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.

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.

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.

The opinion is available here.

The court first recounted the historical origins of both these procedural vehicles and then went on to find them inappropriate vehicles for achieving the postconviction relief at issue.  The court, instead, pointed to the writ of habeas corpus, as the avenue for asserting a Padilla-like ineffective assistance claim.

The net effect of the court’s ruling here is to limit the ways an attorney in Virginia, and, potentially other states, can successfully and creatively seek postconviction relief for a client whose old criminal background has come back to haunt him in the immigration context.  For these individuals, saying that they should look to a habeas petition for appropriate relief, is like saying they have no relief at all, since many of their convictions would have been entered long before Padilla hit the books and therefore too old to support a timely habeas petition.

In fact, this ruling brings to mind another Latin phrase, the selection of which I owe to the all-encompassing Wikipedia site:  abusus non tollit usum.  Roughly translated as: “misuse does not remove use.”  Put another way: Just because something is misused doesn’t mean it can’t be used correctly.

The Commonwealth argues that the unique nature of deportation limits the Padilla decision to only misadvice concerning the risk of deportation. However, the Court in Padilla repeatedly cited with approval to its decision in Hill, a case dealing with the Strickland standards in the context of misadvice regarding parole eligibility. Moreover, the factors relied upon in the deportation context apply with equal vigor to the circumstances of gross misadvice about parole eligibility. Parole eligibility involves a foreseeable, material consequence of the guilty plea that is “intimately related to the criminal process” and is an “automatic result” following certain criminal convictions. Id. at —-, 130 S.Ct. at 1478, 1486. The varying degrees of eligibility enumerated by the General Assembly in KRS 439.3401 are “succinct, clear and explicit.” KRS 439.3401 provides that “any person who has been convicted of or pled guilty to the commission of ․ [a] Class A felony”․ is considered a “violent offender” for the purposes of the parole statute. KRS 439.3401. The statute further states that, “[a] violent offender who has been convicted of ․ a Class A felony with a sentence of a term of years ․ shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.” KRS 439.3401(3). Even though Pridham’s Class A felony conviction (Manufacturing methamphetamine, 2nd offense) would not be regarded by most as a violent offense, all Class A felonies are treated equally for the purposes of parole eligibility. The parole classification system is automatic upon conviction or guilty plea and permanently affects a defendant’s minimum term of imprisonment.

While not particularly groundbreaking in terms of strengthening the rights of the accused – after all, this is a gross misadvice case – the decision is significant in that its reasoning is based almost entirely on Padilla and its more general, non-deportation related proposition that the Sixth Amendment right to the effective assistance of counsel is not limited to the confines of a courtroom, thus giving new meaning to the attorney as counselor and advisor.

Photo courtesy of the Brennan Center for Justice

I recently finished reading the biography of Justice William Brennan, considered one of the most influential jurists in United States Supreme Court history.   Brennan is perhaps best known as the liberal bulwark of the Court in a tenure that spanned the reign of three Chief Justices, Warren, Burger, and Rehnquist.

It is no surprise that Brennan’s liberal leanings, exhibited most prominently in his rulings from the Court, made Brennan a much-reviled figure among conservatives, who disliked him as much for his views as for his success in turning those views into law.  These critics complained that Brennan acted beyond his authority as a judge whose role it is to simply apply the law, not make it.  Instead, the criticism goes, Brennan would act as kind of a super-legislature, grafting his personal views of morality and human dignity into his judicial opinions.

Whether these accusations have any basis in fact is perhaps open to dispute.  To be sure, Brennan cannot be considered a judge whose ultimate fidelity lies in the words of a statute instead of in his convictions of right and wrong.  With a properly framed question, Brennan, I am sure, would have admitted as much if he were still alive.  Indeed, a popular story of Brennan’s tenure as Supreme Court justice is that he would invariably ask his clerks who have just come on board for a new term what the most important rule is when it comes to judging on the Supreme Court.  After fielding incorrect answers like “due process” or “equal protection” he would raise up five fingers and say that the most important rule in the Court is to attain votes from five justices in a case, which constitutes a majority on the Court.  Activist? Perhaps.  Result-driven?  Maybe so.

But focusing on such mechanisms of judicial rulemaking do nothing to advance the debate of what we consider to be a model society that is governed by the rule of law rather than one that is run by the whim of the individual.  As Brennan’s “rule of five” vignette demonstrates, judging necessarily involves the employment of policy preferences; after all, if judging was as simple and straightforward as applying the law to the facts, as is the myth most prominently trumpeted perhaps by Chief Justice Roberts (his judge as umpire calling balls and strikes analogy comes to mind), why aren’t all cases before the Court decided on a unanimous basis? And this is true whether the judge is considering the case of a derelict landlord who fails to fix a tenant’s leaky faucet or one involving more weighty constitutional issues like whether the government can prohibit flag-burning consistent with the First Amendment (it cannot).  There are exceptions to this phenomenon, of course, but the simple truth is that judges are most of the time lawmakers, only in different garb.

I would argue that the sooner we recognize and accept this, the sooner we can move on to more substantive discussions as to which judge-made laws, and the principles which underlie them, are more consistent with what we view as a just and equal society.  Fortunately, Brennan got past this a long time ago and, as a consequence, achieved unparalleled success in changing the direction of this country through his rulings, one that sought to recognize and protect the dignity of the individual above all else.

A decision of the Supreme Court should not be applied retroactively if it creates a “new rule” which “`breaks new ground or imposes a new obligation on the States or the Federal Government . . . . To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.’” Miller v. Lochhart, 65 F.3d 676, 685 (8th Cir. 1995) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). In 2006, when Perez pled guilty to his single-count indictment, failure to inform a defendant of the prospect of deportation did not necessarily constitute an error of counsel in the Eighth Circuit. See Gumangan v. United States, 254 F.3d 701, 706 (8th Cir. 2001). Thus, this Court is convinced that Padilla created a “new rule” that should not apply retroactively because such rule was not dictated in prior Eighth Circuit precedent. Moreover, with the holding in Gumangan, at the time of Perez’s plea, it was not clear that it was a “prevailing professional norm” in the Eighth Circuit to inform a defendant of immigration consequences when pleading guilty. Wiggins, 539 U.S. at 521 (internal quotation marks omitted). Thus, if this Court were to apply Padilla retroactively, it is unclear how it would do so in light of Gumangan.

Even without having  researched it, I would take issue with the analysis of the Perez court.  It matters not what the  prevailing norms were in the Eighth Circuit at the time of the conduct at issue in Perez.  In issuing the Padilla decision, the Supreme Court had already put this issue to bed, concluding that the prevailing professional norms nationally, i.e., among all circuits, required a criminal defense attorney to advise as to immigration consequences.  I would also argue that whether the prevailing professional norms in the Eighth Circuit required advice as to immigration consequences is an issue separate and apart from the issue of whether Padilla was dictated by existing precedent.  The undeniable fact is that Padilla was decided squarely on the basis of Strickland v. Washington, certainly a case that was on the books at the time Padilla was decided.