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.