Padilla Retroactivity Making Another Trip to the Supreme Court?

Earlier this month the Ninth Circuit Court of Appeals decided the case of United States v. Chan.  That case involves a longtime U.S. green card holder and British national who is trying to get her prior convictions for perjury overturned.  The argument is that the lawyer who represented the green card holder misled her on what would happen to her immigration status if she decided to plead guilty, which she ultimately did.

The convictions at issue are old, dating back to 1993, but they are surfacing now because the immigration authorities recently initiated deportation proceedings against the green card holder, relying on the 1993 convictions.

The issue in the case is whether the green card holder is entitled to postconviction relief because her former attorney misled her about the immigration consequences of her prior convictions.  If she does, then there is a chance she may also be able to avoid deportation.

The district/trial court said no but the appeals court disagrees.  The appeals court rules that the green card holder is allowed to rely on and benefit from a Ninth Circuit decision that came out after the green card holder was convicted of perjury.

Generally, decisions that are issued after the event for which one seeks relief cannot be applied retroactively.  But there are exceptions to this rule, and in some cases the rule just doesn’t apply.  Here, the green card holder convinced the appeals court that the rule of non-retroactivity did not apply to the decision that she says is her key to overturning her perjury convictions.  That decision is United States v . Kwan, 407 F.3d 1005 (9th Cir. 2005).

There was a smattering of opinions in this case among the three judges who were on the appellate panel.  One judge (Bybee) agreed that Kwan could be applied retroactively but said that the green card holder could still benefit from Kwan on the basis of stare decisis — the latin phrase for “to stand by things decided” — because the two cases are identical.  When applied to court decisions this principle signifies that prior court decisions should control cases that come after it.  What Justice Roberts once likened to a judge who just calls balls and strikes (Roberts placed himself in that category of judges).

Another judge (Ikuta) disagreed with the majority’s retroacitivity analysis.  Ikuta acknowledged that the case before the court was a “sympathetic” one but thought the majority came out wrong in its legal analysis.

In any event, the significant aspect of the Ninth Circuit’s decision in Chan, aside from the benefit it confers to our green card holder, is that it deepens the split among the federal appeals courts on whether decisions making it unlawful for an attorney to affirmatively misadvise a client on immigration consequences can be applied retroactively.  I know, an issue that sounds like something only a lawyer, or a lawyer’s lawyer, would get excited about.  But its implications are considerable given that immigration continues to remove record numbers of foreign nationals from this country come hell or high water.  Right now, one appellate court has said yes to retroactivity (the Second Circuit), and another one has said no (the Seventh Circuit).  If you’re keeping score, that is 2 for retroactivity and 1 for non-retroactivity.

The existence of a circuit split also means that it makes it more likely that the Supreme Court will eventually step in to resolve the disagreements among the courts.  It did so once already on a very similar issue and ruled against retroactivity.  Might it do the same thing this time around?

It’s Such a Good Feeling

Not too long ago I transcribed for this blog a piece George Orwell wrote for Tribune, a British newspaper to which he was a regular contributor.  Orwell had his own column in the paper which he called As I Please and the piece at issue was one that Tribune thought best captured Orwell’s character and outlook, so much so that it re-printed the piece as its official obituary for Orwell following his death, one that came all too early.

At the end of this piece, Orwell quoted the following passage from The Thoughts of the Emperor Marcus Aurelius:

In the morning when thou risest unwillingly, let this thought be present — I am rising to the work of a human being.  Why then am I dissatisfied if I am going to do the things for which I exist and for which I was brought into the world?  Or have I been made for this, to lie in the bed-clothes and keep myself warm?  — But this is more pleasant — Dost thou exist then to take they pleasure, and not at all for action or exertion?  Dost thou not see the little plants, the little birds, the ants, the spiders, the bees working together to put in order their several parts of the universe? And art thou unwilling to do the work of a human being, and dost thou not make haste to do that which is according to nature?

There is a modern equivalent to this passage, and it comes from everyone’s favorite “neighbor” and TV personality Fred Rogers, more commonly known as Mister Rogers.  Among the many rituals Mister Rogers used to have on his television show was the one where he would sing a little tune while he changed his shoes and jacket as he came into and out of his television home.  The songs signaled to the audience the beginning and the end of another episode of Mister Roger’s Neighborhood, and always left the viewers with a sense of anticipation — to see what would be on today’s show, and when that show was over, the one after that.

The song Mister Rogers sang when it came time to leave and to say goodbye to his audience went something like this:

It’s such a good feeling to know you’re alive.
It’s such a happy feeling: You’re growing inside.
And when you wake up ready to say,
“I think I’ll make a snappy new day.”
It’s such a good feeling, a very good feeling,
The feeling you know that
I’ll be back,
When the day is new,
And I’ll have more ideas for you,
And  you’ll have things you’ll want to talk about,
I will too.

I miss Mister Rogers, and George Orwell for that matter.

On Same-Sex Marriage

In 1952 William Rehnquist, the former Chief Justice of the Supreme Court, wrote a memo he called “A Random Thought on the Segregation Cases”.  At that time, Rehnquist was clerking on the Supreme Court for Justice Robert Jackson, and the memo was apparently addressed by Rehnquist to his then boss.

In his memo, Rehnquist mapped out his vision for how the Court should deal with a series of cases brought by the NAACP challenging the practice of racial segregation that were working their way through the lower courts and almost certainly bound for the Supreme Court.

Rehnquist, for the most part, urged restraint.  Rehnquist thought that because public opinion had already spoken on the topic of racial segregation — largely receptive of the practice — it would be inappropriate for the Court to get involved simply because its members  “dislike[d] segregation” or considered it “morally wrong[]”.  Only in “extreme cases”, Rehnquist cautioned, would it be appropriate for the Court to step in to “thwart public opinion”.  In Rehnquist’s mind racial segregation did not meet that test.

In concluding his memo, Rehnquist offered the following observation:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagues, but I think Plessy v. Ferguson [the case that established the principle of “separate but equal”] was right and should be re-affirmed.  If the Fourteenth Amendment did not enact Spencer’s Social Statios [sic], it just as surely did not enact Myrddahl’s American Dilemna [sic].

Rehnquist’s view, we know now, did not prevail.  The Court ultimately took the so-called “segregation cases” and voted unanimously to strike down as unconstitutional the practice of racial segregation in its landmark decision of Brown v. Board of Education.

Chief Justice Robert’s recent dissent in the same-sex marriage case makes a lot of the same points Rehnquist made in this memo, which is not surprising.  Like Rehnquist, Roberts is a conservative.   And he had at one time clerked for Rehnquist.  At one point in his dissent Roberts uses the same reference to Spencer’s Social Statics and the Fourteenth Amendment that Rehnquist used at the end of his memo, language which Roberts correctly attributes to Judge Friendly and Justice Holmes, but he almost certainly had Rehnquist and perhaps his 1952 memo in mind in writing that and the rest of his dissent.

The approach advocated by Rehnquist and Roberts — that is, let the legislators and voters decide — has some appeal.  One might counter however that they only suggest this approach because they know it is one that is self-defeating; that there will always be a majority of lawmakers and their supporters somewhere who will refuse to recognize the fundamental right at issue.

Right approach or not, what matters ultimately are the facts on the ground.  And that, to a large extent, is determined by the hearts and minds of everyday folks and how they wish to shape the society in which they live.  Court rulings and statutes carry some influence in that respect.  More so, however, is the unwritten code of life that governs how we treat one another  — with dignity, respect and fairness.  That it took years of hard-fought litigation and a sharply divided Supreme Court to confer on homosexuals the right to marry is proof that this code is sorely lacking in this country, or is simply not being observed to the extent that it should.  Were the opposite true, the debate about gay marriage would have ended a long time ago and with the “self-evident” conclusion that “all men [and women] are created equal….”

Charleston, South Carolina

The other night a 21 year old white male shot up a church and killed 9 people, all of whom were black.  Reports soon followed that depicted the shooter as a white supremacist.  He favored decorative license plates bearing confederate flags and is said to have expressed concern about black men raping white women as a reason for why he felt compelled to shoot up a black church.

It is not surprising an event like this has happened.  If a shooting spree can happen in an elementary school attended by mostly white children it can surely happen in a historically black church.   The Sandy Hook shooting is the new normal so they say.  Until something fundamental changes in the way the country regulates firearms or commits violence in the name of its citizens events like last night’s shooting only bring us one step closer to another Sandy Hook-like massacre, except this next one will be even more horrific.

But what do you expect from  a country whose leaders care more about their bank accounts than for the welfare of their communities?  This goes for communities of all races and colors.  Whites don’t have a monopoly on corruption and moral failings.  They are just better at getting away with it than blacks are.  But blacks of course pay a much heavier price than whites do when they are thrown under the bus by their leaders, and that will remain the case for a long time to come.

Right now our country has no idea who its enemies are.  One would think that with the kind of sweeping data mining and surveillance programs our government has put into place that this question would not be such a hard one to answer.  We like to blame the brown and yellow as the ones who pose the gravest threat to our national security.  For the brown, American- and foreign-born alike, we offer drones and Hellfire missles.  For the less vulnerable yellow we simply snipe and saber rattle.  But mostly we act like the high school bully — you know, the one who will never get it together to leave home and will end up flipping burgers until he is 35, at which point he will spend increasingly more and more time drunk, stoned and in jail.

A Spirit of Prudence

When I was a kid, I had a small, portable radio that looked like a hamburger.  I took it everywhere with me: to the bathroom, in the car, on family outings.  During the summer, I would put it under my pillow as I went to sleep so I could listen to the tail end of Mets games.  Back then, Gary Cohen and Bob Murphy called the games.  Gary Cohen is still calling Mets games but for the team’s flagship television station.  Bob Murphy is dead, whose many years as a smoker finally got the best of him.  I have tried many times to find out where Bob Murphy has been buried so I could tell him how much I miss hearing his voice on the radio but to no avail.  Maybe Gary Cohen wouldn’t mind sharing that information with me.

I used to get excited during Mets games in ways that seem strangely foreign to me now: cursing at opposing players and their fans; mimicking the hitting or pitching motions of various players (Orlando Hernandez a.k.a. El Duque was a popular option); and once, swinging an umbrella — the Mets were up at bat — so hard that its barrel went flying through a wall (good thing I was at a friend’s house without the friend; I don’t’ think I’ve told him to this day about the hole).

As another baseball season is set to begin, I wanted to write about all the things I dislike about baseball today.  And trust me, there’s a lot to say on that subject.  But so what?  No one who is worth a damn in professional baseball is going to change the way the game is presented and played, for me, or anyone else with a gripe.  To most of them, baseball might as well be NASCAR given the way they have turned the game into a slow-motion, ear-splitting, commercial extravaganza.  Of course, I say this without having ever watched a NASCAR race up close and personal, but I’m not sure that really matters.  Who knows, maybe one day I will give up my interest in baseball entirely.  I certainly wouldn’t  be the first one to do so.

But then I would be admitting defeat.  Why should I be the one to abandon the game when it is the game, and its purveyors, that have abandoned me?  As with all things fundamental to one’s way of life, we don’t know what we’ve lost until we’ve lost it.  Tony Judt, the late historian, taught me this in one of his last books.  Of course, there, he was making a case for the defense of social democracy.  But baseball is also an institution deserving of what Judt referred to as “a spirit of prudence”.

If anything needs to change it is the belief that baseball cannot be played in much the same ways that it was played at the turn of the century.  The last time I checked umpires didn’t have  replay machines back then, and I’m not sure the fans would have even stood for such nonsense, given the disruption it creates in the flow of the game.  Not all change is bad, of course.  But, as I again borrow from the Tony Judt playbook,  “incremental improvements upon unsatisfactory circumstances are the best that we can hope for, and probably all we should seek.”  As the famous song goes:

Take me out to the ball game,
Take me out with the crowd;
Just buy me some peanuts and Cracker Jack,
I don’t care if I never get back.
Let me root, root, root for the home team,
If they don’t win, it’s a shame.
For it’s one, two, three strikes, you’re out,
At the old ball game.

Hernandez: Eleventh Circuit Accepts Allegations of Bad Lawyering under Padilla v. Kentucky; Case Sent Back for an Evidentiary Hearing

The question of when a criminal defendant is entitled to a do-over because his lawyer failed to correctly advise him of the immigration consequences of a conviction in light of the Supreme Court’s decision in Padilla v. Kentucky is getting more attention from the federal appeals courts.  Today the Eleventh Circuit Court of Appeals decided the case of Rodolfo Hernandez v. United States, No. 13-10352 (decided Mar. 2, 2015).  In a brief, nine-page decision, the court concluded that Mr. Hernandez who made allegations about shoddy lawyering against his former attorney  should not have had his case summarily dismissed by a lower court; instead, the appeals court ruled, Mr. Hernandez should have been given a chance to build his case and climb what is almost always the very steep hill toward post conviction relief.

The story behind the alleged bad lawyering although pretty typical has some interesting twists.  Mr. Hernandez claimed that his former attorney did not give him correct legal advice about whether he would be deported back to Cuba — his home country —  if he pled guilty to a federal drug trafficking charge.  The lawyer had mixed opinions about the issue.  Because of the lack of diplomatic relations between the United States and Cuba it was not unusual for Cuban nationals convicted of crimes in the United States to remain in a sort of immigration limbo; technically subject to deportation but never actually being deported.  At one point, because of this unique situation, the lawyer asked the judge for his insight, but the judge refused to get involved.  Mr. Hernandez ultimately entered a plea — notably to every charge that was filed against him by the Government — and while he was serving time on his conviction received a letter from the Department of Homeland Security telling him that he may be subject to deportation.

The standard for proving a claim of ineffective assistance of counsel is a high one.  Even if a lawyer did give his client bad advice, the client, in order to secure post conviction relief, must still have to prove that the outcome of the proceedings would have been different “but for” counsel’s poor performance — the so-called prejudice test.  This is where most ineffective assistance claims run into trouble, as was the case with the Rasheed case, recently discussed in this blog.

But in a departure from how other appeals courts have ruled on the issue of prejudice — generally finding no prejudice because, among other reasons, there existed in the words of those courts overwhelming evidence of guilt —  the appeals court in this case sided with the defendant.  It did so because it accepted Mr. Hernandez’s claim that had he known about the risk of deportation that he, in fact, faced, he would not have pled guilty but instead would have opted  to fight the charges at trial.  Of course, had Mr. Hernandez  gone to trial and lost, he would have received a much stiffer penalty than the one he received following his guilty plea.  But to the court this trade off would have been a “rational” one for someone in Mr. Hernandez’s position whose main interest was avoiding deportation.

It will be interesting to see how the case unfolds now that Mr. Hernandez has been given the green-light to fully present his case to the trial judge.  I expect that this won’t be the last time we hear from the Eleventh Circuit on Mr. Hernandez’s plight, although I fear that the next time the Eleventh Circuit speaks on this matter, it will not be in Mr. Hernandez’s favor.

The decision in Hernandez v. United States, No. 13-10352 can be accessed here.

The Character of Man

Here is something from Mark Twain’s Autobiography which he wrote and dictated in bits and pieces over the course of many years, and completed in December 1909, four months shy of his death on April 21, 1910.  The piece is entitled The Character of Man, which was dictated by Twain on January 23, 1906.

The Character of Man

Concerning Man — he is too large a subject to be treated as a whole; so I will merely discuss a detail or two of him at this time.  I desire to contemplate him from this point of view — this premiss: that he was not made for any useful purpose, for the reason that he hasn’t served any; that he was most likely not even made intentionally; and that his working himself up out of the oyster bed to his present position was probably matter of surprise and regret to the Creator. **** For his history, in all climes, all ages and all circumstances, furnishes oceans and continents of proof that of all the creatures that were made he is the most detestable.  Of the entire brood, he is the only one — the solitary one — that possesses malice.  That is the basest of all instincts, passions, vices — the most hateful.  That one thing put him below the rats, the grubs, the trichinae.  He is the only creature that inflicts plain for sport, knowing it to be pain.  But if the cat knows she is inflicting pain when she plays with the frightened mouse, then we must make an exception here; we must grant that in one detail man is the moral peer of the cat.  All creatures kill — there seems to be no exception; but of the whole list, man is the only one that kills for fun; he is the only one that kills in malice, the only one that kills for revenge.  Also — in all the list he is the only creature that has a nasty mind.

Shall he be extolled for his noble qualities, for his gentleness, his sweetness, his amiability, his lovingness, his courage, his devotion, his patience, his fortitude, his prudence, the various charms and graces of his spirit?  The other animals share all these with him, yet are free from the blackness and rottennesses of his character.

****  There are certain sweet-smelling sugar-coated lies current in the world which all politic men have apparently tacitly conspired together to support and perpetuate.  One of these is, that there is such thing in the world as independence: independence of thought, independence of opinion, independence of action.  Another is, that the world loves to see independence — admires it, applauds it.  Another is, that there is such a thing in this world as toleration — in religion, in politics, and such matters; and with it trains that already mentioned auxiliary lie that toleration is admired, and applauded.  Out of these trunk-lies spring many branch ones: to wit, the lie that not all men are slaves; the lie that men are glad when other men succeed; glad when they prosper; glad to see them reach lofty heights; sorry to see them fall again.  And yet other branch-lies: to wit, that there is heroism in man; that he is not mainly made up of malice and treachery; that he is sometimes not a coward; that there is something about him that ought to be perpetuated — in heaven, or hell, or somewhere.  And these other branch-lies, to wit: that conscience, man’s moral medicine chest, is not only created by the Creator, but is put into man ready-charged with the right and only true and authentic correctives of conduct — and the duplicate chest, with the self-same correctness, unchanged, unmodified, distributed to all nations and all epochs.  And yet one other branch-lie, to wit, that I am I, and you are you; that we are units, individuals, and have natures of our own, instead of being that tail-end of a tape-worm eternity of ancestors extending in linked procession back — and back — and back — to our source in the monkeys, with this so-called individuality of ours a decayed and rancid mush of inherited instincts and teachings derived, atom by atom, stench by stench, from the entire line of that sorry column, and not so much new and original matter in it as you could balance on a needle point and examine under a microscope.  This makes well nigh fantastic the suggestion that there can be such a thing as a personal, original and responsible nature in a man, separable from that in him which is not original, and findable in such quantity as to enable the observer to say, This is a man, not a procession.

*****  Consider that first mentioned lie: that there is such a thing in the world as independence; that it exists in individuals, that it exists in bodies of men.  Surely if anything is proven, by whole oceans and continents of evidence, it is that the quality of independence was almost wholly left out of the human race.  The scattering exceptions to the rule only emphasize it, light it up, make it glare.  The whole population of New England meekly took their turns, for years, in standing up in the railway trains, without so much as a complaint above their breath, till at least these uncounted millions were able to produce exactly one single independent man, who stood to his rights and made the railroad give him a seat.  Statistics and the law of probabilities warrant the assumption that it will take New England forty years to breed his fellow.  There is a law, with a penalty attached, forbidding trains to occupy the Asylum street crossing more than five minutes at a time.  For years people and carriages used to wait there nightly as much as twenty minutes on a stretch while New England trains monopolized that crossing.  I used to hear men use vigorous language about that insolent wrong — but they waited, just the same.

We are discreet sheep; we wait to see how the drove is going; and then go with the drove.  We have two opinions: one private, which we are afraid to express; and another one — the one we use — which we force ourselves to wear to please Mrs. Grundy, until habit makes us comfortable in it, and the custom of defending it presently makes us love it, adore it, and forget how pitifully we came by it.  Look at it in politics.  Look at the candidates whom we loathe, one year, and are afraid to vote against the next; whom we cover with unimaginable filth, one year, and fall down on the public platform and worship, the next — and keep on doing it until the habitual shutting of our eyes to last year’s evidence brings us presently to a sincere and stupid loyalty — a snare invented by designing men for selfish purposes — and which turns voters into chattels, slaves, rabbits; and all the while, their masters, and they themselves are shouting rubbish about liberty, independence, freedom of opinion, freedom of speech, honestly unconscious of the fantastic contradiction; and forgetting or ignoring that their fathers and the churches shouted the same blasphemies a generation earlier when they were closing their doors against the hunted slave, beating his handful of humane defenders with Bible-texts and billies, and pocketing the insults and licking the shoes of his Southern master.

If we would learn what the human race really is, at bottom, we need only observe it in election times.  A Hartford clergyman met me in the street, and spoke of a new nominee — denounced the nomination, in strong, earnest words — words that were refreshing for their independence, their manliness.  He said, “I ought to be proud, perhaps, for this nominee is a relative of mine; on the contrary I am humiliated and disgusted; for I know him intimately — familiarly — and I know that he is an unscrupulous scoundrel, and always has been.”  You should have seen this clergyman preside at a political meeting forty days later; and urge, and plead, and gush — and you should have heard him paint the character of this same nominee.  You would have supposed he was describing the Cid, the Great-heart, and Sir Galahad, and Bayard the Spotless all rolled into one.  Was he sincere?  Yes — by that time; and therein lies the pathos of it all, the hopelessness of it all, when he perceives, by the general drift, that that is the popular thing to do.  Does he believe his lie yet?  Oh, probably not; he has no further use for it.  It was but a passing incident; he spared to it the moment that was its due, then hastened back to the serious business of his life.

And what a paltry poor lie is that one which teaches that independence of action and opinion is prized in men, admired, honored, rewarded.  When a man leaves a political party, he is treated as if the party owned him — as if he were its bond slave, as most party men plainly are — and had stolen himself, gone off with what was not his own.  And he is traduced, derided, despised, held up to public obloquy and loathing.  His character is remorselessly assassinated; no means, however vile, are spared to injure his property and his business.

The preacher who casts a vote for conscience’ sake, runs the risk of starving.  And is rightly served; for he has been teaching a falsity — that men respect and honor independence of thought and action.

Mr. Beecher may be charged with a crime, and his whole following will rise as one man, and stand by him to the bitter end; but who so poor to be his friend when he is charged with casting a vote for conscience’ sake?  Take the editor so charged — take — take anybody.

All the talk about tolerance, in anything or anywhere, is plainly a gentle lie.  It does not exist.  It is in no man’s heart; but it unconsciously and by moss-grown inherited habit, drivels and slobbers from all men’s lips.  Intolerance is everything for one’s self, and nothing for the other person.  The main-spring of man’s nature is just that — selfishness.

Let us skip the other lies, for brevity’s sake.  To consider them would prove nothing, except that man is what he is — loving toward his own, lovable, to his own, — his family, his friends — and otherwise the buzzing, busy, trivial enemy of his race — who tarries his little day, does his little dirt, commends himself to God, and then goes out into the darkness, to return no more, and send no messages back — selfish even in death.