United States v. Castro-Taveras

United States Court of Appeals
For the First Circuit
No. 14-1879
UNITED STATES OF AMERICA,
Appellee,
v.
VINCENT F. CASTRO-TAVERAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Barron, Lipez, and Hawkins*,
Circuit Judges.
Peter Goldberger, with whom Pamela A. Wilk was on brief, for
appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, were on brief, for appellee.
October 31, 2016
________________________
* Of the Ninth Circuit, sitting by designation.
LIPEZ, Circuit Judge. In this appeal from a denial of
a coram nobis petition, defendant-appellant Vincent F. Castro-
Taveras ("Castro") argues that his guilty plea entered more than
a decade ago should be vacated because of Fifth and Sixth Amendment
violations. Castro asserts that (i) his counsel provided
ineffective assistance in erroneously advising him that a guilty
plea would not result in any deportation consequences, and (ii)
the prosecutor in the case induced him to enter the plea, thereby
rendering it involuntary, by making a similar misrepresentation
regarding the lack of deportation consequences. Castro also claims
that, even if we deny the writ, he is entitled to a remand for an
evidentiary hearing for further fact-finding.
After careful consideration, we conclude that, while his
Fifth Amendment claim against the prosecutor lacks merit, Castro's
Sixth Amendment claim is not -- contrary to the conclusion of the
district court -- barred by the retroactivity doctrine. We,
therefore, vacate and remand the case. On remand, the district
court should conduct an evidentiary hearing to determine if
Castro's ineffective assistance of counsel claim has merit.
I.
Castro has been a permanent resident of the United States
since November 20, 1995. On July 9, 2002, a grand jury in Puerto
Rico returned a twenty-eight-count indictment charging Castro and
seventeen co-defendants with offenses arising out of an insurance
- 2 -
fraud. Castro was charged in fourteen of those counts, all of
which related to insurance and mail fraud.
With the aid of his attorney, Castro began negotiating
with the government for a plea and cooperation agreement ("plea
agreement"). The plea agreement stated that Castro would plead
guilty to four counts charging conspiracy to commit, and aiding
and abetting, insurance and mail fraud. It also contained a
standard disclaimer stating that "[t]he United States has made no
promises or representations except as set forth in writing in this
[plea agreement] and den[ies] the existence of any other term[s]
and conditions not stated herein." The agreement contained no
information about the deportation consequences of the plea. Castro
entered the plea on December 20, 2002. He subsequently cooperated
with the government and testified at his co-defendant's trial.
Following Castro's conviction, the probation officer
assigned to his case filed a Pre-sentence Investigation Report
("PSR"), which stated, among other things, that Castro "will face
deportation proceedings" as a result of his conviction because of
"the nature of the . . . offense" to which he pleaded guilty.
Castro's counsel objected to the reference to deportation because
"it is not sure if Mr. Castro will be imprisoned as a result of
the sentence to be imposed." The probation officer responded in
an Addendum to the PSR:
- 3 -
The Court should be aware that whether or not
defendant is sentenced to imprisonment term or
probation, the defendant will face deportation
proceedings. According to the Immigration and
Nationality Act, . . . section
101(a)(43)(M)(i) defines defendant's
conviction as an aggravated felony since it is
an offense that involves fraud or deceit in
which the loss to the victim or victims
exceeds $10,000. Furthermore, section
237(a)(2)(A)(iii) of the Act states that at
any time after admission or conviction of an
aggravated felony . . ., any alien is
deportable. Therefore, defendant's sentence
does not change his deportable status with the
Bureau of Immigration and Customs Enforcement
Agency . . . . Based on the abovementioned
information, it is the understanding of the
Probation Officer, that the defendant will
face deportation procedures whether or not he
is sentenced to imprisonment term or to
probation.1
On April 30, 2002, the district court sentenced Castro to three
years' probation. His probation was terminated early, in August
2004.
In June 2011, Castro consulted an immigration attorney
to apply for naturalization. The immigration attorney informed
him that his guilty plea in 2002 barred him from becoming a U.S.
citizen, and that he was subject to mandatory removal based on his
1
Under federal law, the crimes to which Castro pleaded guilty
are deemed aggravated felonies because the plea agreement
specified the amount of loss resulting from his fraudulent conduct
as exceeding $10,000. See 8 U.S.C. § 1101(a)(43)(M)-(M)(i)
(defining the term "aggravated felony" to include "an offense
that . . . involves fraud or deceit in which the loss to the victim
or victims exceeds $10,000").
- 4 -
conviction.2 Castro then brought a petition for a writ of coram
nobis. He argued that his plea should be vacated because his
attorney provided ineffective assistance in erroneously advising
him that a probation sentence from his guilty plea would not affect
his immigration status.3 In response to the district court's order
to show cause, Castro also alleged that the Assistant United States
Attorney ("AUSA") in the case provided a similar assurance during
the plea negotiations that he would not face a risk of deportation
as a result of his plea. In support, he averred in an affidavit:
I recall that on several occasions during the
meetings with [the AUSA], he told me that I
was not going to have problems with
immigration, and that they were not going to
intervene with me; that is how I interpreted
it.
The district court denied Castro's petition. The court
found that Castro's Sixth Amendment claim is barred because its
success necessarily depends on the retroactive application of
2 Under 8 U.S.C. § 1227(a), (a)(2)(A)(iii), "[a]ny alien who
is convicted of an aggravated felony" "shall, upon the order of
the Attorney General, be removed."
3 The same counsel who allegedly provided ineffective
assistance during Castro's plea negotiations also represented
Castro in the coram nobis proceedings below. That counsel wrote
in the motion requesting the writ that he "certifies that to the
best of his recollection, . . . the advice given to Mr. Castro was
that a sentence of probation would not result in deportation and
that no reference was made to or discussed about the term
aggravated felon on account of the amount of the fraud included in
the version of facts appended to the plea and cooperation
agreement."
- 5 -
Padilla v. Kentucky, 559 U.S. 356, 364-74 (2010), and Padilla does
not apply retroactively to Castro's claim in light of Chaidez v.
United States, 133 S. Ct. 1103, 1110-12 (2013). In Padilla, the
Supreme Court held that an attorney's incorrect advice or failure
to advise on the deportation consequences of a criminal conviction
provides a basis for an ineffective assistance of counsel claim.
See 559 U.S. at 364-71. In so holding, the Padilla Court
overturned the prevalent rule in the circuits, including ours,
that deportation consequences do not implicate the Sixth Amendment
right to counsel -- at least when the claim is one of a failure to
advise -- because they are only collateral consequences of a
criminal proceeding. See id. at 364-66, 365 n.9 (citing circuit
cases, including United States v. Gonzalez, 202 F.3d 20 (1st Cir.
2000), that categorized the risk of deportation as a collateral
consequence precluded from the Sixth Amendment's protection). A
few years later, the Supreme Court decided in Chaidez that Padilla
announced a new rule at least as to failure-to-advise claims
concerning immigration matters.
The district court also dismissed Castro's claim against
the prosecutor, which the court understood as inextricably linked
to his Sixth Amendment claim, consistent with Castro's
presentation of the argument. The court found that Castro's claim
concerning the prosecutor's misrepresentation lacks merit because
the AUSA is "not the defendant's counsel," and Castro failed to
- 6 -
show "how the purported remarks by the AUSA interfered with his
lawyer's ability to make independent decisions about his defense."
Additionally, the court denied his request for an evidentiary
hearing because it would be futile. This appeal followed.
II.
In reviewing a district court's decision on a coram nobis
petition, "we afford de novo review to [the court's] legal
conclusions and clear-error review to its findings of fact."
United States v. George, 676 F.3d 249, 256 (1st Cir. 2012). Where,
as here, the district court denies the writ as a matter of law
without an evidentiary hearing, our review is plenary. Id.
A writ of coram nobis is "a remedy of last resort for
the correction of fundamental errors of fact or law." Id. at 253.
To show that the writ is warranted, "a coram nobis petitioner must
explain his failure to seek earlier relief from the judgment, show
that he continues to suffer significant collateral consequences
from the judgment, and demonstrate that the judgment resulted from
an error of the most fundamental character." Id. at 254.
Additionally, even when the three requirements are satisfied, the
court retains discretion to deny the writ if the petitioner fails
to show that "justice demands the extraordinary balm of coram nobis
relief." Id. at 255. The primary point of dispute in this case
is the third requirement of the tripartite test. Castro claims
that the alleged violations of his Fifth and Sixth Amendment rights
- 7 -
constitute fundamental errors, while the government challenges the
existence of any error.
Specifically, Castro argues on appeal that his Sixth
Amendment claim is not governed by Padilla because Padilla
announced a new rule only as to an attorney's failure to advise on
the deportation consequences of a conviction, whereas his claim is
based on counsel's affirmative misrepresentation regarding such
matters. Similarly, Castro contends that the district court
"misinterpreted" his argument against the AUSA as a Sixth Amendment
claim, when the court should have understood it as a direct Fifth
Amendment argument separate and apart from his ineffective
assistance claim. The government counters that Castro's claims
cannot succeed in any event -- regardless of the validity of the
district court's analysis -- because the evidence suggests that he
knew of the deportation consequences of his conviction prior to
entering the plea. To support this contention, the government
introduced for the first time on appeal the transcript of a co-
defendant's trial at which Castro testified as a government
witness.
We decline to consider the transcript in assessing the
merits of Castro's constitutional claims. As a general matter, we
"do not consider evidence that was not part of the district court
record." United States v. Farrell, 672 F.3d 27, 31 (1st Cir.
2012); Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 682
- 8 -
F.2d 12, 22 n.8 (1st Cir. 1982) (noting that courts of appeals
"may not ordinarily consider factual material not presented to the
court below").4 Moreover, even if we were to take judicial notice
of the transcript, as the government urges us to do, we would not
rely on testimony from a different prosecution, untested in this
case by the adversarial process, to dispose of Castro's Sixth
Amendment claim.5 Hence, we deem it prudent to remand the case
4 The government cites Dobbs v. Zant, 506 U.S. 357, 358-59
(1993) (per curiam), in support of its argument that we should
consider the transcript and affirm, on that ground, the district
court's denial of Castro's coram nobis petition. Dobbs, however,
is distinguishable. In Dobbs, the district court had rejected a
habeas petitioner's ineffective assistance of counsel claim based
on the counsel's own testimony about his performance during the
closing argument, and the court of appeals affirmed on the same
ground. Id. at 358. When the petitioner discovered the previously
unavailable sentencing transcript following these decisions and
presented it in a subsequent appeal, the court of appeals refused
to consider it. Id. The Supreme Court found that such refusal to
consider the transcript -- while summarily affirming the denial of
the habeas petition -- was error because the transcript would have
"flatly contradicted the account given by counsel in key respects,"
and the delay in discovery "resulted substantially from the State's
own erroneous assertions that closing arguments had not been
transcribed." Id. at 358-59. By contrast, the government, which
had previously conceded the unavailability of the transcript, is
asking us to consider the transcript that it discovered in its
file cabinet allegedly to the detriment of Castro, and to do so in
order to affirm the district court's denial of Castro's coram nobis
petition. Additionally, we have here not only Castro's own account
in support of his Sixth Amendment argument, but also his counsel's
admission that he erroneously advised Castro as to the deportation
risk. Hence, the equities of the case are reversed from those in
Dobbs -- in favor of not relying on the transcript, for the first
time, to affirm the denial of Castro's petition and thereby giving
Castro a chance to dispute its contents in the district court.
5 We also note that the cited testimony is not so explicit
that it alone could conclusively establish that Castro knew of the
removal risk of his conviction at the time he entered the plea.
- 9 -
for an evidentiary hearing to determine whether Castro can
establish ineffective assistance of counsel, on the basis of all
relevant evidence.
A. Ineffective Assistance of Counsel Claim
1. Retroactivity
The retroactivity of a criminal procedure decision by
the Supreme Court turns on whether that decision constituted a new
rule at the time a defendant's conviction became final. See Teague
v. Lane, 489 U.S. 288, 301, 305-10 (1989). Simply put, barring
two exceptions not relevant here,6 a criminal defendant may not
benefit from a new rule in a collateral challenge to his
conviction. Id. at 310. A decision announces a new rule "when it
breaks new ground or imposes a new obligation" on the government.
Id. at 301.
The Teague analysis sets a high bar for retroactivity.
A Supreme Court holding will be deemed a new rule -- and, hence,
will not apply retroactively to a defendant's collateral challenge
Rather, even if the transcript were considered, the district court
would need to hold an evidentiary hearing to resolve the factual
question of Castro's knowledge.
6
The two exceptions to the retroactivity rule are when the
new rule "places certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to
proscribe," and when the new rule "requires the observance of those
procedures that . . . are implicit in the concept of ordered
liberty." Teague, 489 U.S. at 307 (internal quotation marks
omitted) (ellipses in Teague). Under such circumstances, the new
rule applies retroactively to a collateral challenge.
- 10 -
-- unless the outcome required by that holding would have been
"dictated by precedent existing at the time the defendant's
conviction became final." Teague, 489 U.S. at 301. An outcome is
"dictated" only if "it would have been 'apparent to all reasonable
jurists.'" Chaidez, 113 S. Ct. at 1107 (quoting Lambrix v.
Singletary, 520 U.S. 518, 527-28 (1997)).
At times, the nature of the legal principle at issue
before the Supreme Court will mean that a "new" Supreme Court
holding will not give rise to a "new rule" subject to the
retroactivity bar. In particular, a case that merely applies a
pre-existing principle to different facts does not create a new
rule. See Teague, 489 U.S. at 307; Chaidez, 133 S. Ct. at 1107.
Indeed, "'[w]here the beginning point' of [the Court's] analysis
is a rule of 'general application, a rule designed for the specific
purpose of evaluating a myriad of factual contexts, it will be the
infrequent case that yields a result so novel that it forges a new
rule, one not dictated by precedent.'" Chaidez, 133 S. Ct. at
1107 (quoting Wright v. West, 505 U.S. 277, 309 (1992) (Kennedy,
J., concurring in the judgment)) (first alteration in Chaidez).
To put it differently, when a holding "appl[ies] a general standard
to the kind of factual circumstances it was meant to address,"
that holding "will rarely state a new rule for Teague purposes."
Id. (emphasis added).
- 11 -
Even when a Supreme Court holding constitutes a new rule,
however, a defendant may still be able to take advantage of the
legal principle it articulates in a collateral proceeding. That
would be so if the applicable circuit law, at the time the
defendant's conviction became final, was consistent with the
Supreme Court's subsequently pronounced rule -- i.e., if circuit
precedent anticipated the path the Supreme Court would take, even
though that law "would [not] have been 'apparent to all reasonable
jurists.'" Chaidez, 113 S. Ct. at 1107 (quoting Lambrix, 520 U.S.
at 527-28; see, e.g., United States v. Kovacs, 744 F.3d 44, 50-51
(2d Cir. 2014) (identifying the circuit precedents that preceded
Padilla).
In general, then, a defendant in collateral proceedings
may benefit from a favorable Supreme Court holding only if he would
have been entitled to the same outcome at the time his conviction
became final -- either because the holding is not a new rule under
Teague or because the holding, even if a new rule, nonetheless
reflects the law that would have governed his own case.
Castro concedes that his conviction became final in May
2003, long before the Supreme Court issued its decision in Padilla.
Thus, we must first examine the decision in Padilla to determine
what portion of its holding constituted a new rule. Specifically,
we must determine whether the new rule the Court articulated for
ineffective assistance of counsel claims included misadvice on
- 12 -
deportation consequences, as well as the failure to advise. The
scope of the new rule guides our review of the lower-court
precedent prior to 2003 to determine whether Castro may proceed
with his Sixth Amendment claim.7
2. Padilla's New Rule
Padilla held that an attorney's failure to advise
regarding deportation consequences of a guilty plea, or the
rendering of misadvice about those consequences, may constitute
deficient performance under the Strickland standards. 559 U.S. at
373-74; see also Strickland v. Washington, 466 U.S. 668, 687-88
(1984) (articulating the two-pronged inquiry for ineffective
assistance of counsel claims). As Chaidez later clarified,
however, Padilla also made a threshold determination that an
attorney's misadvice or non-advice regarding such matters is
within the ambit of the Sixth Amendment's guarantee of effective
counsel, even though deportation matters are collateral, not
7
Padilla's new rule plainly governs failure-to-advise claims,
see infra, leaving three possibilities for Padilla's impact on
misadvice claims. First, the new rule may encompass such claims,
meaning that Castro may avail himself of the misadvice holding
under Teague only if there was First Circuit precedent prior to
2003 that would have dictated the same outcome as Padilla would in
this case. See Chaidez, 133 S. Ct. at 1110-12. Second, the
misadvice portion of Padilla's holding may reflect established
law, and thus not be part of the new rule -- in which case Castro
may rely on that holding (at least assuming there was no contrary
First Circuit precedent as of 2003). Third, as explained below,
neither of these alternatives may be clearly discernible from
Padilla and Chaidez, requiring us to examine our own and other
courts' cases to determine the state of the law as of 2003.
- 13 -
direct, consequences of the criminal proceeding. 133 S. Ct. at
1108; see Padilla, 559 U.S. at 366 (holding that "advice regarding
deportation is not categorically removed from the ambit of the
Sixth Amendment right to counsel"). Indeed, Padilla determined
that deportation consequences are "ill suited" to the then-
prevalent collateral-direct framework because deportation is "an
integral part . . . of the penalty that may be imposed" on aliens
who plead guilty to specified crimes. 559 U.S. at 366, 364. This
threshold determination, as Chaidez later held, is what gave rise
to a new rule in Padilla, and hence is key to understanding what,
among Padilla's holdings, Chaidez held constituted a new rule under
Teague. See 133 S. Ct. at 1108-09.
At the outset, it is an uncontroversial statement of the
law to say that Padilla announced a new rule, at a minimum, as to
non-advice claims. In Chaidez, petitioner -- who alleged that her
attorney failed to advise her of the deportation consequences of
her conviction -- argued that Padilla did not announce a new rule,
even as applied to her claim, because Padilla merely extended
Strickland -- a rule of general applicability -- to the new factual
context of deportation consequences. 133 S. Ct. at 1111. The
Chaidez Court rejected this argument. Distinguishing between the
questions of "how the Strickland test applied ('Did this attorney
act unreasonably?')" and "whether the Strickland test applied
('Should we even evaluate if this attorney acted unreasonably?'),"
- 14 -
id. at 1108, the Court noted that Padilla answered the latter
before addressing the former, or, more precisely, it had to do so
in light of the then-prevalent collateral-direct distinction. Id.
at 1108-09. Indeed, as the Chaidez Court saw it, the Supreme
Court's earlier decision in Hill v. Lockhart, 474 U.S. 52 (1985),
"left open whether advice concerning a collateral consequence must
satisfy Sixth Amendment requirements,"8 133 S. Ct. at 1108, and
the lower courts, in filling that vacuum, "almost unanimously
concluded that the Sixth Amendment does not require attorneys to
inform their clients of a conviction's collateral consequences,"
id. at 1109 (emphasis added). In the face of this near-unanimous
rule, Padilla's answer to the "preliminary question about
Strickland's ambit" -- "Yes, Strickland governs here" -- "required
a new rule" that "altered the law of most jurisdictions." Id. at
1108, 1110.
8 In Hill, a habeas petitioner alleged, inter alia, that his
guilty plea was involuntary because his counsel had misinformed
him as to his parole eligibility. 474 U.S. at 54. In denying the
petition, the district court noted that, even if petitioner's
misadvice claim has merit, parole eligibility "is not such a
[direct] consequence of [petitioner's] guilty plea that such
misinformation renders his plea involuntary," id. at 55 (quoting
the district court's opinion), and the court of appeals affirmed.
The Supreme Court found it "unnecessary," however, to decide
"whether there may be circumstances under which erroneous advice
by counsel as to parole eligibility may be deemed constitutionally
ineffective assistance of counsel" because, in that case, the Court
"conclude[d] that petitioner's allegations [were] insufficient to
satisfy the [Strickland] requirement of 'prejudice.'" Id. at 60.
- 15 -
Chaidez's reasoning as articulated above makes clear
that the new rule in Padilla arose from the analytical step of
removing deportation consequences from the collateral-direct
framework, and -- given "the law of most jurisdictions" it altered
with respect to failure-to-advise claims -- the new rule
necessarily included failure-to-advise claims within its scope.
Id. at 1110. What is less clear, however, is whether the new rule
-- so premised on the necessity of rendering deportation
consequences immune to the strict collateral bar -- extends to
affirmative misrepresentation claims. There is no question, for
instance, that Padilla's holding encompasses both misadvice and
non-advice claims. See 559 U.S. at 370 (noting that the Court's
recognition of the uniqueness of deportation consequences does not
distinguish "between an act of commission and an act of omission").
Additionally, there is language in Chaidez that seems to favor
interpreting the new rule broadly. According to Chaidez, Padilla's
answer to the threshold question "breach[ed] the previously chink-
free wall between direct and collateral consequences," 133 S. Ct.
at 1110, a statement which suggests that the Chaidez Court
understood the collateral-direct distinction to be a blanket rule
that includes both misrepresentation and failure-to-advise claims.
Relatedly, the Chaidez Court wrote that "it was Padilla that first
rejected that categorical approach -- and so made Strickland
operative -- when a criminal lawyer gives (or fails to give) advice
- 16 -
about immigration consequences." Id. (emphasis added); see also
id. (noting that Padilla held that, "however apt [the collateral-
direct distinction] may be in other contexts, it should not exempt
from Sixth Amendment scrutiny a lawyer's advice (or non-advice)
about a plea's deportation risk" (emphasis added)). Indeed, at
least one circuit has interpreted Chaidez's reading of Padilla's
new rule to include misadvice claims, as well as non-advice claims.
See Chavarria v. United States, 739 F.3d 360, 364 (7th Cir. 2014)
(holding that pre-Padilla "precedent did not dictate that
preclusion of an ineffective assistance claim was unreasonable
when it arose from an attorney's material misrepresentation of a
deportation risk"); see also United States v. Chan, 792 F.3d 1151,
1161-63 (9th Cir. 2015) (Ikuta, J., dissenting) (arguing that
Padilla announced a new rule as to both misadvice and non-advice
claims).
We think, however, that a more plausible interpretation
of Padilla and Chaidez is that, while the Supreme Court certainly
decided that Padilla's new rule covers failure-to-advise claims,
the Court did not affirmatively speak on whether Padilla's holding
regarding misadvice also constituted a new rule. See, e.g., Chan,
792 F.3d at 1156 ("[T]he language of both Chaidez and Padilla
indicates that a [lower] court would not be creating a new rule by
holding only that defense counsel's affirmative misrepresentations
regarding immigration consequences could constitute an
- 17 -
[ineffective assistance of counsel] claim."). First, the context
of the Padilla decision suggests that the Court forged a new rule
specifically to extend the Sixth Amendment's protection to non-
advice claims. In his post-conviction proceeding, petitioner
Padilla claimed that his counsel "not only failed to advise him of
[the deportation] consequence prior to his entering the plea, but
also told him that he 'did not have to worry about immigration
status since he had been in the country so long.'" 559 U.S. at
359 (quoting the lower court opinion). In denying his habeas
petition, the Kentucky Supreme Court applied the collateral bar to
both claims. See 559 U.S. at 359-60 (describing the state supreme
court's view that "neither counsel's failure to advise petitioner
about the possibility of removal, nor counsel's incorrect advice,
could provide a basis for relief" because "erroneous advice about
deportation . . . is merely a 'collateral' consequence of his
conviction"). Issues of both misadvice and non-advice, therefore,
were before the Supreme Court. See Br. of Petitioner at i, Padilla
v. Kentucky, 559 U.S. 356 (2010), 2009 WL 1497552, at *i
("QUESTIONS PRESENTED . . . 2. If a criminal defense attorney
falsely advises a non-citizen client that his plea of guilty will
not result in deportation, can that misadvice constitute
ineffective assistance of counsel under the Sixth Amendment?").
When framing the analysis, however, the Padilla Court
narrowed its focus, stating, "[w]e granted certiorari . . . to
- 18 -
decide whether, as a matter of federal law, Padilla's counsel had
an obligation to advise him that the offense to which he was
pleading guilty would result in his removal from this country."
Id. at 360. Consistently, after finding that the risk of
deportation is "ill suited" to the collateral-direct distinction,
id. at 366, the Padilla Court examined whether a failure to advise
a client regarding that risk can rise to the level of deficient
performance under the first prong of the Strickland inquiry,
without any reference to affirmative misrepresentations, id. at
366-69. Hence, the Court concluded, in that analysis, only that
"the weight of prevailing professional norms supports the view
that counsel must advise her client regarding the risk of
deportation." Id. at 367 (emphasis added).
There is a dichotomy, then, between the scope of the
claims that were before the Padilla Court -- which included both
misadvice and non-advice claims -- and the depth of the analysis
that the Court devoted to each claim -- i.e., providing extensive
reasoning for why a failure to advise could constitute deficient
performance under Strickland, while providing no comparable
reasoning for how misadvice could constitute such performance,
once the risk of deportation is removed from the collateral-direct
framework. We infer from this dichotomy a distinction between
Padilla's holding and Padilla's new rule for Teague purposes.
Given that both misadvice and non-advice claims were at issue and
- 19 -
that the Kentucky Supreme Court had applied the collateral bar to
both, Padilla's holding had to address both claims, even if the
Court decided that non-advice claims are not subject to Strickland.
The Court, however, did decide to include non-advice claims in the
scope of the Sixth Amendment's ambit, rather than simply including
misadvice claims, as the Solicitor General had urged the Court to
do. See id. at 369-70. Then, the Court provided extensive
justification for why a failure to advise violated the Sixth
Amendment. Hence, we think it a reasonable inference that the
Padilla Court discussed the non-advice part of the holding at
length because the Court believed it to be "break[ing] new ground,"
Teague, 489 U.S. at 301, as to failure-to-advise claims.
Indeed, it is in this context that the Court's statement
-- "there is no relevant difference 'between an act of commission
and an act of omission'" for Strickland purposes, Padilla, 559
U.S. at 370 -- should be understood. More than anything, this
statement served as an explanation for the Court's decision to
reach a failure-to-advise claim as part of its holding -- an
explanation that, again, was necessary in light of what the Padilla
Court acknowledged was a pervasive rule barring such claims under
the Sixth Amendment. See id. at 365 & n.9 (noting that the Kentucky
Supreme Court is "far from alone" in holding that the "failure of
counsel to advise the defendant of possible deportation
consequences is not cognizable as a claim for ineffective
- 20 -
assistance of counsel"). That statement about the scope of its
holding does not speak to what the Padilla Court construed as the
scope of a new rule.9
We do not go so far as to say, however, that Padilla and
Chaidez have to be read as affirmatively excluding
misrepresentation claims from the scope of the new rule. There is
simply no analysis in Padilla that speaks to the state of the law
in the lower courts concerning whether misrepresentation claims
are within the Sixth Amendment's protection.10 See id. at 364-74.
9 The final paragraph of the Chaidez opinion is to similar
effect. After stating that "[t]his Court announced a new rule in
Padilla," the majority goes on to say that, "[u]nder Teague,
defendants whose convictions became final prior to Padilla
therefore cannot benefit from its holding." 133 S. Ct. at 1113
(emphasis added). While this summary statement refers to the
Court's "holding," it does not say that the entire holding
constitutes the new rule that Padilla announced.
10 We acknowledge that Justice Alito's concurrence in Padilla,
joined by the Chief Justice, provides support for reading Padilla's
new rule to exclude misadvice on deportation. See 559 U.S. at
383-87. Arguing that the Court should have held only that
"mislead[ing] a noncitizen client regarding the removal
consequences" violates Strickland, Justice Alito wrote that the
Padilla Court's non-advice holding "mark[ed] a major upheaval"
because it did not have support in the existing Sixth Amendment
law. Id. at 383. As he explained, the Padilla majority did not
cite "a single case, from [the Supreme Court] or any other federal
court, holding that criminal defense counsel's failure to provide
advice concerning the removal consequences of a criminal
conviction violates a defendant's Sixth Amendment right to
counsel." Id. By contrast, he noted, "the conclusion that
affirmative misadvice regarding the removal consequences of a
conviction can give rise to ineffective assistance would . . . not
[have] require[d] any upheaval in the law" because federal courts
of appeals held prior to Padilla that misadvice about collateral
matters could violate the Sixth Amendment. Id. at 386-87.
- 21 -
Indeed, other than the Kentucky Supreme Court's decision, the
Padilla Court did not cite any case that applied the collateral
bar to misadvice claims. See id. at 365 n.9 (citing only failure-
to-advise cases of the lower courts). Moreover, as we previously
noted, Chaidez contains language suggesting that both misadvice
and non-advice claims are part of the new rule, see, e.g., 133
S. Ct. at 1110 ("It was Padilla that first rejected th[e]
categorical approach -- and so made the Strickland test operative
-- when a criminal lawyer gives (or fails to give) advice about
immigration consequences."). Most importantly, perhaps, when
addressing the three federal circuit decisions that had a separate
rule for misrepresentation claims prior to Padilla (i.e.,
subjecting them to Strickland, even while excluding non-advice
claims), the Chaidez Court described such a rule as a "minority"
view held by "three federal circuits (and a handful of state
courts)," id. at 1112 -- rather than a well-established principle
of law that would have definitively rendered Padilla's holding on
misadvice a mere application of Strickland to a different factual
context. See, e.g., id. at 1107 (noting that, when a holding
"appl[ies] a general standard to the kind of factual circumstances
We are reluctant to rely on this analysis in interpreting
Padilla (and Chaidez), however, because the majority opinion in
Padilla did not address the lower court decisions on misadvice
claims. See id. at 369-74. Moreover, as we note above, there is
language in Chaidez that favors construing Padilla's new rule more
broadly.
- 22 -
it was meant to address," that holding will "rarely state a new
rule for Teague purposes").
Still, such language in Chaidez does not show that
Padilla's new rule has to include affirmative misrepresentations
on immigration matters. Misadvice was not at issue in Chaidez and
hence the Court had no occasion to address it. See 133 S. Ct. at
1106. And the Chaidez Court itself cited only non-advice cases in
describing the "almost unanimous[]" rule of the lower courts that
was then reversed by Padilla. Id. at 1109-10. Moreover, if read
to hold that Padilla's new rule extends to misadvice claims, these
statements would seemingly be inconsistent with other language in
Chaidez. The Court elsewhere observed that the approach to
misrepresentations taken in the three aforementioned federal
circuits "co-existed happily" with the prevailing view that the
failure to advise on deportation consequences did not implicate
the Sixth Amendment. Id. at 1112. In other words, the Court
appeared to recognize a different Sixth Amendment status in the
lower courts for misadvice claims, viewing their favorable
treatment as compatible with "the law of most jurisdictions"
deeming non-advice claims outside Strickland's scope. Id. at 1110;
see also id. at 1112 (noting that the "separate rule for material
misrepresentations" recognized by the three courts "lived in
harmony with the exclusion of claims like [Chaidez's] from the
Sixth Amendment").
- 23 -
What we are left with, then, is a bifurcated holding of
Padilla, one of which is, without a doubt, a new rule, and the
novelty of the other debatable in light of the Padilla and Chaidez
decisions. In particular, different elements of the two Supreme
Court cases seem to pull in different directions. The context of
Padilla suggests that the Padilla Court forged a new rule
specifically to extend the Sixth Amendment's protection to
failure-to-advise claims regarding immigration consequences.
Certain language in Chaidez, however, as well as the absence of
any acknowledgment in Padilla that misadvice claims had been
subject to Strickland theretofore in the lower courts, precludes
us from construing the two decisions as affirmatively excluding
misadvice claims from the scope of the new rule.
3. State of the Law Regarding Strickland and
Misrepresentations on Collateral Matters
Having concluded that Padilla and Chaidez left undecided
the question of whether Padilla's new rule excludes (or includes)
misrepresentation claims, we must undertake our own analysis as to
whether Padilla's holding on misadvice would have constituted a
new rule based on the state of the law in the lower courts as of
2003. Indeed, the relevant question, in the language of Teague,
is whether the lower courts in 2003 would have considered
application of Strickland to a misadvice claim regarding
deportation consequences "a garden-variety application of the test
- 24 -
in Strickland," Chaidez, 133 S. Ct. at 1107, such that it was
"apparent to all reasonable jurists," Lambrix, 520 U.S. at 528,
that Strickland applied to Castro's claim.
Our own circuit precedent can be dispositive in this
analysis. If Padilla's holding on misadvice constituted a new
rule in 2003 based on the state of the law in the lower courts,
then Castro's Sixth Amendment claim would be barred under Teague,
unless he can show that the First Circuit was an exception -- i.e.,
we had a case prior to 2003 that would have dictated the same
outcome as Padilla would in this case. See, e.g., Kovacs, 744
F.3d at 50-51. If, on the other hand, the state of the law in the
lower courts indicates that Padilla's holding on misadvice was not
a new rule, then Castro may avail himself of that holding, unless
perhaps we -- like the Kentucky Supreme Court in Padilla -- had
excluded misadvice claims from the Sixth Amendment's scope prior
to 2003. Hence, we begin our analysis with our own case law.
a. Our Circuit
Neither of these two grounds for resolving the
retroactivity issue based only on First Circuit case law applies
here. As of 2003, we did not have a Sixth Amendment case holding
that an attorney's misrepresentation on the risk of deportation is
subject to Strickland, nor did we explicitly exclude such
misrepresentations from the Sixth Amendment's scope. As to the
first proposition, although we did not have a case directly on
- 25 -
point at the intersection of the Sixth Amendment and deportation
consequences, we had cases (as we explain below) which collectively
suggested that, if the issue had arisen, we would likely have
deemed misadvice on such matters to be subject to Strickland.
Unlike the Padilla Court, moreover, we did not recognize
the uniqueness of deportation consequences or otherwise find them
unsuited to the collateral-direct framework. To the contrary, the
collateral bar appears to have been very much alive in our circuit
with respect to immigration matters before 2003, at least when it
concerned a failure-to-advise claim. See Gonzalez, 202 F.3d at
26, 25 (noting that "our precedents regarding the collateral nature
of deportation" made deportation "legally irrelevant, even as to
an outright guilty plea" for Strickland purposes (internal
quotation marks omitted)); Nunez Cordero v. United States, 533
F.2d 723, 726 (1st Cir. 1976) ("While deportation may have a
serious effect on a defendant's life, we are not disposed to treat
deportation differently from all the other collateral consequences
of conviction of which a defendant may learn." (citation omitted)).
It is also the case, however, that we never excluded
misrepresentations on immigration matters from the Sixth
Amendment's scope based on the collateral bar.
This is not to say, of course, that we lacked relevant
case law from before 2003 hinting at the same outcome as Padilla
would dictate in this case. Castro points to three such cases --
- 26 -
Correale v. United States, 479 F.2d 944 (1st Cir. 1973), Cepulonis
v. Ponte, 699 F.2d 573 (1st Cir. 1983), and Wellman v. State of
Maine, 962 F.2d 70 (1st Cir. 1992).
Correale involved a claim that a guilty plea should be
vacated as involuntary under the Fifth Amendment because the
prosecutor, during the plea negotiations, had made a
misrepresentation on a sentencing matter -- a matter that is
directly related, not collateral, to a criminal proceeding. 479
F.2d at 947-48. In holding that a guilty plea may be voided under
such circumstances, we observed, in dictum, that, in addition to
the prosecutor's "obligations of knowledge and clarity" in
ensuring that he does not make false promises to the defendant,
"[d]efense counsel too must know or learn about the relevant law
and evaluate its application to his or her client." Id. at 949.
Indeed, we observed that, where, as in that case, counsel had
admitted ignorance of the "most fundamental statutory provision
relating to sentencing," such failure of knowledge by counsel may
"amount to constitutionally ineffective assistance of counsel."
Id. at 949.
Cepulonis is more factually analogous to the case at
hand. In that case, the defendant alleged that his counsel
provided incorrect advice regarding "the details of parole
eligibility," which we noted are "considered collateral[,] rather
than direct[,] consequences of a plea." 699 F.2d at 577. While
- 27 -
this misinformation argument was "not couch[ed] . . . in terms of
ineffective assistance of counsel," id. at 577 n.7, having been
framed instead as a direct involuntary plea claim under the Fifth
Amendment, we nonetheless posited that a different rule might apply
to a misrepresentation claim than to a failure-to-advise claim,
id. at 577. As we put it, although a defendant "need not be
informed [of such collateral matters] before pleading guilty,"
"misinformation may be more vulnerable to constitutional challenge
than mere lack of information." Id.
We cited that same principle in Wellman. There, we dealt
with a claim that the State of Maine had misinformed the defendant
on the calculation of his pretrial detention credit during plea
negotiations. See 962 F.2d at 71. We noted that, even though a
prosecutor's omission of information on such a collateral matter
does not render a guilty plea involuntary, id. at 72-73 (citing
United States v. Bouthot, 878 F.2d 1506, 1512 (1st Cir. 1989)), a
prosecutor's provision of inaccurate or misleading information to
secure a guilty plea "is more vulnerable to a constitutional
challenge," id. at 73 (citing Cepulonis, 699 F.2d at 577).
We recognize that these cases, alone, do not establish
that our circuit law in 2003 would have made Strickland operative
on a misadvice claim concerning deportation consequences. See
Butler v. McKellar, 494 U.S. 407, 415 (1990) ("[T]he fact that a
court says that its decision is within the 'logical compass' of an
- 28 -
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."); Gonzalez, 202
F.3d at 25-26 (citing, in support of the collateral-direct
distinction, United States v. Parrino, 212 F.2d 919, 921, 923 (2d
Cir. 1954), in which the Second Circuit applied the collateral bar
to a misadvice claim). Indeed, unlike the separate rules for
misrepresentations that three circuits set forth prior to Padilla,
see Chaidez, 133 S. Ct. at 1112, our own separate rule for
misrepresentations -- to the extent that we could discern it from
the three cases above -- is not based on a holding and does not
state explicitly that misadvice on deportation consequences is
within the scope of the Sixth Amendment's protection. Compare
United States v. Kwan, 407 F.3d 1005, 1015 (9th Cir. 2005) (holding
that "where, as here, counsel has not merely failed to inform, but
has effectively misled, his client about the immigration
consequences of a conviction, counsel's performance is objectively
unreasonable under contemporary standards for attorney
competence"); United States v. Couto, 311 F.3d 179, 188 (2d Cir.
2002) (holding that "an affirmative misrepresentation by counsel
as to the deportation consequences of a guilty plea is today
objectively unreasonable"); Downs-Morgan v. United States, 765
F.2d 1534, 1540-41 (11th Cir. 1985) (holding that, under certain
circumstances, "counsel's [potentially erroneous] advice
- 29 -
concerning whether [his client] would be deported . . . in response
to a specific question" entitles the client to an evidentiary
hearing to determine whether his plea should be vacated).
The absence of an explicit rule, however, need not be
fatal to Castro's claim, as it does not, by itself, render
Padilla's misadvice holding a new rule in our circuit in 2003.
Especially given the three First Circuit cases that suggested --
though did not "dictate[]," Teague, 489 U.S. at 301 -- a separate
rule for misrepresentations, an agreement among other courts as to
the applicability of Strickland to misadvice claims could indicate
that Padilla's misadvice holding was dictated in 2003. That is to
say, while no case of our own can support the proposition that
"all reasonable jurists," Lambrix, 520 U.S. at 528, would have
agreed that an affirmative misrepresentation on deportation
consequences is subject to Strickland, pre-2003 law in other lower
courts -- combined with our own -- could lead us to conclude that
Padilla's misadvice holding was, to borrow the words of our sister
circuit, simply "awaiting an instance in which it would be
pronounced," Kovacs, 744 F.3d at 50.11 We conclude so here.
11
In Kovacs, the Second Circuit decided that Couto -- its
pre-Padilla precedent holding that misadvice on immigration
matters is subject to Strickland, 311 F.3d at 188 -- was not a new
rule under Teague because it "did nothing more than apply 'the
age-old principle that a lawyer may not affirmatively mislead a
client.'" Kovacs, 744 F.3d at 51 (quoting Chaidez, 133 S. Ct. at
1119 (Sotomayor, J., dissenting)).
- 30 -
b. Other Lower Courts
As of 2003, two federal circuits had held that misadvice
on deportation consequences can give rise to an ineffective
assistance of counsel claim.12 See Couto, 311 F.3d at 188; Downs-
Morgan, 765 F.2d at 1540-41; cf. Santos-Sanchez v. United States,
548 F.3d 327, 332-36 (5th Cir. 2008) (analyzing an affirmative
misrepresentation claim separately from a failure-to-advise-claim,
applying the collateral-direct distinction only as to the non-
advice argument, while rejecting the assertion that there was any
misrepresentation by counsel). Several federal district courts
also had recognized that principle. See United States v. Khalaf,
116 F. Supp. 2d 210, 214 (D. Mass. 1999) (recognizing that
"counsel's affirmative misrepresentation [regarding deportation
consequences] in response to a specific inquiry from the defendant
may, under certain circumstances, constitute ineffective
assistance of counsel"); United States v. Mora-Gomez, 875 F. Supp.
1208, 1213 (E.D. Va. 1995) ("[C]ounsel's affirmative
misrepresentation regarding the deportation consequences of a
12
Similarly, the D.C. Circuit recognized before 2003 that,
if a prosecutor misleads a defendant about the risk of deportation,
rather than simply fails to inform him, the collateral-direct
distinction does not bar the defendant from withdrawing his plea
based on involuntariness. See Briscoe v. United States, 432 F.2d
1351, 1353 (D.C. Cir. 1970) ("Under appropriate circumstances the
fact that a defendant has been misled as to consequence of
deportability may render his plea subject to attack."); accord
United States v. Russell, 686 F.2d 35, 41 (D.C. Cir. 1982).
- 31 -
guilty plea may, but does not automatically, constitute
ineffective assistance."); see also Acevedo-Carmona v. Walter, 170
F. Supp. 2d 820, 825-26 (N.D. Ill. 2001) (stating that, where
defendant's counsel "gave him allegedly erroneous advice regarding
deportation and earned good conduct credits," "[w]e do not
necessarily agree . . . that Acevedo's counsel performed
reasonably," but finding no prejudice "as is required by the second
Strickland prong"). These cases prompted the Solicitor General in
Padilla to argue that "[t]he vast majority of the lower courts
considering claims of ineffective assistance in the plea context
have drawn . . . [a] distinction [] between defense counsel who
remain silent and defense counsel who give affirmative misadvice."
Br. for the United States as Amicus Curiae Supporting Affirmance,
Padilla v. Kentucky, 559 U.S. 356 (2010), 2009 WL 2509223, at *8;
see also Mora-Gomez, 875 F. Supp. at 1212 (noting that, "among the
courts that have decided the question [of whether misadvice as to
immigration matters is subject to Strickland], the clear consensus
is that an affirmative misstatement regarding deportation may
constitute ineffective assistance").
Additionally, at least six federal circuits recognized
before 2003 that misadvice on other collateral matters besides
immigration consequences -- e.g., parole eligibility -- is (or may
be) subject to Strickland. See Beavers v. Saffle, 216 F.3d 918,
925 (10th Cir. 2000) ("[A]ttorney advice which misrepresents the
- 32 -
date of parole eligibility by several years can be objectively
unreasonable."); Meyers v. Gillis, 142 F.3d 664, 666 (3d Cir. 1998)
(recognizing that "a defendant may be entitled to habeas relief if
counsel provides parole eligibility information that proves to be
grossly erroneous"); Sparks v. Sowders, 852 F.2d 882, 885 (6th
Cir. 1988) ("[G]ross misadvice concerning parole eligibility can
amount to ineffective assistance of counsel."); Hill v. Lockhart,
894 F.2d 1009, 1010 (8th Cir. 1990) (en banc) ("[T]he erroneous
parole-eligibility advice given to Mr. Hill was ineffective
assistance of counsel under [Strickland]."); Czere v. Butler, 833
F.2d 59, 63 n.6 (5th Cir. 1987) ("Even if the Sixth Amendment does
not impose on counsel an affirmative obligation to inform clients
of the parole consequences of their pleas, . . . other courts have
recognized a distinction between failure to inform and giving
misinformation[.]"); Strader v. Garrison, 611 F.2d 61, 65 (4th
Cir. 1979) ("[T]hough parole eligibility dates are collateral
consequences of the entry of a guilty plea of which a defendant
need not be informed if he does not inquire, when he is grossly
misinformed about it by his lawyer, and relies upon that
misinformation, he is deprived of his constitutional right to
counsel.").
Likewise, numerous state courts also recognized before
2003 that an attorney's misrepresentation on a collateral matter
may be subject to the Sixth Amendment's protection. See Roberti
- 33 -
v. State, 782 So. 2d 919, 920 (Fla. Dist. Ct. App. 2001); Goodall
v. United States, 759 A.2d 1077, 1082 (D.C. 2000); State v. Vieira,
760 A.2d 840, 843-44 (N.J. Super. Ct. 2000); People v. Ping Cheung,
186 Misc. 2d 507, 510 (N.Y. Sup. Ct. 2000); State v. Goforth, 503
S.E.2d 676, 678 (N.C. Ct. App. 1998); People v. Garcia, 815 P.2d
937, 942 (Colo. 1991) (en banc); Hinson v. State, 377 S.E.2d 338,
339 (S.C. 1989); Matter of Peters, 750 P.2d 643, 646 n.3 (Wash.
Ct. App. 1988); Meier v. State, 337 N.W.2d 204, 207 (Iowa 1983).
These cases are particularly relevant here because, as
the Chaidez Court noted, when a holding "appl[ies] a general
standard to the kind of factual circumstances it was meant to
address," that holding will "rarely state a new rule for Teague
purposes." 133 S. Ct. at 1107; see also Wright, 505 U.S. at 309
(Kennedy, J., concurring in the judgment) ("Where the beginning
point is a rule of general application, a rule designed for the
specific purpose of evaluating a myriad of factual contexts, it
will be the infrequent case that yields a result so novel that it
forges a new rule, one not dictated by precedent."). Much as we
found no cognizable difference between deportation consequences
and other collateral matters when the collateral bar worked to
insulate a failure to inform from a constitutional challenge, see
Nunez Cordero, 533 F.2d at 726, we find here no cognizable
difference between the risk of deportation and other collateral
- 34 -
matters in recognizing that this judicial consensus demonstrates
that we are bound to apply Strickland to misadvice claims.
Further reinforcing this consensus is the absence of any
case holding to the contrary. Indeed, with the exception of the
Kentucky Supreme Court decision in Padilla, our survey does not
reveal any case from federal or state courts holding that misadvice
concerning collateral consequences, and on removal in particular,
can never be subject to Strickland because of the collateral-
direct distinction. See generally Padilla, 559 U.S. at 387 (Alito,
J., concurring) ("[I]t appears that no court of appeals holds that
affirmative misadvice concerning collateral consequences in
general and removal in particular can never give rise to
ineffective assistance.").13
Hence, the legal landscape in the lower courts as of
2003 indicates that the underlying principle for Padilla's
misadvice holding -- that an attorney's misrepresentation, even on
a collateral matter, may constitute ineffective assistance -- was
so embedded in the fabric of the Sixth Amendment framework that
13
Common sense and fairness also support the distinction
between misadvice and failure-to-advise claims. If an attorney
takes it upon himself to advise a client about a material matter,
thereby suggesting that he knows what he is talking about, but
then provides incorrect advice, the client should be able to bring
an ineffective assistance of counsel claim regardless of whether
the matter was of a collateral nature. The same cannot be said of
a situation when an attorney simply fails to advise a client of
matters that are collateral to a criminal proceeding.
- 35 -
"all reasonable jurists," Lambrix, 520 U.S. at 528, would have
agreed that Strickland applied to misadvice claims on deportation
consequences.14 See generally Dyer v. Calderon, 151 F.3d 970, 984
(9th Cir. 1998) (en banc) (noting that a particular rule is not
new under Teague, despite the absence of a Supreme Court decision
announcing it, because it is "so deeply embedded in the fabric of
due process that everyone takes it for granted"). That is to say,
14 To be sure, counsel's misadvice about the deportation
consequences of a plea may implicate Fifth Amendment concerns about
the voluntariness of a defendant's guilty plea. See Padilla, 559
U.S. at 391-92 (Scalia, J., dissenting). But, it was clear before
2003 both that the Sixth Amendment "right to the Assistance of
Counsel in his defence" applies to pleas, see Hill, 474 U.S. at
58, and that, as our review of the precedent shows, this right
provides its own protection against such misadvice. Moreover, the
prejudice inquiry under Strickland does not turn on whether the
defendant's plea was knowing and voluntary within the meaning of
the Fifth Amendment. It turns on whether the defendant can show
that there is "a reasonable probability that, but for counsel's
errors, [the defendant] would not have pleaded guilty and would
have insisted on going to trial." Premo v. Moore, 562 U.S. 115,
129 (2011) (quoting Hill, 474 U.S. at 59). Compare Brady v. United
States, 397 U.S. 742, 755 (1970) (noting in the Fifth Amendment
context that "[a] plea of guilty entered by one fully aware of the
direct consequences, including the actual value of any commitments
made to him by the court, prosecutor, or his own counsel, must
stand unless induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises)"), with Couto, 311 F.3d at 188-91
(concluding, without invoking Brady or Fifth Amendment principles,
that the defendant could obtain withdrawal of her guilty plea under
the Sixth Amendment if she could demonstrate that there was a
reasonable probability that, but for her attorney's misadvice as
to deportation consequences, she would not have pleaded guilty and
would have insisted on going to trial). Thus, the fact that the
Fifth Amendment may afford protection against misadvice about the
deportation consequences of a plea provides no basis for concluding
that the Sixth Amendment does not.
- 36 -
if Castro's misadvice claim had been before us in 2003, we would
have been required to apply the general standard of Strickland "to
the kind of factual circumstances it was meant to address,"
Chaidez, 133 S. Ct. at 1107, and addressed his claim on the merits.
Hence, Padilla's misadvice holding did not constitute a new rule
and does not bar Castro's claim here.15
* * *
We add a few final thoughts in concluding our Teague
analysis. As we previously noted, Teague sets a high bar for
retroactivity. See 489 U.S. at 301. Indeed, the Teague standard
requiring that a holding be "dictated" for it to be considered an
15We are particularly persuaded that we would have been bound
to apply Strickland to Castro's claim in 2003 given the nature of
the misrepresentation at issue. Indeed, Castro claims that his
lawyer made "affirmative representations . . . that his guilty
plea would not result in any negative immigration consequences"
and presents, in support of this claim, an affidavit in which his
counsel stated, "the advice given to Mr. Castro was that a sentence
of probation would not result in deportation." Assuming, without
deciding, the truth of Castro's allegations, such advice regarding
the risk of removal was gross misadvice because it was clearly
contrary to law. The governing statute at the time provided that
"[a]ny alien who is convicted of an aggravated felony . . . is
deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). There was little
doubt that Castro had committed an aggravated felony because his
plea agreement specified that his fraudulent conduct had resulted
in over $10,000 in losses. See 8 U.S.C. § 1101(a)(43)(M)-(M)(i).
Hence, we have here a situation where an attorney provided
incorrect advice regarding the removal consequence of his client's
plea -- a consequence that the Padilla Court described as a "severe
penalty," 559 U.S. at 365 -- when the correct answer was clearly
set forth in the law. We take no position on whether a less clear
misadvice claim would have to be -- in light of our holding here
-- cognizable under Strickland.
- 37 -
old rule, id., has been criticized by legal scholars as excessively
harsh and impossible to satisfy. See Linda Meyer, "Nothing we say
matters": Teague and the New Rules, 61 U. Chi. L. Rev. 423, 424
(1994) (arguing that Teague's "dictated by precedent" test is
"virtually impossible to satisfy"); Richard H. Fallon, Jr. & Daniel
J. Meltzer, New Law, Non-Retroactivity, and Constitutional
Remedies, 104 Harv. L. Rev. 1731, 1748 (1991) (observing that
"Teague shields state convictions from collateral attacks based
not simply on 'clear breaks' in the law, but . . . even from those
relying on 'gradual' developments [in the law over which reasonable
jurists may disagree]").
In addition, the Teague analysis is particularly
difficult here because the Supreme Court had not, prior to Padilla,
addressed the Sixth Amendment's application to the collateral
consequences of a guilty plea in other, analogous, contexts. See
Hill, 474 U.S. at 60 ("We find 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[.]"); Padilla, 559 U.S. at 365
("We . . . have never applied a distinction between direct and
collateral consequences to define the scope of constitutionally
'reasonable professional assistance' required under Strickland[.]"
(quoting Strickland, 366 U.S. at 689)). Hence, we are faced with
deciding whether Padilla's misadvice holding was "dictated" by
- 38 -
prior law without the guidance that could be drawn from comparable
Supreme Court precedent. Moreover, the number of lower court
decisions applying Strickland to a collateral matter is
progressively greater the lower the persuasive authority, from
federal courts of appeals to district courts to state courts. See
supra. Indeed, that distribution of precedent may offer some
support to our sister circuit's conclusion that the existing law
is insufficient to show that "all reasonable judges, prior to
Padilla, thought they were living in a Padilla-like world,"
Chavarria, 739 F.3d at 363 (quoting Chaidez, 133 S. Ct. at 1112).
We believe, however, that the unity of the voice with
which the lower courts spoke -- deciding that Strickland applies
to misrepresentations on deportation consequences and other
collateral matters -- is more significant for Teague purposes than
the absolute number of voices or the level of the court. See,
e.g., Butler, 494 U.S. at 415 (construing "the differing positions
taken by the judges of the Courts of Appeals" as an indication
that a holding in question was "susceptible to debate among
reasonable minds"). That is to say, the fact that no federal
circuit and seemingly no other lower courts (other than the state
supreme court in Padilla) excluded misadvice on any collateral
matters from the Sixth Amendment's scope makes it an inescapable
deduction that we would have been bound to join the prevailing
view, if the precise issue had been presented.
- 39 -
We thus hold that Castro's Sixth Amendment claim is not
barred by Teague's retroactivity doctrine. Accordingly, we vacate
and remand the case. On remand, the district court should conduct
an evidentiary hearing to determine whether Castro can satisfy the
first and, if applicable, second prong of the Strickland inquiry.
As part of that determination, the court may consider the
transcript that the government presented on appeal and any other
evidence that the court may deem admissible.
B. Involuntary Plea Claim Based on the Prosecutor's Alleged
Misrepresentation
Castro argues that the alleged misrepresentation by the
AUSA regarding the lack of immigration consequences of his
conviction provides a separate basis for vacating his plea. In
particular, he claims on appeal that the district court
"misinterpreted" his argument against the prosecutor in analyzing
it under the Sixth Amendment framework, when the court should have
applied the Fifth Amendment involuntary plea standards. We
conclude that the district court did not commit any error.
In his motions to show cause, Castro alleged that the
AUSA incorrectly advised him that he would not face adverse
immigration consequences as a result of his plea. Castro relied
on such misrepresentation by the prosecutor, however, to argue
only that his Sixth Amendment right to counsel was violated, not
that such alleged assurance induced him to take the plea. Castro
- 40 -
claimed, for instance, that affirmative misadvice by "both counsel
and prosecutor constitute[d] instances of unreasonable attorney
performance," and that such misrepresentations were prejudicial
"to the extent that his Sixth Amendment right to assistance of
counsel was hampered." Second Supplementary Motion In Light Of
Chaidez,16 at 5 (¶¶ 6, 7); see also Supplementary Motion In Light
Of Chaidez,17 at 1 (¶¶ 1, 2) (stating that Castro's coram nobis
petition is "based on ineffective assistance of counsel under the
Sixth Amendment," including "affirmative misrepresentations made
by his defense counsel and the [AUSA]").
Castro's motion for reconsideration confirmed that his
claim against the AUSA had been framed as, and remained at that
point, a Sixth Amendment argument. Castro argued that his
cooperation with the government -- which occurred only after he
entered the plea -- "created a lawyer-client type relationship"
where "[t]he prosecutor in this particular case was also [his]
counsel." Motion For Reconsideration,18 at 3, 2. Accordingly,
16The full name of this motion is "Second Supplementary Motion
To Show Cause In Support Of Not Dismissing The Motion For The
Issuance Of A Writ Of Coram Nobis In Light Of The Supreme Court
Decision In [Chaidez]."
17 The full name of this motion is "Supplementary Motion To
Show Cause In Support Of Not Dismissing The Motion For The Issuance
Of A Writ Of Coram Nobis In Light Of [Chaidez]."
18 The full name of this motion is "Motion To Reconsider
Opinion And Order Issued On June 27, 2014 At Docket Entry 674 And
Memorandum Of Authorities."
- 41 -
Castro argued, "[t]he misadvi[c]e by both his counsel and the
prosecutor during the plea negotiations . . . [was] unreasonable
attorney performance." Id. at 4 n.2; see also id. at 4 (arguing
that "both counsel misled and misrepresented to [Castro] the effect
of his plea, thus making his plea one lacking full and true
consent").
Under ordinary circumstances, we would deem Castro's
direct Fifth Amendment argument, as presented here, forfeited in
light of his failure to properly raise it to the district court.
See United States v. Olano, 507 U.S. 725, 733 (1993) (holding that
a "failure to make [a] timely assertion of a right" results in
forfeiture of the claim); United States v. Morgan, 384 F.3d 1, 7
(1st Cir. 2004) (same). Here, however, the government did not
argue forfeiture and instead addressed the merits of Castro's Fifth
Amendment claim by contending that the AUSA did not, in fact,
misinform Castro of immigration consequences. Hence, the
government waived its forfeiture argument, and we treat Castro's
Fifth Amendment claim as preserved. See United States v. Reyes-
Santiago, 804 F.3d 453, 459-60 (1st Cir. 2015) (noting "the maxim
that any issue not raised in a party's opening brief is
forfeited"); Sotirion v. United States, 617 F.3d 27, 32 (1st Cir.
2010) (holding that the government waived its procedural default
defense in a habeas case by failing to raise it in the district
court).
- 42 -
That claim fails on the merits, however. Castro's
primary contention regarding an alleged due process violation on
appeal is that the district court misinterpreted his claim against
the prosecutor as a derivative Sixth Amendment argument. We
disagree. The district court understood Castro's claim against
the AUSA as alleging a Sixth Amendment violation only because
Castro argued it as such.
Moreover, in analyzing Castro's due process claim as
argued, the district court did not misapply the relevant Sixth
Amendment standards governing his claim. Observing that Castro's
affidavit in support of his allegations contained only his
"interpretation of the AUSA's alleged comments," the district
court ruled that, even if such allegations were true, his claim
would still fail because "the AUSA is not the defendant's counsel,"
and he did not show "how the purported remarks by the AUSA
interfered with his lawyer's ability to make independent decisions
about his defense." See, e.g., Strickland, 466 U.S. at 686 (noting
that a criminal defendant's Sixth Amendment right would be violated
if the government "interferes in certain ways with the ability of
counsel to make independent decisions about how to conduct the
defense"). That is, the district court disregarded Castro's claim
because he "failed to argue with proper legal citations and
supporting authorities how his right to the assistance of counsel
- 43 -
guaranteed by the Sixth Amendment was impinged by the AUSA's
alleged acts."
Thus, we affirm the district court's rejection of
Castro's Fifth Amendment claim against the prosecutor.19
III.
For the foregoing reasons, we affirm in part and vacate
and remand in part the district court's decision. On remand, the
district court is instructed to conduct an evidentiary hearing to
determine whether Castro's Sixth Amendment claim satisfies
Strickland's two-pronged test. In that hearing, the court may
consider the transcript that the government presented on appeal,
as well as any evidence that the court deems admissible. Castro's
direct Fifth Amendment claim against the AUSA, as argued here, is
foreclosed.
So ordered.
19 Because we reject Castro's involuntary plea argument
against the prosecutor, we find that his claim that he is entitled
to specific performance of the prosecutor's promise is moot.
- 44 -