United States v. Orocio

America UNITED STATES OROCIO, Appellant.

Gerald

No. 10-1231. Appeals, Court of

United States

Third Circuit. 24, 2011.

Argued Jan. 29,

Opinion filed: June CHAGARES,

Before: FUENTES POLLAK, Judges, and District Circuit Judge.* THE OPINION OF COURT POLLAK, Judge. District 7, 2004, pursuant On October to a counsel, agreement and on advice of Ger- pled guilty ald Orocio the United States District for the District of New Jer- sey simple possession to one count of of a in controlled substance violation of 844(a). § trig- This 2004 conviction U.S.C. gered proceedings removal initiated against years Mr. Orocio some later.1 Mr. petition then filed a for writ of Orocio in error coram nobis the District Court to conviction, challenge arguing attorney’s him failure to advise of the immigration consequences pleading charge drug to a federal constituted ineffective assistance of counsel violation rights pro- Amendment Sixth Washington, nounced Strickland v. 668, 2052, L.Ed.2d (1984). 6, 2010, January the District On petition, denied Mr. Orocio’s timely now appeal Mr. Orocio filed the During pendency of this before us. appeal, Supreme Court decided Padil- -, Kentucky, la v. 559 U.S. 130 S.Ct. (2010). 1473, Padilla, 176 L.Ed.2d 284 Court, addressing for the first time Orocio’s, akin to Mr. ruled factual scenario Alcorn, Esq. (Argued), Sophie R. John requires plea that Strickland Alcorn, Esq., Law Offices of John R. M. potential advise an alien defendant of the Alcorn, Irvine, CA, Appellant. for consequences of a recommended Valdes, plea. government contends that Pa- Coyne, Esq., Mark E. Camelia Attorney, holding pertinent is not to Mr. Oro- of the United States New- dilla’s Office NJ, Gross, ark, Esq. for the reason that (Argued), Norman cio’s situation 2010, Attorney, decided in announced a “new rule States Cam- Office United den, NJ, by precedent existing ... not dictated Appellee. for * Poliak, proceedings Judge 1. Removal were initiated in 2007 Louis H. Senior Honorable the East- the United States District Court for not establish the or later. The record does sitting by desig- Pennsylvania, ern District of precise date. nation.

the time ^[2005] the defendant’s conviction Portelli told him that gov- Lane, Teague became final.” ernment had a plea agreement offered 288, 301, 103 L.Ed.2d 334 which he charged would be with controlled (1989). Hence, view, government’s possession substance instead of drug traf- applicability. lacks retroactive ficking and would receive a sentence of follow, For the reasons that we hold that time plus two-year period served of su- retroactively applicable Padilla is on col- pervised release. According to Mr. Oro- review, lateral and we therefore vacate the cio, Mr. Portelli did not inform him of the judgment of the District Court and re- immigration consequences of proposed proceedings. mand for further guilty plea. Mr. accepted agreement, and on October Background2 pled guilty possession one count of of a Gerald Orocio was born in Philip- controlled substance (methamphetamine) pines in and he became a lawful § contravention of 21 U.S.C. 844. He permanent resident of the United States 10, 2005, was sentenced on March to time September 1997. Mr. Orocio was served years and two of supervised re- 3, Jersey arrested in New on October lease. 2003, and he charged by was later indict- ment in drug federal court with traffick- Mr. Orocio successfully complet time, ing. At that questioned he was re- ed his sentence and discharged was from status, garding immigration his and he supervision in Subsequent 2007. to com advised that he was a permanent lawful pletion sentence, of his Mr. Orocio was initially resident. assigned pub- He was placed in proceedings.3 He con defender, lic discharged but he her be- an immigration sulted with attorney, his cause plead she recommended that he present counsel, who advised him that re guilty to the trafficking offense and serve proceedings moval were initiated because ten-year private sentence. A attorney, pled guilty had to a controlled sub Portelli, Joseph A. retained June stance offense and was facing therefore 2004, represented and he Mr. Orocio in the mandatory deportation. In hopes of halt balance of the criminal proceedings. ing the removal proceedings, Mr. Orocio petition, his coram nobis Mr. petition Orocio filed a for a writ of error coram has 7, that on or about October nobis4 the District Court on November only 2. The underlying source of custody' facts the alle- purposes er 'in for of 28 U.S.C. section, gations apart Stoneman, § contained in this from 2255." United States v. 102, (3d Cir.1989) the official underlying record in the criminal F.2d (citing 105-06 United proceeding, 502, two-page 512-13, is Mr. Morgan, Orocio's v. affidavit States 247, support petition (1954)). filed in of his for writ of error 98 L.Ed. 248 The writ is (Orocio Aff.). App. coram "persons nobis. See 38-39 available to custody not held in [to] affidavits, supporting defects, No other oppos- and no attack a conviction for fundamental affidavits, submitted, ing were and the such as Dis- ineffective assistance of counsel.” petition trict Court dismissed the without con- United States v. Philadelphia, Rad-O-Lite of Inc., ducting 740, evidentiary hearing. (3d Cir.1979). 612 F.2d Coram exceptional nobis relief is "reserved for cir- 1, cumstances,” supra. Osser, See note United States v. 864 F.2d (3d Cir.1988), appropri- and it is 4. The writ of error only coram nobis "is used to ate "to correct errors for which there allegedly attack invalid remedy convictions which was no available at the time of trial continuing consequences, have peti- when the and where failing 'sound reasons' exist for earlier,” Stoneman, tioner has served long- his sentence and is no seek relief 870 F.2d at parties error coram nobis. The were writ of proceedings and removal standard, appropriate to the petition. disagree of the resolution stayed pending petition was arguing plenary Mr. Orocio’s Mr. for re- The basis Portelli, counsel, failed two view, government arguing for and the assistance the effective ways provide of discretion. Other circuits have abuse First, by Strickland. required issue; considered this the Courts also Portelli was that Mr. argued Mr. Orocio and Ninth Circuits Appeals for the Sixth try to secure he did because ineffective legal that the “determination of have held guilty plea pursuant Mr. Orocio for should proceedings” in coram nobis issues Act, 18 U.S.C. First Offender the Federal novo, findings be reviewed de ultimate- might disposition § 3607—a are for clear error. United fact reviewed of the in dismissal ly have resulted (6th Johnson, 237 F.3d States Second, argued that Mr. Orocio charges. States, Cir.2001); Hirabayashi v. United did because he was ineffective Mr. Portelli (9th Cir.1987). We find F.2d advise Mr. Orocio logically ap- to be the most this standard mandatory remov- consequences namely, — adopt therefore it. propriate and possession. drug pleading guilty al—of that he would not contends Mr. Orocio III. Discussion correctly had he been pled guilty certainty. that near advised of begin by examining the We petition Court denied The District implica- decision and its Court’s Padilla identifying 2010. After January (a) Next, given that Mr. Orocio’s tions. governing providing as (b) Strickland Mr. Orocio guilty plea was standard, dismissed the the District Court (c) completed his sentence and ground hearing petition without was decided we assess was ineffec- that, if his counsel even entitled, Mr. Orocio is retroactive- whether tive, demonstrate had failed to Mr. Orocio ly, ruling. to the benefit of that Whether under Strickland. required Teague is a v. Lane Padilla is retroactive timely appealed. Mr. Orocio that, Teague and we hold under problem, Lane, retroactively applicable. Padilla is Re- II. and Standard Jurisdiction then examine the Strickland We two view assistance of counsel prongs—ineffective jurisdiction over District Court had the first respect With prejudice. nobis, error coram petition for writ of Mr. Oro- prong, we first evaluate whether courts in criminal made available to federal ineffective alleged prima facie cio has Act, the All Writs 28 U.S.C. matters under hold claim under Padilla. We assistance 1651(a), jurisdiction of the courts’ § aid Finally, prejudice. we turn to that he has. to 18 proceedings pursuant criminal over Court, confining analysis its The District pur- jurisdiction § 3231. We U.S.C. held as a matter of law that prejudice, § 1291. to 28 U.S.C. suant prejudiced be- had been Mr. Orocio that, had he cause he could establish yet has not articulated This court guilty plea, there rejected proffered apply to of review to precise standard that he would probability a reasonable petition for was court’s denial of a district defect of than the fundamental relief other (quoting Morgan, 346 U.S. at error, issues to be 247). we leave such Court did Strickland Because the District on remand. in the first instance requirements nobis addressed for coram not address the guilty at representation not have been found trial. We ‘fell objective below an (2) hold that Mr. Orocio has sufficient standard reasonableness’ prejudice prong i.e., prejudice under Strickland and subse- “whether ‘there is a — that, probability reasonable quent to warrant a but for coun- case law remand to unprofessional errors, sel’s options pur- what result of determine could have proceeding would have been sued. differ- ” Strickland, ent.’ Id. at (quoting Court decides Padil- A. The 688, 694,104 2052). la In addressing the first prong, Strickland Soon after the District Court de the Court concluded Jose Padilla nied Mr. Orocio’s coram petition nobis sufficiently alleged “ha[d] constitutional docketed, appeal the Supreme deficiency” in attorney’s failure to ad- Kentucky, Court decided Padilla v. a case vise him of a plea’s immigration conse- goes the heart of Mr. Orocio’s quences. Id. 1483. The Court noted claim. The Padilla decision clarified the that “the terms of the relevant immigra- Strickland standard for ineffective succinct, assis clear, tion statute are explicit tance of the context of the immi in defining the removal consequence for gration consequences of plea agreements. conviction,” Padilla’s which was a con- counsel, The Padilla Court ruled that in trolled substance rendering offense him order to be constitutionally competent, has pursuant removable 8 U.S.C. an obligation to advise criminal 1227(a)(2)(B)(i). defendants § Id. The Court went on whether offense to they may which to observe that: plead guilty will result in removal from the easily Padilla’s counsel could have deter- United States. 130 S.Ct. at 1478. mined that his plea would make him eligible for simply [removal] from read- so,

To do the Court first had to deter- ing statute, the text of the which ad- mine whether applied at all to dresses not some broad classification of advice concerning the immigration conse- crimes but specifically commands re- quences of a plea. Eschewing the view of moval for all controlled substances con- a number of state and federal courts that except victions for the most trivial of immigration consequences were “collater- marijuana possession Instead, offenses. al” thereby and beyond the scope of the Padilla’s counsel provided him false as- representation required by the Sixth surance that his conviction would not Amendment, the Court held that because result his removal from country. “deportation a particularly ‘pen- severe This is not a hard case which to find alty,’ ... regarding advice deportation is deficiency: The consequences of Padil- categorically removed from the ambit la’s easily could be determined from of the Sixth right Amendment to counsel.” reading statute, the removal his [remov- Thus, Id. 1481-82. the highlight- Court was presumptively al] mandatory, and ed the need to apply Strickland’s two- his counsel’s advice was incorrect. prong test for ineffective assistance of (1) counsel in Jose Padilla’s case: per- the rejected Id.5 The Court then sugges- the prong i.e., formance “whether General, counsel’s tion of the Solicitor as amicus — Recognizing 5. "pQmmigration law can be more than advise a noncitizen client that complex,” the Court also held that ”[w]hen pending charges may criminal carry a risk of the law straightforward is not succinct and immigration consequences.” adverse ..., a attorney criminal defense need do no (1) rule curiae, apply: places the the new certain limit Strickland context to only beyond pow- to the he al- kinds of criminal conduct the extent Padilla’s claim law-making authority immi- er of the criminal misadvice about to leged affirmative (2) opposed proscribe; or new rule is a “water- consequences, as to gration any procedure” shed provide rule[] to advice at all. of criminal mere failure to our of the declining understanding “alter[s] In bedrock Id. at 1484-86. follow recommendation, found procedural elements that must be Solicitor General’s quintessentially duty particular vitiate fairness of a convic- “[i]t said Teague, her client avail- tion.” provide of counsel to 489 U.S. (internal (emphasis original) quota- an issue like

able about [removal] advice omitted). contrast, clearly By tion marks failure to do so satisfies the “old rule,” applies analysis.” first of the Strickland on both direct collateral prong (internal Bockting, review. See v. quotation Id. marks omit- Whorton at 1484 ted). 406, 416, 1173, 167 127 S.Ct. L.Ed.2d (2007). expressly

The Padilla Court refrained determining from whether Padilla Thus, Jose if did not announce a “new prong rule,” had met the second then Mr. Orocio would be entitled to he had been prejudiced. demonstrated that protection invoke the of Padilla even Kentucky That remitted “to the issue was though his conviction had achieved finality in the first courts to consider instance.” fully prior and his served sentence was at 1483-84. Padilla. If Padilla announced “new

rule,” however, then Mr. Orocio would Retroactivity B. of Padilla have to within demonstrate that it falls one very Teague exceptions. narrow Padilla was decided after Mr. Because final, conviction became we must Orocio’s retroactively apply 2. Does Padilla retroactivity principles whether consider Teague? under holding bar of Padilla’s application government argues that Padilla is a this case. rule” in ways. “new two Teague retroactivity First, it is a argues that Padilla “new Lane, rule” because it has extended Teague Strickland’s (1989), analysis L.Ed.2d 334 Amendment non-crimi Sixth failure of gov setting namely, forth two nal criminal regimes Court set — client of application defense counsel to advise a erning the retroactive of consti mandatory consequences civil removal of to criminal cases. principles tutional trafficking charges. catego pleading guilty drug the world into Teague divided two ries, precise question rules.” It is true rules” and “new A rule is “old consequences purposes “if whether the Teague a rule” for civil “new are by precedent scope a within the Strickland result was not dictated exist never defendant’s conviction had been addressed ing at the time the 301, an before But that is in Id. at 1060. Court Padilla. became final.” ques complete approach rule” to the Strickland Teague that a “new is retroac held presented question in case. The tively to cases on re tion applicable collateral has if of two we confront is whether counsel been only exceptions view if and one Padilla, This, like a case. at 1483. is not such constitutionally adequate advising plea process,” thereby a come of the accept whether criminal defendant come within the ambit partic of the “more only held one plea bargain. Court ular duties to consult with the defendant” year that “the same two- after Strickland Strickland, required of effective counsel. ap ... part ] [is] standard [of at 466 U.S. Far from S.Ct. 2052. plicable to ineffective-assistance claims extending the unchart Strickland rule into arising plea process,” out of the and a territory, ed Padilla reaffirmed defense must therefore determine court “whether obligations counsel’s to the criminal defen accept plea] [to counsel’s advice during plea process, dant a critical range competence demanded within stage proceedings. in the attorneys in criminal cases.” See Hill v. Lockhart, 52, 56-57, 474 U.S. Second, government argues (1985) (internal quota 88 L.Ed.2d 203 “clearly ground broke new omitted). Padilla, tion marks regarding duty counsel’s to advise her changes Court relied on “recent in our [removal], client about and was not ‘dictat immigration law have made removal [that] Court[6] by prior Supreme precedent.” ed’ nearly an automatic result for a broad We are convinced that Padilla did not of noncitizen offenders.” class ground” new holding “br[eak] that coun Moreover, S.Ct. at 1481. the Padilla sel must inform a criminal defendant of noted that it had applied “never immigration consequences of a distinction between direct and collateral plea in order constitutionally to be ade consequences to the scope define of consti quate. Although the Padilla Court ac tutionally professional ‘reasonable assis knowledged that some courts had previ Strickland,” required tance’ under dis ously held that the “‘failure of defense tinction “ill-suited” for removal scenarios. counsel to advise possible the defendant of application Id. 1481-82. The of Strick consequences cognizable [removal] is not land to the Padilla scenario is not so aas claim for ineffective assistance of prec removed from the broader outlines of counsel,”’ 130 S.Ct. at the Court rule,” edent as to constitute a “new for the straightforwardly applied the Strickland required long Court had effective assis rule—and the legal profes norms of the tance of counsel on all “important deci sion that upon adequate warning insist sions,” Strickland, criminal defendants of immigration conse bargaining S. Ct. that could quences facts Jose Padilla’s plea process,” ] the outcome of the “affeetf —to (“Strickland Hill, ease. See id. at 1482 applies 474 U.S. at 106 S.Ct. 366. In that Strickland, to Padilla’s claim.... light, Under merely Padilla is best read as recog we first determine nizing plea agreement’s rep that a whether counsel’s consequences resentation objective constitute the fell below an sort of infor stan (internal mation alien defendant dard of making quota needs reasonableness.” omitted)). “important affecting decisions” “the out tion marks However, nothing Teague Teague jurisprudence restricts the our will constitute law, dictating Supreme precedent. 'clearly source to Court established Federal as deter- by That is a Supreme condition for habeas relief under mined the Court of the United AEDPA, [AEDPA], caveat, requirement Teague. but not a under States’ under The one as 362, 412, clear, Taylor, See statutory language Williams v. 529 U.S. the 120 makes (2000) (O’Con- S.Ct. 146 L.Ed.2d clearly 389 the [AEDPA]restricts source of estab- nor, J., Court) ("With caveat, (ci- for jurisprudence.” the one law lished to this Court’s omitted)). qualify whatever would an as old rule under tation

639 bottom, meaning of competently our focuses on within the the inquiry At Amendment,” duty a application including of the Strick “to Padilla’s Sixth whether is a important to a new context with the defendant on factual consult land standard (internal Teague purposes. quotation for Id. at rule” decisions.” 656 “new omitted) omitted). “provides (emphasis sufficient When Strickland standard marks virtually all ineffec resolving for Court a guidance Supreme the decides claims.” Lewis facts, place tive-assistance-of-counsel with novel we do not case Cir.2004) (3d Johnson, F.3d 655 359 particular duty on the identi- “emphasis omitted). (internal quotation marks ... a by [Supreme] the fied basis Lewis, in which most recent instance the Teag- classifying rule as ‘new’for th[e] for analysis, we performed we kind (emphasis Id. at 655 in purposes.” ue whether the sought to determine “precedents look to original). We instead Flores-Ortega, in Roe v. Court’s decision then-existing professional norms” to 470, 480, 528 U.S. whether decision “broke ... determine the (2000), that counsel holding L.Ed.2d at ground.” Id. new client about duty has to consult with his clearly followed Padilla from the estab- circum appeal an under certain taking principles guarantee lished of effec- stances, found announced a new rule. We tive assistance of counsel. Strickland and not, so, and in discussed doing that it did required Hill counsel to advise criminal retroactivity appropriate some detail plea stage at the defendants accordance involving cases analysis for Strickland. precedent prevailing professional Looking to the intersection of Strick- to ensure norms that the defendant makes Teague, we made three observa- land and informed, voluntary knowing, an deci- (1) guide inquiry: the “new rule” tions that plead to Padilla guilty. sion whether to need not on all fours “case law exist set within the confines of Strickland and finding Teague under that the allow for a Hill, an as it concerns what advice attor- prece- ... rule at issue was dictated ney give must to criminal defendant at Leuns, (2) 655; dent,” F.3d “Strick- at stage. pled plea When Mr. Orocio general which applicability is a rule of land guilty, “hardly it was novel” for counsel to objec- whether counsel’s conduct was asks to at provide advice defendants profes- and conformed to tively reasonable concerning stage conse- based ‘on sional norms the facts of undoubtedly guilty of a quences plea, case, viewed the time of particular as of decision” a defendant. “important for See ” conduct,’ (quoting id. Strick- counsel’s (“For 130 S.Ct. at 1485 least (em- land, past years, professional norms “ (3) phasis quotation)); ‘it will be imposed an generally obligation infrequent yields case a result so provide advice on the conse- [removal] rule, forges it one not novel that new plea.”). of a quences client’s Padilla ” by precedent,’ (quoting id. dictated clarified it “merely applied the law as West, 308-09, Wright v. facts particular of that case.” Lew- Of. (Kenne- (1992) 2482, 120 L.Ed.2d 225 is, at 655. therefore hold 359 F.3d We J., dy, concurring judgment) (emphasis ground holding “broke no new omitted)). duty to consult to coun- also extended obligation identified sel’s advise the defendant” of Strickland Court “[T]he immigration consequences ... de ‘certain basic duties’ that criminal ‘yield[ so attorneys perform must and “did not a result novel carry ] out fense 640 ” 657, a new See id. at in forge[d] harmony it rule.’ Lower court decisions not (alterations were, in original). exceptions,

655 with few pre-date

decided before 1995 and the pro- that, government heavily The relies on fessional norms as the Padilla court recognized, long in Alito’s observation Padilla that had demanded that com- Justice petent provide counsel on today, longstanding advice the re- unani “[u]ntil consequences moval plea.8 of a client’s position mous of the federal courts was Padilla, 130 S.Ct. at While at generally that reasonable defense counsel early time of those decisions courts had advise a client about the only need direct yet recognized lawyer a fails in his of a consequences criminal conviction.”7 professional duty when he does not advise J., (Alito, 130 at 1487 concurring S.Ct. potentially alien client of the grave judgment). government The sees this immigration consequences a plea, of convincing evidence that Padilla an 2004, by pled guilty, when However, nounced a “new rule.” Strick norms of effective assistance —norms objective land not freeze place did into keyed contemporaneous professional of attorney performance prevail standards standards —had become far more demand- 1984, ing change again. never to See ing. (“The 688, 466 104 2052 U.S. at S.Ct. Sixth ... on legal Amendment relies instead Every claim Strickland re profession’s of maintenance stan quires fact-specific a inquiry, it is not added)). (emphasis dards ....’” every the case that ruling on opinion Court’s in Padilla reiterated this new facts requires the announcement of a practice “the expectations reference to Lewis, “new rule.” We have held 359 legal community: ‘The proper 655, F.3d at quoting Kennedy’s Justice attorney performance measure of remains Wright, 308-09, observations in simply reasonableness under prevailing J., (Kennedy, S.Ct. 2482 concurring in ” professional norms.’ 130 S.Ct. at 1482 the judgment), that under rules that re “ Strickland, (quoting 688, 104 quire ‘case-by-case examination of the 2052); (“We id. long evidence, recog- ... we can tolerate number of nized that ‘[prevailing practice norms of specific applications saying without as reflected American Bar applications Association those themselves create a new ” and the guides Standards like ... are Accordingly, to rule.’ disposition court’s (al- what determining is reasonable....’” each individual factual scenario arising un original) Strickland, (quoting terations long-established der the Strickland stan 2052)). 688,104 466 U.S. at rule,” dard is not in each instance a “new 7. Justice Alito appellate large authority cited to two federal 8. The bulk that excused providing cases'—one decided in and the from other in advice consequences predates professional 1993—and 2002 article Chin & Holmes norms identified in See Padilla. Chin & in the Cornell Law See Review. 130 S.Ct. at Holmes, (cit- 87 Cornell L.Rev. at nn. 67-124 J., (Alito, concurring judgment) in the 2001, ing federal and state cases from Gonzalez, (citing United States v. 202 F.3d 20 pre-1995); the bulk which are see also (1st Cir.2000), Banda, United States 1 F.3d State, 658, 340, Md.App. Miller v. 11 A.3d (5th Cir.1993), Holmes, and Chin & Ef- (2010) (citing appellate 349-51 federal cases Assistance Counsel the Conse- fective 1992, 1993, from quences Pleas, Guilty 87 Cornell L.Rev. 2003). opinions vintage Judicial (2002)). older, course, 1995 or involve facts from even earlier dates.

641 Strickland, and “old Under Padilla application of an C. rather new but plea was Mr. in- Orocio’s counsel by precedent. dictated rule” in manner effective? is no different. Padilla alleges his neither Indeed, scrutiny of Padilla close nor Portelli him prior counsel Mr. advised unlikely to consider it not leads us opinion accepting proposed guilty pleas ret- anticipated the the Padilla Court in near-mandatory would result holding of its on collat- application roactive We address from United States. it considered the effect review when eral by District left unanswered question have on final convictions: decision would its did failure to advise Court: given serious consideration We assistance of counsel constitute ineffective General, the Solicitor the concerns that first prong under the Strickland re- amici have stressed respondent, and analysis straight test? Our rendered garding importance protecting by recognized Padilla forward Padilla. through finality of convictions obtained that the failure of defense counsel to warn a similar pleas.® We confronted would a defendant that a make Hill, never- “floodgates” concern eligible for removal is a consti defendant to a claim applied theless representation tutional defect in that satis failed had to advise prong fies the first of the Strickland test. be- regarding parole eligibility client at The facts of Padilla 1483. pleaded guilty.... he A flood did fore here, closely presented mirror those and follow in that decision’s wake. not therefore hold that Mr. affida we Orocio’s sufficiently alleges that his counsel was vit (citation omitted) S.Ct. at 1484-85 130 constitutionally deficient. omitted). (footnote We hold therefore directly subject Padilla to removal for a that, Padilla followed Jose was because attorney long-established offense. pro- controlled substance His from Strickland him, norms, affirmatively telling for misled it is “old rule” fessional retroactively guilty plea that he “did appli- prior and is Padilla’s Teague purposes 10 worry have to about sta- on collateral review.9 Mr. Orocio cable holding. country in the so the benefit of its tus since had been thus entitled to finality may Kentucky, respondent pleas have a dramatic was these 9. ruling in Padilla’s favor integrity concerned that effect on the and effectiveness of open the door to innumerable chal- "would system justice.” Br. of et al. at U.S. La. lenges pleas” "greatly cer- lessen the 10-11, U.S.-, Kentucky, 559 130 Padilla v. sought by tainty finality use of 1473, (2010) (No. 08- S.Ct. 176 L.Ed.2d 284 Resp’t process.” Padilla v. Br. for 651), 2009 WL 2564713. U.S.-, Kentucky, 130 176 559 08-651), (2010) (No. 2009 WL L.Ed.2d 284 decided, year In the Padilla was state since States, curi- 2473880. The United as amicus considering district courts courts federal affirmance, support particularly ae in retroactivity differing Padilla's have reached judicial and á "strain [on] concerned about States, See, e.g., v. United conclusions. Doan prosecutorial influx resources” caused "an (Padilla (E.D.Va.2011) F.Supp.2d 760 602 challenges pleas.” long-final Br. of the Chaidez, retroactive); v. United States Kentucky, Padilla v. United States (Padilla (N.D.Ill.2010) F.Supp.2d retroac -, 176 L.Ed.2d State, tive); Md.App. Miller v. (No. 08-651), (2010) 2009 WL 2509223. retroactive); (2010) (Padilla not Peo A.3d 340 states, sup- Twenty-seven as amici curiae in Garcia, ple 907 N.Y.S.2d 29 Misc.3d emphasized port Kentucky, their concern retroactive). (Padilla (N.Y.Sup.Ct.2010) in the that “even an incremental weakness While Mr. tance. It instead long.” legal Id. at 1478. Orocio does relies on the affirmatively that Mr. Portelli allege profession’s maintenance of standards him, allege does that misled Mr. Orocio justify sufficient to the law’s presump- Mr. failed to advise him of wholly Portelli tion that will fulfill the role consequence removal the near-certain adversary process the that the Amend- a controlled pleading guilty to substance ment proper envisions. The measure of expressly offense. The Padilla Court re- attorney performance simply remains jected that a any requirement defendant prevailing profes- reasonableness under misled; for affirmatively be eases such as sional norms. consequences can those which the be (citation 688, 466 U.S. at 104 S.Ct. 2052 reading the “simply divined from text of omitted). reiterating After language statute,” failure the the mere to warn of a Strickland, from the Padilla Court stated constitutionally consequence de- weight prevailing profession- “[t]he representation ficient because “there is no al norms the view supports that counsel relevant between an act difference of com- regarding must advise her client the risk mission and an act of omission.” Id. at deportation.” 130 S.Ct. at 1482 (citing (internal 1483, quotation marks omit- 1997, 1999, 2000, sources from ted). 2004). professional These norms unpersuasive government’s We find the did being not come into on the date of the argument that, because Strickland meas- decision, quite Padilla the opposite: performance ures counsel’s “on the facts of the Padilla decision reflected the fact that particular viewed case as of the time of professional these norms were well estab- conduct,” Mr. counsel’s Orocio’s claim long lished the Padilla before decision— should fail it was not because reasonable to indeed, they prior were well established to expect attorney, to predict a alleged deficiency of Mr. Orocio’s at- Supreme nearly years Court decision six event, torney.12 any counsel had been later. This misses the mark.11 argument required professional to to adhere norms attorney alleged His is not be deficient Strickland, in the decades since and all of predict because he failed the Padilla prevailing professional sources of decision—he is to be deficient be- norms cited Court in pre- cause up he did not measure to prevailing date Mr. Orocio’s conviction and his attor- professional norms demanded of counsel at ney’s failure It to advise. did not take the stage required by Strickland Padilla decision to what establish Mr. Por- progeny. its The Strickland decision telli required competent was to do as a did only existing not hold that attorney. defense guide decisions the reasonableness inquiry. Instead, it said: In light long-standing of the principle specific

More held to guidelines are not counsel will be appro- prevailing priate. legal profession, The Sixth standards of Amendment refers it is be- “counsel,” simply yond not specifying cavil that Mr. Orocio’s par- counsel was ticular requirements effective constitutionally assis- deficient under the first Indeed, 11. it is at odds with the underlying prevailing professional der the norms of There, conviction, facts of Padilla. apply it is not unreasonable to those same advise, failure to and the dated back to attorney norms Mr. Orocio’s 2002. See Commonwealth v. (Ky.2008). S.W.3d Because Mr. Pa- 11, supra. 12. See note attorney dilla's found to be deficient un- added). if, (emphasis as is order to inquiry “[I]n S.Ct. 366 of the Strickland prong satisfy ‘prejudice’ requirement [of not advise alleged, did ], consequences of his must defendant show adverse that, of- but plea probability to a controlled substance there is a reasonable guilty errors, then-prevail- in with the he would have accordance for counsel’s fense norms. have on ing professional pleaded guilty and would insisted assessment, trial.” “This going to Id. by prejudiced D. Was Mr. Orocio turn, depend large part,” but not will plea ineffectiveness? counsel’s exclusively, “on a the prediction whether that, assuming the Having determined likely changed have the out- would [errors] affidavit, Mr. Orocio’s of Mr. Orocio’s truth a trial.” come of Id. under the standard counsel ineffective ultimately The District Court Strickland, and out Padilla and laid that no its determination there was based retroactively we applicable, Padilla is

that finding on its that Orocio had not question the of whether Mr. Orocio turn to acquitted, that he have been shown would fail- counsel’s sufficiently has In so gone doing, had he to trial. the him. prejudiced advise properly ure an of District Court followed older line is, we “whether That must determine reasoning originated this Circuit which that, probability a ‘there is reasonable Nino, 101, 105 878 United States v. F.2d errors, the re- unprofessional counsel’s for Cir.1989). (3d Court, Supreme how the have been proceeding of would sult ever, ” a requires only that defendant could Padilla, 130 at 1482 different.’ S.Ct. rationally trial in gone have the first Strickland, 694, 104 466 U.S. at (quoting required it affir place, and has never 2052). probability” A “reasonable S.Ct. likely of at acquittal mative demonstration than of “somewhat lower” proof a standard qua preju such a trial the sine non of the Strick preponderance a of evidence. Hill, at See 106 S.Ct. dice. land, 694, 104 2052. 466 U.S. at S.Ct. previous To the extent that we have the decision Although ly interpreted require Hill to such a show during imposes duty a on clearly intervening deci ing, Court’s “a criti negotiation plea bargain, of a (of sion in Padilla which District Court for phase litigation purposes cal benefit) have has made it clear did not Right to effective assis Amendment Sixth Instead, “to appropriate. that is not eounsel[,] non- ... to inform her tance of claim, type peti relief on this obtain depor client that he faces risk citizen must convince the court that a deci tioner Padilla, tation,” at it does 130 S.Ct. reject bargain plea sion to would provide undertake to instruction circumstances,” rational under the been by the prejudiced a client was whether 130 at and a rational Instead, ineffectiveness, at id. 1483-84. plead guilty not to not focus decision does Court longstanding Supreme turn to we solely on whether a defendant would have prejudice inquiry. guide precedent guilty found at trial —Padilla reiter been might that an defendant ration challenge to a ated alien

In a counsel, with than ally be more concerned assistance of on ineffective based id. at imprisonment, a term of see takes the form prejudice inquiry “ ‘[preserving a (recognizing that constitutionally ineffec 1483 counsel’s “whether in the United right client’s to remain affected the outcome performance tive Hill, 59,106 may important be to the client more process.” at States U.S. ” jail any (quoting prosecu- than sentence’ for that reason potential and because 2271)). Cyr, St. U.S. directly easy responsible, tion for the Therefore, requirement Nino’s de- government prevent. affirmatively show he would fendant (citations preju- acquitted been order to establish omitted) added). (emphases The Court longer good dice in is no law.13 this context further held that “actual ineffectiveness (3d Krebs, See re F.3d Cir. alleging deficiency claims in attorney 2008) (“A may of this reevalu- panel performance subject general are to a re- holding prior ate of a which panel that quirement affirmatively the defendant intervening Supreme conflicts with prejudice prove govern- [because] [t]he precedent.”). for, responsible ment is not and hence not argues preju- two of forms prevent, attorney able to errors that will attorney’s dice from to inform his failure result in reversal of a conviction or sen- him possible immigration consequences. of Id. at tence.” 104 S.Ct. 2052. Mr. First, prejudice he that should argues be allege Orocio does not he was denied presumed in his case because the failure to altogether, the assistance of advise counsel and consequences of is “easy identify Second, prevent.” to and not allege government he he does argues prejudice that he suffered actual responsible was for his counsel’s omission go because he would have to to chosen representation. or interfered with his trial agreeing of instead to a put, Simply type has not of subjected to him automatic deportation. government-caused scenario where preju- reject contention, We his first but we “so likely” dice is that an examination into agree with second. his of particular the facts his case is “not Accordingly, worth cost.” argu- his respect presumed preju to

With presumed ment of dice, prejudice unpersua- is “easy identify Mr. Orocio takes the to sive, “affirmatively and he prevent” prove standard from must Strickland. context, however, When taken in prejudice.” the lan guage support finding pre does In prejudice order to prove affir prejudice sumed this case. The full matively, that, Mr. Orocio must show “but passage from Strickland reads as follows: errors, for counsel’s he would not have contexts, certain Sixth Amendment guilty pleaded have would insisted on prejudice presumed. is Actual or con Hill, going to trial.” structive denial assistance 366. Mr. Orocio’s affidavit states altogether legally presumed to that he “would have taken his case to trial” result in prejudice. So are various if he could not a plea agree have secured kinds of state with counsel’s interference ment that would avoid a removal conse Prejudice assistance. circum- these quence. App. 39. The District Court held likely

stances is so that case-by-case in that Mr. prior guilt Orocio’s concession of quiry into prejudice is not worth the Moreover, during colloquy dispositive cost. such circumstances in necessarily credible, volve impairments of the Amend foreclosed a Sixth ob and, ment right easy identify that are to jectively reasonable claim that he would panel The Nino declined to (emphasis find trial." 878 F.2d at 105 add- after ed). petitioner guilty where pled any- "would have or, so, way guilty had he done been found ” Padilla, jail gone potential sentence.’ rolled the dice and have nonetheless Cyr, (quoting at 1483 INS v. St. avoiding removal: S.Ct. hope trial in the 289, 323, 150 L.Ed.2d rejects argu- Mr. Orocio’s The Court (em- (alteration (2001)14) in original) prong of the second ment because added). the alien phasis For defendant that, requires him to show remaining most concerned with errors, there is a his counsel’s but for States, perma- especially legal United probability that he would not reasonable resident, it not at all unreasonable nent guilty and that he would not [pled] have go ten-year trial and risk a sentence at trial. Mr. Orocio convicted been removal, guaranteed contrary, To has to show this. failed acquittal and the to remain right chance of disputed has not the accura- Mr. Orocio States, pleading facts rise to the United instead cy underlying giving that, not an plea. guilty Because Mr. Orocio has offense while guilty court he was carries open aggravated felony, “presumptively admitted which he was convict- mandatory” consequences. crime Just guilt challenge provide ed not now may and does as “the threat of [removal] , (but merely that a more favor- powerful asserts the a defendant with incentive to negotiat- plea able deal could been plead to offense that does guilty an not behalf), is ed on his the Strickland test penalty exchange mandate that for a does,” not and Mr. Orocio’s motion satisfied charge of a id. dismissal that at prevail. cannot provides the threat of removal an equally go incentive to trial a powerful to if disagree with this assess- App. 22. We plea anyway. would result in removal Mr. guilty does not plea ment. Mr. Orocio’s only years Orocio was old at the time he because, he inquiry Hill had not end the plea he agreement, entered the ration- any there not have been pled guilty, would ally could have more concerned been about acknowledgement guilt open of court near-certainty multiple a decades of go a to to foreclosing rational decision banishment from the United States than Instead, inquiry must focus on trial. the possibility prison. Orocio, single the of a decade if of the whether Mr. made aware that, Accordingly, we the facts as consequences pro- of the hold on immigration dire a petition, in his coram nobis deci- posed plea, reasonably could have guilty reject “to the go though by plea chosen to to trial even faced sion charge constituting bargain would have been rational under drug a distribution 1485; aggravated 10-year with a mini- the circumstances.” Id. at accord felony Sandoval, 171 mum We believe it would have State v. Wash.2d sentence. (2011) (finding preju- 1021-22 been a decision. P.3d reasonable permanent dice to lawful resident defen- the Court re facts). dant on similar ‘“[preserving iterated that the client’s may government in the The further contends that right to remain United States any prejudice mitigated than to important any be to the client Mr. Orocio was more alia, held, they discretionary Cyr, eligible be for 14. the Court inter would relief In St. Illegal provisions Immigration possibility the Re- the of such relief was “one because Immigrant Responsibility Act form and by principal sought defendants benefits curtailing Attorney the discretion of the accept plea deciding offer or whether General to waive removal of resident aliens proceed U.S. at instead to to trial.” 533 321- retroactively apply people who had did not plea agreements expecting entered into by by mitigate two statements made the District insufficient to suf- change plea hearing Mr. Orocio. The fact during plea fered First, hearing. agreement not on sentencing binding Immigra- the later plea hearing, in tion and Naturalization Service change of October of did alert Mr. Orocio to the fact that made a brief reference to his remov- court certainty al was a near immigration consequence authorities: pleading guilty to a controlled substance plea agree- Nor [the [The court]: Moreover, single offense. reference you I should tell too—it’s ment]—and the INS was the context of a series of upon any civil binding authorities warnings that included statement such as the Internal Revenue Service plea agreement binding was not even binding upon Immigra- and it’s not sum, App. District Court. 65. In tion and Naturalization Service. warning change at the hearing youDo understand that? was sufficient to alert Mr. Orocio that his Yes. [Mr. Orocio]: binding was on only himself and the sentencing hearing, 66. At the App. id., government, wholly insuffi- again March of the court alluded to cient to alert him of the con- immigration authorities: sequences of a plea. cooperate ... are to Im- You also with to immigration allusion authorities migration and Customs Enforcement sentencing was likewise insufficient to your any problems resolve status in mitigate prejudice. any As the Padilla You country. provide are to truth- noted, Court law because the was “succinct by ful information and abide the rules straightforward” and “truly and clear” regulations Immigration and of and Cus- respect with to removal for controlled sub- toms Enforcement. offenses, stance the District Court’s sensi- you deported, Orocio, If you are Mr. ble advice to Mr. to cooperate Orocio with cannot back to this with- country come generalized and, also, was ICE too far — getting permission out first the written process too late in effectively alert —to Attorney country. of the General of this Mr. Orocio to the severe removal conse- you back, If do you report come are to quences guilty of his of plea five months person in to the nearest United States before. 130 S.Ct. your Probation within 48 Office hours of that, assuming We conclude Mr. Orocio reentry. evidentiary can establish at an hearing the App. gist government’s 52-53. The of the affidavit, facts that he has in his argument is that colloquies, these two in Mr. Orocio will have shown in tandem, put Mr. Orocio on notice that he flowing sense Strickland from the fail- notice, could be that removed. With him, of ure counsel to inform at the time government argues, Mr. Orocio should agreement plea proffered, was prepared arguments have on appeal or the grave immigration of consequences §a petition. question filed 2255 The un- acceptance agreement would Hill, however, der and entail. whether Mr. Orocio had later access remedies, pled but whether would have IV. Conclusion guilty at all. Having concluded peti- that Mr. Orocio’s

The allusion to au tion for a of writ error coram failed nobis change thorities at of hearing allege Strickland prejudice and hence

647 addition, law, 9.1. In an “[a]s as matter of the Dis- dure inferior was deficient are, in hierarchy, court the federal we the petition dismissed without trict Court course, apply the compelled to law an- The evidentiary hearing. conducting by the Court as find Supreme nounced we pre-dated the Su- District Court’s decision it on the date our decision.” United We Padilla. preme Court’s decision Phila., City v. 644 F.2d States Padilla has retroactive have ruled that Cir.1980). (3d n. 3 Accordingly, we will remand application. the District order this case to admonished, however, if have We opportunity decide give that court the ruling by no “there has been determinative of Padilla this case within the framework question, Court on we are [a] developed factual on the basis of by prior opinions].” v. [our bound Brown the District judgment record.15 (3d States, 508 F.2d Cir. United re- be case Court will vacated 1974). appeals sister courts of Our that court. manded to similarly required that the absence of determination, Supreme Court clear courts CHAGARES, part concurring appeals prior should follow their own dissenting part. See, opinions. e.g., Rosas-Castaneda v. (9th Cir.2011) Holder, F.3d opinion as to join majority’s I section (noting Supreme Court decision must be A, B, C, III, join I parts cannot “clearly prior irreconcilable” with a court (“Was III, part prej- D section appeals decision to overrule deci- by counsel’s ineffective- udiced sion) (quotation marks and citation omit- ness?”). my I particular, disagree ted); Am., Inc., N. Awuah v. Coverall Ken colleagues Padilla v. learned Cir.2009) (“Given (1st F.3d U.S.-, 1473, 176 tucky, clearly spoken, Supreme Court has (2010) compels the conclusion L.Ed.2d 284 predictability interests of are served jurisprudence originating in Unit- that our ”); own respecting prior language.... our (3d Nino, Cir. ed 878 F.2d States Ala. Birmingham v. Univ. at Garrett 1989) good Majority longer “is no law.” of (11th Trs., 1288, 1292 Bd. 344 F.3d re- of Op. jurisprudence I believe our Cir.2003) (“While intervening an decision I fully x-espect- mains intact and therefore a the can Supreme of Court overrule deci- fully disagree also with the dissent. I court, panel prior sion of a of our the judgment. to conclusion and majority its clearly decision must be on Supreme Court Stone, v. 306 F.3d point.”); United States I. Cir.2002) (5th 241, “a (holding clear A. contrary Supreme statement from the compel appeals to principle that a court of recognized We have Court” will decision); prior main- a Public every depart effort to from Serv. Coui't makes “[o]ur Co., 306, v. body jurisprudence,” of Co. Gen. Elec. F.2d tain consistent ofN.M. Cir.1963) (10th Tann, (holding n. 577 F.3d lower v. United States “clear, direct, (3d Cir.2009), apply must prior we will follow our federal courts and Court, unqualified explicit, sit- opinions statements] unless our precedential Court”). banc, Accordingly, opinion, Supreme see ting en reconsiders to a Supreme Proce- Court decision Operating “[o]bedience Third Internal Circuit respect with light native claim of ineffectiveness we vacate and remand in 15. Because Act. alter- the Federal First Offender we do not assess Mr. Orocio’s extrapolating thing, petitioner is one from its We held that [but] could not “show holding on an implications a issue there a reasonable probability [was] any in that but for upend by not before that Court order error committed his circuit law is another the outcome of the precedent proceeding settled different,” Drug, would have been Main Inc. v. Aetna because “we thing.” (11th Healthcare, Inc., petitioner that even had conclude[d] 475 F.3d been Cir.2007). deportation advised of the consequences of guilty plea, pled guilty he would have or, anyway so,

B. had he not done [would been found guilty have] after trial.” Id. law, applicable Turning to the the ma- Later decisions in circuit this have similar- notes that jority correctly ly analyzed a petitioner whether would Lockhart, Court Hill have been found or even asserted (1985) 366, 88 L.Ed.2d 203 set forth innocence, his or her factual in considering analyzing “prejudice” the standard for prong. prong challenges guilty pleas based majority concludes that line this on ineffective assistance counsel. our jurisprudence longer “is no good law” Hill, that, the Court held to meet based upon single line in Al- Padilla. prejudice prong, “the defendant must show though the Supreme Court Padilla did that, probability is a there reasonable petitioner consider whether had errors, for counsel’s he would not have prejudice, established it mentioned that pleaded guilty would have insisted on “[s]urmounting Strickland’s bar high going trial.” Id. 106 S.Ct. 366. easy never an task.” 130 S.Ct. at 1485. turn, assessment, in depend “This will The Court followed that statement part prediction large on a whether the upon by line relied majority: “to likely changed [errors] would the out- claim, obtain type peti- relief of a come trial.” Id. The Hill tioner must convince the court deci- explained may further that courts examine reject sion to plea bargain would have “likely whether the defendant would have been rational under the circumstances.” trial,” Hill, succeeded at 474 U.S. at Id. observed “these predictions of the a possible outcome of certainly clear, This type not the trial, necessary, where be should made direct, explicit, contrary ruling objectively 59-60, ..id. 106 S.Ct. 366 Supreme Court that would justify aban- (citing Strickland v. Washington, 466 U.S. doning jurisprudence our in this area. 668, 695, 104 S.Ct. 80 L.Ed.2d 674 The Court’s statement in Padilla (1984)). general is and unremarkable and is consis- tent with its holding in Hill. The state- Hill, Subsequent to this Court decided says ment nothing specific, particularly Nino, United States v. 878 F.2d at 105-06. about the evidence to be in mak- reviewed Nino, In we a considered claim that peti- ing a Accordingly, determination. I can- plea tioner’s counsel was ineffective and agree not jurisprudence originat- our that petitioner’s conviction be should over- ing in longer good Nino no law. plea turned because his counsel failed to him regarding advise the deportation My con- supported by conclusion is a more sequences plea. of his guilty Importantly, decision, recent Supreme Court Premo v. — we noted that Moore, the record “replete -, petitioner’s evidence of guilt.” (2011). Id. at 105. L.Ed.2d 649 Like present the Nino, our has not jurisprudence the case, Hill, presented Premo onstrates and clearly, directly, explicitly inadequate and over- allegedly the been of whether issue prejudiced pe- a plea counsel ruled. assistance plea agree- a into who entered

titioner II. explicitly rec- Premo ment. The Court proper forth the that Hill set ognized case, facts Turning of this at this issue. Id. to resolve standard Court found that Orocio “has not District accuracy underlying of the disputed the. no reaching its determination guilty plea” In to his giving facts rise and shown, the Premo had been that finding do not contest that parties noted to the evidence and looked Court clearly Appendix (“App.”) not erroneous. 744; at Id. see it “formidable.” Premo, that was addition, Orocio does 12.1 (“[T]he against id. evidence him; also indeed, deny charges against Further, strong.”). petitioner] was [the Court, argument oral before this coun- rec- specifically importantly, and Court guilt. Further, Orocio’s ac- sel conceded deny did petitioner ognized that Government, cording to Orocio faced a charged. Id. the crimes committing mandatory years minimum sentence of ten by observing: concluded drug trafficking charge. his Plea coun- on guesses are [] and second Hindsight clearly negotiated what was an ex- sel so, more where inappropriate, often tremely plea agreement for Oro- favorable a full been entered without has and, following guilty plea, he was cio uncertainty that The added trial.... (six months) time served sentenced to extended, for- is no results when there supervised App. release. years two See history no to show mal actual record 43-44. trial charges played out at how the circumstances, including Under these alleging inade- against party

works to assert his factual inno- Orocio’s failure Counsel, too, faced quate assistance. lenity of the cence Government’s uncertainty. There is most sub- offer, that Orocio has not I conclude to show the claimant stantial burden his substantial burden of demonstrat- met plea process assistance. The ineffective probability that the result ing a reasonable justice system criminal brings to the proceeding have been differ- would certainty that must not stability and I Orocio failed Accordingly, believe ent. of collat- prospect be undermined prejudice prong establish the Strick- ... wit- challenges eral cases where affirm the District and I would land not presented nesses and evidence were denying petition for order Orocio’s Court’s bur- place. in the The substantial first a writ of error coram nobis. den to show ineffective assistance counsel, must the burden the claimant met has not been plea,

meet to avoid case. I Accordingly, although

Id. 745^46. supports the Premo decision

believe that minimum, it dem- at a jurisprudence,

our case that Orocio must "guilty plea presumed in this agree majority that a I with the 1. Majori- prevail. Op. inquiry.” Majority establish actual does not end Hill Op. ty 642-43. agree prejudice cannot be I further

Case Details

Case Name: United States v. Orocio

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 29, 2011

Citation: 645 F.3d 630

Docket Number: 10-1231

Court Abbreviation: 3rd Cir.