United States v. Orocio

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________

No. 10-1231
_______________

UNITED STATES OF AMERICA

v.

GERALD OROCIO,
Appellant
_______________

On Appeal from the United States District Court
For the District of New Jersey
(D.C. Criminal Action No. 2-04-00725-001)
District Judge: Honorable William H. Walls
_______________

Argued January 24, 2011
_______________

Before: FUENTES and CHAGARES, Circuit Judges, and
POLLAK, District Judge *

*
Honorable Louis H. Pollak, Senior Judge of the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
 (Opinion filed: June 29, 2011)

John R. Alcorn, Esq. (Argued)
Sophie M. Alcorn, Esq.
Law Offices of John R. Alcorn
2212 Dupont Drive
Suite V
Irvine, CA 92612

Counsel for Appellant

Mark E. Coyne, Esq.
Camelia Valdes
Office of the United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102-0000

- and -

Norman Gross, Esq. (Argued)
Office of the United States Attorney
Camden Federal Building & Courthouse
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101-0000

Counsel for Appellee

_______________

OPINION OF THE COURT
_______________

2
POLLAK, District Judge.

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

1
Removal proceedings were initiated in 2007 or later. The
record does not establish the precise date.

3
Padilla is retroactively applicable on collateral review, and
we therefore vacate the judgment of the District Court and
remand for further proceedings.

I. Background 2

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

In his coram nobis petition, Mr. Orocio has alleged
that on or about October 7, 2004, Mr. Portelli told him that
the government had offered a plea agreement in which he
would be charged with controlled substance possession
instead of drug trafficking and would receive a sentence of

2
The only source of facts underlying the allegations
contained in this section, apart from the official record in the
underlying criminal proceeding, is Mr. Orocio’s two-page
affidavit filed in support of his petition for writ of error coram
nobis. See App. 38–39 (Orocio Aff.). No other supporting
affidavits, and no opposing affidavits, were submitted, and
the District Court dismissed the petition without conducting
an evidentiary hearing.

4
time served plus a two-year period of supervised release.
According to Mr. Orocio, Mr. Portelli did not inform him of
the immigration consequences of the proposed guilty plea.
Mr. Orocio accepted the plea agreement, and on October 7,
2004, he pled guilty to one count of possession of a controlled
substance (methamphetamine) in contravention of 21 U.S.C.
§ 844. He was sentenced on March 10, 2005, to time served
and two years of supervised release.

Mr. Orocio successfully completed his sentence and
was discharged from supervision in 2007. Subsequent to
completion of his sentence, Mr. Orocio was placed in removal
proceedings. 3 He consulted with an immigration attorney, his
present counsel, who advised him that removal proceedings
were initiated because he had pled guilty to a controlled
substance offense and was therefore facing mandatory
deportation. In hopes of halting the removal proceedings, Mr.
Orocio filed a petition for a writ of error coram nobis 4 in the

3
See note 1, supra.
4
The writ of error coram nobis “is used to attack allegedly
invalid convictions which have continuing consequences,
when the petitioner has served his sentence and is no longer
‘in custody’ for purposes of 28 U.S.C. § 2255.” United States
v. Stoneman, 870 F.2d 102, 105–06 (3d Cir. 1989) (citing
United States v. Morgan, 346 U.S. 502, 512–13 (1954)). The
writ is available to “persons not held in custody [to] attack a
conviction for fundamental defects, such as ineffective
assistance of counsel.” United States v. Rad-O-Lite of
Philadelphia, Inc., 612 F.2d 740, 744 (3d Cir. 1979). Coram
nobis relief is “reserved for exceptional circumstances,”
United States v. Osser, 864 F.2d 1056, 1059 (3d Cir. 1988),
and it is appropriate only “to correct errors for which there

5
District Court on November 30, 2009, and removal
proceedings were stayed pending resolution of the petition.
The basis of Mr. Orocio’s petition was that his plea counsel,
Mr. Portelli, failed in two ways to provide the effective
assistance of counsel required by Strickland. First, Mr.
Orocio argued that Mr. Portelli was ineffective because he did
not try to secure for Mr. Orocio a guilty plea pursuant to the
Federal First Offender Act, 18 U.S.C. § 3607—a disposition
that might ultimately have resulted in dismissal of the
charges. Second, Mr. Orocio argued that (1) Mr. Portelli was
ineffective because he did not advise Mr. Orocio of the
immigration consequences—namely, mandatory removal—of
pleading guilty to drug possession. Mr. Orocio contends that
(2) he would not have pled guilty had he been correctly
advised of that near certainty.

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

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over the petition for

was no remedy available at the time of trial and where ‘sound
reasons’ exist for failing to seek relief earlier,” Stoneman, 870
F.2d at 106 (quoting Morgan, 346 U.S. at 512). Because the
District Court did not address the requirements for coram
nobis relief other than the fundamental defect of Strickland
error, we leave such issues to be addressed in the first
instance on remand.

6
writ of error coram nobis, made available to federal courts in
criminal matters under the All Writs Act, 28 U.S.C.
§ 1651(a), in aid of the courts’ jurisdiction over criminal
proceedings pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

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

III. Discussion

We begin by examining the Supreme Court’s Padilla
decision and its implications. Next, given that (a) Mr.
Orocio’s guilty plea was in 2004, (b) Mr. Orocio completed
his sentence in 2007, and (c) Padilla was decided in 2010, we
assess whether Mr. Orocio is entitled, retroactively, to the
benefit of that ruling. Whether Padilla is retroactive is a
Teague v. Lane problem, and we hold that, under Teague v.
Lane, Padilla is retroactively applicable. We then examine
the two Strickland prongs—ineffective assistance of counsel
and prejudice. With respect to the first prong, we first
evaluate whether Mr. Orocio has alleged a prima facie
ineffective assistance claim under Padilla. We hold that he

7
has. Finally, we turn to prejudice. The District Court,
confining its analysis to prejudice, held as a matter of law that
Mr. Orocio had not been prejudiced because he could not
establish that, had he rejected the proffered guilty plea, there
was a reasonable probability that he would not have been
found guilty at trial. We hold that Mr. Orocio has alleged
sufficient prejudice under Strickland and subsequent case law
to warrant a remand to determine what options he could have
pursued.

A. The Supreme Court decides Padilla

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

To do so, the Court first had to determine whether
Strickland applied at all to advice concerning the immigration
consequences of a plea. Eschewing the view of a number of
state and federal courts that immigration consequences were
“collateral” and thereby beyond the scope of the
representation required by the Sixth Amendment, the Court
held that because “deportation is a particularly severe
‘penalty,’ . . . advice regarding deportation is not
categorically removed from the ambit of the Sixth
Amendment right to counsel.” Id. at 1481–82. Thus, the

8
Court highlighted the need to apply Strickland’s two-prong
test for ineffective assistance of counsel in Jose Padilla’s
case: (1) the performance prong—i.e., “whether counsel’s
representation ‘fell below an objective standard of
reasonableness’”; and (2) the prejudice prong—i.e., “whether
‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’” Id. at 1482 (quoting Strickland, 466 U.S. at
688, 694).

In addressing the first Strickland prong, the Court
concluded that Jose Padilla “ha[d] sufficiently alleged
constitutional deficiency” in his attorney’s failure to advise
him of a plea’s immigration consequences. Id. at 1483. The
Court noted that “the terms of the relevant immigration
statute are succinct, clear, and explicit in defining the removal
consequence for Padilla’s conviction,” which was a
controlled substance offense rendering him removable
pursuant to 8 U.S.C. § 1227(a)(2)(B)(i). Id. The Court went
on to observe that:

Padilla’s counsel could have easily determined
that his plea would make him eligible for
[removal] simply from reading the text of the
statute, which addresses not some broad
classification of crimes but specifically
commands removal for all controlled substances
convictions except for the most trivial of
marijuana possession offenses. Instead,
Padilla’s counsel provided him false assurance
that his conviction would not result in his
removal from this country. This is not a hard
case in which to find deficiency: The
consequences of Padilla’s plea could easily be

9
 determined from reading the removal statute,
his [removal] was presumptively mandatory,
and his counsel’s advice was incorrect.

Id. 5 The Court then rejected the suggestion of the Solicitor
General, as amicus curiae, to limit Strickland in the context
of Padilla’s claim only to the extent he alleged affirmative
misadvice about immigration consequences, as opposed to the
mere failure to provide any advice at all. Id. at 1484–86. In
declining to follow the Solicitor General’s recommendation,
the Court said “[i]t is quintessentially the duty of counsel to
provide her client with available advice about an issue like
[removal] and the failure to do so clearly satisfies the first
prong of the Strickland analysis.” Id. at 1484 (internal
quotation marks omitted).

The Padilla Court expressly refrained from
determining whether Jose Padilla had met the second
Strickland prong and demonstrated that he had been
prejudiced. That issue was remitted “to the Kentucky courts
to consider in the first instance.” Padilla, 130 S. Ct. at 1483–
84.

B. Retroactivity of Padilla

Because Padilla was decided after Mr. Orocio’s

5
Recognizing that “[i]mmigration law can be complex,” the
Court also held that “[w]hen the law is not succinct and
straightforward . . ., a criminal defense attorney need do no
more than advise a noncitizen client that pending criminal
charges may carry a risk of adverse immigration
consequences.” 130 S. Ct. at 1483. This, like Padilla, is not
such a case.

10
conviction became final, we must consider whether
retroactivity principles bar the application of Padilla’s
holding to this case.

1. Teague and retroactivity

In Teague v. Lane, 489 U.S. 288 (1989), the Supreme
Court set forth two regimes governing the retroactive
application of constitutional principles to criminal cases.
Teague divided the world into two categories, “old rules” and
“new rules.” A rule is a “new rule” for Teague purposes “if
the result was not dictated by precedent existing at the time
the defendant’s conviction became final.” Id. at 301. Teague
held that a “new rule” is retroactively applicable to cases on
collateral review if and only if one of two exceptions apply:
(1) the new rule places certain kinds of criminal conduct
beyond the power of the criminal law-making authority to
proscribe; or (2) the new rule is a “watershed rule[] of
criminal procedure” that “alter[s] our understanding of the
bedrock procedural elements that must be found to vitiate the
fairness of a particular conviction.” Teague, 489 U.S. at 311
(emphasis in original) (internal quotation marks omitted). By
contrast, an “old rule,” applies on both direct and collateral
review. See Whorton v. Bockting, 549 U.S. 406, 416 (2007).

Thus, if Padilla did not announce a “new rule,” then
Mr. Orocio would be entitled to invoke the protection of
Padilla even though his conviction had achieved finality and
his sentence was fully served prior to Padilla. If Padilla
announced a “new rule,” however, then Mr. Orocio would
have to demonstrate that it falls within one of the very narrow
Teague exceptions.

11
 2. Does Padilla apply retroactively under
Teague?

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

First, it argues that Padilla is a “new rule” because it
has extended Strickland’s Sixth Amendment analysis to a
non-criminal setting—namely, the failure of criminal defense
counsel to advise a client of the mandatory civil removal
consequences of pleading guilty to drug trafficking charges.
It is true that the precise question of whether the civil removal
consequences of a plea are within the scope of Strickland had
never been addressed by the Supreme Court before Padilla.
But that is an incomplete approach to the Strickland question
presented in this case. The question we confront is whether
counsel has been constitutionally adequate in advising a
criminal defendant whether to accept a plea bargain. The
Court held only one year after Strickland that “the same two-
part standard [of Strickland] . . . [is] applicable to ineffective-
assistance claims arising out of the plea process,” and a court
must therefore determine “whether counsel’s advice [to
accept a plea] was within the range of competence demanded
of attorneys in criminal cases.” See Hill v. Lockhart, 474
U.S. 52, 56–57 (1985) (internal quotation marks omitted). In
Padilla, the Court relied on “recent changes in our
immigration law [that] have made removal nearly an
automatic result for a broad class of noncitizen offenders.”
Padilla, 130 S. Ct. at 1481. Moreover, the Padilla Court
noted that it had “never applied a distinction between direct
and collateral consequences to define the scope of
constitutionally ‘reasonable professional assistance’ required
under Strickland,” a distinction “ill-suited” for removal
scenarios. Id. at 1481–82. The application of Strickland to

12
the Padilla scenario is not so removed from the broader
outlines of precedent as to constitute a “new rule,” for the
Court had long required effective assistance of counsel on all
“important decisions,” Strickland, 466 U.S. at 688, in plea
bargaining that could “affect[] the outcome of the plea
process,” Hill, 474 U.S. at 59. In that light, Padilla is best
read as merely recognizing that a plea agreement’s
immigration consequences constitute the sort of information
an alien defendant needs in making “important decisions”
affecting “the outcome of the plea process,” and thereby
come within the ambit of the “more particular duties to
consult with the defendant” required of effective counsel.
Strickland, 466 U.S. at 688. Far from extending the
Strickland rule into uncharted territory, Padilla reaffirmed
defense counsel’s obligations to the criminal defendant during
the plea process, a critical stage in the proceedings.

Second, the government argues that Padilla “clearly
broke new ground regarding counsel’s duty to advise her
client about [removal], and was not ‘dictated’ by prior
Supreme Court[6] precedent.” We are convinced that Padilla

6
However, nothing in Teague restricts the dictating source to
Supreme Court precedent. That is a condition for habeas
relief under AEDPA, but not a requirement under Teague.
See Williams v. Taylor, 529 U.S. 362, 412 (2000) (O’Connor,
J., for the Court) (“With one caveat, whatever would qualify
as an old rule under our Teague jurisprudence will constitute
‘clearly established Federal law, as determined by the
Supreme Court of the United States’ under [AEDPA]. The
one caveat, as the statutory language makes clear, is that
[AEDPA] restricts the source of clearly established law to this
Court’s jurisprudence.” (citation omitted)).

13
did not “br[eak] new ground” in holding that counsel must
inform a criminal defendant of the immigration consequences
of a guilty plea in order to be constitutionally adequate.
Although the Padilla Court acknowledged that some courts
had previously held that the “‘failure of defense counsel to
advise the defendant of possible [removal] consequences is
not cognizable as a claim for ineffective assistance of
counsel,’” 130 S. Ct. at 1481, the Court straightforwardly
applied the Strickland rule—and the norms of the legal
profession that insist upon adequate warning to criminal
defendants of immigration consequences—to the facts of Jose
Padilla’s case. See id. at 1482 (“Strickland applies to
Padilla’s claim. . . . Under Strickland, we first determine
whether counsel’s representation fell below an objective
standard of reasonableness.” (internal quotation marks
omitted)).

At bottom, our inquiry focuses on whether Padilla’s
application of the Strickland standard to a new factual context
is a “new rule” for Teague purposes. The Strickland standard
“provides sufficient guidance for resolving virtually all
ineffective-assistance-of-counsel claims.” Lewis v. Johnson,
359 F.3d 646, 655 (3d Cir. 2004) (internal quotation marks
omitted). In Lewis, the most recent instance in which we
performed this kind of analysis, we sought to determine
whether the Supreme Court’s decision in Roe v. Flores-
Ortega, 528 U.S. 470, 480 (2000), holding that counsel has a
duty to consult with his client about taking an appeal under
certain circumstances, announced a new rule. We found that
it did not, and in doing so, discussed in some detail the
appropriate retroactivity analysis for cases involving
Strickland.

Looking to the intersection of Strickland and Teague,

14
we made three observations that guide the “new rule” inquiry:
(1) “case law need not exist on all fours to allow for a finding
under Teague that the rule at issue was dictated by . . .
precedent,” Lewis, 359 F.3d at 655; (2) “Strickland is a rule
of general applicability which asks whether counsel’s conduct
was objectively reasonable and conformed to professional
norms based ‘on the facts of the particular case, viewed as of
the time of counsel’s conduct,’” id. (quoting Strickland, 466
U.S. at 690 (emphasis in quotation)); and (3) “‘it will be the
infrequent case that yields a result so novel that it forges a
new rule, one not dictated by precedent,’” id. (quoting Wright
v. West, 505 U.S. 277, 308–09 (1992) (Kennedy, J.,
concurring in judgment) (emphasis omitted)).

“[T]he Strickland Court identified ‘certain basic
duties’ that . . . criminal defense attorneys must carry out to
perform competently within the meaning of the Sixth
Amendment,” including a duty “to consult with the defendant
on important decisions.” Id. at 656 (internal quotation marks
omitted) (emphasis omitted). When the Supreme Court
decides a Strickland case with novel facts, we do not place
“emphasis on the particular duty identified by the [Supreme]
Court . . . as a basis for classifying th[e] rule as ‘new’ for
Teague purposes.” Id. at 655 (emphasis in original). We
look instead to “precedents and then-existing professional
norms” to determine whether the decision “broke . . . new
ground.” Id. at 656.

Padilla followed from the clearly established
principles of the guarantee of effective assistance of counsel.
Strickland and Hill required counsel to advise criminal
defendants at the plea stage in accordance with precedent and
prevailing professional norms to ensure that the defendant
makes an informed, knowing, and voluntary decision whether

15
to plead guilty. Padilla is set within the confines of
Strickland and Hill, as it concerns what advice an attorney
must give to a criminal defendant at the plea stage. When
Mr. Orocio pled guilty, it was “hardly novel” for counsel to
provide advice to defendants at the plea stage concerning the
immigration consequences of a guilty plea, undoubtedly an
“important decision” for a defendant. See Padilla, 130 S. Ct.
at 1485 (“For at least the past 15 years, professional norms
have generally imposed an obligation on counsel to provide
advice on the [removal] consequences of a client’s plea.”).
Padilla “merely clarified the law as it applied to the particular
facts of that case.” Cf. Lewis, 359 F.3d at 655. We therefore
hold that Padilla “broke no new ground in holding the duty to
consult also extended to counsel’s obligation to advise the
defendant” of the immigration consequences of a guilty plea
and “did not ‘yield[] a result so novel that it forge[d] a new
rule.’” See id. at 657, 655 (alterations in original).

The government relies heavily on Justice Alito’s
observation in Padilla that “[u]ntil today, the longstanding
and unanimous position of the federal courts was that
reasonable defense counsel generally need only advise a
client about the direct consequences of a criminal
conviction.” 7 130 S. Ct. at 1487 (Alito, J., concurring in the

7
Justice Alito cited to two federal appellate cases—one
decided in 2000 and the other in 1993—and a 2002 article by
Chin & Holmes in the Cornell Law Review. See 130 S. Ct. at
1487 (Alito, J., concurring in the judgment) (citing United
States v. Gonzalez, 202 F.3d 20 (1st Cir. 2000), United States
v. Banda, 1 F.3d 354 (5th Cir. 1993), and Chin & Holmes,
Effective Assistance of Counsel and the Consequences of
Guilty Pleas, 87 Cornell L. Rev. 697, 699 (2002)).

16
judgment). The government sees this as convincing evidence
that Padilla announced a “new rule.” However, Strickland
did not freeze into place the objective standards of attorney
performance prevailing in 1984, never to change again. See
466 U.S. at 688 (“The Sixth Amendment . . . relies instead on
the legal profession’s maintenance of standards . . . .”
(emphasis added)). The Court’s opinion in Padilla reiterated
this reference to “the practice and expectations of the legal
community: ‘The proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms.’” 130 S. Ct. at 1482 (quoting Strickland, 466 U.S. at
688); id. (“We have long recognized that ‘[p]revailing norms
of practice as reflected in American Bar Association
Standards and the like . . . are guides to determining what is
reasonable . . . .” (alterations in original) (quoting Strickland,
466 U.S. at 688)).

Lower court decisions not in harmony with Padilla
were, with few exceptions, decided before 1995 and pre-date
the professional norms that, as the Padilla court recognized,
had long demanded that competent counsel provide advice on
the removal consequences of a client’s plea. 8 Padilla, 130 S.

8
The large bulk of the authority that excused counsel from
providing advice on removal consequences predates the
professional norms identified in Padilla. See Chin & Holmes,
87 Cornell L. Rev. at nn.67–124 (citing federal and state
cases from 1972 to 2001, the bulk of which are pre-1995));
see also Miller v. State, 11 A.3d 340, 349–51 (Md. Ct. Spec.
App. 2010) (citing federal appellate cases from 1985, 1988,
1989, 1990, 1992, 1993, 2000, and 2003). Judicial opinions
vintage 1995 or older, of course, involve facts from even
earlier dates.

17
Ct. at 1485. While at the time of those early decisions courts
had not yet recognized that a lawyer fails in his professional
duty when he does not advise an alien client of the potentially
grave immigration consequences of a guilty plea, by 2004,
when Mr. Orocio pled guilty, the norms of effective
assistance—norms keyed to contemporaneous professional
standards—had become far more demanding.

Every Strickland claim requires a fact-specific inquiry,
but it is not the case that every Strickland ruling on new facts
requires the announcement of a “new rule.” We have held in
Lewis, 359 F.3d at 655, quoting Justice Kennedy’s
observations in Wright, 505 U.S. at 308–09 (Kennedy, J.,
concurring in the judgment), that under rules that require a
“‘case-by-case examination of the evidence, . . . we can
tolerate a number of specific applications without saying that
those applications themselves create a new rule.’”
Accordingly, a court’s disposition of each individual factual
scenario arising under the long-established Strickland
standard is not in each instance a “new rule,” but rather a new
application of an “old rule” in a manner dictated by
precedent. Padilla is no different.

Indeed, close scrutiny of the Padilla opinion leads us
to consider it not unlikely that the Padilla Court anticipated
the retroactive application of its holding on collateral review
when it considered the effect its decision would have on final
convictions:

We have given serious consideration to the
concerns that the Solicitor General, respondent,
and amici have stressed regarding the
importance of protecting the finality of

18
 convictions obtained through guilty pleas.[9]
We confronted a similar “floodgates” concern
in Hill, but nevertheless applied Strickland to a
claim that counsel had failed to advise the client
regarding his parole eligibility before he
pleaded guilty. . . . A flood did not follow in
that decision’s wake.

130 S. Ct. at 1484–85 (citation omitted) (footnote omitted).
We therefore hold that, because Padilla followed directly
from Strickland and long-established professional norms, it is
an “old rule” for Teague purposes and is retroactively
applicable on collateral review. 10 Mr. Orocio is thus entitled

9
Kentucky, the respondent in Padilla, was concerned that a
ruling in Padilla’s favor “would open the door to innumerable
challenges to pleas” and “greatly lessen the certainty and
finality sought by use of the plea process.” Br. for Resp’t at
19, Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (No. 08-651),
2009 WL 2473880. The United States, as amicus curiae in
support of affirmance, was particularly concerned about a
“strain [on] judicial and prosecutorial resources” caused by
“an influx of challenges to long-final pleas.” Br. of the
United States at 19, Padilla v. Kentucky, 130 S. Ct. 1473
(2010) (No. 08-651), 2009 WL 2509223. Twenty-seven
states, as amici curiae in support of Kentucky, emphasized
their concern that “even an incremental weakness in the
finality of these pleas may have a dramatic effect on the
integrity and effectiveness of the U.S. system of justice.” Br.
of La. et al. at 10–11, Padilla v. Kentucky, 130 S. Ct. 1473
(2010) (No. 08-651), 2009 WL 2564713.
10
In the year since Padilla was decided, state courts and
federal district courts considering Padilla’s retroactivity have

19
to the benefit of its holding.

C. Under Padilla and Strickland, was Mr.
Orocio’s plea counsel ineffective?

Mr. Orocio alleges that neither his prior counsel nor
Mr. Portelli advised him that accepting the proposed guilty
pleas would result in near-mandatory removal from the
United States. We address a question left unanswered by the
District Court: did this alleged failure to advise constitute
ineffective assistance of counsel under the first prong of the
Strickland test? Our analysis is rendered straightforward by
Padilla. Padilla recognized that the failure of defense
counsel to warn a defendant that a plea would make the
defendant eligible for removal is a constitutional defect in
representation that satisfies the first prong of the Strickland
test. 130 S. Ct. at 1483. The facts of Padilla closely mirror
those presented here, and we therefore hold that Mr. Orocio’s
affidavit sufficiently alleges that his counsel was
constitutionally deficient.

Jose Padilla was subject to removal for a controlled
substance offense. His attorney affirmatively misled him,
telling Padilla prior to Padilla’s guilty plea that he “did not
have to worry about immigration status since he had been in
the country so long.” Id. at 1478. While Mr. Orocio does not

reached differing conclusions. See, e.g., Doan v. United
States, 760 F. Supp. 2d 602 (E.D. Va. 2011) (Padilla not
retroactive); United States v. Chaidez, 730 F. Supp. 2d 896
(N.D. Ill. 2010) (Padilla retroactive); Miller v. State, 11 A.3d
340 (Md. Ct. Spec. App. 2010) (Padilla not retroactive);
People v. Garcia, 29 Misc. 3d 756 (N.Y. Sup. Ct. 2010)
(Padilla retroactive).

20
allege that Mr. Portelli affirmatively misled him, Mr. Orocio
does allege that Mr. Portelli wholly failed to advise him of the
near-certain removal consequence of pleading guilty to a
controlled substance offense. The Padilla Court expressly
rejected any requirement that a defendant be affirmatively
misled; for cases such as those in which the consequences can
be divined “simply from reading the text of the statute,” the
mere failure to warn of a removal consequence is
constitutionally deficient representation because “there is no
relevant difference between an act of commission and an act
of omission.” Id. at 1483, 1484 (internal quotation marks
omitted).

We find unpersuasive the government’s argument that,
because Strickland measures counsel’s performance “on the
facts of the particular case viewed as of the time of counsel’s
conduct,” Mr. Orocio’s claim should fail because it was not
reasonable to expect his attorney, in 2004, to predict a
Supreme Court decision nearly six years later. This argument
misses the mark. 11 His attorney is not alleged to be deficient
because he failed to predict the Padilla decision—he is
alleged to be deficient because he did not measure up to
prevailing professional norms demanded of counsel at the
plea stage as required by Strickland and its progeny. The
Strickland decision did not hold that only existing Supreme

11
Indeed, it is at odds with the underlying facts of Padilla.
There, the conviction, the failure to advise, and the plea dated
back to 2002. See Commonwealth v. Padilla, 253 S.W.3d
482, 483 (Ky. 2008). Because Mr. Padilla’s attorney was
found to be deficient under the prevailing professional norms
of 2002, it is not unreasonable to apply those same norms to
Mr. Orocio’s attorney in 2004.

21
Court decisions guide the reasonableness inquiry. Instead, it
said:

More specific guidelines are not appropriate.
The Sixth Amendment refers simply to
“counsel,” not specifying particular
requirements of effective assistance. It relies
instead on the legal profession’s maintenance of
standards sufficient to justify the law’s
presumption that counsel will fulfill the role in
the adversary process that the Amendment
envisions. The proper measure of attorney
performance remains simply reasonableness
under prevailing professional norms.

466 U.S. at 688 (citation omitted). After reiterating that
language from Strickland, the Padilla Court stated that “[t]he
weight of prevailing professional norms supports the view
that counsel must advise her client regarding the risk of
deportation.” 130 S. Ct. at 1482 (citing sources from 1993,
1995, 1997, 1999, 2000, 2002, and 2004). These professional
norms did not come into being on the date of the Padilla
decision, but quite the opposite: the Padilla decision reflected
the fact that these professional norms were well established
long before the Padilla decision—indeed, they were well
established prior to the alleged deficiency of Mr. Orocio’s
attorney. 12 In any event, counsel had been required to adhere
to professional norms in the decades since Strickland, and all
of the sources of prevailing professional norms cited by the
Court in Padilla pre-date Mr. Orocio’s conviction and his
attorney’s failure to advise. It did not take the Padilla
decision to establish what Mr. Portelli was required to do as a
12
See note 11, supra.

22
competent defense attorney.

In light of the long-standing principle that counsel will
be held to the prevailing legal standards of the profession, it is
beyond cavil that Mr. Orocio’s counsel was constitutionally
deficient under the first prong of the Strickland inquiry if, as
is alleged, he did not advise Mr. Orocio of the adverse
immigration consequences of his guilty plea to a controlled
substance offense in accordance with the then-prevailing
professional norms.

D. Was Mr. Orocio prejudiced by his plea
counsel’s ineffectiveness?

Having determined that, assuming the truth of Mr.
Orocio’s affidavit, Mr. Orocio’s counsel was ineffective
under the standard laid out by Padilla and Strickland, and that
Padilla is retroactively applicable, we turn to the question of
whether Mr. Orocio has sufficiently alleged that counsel’s
failure properly to advise prejudiced him. That is, we must
determine “whether ‘there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.’” Padilla, 130 S. Ct.
at 1482 (quoting Strickland, 466 U.S. at 694). A “reasonable
probability” is a standard of proof “somewhat lower” than a
preponderance of the evidence. Strickland, 466 U.S. at 694.

Although the Padilla decision clearly imposes a duty
on counsel during the negotiation of a plea bargain, “a critical
phase of litigation for purposes of the Sixth Amendment
Right to effective assistance of counsel[,] . . . to inform her
noncitizen client that he faces a risk of deportation,” Padilla,
130 S. Ct. at 1486, it does not undertake to provide
instruction on whether a client was prejudiced by the

23
ineffectiveness, id. at 1483–84. Instead, we turn to
longstanding Supreme Court precedent to guide the prejudice
inquiry.

In a challenge to a guilty plea based on ineffective
assistance of counsel, the prejudice inquiry takes the form of
“whether counsel’s constitutionally ineffective performance
affected the outcome of the plea process.” Hill, 474 U.S. at
59 (emphasis added). “[I]n order to satisfy the ‘prejudice’
requirement [of Strickland], the defendant must show that
there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on
going to trial.” Id. “This assessment, in turn, will depend in
large part,” but not exclusively, “on a prediction whether the
[errors] likely would have changed the outcome of a trial.”
Id.

The District Court ultimately based its determination
that there was no prejudice on its finding that Orocio had not
shown that he would have been acquitted, had he gone to
trial. In so doing, the District Court followed an older line of
reasoning in this Circuit which originated in United States v.
Nino, 878 F.2d 101, 105 (3d Cir. 1989). The Supreme Court,
however, requires only that a defendant have rationally gone
to trial in the first place, and it has never required an
affirmative demonstration of likely acquittal at such a trial as
the sine qua non of prejudice. See Hill, 474 U.S. at 59. To
the extent that we have previously interpreted Hill to require
such a showing, the Supreme Court’s intervening decision in
Padilla (of which the District Court did not have the benefit)
has made it clear that that is not appropriate. Instead, “to
obtain relief on this type of claim, a petitioner must convince
the court that a decision to reject the plea bargain would have
been rational under the circumstances,” Padilla, 130 S. Ct. at

24
1485, and a rational decision not to plead guilty does not
focus solely on whether a defendant would have been found
guilty at trial—Padilla reiterated that an alien defendant
might rationally be more concerned with removal than with a
term of imprisonment, see id. at 1483 (recognizing that
“‘[p]reserving a client’s right to remain in the United States
may be more important to the client than any potential jail
sentence’” (quoting St. Cyr, 533 U.S. at 323)). Therefore,
Nino’s requirement that a defendant affirmatively show that
he would been acquitted in order to establish prejudice in this
context is no longer good law. 13 See In re Krebs, 527 F.3d
82, 84 (3d Cir. 2008) (“A panel of this Court may reevaluate
the holding of a prior panel which conflicts with intervening
Supreme Court precedent.”).

Mr. Orocio argues two forms of prejudice from his
attorney’s failure to inform him of possible immigration
consequences. First, he argues that prejudice should be
presumed in his case because the failure to advise of
immigration consequences is “easy to identify and prevent.”
Second, he argues that he suffered actual prejudice because
he would have chosen to go to trial instead of agreeing to a
plea that subjected him to automatic deportation. We reject
his first contention, but we agree with his second.

With respect to presumed prejudice, Mr. Orocio takes
the “easy to identify and prevent” standard from Strickland.
When taken in context, however, the language does not
support a finding of presumed prejudice in this case. The full
passage from Strickland reads as follows:
13
The Nino panel declined to find prejudice where petitioner
“would have pled guilty anyway or, had he not done so, been
found guilty after trial.” 878 F.2d at 105 (emphasis added).

25
 In certain Sixth Amendment contexts, prejudice
is presumed. Actual or constructive denial of
the assistance of counsel altogether is legally
presumed to result in prejudice. So are various
kinds of state interference with counsel’s
assistance. Prejudice in these circumstances is
so likely that case-by-case inquiry into
prejudice is not worth the cost. Moreover, such
circumstances involve impairments of the Sixth
Amendment right that are easy to identify and,
for that reason and because the prosecution is
directly responsible, easy for the government to
prevent.

466 U.S. at 692 (citations omitted) (emphases added). The
Court further held that “actual ineffectiveness claims alleging
a deficiency in attorney performance are subject to a general
requirement that the defendant affirmatively prove prejudice
[because] [t]he government is not responsible for, and hence
not able to prevent, attorney errors that will result in a
reversal of a conviction or sentence.” Id. at 693. Mr. Orocio
does not allege that he was denied the assistance of counsel
altogether, and he does not allege that the government was
responsible for his counsel’s omission or interfered with his
representation. Simply put, he has not alleged the type of
scenario where government-caused prejudice is “so likely”
that an examination into the facts of his particular case is “not
worth the cost.” Accordingly, his argument of presumed
prejudice is unpersuasive, and he must “affirmatively prove
prejudice.”

In order to prove prejudice affirmatively, Mr. Orocio
must show that, “but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”

26
Hill, 474 U.S. at 59. Mr. Orocio’s affidavit states that he
“would have taken his case to trial” if he could not have
secured a plea agreement that would avoid a removal
consequence. App. 39. The District Court held that Mr.
Orocio’s prior concession of guilt during the plea colloquy
was dispositive and necessarily foreclosed a credible,
objectively reasonable claim that he would have nonetheless
rolled the dice and gone to trial in the hope of avoiding
removal:

The Court rejects Mr. Orocio’s argument
because the second prong of Strickland requires
him to show that, but for his counsel’s errors,
there is a reasonable probability that he would
not have [pled] guilty and that he would not
have been convicted at trial. Mr. Orocio has
failed to show this. To the contrary, Mr. Orocio
has not disputed the accuracy of the underlying
facts giving rise to his guilty plea. Because Mr.
Orocio has admitted in open court that he was
guilty of the crime which he was convicted and
does not now challenge his guilt (but merely
asserts that a more favorable plea deal could
have been negotiated on his behalf), the
Strickland test is not satisfied and Mr. Orocio’s
motion cannot prevail.

App. 22. We disagree with this assessment. Mr. Orocio’s
guilty plea does not end the Hill inquiry because, had he not
pled guilty, there would not have been any acknowledgement
of guilt in open court foreclosing a rational decision to go to
trial. Instead, the inquiry must focus on whether Mr. Orocio,
if made aware of the dire immigration consequences of the
proposed guilty plea, could have reasonably chosen to go to

27
trial even though he faced a drug distribution charge
constituting an aggravated felony with a 10-year minimum
sentence. We believe it would have been a reasonable
decision.

In Padilla, the Supreme Court reiterated that
“‘[p]reserving the client’s right to remain in the United States
may be more important to the client than any potential jail
sentence.’” Padilla, 130 S. Ct. at 1483 (quoting INS v. St.
Cyr, 533 U.S. 289, 323 (2001) 14) (alteration in original)
(emphasis added). For the alien defendant most concerned
with remaining in the United States, especially a legal
permanent resident, it is not at all unreasonable to go to trial
and risk a ten-year sentence and guaranteed removal, but with
the chance of acquittal and the right to remain in the United
States, instead of pleading guilty to an offense that, while not
an aggravated felony, carries “presumptively mandatory”
removal consequences. Just as “the threat of [removal] may
provide the defendant with a powerful incentive to plead
guilty to an offense that does not mandate that penalty in
exchange for a dismissal of a charge that does,” id. at 1486,
the threat of removal provides an equally powerful incentive
to go to trial if a plea would result in removal anyway. Mr.

14
In St. Cyr, the Court held, inter alia, that the provisions of
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 curtailing the discretion of the Attorney General
to waive removal of resident aliens did not apply retroactively
to people who had entered into plea agreements expecting
that they would be eligible for discretionary relief because the
possibility of such relief was “one of the principal benefits
sought by defendants deciding whether to accept a plea offer
or instead to proceed to trial.” 533 U.S. at 321–23.

28
Orocio was only 27 years old at the time he entered the plea
agreement, and he rationally could have been more concerned
about a near-certainty of multiple decades of banishment
from the United States than the possibility of a single decade
in prison. Accordingly, we hold that, on the facts as alleged
in his coram nobis petition, a decision by Mr. Orocio “to
reject the plea bargain would have been rational under the
circumstances.” Id. at 1485; accord State v. Sandoval, 249
P.3d 1015, 1021–22 (Wash. 2011) (finding prejudice to
lawful permanent resident defendant on similar facts).

The government further contends that any prejudice to
Mr. Orocio was mitigated by two statements made by the
District Court during the change of plea hearing and the later
sentencing hearing. First, at the change of plea hearing, in
October of 2004, the court made a brief reference to
immigration authorities:

[The court]: Nor is [the plea agreement]—and I
should tell you too—it’s not binding upon any
civil authorities such as the Internal Revenue
Service and it’s not binding upon the
Immigration and Naturalization Service.

Do you understand that?

[Mr. Orocio]: Yes.

App. 66. At the sentencing hearing, in March of 2005, the
court again alluded to immigration authorities:

You also . . . are to cooperate with Immigration
and Customs Enforcement to resolve any
problems with your status in this country. You

29
 are to provide truthful information and abide by
the rules and regulations of Immigration and
Customs Enforcement.

If you are deported, Mr. Orocio, you cannot
come back to this country without first getting
the written permission of the Attorney General
of this country. If you do come back, you are to
report in person to the nearest United States
Probation Office within 48 hours of your re-
entry.

App. 52–53. The gist of the government’s argument is that
these two colloquies, in tandem, put Mr. Orocio on notice that
he could be removed. With that notice, the government
argues, Mr. Orocio should have prepared arguments on
appeal or filed a § 2255 petition. The question under
Strickland and Hill, however, is not whether Mr. Orocio had
later access to remedies, but whether he would have pled
guilty at all.

The allusion to immigration authorities at the change
of plea hearing was insufficient to mitigate the prejudice
suffered by Mr. Orocio. The fact that a plea agreement is not
binding on the Immigration and Naturalization Service did
not alert Mr. Orocio to the fact that his removal was a near
certainty as a consequence of pleading guilty to a controlled
substance offense. Moreover, the single reference to the INS
was in the context of a series of warnings that included a
statement that the plea agreement was not even binding on the
District Court. App. 65. In sum, the warning at the change of
plea hearing was sufficient to alert Mr. Orocio that his plea
was binding on only himself and the government, id., but was
wholly insufficient to alert him of the immigration

30
consequences of a guilty plea.

The allusion to immigration authorities at sentencing
was likewise insufficient to mitigate any prejudice. As the
Padilla Court noted, because the law was “succinct and
straightforward” and “truly clear” with respect to removal for
controlled substance offenses, the District Court’s sensible
advice to Mr. Orocio to cooperate with ICE was too
generalized—and, also, far too late in the process—to
effectively alert Mr. Orocio to the severe removal
consequences of his guilty plea of five months before. 130 S.
Ct. at 1483.

We conclude that, assuming Mr. Orocio can establish
at an evidentiary hearing the facts that he has alleged in his
affidavit, Mr. Orocio will have shown prejudice in the
Strickland sense flowing from the failure of counsel to inform
him, at the time the guilty plea agreement was proffered, of
the grave immigration consequences that acceptance of the
agreement would entail.

IV. Conclusion

Having concluded that Mr. Orocio’s petition for a writ
of error coram nobis failed to allege Strickland prejudice and
hence was deficient as a matter of law, the District Court
dismissed the petition without conducting an evidentiary
hearing. The District Court’s decision pre-dated the Supreme
Court’s decision in Padilla. We have ruled that Padilla has
retroactive application. Accordingly, we will remand this
case to the District Court in order to give that court the
opportunity to decide this case within the framework of

31
Padilla and on the basis of a developed factual record. 15 The
judgment of the District Court will be vacated and the case
remanded to that court.

15
Because we vacate and remand in light of Padilla, we do
not assess Mr. Orocio’s alternative claim of ineffectiveness
with respect to the Federal First Offender Act.

32
United States v. Orocio, No. 10-1231

CHAGARES, concurring in part and dissenting in part.

I join the majority’s opinion as to section III, parts A,
B, and C, but I cannot join section III, part D (“Was Mr.
Orocio prejudiced by his plea counsel’s ineffectiveness?”). In
particular, I disagree with my learned colleagues that Padilla
v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473 (2010) compels
the conclusion that our jurisprudence originating in United
States v. Nino, 878 F.2d 101 (3d Cir. 1989) “is no longer
good law.” Majority Op. 22. I believe our jurisprudence
remains fully intact and I therefore respectfully dissent. I also
disagree with the majority as to its conclusion and judgment.

I.

A.

We have recognized the principle that “[o]ur Court
makes every effort to maintain a consistent body of
jurisprudence,” United States v. Tann, 577 F.3d 533, 541 (3d
Cir. 2009), and we will follow our prior precedential opinions
unless our Court, sitting en banc, reconsiders an opinion, see
Third Circuit Internal Operating Procedure 9.1. In addition,
“[a]s an inferior court in the federal hierarchy, we are, of
course, compelled to apply the law announced by the
Supreme Court as we find it on the date of our decision.”
United States v. City of Phila., 644 F.2d 187, 192 n.3 (3d Cir.
1980).
 We have admonished, however, that if “there has been
no determinative ruling by the Supreme Court on [a]
question, we are bound by [our prior opinions].” Brown v.
United States, 508 F.2d 618, 625 (3d Cir. 1974). Our sister
courts of appeals have similarly required that in the absence
of a clear Supreme Court determination, courts of appeals
should follow their own prior opinions. See, e.g., Rosas-
Castaneda v. Holder, 630 F.3d 881, 887 (9th Cir. 2011)
(noting a Supreme Court decision must be “clearly
irreconcilable” with a prior court of appeals decision to
overrule the decision) (quotation marks and citation omitted);
Awuah v. Coverall N. Am., Inc., 554 F.3d 7, 11 (1st Cir.
2009) (“Given that the Supreme Court has not clearly spoken,
the interests of predictability are served by respecting our
own prior language. . . .”); Garrett v. Univ. of Ala. at
Birmingham Bd. of Trs., 344 F.3d 1288, 1292 (11th Cir.
2003) (“While an intervening decision of the Supreme Court
can overrule a decision of a prior panel of our court, the
Supreme Court decision must be clearly on point.”); United
States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002) (holding “a
clear contrary statement from the Supreme Court” will
compel a court of appeals to depart from a prior decision);
Public Serv. Co. of N.M. v. Gen. Elec. Co., 315 F.2d 306, 310
n.6 (10th Cir. 1963) (holding lower federal courts must apply
“clear, direct, explicit, and unqualified statement[s] of the
Supreme Court”). Accordingly, “[o]bedience to a Supreme
Court decision is one thing, [but] extrapolating from its
implications a holding on an issue that was not before that
Court in order to upend settled circuit precedent law is
another thing.” Main Drug, Inc. v. Aetna U.S. Healthcare,
Inc., 475 F.3d 1228, 1230 (11th Cir. 2007).

2
 B.

Turning to the applicable law, the majority correctly
notes that the Supreme Court in Hill v. Lockhart, 474 U.S. 52
(1985) set forth the standard for analyzing the “prejudice”
prong in challenges to guilty pleas based on ineffective
assistance of counsel. In Hill, the Court held that, to meet the
prejudice prong, “the defendant must show there is a
reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to
trial.” Id. at 59. “This assessment, in turn, will depend in
large part on a prediction whether the [errors] likely would
have changed the outcome of a trial.” Id. The Court in Hill
further explained that courts may examine whether the
defendant “likely would have succeeded at trial,” Hill, 474
U.S. at 59, and observed that “these predictions of the
outcome of a possible trial, where necessary, should be made
objectively . . . ,” id. at 59-60 (citing Strickland v.
Washington, 466 U.S. 668, 695 (1984)).

Subsequent to Hill, this Court decided United States v.
Nino, 878 F.2d at 105-06. In Nino, we considered a claim
that petitioner’s plea counsel was ineffective and that
petitioner’s conviction should be overturned because his plea
counsel failed to advise him regarding the deportation
consequences of his guilty plea. Importantly, we noted that
the record was “replete with evidence of petitioner’s guilt.”
Id. at 105. We held that petitioner could not “show that there
[was] a reasonable probability that but for any error
committed by his counsel the outcome of the proceeding
would have been different,” because “we conclude[d] that
even had petitioner been advised of the deportation
consequences of his guilty plea, he would have pled guilty

3
anyway or, had he not done so, [would have] been found
guilty after trial.” Id. Later decisions in this circuit have
similarly analyzed whether a petitioner would have been
found guilty or even asserted his or her factual innocence, in
considering the prejudice prong.

The majority concludes that this line of our
jurisprudence “is no longer good law” based upon a single
line in Padilla. Although the Supreme Court in Padilla did
not consider whether the petitioner had established prejudice,
it mentioned that “[s]urmounting Strickland’s high bar is
never an easy task.” 130 S. Ct. at 1485. The Court followed
that statement with the line relied upon by the majority: “to
obtain relief on this type of claim, a petitioner must convince
the court that a decision to reject the plea bargain would have
been rational under the circumstances.” Id.

This is certainly not the type of clear, direct, explicit,
and contrary ruling by the Supreme Court that would justify
abandoning our jurisprudence in this area. The Supreme
Court’s statement in Padilla is general and unremarkable and
is consistent with its holding in Hill. The statement says
nothing specific, particularly about the evidence to be
reviewed in making a determination. Accordingly, I cannot
agree that our jurisprudence originating in Nino is no longer
good law.

My conclusion is supported by a more recent Supreme
Court decision, Premo v. Moore, 131 S. Ct. 733 (2011). Like
the present case, Hill, and Nino, Premo presented the issue of
whether the allegedly inadequate assistance of plea counsel
prejudiced a petitioner who entered into a plea agreement.

4
The Court in Premo explicitly recognized that Hill set forth
the proper standard to resolve this issue. Id. at 743, 745.

In reaching its determination that no prejudice had
been shown, the Premo Court looked to the evidence and
noted that it was “formidable.” Id. at 744; see also id. at 745
(“[T]he evidence against [the petitioner] was strong.”).
Further, and importantly, the Court specifically recognized
that the petitioner did not deny committing the crimes
charged. Id. The Court concluded by observing:

Hindsight and second guesses are []
inappropriate, and often more so, where a plea
has been entered without a full trial . . . . The
added uncertainty that results when there is no
extended, formal record and no actual history to
show how the charges have played out at trial
works against the party alleging inadequate
assistance. Counsel, too, faced that uncertainty.
There is a most substantial burden on the
claimant to show ineffective assistance. The
plea process brings to the criminal justice
system a stability and a certainty that must not
be undermined by the prospect of collateral
challenges in cases . . . where witnesses and
evidence were not presented in the first place.
The substantial burden to show ineffective
assistance of counsel, the burden the claimant
must meet to avoid the plea, has not been met in
this case.

Id. at 745-46. Accordingly, although I believe that the Premo
decision supports our jurisprudence, at a minimum, it

5
demonstrates that our jurisprudence has not been clearly,
directly, and explicitly overruled.

II.

Turning to the facts of this case, the District Court
found that Orocio “has not disputed the accuracy of the
underlying facts giving rise to his guilty plea” and the parties
do not contest that that finding is not clearly erroneous.
Appendix (“App.”) 12. 1 In addition, as in Premo, Orocio
does not deny the charges against him; indeed, at oral
argument before this Court, counsel conceded Orocio’s guilt.
Further, according to the Government, Orocio faced a
mandatory minimum sentence of ten years on his drug
trafficking charge. Plea counsel negotiated what was clearly
an extremely favorable plea agreement for Orocio and,
following his guilty plea, he was sentenced to time served (six
months) and two years of supervised release. See App. 43-
44.

Under these circumstances, including Orocio’s failure
to assert his factual innocence and the lenity of the
Government’s plea offer, I conclude that Orocio has not met
his substantial burden of demonstrating a reasonable
probability that the result of the proceeding would have been
different. Accordingly, I believe Orocio failed to establish
the prejudice prong of Strickland and I would affirm the

1
I agree with the majority that a “guilty plea does not end the
Hill inquiry.” Majority Op. 24. I further agree that prejudice
cannot be presumed in this case and that Orocio must
establish actual prejudice to prevail. Majority Op. 22-23.

6
District Court’s order denying Orocio’s petition for a writ of
error coram nobis.

7