The Eleventh Circuit Court of Appeals has issued some noteworthy decisions in the last few weeks concerning the rights of foreign nationals in both criminal and civil proceedings. One case, Gupta v. McGahey, No. 11-1420, concerned the right of an immigrant to sue immigration officers for civil rights violations; the Eleventh Circuit ultimately decided he had no such right. Another case, United States v. Garza-Mendez, No. 12-13643, involved an effort by an immigrant to reduce his sentence for a federal conviction of unlawful entry by obtaining a “clarification” order from a state court judge for a prior domestic violence conviction which had been used by federal prosecutors to enhance his sentence; the Eleventh Circuit turned aside this effort, as did the lower court, finding that the order was just a belated effort by the immigrant party to influence the outcome of his federal case. In the last case, Donawa v. U.S. Att’y General, No. 12-13526, a foreign national of Antigua tried to avoid deportation by arguing that two prior Florida convictions for drug-related offenses which immigration authorities had used to initiate deportations proceedings against him were not deportable offenses; the Eleventh Circuit agreed in part and sent the case back to the immigration judge for a second look.
In each of these three cases, Judge Martin ended up on the side of the immigrant. She was alone in that regard in two of the cases where she issued strong dissents and took her colleagues to task for what she believed was their “astonishing” and “cursory” legal reasoning. As someone who spent most of her legal career prosecuting individuals, one might find Judge Martin’s positions surprising. But one’s past experience is not always a reliable predictor of future action. In fact, the two sometimes have no discernible correlation; Obama is a good example of that.
It will be interesting to see how Judge Martin develops as a jurist and to what extent she is able to influence other members of the Eleventh Circuit, or instead alienates them. If the court’s recent decisions are any indication, Judge Wilson has signaled that he too may be prepared to speak out when his colleagues reach an unjust result.
The policies of officers stopping people for minor or nonexistent offenses has been well documented, most recently in the Floyd case out of New York, where a federal judge found the practice unconstitutional.
The 11th Circuit Court of Appeals recently denied a request for rehearing which would have raised a similar issue. The case is United States v. Kareen Rasul Green (No. 11-1558). Judge Barkett, joined by Judge Martin, dissented from the denial, and she did so in particularly strong terms. Interestingly, she discussed the relevance, or irrelevance as the case may be, of a “high-crime neighborhood” which is often a proxy for race, as a factor that is often used to justify a stop. According to Judge Barkett:
[T]he fact that the stop occurred in a high-crime area cannot, on its own, justify this frisk. The vast majority of people that live, work, or travel through high-crime neighborhoods do not participate in any criminal activities, much less activities that put officers and other community members at risk. This is, in part, why several of our sister circuits have warned of “the dangers of relying too easily or too heavily on these contextual factors.”
Judge Barkett does not stop there, however:
Focusing on the fact that a crime occurs in a purportedly high-crime area carries with it other significant risks. In addition to eroding the liberty of all individuals in these communities, the high-crime neighborhood designation “raised special concerns of racial, ethnic, and socioeconomic profiling.” The Terry [v. Ohio] decision itself recognized these dangers, requiring individualized suspicion in part “because according the police unfettered discretion to stop and frisk could lead to harassment of minority groups and ‘severely exacerbat[e] … police-community relations.” Moreover, because neighborhoods descried as “high-crime” are almost always poor communities of color, excessively-broad police discretion to frisk suspects in such neighborhoods facilitates the disproportionate targeting of poor people of color by law enforcement, contributing to unjustifiable levels of racial and socioeconomic disparities in the criminal justice system.
I have omitted citations and footnotes from these quotes; they are available in the actual order itself, which can be downloaded here.
I have written about the issue of Padilla retroactivity for some time and have in some respects made it the focus of this blog. Since the Supreme Court answered the question in Chaidez v. United States — that Padilla does not apply retroactively — it is no surprise that I have had less to say, or at least, report on the matter. Courts seem to have really given up on grappling with the issue in the wake of Chaidez even though the decision was a narrow one.
I should mention now that I have been engaged in my own efforts to convince a court to apply Padilla retroactively. This effort began in earnest in 2011 and ended only recently, in the last month or so. It was a pro bono effort on behalf of a federal habeas petitioner, which involved a number of very competent attorneys. I will not bore you with details of the litigation, like when the court sua sponte rejected our appeal following the Chiadez decision, or how disappointed we all were when it came time to throw in the towel — a decision we resisted until the very end. In today’s spectrum of “undesirables” it seems to me immigrants convicted of crimes fall somewhere between greedy bankers and unrepentant doping athletes.
This doesn’t mean Padilla retroactivity is dead in the water. Quite the contrary. As I have previously emphasized, the Court decided Chaidez on very narrow grounds and leaves room for an argument that Padilla should be applied retroactively to cases where an attorney has misadvised a client on immigration consequences, as opposed to ones where no advice was provided at all. The Chaidez court never addressed the former because it was not asked to do so. And Chaidez itself was a failure-to-advise case. Those seeking postconviction relief, either on their own or with the help of an attorney, should make this argument and they should do it early and often. Chaidez all but invites a future challenge to its scope and it would be irresponsible to turn that invitation away based on the flawed and lazy interpretations that courts have given Chaidez thus far. It took a little less than three years from its decision in Padilla for the Court to decide Chaidez. While it’s unlikely that the Court will revisit Chaidez in another three years — a relatively short time period to build the kind of groundswell that is required to successfully petition the Court — I think it likely that the Court will do so sooner or later.
- We have what might be our first guide on how to seek Padilla-based postconviction relief in the wake of Chaidez. This “advisory” was co-authored by the Immigrant Defense Project and the National Immigration Project and can be downloaded here. While the advisory is detailed and well-researched, it is still an advisory, and should not be a substitute for independent research and an individualized assessment of the case at issue.
- The Sentencing Law and Policy blog picked up on an interesting law review article entitled Deporting the Pardoned which discusses and criticizes the lack of deference given by immigration laws in the deportation context to individuals who have had their convictions pardoned. You can download the article here.
- The 11th Circuit today released its decision in the case of Chadrick Calvin Cole v. U.S. Attorney General, in which it held that a conviction under South Carolina’s Youthful Offender Act is a conviction for immigration/deportation purposes, even where the law gives the defendant the ability to expunge his conviction at some later date. You can download the decision here.
After the Supreme Court announced its decisions in the Frye and Lafler cases, the news media, if I recall correctly, promptly declared it the dawn of a new era — one that meant significant new protections for the criminal defendant. Some even went so far as to call the decisions in Frye and Lafler the “new Gideon”.
Not so says the Eleventh Circuit, at least when it comes to new rule, retroactivity. In In re: Michael Perez, No. 12-12240, the Eleventh Circuit rejected the notion that Frye and Lafler (ineffective assistance applies to plea bargaining) announced “new rules” within the meaning of Teague’s retroactivity framework, and held, instead, that the decisions were “merely an application of the Sixth Amendment’s right to counsel, as defined in Strickland, to a specific factual context.” The court’s rejection of “new rule” status for Frye and Lafler makes it harder for one to argue that these decisions revolutionized the practice of criminal defense. And, it adds weight to the argument that no such revolution took hold when the Supreme Court announced a similar, Strickland-based decision in Padilla v. Kentucky. Simply put, if Frye and Lafler did not announce a new rule under Teague, Padilla, surely, could not have done so.
It will be interesting to see if a similar Circuit-split develops with respect to the retroactive effect of Frye and Lafler, and how such rulings might affect the present controversy over Padilla retroactivity. Might the Supreme Court take note of the Eleventh Circuit’s ruling in Perez in deciding Chaidez? Perhaps. Especially if asked to by counsel.
The opinion in In re: Michael Perez can be downloaded here.
In a notable Padilla-related decision, the Eleventh Circuit today ruled that Padilla does not constitute a “watershed”rule of criminal procedure such that it does not cure an otherwise untimely section 2255 habeas petition. The case is Figuereo-Sanchez v. United States, No. 10-14235 (11th Cir. May 1, 2012). Judge Carnes wrote a unanimous decision for the three-judge panel (the other two judges being Beverly Martin and Adalberto Jordan).
It is important to note that in concluding that Padilla did not constitute a “watershed” rule of criminal procedure, the Eleventh Circuit assumed but expressly declined to decide that Padilla was a “new rule” for Teague retroactivity purposes. It was able to do so, in part, because both parties agreed that Padilla was a new rule under Teague. Accordingly, those who wish to argue before a court in the Eleventh Circuit that Padilla can be applied retroactively because it is NOT a new rule can still do so without worrying too much about contrary authority. Indeed, the Eleventh Circuit seemed to leave the door open for a Padilla old rule argument in footnote 4 of the opinion in which the court noted, “If the decision merely clarified an old rule, then the decision applies retroactively.” (citing Williams, 529 U.S. 362, 392 … (“[I]t can hardly be said that recognizing the right to effective assistance of counsel breaks new ground or imposes a new obligation on the states.”) (quotation marks omitted).
The end result is an unfortunate one for the petitioner, however, since he prevailed in the first half of his appeal — the Court of Appeals found the trial court erred when it failed to give the petitioner so-called “Castro” warnings before it recharacterized his pleadings as a 2255 petition — but lost on timeliness grounds.
The opinion can be downloaded here.