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End of a Chapter

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.

The Imperial Supreme Court

The Supreme Court has officially entered its summer recess, leaving yet another controversial term in its wake.  States will now be able to gerrymander at will without first subjecting their plans to federal oversight.  Laws that are passed to discriminate against gays are prone to being struck down by a court as unconstitutional.  And affirmative action is still a laudable if not legal concept, although that too may change soon.

That the legal landscape has again shifted should come as no surprise.  Laws are prone to be amended or reversed from time to time, especially when they are subjected to the scrutiny of the country’s highest court.  That these changes might anger some and please others is nothing new either.  Controversy, after all, is something that often propels a case to the Supreme Court and  leads to its review by the justices, which is almost always at their discretion.  Not that debate should not be had on the cases that make it to the court.  But I think it hard pressed for anyone to argue that a robust and sustained debate on, say, whether a law is based on outdated data (the Shelby County, Voting Rights Act case) or whether the moral underpinnings of a law cause it to be discriminatory (the Windsor, DOMA case), can be had between the covers of  the legal briefs on which the justices rely to make their decisions.  This is especially true considering that any decision the Supreme Court makes to uphold but especially to strike down a law has significant consequences, not just on the people who are the subject of the law, but on those whose responsibility it is to make and enforce the law.  This, it seems, is a point Scalia touched on in his dissent in Windsor where the Court found DOMA unconstitutional.  But there too, Scalia was being disingenuous, as there is no love lost between Scalia and what he sees as the homosexual agenda: to Scalia, debate should be had in lieu of Supreme Court intervention, but only when it might prevent an otherwise discriminatory law from being swept into the morality dustbin.

The trend we see of the Supreme Court wading into almost every area of law is a troubling one.  It is a reflection of a government that is broken and dysfunctional, where no one accepts another’s position unless he is of the same party or political ideology.  And those on the losing end inevitably vow, with increasing success, to have the disfavored piece of legislation overturned.  As a result, we have a government that is increasingly governed by nine unelected officials, and, some may say, one such person in Justice Kennedy.  Say what you will about the character and ambitions of those who choose to run for public office or the lack of competition one often sees on an election ballot, when elected officials displease their constituents, the remedy is to vote them out.  Needless to say, Supreme Court justices are not subject to the same pressures; indeed, their reign at the Court may last decades and is subject to almost no oversight at all.  Not that we should get into the business of electing judges.  But to have every piece of major legislation, both old and new, consistently land in the Supreme Court with the prospect that it may be reworked, gutted, etc., on the ideological preference of a group of justices or just one justice is a prospect no one should savor.

Of course, if a law must be struck down, that is the job of the courts.  No one should be made to suffer under an unjust law.  If neither the legislature nor the executive are willing to act, then it is the province and, in some situations, the prerogative, of the court to take up the slack.  But the primary concern should not be “how do we kill this law”, but “how can we get the law that we desire”.  The former almost certainly leads to greater polarization and distrust of our government institutions, while the latter encourages and requires participation in the process that is self-government, which, in almost any scenario, provides greater legitimacy to the final outcome, even if it is unsatisfactory to some.

Another Cert. Worthy Candidate to Expand the Reach of Padilla? (UPDATED)

In its latest review of cert. candidates that have been relisted by the Supreme Court, SCOTUSblog noted some unusual activity with a case out of the Seventh Circuit that involves the application of Padilla v. Kentucky.  The case is Mario Reeves a.k.a. Rio v. United States, No. 12-8543 (7th Cir case no. 11-2328).   SCOTUSblog seemed to think  that the Court relisted the Reeves case in light of its recent decision in Chaidez.  Reeves is an example of efforts by individuals to expand the scope of Padilla to cover advice on consequences of a conviction other than deportation.  In Reeves, the defendant argued that a prior state court conviction was invalid under Padilla because his attorney in that case did not inform him that his conviction could later be used to enhance a sentence imposed against him in a future and entirely distinct criminal case.  It’s an interesting argument, but one that the Seventh Circuit did not buy.    Notably, the Seventh Circuit made no mention of whether Padilla could even be retroactively applied to assess the conduct of the defendant’s attorney, whose role in the case ended some time in 2004; its decision seemed to assume without deciding that it did.

In any event, the Supreme Court docket for the case indicates that the defendant is now being represented by attorneys from Northwestern University and Sidley Austin.  Perhaps this plus the relist is a sign of good things to come for Mr. Reeves.  If anyone has a copy of the cert. petition in Reeves, I would really like to read it.  In the meantime, the Seventh Circuit’s decision can be downloaded here.

UPDATE: The Supreme Court denied Mr. Reeves’ cert. petition on March 18, 2013.

Some Thoughts on the Chaidez Decision

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.

The Myth of the Recidivist-Slacker

I wrote this piece before the recent events in Newtown and Sandy Hook but never posted it because I could not figure out a way to end the piece in a manner that was not shallow, preachy or both.  But despite its title and subject articles, the piece still seems timely in light of the tragedy that took place in Newtown.  I will admit that I have no more of an idea as to what we can do to change the status quo after the Newtown incident as I did before it took place.  However, I do know that the status quo is unsustainable and at this point any action is better than no action at all.

A recent essay published in The Crime Report, an online news source of all things crime-related, discusses the difficulties faced by ex-offenders in their collective inability to obtain gainful employment following their release from prison.  The essay is entitled Hiring Ex-Offenders: Time for a Different Approach and is written by William D. Burrel, who, according to a profile accompanying the essay,  “is an independent corrections management consultant specializing in community corrections and evidence-based practices.”

Mr. Burrel believes that employment programs which have been set up to help ease the transition of ex-offenders back into the free world are broken — a conclusion that, I am sure, is shared by many.  According to Mr. Burrel:

The lack of success with employment programs suggests to me that perhaps we are missing something crucial.

What is the answer to the offender– employment–recidivism conundrum? What are the relationships and correlations that we need to understand to create the right results?

As Moses says, “(T)he relationship between employment, job placement or assistance and crime desistance is more complicated than it appears.”

While I don’t have all the answers, it seems to me that part of the solution is a better understanding of what drives recidivism.

In their work on the psychology of criminal conduct, Andrews and Bonta identified “criminogenic risk factors” or drivers of criminal behavior.[iii] These factors lead people to commit crimes.

At the top of the list of these factors are anti-social, pro-criminal attitudes, values and beliefs. This means that offenders have a way of thinking, a world view and set of values that are sympathetic to and supportive of crime. The way they think about life, relationships, desires and decisions takes a different course than law-abiding citizens.

This mindset is generally not supportive of legitimate employment and the behaviors required to sustain it over the long term.

Contrast this with what George Jackson, the convict turned prison and political activist,  had written  in his now famous letters from prison — this one to his lawyer, Fay Stender:

I understand your attempt to isolate the set of localized circumstances that give to this particular prison’s problems of race is based on a desire to aid us right now, in the present crisis.  There are some changes that could be made right now that would alleviate some of the pressures inside this and other prisons.  But to get at the causes, you know, one would be forced to deal with questions at the very centre of Amerikan political and economic life, at the core of the Amerikan historical experience.  This prison didn’t come to exist where it does just by happenstance.  Those who inhabit it and feed off its existence are historical products.  The great majority of Soledad pigs [Jackson refers to prison officials and law enforcement generally as "pigs" - editor's note] are southern migrants who couldn’t sell cars or insurance, and who couldn’t tolerate the discipline of the army.  And of course prisons attract sadists.  After one concedes that racism is stamped unalterably into the present nature of Amerikan sociopolitical and economic life in general (the definition of fascism is: a police state wherein the political ascendency is tied into and protects the interests of the upper class — characterized by militarism, racism, and imperialism), and concedes further that criminals and crime arise from material, economic, sociopolitical causes, we can then burn all of the criminology and penology libraries and direct our attention where it will do some good.

What Mr. Burrel, a nationally recognized expert in corrections, attributes to psychology, Jackson attributes to more systemic issues of economics, politics and culture.    The divergence in views couldn’t be greater.  But who is right?  I would suggest that, to some extent, they both are.

The individual does not, as Mr. Burrel would have us believe, exist in a vacuum.  Thus, when Mr. Burrel argues that psychology or “criminogenic risk factors” are the driving forces behind one’s desire or predisposition to commit criminal acts, he ignores that these risk factors are invariably the product of the environment in which one resides.  To suggest otherwise would be an exercise in eugenics.

By the same token, the individual is not a slave to his or her environment, at least in the psychological sense.  And in some cases, however rare they may be, individuals can prevail against the so-called criminal mentality even if their roots  can be found in one’s environment, or what Jackson described as society’s “material, economic and sociopolitical” problems.

None of this is terribly reassuring, of course.  At best, it results in a society of cynicism and inequality.  At worst, it leads to scenarios of violence and destruction, the worst of which we have seen unfold in places like Columbine, Virginia Tech, and more recently in Aurora and Wisconsin.

Some Late-Term Padilla Retroactivity News from SCOTUS

According to the SCOTUS blog, the Supreme Court has, at the suggestion of the Solicitor General’s office, decided to hold a case pending the outcome of Chaidez.  That case is Doan v. United States and it involves the issue of Padilla retroactivity.  Doan comes from the Eastern District of Virginia and the Fourth Circuit Court of Appeals.  Doan’s claim that Padilla applied retroactively was rejected by the lower court and Dona’s appeal from that ruling was later dismissed by the Court of Appeals because it found that Doan did not satisfy the standards for issuance of a Certificate of Appealability.  

The Supreme Court docket information for Doan is available here.  The trial court opinion which contains an analysis of Padilla retroactivity can be accessed on Google Scholar by searching for the name Thai Hong Doan.  I will try to get my hands on the brief filed by the Solicitor General’s office and if successful will post it here.    

Update on Padilla Retroactivity

Hard to believe we are already in March and quickly closing in on April of 2012.  The biggest news thus far on the Padilla retroactivity front, and most followers of the issue have presumably already read about this, is the decision by the New Jersey Supreme Court in the Gaitan matter which held that Padilla announced a “new rule” and therefore could not be applied retroactively.  Two justices dissented, arguing that Padilla could be applied retroactively.  Here in the Eleventh Circuit, where I practice, the Court of Appeals has come close to but, for one reason or another, has avoided deciding the question of whether Padilla can be applied retroactively.  Just as well since the Supreme Court may still decide the issue, if not this term, then perhaps the next one.  In fact, the  attorneys in the Chaidez matter — the case before the Supreme Court which presents the issue of Padilla retroactivity — are still briefing the issue of whether the Supreme Court should grant cert. in that case.  The Government’s response to the petition for cert. is due on March 30th.

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.

Split Decisions

Just a quick note that the Third and Tenth Circuit Court of Appeals denied petitions for rehearing in their respective cases dealing with Padilla retroactivity. It is notable that the denial in the Third Circuit came at the expense of the Government, which lost on appeal in seeking to block retroactive application of Padilla.

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.

Padilla Odds and Ends

A picture from my travels. Can you guess where I was?

My apologies for the delay in posts.  I have been traveling and have only recently returned to good ‘ol Atlanta.  Here are a few noteworthy court rulings on Padilla:

  •   The Massachusetts Supreme Judicial Court has held in Commonwealth v. Clarke, Case No. SJC10888 (June 17, 2011) that Padilla announced an “old rule” and can therefore be applied retroactively.  The Clarke court’s retroactivity analysis mirrored that of the Third Circuit’s in Orocio, which also found Padilla retroactively applicable, and it put to bed the notion that simply because a court applies Strickland to a new set of facts does not mean that a “new rule” has been created for retroactivity purposes.  This is so even if courts disagree on how Strickland applies in these novel factual circumstances.  The opinion in Clarke is available here.
  • The Eleventh Circuit Court of Appeals might soon be deciding whether the Padilla retroactivity question.  In Ivan Dejesus Chapa v. United States, Case No. 10-CV-1885 (N.D. Ga. June 14, 2011), Magistrate Judge Braverman issued an order recommending the denial of Chapa’s section 2255 habeas petition.  The petition itself raised issues of ineffective assistance under Padilla.  Magistrate Judge Braverman was not convinced, however, and found the petition meritless on retroactivity (Padilla is a new rule and therefore cannot be applied retroactively) and ineffective assistance of counsel (Chapa’s claim fails under pre-Padilla caselaw) grounds [rulings later adopted by the district judge in the case].  A certificate of appealibility was issued to Chapa, however, allowing him to address the issue of Padilla retroactivity to the Eleventh Circuit Court of Appeals.  Judge Braverman’s report and recommendation is available here.

Gudiel-Soto: Padilla Retroactivity Left to Another Day

In a well-reasoned decision, the court (D.N.J.) in Gudiel-Soto v. United States denied a petition for writ of coram nobis by a Guatemalan immigrant who sought to challenge his conviction under Padilla.  The Gudiel-Soto court ultimately declined to address the retroactivity question, finding that the petitioner failed to satisfy the second — prejudice — prong of the Strickland/Hill test.  But not without stating the following:

The government argues that Gudiel-Soto’s factual allegations are inconsistent because they do not make clear whether his attorney failed to inform him of the risk of deportation, or misinformed him of the those risks. The Court does not find a material distinction. In Padilla, the Court explicitly declined to limit its holding to “affirmative misadvice.” 130 S. Ct. at 1484. An attorney’s complete failure to provide advice and “affirmative misadvice” both qualify as ineffective assistance of counsel. Id. Given the Supreme Court’s instruction and assuming petitioner’s allegations to be true, it is not difficult for him to show that his counsel’s performance fell below an objective standard of reasonableness. The Supreme Court said as much. See Padilla, 130 S. Ct. at 1486. The more significant question is whether Padilla should be given retroactive effect.

The retroactivity of Padilla has not yet been addressed by the Third Circuit, or any circuit court for that matter. Courts in this district have said that that the rule announced by the Supreme Court in Padilla was a new rule of constitutional criminal procedure under Teague v. Lane, 489 U.S. 288 (1989), and does not apply retroactively to cases challenged on collateral review. See United States v. Gilbert, Crim. No. 03-0349, 2010 WL 4134286, at *3 (D.N.J. Oct. 19, 2010); United States v. Hough, Crim. No. 02-0649, 2010 WL 5250996, at *3-4 (D.N.J. Dec. 17, 2010). But this Court recognizes that district courts are split on this issue. See, e.g., Martin v. United States, No. 09-1387, 2010 WL 3463949, at *3 (C.D. Ill. Aug. 25, 2010) (holding that Padilla did not create a new rule under Teague and was therefore retroactively applicable); United States v. Millan., Crim. No. 06-0458, 2010 WL 2557699, at * 1 (N.D. Fla. May 24, 2010) (holding same). This Court need not join that discussion now, because the Court finds that the petitioner cannot demonstrate prejudice sufficient to satisfy the second prong of the Strickland test.

The opinion is available here.