U.S. v. Orocio

• Decision Date: 29 June 2011
• Docket Number: No. 10–1231.,10–1231.
• Citation: 645 F.3d 630
• Parties: UNITED STATES of Americav.Gerald OROCIO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

645 F.3d 630

UNITED STATES of America

v.Gerald OROCIO, Appellant.

No. 10–1231.

United States Court of Appeals, Third Circuit.

Argued Jan. 24, 2011.Opinion filed: June 29, 2011.

John R. Alcorn, Esq. (Argued), Sophie M. Alcorn, Esq., Law Offices of John R. Alcorn, Irvine, CA, for Appellant.Mark E. Coyne, Esq., Camelia Valdes, Office of the United States Attorney, Newark, NJ, Norman Gross, Esq. (Argued), Office of the United States Attorney, Camden, NJ, for Appellee.Before: FUENTES and CHAGARES, Circuit Judges, and POLLAK, District Judge.^*

OPINION OF THE COURT

POLLAK, District Judge.

On October 7, 2004, pursuant to a plea agreement and on advice of counsel, Gerald Orocio pled guilty in the United States District Court for the District of New Jersey to one count of simple possession of a controlled substance in violation of 21 U.S.C. § 844(a). This 2004 conviction triggered removal proceedings initiated against Mr. Orocio some years later. ¹ Mr. Orocio then filed a petition for writ of error coram nobis in the District Court to challenge the plea conviction, arguing that his attorney's failure to advise him of the immigration consequences of pleading guilty to a federal drug charge constituted ineffective assistance of counsel in violation of the Sixth Amendment rights pronounced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On January 6, 2010, the District Court denied Mr. Orocio's petition, and Mr. Orocio filed the timely appeal now before us. During the pendency of this appeal, the Supreme Court decided Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). In Padilla, the Court, addressing for the first time a factual scenario akin to Mr. Orocio's, ruled that Strickland requires plea counsel to advise an alien defendant of the potential removal consequences of a recommended plea. The government contends that Padilla's holding is not pertinent to Mr. Orocio's situation for the reason that Padilla, decided in 2010, announced a “new rule ... not dictated by precedent existing at the time [2005] the defendant's conviction became final.” Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Hence, in the government's view, Padilla lacks retroactive applicability. For the reasons that follow, we hold that Padilla is retroactively applicable on collateral review, and we therefore vacate the judgment of the District Court and remand for further proceedings.

I. Background²

Gerald Orocio was born in the Philippines in 1977, and he became a lawful permanent resident of the United States on September 4, 1997. Mr. Orocio was arrested in New Jersey on October 3, 2003, and he was later charged by indictment in federal court with drug trafficking. At that time, he was questioned regarding his immigration status, and he advised that he was a lawful permanent resident. He was initially assigned a public defender, but he discharged her because she recommended that he plead guilty to the trafficking offense and serve a ten-year sentence. A private attorney, Joseph A. Portelli, was retained in June 2004, and he represented Mr. Orocio in the balance of the criminal proceedings.

In his coram nobis petition, Mr. Orocio has alleged that on or about October 7, 2004, Mr. Portelli told him that the government had offered a plea agreement in which he would be charged with controlled substance possession instead of drug trafficking and would receive a sentence of time served plus a two-year period of supervised release. According to Mr. Orocio, Mr. Portelli did not inform him of the immigration consequences of the proposed guilty plea. Mr. Orocio accepted the plea agreement, and on October 7, 2004, he pled guilty to one count of possession of a controlled substance (methamphetamine) in contravention of 21 U.S.C. § 844. He was sentenced on March 10, 2005, to time served and two years of supervised release.

Mr. Orocio successfully completed his sentence and was discharged from supervision in 2007. Subsequent to completion of his sentence, Mr. Orocio was placed in removal proceedings.³ He consulted with an immigration attorney, his present counsel, who advised him that removal proceedings were initiated because he had pled guilty to a controlled substance offense and was therefore facing mandatory deportation. In hopes of halting the removal proceedings, Mr. Orocio filed a petition for a writ of error coram nobis ⁴ in the District Court on November 30, 2009, and removal proceedings were stayed pending resolution of the petition. The basis of Mr. Orocio's petition was that his plea counsel, Mr. Portelli, failed in two ways to provide the effective assistance of counsel required by Strickland. First, Mr. Orocio argued that Mr. Portelli was ineffective because he did not try to secure for Mr. Orocio a guilty plea pursuant to the Federal First Offender Act, 18 U.S.C. § 3607—a disposition that might ultimately have resulted in dismissal of the charges. Second, Mr. Orocio argued that Mr. Portelli was ineffective because he did not advise Mr. Orocio of the immigration consequences—namely, mandatory removal—of pleading guilty to drug possession. Mr. Orocio contends that he would not have pled guilty had he been correctly advised of that near certainty.

The District Court denied the petition on January 6, 2010. After identifying Strickland as providing the governing standard, the District Court dismissed the petition without a hearing on the ground that, even if his plea counsel was ineffective, Mr. Orocio had failed to demonstrate prejudice as required under Strickland. Mr. Orocio timely appealed.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over the petition for writ of error coram nobis, made available to federal courts in criminal matters under the All Writs Act, 28 U.S.C. § 1651(a), in aid of the courts' jurisdiction over criminal proceedings pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

This court has not yet articulated the precise standard of review to apply to a district court's denial of a petition for writ of error coram nobis. The parties disagree as to the appropriate standard, with Mr. Orocio arguing for plenary review, and the government arguing for abuse of discretion. Other circuits have also considered this issue; the Courts of Appeals for the Sixth and Ninth Circuits have held that the “determination of legal issues in coram nobis proceedings” should be reviewed de novo, but that findings of fact are reviewed for clear error. United States v. Johnson, 237 F.3d 751, 755 (6th Cir.2001); Hirabayashi v. United States, 828 F.2d 591, 594 (9th Cir.1987). We find this standard to be the most logically appropriate and therefore adopt it.

III. Discussion

We begin by examining the Supreme Court's Padilla decision and its implications. Next, given that (a) Mr. Orocio's guilty plea was in 2004, (b) Mr. Orocio completed his sentence in 2007, and (c) Padilla was decided in 2010, we assess whether Mr. Orocio is entitled, retroactively, to the benefit of that ruling. Whether Padilla is retroactive is a Teague v. Lane problem, and we hold that, under Teague v. Lane, Padilla is retroactively applicable. We then examine the two Strickland prongs—ineffective assistance of counsel and prejudice. With respect to the first prong, we first evaluate whether Mr. Orocio has alleged a prima facie ineffective assistance claim under Padilla. We hold that he has. Finally, we turn to prejudice. The District Court, confining its analysis to prejudice, held as a matter of law that Mr. Orocio had not been prejudiced because he could not establish that, had he rejected the proffered guilty plea, there was a reasonable probability that he would not have been found guilty at trial. We hold that Mr. Orocio has alleged sufficient prejudice under Strickland and subsequent case law to warrant a remand to determine what options he could have pursued.

A. The Supreme Court decides Padilla

Soon after the District Court denied Mr. Orocio's coram nobis petition and this appeal was docketed, the Supreme Court decided Padilla v. Kentucky, a case that goes to the heart of Mr. Orocio's claim. The Padilla decision clarified the Strickland standard for ineffective assistance of counsel in the context of the immigration consequences of plea agreements. The Padilla Court ruled that counsel, in order to be constitutionally competent, has an obligation to advise criminal defendants whether an offense to which they may plead guilty will result in removal from the United States. 130 S.Ct. at 1478.

To do so, the Court first had to determine whether Strickland applied at all to advice concerning the immigration consequences of a plea. Eschewing the view of a number of state and federal courts that immigration consequences were “collateral” and thereby beyond the scope of the representation required by the Sixth Amendment, the Court held that because “deportation is a particularly severe ‘penalty,’ ... advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” Id. at 1481–82. Thus, the Court highlighted the need to apply Strickland's two-prong test for ineffective assistance of counsel in Jose Padilla's case: (1) the performance prong—i.e., “whether counsel's representation ‘fell below an objective standard of reasonableness' ”; and (2) the prejudice prong—i.e., “whether ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ” Id. at 1482 (quoting Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052).

In addressing the first Strickland prong, the Court concluded that Jose Padilla “ha[d] sufficiently alleged constitutional deficiency” in his attorney's failure to advise him of a plea's immigration consequences. Id. at 1483. The Court noted that “the terms of the relevant immigration statute are...