U.S.A. v. Orocio, 10-1231 (3d. Cir, 2011)

Opinion by Pollak, J. (sitting by designation).:

Orocio, a non-citizen, entered a guilty plea to drug charges without, he claimed, being informed by counsel that his conviction would result, with a high degree of certainty, in removal from the United States.  After his conviction, the Supreme Court of the United States decided Padilla v. Kentucky, which held that guilty plea counsel is required to inform non-citizen defendants of the immigration consequences of a guilty plea.  After his conviction and the Padilla decision was handed down, removal proceedings were begun against Orocio.  He petitioned for writ of coram nobis to vacate his conviction.

First, the Third Circuit considered whether Padilla applied retroactively.  It concluded 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."

Next, the Court held that, although there was strong evidence of Orocio's guilt - including his own confession, he nevertheless "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."  

The Court also concluded that the warning Orocio received from the trial judge (that the terms of his guilty plea would not be binding on the INS, now ICE) was insufficiently specific to put him on notice that his deportation was a near certainty. 

The Court held that there was insufficient evidence on the record to make a determination as to ineffectiveness, but remanded with instructions that suggest that ineffectiveness will be found.

Read the Opinion.