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June 29, 2011

Split Third Circuit applies Padilla retroactively, but disagrees on prejudice determination

A notable new Third Circuit ruling today in US v. Orocio, No. 10-1231 (3d Cir. June 29, 2011) (available here), gets started this way:

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. Removal proceedings were initiated in 2007 or later. The record does not establish the precise date. 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 Padilla is retroactively applicable on collateral review, and we therefore vacate the judgment of the District Court and remand for further proceedings.

The dissent gets started this way:

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.

June 29, 2011 at 12:46 PM | Permalink


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It is great news! Finally, the Third Circuit got something right - recently anyway. The Third Circuit used to be quite good, but not anymore. (Judge Becker was one of the good judges.) However, there are still a couple of judges/senior judges on the bench, who are smart, intelligent, and rational; e. g., Theodore McKee, Ruggero Aldisert, et al. Even the Sixth Circuit has at least one senior judge - Gilbert Merritt, who is very sensible. I will write on the actual opinion soon.

Posted by: John Marshall | Jun 29, 2011 3:58:05 PM

"Even the Sixth Circuit has at least one senior judge - Gilbert Merritt, who is very sensible."

Yes, very sensible. Cf., e.g., Bobby v. Mitts, 536 U.S. ___, ___ (2011) (per curiam) (unanimous summary reversal) ("We all but decided the question presented here in Spisak itself.")

I take it the real problem, as you perceive it, is that all nine Justices are so out-of-step with Judge Merritt and his sensibilities rather than the other way around.?

Posted by: guest | Jun 30, 2011 1:04:06 PM


All right, you got me on this one! I do not know why Merritt would do this, but I guess that everyone makes mistakes, and this is Merritt's turn! My hats off to you!

Posted by: John Marshall | Jun 30, 2011 4:52:39 PM

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