OROCIO, Gerald - brief 10...IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 10-1231 _____ UNITED STATES OF AMERICA, Appellee, ... i CORPORATE DISCLOSURE STATEMENT The plaintiff

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

10-1231 ________________________________________________

UNITED STATES OF AMERICA,

Appellee,

v.

GERALD OROCIO,

Appellant. ________________________________________________

Appeal from the U.S. District Court for New Jersey

No. 2-04-cr-00725-001 ________________________________________________

BRIEF FOR APPELLANT ________________________________________________

Sophie M. Alcorn, Esq. Law Offices of John R. Alcorn 2212 Dupont Drive, Suite V Irvine, CA 92612 Tel: (949) 553-8529 Fax: (949) 553-8550 Email: [email protected] ATTORNEY FOR THE APPELLANT

Case: 10-1231 Document: 003110144786 Page: 1 Date Filed: 05/14/2010

i

CORPORATE DISCLOSURE STATEMENT

The plaintiff is Gerald Orocio, an individual. No corporation or company is

a party to this appeal. See Fed. R. App. P. 26.1(a); 3d Cir. L.A.R. 26.1.1 (2008) (as

modified March 8, 2010).


ii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ......................................................... i

TABLE OF CITATIONS ........................................................................................ iv

STATEMENT REGARDING ORAL ARGUMENT ............................................... 1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 4

STATEMENT OF THE CASE .................................................................................. 6

STATEMENT OF RELATED CASES AND PROCEEDINGS ............................ 11

STANDARD OF REVIEW ..................................................................................... 12

SUMMARY OF THE ARGUMENT ...................................................................... 13

ARGUMENT ........................................................................................................... 16

I. Mr. Portelli’s Ineffective Assistance to Mr. Orocio is a Fundamental Error that Rendered the Proceedings Irregular and Invalid ................ 17

A. Mr. Portelli’s Representation of Mr. Orocio Fell Below an Objective Standard of Reasonableness ..................................... 18

1. Mr. Portelli Failed to Advise Mr. Orocio Regarding the Deportation Consequence of His Plea ............................ 18

2. Mr. Portelli Failed Seek Federal First Offender Act Protection for Mr. Orocio ............................................... 21


iii

B. Mr. Portelli’s Ineffective Assistance Prejudiced Mr. Orocio ... 23

1. Prejudice to Mr. Orocio Is Presumed ............................. 23

2. Mr. Orocio Suffered Actual Prejudice ............................ 24

II. Deportation is a Continuing Consequence of Mr. Orocio’s Invalid Conviction ........................................................................................... 28

III. No Remedy Was Available During the Criminal Proceedings ........... 29

IV. Mr. Orocio’s Has Sound Reasons for Failing to Seek Relief Earlier . 30

CONCLUSION ................................................................................... 30

CERTIFICATE OF BAR MEMBERSHIP .............................................................. 32

CERTIFICATE OF WORD COUNT AND COMPLIANCE WITH RULE 32(a) 33

CERTIFICATE OF SERVICE UPON COUNSEL ................................................. 34

CERTIFICATE OF IDENTICAL COMPLIANCE OF BRIEFS ............................ 35

CERTIFICATE OF VIRUS CHECK ...................................................................... 36


iv

TABLE OF CITATIONS

Cases

Acosta v. Ashcroft, 341 F.3d 218 (3d. Cir. 2003) .......................................... 22

Bridges v. Wixon, 326 U.S. 135 (1945) ......................................................... 29

Calcano-Martinez v. INS, 533 U.S. 348 (2001) ............................................ 19

Carpenter v. Vaughn, 296 F.3d 138 (3d Cir. 2002) ...................................... 18

Cuyler v. Sullivan, 446 U.S. 335 (1980) ........................................................ 23

Fiswick v. United States, 329 U.S. 211 (1946) ................................. 14, 28, 29

Fong Haw Tan v. Phelan, 333 U.S. 6 (1948) ................................................ 31

Fong Yue Ting v. United States, 149 U.S. 698 (1893) .................................. 31

Glover v. United States, 531 U.S. 198 (2001) ............................................... 25

Hill v. Lockhart, 474 U.S. 52 (1985) ...................................................... 26, 27

Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000) ............................... 22

Ng Fung Ho v. White, 259 U.S. 276 (1922) .................................................. 29

Padilla v.Kentucky, ___ U.S. ___, 2010 U.S. LEXIS 2928, No. 08-651 (Mar. 31, 2010) ............................................................................... passim


v

Penson v. Ohio, 488 U.S. 75, 86-89 (1988) .................................................. 23

Roe v. Flores-Ortega, 528 U.S. 470 (2000) ..................................... 14, 26, 27

Sasonov v. United States, 575 F. Supp. 2d 626 (D.N.J. 2008) ...................... 25

Spencer v. Kemna, 523 U.S. 1 (1998) ........................................................... 29

Strickland v. Washington, 466 U.S. 668 (1984) .................................... passim

United States v. Baptiste, 223 F.3d 188 (3d Cir. 2000) ................................... 3

United States v. Cariola, 323 F.2d 180, 184 (3d Cir. 1963) ...... 13, 15, 17, 30

United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005) ................................. 25

United States v. Mayer, 235 U.S. 55, 69 (1914) ............................................ 17

United States v. Morgan, 346 U.S. 502 (1954) ..................................... passim

United States v. Nino, 878 F.2d 101 (1989) .................................................. 26

United States v. Rad-O-Lite of Phila., Inc., 612 F.2d 740 (3d Cir. 1979) .............................................................................................................. 17

United States v. Resko, 3 F.3d 684 (3d Cir. 1993) ........................................ 23

United States v. Russell, 686 F.2d 35 (D.C. Cir. 1982) ................................. 26

United States v. Stoneman, 870 F.2d 102 (3d Cir. 1989) ...................... passim

United States v. Thornton, 1 F.3d 149 (3d Cir. 1993) ............................ 12, 23


vi

Statutes

8 U.S.C. § 1227(a)(2)(B)(i) ........................................................................... 19

8 U.S.C. § 1229b (a) ...................................................................................... 20

8 U.S.C. § 1229b (d)(1)(B) ............................................................................ 20

18 U.S.C. § 2 ................................................................................................6, 8

18 U.S.C. § 3607 .................................................................................... passim

21 U.S.C. § 844 ..................................................................................... 6, 8, 21

28 U.S.C. § 1291 .............................................................................................. 2

28 U.S.C. § 1651 (a) ................................................................................. 2, 16

28 U.S.C. § 2255 .............................................................................................. 2


1

STATEMENT REGARDING ORAL ARGUMENT

Appellant respectfully requests oral argument of twenty minutes as to all

issues. See Fed. R. App. P. 34 (a)(1); 3d Cir. L.A.R. 34.1 (b).


2

STATEMENT OF SUBJECT MATTER & APPELLATE JURISDICTION

The District Court for the District of New Jersey had subject matter

jurisdiction regarding a writ of error coram nobis based on the All Writs Act. 28

U.S.C. § 1651 (a); United States v. Morgan, 346 U.S. 502 (1954). This writ “is

used to attack allegedly invalid convictions which have continuing consequences,

when the petitioner has served his sentence and is no longer ‘in custody’ for

purposes of 28 U.S.C. § 2255.” United States v. Stoneman, 870 F.2d 102, 106 (3d

Cir. 1989). This Court has jurisdiction of appeals from “from all final decisions of

the district courts of the United States. . . .” 28 U.S.C. § 1291. See Fed. R. App. P.

28 (a)(4)(B).

The District Court’s order is dated January 6, 2010. (Appellant App. at vol.

1, 17). “An appeal from an order granting or denying an application for a writ of

error coram nobis is an appeal in a civil case for purposes of Rule 4(a),” and the

United States is a party, so the deadline for the notice of appeal was 60 days after

the order was entered. Fed. R. App. P. 4 (a-c); see Fed. R. App. P., Advisory

Committee Notes to Rule 4, 2002 Amendments (providing that an appeal from an

order denying a petition for a writ of error coram nobis is governed by the civil

time limitations). Appellant timely filed this Notice of Appeal on January 19,

2010. (Appellant App. at vol. 1, 1-16). See Fed. R. App. P. 28 (a)(4)(C).


3

No Certificate of Appealability is required before an appeal of a petition for

a writ of error coram nobis may be taken. United States v. Baptiste, 223 F.3d 188,

189 n.1 (3d Cir. 2000).

This appeal is from a final order and opinion that disposes of all parties’

claims. (Order, Appellant App. at vol. 1, 17; Opinion, id. at 18-22). See Fed. R.

App. P. 28 (a)(4)(A).


4

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

The overarching issue is whether Mr. Orocio’s conviction should be vacated

through a writ of error coram nobis. Mr. Orocio raised this issue at Appellant App.

at vol. 2, 32-40 (Pet. for Writ of Error Coram Nobis). The Government objected at

Appellant App. at vol. 2, 27-31 (Government’s Opposition). The District Court

denied the writ. (Order, Appellant App. at vol. 1, 17. Op., id. at 18-22).

There are four sub-issues. The first sub-issue is whether Mr. Orocio’s

proceedings were irregular and invalid based on a fundamental error, Mr. Portelli’s

ineffective assistance. The issue of ineffective assistance of counsel has two parts.

The first sub-sub-issue is whether the representation fell below an objective

standard of reasonableness, which Mr. Orocio raised (Appellant App. at vol. 2, 35-

36), the Government objected to (Appellant App. at vol. 2, 28-29) and the court did

not rule upon.

The second sub-sub-issue is whether Mr. Orocio was prejudiced. Mr.

Orocio raised this issue at Appellant App. at vol. 2, 35-36. The Government

objected at Appellant App. at vol. 2, 28-29. The District Court held that Mr.

Orocio did not demonstrate prejudice, and this is the sole basis upon which it

denied Mr. Orocio’s motion. (Appellant App. at vol. 1, 29).

The second sub-issue is whether deportation is a continuing consequence of

Mr. Orocio’s invalid conviction. Mr. Orocio raised this issue at Appellant App. at


5

vol. 2, 35. The Government objected at Appellant App. at vol. 2, 28. The court

did not rule upon this issue.

The third sub-issue is whether a remedy was available during the criminal

proceedings. Mr. Orocio raised this issue at Appellant App. at vol. 2, 36-37. The

Government objected at Appellant App. at vol. 2, 28. The court did not rule upon

this issue.

The fourth sub-issue is whether Mr. Orocio has sound reasons for failing to

seek relief earlier. Mr. Orocio raised this issue at Appellant App. at vol. 2, 35.

The Government objected at Appellant App. at vol. 2, 28. The court did not rule

upon this issue.


6

STATEMENT OF THE CASE

This is an appeal of the District Court for New Jersey’s denial of Gerald

Orocio’s Petition for a Writ of Error Coram Nobis based on ineffective assistance

of counsel. (Order, Appellant App. at vol. 1, 17; Op., id. at 18-22).

On October 7, 2004, the U.S. Attorney’s Office filed an information against

Mr. Orocio that included one count for count for possession of methamphetamines.

21 U.S.C. § 844; 18 U.S.C. § 2. On June 7, 2004, Mr. Orocio pled guilty, relying

on the advice of his attorney, Mr. Joseph Portelli. Mr. Portelli did not inform Mr.

Orocio of the deportation consequence of the guilty plea. (Decl., Appellant App. at

vol. 2, 38). The Court did not inform Mr. Orocio at the Change of Plea Hearing

that he could even face the possibility of deportation and the Rule 11 Form did not

inform Mr. Orocio that he could be deported for his plea. (Test., Appellant App. at

vol. 2, 55-70; Rule 11 Form, id. at 78-84. The plea agreement did not put Mr.

Orocio on notice of the possibility of deportation. (Appellant App. at vol. 2, 71-

77).

Mr. Orocio was sentenced to six months custody (time served) and two years

of supervised release. (J., Appellant App. at vol. 2, 43-44). He was supervised by

the U.S. District Court for the Southern District of Florida, and was discharged

after successfully completing his sentence on March 15, 2007. (Supervision

Discharge, Appellant App. at vol. 2, 41).


7

Mr. Orocio was placed into deportation proceedings and consulted with an

immigration law specialist to learn that he faces mandatory deportation. (Decl.,

Appellant App. vol. 2, 38-39). Mr. Orocio sought postconviction relief in the form

of a writ of error coram nobis in District Court in New Jersey based on Mr.

Portelli’s ineffective assistance by failing to advise him of the deportation

consequence of the guilty plea. (Appellant App. at vol. 2, 32-40). The United

States Attorney’s Office for the District of New Jersey opposed Mr. Orocio’s

petition. (Appellant App. at vol. 2, 27-31).

Senior District Judge William H. Walls denied Mr. Orocio relief on January

6, 2010 without oral argument pursuant to Local Rule 78.1. (Order, Appellant

App. at vol. 1, 17; Op., id. at 18-22). The court held that Mr. Orocio failed to meet

the second prong of the Strickland test regarding prejudice, because it held that Mr.

Orocio did not dispute the accuracy of the underlying facts giving rise to his guilty

plea. Id. at 18-22 (citing Strickland v. Washington, 466 U.S. 668 (1984)).

Mr. Orocio followed by filing the Notice of Appeal. (Appellant App. at vol.

1, 1-16).


8

STATEMENT OF FACTS

Mr. Gerald Orocio was born in 1977 in the Philippines. (Op., Appellant

App. at vol. 1, 18). He entered the United States legally on September 4, 1997 as a

Lawful Permanent Resident. Id.

On October 3, 2003, Mr. Orocio was arrested and the U.S. Attorney’s Office

for the District of New Jersey charged him with drug trafficking. (Op., Appellant

App. at vol. 1, 18). On October 7, 2004, the U.S. Attorney’s Office filed an

information against Mr. Orocio that included one count for count for possession of

methamphetamines. 21 U.S.C. § 844; 18 U.S.C. § 2. (Information, Appellant

App. at vol. 2, 86). Mr. Orocio informed the booking officer in jail that his

immigration status is Lawful Permanent Resident. (Decl., Appellant App. at vol.

2, 38).

Initially, a public defender represented Mr. Orocio, but he fired her because

she advised him to accept a plea bargain for a ten-year sentence. (Op., Appellant

App. at vol. 1, 18; Decl., id. at vol. 2, 38). On June 8, 2004, Mr. Joseph A. Portelli,

Esq., entered his appearance on behalf of Mr. Orocio. (Docket, Appellant App. at

vol. 2, 25).

On June 7, 2004, Mr. Orocio pled guilty pursuant to a plea agreement,

relying on the advice of his attorney, Mr. Joseph Portelli. (Decl., Appellant App.

at vol. 2, 38-39, Plea Agreement, id. at 71-77). At no time did the Federal Public


9

Defender or Mr. Portelli inform Mr. Orocio that the pleas they advised him to

accept would cause mandatory deportation. (Decl., Appellant App. at vol. 2, 38).

Mr. Orocio testified at the Change of Plea Hearing that he was born in

Manila, Philippines and that he is not a United States citizen. (Appellant App. at

vol. 2, 56, 61). The Court did not inform Mr. Orocio at the Change of Plea

Hearing that he could face even the possibility of deportation. (Appellant App. at

vol. 2, 55-70). The Judge stated that the plea agreement is “not binding upon the

Immigration and Naturalization Service,” id. at 66, and that Mr. Orocio was

obligated to surrender his passport and to not apply for any new ones or travel

documents, id. at 70. The Rule 11 Form did not inform Mr. Orocio that he could

be deported for his conviction. (Appellant App. at vol. 2, 78-84). Additionally,

the plea agreement did not notify Mr. Orocio regarding the possibility of

deportation. (Appellant App. at vol. 2, 71-77).

Mr. Orocio was sentenced to six months custody (time served) and two years

of supervised release. (J., Appellant App. at vol. 2, 43-44). After the Change of

Plea Hearing, at the Sentencing Hearing, the Judge informed Mr. Orocio, “you are

to cooperate with Immigration and Customs Enforcement to resolve any problems

with your status in this country. You are to provide truthful information and abide

by the rules and regulations of Immigration and Customs Enforcement. If you are

deported, Mr. Orocio, you cannot come back to this country without first getting


10

the written permission of the Attorney General of this country.” (Tr., Appellant

App. at vol. 2, 52). The U.S. District Court for the Southern District of Florida

supervised Mr. Orocio and discharged him on March 15, 2007. (Supervision

Discharge, Appellant App. at vol. 2, 41).

Mr. Orocio is now 32 years old and has not lived in the Philippines for over

twelve years. (Op., Appellant App. at vol. 1, 18). He lives in Aliso Viejo,

California and is fluent in English. Id. He is engaged to be married to a Lawful

Permanent Resident. Id. Mr. Orocio works as a Warehouse Lead, managing a

warehouse for Toshiba. Id.

Mr. Orocio is in deportation proceedings in immigration court in Los

Angeles, California. (Op., Appellant App. at vol. 1, 19; Decl., id. at vol. 2, 39).

He is facing mandatory deportation to the Philippines because of his 2004 New

Jersey District Court conviction. Id. He was not aware that his conviction could

lead to even the possibility of deportation until he received the hearing notice from

the immigration court and he consulted with John Alcorn, an immigration law

specialist. Id. Mr. Orocio states that had Mr. Portelli informed him that a

consequence of the plea he advised was deportation, Mr. Orocio would not have

accepted the plea, and would have asked Mr. Portelli to negotiate a different

agreement or insisted on going to trial. Id.


11

STATEMENT OF RELATED CASES AND PROCEEDINGS

This case has not previously been before this court. Appellant Mr. Orocio is

in ongoing deportation proceedings before Immigration Judge Gita Vahid-Tehrani

at 606 South Olive Street, 15th Floor, Los Angeles, California, 90014. The next

immigration court hearing is scheduled for January 5, 2011 at 9:30 a.m. in

courtroom 17R. The deportation proceeding is related to the instant case because

Mr. Orocio’s deportability is based on the conviction at issue in this appeal.


12

STANDARD OF REVIEW

The District Court denied the writ of error coram nobis by holding that Mr.

Orocio failed to establish the prejudice required by the second prong of the

Strickland test for ineffective assistance of counsel. (Op., Appellant App. at vol. 1,

22). The Court interpreted prejudice as requiring a showing that but for his

counsel’s errors, there is a reasonable probability that Mr. Orocio would not have

pleaded guilty and that he would not have been convicted at trial. Id.

Whether the District Court correctly interpreted prejudice is a question of

law, which this Court reviews de novo. United States v. Thornton, 1 F.3d 149, 152

(3d Cir. 1993). See 3d Cir. L.A.R. 28.1 (a)(2).


13

SUMMARY OF THE ARGUMENT

This Court should vacate Mr. Orocio’s conviction by issuing a writ of error

coram nobis. Morgan, 346 U.S. 502, 512. First, Mr. Orocio’s criminal

proceedings were based on a fundamental error that rendered them irregular and

invalid: Mr. Orocio’s attorney, Mr. Portelli, ineffectively assisted Mr. Orocio,

which prejudiced Mr. Orocio. United States v. Cariola, 323 F.2d 180, 184 (3d

Cir. 1963); Strickland, 466 U.S. at 687. Mr. Portelli failed to inform Mr. Orocio of

the certainty, or even the possibility, that deportation would result from the guilty

plea Mr. Portelli recommended. See Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct.

1473, 2010 U.S. LEXIS 2928, at *33, No. 08-651 (Mar. 31, 2010), available at

www.lexis.com/research. Additionally, Mr. Portelli failed to seek a sentence for

Mr. Orocio that would not render him deportable, such as deferred adjudication

pursuant to the Federal First Offender Act. 18 U.S.C. § 3607.

The District Court erred legally by denying the writ of error coram nobis

based on an incorrect interpretation of “prejudice.” See Strickland, 466 U.S. at

687. The District Court interpreted prejudice as requiring a showing that but for

his counsel’s errors, there is a reasonable probability that Mr. Orocio would not

have plead guilty and that he would not have been convicted at trial, finding a lack

of prejudice because Mr. Orocio did not dispute the accuracy of the underlying

facts giving rise to his guilty plea.


14

However, based on Supreme Court law, prejudice should be presumed,

because Mr. Portelli’s failure to inform Mr. Orocio that he faced mandatory

deportation is easy to identify and prevent. See Strickland, 466 U.S. at 691. Even

if prejudice were not presumed, Mr. Orocio suffered actual prejudice because the

outcome of his proceedings was affected. Id. at 695. First, there is a reasonable

probability that Mr. Portelli could have arranged for Mr. Orocio’s proceedings to

be adjudicated pursuant to the Federal First Offender Act, because Mr. Orocio is

prima facie eligible for the statute’s protection. 18 U.S.C. § 3607(a). Second,

whether a plea subjects an individual to automatic deportation, a criminal penalty,

constitutes a different result of the proceedings. See Strickland, 466 U.S. at 694;

Padilla, 2010 U.S. LEXIS 2928, at *18. Third, the Supreme Court does not

require an assertion of actual innocence regarding the forfeiture of a judicial

proceeding. Roe v. Flores-Ortega, 528 U.S. 470 (2000). Mr. Orocio suffered

prejudice because he could have received deferred adjudication and not be subject

to deportation, or insisted on going to trial, and instead Mr. Orocio faces

mandatory deportation, which the Supreme Court held is a criminal penalty.

Additionally, there is no evidence on the record that anybody notified Mr. Orocio

prior to his plea regarding even the possibility of deportation.

Mr. Orocio’s imminent deportation is a continuing consequence of his

conviction. Fiswick v. United States, 329 U.S. 211, 222-223 (1946) No remedy


15

was available during the criminal proceedings, because Mr. Portelli’s assistance

was ineffective and he did not know that a remedy was necessary. See Stoneman,

870 F.2d at 106. Mr. Orocio did not fight his conviction sooner because he did not

know that it would lead to mandatory deportation until he was placed into

deportation proceedings and he consulted with an immigration law specialist. See

Cariola, 323 F.2d at 183. This Court should reverse the District Court and issue a

writ of error coram nobis vacating Mr. Orocio’s conviction. Stoneman, 870 F.2d

102, 106.


16

ARGUMENT

This Court should reverse the decision of the District Court of New Jersey

and grant Mr. Gerald Orocio’s petition for writ of error coram nobis. Mr. Orocio

seeks this writ avoid that “a wrong may stand uncorrected which the available

remedy would right.” Morgan, 346 U.S. at 512. The wrong is the failure of Mr.

Portelli to effectively represent Mr. Orocio, a Lawful Permanent Resident, by

failing to advise him of the immigration consequences of his plea, and by failing to

seek that Mr. Orocio be convicted and sentenced pursuant to the Federal First

Offender Act, which could have given Mr. Orocio the chance to avoid deportation.

18 U.S.C. § 3607. Mr. Orocio has served his term, but “the results of his

conviction persist” because the conviction renders Mr. Orocio deportable. See

Morgan, 346 U.S. at 512-513. (Supervision Discharge, Appellant App. at vol. 2,

41). If the writ is issued, vacating the conviction, Mr. Orocio will not be deported.

The District Court’s authority to issue a writ of error coram nobis stems

from the All Writs Act. Morgan, 346 U.S. at 507 n.6 (citing 28 U.S.C. § 1651 (a)).

“[A] United States District Court has power to vacate its judgment of conviction

and sentence after the expiration of the full term of service.” 346 U.S. at 503. A

writ of error coram nobis is an “extraordinary remedy” that should be used “only

under circumstances compelling such action to achieve justice.” Id. at 511. Mr.

Orocio bears the burden of proving that the proceedings were incorrect. Id. A writ


17

of error coram nobis requires an invalid criminal proceeding; that the petitioner

suffer from continuing consequences of the conviction; that there was no remedy

available at the time of trial; and that sound reasons exist for failing to seek relief

earlier.

I. MR. PORTELLI’S INEFFECTIVE ASSISTANCE TO MR. OROCIO

IS A FUNDAMENTAL ERROR THAT RENDERED THE

PROCEEDINGS IRREGULAR AND INVALID

Mr. Portelli violated Mr. Orocio’s right to effective assistance of counsel.

“[E]rrors of fact ‘of the most fundamental kind’” render a criminal proceeding

“irregular and invalid.” Cariola, 323 F.2d at 184 (quoting United States v. Mayer,

235 U.S. 55, 69 (1914)). This Court has held that a person who is not in custody

may seek a writ of error coram nobis to attack a conviction for a “fundamental

defect” such as ineffective assistance of counsel. United States v. Rad-O-Lite of

Phila., Inc., 612 F.2d 740, 744 (3d Cir. 1979).

Strickland sets forth the test for ineffective assistance of counsel. 466 U.S.

at 687. The test has two prongs: “(1) that counsel’s representation fell below an

objective standard of reasonableness and (2) that there is a reasonable probability

that, but for counsel’s error, the result of the proceedings would have been

different.” Carpenter v. Vaughn, 296 F.3d 138, 149 (3d Cir. 2002). Mr. Orocio

meets both prongs.


18

A. Mr. Portelli’s Representation of Mr. Orocio Fell Below an

Objective Standard of Reasonableness

Mr. Portelli’s performance as Mr. Orocio’s attorney meets the first prong of

Strickland because it fell below an objective standard of reasonableness. See 466

U.S. at 687. First, Mr. Portelli failed to advise Mr. Orocio regarding the

deportation consequence of his plea, which the Supreme Court recently held

constitutes ineffective assistance of counsel. Padilla, 2010 U.S. LEXIS 2928, at

*33. (Decl., Appellant App. at vol. 2, 38-39). Second, Mr. Portelli failed to seek

relief for Mr. Orocio pursuant to the Federal First Offender Act, which would have

given Mr. Orocio the possibility of deferred adjudication and the possibility of not

being deported. 18 U.S.C. § 3607. (Decl., Appellant App. at vol. 2, 38-39).

1. Mr. Portelli Failed to Advise Mr. Orocio Regarding the

Deportation Consequence of His Plea

The Supreme Court of the United States held that “counsel must inform her

client whether his plea carries a risk of deportation.” Padilla, 2010 U.S. LEXIS

2928, at *33. The facts of Padilla are similar to this case: both Mr. Orocio and Mr.

Padilla are Lawful Permanent Residents who are facing virtually automatic

deportation for a single drug-related conviction pursuant to 8 U.S.C.

§ 1227(a)(2)(B)(i). Id. at *6.


19

The Supreme Court held that the subsection of the Immigration and

Nationality Act that renders both Mr. Padilla and Mr. Orocio deportable is

“succinct, clear, and explicit in defining the removal1 consequence.” Padilla, 2010

U.S. LEXIS 2928, at *22 (citing 8 U.S.C. § 1227(a)(2)(B)(i) (“Any alien who at

any time after admission has been convicted of a violation of (or a conspiracy or

attempt to violate) any law or regulation of a State, the United States or a foreign

country relating to a controlled substance . . ., other than a single offense involving

possession for one’s own use of 30 grams or less of marijuana, is deportable.”)).

Neither Mr. Orocio nor Mr. Padilla are eligible for the narrow, “limited

remnant[] of equitable discretion vested in the Attorney General to cancel the

removal for noncitizens convicted of particular classes of offenses.” Padilla, 2010

U.S. LEXIS 2928, at *14. Mr. Orocio is not eligible because his conviction

stopped him from accruing the requisite seven years of physical presence in the

United States. 8 U.S.C. § 1229b (a); 8 U.S.C. § 1229b (d)(1)(B). Mr. Orocio

entered the United States on September 4, 1997 and the date of the offense 1 The term “removal” is used interchangeably with the term “deportation.” Padilla

states: “The changes to our immigration law have also involved a change in

nomenclature; the statutory text now uses the term ‘removal’ rather than

‘deportation.’” 2010 U.S. LEXIS 2928, at *14 (citing Calcano-Martinez v. INS,

533 U.S. 348, 350, n.1 (2001)).


20

underlying the conviction was October 1, 2003, so he accrued less than seven years

of physical presence. (Op., Appellant App. at vol. 1, 18; Information, id. at vol. 2,

86).

Both Mr. Padilla’s and Mr. Orocio’s attorneys failed to advise them of the

deportation consequence prior to entering their pleas, and each man relied on his

attorney’s advice to enter his plea. Padilla, 2010 U.S. LEXIS 2928, at *6. (Decl.,

Appellant App. at vol. 2, 38-39). Both men would have insisted on going to trial

had they received correct advice from their attorneys. Id.

Similar to Mr. Orocio’s Petition for Writ of Error Coram Nobis to Vacate

Conviction (Appellant App. vol. 2, 32-40), Mr. Padilla sought post-conviction

relief based on the failure of his criminal defense attorney to advise him of the

deportation consequence prior to entering his plea. Padilla, 2010 U.S. LEXIS

2928, at *7. Mr. Padilla filed a pro se Motion to vacate, set aside, or correct

sentence pursuant to Kentucky Rule of Criminal Procedure 11.42. Joint Appendix

at 72-83, Padilla, 2010 U.S. LEXIS 2928 (available at on Lexis as PADILLA v.

KENTUCKY, 2008 U.S. Briefs 651).

In Padilla, the Supreme Court of the United States reversed the judgment of

the Supreme Court of Kentucky and held that Mr. Padilla met the first prong of

Strickland because his attorney’s conduct was ineffective. Padilla, 2010 U.S.

LEXIS 2928. The United States Supreme Court held that “Constitutionally


21

competent counsel would have advised [Mr. Padilla] that his conviction for drug

distribution made him subject to automatic deportation.” Id. at *7. The Court

reasoned, “The consequences of Padilla’s plea could easily be determined from

reading the removal statute, his deportation was presumptively mandatory, and his

counsel’s advice was incorrect.” Id. at *23. The Court held, “[W]hen the

deportation consequence is truly clear, as it was in this case, the duty to give

correct advice is equally clear.” Id. at *23-24.

2. Mr. Portelli Failed Seek Federal First Offender Act

Protection for Mr. Orocio

Mr. Portelli also committed ineffective assistance of counsel by failing to

seek deferred adjudication for Mr. Orocio pursuant to the Federal First Offender

Act. 18 U.S.C. § 3607. The Federal First Offender Act applies to offenses in 21

U.S.C. Section 844, the very section with which Mr. Orocio was charged. 18

U.S.C. § 3607(a). It states that if a person has never before been convicted of a

controlled substance violation and has never previously received a Federal First

Offender Act disposition, the court may place the person on probation for up to one

year without entering a judgment of conviction, and if the person does not violate a

condition of his probation, the court shall dismiss the proceedings. Id. Such a

disposition “shall not be considered a conviction for the purpose of a


22

disqualification or a disability imposed by law upon conviction of a crime, or for

any other purpose.” 18 U.S.C. 1307(b).

Even at the time of Mr. Orocio’s guilty plea, the law was clear that a plea

pursuant to the Federal First Offender Act would not constitute a conviction for

immigration purposes, and therefore not result in Mr. Orocio’s deportation. In

2003, Judge Alito, before becoming a Supreme Court Justice, wrote that for

purposes of Acosta v. Ashcroft, an alien whose charge was dismissed under the

Federal First Offender Act would not have a “conviction” pursuant to immigration

law. 341 F.3d 218, 224 (3d. Cir. 2003). Mr. Orocio’s pending deportation

proceeding in Los Angeles is controlled by the law of the Ninth Circuit Court of

Appeals, which agrees with the Third Circuit: it has held that an individual who

receives deferred adjudication pursuant to the Federal First Offender Act is

protected from deportation. Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir.

2000) (distinguished by Acosta, 341 F.3d at 225 regarding immigration law

treatment of state, not federal, expungements).

Mr. Portelli should have advocated for Mr. Orocio plead pursuant to the

Federal First Offender Act. 18 U.S.C. § 3607(a). Mr. Orocio was eligible for

deferred adjudication because he had never previously been convicted of a drug

possession charge and he had never previously received Federal First Offender Act

deferred adjudication. Since Mr. Orocio was successfully discharged from


23

supervised release, it is likely that he would not have violated a condition of

probation and the charges would have been dismissed. (Supervision Discharge,

Appellant App. at vol. 2, 41). Had that occurred, the offense could not be used to

deport Mr. Orocio.

B. Mr. Portelli’s Ineffective Assistance Prejudiced Mr. Orocio

Mr. Portelli’s failure to advise Mr. Orocio of the deportation consequence of

his plea and his failure to seek Federal First Offender Act protection for Mr.

Orocio prejudiced Mr. Orocio. The District Court incorrectly interpreted the

meaning of “prejudice,” a legal issue which this Court reviews de novo. Thornton,

1 F.3d at 152. Prejudice exists where “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694 (noting that prejudice need not be shown by

a preponderance of the evidence).

1. Prejudice to Mr. Orocio Is Presumed

Prejudice to Mr. Orocio should be presumed. In Strickland, the Supreme

Court explained prejudice is presumed in certain Sixth Amendment contexts, such

as where the impairment of the right involved is easy to identity and easy to

prevent. 466 U.S. at 691; see also United States v. Resko, 3 F.3d 684, 695 (3d Cir.

1993) citing Penson v. Ohio, 488 U.S. 75, 86-89, 109 (1988); Cuyler v. Sullivan,

446 U.S. 335, 349-50 (1980).


24

In Padilla, the Supreme Court stated, “The weight of prevailing professional

norms supports the view that counsel must advise her client regarding the risk of

deportation.” Padilla, 2010 U.S. LEXIS 2928, at *20. An attorney’s failure to

advise his client of at least the possibility of deportation is easy to identify and easy

to prevent. Therefore, prejudice is presumed. See Strickland, 466 U.S. at 691.

2. Mr. Orocio Suffered Actual Prejudice

Assuming for the sake of argument that prejudice is not presumed, Mr.

Orocio can demonstrate actual prejudice because “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. A reasonable probability is “a

probability sufficient to undermine confidence in the outcome.” Id.

First, there is a reasonable probability that Mr. Portelli could have arranged

for Mr. Orocio’s proceedings to be adjudicated pursuant to the Federal First

Offender Act, because Mr. Orocio is prima facie eligible for the protections of the

statute. See Strickland, 466 U.S. at 694. Had this occurred, Mr. Orocio would

have been eligible for deferred adjudication, and if his charges were dismissed, he

would not be subject to automatic deportation. See 18 U.S.C. § 3607. There is a

reasonable probability that Mr. Orocio would have a deferred adjudication and no

formal conviction. This constitutes prejudice. See Glover v. United States, 531

U.S. 198, 204 (2001) (holding that an increased prison term that flows from an


25

error in sentencing constitutes prejudice); see also United States v. Kwan, 407 F.3d

1005, 1017-18 (9th Cir. 2005) (holding that an alien was prejudiced by his

attorney’s ineffective assistance where his criminal defense attorney failed to

pursue a nominally shorter sentence that would have avoided deportation and

where the attorney failed to withdraw the plea so that the alien could have gone to

trial, renegotiated the plea to avoid deportation, pled guilty to a lesser charge, or

stipulated to a slightly lesser sentence to avoid deportation), abrogated on other

grounds by Padilla, 2010 U.S. LEXIS 2928, at *25; Sasonov v. United States, 575

F. Supp. 2d 626 (D.N.J. 2008) (vacating guilty plea because defendant was

prejudiced where defense counsel failed to negotiate a different plea agreement

that would not have the consequence of deportation).

Second, whether a plea subjects an individual to automatic deportation

constitutes a different result of the proceedings. See Strickland, 466 U.S. at 694.

The Supreme Court held that deportation is part of the “penalty” of a conviction.

Padilla, 2010 U.S. LEXIS 2928, at *18. It stated: “deportation is an integral part –

indeed, sometimes the most important part – of the penalty that may be imposed on

noncitizen defendants who plead guilty to specified crimes.” Id. at *15 (internal

footnote omitted). Deportation is “intimately related to the criminal process . . . we

find it ‘most difficult’ to divorce the penalty from the conviction in the deportation

context. Id. at *17-18 (citing United States v. Russell, 686 F.2d 35, 38 (D.C. Cir.


26

1982)). But for Mr. Portelli’s ineffective assistance, there is a reasonable

probability that Mr. Orocio would not be deportable, which would be a different

result of the proceedings. See Strickland, 466 U.S. at 694.

Third, Mr. Orocio would not have pled guilty had he known that his

conviction would lead to automatic deportation. (Decl., Appellant App. at vol. 2,

39). To satisfy the Strickland prejudice requirement of a different outcome in the

guilty plea context, the “defendant must show there is a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have insisted

on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985), subsequent habeas

corpus proceeding at 877 F.2d 698 (8th Cir. 1989), adopted en banc, 894 F.2d

1009, (8th Cir. 1990), cert. denied, 497 U.S. 1011 (1990). Although this Court’s

1989 decision in Nino requires a showing that the individual would not have been

convicted at trial, in 2000 the Supreme Court issued a decision holding that

demonstrating prejudice in a forfeited judicial proceeding did not require an

assertion of factual innocence. United States v. Nino, 878 F.2d 101, 105 (1989);

Roe, 528 U.S. 470 (holding that to show prejudice where no notice of appeal was

filed, “a defendant must demonstrate that there is a reasonable probability that, but

for counsel’s deficient failure to consult with him about an appeal, he would have

timely appealed.”). The Supreme Court held, “The even more serious denial of the

entire judicial proceeding itself, which a defendant wanted at the time and to which


27

he had a right, similarly demands a presumption of prejudice.” Roe, 528 U.S. at

483. There is no “presumption of reliability” regarding a judicial proceeding that

never occurred. Id. at 483. Mr. Orocio is prejudiced because Mr. Portelli’s

ineffective assistance affected the outcome of his proceedings. Hill, 474 U.S. at

59. Had he known the deportation consequence of his plea and no alternative pleas

were available, he would have insisted on going to trial. (Decl., Appellant App. at

vol. 2, 39).

The record supports a finding that Mr. Orocio was prejudiced. At the

Change of Plea hearing on October 7, 2004, Mr. Orocio testified that he was born

in Manila, Philippines and that he is not a United States citizen. (Appellant App. at

vol. 2, 56, 61). The Judge never informed Mr. Orocio that could be deported based

on a plea of guilty; he merely stated that the plea agreement is “not binding upon

the Immigration and Naturalization Service,” id. at 66, and that Mr. Orocio was

obligated to surrender his passport and to not apply for any new ones or travel

documents, id. at 70. Neither the Plea Agreement nor the Rule 11 Form mentions

the possibility of deportation. (Appellant App. at vol. 2, 71-77, 78-84).

After Mr. Orocio plead guilty, at the Sentencing Hearing on March 10, 2005,

the Judge mentioned that Mr. Orocio is from the Philippines. (Appellant App. at

vol. 2, 51). He also informed Mr. Orocio, “you are to cooperate with Immigration

and Customs Enforcement to resolve any problems with your status in this country.


28

You are to provide truthful information and abide by the rules and regulations of

Immigration and Customs Enforcement. If you are deported, Mr. Orocio, you

cannot come back to this country without first getting the written permission of the

Attorney General of this country.” (Appellant App. at vol. 2, 52). It is crucial that

this admonition occurred at sentencing, approximately five months after Mr.

Orocio had already plead guilty, so this statement does not negate the prejudice

that Mr. Orocio suffered in pleading guilty at the Change of Plea Hearing.

II. DEPORTATION IS A CONTINUING CONSEQUENCE OF MR.

OROCIO’S INVALID CONVICTION

Mr. Orocio is suffering from the continuing consequences of his invalid

conviction. Stoneman, 870 F.2d at 106 (citing Morgan, 346 U.S. at 512-13). In

1946, the United States Supreme Court allowed an alien to challenge his criminal

conviction because the conviction had the continuing consequence of rendering

him deportable. Fiswick, 329 U.S. at 222-223. The Court determined that the

alien had “a substantial stake in the judgment of conviction which survives the

satisfaction of the sentence imposed on him,” because, “To leave him to defend a

deportation order on the ground that the crime of which he was convicted did not

involve [the deportation ground] is to add to his burdens by depriving him of his

best defense – that he was not properly convicted.” Id. at 221-222 (internal

footnotes omitted) (distinguished by Spencer v. Kemna, 523 U.S. 1 (1998)


29

(declining to presume that collateral consequences adequate to meet Article III's

injury-in-fact requirement resulted from petitioner's parole revocation)).

The Court noted that deportation is a “very great hardship” that may result in

the loss “of all that makes life worth living.” Id. at 222 n.8 (citing Bridges v.

Wixon, 326 U.S. 135, 147 (1945); Ng Fung Ho v. White, 259 U.S. 276, 284

(1922)). The Court determined that because the alien was “not accorded the trial to

which he is entitled under our system of government” he “must stand in the

position of any man who has been accused of a crime but not yet shown to have

committed it.” Id. at 223. Therefore, deportability is a continuing consequence of

a conviction. Stoneman, 870 F.2d at 106.

III. NO REMEDY WAS AVAILABLE DURING THE CRIMINAL

PROCEEDINGS

The writ of error coram nobis is appropriate because there was no remedy

available at the time of trial. See Stoneman, 870 F.2d at 106. This requirement

“may reflect the rule that deliberate failure to use a known remedy at the time of

trial may be a bar to subsequent reliance on the defaulted right.” Morgan, 346 U.S.

at 511. Since Mr. Portelli did not advise Mr. Orocio of the deportation

consequence of his plea, Mr. Portelli was probably not aware of this consequence,

and thus had no incentive to attack what he believed was a fine result of the

proceedings. There was no remedy available to Mr. Orocio while he only sought


30

legal advice from Mr. Portelli and had no notice that the counsel he was receiving

was ineffective.

IV. MR. OROCIO’S HAS SOUND REASONS FOR FAILING TO SEEK

RELIEF EARLIER

Mr. Orocio has sound reasons for failing to seek relief earlier. Stoneman,

870 F.2d at 106. He was not aware that his conviction would lead to mandatory

deportation until he was placed into deportation proceedings and sought legal

advice from John Alcorn, an attorney and immigration law specialist. (Decl.,

Appellant App. at vol. 2, 39). The passage of time does not preclude Mr. Orocio

from relief, because he did not delay after he received notice of his pending

deportation trial. See Cariola, 323 F.2d at 183.

CONCLUSION

This Court should issue a writ of error coram nobis and vacate Mr. Orocio’s

conviction. Stoneman, 870 F.2d 102, 106. He served his sentence successfully.

(Supervision Discharge, Appellant App. at vol. 2 at 41). Deportation is a “drastic

measure,” Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), which the Supreme

Court has “long recognized that deportation is a particularly severe ‘penalty,’”

Padilla, 2010 U.S. LEXIS 2928, at *17 (citing Fong Yue Ting v. United States, 149

U.S. 698, 740 (1893)). The constitutional errors in Mr. Orocio’s criminal case and


31

the equities justify that this court grant Mr. Orocio’s appeal and issue a writ of

error coram nobis.

Respectfully submitted May 14, 2010,

/s/ Sophie M. Alcorn California State Bar No. 261071 Attorney for Petitioner Gerald Orocio Law Offices of John R. Alcorn 2212 Dupont Drive, Suite V Irvine, CA 92612 Tel: (949) 553-8529 Fax: (949) 553-8550 Email: [email protected]


32

CERTIFICATE OF BAR MEMBERSHIP

The undersigned hereby certifies pursuant to L.A.R. 46.1 that I was duly

admitted to the Bar of the United States Court of Appeals for the Third Circuit on

January 22, 2010, and I am presently a member in good standing at the Bar of this

Court. 3d Cir. L.A.R. 28.3 (d).




33

CERTIFICATE OF WORD COUNT AND COMPLIANCE WITH RULE

32(a)

Certificate of Compliance With Page Limitation, Type-Volume Limitation, Typeface Requirements, and Type Style Requirements

1. This principal brief complies with the page limitation of Fed. R. App. P.

32(a)(7)(A) because it does not exceed 30 pages. 2. This brief also complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 6,234 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

3. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2007 in size 14 Times New Roman font.




34

CERTIFICATE OF SERVICE

I hereby certify pursuant to Fed. R. App. P. 25(b) that I electronically filed

the BRIEF FOR APPELLANT with the Clerk of the Court for the United States

Court of Appeals for the Third Circuit by using the appellate CM/ECF system on

May 14, 2010 and sent 10 hard copies of the brief to the Clerk’s Office on the

same day. I certify that the following participant is a registered CM/ECF user who

has consented to electronic service [Fed. R. App. P. 25(c)(1)(D)]; that service will

be accomplished by the appellate CM/ECF system; and that I have served one copy

of the paper BRIEF FOR APPELLANT on this participant by U.S. certified mail:

George S. Leone, Esq. Office of United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102-0000 Direct: 973-645-2750 Email: [email protected] Fax: 973-297-2007

See Fed. R. App. P. 25(d)(1)(B); 3d Cir. L.A.R. 31.0 (d).




35

CERTIFICATE OF IDENTICAL COMPLIANCE OF BRIEFS

I certify that the text of the electronic brief is identical to the text in the

paper copies. 3d Cir. L.A.R. 31.0 (c).




36

CERTIFICATE OF VIRUS CHECK

I certify that Sophos Anti-Virus, Version 7.1.6 (virus definition last updated

May 13, 2010), a virus detection program, has been run on the electronic file of

this brief and no virus was detected. 3d Cir. L.A.R. 31.0 (c).




Documents

OROCIO, Gerald - brief 10...IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 10-1231 _____ UNITED STATES OF AMERICA, Appellee, ... i CORPORATE DISCLOSURE STATEMENT The plaintiff