Tag Archives: Immigration Consequences

Seventh and Tenth Circuits Rule on Padilla Retroactivity

I apologize again for the delay in posting.  Things have been hectic around here, both work-wise and life-wise.  For those of you who follow developments with Padilla retroactivity, this is probably old news.  But the Seventh and Tenth Circuits have recently issued opinions holding that Padilla cannot be applied retroactively.  Notably, the Seventh Circuit reversed Judge Gotschall’s groundbreaking decision in Chaidez which has been covered extensively in this blog.  (See posts here and here.)  The case from the Tenth Circuit is United States v. Chang Hong (Case No. 10-6294) and was an appeal from a denial of a 2255 habeas petition.  Of note in Hong is that the petitioner there argued that Padilla is a new rule so he could extend the statute of limitations for his habeas claim; his petition was otherwise untimely.

I will have more to say about both decisions soon.  Meanwhile, the opinion in Chaidez (including a persuasive dissent) is here, the one in Hong, here.

Meanwhile, it will be interesting to see how these rulings will affect the application for writ of certiorari in Morris (post here) that is currently pending in the Supreme Court on Padilla retroactivity.  Will anyone of the losing parties in Chaidez and Hong also appeal to the Supreme Court?  If so, which case presents the more ideal vehicle for (a) getting cert granted and (b) reversing the appellate decision on Padilla retroactivity?

Padilla Retroactivity in SCOTUS?

A few months ago, I wrote about the Virginia Supreme Court’s decision in Commonwealth v. Morris, limiting the procedural vehicles from which a defendant could launch a postconviction challenge under Padilla.  This decision generated some controversy after lower court judges refused to abide by the Morris court’s ruling and continued to entertain Padilla claims raised in the rather esoteric motions that were at issue in Morris.

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.

April Showers Bring May Flowers*

[*I have been informed by my ever helpful wife that we are in June; I will neither admit nor deny whether I knew this at the time I thought of this title but point out that the decisions at issue in this blog post were issued in May!]

The once prevailing wind of hostility by federal judges toward Padilla retroactivity claims has now begun to blow the other way.  Two federal district courts recently held that Padilla did not announce a “new rule” for retroactivity purposes, i.e., Padilla could be applied retroactively, and granted, yes granted, the petitioners in those cases postconviction relief.

The cases are United States v. Krboyan, decided in the Eastern District of California, and Amer v. United States, a Northern District of Mississippi matter.  It is notable that each case involved different procedural vehicles for seeking postconviction relief; in Krboyan, it was a petition for writ of error coram nobis, in Amer, a section 2255 habeas petition [although the court, in a move of great significance, sua sponte converted this into a petition for writ of error coram nobis thereby obviating the need for the petitioner to argue that his otherwise untimely 2255 petition fell within section 2255(f)(3)’s “new rule” exception, otherwise know as the death knell for Padilla retroactivity.  Also notable is the fact that the holdings originated in two pretty different circuits, in terms of the general ideological sweep of decisions which affect criminal procedure and immigration: Ninth Circuit versus Fifth Circuit.

The Krboyan case can be downloaded here, Amer, here.

In other Padilla retroactivity news, the Supreme Court of New Jersey recently accepted a case with potentially profound impact on Padilla retroactivity law.  The case is State v. Frensel Gaitan, which was previously covered in this blog here.  The question to be answered, according to the New Jersey Supreme Court website, is as follows:

Do the decisions in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and State v. Nunez-Valdez, 200 N.J. 129 (2009) apply to this non-citizen defendant’s argument, raised for the first time in his post-conviction relief petition, that his attorney failed to discuss with him the deportation consequences of his guilty plea?

If anyone has access to the briefs in the Gaitan case [as they become available] and would be willing to share them with other readers, please let me know.

Issue of Padilla Retroactivity Heating Up In State Appellate Courts

The issue of Padilla retroactivity has been making its way through the State appellate courts.  I have already written about the ruling from the Minnesota Court of Appeals which held in Campos v. State that Padilla could be applied retroactively.  Campos, however, was not the first state appellate case to hold as such.  Just four days before Campos was decided, the Texas Court of Appeals, in State v. Golding, ruled in similar fashion: “Considering the language of the Padilla opinion, the Strickland analysis, and the prevailing professional norms occasioned by major changes in immigration law, we hold that Padilla — as an extension of Strickland, and not a new constitutional rule — applies to this case.” State v. Golding, slip op. at 24-25.  The opinion in Golding can be downloaded here.

I should also point out that the Florida Court of Appeals has chimed in on Padilla retroactivity, albeit unfavorably to potential Padilla postconviction petitioners (say that three times in a row!).  The case is Gabriel Hernandez v. State of Florida, Case No. 3D10-2462 (3d  Dist. Apr. 6, 2011).  The saving grace here, as ALIA has helpfully pointed out, is that the Hernandez decision had little analysis on Padilla retroactivity and ultimately certified the question to the Florida Supreme Court.  This will definitely be a case to watch.

Laguna: Padilla is a “New Rule,” Not Retroactive

The Northern District of Illinois still remains a hotbed of Padilla retroactivity decisionmaking.  This time, the court, as per Judge Virginia Kendall, came out against Padilla retroactivity.  So it’s currently 2-1 at the Northern District of Illinois, in favor of Padilla non-retroactivity, if you’re keeping score.

In United States v. Laguna, the petitioner, in an unusual procedural maneuver, collaterally challenged his order of removal under Padilla v. Kentucky rather than attacking the convictions that gave rise to the order itself.  (He most likely ran out of time on the latter approach; the convictions at issue arose in 2001 and the removal order was entered against him in 2002.)  The court noted at the outset that there was no dispute that the petitioner was not advised of immigration consequences prior to his pleading guilty to the 2001 offenses.  Nevertheless, the court went on to reject the petitioner’s Padilla-based challenge on several grounds, including the non-retroactivity of Padilla.  The Laguna court went through a relatively thorough analysis before finding that Padilla constituted a “new rule” under Teague and was therefore not retroactively applicable.  The highlights of the court’s retroactivity findings are as follows:

(1) Prior to Padilla, Seventh Circuit law did NOT mandate that an attorney advise a client of immigration consequences in order to render effective assistance under the Sixth Amendment.

(2) Pre-Padilla directives contained in bar rules and professional guidelines requiring advice on immigration consequences are not considered legal rules for purposes of the new rule/old rule retroactivity analysis.

(3) Even when Padilla was decided, the courts, including the U.S. Supreme Court, lacked unanimity as to whether the Sixth Amendment required advice as to immigration consequences, thus establishing that Padilla is a new rule.

(4) Padilla did not involve the application of an old rule to a new set of facts but instead required the resolution of the threshold issue of whether the Sixth Amendment applied at all in situations concerning immigration consequences.

It is worth noting that the court’s Padilla retroactivity analysis is still dicta since it it had already rejected the petitioner’s claim on procedural grounds before reaching the issue of Padilla retroactivity.  In fact, this retroactivity discussion could be considered double dicta since the court had already decided that one, the the petitioner’s collateral challenge was procedurally barred, and two, that the petitioner would not have been able to prove Strickland prejudice pursuant to Padilla.  [The correctness of the court's Strickland prejudice analysis is questionable: contrary to the court's ruling, the issue of Strickland prejudice in the plea context is not whether the defendant would not have been convicted at trial had the defendant received effective assistance of counsel but instead whether he would have proceeded to trial rather than pleading guilty based on the attorney misconduct at issue.  See Hill v. Lockhart, 474 U.S. 52, 59 (1985).  It's a fine point and probably one that would not matter in most cases of ineffective assistance, but is still worth mentioning, especially since the issue for most immigrant defendants facing imminent deportation is not actually contesting guilt in a full-blown trial but securing a favorable plea deal that would avoid adverse immigration consequences - a fact emphasized by the Padilla majority, Padilla, 130 S. Ct. at 1486.]   A final note: the petitioner in this case had to shoulder what were some pretty unsympathetic facts (for example, he impeded the government’s efforts to remove him from the country after agreeing initially to voluntary departure), which, in all likelihood, contributed to the court’s decision against him.

The decision in United States v. Laguna can be downloaded here.

Mudahinyuka: No §2255 Padilla Retroactivity

The Northern District of Illinois continues to be a hotbed of Padilla retroactivity activity (try to say that three times in a row!).  In a recent decision issued by Chief Judge Holderman, the court concluded that the principle announced in Padilla did not constitute a new rule for purposes of qualifying for subsection (f)(3) of 28 U.S.C. 2255 — which if met would start the limitations clock on the date such a “new rule” was “initially recognized” rather than on the date the conviction becomes “final,” as is generally the case.  The upshot of all this being that a court would accept an otherwise untimely 2255 motion.  The case is Mudahinyuka v. United States, Case No. 10 C 5812 (N.D. Ill. Feb. 7, 2011) and is available here.  [As an interesting aside, the petitioner in this case is a native of Rwanda who had sought but was denied refuge in the U.S. because of his role in the 1994 Rwandan genocide.]  The core of the Mudahinyuka court’s retroactivity analysis is as follows:

District courts have issued divergent opinions on the question of whether Padilla “created a newly recognized right that is retroactively applicable to cases on collateral review.” United States v. Gutierrez Martinez, Criminal No. 07-91(5) ADM/FLN/Civil No. 10-2553 ADM, 2010 WL 5266490, at *2-3 (D. Minn. Dec. 17, 2010) (collecting cases). Some district courts, including the Southern District of California, the Eastern District of Michigan, and the Eastern District of New York, have held that Padilla’s application of Strickland did not create a “new” rule, thus barring application of § 2255(f)(3). See, e.g., Luna v. United States, No. 10CV1659 JLS (POR), 2010 WL 4868062, at *3-4 (S.D. Cal. Nov. 23, 2010); United States v. Shafeek, Criminal Case No. 05-81129 / Civil Case No. 10-12670, 2010 WL 3789747, at *3 (E.D. Mich. Sept. 22, 2010); Gacko v. United States, No. 09-CV-4938 (ARR), 2010 WL 2076020, at *3 (E.D.N.Y. May 20, 2010); see also United States v. Chaidez, 730 F. Supp. 2d 896, 904 (N.D. Ill. Aug. 11, 2010) (holding that Padilla “did not announce a new rule” in the context of a petition for writ of error coram nobis). Other district courts, including the District of Nebraska and the District of New Jersey, have held that Padilla did announce a “new constitutional rule,” stressing that the result in Padilla was not dictated by precedent in the majority of the federal courts, but have further held that Padilla should not be considered retroactive for this very reason. See, e.g,., United States v. Perez, No. 8:02CR296, 2010 WL 4643033, at *2 (D. Neb. Nov. 9, 2010); United States v. Gilbert, No. 2:03-cr-00349-WJM-1, 2010 WL 4134286, at *3 (D.N.J. Oct. 19, 2010).


The requisite elements of § 2255(f)(3) are difficult to establish, in light of Supreme Court precedent generally holding that “new” constitutional rules of criminal procedure should not be applied retroactively to cases on collateral review. See Teague v. Lane, 489 U.S. 288, 310 (1989).[1] This court is not aware of any decision by a state or federal court holding that the Supreme Court recognized a new right in Padilla that is also retroactively applicable to cases on collateral review.[2] Mudahinyuka, himself, takes the position that “[t]here is nothing new about” the holding in Padilla. United States v. Mudahinyuka, 10 C 5812 (N.D. Ill.) (Dkt. No. 15 (“Mudahinyuka Reply”) at 6.) This court is therefore not persuaded that § 2255(f)(3) should be applied to re-start the limitations period for Mudahinyuka’s claims. Therefore, Mudahinyuka’s § 2255 motion is dismissed as untimely under § 2255(f).


The Ripples of Padilla

There is pushback from supporters of immigrant rights.

From Loudon County, Virginia comes news of defiance by a trial judge against the recent ruling from the Virginia Supreme Court in Morris/Chan which limited the use of certain writs by attorneys seeking postconviction relief under Padilla v. Kentucky.  In a 13-page opinion, the judge, Dean S. Worcester, granted a petition for writ of error coram vobis, finding a violation of Padilla because the petitioner was never advised by his attorney of the immigration consequences of his plea to  felony petit larceny.  Of course, the petitioner now faces the prospect of having to fight the larceny charge in trial or, more likely, to secure a agreement from the prosecutor in which he would plead to a non-deportable offense.  The case is Commonwealth v. Edgar Luis Cabrera and the opinion is available here.  The Washington Post has the story on Cabrera’s victory here.

Further up the eastern seaboard, in New Jersey, the Appellate Division reinstated a petition seeking postconviction relief under Padilla, which had been initially rejected by the trial court on the now increasingly common but no less incorrect basis of the petitioner’s plea colloquy with the court.  The appellate court noted that the questions posed to the petitioner during his plea colloquy were never designed to determine whether the petitioner received the level of effective assistance of counsel that Padilla now mandates.  Thus, it kicked the case back to the trial court for an evidentiary hearing.  There is some discussion of Padilla retroactivity, none which factored into the court’s ruling, however.  The case is State v. Frensel Gaitan and the opinion is available here.

Zong Lin: Padilla Not a New Rule, Retroactive

Score another victory for proponents of Padilla retroactivity.  The case is United States v. Zhong Lin and the jurisdiction is the United States District Court in the Western District of Kentucky.

The petitioner in this case filed a writ of coram nobis, arguing that he should be allowed to withdraw his guilty plea to one count of conspiracy to commit tax fraud because of faulty advice legal advice he had received from his attorney prior to entering into his plea.  (The decision does not specify what this advice was.)  The basis for his claim rested squarely upon Padilla v. Kentucky — a case which the court found did not create a “new rule” and could therefore be applied retroactively.  These are the reasons the court offered for its retroactivity finding:

The language in Padilla strongly suggests that the decision does not create a new criminal rule. The Padilla court went to great lengths to advise that its decision will not “open the flood gates” to a significant number of new post-conviction petitions. 130 S.Ct. at 1485. This extensive discussion would not be necessary or make sense if Padilla only applied prospectively. Moreover, the court’s statement that “[i]t seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains” also contemplates a retroactive application of the court’s decision. Id. Finally, the court’s discussion of the relationship between Hill v. Lockhart, 474 U.S. 52 (1985) and Strickland reinforces the position that the court is not articulating a new rule in Padilla, 130 S.Ct. 1485 n.12. The Court concludes that Padilla did not create a new rule.

The more interesting aspect of this decision is that the court refers directly to the petitioner’s immigration and personal situations as reasons for which it was granting relief under the writ, going so far as to say that the removal of the petitioner “would be a great injustice.”  Which makes me wonder whether ICE will use this language in arguing that the petitioner is still deportable (i.e., because the relief was based on equitable rather than legally substantive/constitutional reasons).

The Zong Lin decision is available here.

A Right Without A Remedy: Virginia Supreme Court Limits Reach of Padilla

Ubi jus ibi remedium.  Roughly translated from Latin as: “For every wrong, the law provides a remedy.”  For those with Padilla-style claims, however, look elsewhere.  This is the basic message that was recently handed down by the Supreme Court of Virgina in the cases of Commonwealth v. Morris and Commonwealth v. Chan.  At issue in both these cases were the use by defendants of rather esoteric postconviction procedural vehicles (i.e., writ of error coram vobis and writs of audita querela) to alter their criminal sentences so as to avoid adverse immigration consequences.  In arguing for relief, the defendants in both these cases relied on Padilla v. Kentucky.  The trial courts said yes, but the Virginia Supreme Court said no.

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.

Perez: Padilla Creates a “New Rule”, Not Retroactive

A U.S. District Court from Nebraska has ruled that principle announced in Padilla v. Kentucky – i.e., effective assistance requires advice as to immigration consequences – creates a “new rule” under the standard established in Teague v. Lane and is therefore barred from retroactive application.  The case is United States v. Perez, Case No. 8:02CR296 (D. Neb. Nov. 9, 2010) and can be accessed here.  From the opinion in Perez:

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.