The issue of Padilla retroactivity is not dead yet, well not entirely. The Court of Appeals of Maryland, the State’s highest court, recently decided the case of Lincoln Miller v. State, No. 94, Sept. Term 2012. In a 4-3 decision, the Court denied postconviction relief for a native of Belize based on a claim that he was not advised of the immigration consequences of his conviction.
The case has a long and convoluted procedural history which stems from the fact that it has been pending for a long time, before the Supreme Court even decided Padilla. It is not at all clear what the majority decides in this case aside from ruling that the petitioner is not entitled to relief. There’s discussion about Padilla retroactivity in light of Maryland and federal law (in a previous decision, the Maryland Court of Appeals held Padilla could be applied retroactively under the state’s retroactivity framework) but the majority opinions doesn’t make any inroads on the issue. The dissent, in contrast, argues that Padilla should be applied retroactively under Maryland law.
The following concurrence by Judge McDonald is perhaps the best take on both the majority and dissent opinions:
I will explain why I join neither of the thoughtful opinions in this case, although it may simply reveal my own ignorance in this arena. I agree with the result reached by the Majority opinion, but do not follow its reasoning — it says it is not applying the Teague standard for retroactivity, but is compelled to follow the result in Chaidez,which was based on the Teague standard. The Dissent points that out and states quite clearly that it believes a different standard set forth in this Court’s Daughtrycase should be applied. But I do not grasp the distinction that the Dissent makes between the Daughtry standard and the Teague standard in reference to this case, particularly in that the Dissent relies on Justice Sotomayor’s dissent in Chaidez — a dissent that applied the Teague standard.
In the end, I find Justice Kagan’s analysis for the Chaidez majority persuasive and would apply it here, whether one views it an application of the Teague standard or another standard that operates similarly. That brings me to the same place as the Majority.
The full decision 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.
It has been almost four months since the Supreme Court decided Chaidez, and the courts have been mostly silent on how this decision applies to both pre- and post-Chaidez cases. Granted, a number of courts have interpreted Chaidez expansively to foreclose any claim that seeks the retroactive benefit of Padilla. But this surely is not the right result given Chaidez’s intentionally narrow holding, and there is at least one case that will be testing the correctness of this assertion. Commonwealth v. Sylvain, No. SJC-11400 (Sup. Jud. Ct. of Mass.). In any event, I have yet to see a flood of dismissals based on the one-size-fits-all theory of Chaidez; yet further proof that Padilla itself did not open the floodgates to claims of ineffective assistance, as Justice Stevens astutely observed would not be the case. I wish I had more to report but I don’t. If anyone wishes to share any Padilla/Chaidez-related news, please do.
- 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.
The core of the majority’s decision in Chaidez rests on the notion that before Padilla no court would have granted postconviction relief to a foreign national defendant under Strickland based on an attorney’s failure to give deportation advice because deportation was considered a collateral, not a direct, consequence of a conviction. It is this dispositive aspect of the collateral v. direct distinction and, to the majority, Padilla’s “rejection” of it, that makes Padilla a particularly novel decision and one ill-suited for retroactive application. The problem, it seems to me, with the majority’s analysis is that it overstates the importance or effect of the collateral v. direct divide, and it is also a demonstration that judges who have little or no on-the-ground experience, as is the case with Kagan, make bad law. (There is a reason Kagan was assigned to write the opinion which I will get to a bit later.) To take just one example: if what the majority stated was true, and courts really made mince meat out of Padilla-like ineffective assistance claims pre-Padilla based on the collateral-direct divide, then few if any of the cases which presented these claims before Padilla should have made it past the pleading stage, let alone being decided on their merits in published decision after published decision. I do not think that is how courts treated Padilla-like claims in the pre-Padilla era, however. Instead, courts still decided Strickland claims pertaining to deportation advice on their merits even if they ended up denying them based on the collateral v. direct distinction. In other words, there was no question that Strickland defined the standard of competent representation received by foreign nations in criminal cases pre-Padilla, the debate rather was over how that standard should be defined in such cases. To take yet another example: let’s say an individual is irked by his attorney’s performance in an immigration matter which ended up in his removal and in a misguided effort to prevent his removal brings a claim in federal district court alleging ineffective assistance under Strickland. There would be no question as to the applicability of Strickland or the fate of his claim; it would fail and fail big because Strickland applies only to criminal, not civil, cases. But Strickland squarely governs in cases like Padilla and Chaidez because they are, at their collective core, criminal matters. I think this is, in part, what led the Padilla court to describe as “ill-suited” to the Strickland analysis the dichotomy between collateral v. direct consequences of a conviction — a point that Sotomayor seized on in her dissent where she took the majority to task for its over-reliance on and over-emphasis of this distinction.
As to my hypothesis as to why Kagan ended up writing the Chaidez opinion, I think that the debate between say, Roberts and Alito, on the one hand, and Breyer and Kennedy, on the other, centered not on whether Padilla could be applied retroactively — the majority’s opinion makes clear that there was never much doubt there — but on how Padilla and now Chaidez might be used to expand the scope of Strickland to encompass advice on other so-called collateral matters, an outcome which presumably Roberts and Alito, to say nothing of Scalia and Thomas, would have disfavored. At the same time, the more liberal members of the bench, did not want Chaidez written in a way that would have narrowed or weakened the mandate in Padilla (I wonder if Stevens’ presence at the Court — he apparently still maintains an office there — and generally as an observer of the Court, might have had some influence as well). So the task of authorship was given to Kagan who was willing to say no to retroacivity but do so in a way that was respectful of the Padilla decision.
Some of you might have already heard that the Supreme Court issued its opinion in Chaidez v. United States today. The news is not good, especially for those who had hoped the Court would confer to all foreign nationals the benefit of Padilla. Justice Kagan wrote the majority opinion which was joined in full by the other Justices with the exception of Thomas who concurred in the judgment only and Sotomayor and Ginsburg both of whom dissented. I will provide some analysis on the decision in a separate post. The opinion can be downloaded here.
The Supreme Court of Pennsylvania recently issued an interesting opinion that may be the opening salvo in another round of Padilla-related litigation, this one on the scope of the Court’s ruling in Padilla. The case is Commonwealth v. Abraham, decided on December 7, 2012. The defendant in Abraham, a public school teacher, sought postconviction relief because he claimed his counsel was ineffective for failing to advise him he would forfeit his public employee pension if he pleaded guilty to an offense involving an inappropriate with a former student. The defendant argued that the near automatic pension forfeiture in his case was no different from the deportation consequences at issue in Padilla, and that he should have received counsel on this issue before he decided to enter his plea. The threshold question before the court in Abraham, however, and one that I think will be litigated in more and more postconviction relief cases, concerned the viability of the distinction between direct and collateral consequences in the ineffective assistance of counsel context post-Padilla.
This is how the Pennsylvania Supreme Court answered the question:
Not getting money as a consequence of breaching an employment contract cannot be equated with being forced to leave the country. Based on PEPFA’s aim, procedure, and consequences, we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis. Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation. Frometa’s general holding remains: a defendant’s lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea, and counsel is therefore not constitutionally ineffective for failure to advise a defendant of the collateral consequences of a guilty plea. Frometa, at 93.
The Abraham court then went on to conclude that the consequence at issue in the case fell under the category of collateral consequences for which the Constitution did not require legal counsel. In a notable concurrence, Chief Justice Castille wrote separately to observe that the defendant in the case would not have been entitled to retroactive application of Padilla in any event. One justice dissented, arguing that Padilla did, indeed, do away with the distinction between collateral and direct consequences, and that the defendant did, in fact, receive ineffective assistance based on his attorney’s failure to advise him on the possibility that his pension would be forfeiting in light of his conviction.
The decision in Commonwealth v. Abraham can be downloaded here.
As we await the U.S. Supreme Court’s decision in Chaidez, we learn that the highest court in Florida has come out against retroactive application of Padilla. The case, which I have written about here and here, is Gabriel Hernandez v. State, SC11-941. Before reaching the question of Padilla retroactivity, however, the Hernandez court decided an issue that, if I correctly recall, appeared in one form or another in the Fourth Circuit’s recent decision in United States v. Akinsade (see my prior blog post); namely, whether a court’s admonishment at a plea proceeding regarding immigration consequences precludes a defendant from bringing a claim for ineffective assistance vis a vis Padilla. The Florida Supreme Court answered that question in the negative.
It is unlikely that Hernandez will be persuasive precedent in cases that originate outside of Florida. The court analyzed the Padilla retroactivity issue solely under Florida state law. And in marked contrast to the Chaidez case, the parties seemed to concede that Padilla represented a “new rule”, which meant that advocates of retroactive application had the tough task of convincing the court that Padilla represented, in the words of the Hernandez court, “a development of fundamental significance” — a standard that, at least in the federal realm, no decision has been able satisfy save for, perhaps, the decision in Gideon v. Wainwright.
The opinion in Hernandez can be downloaded here.
The transcript of the oral arguments in Chaidez, which took place yesterday, can be accessed here. The initial take on the arguments is that less than a majority of the Justices seemed to think that Padilla could be applied retroactively. Moreover, it didn’t seem like this was a case where the outcome would rest on a swing vote; but if there were one, I would say it would be probably be Justice Kennedy.
The arguments were covered by the New York Times and Reuters. The Times also has an editorial today in which it urged the Court to apply Padilla retroactively to Ms. Chaidez’s case and vacate her conviction.
Because of Hurricane Sandy, the oral arguments in the Chaidez case, which presents the question of whether Padilla can be applied retroactively, is scheduled to take place tomorrow, having been moved from Tuesday, the day on which they were originally set to take place.
I will post the transcript of the argument and my thoughts on it once I have had a chance to digest the proceedings.