Chaidez v. U.S., No. 10–3623.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER, FLAUM, and WILLIAMS, Circuit Judges.
Citation655 F.3d 684
Decision Date30 November 2011
Docket NumberNo. 10–3623.
PartiesRoselva CHAIDEZ, Petitioner–Appellee,v.UNITED STATES of America, Respondent–Appellant.

655 F.3d 684

Roselva CHAIDEZ, Petitioner–Appellee,
v.
UNITED STATES of America, Respondent–Appellant.

No. 10–3623.

United States Court of Appeals, Seventh Circuit.

Argued June 10, 2011.Decided Aug. 23, 2011.Rehearing and Rehearing En Banc Denied Nov. 30, 2011.*


[655 F.3d 686]

Gerardo S. Gutierrez (argued), Attorney, Chicago, IL, for Petitioner–Appellee.David E. Bindi (argued), John F. Podliska, Manish S. Shah, Edmond E. Chang, Attorneys, Office of the United States Attorney, Chicago, IL, for Respondent–Appellant.Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.FLAUM, Circuit Judge.

In Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010), the Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation. The district court concluded that Padilla did not announce a new rule under the framework set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and consequently applied its holding to Petitioner Roselva Chaidez's collateral appeal. Because we conclude that Padilla announced a new rule that does not fall within either of Teague's exceptions, we reverse the judgment of the district court.1

I. Background

Chaidez entered the United States from her native Mexico in 1971, and became a lawful permanent resident in 1977. In June 2003, Chaidez was indicted on three counts of mail fraud in connection with a staged accident insurance scheme in which the loss to the victims exceeded $10,000. On the advice of counsel, Chaidez pled guilty to two counts on December 3, 2003. She was sentenced to four years' probation on April 1, 2004, and judgment was entered in her case on April 8, 2004. Chaidez did not appeal.

Federal law provides that an alien who is “convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). Chaidez's plea of guilty to a fraud involving a loss in excess of $10,000 rendered her eligible for removal from the United States as an aggravated felon. See 8 U.S.C. § 1101(a)(43)(M)(i). The government initiated removal proceedings in 2009, after Chaidez unsuccessfully filed an application for U.S. citizenship.

In an effort to avoid removal, Chaidez sought to have her conviction overturned. To that end, she filed a motion for a writ of coram nobis in her criminal case on January 25, 2010. She alleges ineffective assistance of counsel in connection with her decision to plead guilty, claiming that her defense attorney failed to inform her that a guilty plea could lead to removal. Chaidez maintains that she would not have pled guilty if she had been made aware of the immigration consequences of such a plea.

On March 31, 2010, while Chaidez's motion was pending before the district court, the Supreme Court issued its decision in Padilla. In a thoughtful opinion, Judge Gottschall acknowledged that this case presents a close call. She concluded that Padilla did not announce a new rule for Teague purposes, but rather was an application of the Court's holding in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Having concluded that Padilla applied to Chaidez's case, the district court considered the merits of her coram nobis petition. The court granted the petition and vacated Chaidez's conviction. The government appeals the district court's underlying ruling regarding the retroactive effect of Padilla.

[655 F.3d 687]

II. Discussion

The writ of coram nobis, available under the All Writs Act, 28 U.S.C. § 1651(a), provides a method for collaterally attacking a criminal conviction when a defendant is not in custody, and thus cannot proceed under 28 U.S.C. § 2255. United States v. Folak, 865 F.2d 110, 112–13 (7th Cir.1988). The writ is an extraordinary remedy, allowed only where collateral relief is necessary to address an ongoing civil disability resulting from a conviction. Godoski v. United States, 304 F.3d 761, 762 (7th Cir.2002). Because a writ of error coram nobis affords the same general relief as a writ of habeas corpus, Howard v. United States, 962 F.2d 651, 653 (7th Cir.1992), we proceed as we would in a habeas case. See United States v. Mandanici, 205 F.3d 519, 527 (2d Cir.2000) (applying Teague in a case involving a coram nobis petition); United States v. Swindall, 107 F.3d 831, 834 (11th Cir.1997) (same). Our review is de novo.

In Padilla, the Court considered the petitioner's claim that his counsel provided ineffective assistance by erroneously advising him that pleading guilty to a drug distribution charge would not impact his immigration status. The Kentucky Supreme Court had rejected Padilla's claim, concluding that advice regarding the collateral consequences of a guilty plea (“i.e., those matters not within the sentencing authority of the state trial court”), including deportation, is “outside the scope of representation required by the Sixth Amendment.” 130 S.Ct. at 1481. As the Padilla Court noted, many state and federal courts had similarly concluded that a defendant's Sixth Amendment right to effective assistance of counsel was limited to advice about the direct consequences of a guilty plea (i.e., length of imprisonment), and did not extend to information regarding collateral consequences (i.e., deportation). Id. However, in a majority opinion authored by Justice Stevens, the Padilla Court concluded that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” 130 S.Ct. at 1482. Noting that it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland, the Court declined to consider the appropriateness of the direct/collateral distinction generally. Id. at 1481. Rather, it found such a distinction “ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.” Id. at 1481–82.

The majority based that conclusion on “the unique nature of deportation”—specifically, its severity as a penalty and its close relationship to the criminal process. Id. at 1481. The Court noted that recent changes in federal immigration law, including the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), had served to further “enmesh[ ] criminal convictions and the penalty of deportation,” by making “removal nearly an automatic result for a broad class of noncitizen offenders.” Id. at 1478–81. Those changes convinced the Court that “deportation is an integral part ... of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes,” and cannot be “divorce[d] ... from the conviction.” Id. at 1480–81. As a result, the Court concluded that Strickland applied to Padilla's ineffective assistance claim. 130 S.Ct. at 1482.

The Court went on to consider the first Strickland prong—whether Padilla had established that his counsel's representation fell below an objective standard of reasonableness. In order to determine what constituted reasonable representation under

[655 F.3d 688]

the circumstances, the Court looked to prevailing professional norms set forth by the American Bar Association and numerous other authorities. Id. at 1482, 1485. The Court found that, dating back to the mid–1990s, those authorities had been in agreement that counsel must advise his or her client regarding the risk of deportation. Id. Thus, the Court held that defense counsel provides constitutionally deficient representation by failing to inform a defendant that a guilty plea carries a risk of deportation. Id. at 1486.

Chaidez seeks to have Padilla applied to her case on collateral review, despite the fact that the criminal case against her was final on direct review when Padilla was decided. Teague governs our analysis. Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). Under Teague, a constitutional rule of criminal procedure applies to all cases on direct and collateral review if it is not a new rule, but rather an old rule applied to new facts. Id. A new rule applies only to cases that still are on direct review, unless one of two exceptions applies. Id. In particular, a new rule applies retroactively on collateral review if (1) it is substantive or (2) it is a “ ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. (citations omitted).

The parties agree that if Padilla announced a new rule neither exception to non-retroactivity applies. Therefore, whether Padilla announced a new constitutional rule of criminal procedure is the sole issue before us. The district courts that have addressed that issue—including those in this circuit—are split. See United States v. Diaz–Palmerin, 2011 WL 1337326 (N.D.Ill. April 5, 2011) ( Padilla did not announce a new rule); Martin v. United States, 2010 WL 3463949 (C.D.Ill. Aug. 25, 2010) (same); United States v. Chavarria, 2011 WL 1336565 (N.D.Ind. April 7, 2011) (same); United States v. Laguna, 2011 WL 1357538 (N.D.Ill. April 11, 2011) ( Padilla announced a new rule); United States v. Aceves, 2011 WL 976706, at *3 (D.Hawai'i March 17, 2011) (collecting cases). The Third Circuit recently became the first of our sister circuits to weigh in, holding that Padilla simply applied the old Strickland rule, such that it is retroactively applicable on collateral review. United States v. Orocio, 645 F.3d 630, 640–42 (3d Cir.2011).

A rule is said to be new when it was not dictated by precedent existing at the time the defendant's conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060 (emphasis in original). That definition of what constitutes a new rule reflects the fact that Teague was developed in the context of federal habeas, which is designed “to ensure that state convictions comply with the...

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170 practice notes
  • Williams v. State, CR–12–1862.
    • United States
    • Alabama Court of Criminal Appeals
    • April 4, 2014
    ...416. "A new rule applies only to cases that still are on direct review, unless one of two exceptions applies." Chaidez v. United States, 655 F.3d 684, 689 (7th Cir.2011).If the Miller rule is a new rule, this Court must then determine whether "the rule[ ] come[s] within ... the ... exceptio......
  • In re Jagana, No. 66682–7–I.
    • United States
    • Court of Appeals of Washington
    • August 13, 2012
    ...1486. 65.Id. at 1483. 66.Id. 67.Id. 68.See U.S. v. Orocio, 645 F.3d 630 (3d Cir.2011)( Padilla is not a “new” rule); Chaidez v. U.S., 655 F.3d 684 (7th Cir.2011)( Padilla is a “new” rule), cert. granted,––– U.S. ––––, 132 S.Ct. 2101, 182 L.Ed.2d 867 (2012); U.S. v. Chang Hong, 671 F.3d 1147......
  • Ex parte Ali, No. 03–11–00323–CR.
    • United States
    • Court of Appeals of Texas
    • May 17, 2012
    ...(holding that Padilla announced a new rule of constitutional law and thus does not apply retroactively) and Chaidez v. United States, 655 F.3d 684, 687–94 (7th Cir.2011) (same). 6. In this case, the “proceeding in question” is a jury trial. 7. Counsel added that on at least one occasion, he......
  • Aguilar v. State, No. 14–11–00227–CR.
    • United States
    • Court of Appeals of Texas
    • July 10, 2012
    ...courts in other jurisdictions have disagreed, holding that Padilla does not apply retroactively. See, e.g., Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.2011), cert. granted,––– U.S. ––––, 132 S.Ct. 2101, 182 L.Ed.2d 867 (2012); United States v. Hong, 671 F.3d 1147, 1150–59 (10th Ci......
  • Request a trial to view additional results
170 cases
  • Williams v. State, CR–12–1862.
    • United States
    • Alabama Court of Criminal Appeals
    • April 4, 2014
    ...416. "A new rule applies only to cases that still are on direct review, unless one of two exceptions applies." Chaidez v. United States, 655 F.3d 684, 689 (7th Cir.2011).If the Miller rule is a new rule, this Court must then determine whether "the rule[ ] come[s] within ... the ... exceptio......
  • In re Jagana, No. 66682–7–I.
    • United States
    • Court of Appeals of Washington
    • August 13, 2012
    ...1486. 65.Id. at 1483. 66.Id. 67.Id. 68.See U.S. v. Orocio, 645 F.3d 630 (3d Cir.2011)( Padilla is not a “new” rule); Chaidez v. U.S., 655 F.3d 684 (7th Cir.2011)( Padilla is a “new” rule), cert. granted,––– U.S. ––––, 132 S.Ct. 2101, 182 L.Ed.2d 867 (2012); U.S. v. Chang Hong, 671 F.3d 1147......
  • Ex parte Ali, No. 03–11–00323–CR.
    • United States
    • Court of Appeals of Texas
    • May 17, 2012
    ...(holding that Padilla announced a new rule of constitutional law and thus does not apply retroactively) and Chaidez v. United States, 655 F.3d 684, 687–94 (7th Cir.2011) (same). 6. In this case, the “proceeding in question” is a jury trial. 7. Counsel added that on at least one occasion, he......
  • Aguilar v. State, No. 14–11–00227–CR.
    • United States
    • Court of Appeals of Texas
    • July 10, 2012
    ...courts in other jurisdictions have disagreed, holding that Padilla does not apply retroactively. See, e.g., Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.2011), cert. granted,––– U.S. ––––, 132 S.Ct. 2101, 182 L.Ed.2d 867 (2012); United States v. Hong, 671 F.3d 1147, 1150–59 (10th Ci......
  • Request a trial to view additional results

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