Invisible Man

A Right Without A Remedy (Again?)

Albert Wan — Wed, 02 May 2012 04:00:36 +0000

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.

The Race Begins… Cert. Granted in Chaidez

Albert Wan — Mon, 30 Apr 2012 19:42:47 +0000

As several helpful readers have pointed out, the U.S. Supreme Court granted cert. today in Chaidez. According to the Court, the question for which cert. was granted in Chaidez is as follows:

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.

Slow And Steady Wins the Race

Albert Wan — Wed, 25 Apr 2012 17:05:20 +0000

The Supreme Court will determine this Friday whether to grant certiorari in the Chaidez matter, the case in which the Seventh Circuit held that Padilla does not apply retroactively. Presumably there is already a pool memo floating around the Court in which a clerk has made a recommendation as to whether cert. should be granted. The Government has already made up its mind, however, having informed the Court that it agrees with the Petitioner (Chaidez) that cert. should be granted to resolve the Padilla retroactivity issue.

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.

Update on Padilla Retroactivity

Albert Wan — Sun, 25 Mar 2012 23:15:21 +0000

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.

Padilla in 2012 Thus Far

Albert Wan — Mon, 13 Feb 2012 01:11:06 +0000

I apologize for the lack of Padilla related posts since the New Year. There simply wasn’t much to report, perhaps due to the holidays. This has changed some of late, and courts have been issuing opinions discussing both Padilla retroactivity and Padilla ineffectiveness. As to the former, however, district courts seem to realize that the question of whether Padilla applies retroactively is one that, sooner or later, will be decided by the Supreme Court. And they have acted accordingly, either skirting the issue entirely or ruling on it but with little analysis. As to the latter question of what constitutes ineffective assistance of counsel under Padilla, the fight has mostly been over when a postconviction litigant establishes that he or she has been prejudiced by counsel’s unconstitutional performance — that is, given that counsel was ineffective, would it have been rational for a defense to opt for trial had he or she been given the advice that Padilla required, i.e., that your conviction will result in adverse immigration consequences and this is why. In this respect, courts have been been split as to whether the decision to go to trial should be based on one’s likelihood of success in prevailing at trial, i.e., lack of evidence of inculpatory evidence and the availability of viable defenses, or on one’s determination to “fight to the death” so he or she could avoid potential deportation that would certainly come with a criminal conviction. The Third Circuit adopted the latter test for Padilla prejudice in its landmark decision in Orocio.

Without further ado, I offer here, cites to a few recent decisions which consider the above issue with varying outcomes:

Pilla v. United States, No. 10-4178 (6th Cir. Feb. 6, 2012) (defendant failed to establish prejudice under Padilla because of “overwhelming evidence of her guilt”).

McNeill v. United States, No. A-11-CA-495 SS, (W.D. Tex. Feb. 2, 2012) (finding Padilla retroactive but denying relief because counsel was not ineffective and even if he were petitioner failed to establish prejudice)

United States v. Fajardo, No. 10-CV-1978, (M.D. Fla. Jan. 26, 2012) (finding Padilla not retroactively applicable after detailed Teague v. Lane analysis)

Yau v. United States, 11 C 8462 (N.D. Ill. Jan. 26, 2012) (granting 2255 petitioner an evidentiary hearing on Padilla claim after finding a sufficient threshold showing of prejudice where it would have been “rational under the circumstances for [the petitioner] to reject the plea agreement and go to trial had he known of the immigration consequences“) (emphasis added).

The decision in the cases cited above should be available on Google Scholar. If not, please feel free to email me and I will send you the decision.

Martin Luther King Jr. Day 2012

Albert Wan — Mon, 16 Jan 2012 16:29:20 +0000

This year I offer a few thoughts of my own in commemeration of Dr. King and his legacy. Today, we often mention “progress” when the topic of racial equality is raised — this being the initial focus of Dr. King’s efforts as an advocate for the downtrodden and marginalized, and later, with the same forceful advocacy that he brought to the cause of racial equality, the great injustice that was America’s war against the Vietnamese war and the economic poverty that was, and still is, very much a staple of life in America despite willfully false portrayals by our news and popular media to the contrary. Certainly, true progress has been achieved since the days of institutionalized slavery, Jim Crow and Emmet Till. Colored-only buses and restrooms are a thing of the past. As are lynchings, at least in their most public and severe form. If one were keeping score, one might even think of the glass as being half full without the sense of guilt and pity that more often than not lead to shortsightedness and undesirable outcomes. Still one need not look too hard to see that much of what Dr. King fought against — the inequality, the senseless violence, the hate and cynicism — remains an intractable force in our society. A few blocks from where Dr. King grew up here in Atlanta sits homes and storefronts long abandoned by those who succumbed to such a force. Had Dr. King been able to see his old neighborhood and its surrounding communities in their present state, it is safe to say that “progress” is not the word that would have come to mind.

None of this, however, should be news. The “pursuit of happiness” that is a founding principle of this country necessarily implies a culture of self-absorption and inequality, where one’s key to his or her own “happiness” often comes at the expense of another’s. And blacks, in particular, have long been, and continue to be, the expendable ones in this equation. And the election of our first “black” president has done nothing to change that.

There is time yet to reverse this trend. And it takes not the writing or oratory of a great thinker or scholar to do so. Rather, the solution has been in front of our noses since time immemorial and has been posited in various forms to the general public. Joe Black, a pitcher for the legendary 1950′s Brooklyn Dodgers baseball team, did just in a university talk that was documented by Roger Kahn in his book, The Boys of Summer:

During a recent Honors Day Program at Virginia Union, a black university in Richmond, Black spoke about the responsibilities as well as the rewards of black power: “Our efforts have to be more positive than shouting, ‘Sock it to him, Soul Brother,’ or, ‘We are victims of a racist society,’ or, ‘Honkey!’ I’m in favor of black history because it makes whites realize that American blacks have done more than make cotton king. Rut I’m opposed to all-black dorms, and to violence. If the black student wants to use a loaded gun to make a point, what can we expect of uneducated blacks? By now some of you may be saying I’m a Tom, a window-dressing Negro. But I learned two things early. A minority cannot defeat a majority in physical combat and you’ve got to let some things roll off your back. Because my name is Joe Black, whites called me ‘Old Black Joe.’ After a few years of scuffling, I still hadn’t silenced all of them and throwing all those punches had made me a weary young man. Call me ‘Old Black Joe’ today and you agitate nobody except yourself.”

He makes one point to everyone. It is bigotry to exalt the so-called special language of the blacks. “What is our language?” he asked. ” ‘Foteen’ or ‘fourteen.’ ‘Pohleeze’ for ‘police.’ ‘Raht back’ for ‘right hack.’ ‘We is going.’ To me any man, white or black, who says whites must learn our language is insulting. What he’s saying is that every other ethnic group can migrate to America and master English, but we, who were born here and whose families have all lived here for more than a century, don’t have the ability to speak proper English. Wear a dashiki or an African hairdo, but in the name of common sense, learn the English language. It is your own.”

At lunch, [Joe] handed me a sheet of paper. ”This is part of my philosophy,” he said. ”And by the way, notice the use of English vocabulary.”

I read:

blackball,

black hook,

black eye,

black friday,

black hand,

black heart,

blackjack,

black magic.

blackmail,

black market,

black maria,

black mark,

little black sambo,

white lies.

Black is Beutiful.

“If that’s what you make it, Joe,” I said.

“Well,” he said. ”You got the point.”

Defining the Ex-Offender

Albert Wan — Tue, 10 Jan 2012 14:19:04 +0000

In today’s New York Times is an Op-Ed piece entitled “Paying a Price, Long After the Crime.” It touches upon some of the issues that have been covered on this blog concerning the increasing marginalization of ex-offenders in all aspects of daily life, from employment to education to housing, and provides proposals as to how those in power may seek to reintegrate ex-offenders into society. On the latter point and in addition to what the authors have proposed, I would simply add the following: that we consider a fundamental shift in our perception of the capacities and desires of an ex-offender from an individual with a presumed criminal bent to someone who, if given the chance, greatly wishes to contribute to society, perhaps (gasp!) more so than those from different (read: more conforming) walks of life.

2011 Year in Review

Albert Wan — Mon, 09 Jan 2012 22:22:42 +0000

Thanks to those who visited Invisible Man in 2011. I hope this blog has been of use to some. The issue of Padila retroactivity, to which I have devoted a lot of my blogging, is still percolating throughout the courts and remains very much a hot topic among criminal defense and immigration law attorneys, especially those who toil in the trenches of postconviction litigation. For 2012, I predict that the U.S. Supreme Court will finally step in to decide the issue of Padilla retroactivity, with a decision due in late 2012 or early 2013. I believe the Court will find Padilla retroactively applicable (how could I predict otherwise?!) and Justice Kennedy will write the decision for the majority, although Justice Alito will, in one way or another, be key in shaping the contours of the Court’s ruling on Padilla retroactivity.

WordPress.com has provided me with a year end report for 2011, which I have posted below for everyone’s reference.

Thank you all again for taking time out to visit the Invisible Man. I look forward to another year of blogging on Padilla and other issues.

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The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 9,400 times in 2011. If it were a concert at Sydney Opera House, it would take about 3 sold-out performances for that many people to see it.

Click here to see the complete report.

UPDATED: Gaitan (NJ Supreme Court) Oral Arguments Webcast

Albert Wan — Tue, 15 Nov 2011 17:37:53 +0000

The November 9th oral arguments before the New Jersey Supreme Court in State v. Gaitan, which presents the issue of whether Padilla can be applied retroactively, is now available for viewing online. Note that Mac users might have trouble playing the webcast.

UPDATE: I found that it wasn’t easy playing the webcast on a PC either. For those who have had trouble doing so, I would recommend the following procedure: copy the link for the Gaitan webcast (not the one on this blog post, but the one on the webpage to which it directs you under the Gaitan case) and paste it directly into Windows Media Player (from WMP, click on File then Open URL).

11-11-11: Veterans Day and Armistice Day

Albert Wan — Fri, 11 Nov 2011 17:56:07 +0000

In commemoration of those who have served their countries with honor and bravery, I post here a video clip of Martin Luther King Jr.’s speech on the Vietnam War. I do this not to denigrate the sacrifices of those to whom this day is dedicated but rather in hope that those who have gone a different route do not take for granted and are not blinded to the circumstances which have perpetuated the scenarios and theaters that have become the breeding ground for such sacrifices.