- 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 Supreme Court of Pennsylvania recently issued an interesting opinion that may be the opening salvo in another round of Padilla-related litigation, this one on the scope of the Court’s ruling in Padilla. The case is Commonwealth v. Abraham, decided on December 7, 2012. The defendant in Abraham, a public school teacher, sought postconviction relief because he claimed his counsel was ineffective for failing to advise him he would forfeit his public employee pension if he pleaded guilty to an offense involving an inappropriate with a former student. The defendant argued that the near automatic pension forfeiture in his case was no different from the deportation consequences at issue in Padilla, and that he should have received counsel on this issue before he decided to enter his plea. The threshold question before the court in Abraham, however, and one that I think will be litigated in more and more postconviction relief cases, concerned the viability of the distinction between direct and collateral consequences in the ineffective assistance of counsel context post-Padilla.
This is how the Pennsylvania Supreme Court answered the question:
Not getting money as a consequence of breaching an employment contract cannot be equated with being forced to leave the country. Based on PEPFA’s aim, procedure, and consequences, we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis. Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation. Frometa’s general holding remains: a defendant’s lack of knowledge of collateral consequences of the entry of a guilty plea does not undermine the validity of the plea, and counsel is therefore not constitutionally ineffective for failure to advise a defendant of the collateral consequences of a guilty plea. Frometa, at 93.
The Abraham court then went on to conclude that the consequence at issue in the case fell under the category of collateral consequences for which the Constitution did not require legal counsel. In a notable concurrence, Chief Justice Castille wrote separately to observe that the defendant in the case would not have been entitled to retroactive application of Padilla in any event. One justice dissented, arguing that Padilla did, indeed, do away with the distinction between collateral and direct consequences, and that the defendant did, in fact, receive ineffective assistance based on his attorney’s failure to advise him on the possibility that his pension would be forfeiting in light of his conviction.
The decision in Commonwealth v. Abraham can be downloaded here.
As we await the U.S. Supreme Court’s decision in Chaidez, we learn that the highest court in Florida has come out against retroactive application of Padilla. The case, which I have written about here and here, is Gabriel Hernandez v. State, SC11-941. Before reaching the question of Padilla retroactivity, however, the Hernandez court decided an issue that, if I correctly recall, appeared in one form or another in the Fourth Circuit’s recent decision in United States v. Akinsade (see my prior blog post); namely, whether a court’s admonishment at a plea proceeding regarding immigration consequences precludes a defendant from bringing a claim for ineffective assistance vis a vis Padilla. The Florida Supreme Court answered that question in the negative.
It is unlikely that Hernandez will be persuasive precedent in cases that originate outside of Florida. The court analyzed the Padilla retroactivity issue solely under Florida state law. And in marked contrast to the Chaidez case, the parties seemed to concede that Padilla represented a “new rule”, which meant that advocates of retroactive application had the tough task of convincing the court that Padilla represented, in the words of the Hernandez court, “a development of fundamental significance” — a standard that, at least in the federal realm, no decision has been able satisfy save for, perhaps, the decision in Gideon v. Wainwright.
The opinion in Hernandez 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.
Because of Hurricane Sandy, the oral arguments in the Chaidez case, which presents the question of whether Padilla can be applied retroactively, is scheduled to take place tomorrow, having been moved from Tuesday, the day on which they were originally set to take place.
I will post the transcript of the argument and my thoughts on it once I have had a chance to digest the proceedings.
The Justices of the U.S. Supreme Court have reconvened for yet another term and with Chaidez still pending before the Court, it comes as no surprise that the Court issued hold orders in several other cases concerning the retroactive application of Padilla v. Kentucky. As reported by the SCOTUS blog:
Diaz v. Wyoming, 11-9831, is our pivot between relists and holds, because it is formally a relist (it’s been distributed for both the September 24 and October 5 Conferences) but looks a heck of a lot like a routine hold for Chaidez v. United States, 11-820, the case seeking retroactive application of the holding in Padilla v. Kentucky that the failure to advise clients that pleading guilty to an offense will subject them to deportation constitutes ineffective assistance of counsel. (Disclaimer: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in Chaidez.) It is not immediately apparent to us how Diazdiffers materially from the slew of Chaidez holds discussed below, but something may have caught the Court’s eye. Insert puzzled emoticon.
It goes on further to discuss others cases, in addition to Diaz, which have received hold treatment from the Court in light of Chaidez:
Argument is still nearly a month away and already Chaidez v. United States, 11-820, appears to have yielded five holds: Poblete v. Arizona, 11-1381; Diaz-Palmerin v. United States, 11-1414; Alshaif v. North Carolina,11-10826; Shahly v. Florida, 11-9642; and Gaitan v. New Jersey, 11-10846. Plus, there’sDiaz v. Wyoming, 11-9831, the holdish relist described above. Like Chaidez, all these cases concern the potential retroactivity of Padilla.
Lastly, and this observation may be coming a bit late in the game, but I have been tracking Padilla-related decisions for some time, both because I need to for my own practice and because I want to for the benefit of my fellow practitioners and the public at large. In doing go, I have seen many courts, when faced with the Padilla retroactivity issue, decide not to address it but instead proceed to the merits on the petitioner’s Padilla ineffective assistance claim — especially, if doing so results in the denial of the petition at issue. This is wrong on several levels. It often denies the petitioner an opportunity to fully present his case on collateral review, which is almost always the first and last forum where he can present a claim of ineffective assistance, since the court generally issues its decision on the pleadings rather than on a fully developed factual record as was the case in Chaidez. And it is often contrary to the Supreme Court’s directive that “if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim.” Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (citation omitted). As I noted above, this issue will become moot once the Supreme Court answers the Padilla retroactivity question some time in the next year. But I cannot help but wonder how many otherwise meritorious requests for postconviction relief have been wrongly denied based on a court’s cursory review of the petitioner’s claim, when, what it could have done, was either decide the retroactivity question and only that question or, more preferably, hold off on deciding the petition entirely until the Supreme Court issues its decision in Chaidez.