982. In 2009, Chavarria was charged with, and pleaded guilty to, four counts of distributing cocaine.
One year' later, the United States Supreme Court decided Padilla v. Kentucky,
Chavarria alleged that his criminal trial counsel responded to his deportation queries by indicating that Chavarria need not worry about deportation — specifically that “the attorney had checked with the Bureau of Immigration and Customs Enforcement ... and they said they were not interested” in deporting him. Chavarria also alleged that his attorney had counseled him to defer to the cues of his attorney during questioning by the district court. In connection with his § 2255 motion, Chavarria filed a Petition to Stay Deportation Proceedings, but by the time counsel had been appointed for these motions, he had already been deported. The government subsequently sought to dismiss Chavarria’s § 2255 motion based, in part, on the contention that Padilla announced a new rule
Shortly thereafter, we issued our opinion in Chaidez v. United States,
Chavarria appealed, challenging both our decision in Chaidez, and the district court’s application of it here. After the government filed its response brief, the Supreme Court granted certiorari in Chai-dez and subsequently affirmed. After Chaidez thus foreclosed Chavarria’s argument that Padilla was retroactive, he now argues that Chaidez distinguished between providing no advice (actionable under the Padilla rule) and providing bad advice (actionable under pre-Padilla law).
I.
[1] At the outset we briefly note that Chaidez foreclosed any argument that Padilla was retroactive, the original basis of Chavarria’s appeal. On collateral review, lacking retroactivity,- we will look only to the state of the law at the time the conviction became final. For that reason, Cha-varria originally argued that Padilla did not propound a new rule, but that it was merely another step in the evolution of ineffective assistance claims. However, the Supreme Court decided definitively that Padilla announced a new rule, which was not retroactive, when it affirmed our decision in Chaidez. Chaidez,
II.
[2] His retroactivity argument gone, Chavarria now argues that under Padilla only failure to advise of immigration consequences constitutes ineffective assistance under the Sixth Amendment, but affirmative misadviee provides an alternative basis for a constitutional claim under pre-Padilla law.
This argument about affirmative misad-vice is based on certain Chaidez language, which recognized precedent from three circuits holding that, pre-Padilla, misstatements about deportation could support an ineffective assistance claim. Chaidez,
Chavarria’s argument fails, first, because the distinction between affirmative misadviee and non-advice was not a relevant factor in Padilla. Second, the precedent, pr e-Padilla, supporting the application of Strickland in this context is insufficient to satisfy Teague v. Lane,
A lawyer’s advice about matters not involving the “direct” consequences of a criminal conviction—collateral matters— is, in fact, irrelevant under the Sixth Amendment; such advice is categorically excluded from analysis as professionally incompetent, as measured by Strickland. Padilla departed from this direct-collateral distinction because of the “unique” nature of deportation. Padilla, 559 U.S. at
The Chaidez majority jointly referred to both misadvice and non-advice throughout its opinion. There is no question that the majority understood that Padilla announced a new rule for all advice, or lack thereof, with respect to the consequences of a criminal conviction for immigration status. If taken out of context, language in Chaidez offers some support for Cha-varria’s argument, but that language is contradicted by a substantial amount of more specific language in the same opinion. See e.g., Chaidez,
Ironically, Chavarria asks us to recognize a distinction between misadvice and non-advice, even though Padilla was itself about an affirmative misrepresentation. In fact, this distinction, which is thin on its own terms, fails on Padilla’s facts. Thus, Chavarria is essentially asking us to hold that Chaidez held that the Padilla rule is not retroactive except on Padilla’s own facts (which involved misadvice). In fact, the Padilla majority, in responding to the government’s argument to limit its holding, specifically discussed limiting its holding to only affirmative misadvice, but did not because of the possible absurd results. Padilla,
Finally, Chavarria relies on cases from three federal circuits to prove that the distinction between affirmative misadvice and the failure to advise, and a constitutional rule based on that distinction constitutes pr e-Padilla precedent. Yet, under Teague, the rule sought by Chavarria must be dictated by existing precedent. Teag-ue,
The Court supported this conclusion by reiterating the trend among the lower courts, which viewed such collateral deportation matters as beyond the reach of the Sixth Amendment. Id. at 1113. The Court stated, “[o]n those courts’ view, the Sixth Amendment no more demanded competent advice about a plea’s deportation consequences than it demanded competent representation in the deportation process itself. Padilla decided that view was wrong. But to repeat: it was Padilla that did so.” Id. The material misrepresentations that were upheld by those three circuits cannot support a constitutional rule to be applied retroactively, since an old rule is one “limited to those holdings so compelled by precedent that any contrary conclusion must be deemed unreasonable.” See Lamhrix v. Singletary,
The district court correctly concluded that it was bound by Chaidez and that Padilla had no retroactive effect on Cha-varria’s case. Having determined that the distinction between affirmative misadvice and failure to advise does not somehow evade the non-retroactivity of Padilla, we AFFIRM.