In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 11‐3549 JULIO CESAR CHAVARRIA, Petitioner‐Appellant,

v.

UNITED STATES OF AMERICA, Respondent‐Appellee. ____________________

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 2:10‐CV‐191 — Joseph S. Van Bokkelen, Judge. ____________________

ARGUED OCTOBER 1, 2013 — DECIDED JANUARY 9, 2014 ____________________

Before CUDAHY, RIPPLE, and HAMILTON, Circuit Judges. CUDAHY, Circuit Judge. This case involves an ineffective assistance of counsel claim concerning the effect of Chavar‐ ria’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 distrib‐ uting cocaine. 2 No. 11‐3549

One year later, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla imposed a du‐ ty on criminal attorneys to inform noncitizen clients of de‐ portation risks stemming from plea agreements, and for the first time held that the Sixth Amendment supported ineffec‐ tive assistance of counsel claims arising from legal advice, or the lack thereof, involving the prospect of deportation result‐ ing from guilty pleas. See Chaidez v. United States, 132 S. Ct. 1103, 1110 (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 respond‐ ed to his deportation queries by indicating that Chavarria need not worry about deportation—specifically that “the at‐ torney had checked with the Bureau of Immigration and Customs Enforcement … and they said they were not inter‐ ested” in deporting him. Chavarria also alleged that his at‐ torney 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 Deporta‐ tion Proceedings, but by the time counsel had been appoint‐ ed 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 an‐ nounced a new rule not to be applied retroactively. The dis‐ trict 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 majori‐ ty concluded that Padilla was a new rule and not retroactive. In light of Chaidez, the district court vacated its ruling based No. 11‐3549 3

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). I. 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 retroactivi‐ ty, we will look only to the state of the law at the time the conviction became final. For that reason, Chavarria original‐ ly argued that Padilla did not propound a new rule, but that it was merely another step in the evolution of ineffective as‐ sistance claims. However, the Supreme Court decided defini‐ tively that Padilla announced a new rule, which was not ret‐ roactive, when it affirmed our decision in Chaidez. Chaidez, 133 S. Ct. at 1105. II. His retroactivity argument gone, Chavarria now argues that under Padilla only failure to advise of immigration con‐ sequences constitutes ineffective assistance under the Sixth Amendment, but affirmative misadvice provides an alterna‐ tive basis for a constitutional claim under pre‐Padilla law. 4 No. 11‐3549

This argument about affirmative misadvice 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 misrepre‐ sent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prose‐ cution.”). Thus, Chavarria argues that Padilla is irrelevant to Chavarria’s situation—because affirmative misrepresenta‐ tions have long been subject to challenge under the test of Strickland v. Washington, 466 U.S. 668 (1984). Chavarria’s argument fails, first, because the distinction between affirmative misadvice and non‐advice was not a relevant factor in Padilla. Second, the precedent, pre‐Padilla, supporting the application of Strickland in this context is in‐ sufficient to satisfy Teague v. Lane. 489 U.S. 288, 301 (1989)(holding that to impart retroactivity, a rule must be supported by ample existing precedent). A lawyer’s advice about matters not involving the “di‐ rect” consequences of a criminal conviction—collateral mat‐ ters—is, in fact, irrelevant under the Sixth Amendment; such advice is categorically excluded from analysis as profession‐ ally incompetent, as measured by Strickland. Padilla departed from this direct‐collateral distinction because of the “unique” nature of deportation. Padilla, 559 U.S. at 366. That case determined that “a lawyer’s advice (or non‐advice)” should not be exempt from Sixth Amendment scrutiny with‐ out reference to the traditional distinction between direct and collateral consequences. Chaidez, 133 S. Ct. at 1110. Therefore, in its analysis, the Padilla majority was uncon‐ No. 11‐3549 5

cerned with any distinction between affirmative misadvice 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 con‐ sequences.”). Thus, regardless of how egregious the failure of counsel was if it dealt with immigration consequences, pre‐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 conse‐ quences of a criminal conviction for immigration status. If taken out of context, language in Chaidez offers some sup‐ port for Chavarria’s argument, but that language is contra‐ dicted by a substantial amount of more specific language in the same opinion. See e.g., Chaidez, 133 S. Ct. at 1110 (refer‐ ring jointly to scrutiny of a lawyer’s misadvice and “non‐ advice”). Ironically, Chavarria asks us to recognize a distinction be‐ tween misadvice and non‐advice, even though Padilla was itself about an affirmative misrepresentation. In fact, this dis‐ tinction, which is thin on its own terms, fails on Padilla’s facts. Thus, Chavarria is essentially asking us to hold that Chaidez held that the Padilla rule is not retroactive except on Padilla’s own facts (which involved misadvice). In fact, the Padilla majority, in responding to the government’s argument to limit its holding, specifically discussed limiting its holding to only affirmative misadvice, but did not because of the pos‐ 6 No. 11‐3549

sible absurd results. Padilla, 559 U.S. at 370–71. This discus‐ sion signals that the Padilla majority had no intent to exclude either affirmative misadvice or non‐advice from the new rule it announced. Finally, Chavarria relies on cases from three federal cir‐ cuits to prove that the distinction between affirmative mis‐ advice and the failure to advise, and a constitutional rule based on that distinction constitutes pre‐Padilla precedent. Yet, under Teague, the rule sought by Chavarria must be dic‐ tated by existing precedent. Teague, 489 U.S. at 301. Chavarria cannot simply show the existence of such a distinction, but instead he must show that the distinction was so evident “that all reasonable judges, prior to Padilla, thought they were living in a Padilla‐like world.” Chaidez, 133 S. Ct. 1112. The Court supported this conclusion by reiterating the trend among the lower courts, which viewed such collateral deportation matters as beyond the reach of the Sixth Amendment. Id. at 1113. The Court stated, “[o]n those courts’ view, the Sixth Amendment no more demanded competent advice about a plea’s deportation consequences than it demanded competent representation in the deporta‐ tion process itself. Padilla decided that view was wrong. But to repeat: it was Padilla that did so.” Id. The material misrep‐ resentations that were upheld by those three circuits cannot support a constitutional rule to be applied retroactively, since an old rule is one “limited to those holdings so com‐ pelled by precedent that any contrary conclusion must be deemed unreasonable.” See Lambrix v. Singletary, 520 U.S. 518, 538 (1997). At the time Chavarria’s case became final, precedent did not dictate that preclusion of an ineffective assistance claim was unreasonable when it arose from an at‐ No. 11‐3549 7

torney’s material misrepresentation of a deportation risk. Thus, even if this Court were to find the misadvice/non‐ advice distinction relevant to this analysis, it does not have the clear precedential weight to be considered a pre‐Padilla rule. The district court correctly concluded that it was bound by Chaidez and that Padilla had no retroactive effect on Cha‐ varria’s case. Having determined that the distinction be‐ tween affirmative misadvice and failure to advise does not somehow evade the non‐retroactivity of Padilla, we AFFIRM.