In a well-reasoned decision, the court (D.N.J.) in Gudiel-Soto v. United States denied a petition for writ of coram nobis by a Guatemalan immigrant who sought to challenge his conviction under Padilla. The Gudiel-Soto court ultimately declined to address the retroactivity question, finding that the petitioner failed to satisfy the second — prejudice — prong of the Strickland/Hill test. But not without stating the following:
The government argues that Gudiel-Soto’s factual allegations are inconsistent because they do not make clear whether his attorney failed to inform him of the risk of deportation, or misinformed him of the those risks. The Court does not find a material distinction. In Padilla, the Court explicitly declined to limit its holding to “affirmative misadvice.” 130 S. Ct. at 1484. An attorney’s complete failure to provide advice and “affirmative misadvice” both qualify as ineffective assistance of counsel. Id. Given the Supreme Court’s instruction and assuming petitioner’s allegations to be true, it is not difficult for him to show that his counsel’s performance fell below an objective standard of reasonableness. The Supreme Court said as much. See Padilla, 130 S. Ct. at 1486. The more significant question is whether Padilla should be given retroactive effect.
The retroactivity of Padilla has not yet been addressed by the Third Circuit, or any circuit court for that matter. Courts in this district have said that that the rule announced by the Supreme Court in Padilla was a new rule of constitutional criminal procedure under Teague v. Lane, 489 U.S. 288 (1989), and does not apply retroactively to cases challenged on collateral review. See United States v. Gilbert, Crim. No. 03-0349, 2010 WL 4134286, at *3 (D.N.J. Oct. 19, 2010); United States v. Hough, Crim. No. 02-0649, 2010 WL 5250996, at *3-4 (D.N.J. Dec. 17, 2010). But this Court recognizes that district courts are split on this issue. See, e.g., Martin v. United States, No. 09-1387, 2010 WL 3463949, at *3 (C.D. Ill. Aug. 25, 2010) (holding that Padilla did not create a new rule under Teague and was therefore retroactively applicable); United States v. Millan., Crim. No. 06-0458, 2010 WL 2557699, at * 1 (N.D. Fla. May 24, 2010) (holding same). This Court need not join that discussion now, because the Court finds that the petitioner cannot demonstrate prejudice sufficient to satisfy the second prong of the Strickland test.
The opinion is available here.