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.
The Third Circuit Court of Appeals has held in United States v. Orocio that Padilla announced an “old rule” and can therefore be applied retroactively. Although this was a 2-1 decision, the dissenting judge only took issue with the majority’s Strickland prejudice analysis.
In ruling that Padilla announced an “old rule” the Orocio court focused on Strickland’s bedrock standard of “reasonableness” under the circumstances. It matters not then that Strickland would eventually be applied to potentially novel factual circumstances. What matters is that the reviewing court looked to the reasonableness standard in determining whether there was a viable ineffective assistance of counsel claim. This is precisely what the Supreme Court did in Padilla.
The decision can be downloaded here.
In a well-reasoned and potentially significant opinion, the Minnesota Court of Appeals has held that Padilla did not announce a “new rule” of constitutional criminal procedure and therefore applies retroactively. In Campos v. State (Case No. A10-1395), the defendant, a legal permanent resident, pleaded to simple robbery and received a sentence of “365 days in the workhouse”, which, under immigration law, rendered the defendant deportable. The defendant later sought to withdraw his plea claiming ineffective assistance of counsel under Padilla. The trial court denied his motion, finding that Padilla could not be applied retroactively and that, in any event, the defendant did not receive ineffective assistance. The sole issue on appeal was whether the trial court erred in deciding that Padilla could not be applied retroactively.
Here is the operative passage on Padilla retroactivity in Campos:
Campos argues that Padilla merely applied the long-standing principles regarding ineffective assistance of counsel enunciated in Strickland to specific facts and did not announce a new rule of constitutional criminal procedure. We agree. Given (1) the procedural posture of Padilla (a collateral attack on a guilty plea); (2) the clear references in the opinion to its application to collateral proceedings attacking guilty pleas; (3) the analysis under long-standing principles of the right to effective assistance of counsel; and (4) the absence of any mention of retroactivity, the conclusion that the opinion does not announce a new rule of criminal procedure seems self-evident to this court. See Padilla, 559 U.S. at ___, 130 S. Ct. at 1478 (stating “[i]n this postconviction proceeding . . . ); 1485–86 (discussing “nature of relief secured by a successful collateral challenge to a guilty plea” and “collateral challenge to a conviction”).
It is notable that at the time the Supreme Court decided Padilla, Minnesota state law, like that of many other states, only required counsel to advise a defendant on the “direct consequences” of a guilty plea, deportation not being one such consequence. Recognizing that this doctrine had been “effectively overruled” by Padilla, the Campos court still found that Padilla did not constitute a “new rule” for retroactivity purposes. Why? Two reasons: because Padilla itself involved a collateral attack on a final conviction and also because a new rule is not invariably established every time Strickland is applied to a new set of facts as was the case in Padilla.
The decision in Campos can be downloaded here.
In a case with implications in the Padilla postconviction context, particularly in Georgia, the Supreme Court of Georgia recently reversed a trial court’s denial of a motion to withdraw a plea, finding that the trial court incorrectly relied on the plea colloquy of the defendant in determining that the defendant was not prejudiced by counsel’s misadvice as to a collateral consequence of his conviction — in this case, the amount of time the defendant had to serve before becoming eligible for parole. The trial court had denied the defendant’s motion to withdraw his plea because the defendant failed to voice his concerns about parole eligibility during his plea colloquy, instead stating that he “knew all his rights.” In the view of the trial court, this adversely affected the defendant’s credibility and amounted to a failure by the defendant to establish the prejudice prong of the two-part test for ineffective assistance. The Georgia Supreme Court rejected such reasoning as “an irrelevant basis to discredit appellant because, at the time, appellant had not in fact been correctly advise of his parole eligibility or its effect on his plea.”
Courts often reject Padilla claims on a similar basis — that is, citing a defendant’s failure to raise the immigration consequence issue during the plea colloquy or his acknowledgment that he knows his conviction may result in imminent deportation as evidence that either counsel was not ineffective or that the defendant was not prejudiced. See, e.g., Momah v. United States, Case No. 10-CV-369-A (N.D. Tex. Aug,. 30, 2010); United States v. Obonaga, Case No. 10-CV-2951 (E.D.N.Y. June 30, 2010). In light of Crowder, however, a defendant could well argue that his failure to raise immigration consequences during his plea colloquy has nothing whatsoever to do with proving IAC prejudice since he simply didn’t know, through the misadvice of counsel (or absence of advice), that immigration consequences was even a collateral issue of his conviction.
The decision in Crowder is available here.
There is pushback from supporters of immigrant rights.
From Loudon County, Virginia comes news of defiance by a trial judge against the recent ruling from the Virginia Supreme Court in Morris/Chan which limited the use of certain writs by attorneys seeking postconviction relief under Padilla v. Kentucky. In a 13-page opinion, the judge, Dean S. Worcester, granted a petition for writ of error coram vobis, finding a violation of Padilla because the petitioner was never advised by his attorney of the immigration consequences of his plea to felony petit larceny. Of course, the petitioner now faces the prospect of having to fight the larceny charge in trial or, more likely, to secure a agreement from the prosecutor in which he would plead to a non-deportable offense. The case is Commonwealth v. Edgar Luis Cabrera and the opinion is available here. The Washington Post has the story on Cabrera’s victory here.
Further up the eastern seaboard, in New Jersey, the Appellate Division reinstated a petition seeking postconviction relief under Padilla, which had been initially rejected by the trial court on the now increasingly common but no less incorrect basis of the petitioner’s plea colloquy with the court. The appellate court noted that the questions posed to the petitioner during his plea colloquy were never designed to determine whether the petitioner received the level of effective assistance of counsel that Padilla now mandates. Thus, it kicked the case back to the trial court for an evidentiary hearing. There is some discussion of Padilla retroactivity, none which factored into the court’s ruling, however. The case is State v. Frensel Gaitan and the opinion is available here.