Category Archives: U.S. Supreme Court

New Paper on Padilla Retroactivity

Posted on November 9, 2010 | Leave a comment

Courtesy of Doug Berman over at Sentencing Law and Policy: Gray Proctor and criminal procedure guru, Nancy King, have jointly authored an article entitled Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts.  The article can be accessed here.

From the preamble:

This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment. Issues addressed include: express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; and other collateral relief. This draft includes citations to emerging case authority available as of October 28, 2010.

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Posted in Criminal Law, Immigration Law, Postconviction Matters, U.S. Supreme Court

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More Padilla Retroactivity

Posted on October 8, 2010 | Leave a comment

I have been researching Padilla-related caselaw for an upcoming CLE presentation and came across another decision in which Padilla is found to have no retroactivity bar.  The case is Martin v. United States, Case No. 09-1387 (C.D. Ill. Aug. 25, 2010) and the judge in Michael Mihm.  The decision can be accessed here via Google Scholar.

From Martin:

[A]t the time Martin plead guilty and was sentenced, Santos and George remained binding upon the issue of whether counsel’s alleged failure to inform a defendant of the possible immigration consequences of a guilty plea amounted to ineffective assistance of counsel. The Government contends that Padilla v. Kentucky announced a new rule of criminal procedure that does not apply retroactively to cases on collateral review. See Teague v. Lane, 489 U.S. 288, 309-10 (1989) (stating that “[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality . . .” and holding that “[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to cases on collateral review which have become final before the new rules are announced”).

A “new rule” under Teague is one that “breaks new ground or imposes a new obligation on the States or the Federal Government.” Teague, 489 U.S. at 301; see also Butler v. McKellar, 494 U.S. 407, 412 (1990). In Padilla v. Kentucky, the Supreme Court considered the first prong of Strickland and discussed how prevailing professional norms suggest that counsel advise their clients of the possible deportation risks following a guilty plea. 130 S.Ct. at 1482. The Supreme Court also rejected the position that its holding should be limited to affirmative misadvice of counsel, noting that it is the “critical obligation of counsel to advise the client of `the advantages and disadvantages of a plea agreement.’” Id. at 1484 (citing Libretti v. United States, 516 U.S. 29, 50-51 (1995)). The Padilla case likely did not break new ground or impose new obligations given the Supreme Court’s emphasis on Strickland, prevailing professional norms, and the “long recognized” importance of the plea negotiation phase. Id. at 1482-86; see also Osagiede v. United States, 543 F.3d 399, 408 n. 4 (7th Cir. 2008) (explaining that Teague presented no problem in a case where the defendant argued ineffective assistance of counsel for a Vienna Convention Article 36 violation because “counsel’s duty to know the applicable law, at least when it matters to his client’s defense, has been clearly established by Strickland and its progeny”). Padilla v. Kentucky therefore applies to Martin’s claim of ineffective assistance of counsel for his counsel’s alleged failure to fully inform him of the possible immigration consequences of his guilty plea.

As you can see, for whatever reason, the Martin court’s retroactivity analysis is rather limited.  Nevertheless, it makes clear that Padilla did not create a new rule and therefore is applicable to final convictions which predated the date of the Padilla decision.

Now can someone explain to me how to square this holding with the one in Shafeek?!  See my prior blog post for more details.

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Posted in Criminal Law, Immigration Law, Postconviction Matters, U.S. Supreme Court

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Padilla Retroactivity Confusion

Posted on September 30, 2010 | 4 Comments

From the Eastern District of Michigan comes a decision by Judge Denise Hood finding that Padilla cannot be applied retroactively.  The case is United States v. Shafeek, Criminal Case No. 05-81129, Civil Case No. No. 10-12670 (E.D. Mich. Sept. 22, 2010).  Opinion courtesy of Google Scholar here.

The wrinkle, however, is that she reaches this conclusion despite having concluded in the same decision that the Supreme Court’s decision in Padilla did NOT announce a “new rule” for retroactivity purposes.  From the Shafeek decision:

Given the Supreme Court’s opinion in Padilla, it appears that the rule announced is not a “new rule” regarding a defense counsel’s duty to, at the minium, advise a client of a risk of adverse immigration consequences. The Padilla decision turned on the fact that the defense counsel could have easily determined from reading the removal statute that defendant’s deportation “was presumptively mandatory” and that his counsel’s advice to the contrary was incorrect. Id. Because the Padilla opinion may not be considered a “new rule,” Shafeek cannot show that the Padilla opinion should be applied retroactively.

Huh?  It has been my understanding that under the Supreme Court’s seminal decision in Teague v. Lane on retroactivity in cases pending on collateral review, only “new rules” are barred from retroactive application unless they fall within one of two exceptions.  The upshot, of course, is that rules that are not considered “new” under the Teague analysis should be applied retroactively.  Such was the conclusion by the court in Chaidez which concluded, correctly in my opinion, that because Padilla was not a “new rule” it could be applied retroactively.  See United States v. Chaidez (“Accordingly, the court holds that Padilla did not announce a new rule for Teague purposes and affirms its earlier opinion that no retroactivity problem is raised by petitioner’s claim”).

Am I missing something here?

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Posted in Criminal Law, Immigration Law, Postconviction Matters, U.S. Supreme Court

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Is Padilla Simply a New Name for an Old Rule?

Posted on July 19, 2010 | 3 Comments

A recent case from the Northern District of Illinois passed on but did not decide the Padilla retroactivity question.  In a sort of unusual procedural backdrop, the petitioner in United States v. Chaidez (N.D. Ill. Jul. 8, 2010) filed a federal writ of error coram nobis challenging the validity of  her guilty plea arguing that she received ineffective assistance of counsel under Padilla prior to having pleaded guilty.  The court acknowledged that the petitioner might be entitled to relief if she could make the requisite ineffective assistance showing under Padilla but declined to make a definitive ruling until the petitioner has submitted a supplemental affidavit addressing a number of concerns from the court.  In the course of its decision, the Chaidez court addressed the Government’s contention that Padilla did not apply retroactively because it announced a new constitutional rule.  Here is what the court had to say about the Government’s contention:

The government argues that the court cannot apply the rule in Padilla in this case because Padilla announced a new constitutional rule which is not available for retroactive use in Chaidez’s collateral attack on her conviction. (See Govt.’s Supp. Resp., citing Teague v. Lane,489 U.S. 288 (1989).) But Chaidez does not seek retroactive application of Padilla—in fact, her petition was filed before the Supreme Court’s ruling. If Chaidez only recently learned of the deportation consequences of her plea, then she could not have been expected to raise this issue on direct appeal or in an earlier habeas case. Chaidez merely asks the court to apply the well-established rule in Strickland to find that her attorney provided ineffective assistance. The petitioner in Padilla sought the same relief. 130 S. Ct. at 1486. See also Santos-Sanchez,2010 WL 2465080 (granting coram nobis relief following the decision in Padilla). And, as the Supreme Court stated, “For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea.” Padilla, 130 S. Ct. at 1485. Thus, if Chaidez can make the required showing under Strickland and under the standards for coram nobis relief, she will be able to challenge her attorney’s ineffective assistance at the time of her guilty plea.

While the court made clear that it was not deciding the question of retroactivity, its ruling, in my opinion, comes dangerously close to saying that Padilla does NOT create a new constitutional rule.  In essence, the court seems to say that Padilla simply added new teeth to the well-trodden world of potentially viable ineffective assistance of counsel claims.

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Posted in Criminal Law, Immigration Law, U.S. Supreme Court

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Padilla Strikes Again

Posted on July 13, 2010 | Leave a comment

A recent decision by the Georgia Court of Appeals concludes that Padilla’s ineffective assistance of counsel analysis applies to an attorney’s failure to advise a client about sex offender registry requirements.  The case is Taylor v. State, 2010 WL 2684051 (Jul. 8, 2010) and can be downloaded here.  In essence, the Taylor court held that even if sex offender registration requirements could be considered a “collateral consequence” of a conviction, “the failure to advise a client that his guilty plea will require registration is constitutionally deficient performance,” much like an attorney’s failure to advise a client about the risk of deportation associated with a guilty plea under Padilla.  Id. at 4.

Because the appeal was pending while the U.S. Supreme Court decided Padilla, there is no discussion about retroactivity.  (Sorry!)

It’s unclear at this point whether the State will seek discretionary review from  the Georgia Supreme Court.  And any developments on that front will be reported on the blog.

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Posted in Criminal Law, Georgia News, U.S. Supreme Court

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Padilla Going Retro?

Posted on July 6, 2010 | 1 Comment

The National Immigration Project of the National Lawyer’s Guild has recently issued a Practice Advisory on the retroactive applicability of Padilla v. Kentucky.  It concludes that Padilla should be applied retroactively by the lower courts because it does NOT create a new rule of criminal constitutional law.  The practice advisory can be downloaded here.

Also, a recent decision from Judge Seybert in the Eastern District of New York touches upon but does not decide the issue of retroactive applicability of Padilla — she assumes for the sake of argument that it does apply retroactively and then goes on to reject his Padilla claim on the merits.  The case is United States v. Obonaga (E.D.N.Y. June 24, 2010) and can be accessed via Google Scholar here.

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Posted in Criminal Law, Immigration Law, U.S. Supreme Court

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Justice Stevens’ Last Hurrah (Maybe)

Posted on April 8, 2010 | 7 Comments

Last week the U.S. Supreme Court  handed down a significant decision in Padilla v. Kentucky written by Justice Stevens, which held that  criminal defense attorneys must now advise their clients of the immigration consequences of a criminal conviction.  Prior to this ruling, most state and federal courts scoffed at such a requirement, chastising counsel only when he or she misadvised a client about whether the risk of deportation posed by a conviction.  One upshot of those decisions was the encouragement of counsel, particularly the uncaring and lackadaisical ones, to remain silent when it came to the point of a case where the worlds of criminal procedure and immigration law intersected.  After Padilla, that will no longer be the case.  And, it is, of course, too early to tell whether the post-Padilla regime will result in better representation for clients.

What I am puzzled about is whether the rule announced in Padilla will have any retroactive effect as to convictions that became final after the Court decided Padilla, particularly in postconviction/collateral proceedings.  An initial review of Justice O’Connor’s seminal decision in Teague v. Lane brings me to the conclusion that Padilla could NOT be applied retroactively even with reference to Justice Harlan’s “ordered liberty” exception, i.e., that the rule announced in Padilla would be “the kind of absolute prerequisite to[a trial's] fundamental fairness that is “implicit in the concept of ordered liberty.” “

For those postconviction/criminal procedure gurus who may happen to stumble across this blog entry, I would greatly appreciate your collective thoughts on this issue.

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Posted in Criminal Law, U.S. Supreme Court

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The Morally Ambivalent Justice

Posted on September 9, 2009 | Leave a comment

Ronald Dworkin has a great piece in this week’s New York Review of Books on the Sotomayor confirmation hearings.  In it he criticizes the modern myth that judges are only supposed to apply the law rather than make “controversial judgements of political morality” – a point that I have made in the past.

Here is an excerpt from the article:

Sadly, practically everyone concerned in judicial confirmation hearings—senators and nominees—has an overriding interest in embracing the myth that judges’ own political principles are irrelevant. Sotomayor was, of course, well advised to embrace that myth. Her initial statement, and her constant repetition of it, made her confirmation absolutely certain; she could lose the great prize only by a candor she had no reason to display. She was faced by a group of Republican senators who had no interest in exploring genuine constitutional issues but wanted only to score political points, if possible by embarrassing her but in any case to preen before their constituents. They scoured her record of extrajudicial speeches for any sign that she actually doubts the myth so they could declare her a hypocrite who is not faithful to the law after all.

Democratic senators had no wish to challenge the myth either. They only wanted to protect her from questions that might supply ammunition to her opponents, so they offered her endless opportunities to repeat her empty promise to follow the law. Only President Obama, in a remarkably candid statement, seemed to challenge the myth. The law, he said, decides 95 percent of the cases but that leaves 5 percent to be decided in the judge’s “heart.” Senator Jon Kyl of Arizona asked Sotomayor if she agreed with Obama on this point. No, she roundly declared, I do not.

So the minuet was choreographed, and any illumination ruled out, before the hearings began. Both supporting and opposition senators asked Sotomayor whether she approved of recent Supreme Court decisions they believe of particular concern to their constituents: about abortion, of course, but also gun control, the president’s power to defy Congress, his power to detain suspected terrorists indefinitely, and the permissibility of a city taking private property for private development. They wanted to be seen as knowledgeable and concerned by what worried voters.

You can find the entire article here.

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Posted in Bad Politics, U.S. News, U.S. Supreme Court

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“The Machinery of Death” in Georgia and Beyond

Posted on August 18, 2009 | Leave a comment

Over the past week, the death penalty has received considerable media coverage here and across the nation.

First came news that the Georgia Public Defender Standards Council had asked Fulton County to repay the State of Georgia for fees and expenses that were incurred in defending Brian Nichols, the escaped prisoner who went on a murderous rampage in downtown Atlanta, killing a judge, among other public officials.  This comes on the heels of a recent, somewhat critical report in the AJC of the growing cost of Nichol’s legal defense, which I wrote about here.  At the same time, according to the AJC, the State has crafted plans to cut the budget for funding public defenders in Georgia, which could result in furloughs of a month or more.

Over at the Times is a story on the growing number of judges who are writing dissents that are critical of the death penalty and the manner in which it is being imposed.  Here is an excerpt from that article:

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.

Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”

The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.

The full story is available here.

And today comes news that the Supreme Court has essentially given a reprieve to Troy Davis, who is on death row in Georgia after having been convicted of killing an off-duty police officer.  In an unsigned one-paragraph order, the Supreme Court sent Davis’ case back to the trial court and instructed it to conduct a factual hearing to determine “whether evidence that could not have been obtained at the time of trial clearly establishes [Davis'] innocence.”  The order was met with a dissent by Justice Scalia (joined by Justice Thomas), in which he says, among other things, that the trial court was being sent on a “fool’s errand.”  Justice Stevens, joined by Justices Breyer and Ginsburg, countered with their own take on the law, stating that “[t]he substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”

Liptak of The Times has the story here, the AJC, here, and SCOTUS blog, here.

Finally, yesterday saw the start of the trial of Sharon Keller, the Texas judge who is accused of having intentionally denied a death row inmate access to the courts.  For those of you who are unfamiliar with the case, here are the basic facts, as per the Times:

On Sept. 25, 2007, Judge Keller put in a 10-hour workday and went home around 4 p.m. to meet a repairman. That morning the United States Supreme Court had effectively suspended lethal injection as a manner of execution by accepting a challenge to its constitutionality in a Kentucky case.

Largely on the basis of the justices’ action, lawyers for a Texas death row inmate were putting together an appeal to stave off execution. An assigned duty judge was waiting at the courthouse for any last-minute appeal on the inmate’s behalf.

Around 4:45 p.m., the general counsel of Judge Keller’s court called her to relate a request to file paperwork after 5 p.m., the usual closing time for the court clerk’s office. Judge Keller replied that the clerk’s office closed at 5 p.m. A few hours later, the inmate was executed.

The full story is here.  Grits for Breakfast provides coverage of the Keller case, links, and some interesting commentary here.

My thoughts on these stories and the general death penalty brouhaha is as follows:

(1) Like most of the hot button issues, those in power who are in a position to effect change (politicians, judges, lawyers, journalists), even those who are opposed to capital punishment, are not likely to take action.  Why?  Because it’s another issue that can be, and has been, used to divide the masses, generate controversy, etc., which, in turn, means these individuals get to maintain their positions of power.

(2) The notion that judges must and do slavishly follow and apply the law is a false one.  The corollary being that there is a moral component to the law.  Is there any other reason why we consistently refer to the Supreme Court as having a liberal and a conservative wing?   Anyone who tells you differently is being disingenuous at best and manipulative at worst.

(3) Criminal defendants and their attorneys are shafted on a regularly basis by everyone and anyone who cannot fathom the reason why people commit crimes in the first place.  Hint: it’s rarely if ever because that person is predisposed to committing criminal acts.

- AW

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Posted in Atlanta News, Bad Politics, Civil Rights, Criminal Law, Georgia News, Social Justice, U.S. News, U.S. Supreme Court

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Souter: Can We Have a Do-Over, Please?

Posted on July 21, 2009 | Leave a comment

The Times’ Adam Liptak continues his exceptional reporting with a column today on the impact of the Supreme Court’s decision in Iqbal v. Hasty.  Here is an excerpt:

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

Liptak also quotes Justice Souter dissenting from the majority’s decision in Iqbal.  What he does not mention, however, is that Souter had authored the opinion that really gave birth to this new “plausibility” standard: Bell Atlantic Corp. v. Twombly.  Whether Souter envisioned when writing Twombly that his opinion would one day be interpreted by his colleagues to impose an even stricter standard of pleading and thus make it harder for plaintiffs to have their claims heard by a jury will probably remain a mystery.  There is little doubt, however, that Souter was kicking himself in Iqbal for having had a hand in that process.

The full story can be found here.

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Posted in Civil Rights, U.S. News, U.S. Supreme Court

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