Chaidez v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3623

R OSELVA C HAIDEZ,

Petitioner-Appellee,

v.

U NITED S TATES OF A MERICA,

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 CR 636-6—Joan B. Gottschall, Judge.

A RGUED JUNE 10, 2011—D ECIDED A UGUST 23, 2011

Before B AUER, F LAUM, and W ILLIAMS, Circuit Judges.

F LAUM, Circuit Judge. In Padilla v. Kentucky, 130 S. Ct.

1473, 1486 (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 (1989), and conse-

quently applied its holding to Petitioner Roselva

2 No. 10-3623

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,

1

This opinion and the dissent have been circulated among all

judges of this court in regular active service pursuant to

Circuit Rule 40(e). A majority of the judges did not favor

rehearing en banc. Circuit Judges Rovner, Wood, Williams,

and Hamilton voted to rehear the case en banc.

No. 10-3623 3

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 ap-

plication of the Court’s holding in Strickland v.

Washington, 466 U.S. 668 (1984). Having concluded that

Padilla applied to Chaidez’s case, the district court con-

sidered the merits of her coram nobis petition. The

court granted the petition and vacated Chaidez’s convic-

tion. The government appeals the district court’s under-

lying ruling regarding the retroactive effect of Padilla.

II. Discussion

The writ of coram nobis, available under the All Writs

Act, 28 U.S.C. § 1651(a), provides a method for col-

4 No. 10-3623

laterally attacking a criminal conviction when a de-

fendant 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 peti-

tion); 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 er-

roneously 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 assis-

tance of counsel was limited to advice about the

direct consequences of a guilty plea (i.e., length of impris-

onment), and did not extend to information regarding

No. 10-3623 5

collateral consequences (i.e., deportation). Id. However,

in a majority opinion authored by Justice Stevens, the

Padilla Court concluded that “advice regarding deporta-

tion 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 pro-

cess. 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 of-

fenders.” 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.

6 No. 10-3623

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 the circum-

stances, 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 (2007). Under Teague, a con-

stitutional 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 fair-

ness and accuracy of the criminal proceeding.” Id. (cita-

tions omitted).

No. 10-3623 7

The parties agree that if Padilla announced a new rule

neither exception to non-retroactivity applies. There-

fore, 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 an-

nounced 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 retro-

actively applicable on collateral review. United States v.

Orocio, 645 F.3d 630, 2011 WL 2557232, at *7 (3d Cir.

June 29, 2011).

A rule is said to be new when it was not “dictated by

precedent existing at the time the defendant’s convic-

tion became final.” Teague, 489 U.S. at 301 (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 federal

law in existence at the time the conviction became

final, and not to provide a mechanism for the con-

tinuing reexamination of final judgments based upon

later emerging legal doctrine.” Sawyer v. Smith, 497 U.S.

8 No. 10-3623

227, 235 (1990). See also Danforth v. Minnesota, 552 U.S. 264,

280 (2008) (describing Teague as a “limit[ation on] the

authority of federal courts to overturn state convictions”).

Thus, the Court has explained that Teague “validates

reasonable, good-faith interpretations of existing prece-

dents made by state courts even though they are shown

to be contrary to later decisions.” Saffle v. Parks, 494

U.S. 484, 488 (1990) (quoting Butler v. McKellar, 494 U.S.

407, 414 (1990)). The pertinent inquiry here is whether

Padilla’s outcome was “susceptible to debate among

reasonable minds.” Butler, 494 U.S. at 415. Put dif-

ferently, “our task is to determine whether a . . . court con-

sidering [Chaidez’s] claim at the time [her] conviction

became final”—pre-Padilla—“would have felt compelled

by existing precedent to conclude that [Padilla] was

required by the Constitution.” Saffle, 494 U.S. at 488.

That task is a “difficult” one where, as here, the decision

at issue “extends the reasoning of . . . prior cases,” as

opposed to “explicit[ly] overruling . . . an earlier hold-

ing.” Id. However, the Court’s retroactivity jurisprudence

provides guidance. In assessing whether the outcome

of a case was susceptible to reasonable debate, the

Court has looked to both the views expressed in the

opinion itself and lower court decisions. Lack of

unanimity on the Court in deciding a particular case

supports the conclusion that the case announced a new

rule. See Beard v. Banks, 542 U.S. 406, 414-15 (2004) (con-

cluding that a rule was new where, in the case an-

nouncing the rule, four Justices dissented, expressing

the view that the Court’s outcome was not controlled by

precedent); Sawyer v. Smith, 497 U.S. 227, 236-37 (1990)

No. 10-3623 9

(concluding that Caldwell v. Mississippi, 472 U.S. 320 (1985),

announced a new rule, in part based on the views of

the Caldwell dissenters). Similarly, if the lower courts

were split on the issue, the Court has concluded that

the outcome of the case was susceptible to reasonable

debate. See Butler, 494 U.S. at 415 (“That the outcome

in [Arizona v.] Roberson[, 486 U.S. 675 (1988)] was sus-

ceptible to debate among reasonable minds is evi-

denced further by the differing positions taken by the

judges of the Courts of Appeals for the Fourth and

Seventh Circuits”); O’Dell v. Netherland, 521 U.S. 151, 166

n.3 (1997) (finding support for its conclusion that a case

announced a new rule “in the decisions of the state

courts and the lower federal courts,” none of which

previously had adopted the rule). These considerations

convince us that Padilla announced a new rule.

The majority opinion in Padilla drew a concurrence

authored by Justice Alito and joined by Chief Justice

Roberts, as well as a dissenting opinion authored by

Justice Scalia and joined by Justice Thomas. That the

members of the Padilla Court expressed such an “array

of views” indicates that Padilla was not dictated by prece-

dent. O’Dell, 521 U.S. at 159. Moreover, the views ex-

pressed in each of the opinions support that conclusion.

Statements in the concurrence leave no doubt that

Justice Alito and Chief Justice Roberts considered Padilla

to be ground-breaking. See 130 S. Ct. at 1488, 1491,

1492 (referring to the majority’s holding as a “dramatic

departure from precedent,” “a major upheaval in Sixth

Amendment law,” and a “dramatic expansion of the

scope of criminal defense counsel’s duties under the

Sixth Amendment”). And the two dissenting Justices,

10 No. 10-3623

who expressed the view that the majority’s extension of

the Court’s Sixth Amendment jurisprudence lacked

“basis in text or in principle,” certainly did not see

Padilla as dictated by precedent. 130 S. Ct. at 1495 (Scalia,

J., dissenting). See also Sawyer, 497 U.S. at 236-37. Even the

majority suggested that the rule it announced was not

dictated by precedent, stating that while Padilla’s claim

“follow[ed] from” its decision applying Strickland to

advice regarding guilty pleas in Hill v. Lockhart, 474 U.S.

52 (1985), Hill “does not control the question before us.”

Id. at 1485 n.12. It seems evident from Supreme Court

precedent that Padilla cannot be an old rule simply

because existing case law “inform[ed], or even con-

trol[led] or govern[ed],” the analysis. Saffle, 494 U.S. at

488. Nor will the rule of Padilla be deemed old because

precedent lent “general support” to the rule it estab-

lished, Sawyer, 497 U.S. at 236, or because it represents

“the most reasonable . . . interpretation of general law,”

Lambrix v. Singletary, 520 U.S. 518, 538 (1997). Padilla

can only be considered an old rule if Supreme Court

precedent “compel[led]” the result. Saffle, 494 U.S. at 490.

The majority’s characterization of Hill suggests that it

did not understand the rule set forth in Padilla to be

dictated by precedent.

Our conclusion that Padilla announced a new rule

finds additional support in pre-Padilla decisions by

state and federal courts. Prior to Padilla, the lower

federal courts, including at least nine Courts of Appeals,

had uniformly held that the Sixth Amendment did not

require counsel to provide advice concerning any col-

lateral (as opposed to direct) consequences of a guilty

No. 10-3623 11

plea. See Padilla, 130 S. Ct. at 1487 (Alito, J., concurring

in judgment) (“Until today, the longstanding and unani-

mous position of the federal courts was that reasonable

defense counsel generally need only advise a client

about the direct consequences of a criminal conviction,”

not collateral consequences such as deportation);

Chin & Holmes, Effective Assistance of Counsel and the

Consequences of Guilty Pleas, 87 C ORNELL L. R EV. 697,

699, 703 (2002) (stating that “virtually all jurisdictions”

to have considered the issue had held that “defense

lawyers must explain the direct consequences of a

plea, such as length of imprisonment and amount of

fine, but need not explain ‘collateral consequences,’ such

as . . . deportation”); Commonwealth v. Clarke, 460 Mass. 30,

35-36, (Mass. 2011) (“Padilla effectively changed the law

in the nine circuit courts of the United States Court of

Appeals that had previously addressed the issue” of

whether “defense counsel was ineffective by failing to

advise her client of the virtually automatic deportation

consequences of his guilty plea”). Courts in at least

thirty states and the District of Columbia had reached

the same conclusion. 87 C ORNELL L. R EV . at 699. Such

rare unanimity among the lower courts is compelling

evidence that reasonable jurists reading the Supreme

Court’s precedents in April 2004 could have disagreed

about the outcome of Padilla. See Lambrix, 520 U.S. at 538

(finding it “plain . . . that a jurist considering all the

relevant material . . . could reasonably have reached a

conclusion contrary to our holding in” Espinosa v. Florida,

505 U.S. 1079 (1992) (per curiam), where “both before

and after [petitioner’s] conviction became final, every

court decision we are aware of did so”).

12 No. 10-3623

In concluding that Padilla did not announce a new

rule, the Third Circuit downplayed the significance of

the contrary lower court decisions, reasoning that they

generally pre-dated the adoption of the professional

norms relied on by the Padilla Court. Orocio, 2011 WL

2557232, at *6. Not so. While Justice Alito cited primarily

pre-1995 cases in his concurrence, in the years pre-

ceding Padilla, the lower federal courts consistently reaf-

firmed that deportation is a collateral consequence of

a criminal conviction and that the Sixth Amendment

does not require advice regarding collateral conse-

quences. See United States v. Fry, 322 F.3d 1198, 1200 (9th

Cir. 2003); Jimenez v. United States, 154 Fed. Appx. 540, 541

(7th Cir. Nov. 18, 2005) (unpublished). In doing so,

three Courts of Appeals explicitly rejected the argument

that the enactment of the IIRIRA altered the calculus.

See United States v. Gonzalez, 202 F.3d 20, 28 (1st Cir.

2000) (holding that deportation remained a collateral

consequence of conviction after the passage of the

IIRIRA, and reaffirming its prior conclusion that an attor-

ney’s failure to advise a client of his plea’s immigration

consequences does not give rise to a cognizable inef-

fective assistance claim); Santos-Sanchez v. United States,

548 F.3d 327, 336-37 (5th Cir. 2008) (concluding that

“neither IIRIRA nor AEDPA has so altered the nature

of deportation as to render it a direct consequence of a

guilty plea,” and reaffirming that “counsel’s failure to

inform a defendant of the collateral consequences of a

guilty plea is never deficient performance under Strick-

land”); Broomes v. Ashcroft, 358 F.3d 1251, 1257 (10th Cir.

2004) (concluding that even under the IIRIRA and AEDPA,

“deportation remains a collateral consequence of a

No. 10-3623 13

criminal conviction, and counsel’s failure to advise a

criminal defendant of its possibility does not result in

a Sixth Amendment deprivation”).

We acknowledge that “the mere existence of conflicting

authority does not necessarily mean a rule is new.” Wil-

liams v. Taylor, 529 U.S. 362, 410 (2000), quoting Wright

v. West, 505 U.S. 277, 304 (1992) (O’Connor, J., concurring).

But, in our view, “an objective reading of the relevant

cases” demonstrates that Padilla was not dictated by

precedent. Stringer v. Black, 503 U.S. 222, 237 (1992). It is

true that, unlike so many lower courts, the Supreme

Court has “never applied a distinction between direct

and collateral consequences to define the scope of con-

stitutionally ‘reasonable professional assistance’

required under Strickland.” Padilla, 130 S. Ct. at 1481. As

such, prior to Padilla, the Court had not foreclosed the

possibility that advice regarding collateral consequences

of a guilty plea could be constitutionally required. But

neither had the Court required defense counsel to

provide advice regarding consequences collateral to the

criminal prosecution at issue.2 130 S. Ct. at 1495 (Scalia, J.,

dissenting).

2

In Hill, the Court considered whether a criminal de-

fendant’s Sixth Amendment right to counsel was violated

when his counsel misinformed him about his eligibility

for parole, a collateral consequence of conviction. However,

the Court found it “unnecessary to determine whether there

may be circumstances under which erroneous advice by

counsel as to parole eligibility may be deemed constitutionally

ineffective assistance of counsel.” 474 U.S. at 60.

14 No. 10-3623

Moreover, the distinction between direct and collateral

consequences was not without foundation in Supreme

Court precedent. It can be traced to the Court’s juris-

prudence regarding the validity of guilty pleas. To be

valid, a guilty plea must be both voluntary and intelligent.

Brady v. United States, 397 U.S. 742, 747 (1970). The Court

has long held that a plea is voluntary where the

defendant is “fully aware of the direct consequences” of

the plea. Id. The Court also has said that where “a defen-

dant is represented by counsel during the plea process

and enters his plea upon the advice of counsel, the volun-

tariness of the plea depends on whether counsel’s

advice ‘was within the range of competence demanded

of attorneys in criminal cases.’ ” Hill, 474 U.S. at 56 (cita-

tion omitted). At least some lower courts extrapolated

from these holdings that counsel performs effectively

by advising a client as to the direct consequences of

conviction. See 87 C ORNELL L. R EV. at 726 (attributing

the collateral consequences rule to “the Brady Court’s

implication that a trial court need advise a defendant

only of direct consequences to render a plea voluntary

under the Due Process Clause”); Santos v. Kolb, 880

F.2d 941, 944 (7th Cir. 1989) (concluding, based on Hill,

that “the key to whether defense counsel has failed to

provide effective assistance is whether his shortcomings

resulted in an involuntary or unintelligent plea”); United

States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993) (concluding

that counsel’s failure to warn of possible deportation

did not amount to ineffective assistance of counsel, rea-

soning that that “conclusion squares with the Supreme

Court’s observation that the accused must be ‘fully

No. 10-3623 15

aware of the direct consequences’ of a guilty plea”)

(quoting Brady, 397 U.S. at 755).

Therefore, we “cannot say that the large majority of

federal and state courts that ha[d] rejected” ineffective-

assistance-of-counsel claims based on advice about the

deportation consequences of a plea were “unreasonable”

in their reading of existing Supreme Court precedent.

Saffle, 494 U.S. at 490. We consequently remain persuaded

by the weight of lower court authority that, in 2004, a

jurist could reasonably have reached a conclusion

contrary to the holding in Padilla, such that Padilla an-

nounced a new rule for purposes of Teague.

As the Massachusetts Supreme Judicial Court recently

noted, “[t]here is no question that the holding in Padilla

is an extension of the rule in Strickland,” ”[n]or is there

any question that the Supreme Court was applying the

first prong of the Strickland standard when it concluded

that the failure of counsel to provide her client with

available advice about an issue like deportation was

constitutionally deficient.” Clarke, 460 Mass. at 37. How-

ever, we disagree with that court’s conclusion that,

because “the opinion in Padilla relies primarily on cita-

tion to Strickland itself,” Padilla was dictated by Strick-

land. Id. at 44. Under Teague, a rule is old only if it sets forth

the sole reasonable interpretation of existing precedent.

Lambrix, 520 U.S. at 538. The fact that Padilla is an exten-

sion of Strickland says nothing about whether it was new

or not. See Saffle, 494 U.S. at 488 (“it is more difficult,

however, to determine whether we announce a new

rule when a decision extends the reasoning of our prior

16 No. 10-3623

cases”); Butler, 494 U.S. at 415 (“the fact that a

court says that its decision is within the ‘logical com-

pass’ of an earlier decision, or indeed that it is ‘controlled’

by a prior decision, is not conclusive for purposes of

deciding whether the current decision is a ‘new rule’

under Teague”); Frazer v. South Carolina, 430 F.3d 696,

720 (4th Cir. 2005) (Luttig, J., dissenting) (“to establish

that the Supreme Court relied exclusively on the

principles of prior cases in reaching the rule of [Roe v.]

Flores-Ortega[, 528 U.S. 470 (2000)] is not at all to estab-

lish that those cases dictated that rule, that is, that all

reasonable jurists would have agreed that those

precedents led inexorably to Flores-Ortega”).

We recognize that the application of Strickland to

unique facts generally will not produce a new rule. See

Williams, 529 U.S. at 382 (plurality) (“If the rule in

question is one which of necessity requires a case-by-

case examination of the evidence, then we can tolerate

a number of specific applications without saying

that those applications themselves create a new rule”)

(quoting Wright v. West, 505 U.S. 277, 309 (1992) (Kennedy,

J., concurring)). However, that guiding principle is not

absolute. Id. (stating that “[w]here the beginning point

is a rule of . . . general application, . . . it will be the in-

frequent case that yields a result so novel that it forges

a new rule, one not dictated by precedent”).3 We believe

3

The Williams Court further stated that: “It is true that while

the Strickland test provides sufficient guidance for resolving

(continued...)

No. 10-3623 17

Padilla to be the rare exception. Before Padilla, the Court

had never held that the Sixth Amendment requires a

criminal defense attorney to provide advice about

matters not directly related to their client’s criminal

prosecution. In Padilla, the Court held that constitu-

tionally effective assistance of counsel requires advice

about a civil penalty imposed by the Executive

Branch (now the Department of Homeland Security,

formerly the Immigration and Naturalization Service)

3

(...continued)

virtually all ineffective-assistance-of-counsel claims, there

are situations in which the overriding focus on fundamental

fairness may affect the analysis.” 529 U.S. at 391. Some courts,

and the dissent, appear to have read the first phrase in

that sentence to mean that, in effect, no case applying the

Strickland test announces a new rule. See Clarke, 460 Mass. at 39;

Lewis v. Johnson, 359 F.3d 646, 655 (3d Cir. 2004). We believe the

context in which the Court made that assertion undermines

that interpretation. In Williams, the Court held that the

“Virginia Supreme Court erred in holding that . . . Lockhart v.

Fretwell, 506 U.S. 364 (1993), modified or in some way sup-

planted the rule set down in Strickland.” 529 U.S. at 391. The

Court simply was explaining that Strickland remains the test

for analyzing ineffective-assistance-of-counsel claim s,

“virtually all” of which can be resolved without inquiring

into “fundamental fairness,” as the Court had in Lockhart. Id.

at 391-93. See also Frazer, 430 F.3d at 723 (Luttig, J., dissenting)

for a similar analysis. Moreover, the fact that “the Strickland

test provides sufficient guidance for resolving virtually

all ineffective-assistance-of-counsel claims,” does not mean

it dictates the resolution of all such claims. Id.

18 No. 10-3623

after the criminal case is closed. In our view, that

result was sufficiently novel to qualify as a new rule.

Indeed, if Padilla is considered an old rule, it is hard to

imagine an application of Strickland that would qualify

as a new rule. Perhaps in the future the Court will con-

clude, given the breadth and fact-intensive nature of

the Strickland reasonableness standard, that cases ex-

tending Strickland are never new. But until that time,

we are bound to apply Teague in the context of Strickland.

The specific contours of the Padilla holding further

indicate that it is a new rule. Under the rule set forth in

Padilla, the scope of an attorney’s duty to provide

immigration-related advice varies depending on the

degree of specialization required to provide such advice

accurately. In particular, the Court held that “when the

deportation consequence [of a guilty plea] is truly

clear,” counsel has a duty to “give correct advice.” 130

S. Ct. at 1483. But “[w]hen the law is not succinct and

straightforward,” such that “the deportation con-

sequences of a particular plea are unclear or uncertain,” “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.”

Id. That nuanced, new analysis cannot, in our view, be

characterized as having been dictated by precedent.

The district court relied on the fact that Padilla itself

was before the Court on a motion for post-conviction

relief for its conclusion that the Court intended for

Padilla to apply retroactively to cases on collateral ap-

peal. In light of the fact that Kentucky did not raise Teague

No. 10-3623 19

as a defense in Padilla, we do not assign the significance to

Padilla’s procedural posture that the district court did.

While “[r]etroactivity is properly treated as a threshold

question,” Teague “is not ‘jurisdictional’ in the sense that

[the] Court . . . must raise and decide the issue sua sponte.”

Collins v. Youngblood, 497 U.S. 37, 40-41 (1990) (emphasis in

original). Therefore, if a State does not rely on Teague, the

Court has no obligation to address it, and can consider the

merits of the claim. Caspari v. Bohlen, 510 U.S. 383, 389

(1994). We believe it is more likely that the Court consid-

ered Teague to be waived, than that it silently engaged in a

retroactivity analysis.

Finally, the district court reasoned that the best way

to make sense of the Padilla Court’s discussion (and

dismissal) of concerns that its ruling would undermine

the finality of plea-based convictions was to conclude

that the majority intended Padilla to apply retroac-

tively. 130 S. Ct. at 1484-85. The Third Circuit reached

a similar conclusion. See also Orocio, 2011 WL 2557232, at

*7. That is a reasonable reading, and certainly is the

most compelling argument that Padilla is an old rule.

However, we are hesitant to depart from our application

of the test set forth in Teague and its progeny—which

points clearly in the direction of new rule—based on

inferences from indirect language. Moreover, to the

extent that we attempt to discern whether members of

the Court understood Padilla to be a new rule, we find

the clearest indications in the concurrence and dissent,

which leave no doubt that at least four Justices view

Padilla as new.

20 No. 10-3623

III. Conclusion

The Supreme Court has defined the concept of an old

rule under Teague narrowly, limiting it to those holdings

so compelled by precedent that any contrary conclusion

must be deemed unreasonable. While determining

whether a rule is new can be challenging, and this case

provides no exception, we conclude that the narrow

definition of what constitutes an old rule tips the scales

in favor of finding that Padilla announced a new rule.

Moreover, that numerous courts had failed to anticipate

the holding in Padilla, though not dispositive, is strong

evidence that reasonable jurists could have debated

the outcome. For the foregoing reasons, we R EVERSE the

judgment of the district court and R EMAND the case

for further proceedings.

W ILLIAMS, Circuit Judge, dissenting. At the time Roselva

Chaidez, a lawful permanent resident since 1977, entered

her plea, prevailing professional norms placed a duty

on counsel to advise clients of the removal consequences

of a decision to enter a plea of guilty. I would join the

Third Circuit in finding that Padilla v. Kentucky, 130 S. Ct.

1473 (2010), simply clarified that a violation of these

No. 10-3623 21

norms amounts to deficient performance under

Strickland v. Washington, 466 U.S. 668 (1984). See United

States v. Orocio, ___ F.3d __, 2011 WL 2557232 (3d Cir.

June 29, 2011). As such, Padilla did not announce a “new

rule” under Teague v. Lane, 489 U.S. 288 (1989), and is there-

fore retroactively applicable to Chaidez’s coram nobis

petition seeking to vacate her guilty plea on the grounds

that her counsel was ineffective. For the reasons set

forth below, I dissent.

I do not disagree that Teague holds that a “case an-

nounces a new rule when it breaks new ground or

imposes a new obligation on the States or Federal Gov-

ernment,” and “if the result was not dictated by precedent

existing at the time the [petitioner’s] conviction

became final.” Teague, 489 U.S. at 301 (emphasis in origi-

nal). I do, however, disagree with the majority as to

how Teague’s holding applies in the context of Strickland

v. Washington.

In Padilla, the Court found 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.” 130 S. Ct. at

1478. The Court then stated that the first inquiry under

Strickland, whether counsel’s representation “fell below

an objective standard of reasonableness,” Strickland, 466

U.S. at 688, is “necessarily linked to the practice and

expectations of the legal community.” Padilla, 130 S. Ct.

at 1482. Noting that Strickland’s standard looked to

“reasonableness under prevailing professional norms,”

the Padilla Court held that “[t]he weight of prevailing

22 No. 10-3623

professional norms supports the view that counsel must

advise her client regarding the risk of deportation.” Id.

(citing Strickland, 466 U.S. at 688, and listing numerous

guidelines and standards requiring advice on the de-

portation resulting from guilty pleas).

By citing and relying on Strickland, and applying

that case to Padilla’s claim, the Court “broke no new

ground in holding the duty to consult also extended to

counsel’s obligation to advise the defendant of the immi-

gration consequences of a guilty plea.” United States v.

Orocio, 2011 WL 2557232, at *6 (internal quotations omit-

ted). The decision “is best read as merely recognizing

that a plea agreement’s immigration consequences con-

stitute the sort of information an alien defendant

needs in making ‘important decisions’ affecting

‘the outcome of the plea process,’ and thereby come

within the abmit of the ‘more particular duties to

consult with the defendant’ required of effective coun-

sel.” Id. at *4 (citing Strickland, 466 U.S. at 688). Under

such a reading, Padilla was a mere application of

Strickland to the facts before the Court, and therefore not

a “new rule.”

Following Teague, the early Supreme Court retro-

activity cases cast the “new rule” inquiry as whether or

not “reasonable jurists” would agree that a rule was not

“dictated” by precedent. See, e.g., Butler v. McKellar,

494 U.S. 407, 414 (1990) (“The ‘new rule’ principle

therefore validates reasonable, good-faith interpreta-

tions of existing precedents made by state courts even

though they are shown to be contrary to later decisions.”);

No. 10-3623 23

see also Sawyer v. Smith, 497 U.S. 227, 234 (1990). But this

narrow conception of the “dictated” language from

Teague is not the relevant inquiry in the Strickland con-

text. “The often repeated language that Teague endorses

‘reasonable, good-faith interpretations’ by state courts is

an explanation of policy, not a statement of law.”

Williams v. Taylor, 529 U.S. 362, 383 (2000) (plurality)

(quoting Butler, 494 U.S. at 414). As the Court has stated,

and as the majority today recognizes, “the Strickland test

provides sufficient guidance for resolving virtually all

ineffective-assistance-of-counsel claims,” id. at 391 (opinion

of the Court) (emphasis added). “[W]here the starting

point is a rule of general application such as Strickland,

“it will be the infrequent case that yields a result so

novel that it forges a new rule, one not dictated by prece-

dent,” Wright v. West, 505 U.S. 277, 308-09 (1992) (Kennedy,

J., concurring). Given this clear language regarding

Teague’s applicability in the Strickland context, I cannot

find that the Supreme Court’s retroactivity cases where

Strickland is not implicated compel a finding that the

rule announced in Padilla is “new.”

In Williams, the Court was addressing Strickland under

the “clearly established law” requirement of 28 U.S.C.

§ 2254(d)(1), which a plurality found codified Teague’s

requirement that federal habeas courts must deny

relief that is contingent upon a rule of law not “clearly

established” at the time the state conviction became

final. 529 U.S. at 379-80. Parts I, III, and IV of the opinion

were on behalf of a majority. The opinion of the Court

stated:

24 No. 10-3623

It is past question that the rule set forth in Strick-

land qualifies as “clearly established Federal law, as

determined by the Supreme Court of the United

States.” That the Strickland test “of necessity re-

quires a case-by-case examination of the evi-

dence,” Wright, 505 U.S., at 308, 112 S. Ct. 2482

(Kennedy, J., concurring in judgment), obviates

neither the clarity of the rule nor the extent to

which the rule must be seen as “established” by

this Court. This Court’s precedent “dictated” that

the Virginia Supreme Court apply the Strickland

test at the time that court entertained Williams’

ineffective-assistance claim. . . . And it can hardly

be said that recognizing the right to effective

counsel “breaks new ground or imposes a new

obligation on the States.”

529 U.S. at 391 (internal citations omitted). Where such

a “case-by-case examination” is required, “we can

tolerate a number of specific applications without

saying that those applications themselves create a new

rule.” Wright, 505 U.S. at 308-09 (Kennedy, J., concurring).

This case is one of those “specific applications” that

does not create a new rule. In applying Strickland to this

particular set of facts, the Court found that prevailing

professional norms in place at the time of the defendant’s

plea required counsel to act in accordance with those

norms, and that the advice required was clear and appar-

ent. Padilla, 130 S. Ct. at 1482 (“The weight of prevailing

professional norms supports the view that counsel must

advise her client regarding the risk of deportation. . . .

No. 10-3623 25

Padilla’s counsel could have easily determined that his

plea would make him eligible for deportation simply

from reading the text of the statute . . . .”); see also Osagiede

v. United States, 543 F.3d 399, 409 (7th Cir. 2008) (finding

Strickland violation for failure to comply with Article 36

of the Vienna Convention where “[t]he law was on the

books; the violation was clear. Simple computer research

would have turned it up”). That the Padilla Court began

by addressing whether Strickland applied to Padilla’s

claim is of no consequence. As the Third Circuit recog-

nized, the true question addressed by Padilla is whether

counsel has been constitutionally adequate in advising

a criminal defendant as to whether or not to accept a

plea bargain. Orocio, 2011 WL 2557232, at *4. The

analytical mechanism by which the Court applied Strick-

land does not detract from the fact that Strickland is the

general test governing ineffective assistance claims,

and that the Padilla Court did no more than recognize

that removal is the type of consequence that a defendant

needs to be informed of when making the decision

of whether to plea.

Given how Teague and Strickland co-exist, I would not

find that the concurring and dissenting views in Padilla

compel a finding that the majority’s opinion is a

“new rule.” Despite using dissenting views to inform

the analysis of whether reasonable jurists could differ on

whether precedent dictates a particular result, the Court

has “not suggest[ed] that the mere existence of a dissent

suffices to show that the rule is new.” Beard v. Banks,

542 U.S. 406, 416 n.5 (2004). And where the Court has

relied on an “array of views” to find a rule “new,” the

26 No. 10-3623

underlying case that the petitioner sought to have

applied in fact had no majority opinion. See, e.g., O’Dell

v. Netherland, 521 U.S. 151, 159 (1997) (discussing

Simmons v. South Carolina, 512 U.S. 154 (1994) (plurality

opinion), and finding that “Simmons is an unlikely candi-

date for ‘old-rule’ status. As noted above, there was no

opinion for the Court.”). The existence of concurring

and dissenting views does not alter the fact that

the prevailing professional norms at the time of

Chaidez’s plea required a lawyer to advise her client of the

immigration consequences of a guilty plea. Even in light

of dissenting views, “Strickland did not freeze into

place the objective standards of attorney performance

prevailing in 1984, never to change again.” Orocio, 2011

WL 2557232, at *6. The concurring and dissenting opin-

ions do not alter the straightforward application of Strick-

land that the majority engaged in. In Padilla, even the

concurring Justices agreed that counsel must, at the very

least, advise a noncitizen “defendant that a criminal

conviction may have adverse immigration consequences.”

Padilla, 130 S. Ct. at 1487 (Alito, J., concurring). And

Justices have disagreed on whether an outcome was

“dictated” by precedent where a majority found that a

novel application of an old precedent was not a “new

rule.” See, e.g., Stringer v. Black, 503 U.S. 222, 237

(1992) (holding that cases invalidating use of vague ag-

gravating factors in capital sentencing applied to Missis-

sippi’s capital sentencing law despite the fact that Missis-

sippi used a different method of weighing aggravating

and mitigating factors, and was therefore not a “new

rule,” with three Justices dissenting).

No. 10-3623 27

The strongest argument that the government and major-

ity opinion make is the unanimity among the lower

courts prior to Padilla that the Sixth Amendment does

not require counsel to warn clients of the immigration

consequences of a guilty plea. The early cases, however,

relied on the categorization of removal or deportation as

a “collateral” consequence. See United States v. Santelises,

476 F.2d 787 (2d Cir. 1973); United States v. Campbell, 778

F.2d 764 (11th Cir. 1985); United States v. Quinn, 836

F.2d 654 (1st Cir. 1988); United States v. Yearwood, 863 F.2d

6 (4th Cir. 1988); United States v. George, 869 F.2d 333 (7th

Cir. 1989); United States v. Del Rosario, 902 F.2d 55

(D.C.Cir. 1990); United States v. Banda, 1 F.3d 354 (5th

Cir. 1993). This is a classification that the Padilla court

specifically rejected. Padilla, 130 S. Ct. at 1482 (finding

that “because of its close connection to the criminal pro-

cess,” removal is “uniquely difficult to classify as either

a direct or collateral consequence”). The Court found

that deportation is “intimately related to the criminal

process,” and that “[o]ur law has enmeshed criminal

convictions and the penalty of deportation for nearly a

century.” Id. at 1481. The Court also found that

“recent changes in our immigration law have made

removal nearly an automatic result for a broad class of

noncitizen offenders.” Id. The Court therefore found it

“ ‘most difficult’ to divorce the penalty from the convic-

tion in the deportation context.” Id. (citations omitted).

Despite the drastically changed immigration landscape

following the passage of IIRIRA in 1996, more recent

lower court decisions did not revisit earlier holdings

regarding deportation’s collateral nature, and declined

28 No. 10-3623

to find deportation any less collateral. See United States

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

Quinn, 836 F.2d 654 and stating that “Gonzalez has

failed to persuade us that our precedents regarding the

collateral nature of deportation require visitation”);

United States v. Fry, 322 F.3d 1198 (9th Cir. 2003); Broomes

v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004); Santos-Sanchez v.

United States, 548 F.3d 327 (5th Cir. 2008). These

cases, however, cannot change the fact that the Supreme

Court itself “never applied a distinction between direct

and collateral consequences to define the scope of con-

stitutionally ‘reasonable professional assistance’

required under Strickland . . . ,” Padilla, 130 S. Ct. at 1481

(citations omitted), a more relevant inquiry for Teague

purposes. Not only did the Supreme Court never make

this distinction, but in 2001 the Court stated that “pre-

serving the client’s right to remain in the United States

may be more important to the client than any potential

jail sentence.” INS v. St. Cyr, 533 U.S. 289, 323 (2001).

The flaw in the collateral versus direct consequences

distinction was known at the time of Chaidez’s plea.

See Chin & Holmes, Effective Assistance of Counsel and

the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697,

699, 703 (2002) (“The collateral consequences rule is

remarkable because it has apparently been embraced by

every jurisdiction that has considered it, yet it is incon-

sistent with the ABA standards and the practices of

good lawyers as described by the Supreme Court and

other authoritative sources.”). And as the majority recog-

nizes, “the mere existence of conflicting authority does

not necessarily mean a rule is new.” Williams, 529 U.S.

No. 10-3623 29

at 410 (quoting Wright, 505 U.S. at 304 (1992) (O’Connor, J.,

concurring). The only question for Teague purposes in

the Strickland context is whether counsel was constitu-

tionally adequate in advising a criminal defendant as

to whether or not to accept a plea bargain. Orocio, 2011

WL 2557232, at *4. Relying on lower court decisions

to the contrary would overlook Strickland’s straight-

forward language that “[t]he proper measure of attor-

ney performance remains simply reasonableness under

prevailing professional norms”—professional norms

that the Padilla Court found had been in place for

at least fifteen years prior to its holding. Padilla, 130

S. Ct. at 1482-83 (listing guidelines and standards that

constitute the “weight of prevailing professional norms”).

I would therefore not find the unanimity among the

lower courts pre-dating Padilla “compelling” for pur-

poses of our current Teague analysis.

My colleagues downplay the plain language in Padilla

that itself signals anticipated retroactive application.

The majority in Padilla specifically stated that its decision

will not “open the floodgates” to challenges of convic-

tions and further stated that “[i]t seems unlikely that

our decision today will have a significant effect on

those convictions already obtained as the result of plea

bargains.” Padilla, 130 S. Ct. at 1485 (emphasis added).

This floodgates argument is a clear reference to

petitions such as the one at hand that challenge the

past deficient performance of counsel. The Court’s use

of the past tense in Padilla forecloses an argument that

it was only referring to prospective challenges,

especially when the two subsequent sentences of the

30 No. 10-3623

opinion speak of professional norms over the “past 15

years” and that courts should presume that counsel

satisfied their obligation “at the time their clients

considered pleading guilty.” Id. (emphasis added) (“For

at least the past 15 years, professional norms have gener-

ally imposed an obligation on counsel to provide advice

on the deportation consequences of a client’s plea. . . . We

should, therefore, presume that counsel satisfied their

obligation to render competent advice at the time their

clients considered pleading guilty.”) (internal citations

omitted); see also Orocio, 2011 WL 2557232, at *7

(“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 of its

decision would have on final convictions . . . .”). Such

a discussion would be unnecessary if the Court intended

that Padilla only apply prospectively. The government

argues that the floodgates discussion referred only to

state post-conviction proceedings, as states are free to

offer post-conviction relief without regard to Teague. See

Danforth v. Minnesota, 552 U.S. 264, 280-81 (2008). How-

ever, in its floodgates discussion, the Padilla Court relied

on research that included both state and federal post

conviction proceedings when citing how many habeas

petitions filed arise from guilty pleas. Padilla, 130 S. Ct.

at 1485 (citing V. Flango, National Center for State Courts,

Habeas Corpus in State and Federal Courts 36-38 (1994)).

As the Court in Padilla signaled, if mere applications

of Strickland are “old rules,” it does not necessarily

follow that every petitioner will be able to take advantage

No. 10-3623 31

of those mere applications. First, the Padilla Court relied

on the professional norms in place at the time of plea,

and the fact that Padilla’s counsel “could have easily

determined that his plea would make him eligible for

deportation simply from reading the text of the

statute . . . .” Padilla, 130 S. Ct. at 1482. Not every

noncitizen who pled to an offense will be in that position.

Id. at 1483 (“There will . . . undoubtedly be numerous

situations in which the deportation consequences of a

particular plea are unclear or uncertain.”) Additionally,

Strickland also requires a showing of prejudice. Strickland,

466 U.S. at 694 (asking whether “there is a reasonable

probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different”).

Showing prejudice, much like deficient performance, is

adjudicated depending on the facts of each particular

case, Padilla, 130 S. Ct. at 1485 (“. . . 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”), and the

fact that courts must engage in such case-by-case

analysis should not influence whether or not the rule

itself is “new.” Id. (“There is no reason to doubt that

lower courts—now quite experienced with applying

Strickland—can effectively and efficiently use its frame-

work to separate specious claims from those with sub-

stantial merit.”).

We can rest assured that defense lawyers will now

advise their clients prior to pleading guilty about the

immigration consequences of such a plea, as the Court has

clarified that such advice is required under the Sixth

32 No. 10-3623

Amendment. But given today’s holding, this is of no

consequence to Roselva Chaidez despite the fact that

professional norms in place at the time of her plea placed

the same duty on her counsel. Because I find that

Padilla simply extended the Supreme Court’s holding in

Stickland, and itself signaled an intent to be applied to

noncitizens in Chaidez’s position, I respectfully dissent.

8-23-11