- 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.
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.
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 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.
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.