Argued Oct. 1, 2013.
Kerry Clementine Connor, Attorney, Highland, IN, for Petitioner-Appellant.
Emily Kathleen Cremeans, Attorney, David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Respondent-Appellee.
Before CUDAHY, RIPPLE, and HAMILTON, Circuit Judges.
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
not 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 Chaidez 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).
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, Chavarria 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 Pad ...