Chavarria v. United States

739 F.3d 360, 2014 WL 68137, 2014 U.S. App. LEXIS 483
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 9, 2014
DocketNo. 11-3549
StatusPublished
Cited by12 cases

This text of 739 F.3d 360 (Chavarria v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chavarria v. United States, 739 F.3d 360, 2014 WL 68137, 2014 U.S. App. LEXIS 483 (7th Cir. 2014).

Opinion

CUDAHY, Circuit Judge.

This case involves an ineffective assistance of counsel claim concerning the effect of Chavarria’s guilty plea on his immigration status. Defendant Julio Cesar Chavarria, born in Mexico, became a legal permanent resident of the United States in 1982. In 2009, Chavarria was charged with, and pleaded guilty to, four counts of distributing cocaine.

One year' later, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Padilla imposed a duty on criminal attorneys to inform noncitizen clients of deportation risks stemming from plea agreements, and for the first time held that the Sixth Amendment supported ineffective assistance of counsel claims arising from legal advice, or the lack thereof, involving the prospect of deportation resulting from guilty pleas. See Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 1110, 185 L.Ed.2d 149 (2012) (explaining the new Padilla rule). Chavarria then filed a pro se motion involving such a claim, pursuant to 28 U.S.C. § 2255.

Chavarria alleged that his criminal trial counsel responded to his deportation queries by indicating that Chavarria need not worry about deportation — specifically that “the attorney had checked with the Bureau of Immigration and Customs Enforcement ... and they said they were not interested” in deporting him. Chavarria also alleged that his attorney had counseled him to defer to the cues of his attorney during questioning by the district court. In connection with his § 2255 motion, Chavarria filed a Petition to Stay Deportation Proceedings, but by the time counsel had been appointed for these motions, he had already been deported. The government subsequently sought to dismiss Chavarria’s § 2255 motion based, in part, on the contention that Padilla announced a new rule [362]*362not to be applied retroactively. The district court denied the government’s motion for dismissal, holding that the Padilla rule could be applied retroactively.

Shortly thereafter, we issued our opinion in Chaidez v. United States, 655 F.3d 684 (7th Cir.2011). The Chaidez majority concluded that Padilla was a new rule and not retroactive. In light of Chaidez, the district court vacated its ruling based on the retroactivity of Padilla, and dismissed Chavarria’s § 2255 motion.

Chavarria appealed, challenging both our decision in Chaidez, and the district court’s application of it here. After the government filed its response brief, the Supreme Court granted certiorari in Chai-dez and subsequently affirmed. After Chaidez thus foreclosed Chavarria’s argument that Padilla was retroactive, he now argues that Chaidez distinguished between providing no advice (actionable under the Padilla rule) and providing bad advice (actionable under pre-Padilla law).

I.

[1] At the outset we briefly note that Chaidez foreclosed any argument that Padilla was retroactive, the original basis of Chavarria’s appeal. On collateral review, lacking retroactivity,- we will look only to the state of the law at the time the conviction became final. For that reason, Cha-varria originally argued that Padilla did not propound a new rule, but that it was merely another step in the evolution of ineffective assistance claims. However, the Supreme Court decided definitively that Padilla announced a new rule, which was not retroactive, when it affirmed our decision in Chaidez. Chaidez, 133 S.Ct. at 1105.

II.

[2] His retroactivity argument gone, Chavarria now argues that under Padilla only failure to advise of immigration consequences constitutes ineffective assistance under the Sixth Amendment, but affirmative misadviee provides an alternative basis for a constitutional claim under pre-Padilla law.

This argument about affirmative misad-vice is based on certain Chaidez language, which recognized precedent from three circuits holding that, pre-Padilla, misstatements about deportation could support an ineffective assistance claim. Chaidez, 133 S.Ct. at 1112 (“Those decisions [in three circuits] reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution.”). Thus, Cha-varria argues that Padilla is irrelevant to Chavarria’s situation—because affirmative misrepresentations have long been subject to challenge under the test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Chavarria’s argument fails, first, because the distinction between affirmative misadviee and non-advice was not a relevant factor in Padilla. Second, the precedent, pr e-Padilla, supporting the application of Strickland in this context is insufficient to satisfy Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)(holding that to impart retroactivity, a rule must be supported by ample existing precedent).

A lawyer’s advice about matters not involving the “direct” consequences of a criminal conviction—collateral matters— is, in fact, irrelevant under the Sixth Amendment; such advice is categorically excluded from analysis as professionally incompetent, as measured by Strickland. Padilla departed from this direct-collateral distinction because of the “unique” nature of deportation. Padilla, 559 U.S. at [363]*363366, 130 S.Ct. 1473. That case determined that “a lawyer’s advice (or non-advice)” should not be exempt from Sixth Amendment scrutiny without reference to the traditional distinction between direct and collateral consequences. Chaidez, 133 S.Ct. at 1110. Therefore, in its analysis, the Padilla majority was unconcerned with any distinction between affirmative misad-vice and non-advice; because, until Padilla was decided, the Sixth Amendment did not apply to deportation matters at all. Id. (“It was Padilla that first rejected the categorical approach — and so made the Strickland test operative — when a criminal lawyer gives (or fails to give) advice about immigration consequences.”). Thus, regardless of how egregious the failure of counsel was if it dealt with immigration consequences, pr e-Padilla, both the Sixth Amendment and the Strickland test were irrelevant.

The Chaidez majority jointly referred to both misadvice and non-advice throughout its opinion. There is no question that the majority understood that Padilla announced a new rule for all advice, or lack thereof, with respect to the consequences of a criminal conviction for immigration status. If taken out of context, language in Chaidez offers some support for Cha-varria’s argument, but that language is contradicted by a substantial amount of more specific language in the same opinion. See e.g., Chaidez, 133 S.Ct.

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739 F.3d 360, 2014 WL 68137, 2014 U.S. App. LEXIS 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chavarria-v-united-states-ca7-2014.