In the first federal court of appeals decision to address the merits of whether Padilla v. Kentucky, 130 S.Ct. 1473 (2010), applies to convictions that became final prior to the date on which it was issued, the U.S. Court of Appeals for the Third Circuit held that Padilla is retroactive. United States v. Orocio, No. 10-1231, slip op. (3d Cir. June 29, 2011) (Fuentes, Chagares, and Pollak, J.). Judge Pollack wrote the panel’s decision; Judge Chagares concurred in part and dissented in part.
This case involved an LPR who pleaded guilty to simple possession of a controlled substance, 21 U.S.C. § 844(a), in 2004. He claimed that his plea attorney did not inform him of the immigration consequences of entering a plea, thus he was denied his Sixth Amendment right to effective assistance of counsel. Orocio, No. 10-1231, slip op. at 5. Because he long ago completed his sentence and is no longer in custody, he filed a petition for a writ of error coram nobis in an effort to vacate his conviction. Orocio, No. 10-1231, slip op. at 5 & n.4.
The Third Circuit first addressed the Supreme Court’s retroactivity analysis set forth in Teague v. Lane, 489 U.S. 288 (1989), in which the Court held that a new constitutional rule of criminal procedure is not applied retroactively except in two narrow circumstances. (I have discussed Teague in greater detail previously.) Orocio, No. 10-1231, slip op. at 11.
The government argued that Padilla recognized a new rule for two reasons. First, the government claimed that Padilla extended the Court’s long-standing ineffective assistance of counsel framework announced in Strickland v. Washington, 466 U.S. 668 (1984), “to a non-criminal setting—namely, the failure of criminal defense counsel to advise a client of the mandatory civil removal consequences of pleading guilty….” Orocio, No. 10-1231, slip op. at 12. “Second, the government argues that Padilla ‘clearly broke new ground regarding counsel’s duty to advise her client about [removal], and was not ‘dictated’ by prior Supreme Court precedent.’” Orocio, No. 10-1231, slip op. at 13.
The Third Circuit rejected both arguments. Rather than interpret Padilla as extending Strickland to a civil setting as the government urged, the court explained that “Padilla reaffirmed defense counsel’s obligations to the criminal defendant during the plea process, a critical stage in the proceedings.” Orocio, No. 10-1231, slip op. at 13.
And rather than adopt the government’s argument that Padilla departed from existing Supreme Court precedent, the Third Circuit concluded that “the Court straightforwardly applied the Strickland rule—and the norms of the legal profession that insist upon adequate warning to criminal defendants of immigration consequences—to the facts of Jose Padilla’s case.” Orocio, No. 10-1231, slip op. at 14.
As many lower courts have held (about which I have written on several occasions), the Third Circuit determined that Padilla is merely an application of Strickland to a new factual context. Orocio, No. 10-1231, slip op. at 14. This does not make Padilla a new rule of criminal procedure. On the contrary, this means that Padilla is “a new application of an ‘old rule’ in a manner dictated by precedent.” Orocio, No. 10-1231, slip op. at 18. Accordingly, the court “h[e]ld that, because Padilla followed directly from Strickland and long-established professional norms, it is an ‘old rule’ for Teague purposes and is retroactively applicable on collateral review.” Orocio, No. 10-1231, slip op. at 19.
Having decided that Padilla applies retroactively to Orocio’s conviction the court then turned to the merits of his claim that he was denied effective assistance of counsel. To satisfy Strickland’s two-prong test for determining ineffective assistance of counsel a petitioner must show, first, that plea counsel’s representation fell below an objective standard of reasonableness (i.e., that counsel’s performance was deficient) and, second, that that deficient performance prejudiced the petitioner.
The court had no trouble concluding that Orocio’s plea attorney did not meet an objective standard of reasonableness. Assuming the truth of Orocio’s statement in his affidavit that his attorney “did not inform him of the immigration consequences of the proposed guilty plea,” Orocio, No. 10-1231, slip op. at 5, the Third Circuit explained that “it is beyond cavil that Mr. Orocio’s counsel was constitutionally deficient under the first prong of the Strickland inquiry if, as is alleged, he did not advise Mr. Orocio of the adverse immigration consequences of his guilty plea to a controlled substance offense….” Orocio, No. 10-1231, slip op. at 23.
The court devoted more time to Strickland’s prejudice prong in part because it took the highly unusual step of overturning a prior Third Circuit decision. In United States v. Nino, 879 F.2d 101 (3d Cir. 1989), the Third Circuit imposed a “requirement that a defendant affirmatively show that he would have been acquitted in order to establish prejudice….” Orocio, No. 10-1231, slip op. at 25 (discussing Nino, 879 F.2d at 105).
An acquittal requirement, the court concluded, is not supported by the Supreme Court’s ineffective assistance jurisprudence post-Padilla. “The Supreme Court, however, requires only that a defendant have rationally gone to trial in the first place, and it has never required an affirmative demonstration of likely acquittal at such a trial as the sine qua non of prejudice,” the court explained. Orocio, No. 10-1231, slip op. at 24.
“Instead, ‘to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances,’ and a rational decision not to plead guilty does not focus solely on whether a defendant would have been found guilty at trial….” Orocio, No. 10-1231, slip op. at 24-25 (quoting Padilla, 130 S. Ct. at 1485). As such, Nino’s acquittal requirement “is no longer good law.” Orocio, No. 10-1231, slip op. at 25.
The proper prejudice inquiry, the court added, “must focus on whether Mr. Orocio, if made aware of the dire immigration consequences of the proposed guilty plea, could have reasonably chosen to go to trial even though he faced a drug distribution charge constituting an aggravated felony with a 10-year minimum sentence.” Orocio, No. 10-1231, slip op. at 26-27.
The court opined that going to trial would be reasonable under these circumstances. “For the alien defendant most concerned with remaining in the United States, especially a legal permanent resident, it is not at all unreasonable to go to trial and risk a ten-year sentence and guaranteed removal, but with the chance of acquittal and the right to remain in the United States, instead of pleading guilty to an offense that, while not an aggravated felony, carries ‘presumptively mandatory’ removal consequences.” Orocio, No. 10-1231, slip op. at 28.
Accordingly, “assuming Mr. Orocio can establish at an evidentiary hearing the facts that he has alleged in his affidavit, Mr. Orocio will have shown prejudice in the Strickland sense….” Orocio, No. 10-1231, slip op. at 31. The court remanded to the district court.