United States v. Orocio

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 10-1231

_______________

UNITED STATES OF AMERICA

v.

GERALD OROCIO,

Appellant

_______________

On Appeal from the United States District Court

For the District of New Jersey

(D.C. Criminal Action No. 2-04-00725-001)

District Judge: Honorable William H. Walls

_______________

Argued January 24, 2011

_______________

Before: FUENTES and CHAGARES, Circuit Judges, and

POLLAK, District Judge *

*

Honorable Louis H. Pollak, Senior Judge of the United

States District Court for the Eastern District of Pennsylvania,

sitting by designation.

(Opinion filed: June 29, 2011)

John R. Alcorn, Esq. (Argued)

Sophie M. Alcorn, Esq.

Law Offices of John R. Alcorn

2212 Dupont Drive

Suite V

Irvine, CA 92612

Counsel for Appellant

Mark E. Coyne, Esq.

Camelia Valdes

Office of the United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102-0000

- and -

Norman Gross, Esq. (Argued)

Office of the United States Attorney

Camden Federal Building & Courthouse

401 Market Street, 4th Floor

P.O. Box 2098

Camden, NJ 08101-0000

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

2

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 (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 (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 (1989). Hence, in

the government’s view, Padilla lacks retroactive

applicability. For the reasons that follow, we hold that

1

Removal proceedings were initiated in 2007 or later. The

record does not establish the precise date.

3

Padilla is retroactively applicable on collateral review, and

we therefore vacate the judgment of the District Court and

remand for further proceedings.

I. Background 2

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

2

The only source of facts underlying the allegations

contained in this section, apart from the official record in the

underlying criminal proceeding, is Mr. Orocio’s two-page

affidavit filed in support of his petition for writ of error coram

nobis. See App. 38–39 (Orocio Aff.). No other supporting

affidavits, and no opposing affidavits, were submitted, and

the District Court dismissed the petition without conducting

an evidentiary hearing.

4

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

3

See note 1, supra.

4

The writ of error coram nobis “is used to attack allegedly

invalid convictions which have continuing consequences,

when the petitioner has served his sentence and is no longer

‘in custody’ for purposes of 28 U.S.C. § 2255.” United States

v. Stoneman, 870 F.2d 102, 105–06 (3d Cir. 1989) (citing

United States v. Morgan, 346 U.S. 502, 512–13 (1954)). The

writ is available to “persons not held in custody [to] attack a

conviction for fundamental defects, such as ineffective

assistance of counsel.” United States v. Rad-O-Lite of

Philadelphia, Inc., 612 F.2d 740, 744 (3d Cir. 1979). Coram

nobis relief is “reserved for exceptional circumstances,”

United States v. Osser, 864 F.2d 1056, 1059 (3d Cir. 1988),

and it is appropriate only “to correct errors for which there

5

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 (1) 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

(2) 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

was no remedy available at the time of trial and where ‘sound

reasons’ exist for failing to seek relief earlier,” Stoneman, 870

F.2d at 106 (quoting Morgan, 346 U.S. at 512). Because the

District Court did not address the requirements for coram

nobis relief other than the fundamental defect of Strickland

error, we leave such issues to be addressed in the first

instance on remand.

6

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

7

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

8

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).

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 succinct, clear, and explicit in defining the removal

consequence for Padilla’s conviction,” which was a

controlled substance offense rendering him removable

pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). Id. The Court went

on to observe that:

Padilla’s counsel could have easily determined

that his plea would make him eligible for

[removal] simply from reading the text of the

statute, which addresses not some broad

classification of crimes but specifically

commands removal for all controlled substances

convictions except for the most trivial of

marijuana possession offenses. Instead,

Padilla’s counsel provided him false assurance

that his conviction would not result in his

removal from this country. This is not a hard

case in which to find deficiency: The

consequences of Padilla’s plea could easily be

9

determined from reading the removal statute,

his [removal] was presumptively mandatory,

and his counsel’s advice was incorrect.

Id. 5 The Court then rejected the suggestion of the Solicitor

General, as amicus curiae, to limit Strickland in the context

of Padilla’s claim only to the extent he alleged affirmative

misadvice about immigration consequences, as opposed to the

mere failure to provide any advice at all. Id. at 1484–86. In

declining to follow the Solicitor General’s recommendation,

the Court said “[i]t is quintessentially the duty of counsel to

provide her client with available advice about an issue like

[removal] and the failure to do so clearly satisfies the first

prong of the Strickland analysis.” Id. at 1484 (internal

quotation marks omitted).

The Padilla Court expressly refrained from

determining whether Jose Padilla had met the second

Strickland prong and demonstrated that he had been

prejudiced. That issue was remitted “to the Kentucky courts

to consider in the first instance.” Padilla, 130 S. Ct. at 1483–

84.

B. Retroactivity of Padilla

Because Padilla was decided after Mr. Orocio’s

5

Recognizing that “[i]mmigration law can be complex,” the

Court also held that “[w]hen the law is not succinct and

straightforward . . ., a criminal defense attorney need do no

more than advise a noncitizen client that pending criminal

charges may carry a risk of adverse immigration

consequences.” 130 S. Ct. at 1483. This, like Padilla, is not

such a case.

10

conviction became final, we must consider whether

retroactivity principles bar the application of Padilla’s

holding to this case.

1. Teague and retroactivity

In Teague v. Lane, 489 U.S. 288 (1989), the Supreme

Court set forth two regimes governing the retroactive

application of constitutional principles to criminal cases.

Teague divided the world into two categories, “old rules” and

“new rules.” A rule is a “new rule” for Teague purposes “if

the result was not dictated by precedent existing at the time

the defendant’s conviction became final.” Id. at 301. Teague

held that a “new rule” is retroactively applicable to cases on

collateral review if and only if one of two exceptions apply:

(1) the new rule places certain kinds of criminal conduct

beyond the power of the criminal law-making authority to

proscribe; or (2) the new rule is a “watershed rule[] of

criminal procedure” that “alter[s] our understanding of the

bedrock procedural elements that must be found to vitiate the

fairness of a particular conviction.” Teague, 489 U.S. at 311

(emphasis in original) (internal quotation marks omitted). By

contrast, an “old rule,” applies on both direct and collateral

review. See Whorton v. Bockting, 549 U.S. 406, 416 (2007).

Thus, if Padilla did not announce a “new rule,” then

Mr. Orocio would be entitled to invoke the protection of

Padilla even though his conviction had achieved finality and

his sentence was fully served prior to Padilla. If Padilla

announced a “new rule,” however, then Mr. Orocio would

have to demonstrate that it falls within one of the very narrow

Teague exceptions.

11

2. Does Padilla apply retroactively under

Teague?

The government argues that Padilla is a “new rule” in

two ways.

First, it argues that Padilla is a “new rule” because it

has extended Strickland’s Sixth Amendment analysis to a

non-criminal setting—namely, the failure of criminal defense

counsel to advise a client of the mandatory civil removal

consequences of pleading guilty to drug trafficking charges.

It is true that the precise question of whether the civil removal

consequences of a plea are within the scope of Strickland had

never been addressed by the Supreme Court before Padilla.

But that is an incomplete approach to the Strickland question

presented in this case. The question we confront is whether

counsel has been constitutionally adequate in advising a

criminal defendant whether to accept a plea bargain. The

Court held only one year after Strickland that “the same two-

part standard [of Strickland] . . . [is] applicable to ineffective-

assistance claims arising out of the plea process,” and a court

must therefore determine “whether counsel’s advice [to

accept a plea] was within the range of competence demanded

of attorneys in criminal cases.” See Hill v. Lockhart, 474

U.S. 52, 56–57 (1985) (internal quotation marks omitted). In

Padilla, the Court relied on “recent changes in our

immigration law [that] have made removal nearly an

automatic result for a broad class of noncitizen offenders.”

Padilla, 130 S. Ct. at 1481. Moreover, the Padilla Court

noted that it had “never applied a distinction between direct

and collateral consequences to define the scope of

constitutionally ‘reasonable professional assistance’ required

under Strickland,” a distinction “ill-suited” for removal

scenarios. Id. at 1481–82. The application of Strickland to

12

the Padilla scenario is not so removed from the broader

outlines of precedent as to constitute a “new rule,” for the

Court had long required effective assistance of counsel on all

“important decisions,” Strickland, 466 U.S. at 688, in plea

bargaining that could “affect[] the outcome of the plea

process,” Hill, 474 U.S. at 59. In that light, Padilla is best

read as merely recognizing that a plea agreement’s

immigration consequences constitute the sort of information

an alien defendant needs in making “important decisions”

affecting “the outcome of the plea process,” and thereby

come within the ambit of the “more particular duties to

consult with the defendant” required of effective counsel.

Strickland, 466 U.S. at 688. Far from extending the

Strickland rule into uncharted territory, Padilla reaffirmed

defense counsel’s obligations to the criminal defendant during

the plea process, a critical stage in the proceedings.

Second, the government argues that Padilla “clearly

broke new ground regarding counsel’s duty to advise her

client about [removal], and was not ‘dictated’ by prior

Supreme Court[6] precedent.” We are convinced that Padilla

6

However, nothing in Teague restricts the dictating source to

Supreme Court precedent. That is a condition for habeas

relief under AEDPA, but not a requirement under Teague.

See Williams v. Taylor, 529 U.S. 362, 412 (2000) (O’Connor,

J., for the Court) (“With one caveat, whatever would qualify

as an old rule under our Teague jurisprudence will constitute

‘clearly established Federal law, as determined by the

Supreme Court of the United States’ under [AEDPA]. The

one caveat, as the statutory language makes clear, is that

[AEDPA] restricts the source of clearly established law to this

Court’s jurisprudence.” (citation omitted)).

13

did not “br[eak] new ground” in holding that counsel must

inform a criminal defendant of the immigration consequences

of a guilty plea in order to be constitutionally adequate.

Although the Padilla Court acknowledged that some courts

had previously held that the “‘failure of defense counsel to

advise the defendant of possible [removal] consequences is

not cognizable as a claim for ineffective assistance of

counsel,’” 130 S. Ct. at 1481, the Court straightforwardly

applied the Strickland rule—and the norms of the legal

profession that insist upon adequate warning to criminal

defendants of immigration consequences—to the facts of Jose

Padilla’s case. See id. at 1482 (“Strickland applies to

Padilla’s claim. . . . Under Strickland, we first determine

whether counsel’s representation fell below an objective

standard of reasonableness.” (internal quotation marks

omitted)).

At bottom, our inquiry focuses on whether Padilla’s

application of the Strickland standard to a new factual context

is a “new rule” for Teague purposes. The Strickland standard

“provides sufficient guidance for resolving virtually all

ineffective-assistance-of-counsel claims.” Lewis v. Johnson,

359 F.3d 646, 655 (3d Cir. 2004) (internal quotation marks

omitted). In Lewis, the most recent instance in which we

performed this kind of analysis, we sought to determine

whether the Supreme Court’s decision in Roe v. Flores-

Ortega, 528 U.S. 470, 480 (2000), holding that counsel has a

duty to consult with his client about taking an appeal under

certain circumstances, announced a new rule. We found that

it did not, and in doing so, discussed in some detail the

appropriate retroactivity analysis for cases involving

Strickland.

Looking to the intersection of Strickland and Teague,

14

we made three observations that guide the “new rule” inquiry:

(1) “case law need not exist on all fours to allow for a finding

under Teague that the rule at issue was dictated by . . .

precedent,” Lewis, 359 F.3d at 655; (2) “Strickland is a rule

of general applicability which asks whether counsel’s conduct

was objectively reasonable and conformed to professional

norms based ‘on the facts of the particular case, viewed as of

the time of counsel’s conduct,’” id. (quoting Strickland, 466

U.S. at 690 (emphasis in quotation)); and (3) “‘it will be the

infrequent case that yields a result so novel that it forges a

new rule, one not dictated by precedent,’” id. (quoting Wright

v. West, 505 U.S. 277, 308–09 (1992) (Kennedy, J.,

concurring in judgment) (emphasis omitted)).

“[T]he Strickland Court identified ‘certain basic

duties’ that . . . criminal defense attorneys must carry out to

perform competently within the meaning of the Sixth

Amendment,” including a duty “to consult with the defendant

on important decisions.” Id. at 656 (internal quotation marks

omitted) (emphasis omitted). When the Supreme Court

decides a Strickland case with novel facts, we do not place

“emphasis on the particular duty identified by the [Supreme]

Court . . . as a basis for classifying th[e] rule as ‘new’ for

Teague purposes.” Id. at 655 (emphasis in original). We

look instead to “precedents and then-existing professional

norms” to determine whether the decision “broke . . . new

ground.” Id. at 656.

Padilla followed from the clearly established

principles of the guarantee of effective assistance of counsel.

Strickland and Hill required counsel to advise criminal

defendants at the plea stage in accordance with precedent and

prevailing professional norms to ensure that the defendant

makes an informed, knowing, and voluntary decision whether

15

to plead guilty. Padilla is set within the confines of

Strickland and Hill, as it concerns what advice an attorney

must give to a criminal defendant at the plea stage. When

Mr. Orocio pled guilty, it was “hardly novel” for counsel to

provide advice to defendants at the plea stage concerning the

immigration consequences of a guilty plea, undoubtedly an

“important decision” for a defendant. See Padilla, 130 S. Ct.

at 1485 (“For at least the past 15 years, professional norms

have generally imposed an obligation on counsel to provide

advice on the [removal] consequences of a client’s plea.”).

Padilla “merely clarified the law as it applied to the particular

facts of that case.” Cf. Lewis, 359 F.3d at 655. We therefore

hold that Padilla “broke no new ground in holding the duty to

consult also extended to counsel’s obligation to advise the

defendant” of the immigration consequences of a guilty plea

and “did not ‘yield[] a result so novel that it forge[d] a new

rule.’” See id. at 657, 655 (alterations in original).

The government relies heavily on Justice Alito’s

observation in Padilla that “[u]ntil today, the longstanding

and unanimous position of the federal courts was that

reasonable defense counsel generally need only advise a

client about the direct consequences of a criminal

conviction.” 7 130 S. Ct. at 1487 (Alito, J., concurring in the

7

Justice Alito cited to two federal appellate cases—one

decided in 2000 and the other in 1993—and a 2002 article by

Chin & Holmes in the Cornell Law Review. See 130 S. Ct. at

1487 (Alito, J., concurring in the judgment) (citing United

States v. Gonzalez, 202 F.3d 20 (1st Cir. 2000), United States

v. Banda, 1 F.3d 354 (5th Cir. 1993), and Chin & Holmes,

Effective Assistance of Counsel and the Consequences of

Guilty Pleas, 87 Cornell L. Rev. 697, 699 (2002)).

16

judgment). The government sees this as convincing evidence

that Padilla announced a “new rule.” However, Strickland

did not freeze into place the objective standards of attorney

performance prevailing in 1984, never to change again. See

466 U.S. at 688 (“The Sixth Amendment . . . relies instead on

the legal profession’s maintenance of standards . . . .”

(emphasis added)). The Court’s opinion in Padilla reiterated

this reference to “the practice and expectations of the legal

community: ‘The proper measure of attorney performance

remains simply reasonableness under prevailing professional

norms.’” 130 S. Ct. at 1482 (quoting Strickland, 466 U.S. at

688); id. (“We have long recognized that ‘[p]revailing norms

of practice as reflected in American Bar Association

Standards and the like . . . are guides to determining what is

reasonable . . . .” (alterations in original) (quoting Strickland,

466 U.S. at 688)).

Lower court decisions not in harmony with Padilla

were, with few exceptions, decided before 1995 and pre-date

the professional norms that, as the Padilla court recognized,

had long demanded that competent counsel provide advice on

the removal consequences of a client’s plea. 8 Padilla, 130 S.

8

The large bulk of the authority that excused counsel from

providing advice on removal consequences predates the

professional norms identified in Padilla. See Chin & Holmes,

87 Cornell L. Rev. at nn.67–124 (citing federal and state

cases from 1972 to 2001, the bulk of which are pre-1995));

see also Miller v. State, 11 A.3d 340, 349–51 (Md. Ct. Spec.

App. 2010) (citing federal appellate cases from 1985, 1988,

1989, 1990, 1992, 1993, 2000, and 2003). Judicial opinions

vintage 1995 or older, of course, involve facts from even

earlier dates.

17

Ct. at 1485. While at the time of those early decisions courts

had not yet recognized that a lawyer fails in his professional

duty when he does not advise an alien client of the potentially

grave immigration consequences of a guilty plea, by 2004,

when Mr. Orocio pled guilty, the norms of effective

assistance—norms keyed to contemporaneous professional

standards—had become far more demanding.

Every Strickland claim requires a fact-specific inquiry,

but it is not the case that every Strickland ruling on new facts

requires the announcement of a “new rule.” We have held in

Lewis, 359 F.3d at 655, quoting Justice Kennedy’s

observations in Wright, 505 U.S. at 308–09 (Kennedy, J.,

concurring in the judgment), that under rules that require a

“‘case-by-case examination of the evidence, . . . we can

tolerate a number of specific applications without saying that

those applications themselves create a new rule.’”

Accordingly, a court’s disposition of each individual factual

scenario arising under the long-established Strickland

standard is not in each instance a “new rule,” but rather a new

application of an “old rule” in a manner dictated by

precedent. Padilla is no different.

Indeed, close scrutiny of the Padilla opinion leads us

to consider it not unlikely that the Padilla Court anticipated

the retroactive application of its holding on collateral review

when it considered the effect its decision would have on final

convictions:

We have given serious consideration to the

concerns that the Solicitor General, respondent,

and amici have stressed regarding the

importance of protecting the finality of

18

convictions obtained through guilty pleas.[9]

We confronted a similar “floodgates” concern

in Hill, but nevertheless applied Strickland to a

claim that counsel had failed to advise the client

regarding his parole eligibility before he

pleaded guilty. . . . A flood did not follow in

that decision’s wake.

130 S. Ct. at 1484–85 (citation omitted) (footnote omitted).

We therefore hold that, because Padilla followed directly

from Strickland and long-established professional norms, it is

an “old rule” for Teague purposes and is retroactively

applicable on collateral review. 10 Mr. Orocio is thus entitled

9

Kentucky, the respondent in Padilla, was concerned that a

ruling in Padilla’s favor “would open the door to innumerable

challenges to pleas” and “greatly lessen the certainty and

finality sought by use of the plea process.” Br. for Resp’t at

19, Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-651),

2009 WL 2473880. The United States, as amicus curiae in

support of affirmance, was particularly concerned about a

“strain [on] judicial and prosecutorial resources” caused by

“an influx of challenges to long-final pleas.” Br. of the

United States at 19, Padilla v. Kentucky, 130 S. Ct. 1473

(2010) (No. 08-651), 2009 WL 2509223. Twenty-seven

states, as amici curiae in support of Kentucky, emphasized

their concern that “even an incremental weakness in the

finality of these pleas may have a dramatic effect on the

integrity and effectiveness of the U.S. system of justice.” Br.

of La. et al. at 10–11, Padilla v. Kentucky, 130 S. Ct. 1473

(2010) (No. 08-651), 2009 WL 2564713.

10

In the year since Padilla was decided, state courts and

federal district courts considering Padilla’s retroactivity have

19

to the benefit of its holding.

C. Under Padilla and Strickland, was Mr.

Orocio’s plea counsel ineffective?

Mr. Orocio alleges that neither his prior counsel nor

Mr. Portelli advised him that accepting the proposed guilty

pleas would result in near-mandatory removal from the

United States. We address a question left unanswered by the

District Court: did this alleged failure to advise constitute

ineffective assistance of counsel under the first prong of the

Strickland test? Our analysis is rendered straightforward by

Padilla. Padilla recognized that the failure of defense

counsel to warn a defendant that a plea would make the

defendant eligible for removal is a constitutional defect in

representation that satisfies the first prong of the Strickland

test. 130 S. Ct. at 1483. The facts of Padilla closely mirror

those presented here, and we therefore hold that Mr. Orocio’s

affidavit sufficiently alleges that his counsel was

constitutionally deficient.

Jose Padilla was subject to removal for a controlled

substance offense. His attorney affirmatively misled him,

telling Padilla prior to Padilla’s guilty plea that he “did not

have to worry about immigration status since he had been in

the country so long.” Id. at 1478. While Mr. Orocio does not

reached differing conclusions. See, e.g., Doan v. United

States, 760 F. Supp. 2d 602 (E.D. Va. 2011) (Padilla not

retroactive); United States v. Chaidez, 730 F. Supp. 2d 896

(N.D. Ill. 2010) (Padilla retroactive); Miller v. State, 11 A.3d

340 (Md. Ct. Spec. App. 2010) (Padilla not retroactive);

People v. Garcia, 29 Misc. 3d 756 (N.Y. Sup. Ct. 2010)

(Padilla retroactive).

20

allege that Mr. Portelli affirmatively misled him, Mr. Orocio

does allege that Mr. Portelli wholly failed to advise him of the

near-certain removal consequence of pleading guilty to a

controlled substance offense. The Padilla Court expressly

rejected any requirement that a defendant be affirmatively

misled; for cases such as those in which the consequences can

be divined “simply from reading the text of the statute,” the

mere failure to warn of a removal consequence is

constitutionally deficient representation because “there is no

relevant difference between an act of commission and an act

of omission.” Id. at 1483, 1484 (internal quotation marks

omitted).

We find unpersuasive the government’s argument that,

because Strickland measures counsel’s performance “on the

facts of the particular case viewed as of the time of counsel’s

conduct,” Mr. Orocio’s claim should fail because it was not

reasonable to expect his attorney, in 2004, to predict a

Supreme Court decision nearly six years later. This argument

misses the mark. 11 His attorney is not alleged to be deficient

because he failed to predict the Padilla decision—he is

alleged to be deficient because he did not measure up to

prevailing professional norms demanded of counsel at the

plea stage as required by Strickland and its progeny. The

Strickland decision did not hold that only existing Supreme

11

Indeed, it is at odds with the underlying facts of Padilla.

There, the conviction, the failure to advise, and the plea dated

back to 2002. See Commonwealth v. Padilla, 253 S.W.3d

482, 483 (Ky. 2008). Because Mr. Padilla’s attorney was

found to be deficient under the prevailing professional norms

of 2002, it is not unreasonable to apply those same norms to

Mr. Orocio’s attorney in 2004.

21

Court decisions guide the reasonableness inquiry. Instead, it

said:

More specific guidelines are not appropriate.

The Sixth Amendment refers simply to

“counsel,” not specifying particular

requirements of effective assistance. It relies

instead on the legal profession’s maintenance of

standards sufficient to justify the law’s

presumption that counsel will fulfill the role in

the adversary process that the Amendment

envisions. The proper measure of attorney

performance remains simply reasonableness

under prevailing professional norms.

466 U.S. at 688 (citation omitted). After reiterating that

language from Strickland, the Padilla Court stated that “[t]he

weight of prevailing professional norms supports the view

that counsel must advise her client regarding the risk of

deportation.” 130 S. Ct. at 1482 (citing sources from 1993,

1995, 1997, 1999, 2000, 2002, and 2004). These professional

norms did not come into being on the date of the Padilla

decision, but quite the opposite: the Padilla decision reflected

the fact that these professional norms were well established

long before the Padilla decision—indeed, they were well

established prior to the alleged deficiency of Mr. Orocio’s

attorney. 12 In any event, counsel had been required to adhere

to professional norms in the decades since Strickland, and all

of the sources of prevailing professional norms cited by the

Court in Padilla pre-date Mr. Orocio’s conviction and his

attorney’s failure to advise. It did not take the Padilla

decision to establish what Mr. Portelli was required to do as a

12

See note 11, supra.

22

competent defense attorney.

In light of the long-standing principle that counsel will

be held to the prevailing legal standards of the profession, it is

beyond cavil that Mr. Orocio’s counsel was constitutionally

deficient under the first prong of the Strickland inquiry if, as

is alleged, he did not advise Mr. Orocio of the adverse

immigration consequences of his guilty plea to a controlled

substance offense in accordance with the then-prevailing

professional norms.

D. Was Mr. Orocio prejudiced by his plea

counsel’s ineffectiveness?

Having determined that, assuming the truth of Mr.

Orocio’s affidavit, Mr. Orocio’s counsel was ineffective

under the standard laid out by Padilla and Strickland, and that

Padilla is retroactively applicable, we turn to the question of

whether Mr. Orocio has sufficiently alleged that counsel’s

failure properly to advise prejudiced him. That is, we must

determine “whether ‘there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Padilla, 130 S. Ct.

at 1482 (quoting Strickland, 466 U.S. at 694). A “reasonable

probability” is a standard of proof “somewhat lower” than a

preponderance of the evidence. Strickland, 466 U.S. at 694.

Although the Padilla decision clearly imposes a duty

on counsel during the negotiation of a plea bargain, “a critical

phase of litigation for purposes of the Sixth Amendment

Right to effective assistance of counsel[,] . . . to inform her

noncitizen client that he faces a risk of deportation,” Padilla,

130 S. Ct. at 1486, it does not undertake to provide

instruction on whether a client was prejudiced by the

23

ineffectiveness, id. at 1483–84. Instead, we turn to

longstanding Supreme Court precedent to guide the prejudice

inquiry.

In a challenge to a guilty plea based on ineffective

assistance of counsel, the prejudice inquiry takes the form of

“whether counsel’s constitutionally ineffective performance

affected the outcome of the plea process.” Hill, 474 U.S. at

59 (emphasis added). “[I]n order to satisfy the ‘prejudice’

requirement [of Strickland], the defendant must show that

there is a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on

going to trial.” Id. “This assessment, in turn, will depend in

large part,” but not exclusively, “on a prediction whether the

[errors] likely would have changed the outcome of a trial.”

Id.

The District Court ultimately based its determination

that there was no prejudice on its finding that Orocio had not

shown that he would have been acquitted, had he gone to

trial. In so doing, the District Court followed an older line of

reasoning in this Circuit which originated in United States v.

Nino, 878 F.2d 101, 105 (3d Cir. 1989). The Supreme Court,

however, requires only that a defendant have rationally gone

to trial in the first place, and it has never required an

affirmative demonstration of likely acquittal at such a trial as

the sine qua non of prejudice. See Hill, 474 U.S. at 59. To

the extent that we have previously interpreted Hill to require

such a showing, the Supreme Court’s intervening decision in

Padilla (of which the District Court did not have the benefit)

has made it clear that that is not appropriate. Instead, “to

obtain relief on this type of claim, a petitioner must convince

the court that a decision to reject the plea bargain would have

been rational under the circumstances,” Padilla, 130 S. Ct. at

24

1485, and a rational decision not to plead guilty does not

focus solely on whether a defendant would have been found

guilty at trial—Padilla reiterated that an alien defendant

might rationally be more concerned with removal than with a

term of imprisonment, see id. at 1483 (recognizing that

“‘[p]reserving a client’s right to remain in the United States

may be more important to the client than any potential jail

sentence’” (quoting St. Cyr, 533 U.S. at 323)). Therefore,

Nino’s requirement that a defendant affirmatively show that

he would been acquitted in order to establish prejudice in this

context is no longer good law. 13 See In re Krebs, 527 F.3d

82, 84 (3d Cir. 2008) (“A panel of this Court may reevaluate

the holding of a prior panel which conflicts with intervening

Supreme Court precedent.”).

Mr. Orocio argues two forms of prejudice from his

attorney’s failure to inform him of possible immigration

consequences. First, he argues that prejudice should be

presumed in his case because the failure to advise of

immigration consequences is “easy to identify and prevent.”

Second, he argues that he suffered actual prejudice because

he would have chosen to go to trial instead of agreeing to a

plea that subjected him to automatic deportation. We reject

his first contention, but we agree with his second.

With respect to presumed prejudice, Mr. Orocio takes

the “easy to identify and prevent” standard from Strickland.

When taken in context, however, the language does not

support a finding of presumed prejudice in this case. The full

passage from Strickland reads as follows:

13

The Nino panel declined to find prejudice where petitioner

“would have pled guilty anyway or, had he not done so, been

found guilty after trial.” 878 F.2d at 105 (emphasis added).

25

In certain Sixth Amendment contexts, prejudice

is presumed. Actual or constructive denial of

the assistance of counsel altogether is legally

presumed to result in prejudice. So are various

kinds of state interference with counsel’s

assistance. Prejudice in these circumstances is

so likely that case-by-case inquiry into

prejudice is not worth the cost. Moreover, such

circumstances involve impairments of the Sixth

Amendment right that are easy to identify and,

for that reason and because the prosecution is

directly responsible, easy for the government to

prevent.

466 U.S. at 692 (citations omitted) (emphases added). The

Court further held that “actual ineffectiveness claims alleging

a deficiency in attorney performance are subject to a general

requirement that the defendant affirmatively prove prejudice

[because] [t]he government is not responsible for, and hence

not able to prevent, attorney errors that will result in a

reversal of a conviction or sentence.” Id. at 693. Mr. Orocio

does not allege that he was denied the assistance of counsel

altogether, and he does not allege that the government was

responsible for his counsel’s omission or interfered with his

representation. Simply put, he has not alleged the type of

scenario where government-caused prejudice is “so likely”

that an examination into the facts of his particular case is “not

worth the cost.” Accordingly, his argument of presumed

prejudice is unpersuasive, and he must “affirmatively prove

prejudice.”

In order to prove prejudice affirmatively, Mr. Orocio

must show that, “but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.”

26

Hill, 474 U.S. at 59. Mr. Orocio’s affidavit states that he

“would have taken his case to trial” if he could not have

secured a plea agreement that would avoid a removal

consequence. App. 39. The District Court held that Mr.

Orocio’s prior concession of guilt during the plea colloquy

was dispositive and necessarily foreclosed a credible,

objectively reasonable claim that he would have nonetheless

rolled the dice and gone to trial in the hope of avoiding

removal:

The Court rejects Mr. Orocio’s argument

because the second prong of Strickland requires

him to show that, but for his counsel’s errors,

there is a reasonable probability that he would

not have [pled] guilty and that he would not

have been convicted at trial. Mr. Orocio has

failed to show this. To the contrary, Mr. Orocio

has not disputed the accuracy of the underlying

facts giving rise to his guilty plea. Because Mr.

Orocio has admitted in open court that he was

guilty of the crime which he was convicted and

does not now challenge his guilt (but merely

asserts that a more favorable plea deal could

have been negotiated on his behalf), the

Strickland test is not satisfied and Mr. Orocio’s

motion cannot prevail.

App. 22. We disagree with this assessment. Mr. Orocio’s

guilty plea does not end the Hill inquiry because, had he not

pled guilty, there would not have been any acknowledgement

of guilt in open court foreclosing a rational decision to go to

trial. Instead, the inquiry must focus on whether Mr. Orocio,

if made aware of the dire immigration consequences of the

proposed guilty plea, could have reasonably chosen to go to

27

trial even though he faced a drug distribution charge

constituting an aggravated felony with a 10-year minimum

sentence. We believe it would have been a reasonable

decision.

In Padilla, the Supreme Court reiterated that

“‘[p]reserving the client’s right to remain in the United States

may be more important to the client than any potential jail

sentence.’” Padilla, 130 S. Ct. at 1483 (quoting INS v. St.

Cyr, 533 U.S. 289, 323 (2001) 14) (alteration in original)

(emphasis added). For the alien defendant most concerned

with remaining in the United States, especially a legal

permanent resident, it is not at all unreasonable to go to trial

and risk a ten-year sentence and guaranteed removal, but with

the chance of acquittal and the right to remain in the United

States, instead of pleading guilty to an offense that, while not

an aggravated felony, carries “presumptively mandatory”

removal consequences. Just as “the threat of [removal] may

provide the defendant with a powerful incentive to plead

guilty to an offense that does not mandate that penalty in

exchange for a dismissal of a charge that does,” id. at 1486,

the threat of removal provides an equally powerful incentive

to go to trial if a plea would result in removal anyway. Mr.

14

In St. Cyr, the Court held, inter alia, that the provisions of

the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 curtailing the discretion of the Attorney General

to waive removal of resident aliens did not apply retroactively

to people who had entered into plea agreements expecting

that they would be eligible for discretionary relief because the

possibility of such relief was “one of the principal benefits

sought by defendants deciding whether to accept a plea offer

or instead to proceed to trial.” 533 U.S. at 321–23.

28

Orocio was only 27 years old at the time he entered the plea

agreement, and he rationally could have been more concerned

about a near-certainty of multiple decades of banishment

from the United States than the possibility of a single decade

in prison. Accordingly, we hold that, on the facts as alleged

in his coram nobis petition, a decision by Mr. Orocio “to

reject the plea bargain would have been rational under the

circumstances.” Id. at 1485; accord State v. Sandoval, 249

P.3d 1015, 1021–22 (Wash. 2011) (finding prejudice to

lawful permanent resident defendant on similar facts).

The government further contends that any prejudice to

Mr. Orocio was mitigated by two statements made by the

District Court during the change of plea hearing and the later

sentencing hearing. First, at the change of plea hearing, in

October of 2004, the court made a brief reference to

immigration authorities:

[The court]: Nor is [the plea agreement]—and I

should tell you too—it’s not binding upon any

civil authorities such as the Internal Revenue

Service and it’s not binding upon the

Immigration and Naturalization Service.

Do you understand that?

[Mr. Orocio]: Yes.

App. 66. At the sentencing hearing, in March of 2005, the

court again alluded to immigration authorities:

You also . . . are to cooperate with Immigration

and Customs Enforcement to resolve any

problems with your status in this country. You

29

are to provide truthful information and abide by

the rules and regulations of Immigration and

Customs Enforcement.

If you are deported, Mr. Orocio, you cannot

come back to this country without first getting

the written permission of the Attorney General

of this country. If you do come back, you are to

report in person to the nearest United States

Probation Office within 48 hours of your re-

entry.

App. 52–53. The gist of the government’s argument is that

these two colloquies, in tandem, put Mr. Orocio on notice that

he could be removed. With that notice, the government

argues, Mr. Orocio should have prepared arguments on

appeal or filed a § 2255 petition. The question under

Strickland and Hill, however, is not whether Mr. Orocio had

later access to remedies, but whether he would have pled

guilty at all.

The allusion to immigration authorities at the change

of plea hearing was insufficient to mitigate the prejudice

suffered by Mr. Orocio. The fact that a plea agreement is not

binding on the Immigration and Naturalization Service did

not alert Mr. Orocio to the fact that his removal was a near

certainty as a consequence of pleading guilty to a controlled

substance offense. Moreover, the single reference to the INS

was in the context of a series of warnings that included a

statement that the plea agreement was not even binding on the

District Court. App. 65. In sum, the warning at the change of

plea hearing was sufficient to alert Mr. Orocio that his plea

was binding on only himself and the government, id., but was

wholly insufficient to alert him of the immigration

30

consequences of a guilty plea.

The allusion to immigration authorities at sentencing

was likewise insufficient to mitigate any prejudice. As the

Padilla Court noted, because the law was “succinct and

straightforward” and “truly clear” with respect to removal for

controlled substance offenses, the District Court’s sensible

advice to Mr. Orocio to cooperate with ICE was too

generalized—and, also, far too late in the process—to

effectively alert Mr. Orocio to the severe removal

consequences of his guilty plea of five months before. 130 S.

Ct. at 1483.

We conclude that, assuming Mr. Orocio can establish

at an evidentiary hearing the facts that he has alleged in his

affidavit, Mr. Orocio will have shown prejudice in the

Strickland sense flowing from the failure of counsel to inform

him, at the time the guilty plea agreement was proffered, of

the grave immigration consequences that acceptance of the

agreement would entail.

IV. Conclusion

Having concluded that Mr. Orocio’s petition for a writ

of error coram nobis failed to allege Strickland prejudice and

hence was deficient as a matter of law, the District Court

dismissed the petition without conducting an evidentiary

hearing. The District Court’s decision pre-dated the Supreme

Court’s decision in Padilla. We have ruled that Padilla has

retroactive application. Accordingly, we will remand this

case to the District Court in order to give that court the

opportunity to decide this case within the framework of

31

Padilla and on the basis of a developed factual record. 15 The

judgment of the District Court will be vacated and the case

remanded to that court.

15

Because we vacate and remand in light of Padilla, we do

not assess Mr. Orocio’s alternative claim of ineffectiveness

with respect to the Federal First Offender Act.

32

United States v. Orocio, No. 10-1231

CHAGARES, concurring in part and dissenting in part.

I join the majority’s opinion as to section III, parts A,

B, and C, but I cannot join section III, part D (“Was Mr.

Orocio prejudiced by his plea counsel’s ineffectiveness?”). In

particular, I disagree with my learned colleagues that Padilla

v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473 (2010) compels

the conclusion that our jurisprudence originating in United

States v. Nino, 878 F.2d 101 (3d Cir. 1989) “is no longer

good law.” Majority Op. 22. I believe our jurisprudence

remains fully intact and I therefore respectfully dissent. I also

disagree with the majority as to its conclusion and judgment.

I.

A.

We have recognized the principle that “[o]ur Court

makes every effort to maintain a consistent body of

jurisprudence,” United States v. Tann, 577 F.3d 533, 541 (3d

Cir. 2009), and we will follow our prior precedential opinions

unless our Court, sitting en banc, reconsiders an opinion, see

Third Circuit Internal Operating Procedure 9.1. In addition,

“[a]s an inferior court in the federal hierarchy, we are, of

course, compelled to apply the law announced by the

Supreme Court as we find it on the date of our decision.”

United States v. City of Phila., 644 F.2d 187, 192 n.3 (3d Cir.

1980).

We have admonished, however, that if “there has been

no determinative ruling by the Supreme Court on [a]

question, we are bound by [our prior opinions].” Brown v.

United States, 508 F.2d 618, 625 (3d Cir. 1974). Our sister

courts of appeals have similarly required that in the absence

of a clear Supreme Court determination, courts of appeals

should follow their own prior opinions. See, e.g., Rosas-

Castaneda v. Holder, 630 F.3d 881, 887 (9th Cir. 2011)

(noting a Supreme Court decision must be “clearly

irreconcilable” with a prior court of appeals decision to

overrule the decision) (quotation marks and citation omitted);

Awuah v. Coverall N. Am., Inc., 554 F.3d 7, 11 (1st Cir.

2009) (“Given that the Supreme Court has not clearly spoken,

the interests of predictability are served by respecting our

own prior language. . . .”); Garrett v. Univ. of Ala. at

Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir.

2003) (“While an intervening decision of the Supreme Court

can overrule a decision of a prior panel of our court, the

Supreme Court decision must be clearly on point.”); United

States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002) (holding “a

clear contrary statement from the Supreme Court” will

compel a court of appeals to depart from a prior decision);

Public Serv. Co. of N.M. v. Gen. Elec. Co., 315 F.2d 306, 310

n.6 (10th Cir. 1963) (holding lower federal courts must apply

“clear, direct, explicit, and unqualified statement[s] of the

Supreme Court”). Accordingly, “[o]bedience to a Supreme

Court decision is one thing, [but] extrapolating from its

implications a holding on an issue that was not before that

Court in order to upend settled circuit precedent law is

another thing.” Main Drug, Inc. v. Aetna U.S. Healthcare,

Inc., 475 F.3d 1228, 1230 (11th Cir. 2007).

2

B.

Turning to the applicable law, the majority correctly

notes that the Supreme Court in Hill v. Lockhart, 474 U.S. 52

(1985) set forth the standard for analyzing the “prejudice”

prong in challenges to guilty pleas based on ineffective

assistance of counsel. In Hill, the Court held that, to meet the

prejudice prong, “the defendant must show there is a

reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to

trial.” Id. at 59. “This assessment, in turn, will depend in

large part on a prediction whether the [errors] likely would

have changed the outcome of a trial.” Id. The Court in Hill

further explained that courts may examine whether the

defendant “likely would have succeeded at trial,” Hill, 474

U.S. at 59, and observed that “these predictions of the

outcome of a possible trial, where necessary, should be made

objectively . . . ,” id. at 59-60 (citing Strickland v.

Washington, 466 U.S. 668, 695 (1984)).

Subsequent to Hill, this Court decided United States v.

Nino, 878 F.2d at 105-06. In Nino, we considered a claim

that petitioner’s plea counsel was ineffective and that

petitioner’s conviction should be overturned because his plea

counsel failed to advise him regarding the deportation

consequences of his guilty plea. Importantly, we noted that

the record was “replete with evidence of petitioner’s guilt.”

Id. at 105. We held that petitioner could not “show that there

[was] a reasonable probability that but for any error

committed by his counsel the outcome of the proceeding

would have been different,” because “we conclude[d] that

even had petitioner been advised of the deportation

consequences of his guilty plea, he would have pled guilty

3

anyway or, had he not done so, [would have] been found

guilty after trial.” Id. Later decisions in this circuit have

similarly analyzed whether a petitioner would have been

found guilty or even asserted his or her factual innocence, in

considering the prejudice prong.

The majority concludes that this line of our

jurisprudence “is no longer good law” based upon a single

line in Padilla. Although the Supreme Court in Padilla did

not consider whether the petitioner had established prejudice,

it mentioned that “[s]urmounting Strickland’s high bar is

never an easy task.” 130 S. Ct. at 1485. The Court followed

that statement with the line relied upon by the majority: “to

obtain relief on this type of claim, a petitioner must convince

the court that a decision to reject the plea bargain would have

been rational under the circumstances.” Id.

This is certainly not the type of clear, direct, explicit,

and contrary ruling by the Supreme Court that would justify

abandoning our jurisprudence in this area. The Supreme

Court’s statement in Padilla is general and unremarkable and

is consistent with its holding in Hill. The statement says

nothing specific, particularly about the evidence to be

reviewed in making a determination. Accordingly, I cannot

agree that our jurisprudence originating in Nino is no longer

good law.

My conclusion is supported by a more recent Supreme

Court decision, Premo v. Moore, 131 S. Ct. 733 (2011). Like

the present case, Hill, and Nino, Premo presented the issue of

whether the allegedly inadequate assistance of plea counsel

prejudiced a petitioner who entered into a plea agreement.

4

The Court in Premo explicitly recognized that Hill set forth

the proper standard to resolve this issue. Id. at 743, 745.

In reaching its determination that no prejudice had

been shown, the Premo Court looked to the evidence and

noted that it was “formidable.” Id. at 744; see also id. at 745

(“[T]he evidence against [the petitioner] was strong.”).

Further, and importantly, the Court specifically recognized

that the petitioner did not deny committing the crimes

charged. Id. The Court concluded by observing:

Hindsight and second guesses are []

inappropriate, and often more so, where a plea

has been entered without a full trial . . . . The

added uncertainty that results when there is no

extended, formal record and no actual history to

show how the charges have played out at trial

works against the party alleging inadequate

assistance. Counsel, too, faced that uncertainty.

There is a most substantial burden on the

claimant to show ineffective assistance. The

plea process brings to the criminal justice

system a stability and a certainty that must not

be undermined by the prospect of collateral

challenges in cases . . . where witnesses and

evidence were not presented in the first place.

The substantial burden to show ineffective

assistance of counsel, the burden the claimant

must meet to avoid the plea, has not been met in

this case.

Id. at 745-46. Accordingly, although I believe that the Premo

decision supports our jurisprudence, at a minimum, it

5

demonstrates that our jurisprudence has not been clearly,

directly, and explicitly overruled.

II.

Turning to the facts of this case, the District Court

found that Orocio “has not disputed the accuracy of the

underlying facts giving rise to his guilty plea” and the parties

do not contest that that finding is not clearly erroneous.

Appendix (“App.”) 12. 1 In addition, as in Premo, Orocio

does not deny the charges against him; indeed, at oral

argument before this Court, counsel conceded Orocio’s guilt.

Further, according to the Government, Orocio faced a

mandatory minimum sentence of ten years on his drug

trafficking charge. Plea counsel negotiated what was clearly

an extremely favorable plea agreement for Orocio and,

following his guilty plea, he was sentenced to time served (six

months) and two years of supervised release. See App. 43-

44.

Under these circumstances, including Orocio’s failure

to assert his factual innocence and the lenity of the

Government’s plea offer, I conclude that Orocio has not met

his substantial burden of demonstrating a reasonable

probability that the result of the proceeding would have been

different. Accordingly, I believe Orocio failed to establish

the prejudice prong of Strickland and I would affirm the

1

I agree with the majority that a “guilty plea does not end the

Hill inquiry.” Majority Op. 24. I further agree that prejudice

cannot be presumed in this case and that Orocio must

establish actual prejudice to prevail. Majority Op. 22-23.

6

District Court’s order denying Orocio’s petition for a writ of

error coram nobis.

7