UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                               Before the Court Sitting En Banc

                      Specialist REINEL CASA-GARCIA
                        United States Army, Petitioner
                                      v.
                  UNITED STATES OF AMERICA, Respondent

                                  ARMY MISC 20111047

For Petitioner: Mr. Virlenys H. Palma, Esquire (on brief, reply brief & on brief in
response to specified issue); Major Richard E. Gorini, JA; Captain James S.
Trieschmann, Jr., JA (additional pleadings).

For Respondent: Colonel Michael E. Mulligan, JA; Major Ellen S. Jennings, JA;
Captain Chad M. Fisher, JA (on brief); Lieutenant Colonel Amber J. Roach, JA;
Captain Chad M. Fisher, JA (on brief in response to specified issue).

                                        28 August 2012

                    -------------------------------------------------------------
                          OPINION OF THE COURT AND ACTION
                      ON PETITION FOR EXTRAORDINARY RELIEF
                     IN THE NATURE OF A WRIT OF CORAM NOBIS
                    --------------------------------------------------------------

KERN, Senior Judge:

       This is a petition for extraordinary relief in the nature of a writ of coram
nobis. See 28 U.S.C. § 1651(a) (2006). 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, 

(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.

                                                  I
       In February 2005, petitioner was approached by a finance clerk, whom he
knew as “Frank,” with a scheme to steal money from the U.S. government. Pursuant
to the scheme, petitioner would make a false claim for entitlements he was not
authorized to receive, and Frank would fraudulently arrange for money to be paid
from the U.S. government to petitioner. Frank and petitioner would then share the
stolen funds. Petitioner agreed to the scheme, and in the months that followed,
Frank arranged for the deposit of over $60,000.00 to petitioner’s bank account.
CASA-GARCIA—ARMY MISC 20111047

These thefts were ultimately discovered, and petitioner made a full confession about
his role in the fraudulent scheme.

       On 2 June 2006, a military judge sitting as a general court-martial convicted
petitioner, pursuant to his pleas, of conspiracy, larceny, and making a false claim, in
violation of Articles 81, 121, and 132, Uniform Code of Military Justice, 10 U.S.C.
§§ 881, 921, 932 (2000) [hereinafter UCMJ]. The military judge sentenced
petitioner to a bad-conduct discharge, confinement for thirteen months, total
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the adjudged sentence. Petitioner’s case was then
reviewed by this court pursuant to Article 66, UCMJ, and the findings and sentence
were summarily affirmed. United States v. Casa-Garcia, ARMY 20060508 (Army
Ct. Crim. App. 8 June 2007). Petitioner did not file an appeal to the Court of
Appeals for the Armed Forces (CAAF), and his bad-conduct discharge was ordered
executed on 26 October 2007.

       On 23 November 2011, petitioner filed with this court the instant petition for
extraordinary relief in the nature of a writ of coram nobis, alleging that he received
ineffective assistance of counsel when his defense counsel failed to inform him of
the immigration consequences of his guilty pleas. We ordered the government to
show cause why the writ should not issue, and it filed an answer brief on 21
December 2011. Petitioner thereafter filed an affidavit and a reply brief.

       In his affidavit, petitioner states that he is a Cuban national who became a
lawful permanent resident of the United States in 1999. After serving his court-
martial sentence, petitioner visited Cuba in 2010, and upon reentry to the United
States, was informed that he was a visiting alien. On 9 November 2010, a
deportation order was issued for petitioner to be immediately deported from the
United States as a consequence of his court-martial conviction. 1 Petitioner avers
that his defense counsel, Captain (CPT) JR, did not advise him of the deportation
consequences associated with a court-martial conviction. Petitioner states that he
did not know deportation could occur as a result of his conviction, and further states,
“Had I known that my plea would result in such consequences I would not have pled
guilty to the charges against me at that time.”

       Captain JR thereafter filed an affidavit, confirming that he did not advise
petitioner of the potential immigration consequences of his guilty pleas. Captain JR
states that petitioner informed him of his nationality, but did not request any

1
 Petitioner is facing removal pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) (2006),
which states that an alien is ineligible to be admitted to the U.S. if he or she is
convicted of a crime involving moral turpitude.




                                           2
CASA-GARCIA—ARMY MISC 20111047

information regarding the immigration consequences of his pleas. Instead,
petitioner’s main concerns were limiting any potential confinement and avoiding a
punitive discharge. Captain JR states, “From the beginning of my representation of
[petitioner, he] insisted that he wanted to plead guilty and wanted to benefit from
cooperating with the government.” Captain JR further noted that petitioner was not
married and did not have any dependents.

       After receiving the affidavits from petitioner and CPT JR, we ordered further
briefing on the issue of ineffective assistance of counsel in light of the facts set forth
in the affidavits. Petitioner points to CPT JR’s candid admission that he knew of his
nationality but failed to advise him of potential immigration consequences as
conclusive proof of deficient performance. In response, the government argues that
we need not reach the issue of deficient performance because petitioner cannot
establish prejudice.

                                            II

       Petitioner’s claim of ineffective assistance of counsel is before this court in a
petition for extraordinary relief in the nature of a writ of coram nobis. Pursuant to
the All Writs Act, military Courts of Criminal Appeals are empowered to issue “all
writs necessary or appropriate in aid of their respective jurisdictions and agreeable
to the usages and principles of law.” 28 U.S.C. § 1651(a) (2006). See Denedo v.
United States (Denedo I), 

, 124 (C.A.A.F. 2008); United States v.
Frischholz, 16 U.S.C.M.A. 150, 152, 

, 308 (1966). In modern
practice, writs of coram nobis may issue to correct factual errors and legal errors of
the most fundamental character, to include violations of constitutional rights.
United States v. Denedo (Denedo II), 

, 911 (2009). Intrinsically, coram
nobis relief is “an extraordinary remedy predicated on exceptional circumstances not
apparent to the court in its original consideration of the case.” Dew v. United States,

, 649 (Army Ct. Crim. App. 1998) (en banc) (plurality opinion). More
precisely, in the military justice system a petitioner must satisfy several stringent
threshold requirements in order to obtain coram nobis relief:

      (1) the alleged error is of the most fundamental character; (2) no
      remedy other than coram nobis is available to rectify the consequences
      of the error; (3) valid reasons exist for not seeking relief earlier; (4) the
      new information presented in the petition could not have been
      discovered through the exercise of reasonable diligence prior to the
      original judgment; (5) the writ does not seek to reevaluate previously




                                            3
CASA-GARCIA—ARMY MISC 20111047

      considered evidence or legal issues; and (6) the sentence has been
      served, but the consequences of the erroneous conviction persist. 2

Denedo 

(citing United States v. Morgan, 

, 512–13
(1954); Loving v. United States (Loving I), 

, 252–53 (C.A.A.F. 2005)).

       This court applies a two-tiered evaluation for coram nobis review of
ineffective assistance of counsel claims. “In the first tier, the petitioner must satisfy
the threshold requirements for a writ of coram nobis, as described above. If the
petitioner does so, the court then analyzes, in the second tier, the ineffective
assistance of counsel claim . . . .” Denedo 

.

       In this case, petitioner’s writ meets the threshold criteria for coram nobis
review. The first three criteria are satisfied because the error is of fundamental
character, there is no other remedy, and the immigration consequences of his plea
did not become known to petitioner until deportation proceedings were initiated,
which was well after direct review of his case was completed. As for the fourth
criteria (whether the immigration consequences could have been discovered using
reasonable diligence), we also conclude it is satisfied. Although petitioner did not
specifically ask about the immigration consequences of his plea, petitioner did
inform his defense counsel that he was originally from Cuba. In these
circumstances, the current state of the law would place a duty upon a defense
counsel to advise his client of the immigration consequences of his plea. Padilla v.
Kentucky, 

(2010). Therefore, in evaluating the petition currently
before us, we conclude petitioner exercised reasonable diligence in relying on his
defense counsel’s advice. The final two criteria are also satisfied as this issue was
not previously litigated and, although the sentence has been served, serious
consequences of appellant’s conviction persist.

                                           III

     After reaching our conclusion that petitioner’s writ warrants review, the
paramount question for this court is whether the duty established in Padilla applies
2
  This court formerly applied a four-part inquiry to evaluate a writ of error coram
nobis. See Tillman v. United States, 

, 965 (A.C.M.R. 1991) (“In order to
obtain relief, a petitioner must satisfy the heavy burden of establishing that: (1) an
error had been made that was unknown to him during appeal; (2) a more usual
remedy is unavailable; (3) valid reasons exist for not previously attacking the
conviction; and, (4) the error was of such a fundamental nature as to render the
proceedings irregular and invalid.” (internal citation omitted)). Although not
incorrect, and arguably inclusive of the current criteria, it is no longer the standard
for evaluating a coram nobis petition.




                                            4
CASA-GARCIA—ARMY MISC 20111047

retroactively in evaluating the merits of petitioner’s ineffective assistance of counsel
claim. The Sixth Amendment guarantees an accused the right to effective assistance
of counsel. U.S. Const. amend. VI; United States v. Gooch, 

, 361
(C.A.A.F. 2011) (citing United States v. Gilley, 

, 124 (C.A.A.F. 2001)).
“In assessing the effectiveness of counsel we apply the standard set forth in
Strickland v. Washington, 

, 687 (1984), and begin with the presumption
of competence announced in United States v. Cronic, 

, 658 (1984).”

. To overcome the presumption of competence, the Strickland
standard requires appellant to demonstrate “both (1) that his counsel’s performance
was deficient, and (2) that this deficiency resulted in prejudice.” United States v.
Green, 

, 361 (C.A.A.F. 2010) (citing 

).

        In Padilla v. Kentucky, 

(2010), the Supreme Court held that a
defense counsel’s performance is deficient where he or she fails to inform a non-
U.S. citizen of the immigration consequences of pleading guilty. The Supreme
Court applied the standard from Strickland v. Washington, 

(1984), and
Hill v. Lockhart, 

(1985), and concluded that the “weight of prevailing
professional norms supports the view that counsel must advise her client regarding
the risk of deportation.” 

. “It is quintessentially the duty
of counsel to provide her client with available advice about an issue like deportation
and the failure to do so ‘clearly satisfies the first prong of the Strickland analysis.’”

(quoting 

(White, J., concurring in judgment)).

       In 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.
Citing Padilla, petitioner alleges that he was therefore denied the effective
assistance of counsel when he entered guilty pleas without this advice. However,
Padilla was not decided until after petitioner’s case completed appellate review. In
that respect, petitioner now seeks the retroactive application of the Padilla decision
to collaterally attack his convictions.

       Subject to certain exceptions, when a new rule of criminal law is announced,
that rule does not apply to cases that have become final. Teague v. Lane, 

(1989) (plurality opinion); Griffith v. Kentucky, 

(1987); Loving v.
United States (Loving II), 

(C.A.A.F. 2006). To assess the retroactivity
of a constitutional rule, this court must determine (1) whether petitioner’s conviction
is final, (2) whether the rule is actually “new,” and (3) if the rule is new, whether an
exception to nonretroactivity applies. Beard v. Banks, 

, 411 (2004). In
this case, petitioner’s convictions and sentence are final because there is a final




                                            5
CASA-GARCIA—ARMY MISC 20111047

judgement as to the legality of the proceedings under Article 71(c)(1)(A), UCMJ. 3
See Loving 

–37. Therefore, the Padilla decision is not applicable
to petitioner’s case unless it is not a new rule or it falls within one of two
exceptions.

       Whether Padilla created a new rule is a matter of first impression for this
court. To determine whether Padilla created a new rule, we must “ask whether the
Constitution, as interpreted by the precedent then existing, compels the rule.”

(citing Saffle v. Parks, 

, 488 (1990)). Four
federal circuit courts have addressed this issue. 4 In United States v. Orocio, 

, 638–40 (3d Cir. 2011), the United States Court of Appeals for the Third
Circuit determined that Padilla was not a new rule because it simply applied the
existing ineffective assistance of counsel framework developed in Strickland:
“Padilla followed from the clearly established principles of the guarantee of
effective assistance of counsel.” However, the United States Courts of Appeals for
the Fifth, Seventh, and Tenth Circuits reached the opposite conclusion. In United
States v. Chang Hong, 

, 1156 (10th Cir. 2011), for example, the Tenth
Circuit specifically disagreed with Orocio, stating “Padilla extended the Sixth
Amendment right to effective counsel and applied it to an aspect of a plea bargain
previously untouched by Strickland.” And in Chaidez v. United States, 

, 689 (7th Cir. 2011), the Seventh Circuit disagreed with Orocio, holding that the
outcome in Padilla “was not dictated by precedent” and therefore constitutes a new
rule. In support of this conclusion, the Chaidez Court pointed to the disagreement
on the Supreme Court in the Padilla decision itself, and the Supreme Court’s
suggestion that its precedent “does not control the question before us,” 

n.12 (discussing Hill v. Lockhart, 

(1985)). Chaidez,
3
 Petitioner’s case is also final under Article 76, UCMJ, because his sentence was
executed.
4
  United States v. Orocio, 

, 638–40 (3d Cir. 2011); United States v.
Amer, 

(5th Cir. 2012); Chaidez v. United States, 

, 689
(7th Cir. 2011); United States v. Chang Hong, 

, 1156 (10th Cir. 2011).
See also United States v. Mathur, 

, 398–99 (4th Cir. 2012) (assuming
without deciding that Padilla created a new rule); Figuereo-Sanchez v. United
States, 

, 1208 (11th Cir. 2012) (assuming without deciding that
Padilla created a new rule); Hill v. Holder, 454 Fed. Appx. 24, 25 n.2 (2d Cir. Jan.
6, 2012) (unpub. order denying review) (noting “that it is an open question in this
circuit whether the rule articulated in Padilla applies retroactively”); United States
v. Hernandez-Monreal, 404 Fed. Appx. 714, 715 n.* (4th Cir. Dec. 6, 2010) (per
curiam) (unpub.) (noting that “nothing in the Padilla decision indicates that it is
retroactively applicable”); Ufele v. United States, 

(D.C. 2011)
(holding that Padilla created a new rule that is not retroactively applicable).




                                          6
CASA-GARCIA—ARMY MISC 

. The Supreme Court recently granted certiorari to address this
issue. Chaidez v. United States, 

(2012) (grant of certiorari).

       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.” 

& n.9 (quoting Commonwealth v. Padilla, 

, 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 

, 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, 

, 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 

, 138–140. The Padilla decision falls into neither of these
categories. A substantive rule places “certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to proscribe.”

(quoting Mackey v. United States, 

, 692
(1971)). For example, “[a] decision that modifies the elements of an offense is
normally substantive rather than procedural.” Schriro v. Summerlin, 

,
354 (2004). The Padilla decision did not place petitioner’s crimes beyond the power
of a court-martial to punish; therefore, it did not create a “substantive” new rule.
A “watershed” procedural rule is one that calls into question the very accuracy of
the conviction itself—it is a procedure “without which the likelihood of an accurate
conviction is seriously diminished.” 

. Padilla’s holding
does not fit this category either because it concerns advice to be rendered in
anticipation of a guilty plea, not a procedure through which the reliability of the
guilty plea itself is to be ensured.

                                         IV

      Consequently, when considering the instant petition we will not apply the rule
announced in Padilla, and as discussed above, petitioner’s claim of deficient
performance does not find support in the law prior to Padilla. In this respect, it is
important to note that petitioner has not alleged that he asked CPT JR about any
immigration consequences or that these were petitioner’s primary concern.


                                          7
CASA-GARCIA—ARMY MISC 20111047

Accordingly, we conclude petitioner cannot establish deficient performance in this
case. See Denedo 

.

       Assuming arguendo that Padilla is retroactive in application, petitioner’s
claim also fails to establish prejudice under the second prong of Strickland. To
establish prejudice in a guilty plea case, petitioner is required to show that, “but for
counsel’s deficient performance, there is a reasonable probability that he would not
have pleaded guilty and would have insisted on going to trial.” United States v.
Rose, 

, 143 (C.A.A.F. 2012) (quoting United States v. Tippit, 

,
76 (C.A.A.F. 2007)) (internal quotation marks omitted). See Hill v. Lockhart, 

(1985); United States v. Vargaspuentes, 

(Army Ct. Crim. App.
2011), pet. denied, 

. Petitioner’s claim that he would not have pled
guilty if he had known about the immigration consequences is not supported by the
facts in his case.

       Petitioner confessed to his role in the conspiracy and theft of money from the
government. In addition, as CPT JR states in his affidavit, other soldiers involved in
the conspiracy also confessed, and the government finance office had records
proving petitioner’s receipt of unauthorized entitlements. In short, the evidence
against petitioner was overwhelming, the potential maximum sentence for his crimes
included fifteen years’ confinement, and the negotiated, twenty-month cap on
confinement in his plea deal was very favorable. In addition, at the time of the
offense, petitioner was unmarried and did not have dependents remaining in the
United States in the event of deportation. Finally, petitioner has not offered an
alternative option that he could have chosen to avoid deportation. Here, petitioner is
facing removal for conviction of a crime involving moral turpitude, and “[c]rimes
involving the intent to deceive or defraud are generally considered to involve moral
turpitude.” Lateef v. Department of Homeland Security, 

, 929 (8th Cir.
2010) (collecting cases). In some cases, there may be alternative offenses to which
an accused can offer to plead guilty that do not require deportation. In this case,
however, petitioner has not articulated any non-qualifying offenses to which he
could have pled. Accordingly, we find that appellant suffered no prejudice because
there is no reasonable probability that he would have pled not guilty even if he had
known about the potential immigration consequences.

                                           V

       In conclusion, although petitioner’s claim satisfies the threshold criteria for
coram nobis review, his claim of ineffective assistance of counsel is without merit.
The performance of petitioner’s defense counsel was not deficient, as Padilla v.
Kentucky, 

(2010), is not retroactively applicable to this case, and
petitioner was not prejudiced by his defense counsel’s representation. Therefore,
petitioner’s claim fails on both prongs of Strickland v. Washington, 

                                           8
CASA-GARCIA—ARMY MISC 20111047

(1984). Accordingly, the Petition for Extraordinary Relief in the Nature of a Writ of
Error Coram Nobis is DENIED.

    Chief Judge AYRES, Senior Judge COOK, Judge JOHNSON, Judge
GALLAGHER, Judge ALDYKIEWICZ, Judge HAIGHT, Judge BURTON, and Judge
MARTIN concur.


KRAUSS, Judge, with whom Senior Judge YOB joins, dissenting in part, and
concurring in part and in the result:

       I disagree with my learned colleagues as to the retroactive application of the
Supreme Court’s decision in Padilla v. Kentucky, 

(2010). I
understand 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.

, 1484–86; * United States v. Orocio, 

, 641–43
(3rd Cir. 2011); Commonwealth v. Clarke, 949 N.E.2d. 892, 903–05 (Mass. 2011);
Denisyuk v. State, 

, 923 (Md. 2011); Chaidez v. United States, 

, 698–99 (7th Cir. 2011) (Williams, J., dissenting); see also Lafler v. Cooper,

, 1389–90 (2012); Vartelas v. Holder, 

, 1483–84, 1487
(2012). “[B]ecause Padilla followed directly from Strickland and long-established
professional norms, it is an ‘old rule’ for Teague purposes and is retroactively
applicable” to appellant’s case as he pled guilty pursuant to a plea trial agreement in
2005. 

(referring to Strickland v. Washington, 

(1984), and Teague v. Lane, 

(1989)); see also 

(Williams, J., dissenting). I therefore respectfully dissent as to that part of the
majority opinion.

      Because appellant has established his counsel’s failure to advise in
accordance with the professional norms described in Padilla, he satisfies the first
prong of Strickland. 

. I agree with the majority that

*
 “It seems unlikely that our decision today will have a significant effect on those
convictions already obtained as the result of plea bargains. For at least the past 15
years, professional norms have generally imposed an obligation on counsel to
provide advice on the deportation consequences of a client’s plea. 

–1484. We should, therefore, presume that counsel satisfied their obligation to
render competent advice at the time their clients considered pleading guilty.

, 

.” 

.  




                                           9
CASA-GARCIA—ARMY MISC 20111047

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. See United States v.
Vargaspuentes, 

(Army Ct. Crim. App. 2011), pet. denied, 

.
Appellant fails to convince that a decision to reject the pretrial agreement in this
case would have been rational under the circumstances. Therefore, I concur with
that part of the majority’s opinion relative to prejudice under Strickland and concur
in the result.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




                                        MALCOLM H.
                                        MALCOLM     H. SQUIRES,
                                                       SQUIRES, JR.
                                                                 JR.
                                        Clerk of
                                        Clerk of Court
                                                 Court




                                          10