Additional Thoughts on Orocio


The Third Circuit Court of Appeals might be the first federal appellate court to rule on Padilla retroactivity but it certainly won’t be the last.  Indeed, as of this writing, the Government has sought a re-hearing, en banc, in Orocio, a request that will likely be granted, considering the import of the issues.  Here are some of my thoughts/observations on the case:

(1) The facts in Orocio were almost identical to those in Padilla (longtime lawful permanent resident; relatively minor drug charge) which apparently helped in persuading the Third Circuit to rule in Orocio’s favor.

(2) The postconviction vehicle of choice was a petition for a writ of error coram nobis; here, the defendant would have been out of time were he to file a 2255 habeas petition.  The court didn’t address any procedural issues related to this since the lower court had not done so.

(3) In deciding that Padilla announced an “old rule” and could therefore be applied retroactively, the Third Court looked simply to Strickland’s threshold standard of reasonableness, which, the Supreme Court has ruled, applies in the plea context.  According to the Third Circuit then “[f]ar from extending the Strickland rule into uncharted, Padilla reaffirmed defense counsel’s obligations to the criminal defendant during the plea process, a critical stage in the proceedings.”  And just because the Strickland standard is successfully applied to a new factual circumstance does not necessarily mean that it creates a “new rule” for retroactivity purposes — this is especially the case when the claim involves a “rule of general applicability” which was the product of the Strickland case.

(4) The Third Circuit overruled prior precent in finding that the petitioner made out a prima facie case for Strickland prejudice.  Thus, defendant’s no longer have to show so-called factual innocence; instead,  a defendant need only show that it would have been rational for him to reject the plea and proceed to trial, which appears to be a less onerous standard.  Under the reasoning of the Orocio court, in cases where deportation is a potential consequence of one’s plea-based conviction, it is almost always rational for a defendant to reject a plea and proceed to trial.  But that’s just my reading of the decision.

I post here the Third Circuit’s official opinion in Orocio.  The Government’s brief is here, the Appellant’s, here.  The Appellant’s reply brief is here.

One response to “Additional Thoughts on Orocio

  1. Can a court rule 11 plea colloquy (specifically a general warning regarding deportation) cure the prejudice from an affirmative mis advice by counsel? Thiis is a very important question that several recent cases have tried to tackle….would really appreciate a post dedicated to this question.

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