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.
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