In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

The actual statement from the Court setting forth the above question can be downloaded here.  SCOTUS blog has this to say about today’s grant of cert. in Chaidez.

Aside from Chaidez, it will be interesting to see how many cert. petitions now pending before the Court will be “held” by the Court for “GVR” (grant, vacate and remand) treatment in light of its decision in Chaidez — assuming, of course, the Court does grant cert. on Friday.  It will also be interesting to see if Justice Kagan will have to recuse herself because, perhaps, she might have represented the Government back when the Padilla case was before the Court  (the Government filed an amicus brief in Padilla urging the Court to affirm the Supreme Court of Kentucky; yet another example of the current administration’s cramped and antagonistic view of immigrants’ rights ).  Should Justice Kagan have to recuse herself, there is a very real possibility that the Court may deadlock on the retroactivity issue, in which case the Seventh Circuit’s decision would be affirmed.  Not a good scenario for immigrants or their counsel.  The unlikely savior in such a situation may be the Chief Justice, however.  I say this only because the Chief Justice has indicated recently a discomfort with the Court’s rightward trajectory, not to mention the fact that he joined the majority in Vartelas, the Court’s recent decision which, in effect, limited the applicability of the draconian anti-immigrant legislation that is the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009-546.

For those who are interested in reading the cert. materials in Chaidez, they are available here via the SCOTUS blog website.

Since we’re on the subject of the Supreme Court, mention should be made of its two decisions issued this past week, Frye and Lafler, concerning the constitutional duty of a lawyer when representing a client during plea bargain proceedings.  I cannot comment substantively on the decision since I have yet to read them.  However, it has been interesting to see how the decisions have been covered by the media, with some proclaiming them the biggest development since Gideon in terms of enhancing the constitutional rights of criminal defendants.  Not to mention the equally superlative observations, made by the justices themselves, among others, that Lafler and Frye will create a flood of litigation in the courts in which prisoners and ex-offenders will seek to undo a plea on the allegation that the attorney mucked up the plea bargaining process.  I do not believe that the predictions inherent in either of these claims will become reality as litigants and, in turn, the courts, make their way through this latest thicket of constitutional jurisprudence.  For one, it is the rare case that sharply split decisions, as Frye and Lafler certainly were, are interpreted by the lower courts as creating the kind of monumental shift or constitutional mandate that come with decisions involving greater judicial unanimity.  Not that a 5-4 decision can never establish a bedrock principle of constitutional law.  Look at Miranda v. Arizona for example, a sharply split decision that has gone on to become an almost indelible component of modern criminal procedure, despite many, with some nearly successful (i.e., Dickerson), challenges to its viability.  My fear, however, is that, in light of the love fest surrounding Frye and Lafler, the pushback against those cases by those who disagree with their core holdings may result not only in their demise as good law but also roll back what few constitutional rights criminal defendants had before Frye and Lafler became law.  I hope that will not be the case, but I am wary.  One thing courts fear more than criminals not serving enough time behind bars for their misdeeds is the prospect of having to entertain requests for postconviction relief by those criminals, a very likely scenario if one is believe the detractors and even the supporters of the Frye and Lafler decisions.

The Seventh Circuit is still considering whether to rehear its Padilla retroactivity case (Chaidez) and has asked for a response from the Government on the appellant’s request for rehearing.

This ruling should come as no surprise, however.  The Virginia Supreme Court in Morris never really addressed the Padilla retroactivity question head on, if at all, and the issue is still percolating throughout the federal and state courts.

As to the latter, a helpful reader has informed me that the Eleventh Circuit Court of Appeals will soon rule on the Padilla retroactivity issue.  The case is United States v. Marisella Carmen-Iglesias (Case No. 11-12316) from the Southern District of Florida.  I will post the briefs and provide updates as they become available.

UPDATE: the “helpful reader” who alerted me to the Carmen-Iglesias case in the Eleventh Circuit was nice enough to send me the appellate briefs.  The Government’s brief can be found here, the appellant’s/defendant’s here.

Over in sovereign state territory, the two cases dealing with Padilla retroactivity that are pending before the New Jersey Supreme Court (State v. Frensel Gaitan) and the Florida Supreme Court (State v. Gabriel Hernandez) are just that, still pending.  I will post updates as they become available.

Thanks to the SCOTUS blog, we have learned that Morris has appealed this decision to the U.S. Supreme Court.  The questions presented are as follows:

(1) Whether Padilla v. Kentucky applies retroactively to ineffective assistance of counsel claims raised on collateral review; and

(2) whether Virginia provides adequate postconviction remedies when petitioner and others similarly situated are precluded from vindicating violations of the right to effective assistance of counsel under Padilla.

Morris (the petitioner) is being represented by the law firm, Duane Morris.  The petition can be accessed here.  I will post Virginia’s response as it becomes available.

(1) The facts in Orocio were almost identical to those in Padilla (longtime lawful permanent resident; relatively minor drug charge) which apparently helped in persuading the Third Circuit to rule in Orocio’s favor.

(2) The postconviction vehicle of choice was a petition for a writ of error coram nobis; here, the defendant would have been out of time were he to file a 2255 habeas petition.  The court didn’t address any procedural issues related to this since the lower court had not done so.

(3) In deciding that Padilla announced an “old rule” and could therefore be applied retroactively, the Third Court looked simply to Strickland’s threshold standard of reasonableness, which, the Supreme Court has ruled, applies in the plea context.  According to the Third Circuit then “[f]ar from extending the Strickland rule into uncharted, Padilla reaffirmed defense counsel’s obligations to the criminal defendant during the plea process, a critical stage in the proceedings.”  And just because the Strickland standard is successfully applied to a new factual circumstance does not necessarily mean that it creates a “new rule” for retroactivity purposes — this is especially the case when the claim involves a “rule of general applicability” which was the product of the Strickland case.

(4) The Third Circuit overruled prior precent in finding that the petitioner made out a prima facie case for Strickland prejudice.  Thus, defendant’s no longer have to show so-called factual innocence; instead,  a defendant need only show that it would have been rational for him to reject the plea and proceed to trial, which appears to be a less onerous standard.  Under the reasoning of the Orocio court, in cases where deportation is a potential consequence of one’s plea-based conviction, it is almost always rational for a defendant to reject a plea and proceed to trial.  But that’s just my reading of the decision.

I post here the Third Circuit’s official opinion in Orocio.  The Government’s brief is here, the Appellant’s, here.  The Appellant’s reply brief is here.

In ruling that Padilla announced an “old rule” the Orocio court focused on Strickland’s bedrock standard of “reasonableness” under the circumstances.  It matters not then that Strickland would eventually be applied to potentially novel factual circumstances.  What matters is that the reviewing court looked to the reasonableness standard in determining whether there was a viable ineffective assistance of counsel claim.  This is precisely what the Supreme Court did in Padilla.

The decision can be downloaded here.

The once prevailing wind of hostility by federal judges toward Padilla retroactivity claims has now begun to blow the other way.  Two federal district courts recently held that Padilla did not announce a “new rule” for retroactivity purposes, i.e., Padilla could be applied retroactively, and granted, yes granted, the petitioners in those cases postconviction relief.

The cases are United States v. Krboyan, decided in the Eastern District of California, and Amer v. United States, a Northern District of Mississippi matter.  It is notable that each case involved different procedural vehicles for seeking postconviction relief; in Krboyan, it was a petition for writ of error coram nobis, in Amer, a section 2255 habeas petition [although the court, in a move of great significance, sua sponte converted this into a petition for writ of error coram nobis thereby obviating the need for the petitioner to argue that his otherwise untimely 2255 petition fell within section 2255(f)(3)'s "new rule" exception, otherwise know as the death knell for Padilla retroactivity.  Also notable is the fact that the holdings originated in two pretty different circuits, in terms of the general ideological sweep of decisions which affect criminal procedure and immigration: Ninth Circuit versus Fifth Circuit.

The Krboyan case can be downloaded here, Amer, here.

In other Padilla retroactivity news, the Supreme Court of New Jersey recently accepted a case with potentially profound impact on Padilla retroactivity law.  The case is State v. Frensel Gaitan, which was previously covered in this blog here.  The question to be answered, according to the New Jersey Supreme Court website, is as follows:

Do the decisions in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and State v. Nunez-Valdez, 200 N.J. 129 (2009) apply to this non-citizen defendant’s argument, raised for the first time in his post-conviction relief petition, that his attorney failed to discuss with him the deportation consequences of his guilty plea?

If anyone has access to the briefs in the Gaitan case [as they become available] and would be willing to share them with other readers, please let me know.