In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 11‐3549
JULIO CESAR CHAVARRIA,
Petitioner‐Appellant,
v.
UNITED STATES OF AMERICA,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:10‐CV‐191 — Joseph S. Van Bokkelen, Judge.
____________________
ARGUED OCTOBER 1, 2013 — DECIDED JANUARY 9, 2014
____________________
Before CUDAHY, RIPPLE, and HAMILTON, Circuit Judges.
CUDAHY, Circuit Judge. This case involves an ineffective
assistance of counsel claim concerning the effect of Chavar‐
ria’s guilty plea on his immigration status. Defendant Julio
Cesar Chavarria, born in Mexico, became a legal permanent
resident of the United States in 1982. In 2009, Chavarria was
charged with, and pleaded guilty to, four counts of distrib‐
uting cocaine.
2 No. 11‐3549
One year later, the United States Supreme Court decided
Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla imposed a du‐
ty on criminal attorneys to inform noncitizen clients of de‐
portation risks stemming from plea agreements, and for the
first time held that the Sixth Amendment supported ineffec‐
tive assistance of counsel claims arising from legal advice, or
the lack thereof, involving the prospect of deportation result‐
ing from guilty pleas. See Chaidez v. United States, 132 S. Ct.
1103, 1110 (2012) (explaining the new Padilla rule). Chavarria
then filed a pro se motion involving such a claim, pursuant to
28 U.S.C. § 2255.
Chavarria alleged that his criminal trial counsel respond‐
ed to his deportation queries by indicating that Chavarria
need not worry about deportation—specifically that “the at‐
torney had checked with the Bureau of Immigration and
Customs Enforcement … and they said they were not inter‐
ested” in deporting him. Chavarria also alleged that his at‐
torney had counseled him to defer to the cues of his attorney
during questioning by the district court. In connection with
his § 2255 motion, Chavarria filed a Petition to Stay Deporta‐
tion Proceedings, but by the time counsel had been appoint‐
ed for these motions, he had already been deported. The
government subsequently sought to dismiss Chavarria’s §
2255 motion based, in part, on the contention that Padilla an‐
nounced a new rule not to be applied retroactively. The dis‐
trict court denied the government’s motion for dismissal,
holding that the Padilla rule could be applied retroactively.
Shortly thereafter, we issued our opinion in Chaidez v.
United States, 655 F.3d 684 (7th Cir. 2011). The Chaidez majori‐
ty concluded that Padilla was a new rule and not retroactive.
In light of Chaidez, the district court vacated its ruling based
No. 11‐3549 3
on the retroactivity of Padilla, and dismissed Chavarria’s §
2255 motion.
Chavarria appealed, challenging both our decision in
Chaidez, and the district court’s application of it here. After
the government filed its response brief, the Supreme Court
granted certiorari in Chaidez and subsequently affirmed. After
Chaidez thus foreclosed Chavarria’s argument that Padilla
was retroactive, he now argues that Chaidez distinguished
between providing no advice (actionable under the Padilla
rule) and providing bad advice (actionable under pre‐Padilla
law).
I.
At the outset we briefly note that Chaidez foreclosed any
argument that Padilla was retroactive, the original basis of
Chavarria’s appeal. On collateral review, lacking retroactivi‐
ty, we will look only to the state of the law at the time the
conviction became final. For that reason, Chavarria original‐
ly argued that Padilla did not propound a new rule, but that
it was merely another step in the evolution of ineffective as‐
sistance claims. However, the Supreme Court decided defini‐
tively that Padilla announced a new rule, which was not ret‐
roactive, when it affirmed our decision in Chaidez. Chaidez,
133 S. Ct. at 1105.
II.
His retroactivity argument gone, Chavarria now argues
that under Padilla only failure to advise of immigration con‐
sequences constitutes ineffective assistance under the Sixth
Amendment, but affirmative misadvice provides an alterna‐
tive basis for a constitutional claim under pre‐Padilla law.
4 No. 11‐3549
This argument about affirmative misadvice is based on
certain Chaidez language, which recognized precedent from
three circuits holding that, pre‐Padilla, misstatements about
deportation could support an ineffective assistance claim.
Chaidez, 133 S. Ct. at 1112 (“Those decisions [in three circuits]
reasoned only that a lawyer may not affirmatively misrepre‐
sent his expertise or otherwise actively mislead his client on
any important matter, however related to a criminal prose‐
cution.”). Thus, Chavarria argues that Padilla is irrelevant to
Chavarria’s situation—because affirmative misrepresenta‐
tions have long been subject to challenge under the test of
Strickland v. Washington, 466 U.S. 668 (1984).
Chavarria’s argument fails, first, because the distinction
between affirmative misadvice and non‐advice was not a
relevant factor in Padilla. Second, the precedent, pre‐Padilla,
supporting the application of Strickland in this context is in‐
sufficient to satisfy Teague v. Lane. 489 U.S. 288, 301
(1989)(holding that to impart retroactivity, a rule must be
supported by ample existing precedent).
A lawyer’s advice about matters not involving the “di‐
rect” consequences of a criminal conviction—collateral mat‐
ters—is, in fact, irrelevant under the Sixth Amendment; such
advice is categorically excluded from analysis as profession‐
ally incompetent, as measured by Strickland. Padilla departed
from this direct‐collateral distinction because of the
“unique” nature of deportation. Padilla, 559 U.S. at 366. That
case determined that “a lawyer’s advice (or non‐advice)”
should not be exempt from Sixth Amendment scrutiny with‐
out reference to the traditional distinction between direct
and collateral consequences. Chaidez, 133 S. Ct. at 1110.
Therefore, in its analysis, the Padilla majority was uncon‐
No. 11‐3549 5
cerned with any distinction between affirmative misadvice
and non‐advice; because, until Padilla was decided, the Sixth
Amendment did not apply to deportation matters at all. Id.
(“It was Padilla that first rejected the categorical approach—
and so made the Strickland test operative—when a criminal
lawyer gives (or fails to give) advice about immigration con‐
sequences.”). Thus, regardless of how egregious the failure
of counsel was if it dealt with immigration consequences,
pre‐Padilla, both the Sixth Amendment and the Strickland test
were irrelevant.
The Chaidez majority jointly referred to both misadvice
and non‐advice throughout its opinion. There is no question
that the majority understood that Padilla announced a new
rule for all advice, or lack thereof, with respect to the conse‐
quences of a criminal conviction for immigration status. If
taken out of context, language in Chaidez offers some sup‐
port for Chavarria’s argument, but that language is contra‐
dicted by a substantial amount of more specific language in
the same opinion. See e.g., Chaidez, 133 S. Ct. at 1110 (refer‐
ring jointly to scrutiny of a lawyer’s misadvice and “non‐
advice”).
Ironically, Chavarria asks us to recognize a distinction be‐
tween misadvice and non‐advice, even though Padilla was
itself about an affirmative misrepresentation. In fact, this dis‐
tinction, which is thin on its own terms, fails on Padilla’s
facts. Thus, Chavarria is essentially asking us to hold that
Chaidez held that the Padilla rule is not retroactive except on
Padilla’s own facts (which involved misadvice). In fact, the
Padilla majority, in responding to the government’s argument
to limit its holding, specifically discussed limiting its holding
to only affirmative misadvice, but did not because of the pos‐
6 No. 11‐3549
sible absurd results. Padilla, 559 U.S. at 370–71. This discus‐
sion signals that the Padilla majority had no intent to exclude
either affirmative misadvice or non‐advice from the new rule
it announced.
Finally, Chavarria relies on cases from three federal cir‐
cuits to prove that the distinction between affirmative mis‐
advice and the failure to advise, and a constitutional rule
based on that distinction constitutes pre‐Padilla precedent.
Yet, under Teague, the rule sought by Chavarria must be dic‐
tated by existing precedent. Teague, 489 U.S. at 301. Chavarria
cannot simply show the existence of such a distinction, but
instead he must show that the distinction was so evident
“that all reasonable judges, prior to Padilla, thought they
were living in a Padilla‐like world.” Chaidez, 133 S. Ct. 1112.
The Court supported this conclusion by reiterating the
trend among the lower courts, which viewed such collateral
deportation matters as beyond the reach of the Sixth
Amendment. Id. at 1113. The Court stated, “[o]n those
courts’ view, the Sixth Amendment no more demanded
competent advice about a plea’s deportation consequences
than it demanded competent representation in the deporta‐
tion process itself. Padilla decided that view was wrong. But
to repeat: it was Padilla that did so.” Id. The material misrep‐
resentations that were upheld by those three circuits cannot
support a constitutional rule to be applied retroactively,
since an old rule is one “limited to those holdings so com‐
pelled by precedent that any contrary conclusion must be
deemed unreasonable.” See Lambrix v. Singletary, 520 U.S.
518, 538 (1997). At the time Chavarria’s case became final,
precedent did not dictate that preclusion of an ineffective
assistance claim was unreasonable when it arose from an at‐
No. 11‐3549 7
torney’s material misrepresentation of a deportation risk.
Thus, even if this Court were to find the misadvice/non‐
advice distinction relevant to this analysis, it does not have
the clear precedential weight to be considered a pre‐Padilla
rule.
The district court correctly concluded that it was bound
by Chaidez and that Padilla had no retroactive effect on Cha‐
varria’s case. Having determined that the distinction be‐
tween affirmative misadvice and failure to advise does not
somehow evade the non‐retroactivity of Padilla, we
AFFIRM.