Ruling on a petition for an extraordinary writ (of error coram nobis) in a published en banc opinion dated August 28, 2012, the Army CCA ruled:
Petitioner, whose direct appeal is final and is now facing deportation, alleges that he received ineffective assistance of counsel when his trial defense counsel failed to inform him that he could be deported if he pleaded guilty. In this respect, petitioner is seeking the retroactive application of Padilla v. Kentucky, 130 S.Ct. 1473 (2010), to his case. We hold that petitioner is not entitled to coram nobis relief because Padilla established a new rule that is not retroactively applicable. We further conclude that, even were we to assume deficient performance in this case, petitioner’s claim does not establish prejudice.
The Petitioner was convicted by a military judge sitting as a general court-martial, pursuant to his pleas, of conspiracy, larceny (of government property), and making a false claim, in violation of Articles 81, 121, and 132, UCMJ. He was sentenced to reduction to E-1, confinement for 13 months, total forfeitures, and a bad-conduct discharge. The sentence was approved as adjudged. The case was reviewed by the ACCA, and summarily affirmed in June 2007. No appeal was filed with CAAF, and the bad-conduct discharge was ordered executed in October 2007.
The Petitioner is a Cuban national who is a lawful permanent resident in the United States. In November 2009 a deportation order was issued for the Petitioner as a consequence of his court-martial conviction. In his petition to the ACCA, Petitioner claimed: “Had I known that my plea would result in such consequences I would not have pled [sic] guilty to the charges against me at that time.” Casa-Garcia, slip op. at 2.
The CCA finds that “[i]n this case, petitioner was not informed by his defense counsel, CPT [JR], that he could face deportation from the United States as a result of his convictions.” Casa-Garcia, slip op. at 5. However, the CCA concludes:
We agree with the Fifth, Seventh, and Tenth Circuits that Padilla created a new rule. As the Supreme Court itself noted, many different federal and state courts that have addressed the issue prior to Padilla held that the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” Padilla, 130 S.Ct. at 1481 & n.9 (quoting Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008)) (collecting cases). The same is true of military jurisprudence. Prior to Padilla, military case-precedent would not compel a finding of deficient performance in these circumstances. Our superior court explicitly stated in Denedo I, 66 M.J. at 129, that “[a]n attorney’s failure to advise an accused of potential deportation consequences of a guilty plea does not constitute deficient performance under Strickland.” See also United States v. Berumen, 24 M.J. 737, 742 (A.C.M.R. 1987). In light of this precedent, it is clear Padilla created a new rule that would now compel a finding of deficient performance.
Finally, the new rule announced in Padilla does not fall into either of the two exceptions to nonretroactivity. A new constitutional rule “should not be applied retroactively to convictions on collateral review that have become final,” unless the new rule is a “substantive” new rule, or a “watershed” rule of criminal procedure. Loving II, 64 M.J. at 136, 138–140. The Padilla decision falls into neither of these categories.
Casa-Garcia, slip op. at 7. The opinion draws a partial dissent from Judge Krauss (recently of note for a concurring opinion in United States v. Spicer, No. 20090608 (A.Ct.Crim.App., Jan. 31, 2012) (unpublished) review granted 71 M.J. 321, No. 12–0414/AR (C.A.A.F. May 18, 2012)) joined by Senior Judge Yob, who:
understand[s] Padilla to plainly contemplate the retroactive application of its decision to cases arising after enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and to declare that, as of the enactment of the IIRIRA, a defense counsel’s failure to inform a client of the possible consequences of conviction on the client’s immigration status constitutes deficient performance.
Casa-Garcia, slip op. at 9. However, Judge Krauss: “agree[s] with the majority that appellant fails to satisfy the second prong of Strickland. Indeed, his mere allegation that he would have pled not guilty if he would have been properly advised falls far short of that required to demonstrate sufficient prejudice for relief in this jurisdiction under the circumstances of this case.” Casa-Garcia, slip op. at 9-10.
Of note, the majority noted that The Supreme Court granted certiorari in Chaidez v. United States (SCOTUSblog link), a case addressing the retroactivity of Padilla, with the following issue:
Whether the Court’s decision in Padilla v. Kentucky, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement.