Tag Archives: Retroactivity

Another post-Chaidez case: Chavarria v. United States

For those of you who are still following the Supreme Court’s decision in Padilla and its treatment by the lower courts, the Seventh Circuit recently issued a notable decision in which it might have put the final nail in the coffin of pre-Padilla claims.

The case is Chavarria v. United States, No. 11-3549 (7th Cir. decided Jan. 9, 2014).  There petitioner there relied mainly on pre-Padilla law as the reason why he should be entitled to post conviction relief.  His argument, which resembles one I have used, without success, in the past, was that even before Padilla, courts recognized ineffective assistance counsel claims for cases where a lawyer had affirmatively misadvised a client on the immigration consequences of a conviction; as opposed to when a lawyer gave no advice at all, which, everyone seems to agree, did not give rise to a claim of ineffective assistance until Padilla.

The Seventh Circuit made short work of this argument, however, and not in a way that benefitted the petitioner.  It noted that the distinction between affirmative misadvice and no advice was irrelevant because, until Padilla, the courts never recognized a Sixth Amendment, ineffective assistance claim based on a collateral consequence of a conviction like deportation.

The Seventh Circuit relied, ironically, on Padilla itself in arriving at this conclusion.  I say that because the petitioner sought relief on the exclusive basis of pre-Padilla law, which went entirely unaddressed by the Seventh Circuit.  Therefore, unless the Seventh Circuit was implying that Padilla, in essence, overruled all past precedent in which courts gave post conviction relief to individuals who had been deported in violation of their Sixth Amendment rights — and there are such cases out there, as even the Seventh Circuit acknowledged — I am not sure how I see the Seventh Circuit reached the result it did.  Nor can I see how Padilla could have overruled the decisions which preceded it which held in one form or fashion that an attorney can be liable for giving his client wrong advice about a conviction’s impact on his immigration status.  That would be a truly perverse result where the Supreme Court in Padilla came down on the side of post conviction relief.  The implied message of the decision in Chavarria, then, seems to be that in order to expand the universe of rights for one set of folks (those whose convictions became final after Padilla), the Supreme Court had to contract the universe of rights for another (those with  convictions that became final pre-Padilla).  That can’t be right, can it?  Or am I missing something?

I have copied and pasted the decision below since its fairly short.

JULIO CESAR CHAVARRIA, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

No. 11-3549.United States Court of Appeals, Seventh Circuit.

Argued October 1, 2013.Decided January 9, 2014.Before CUDAHY, RIPPLE, and HAMILTON, Circuit Judges.

CUDAHY, Circuit Judge.

This case involves an ineffective assistance of counsel claim concerning the effect of Chavarria’s guilty plea on his immigration status. Defendant Julio Cesar Chavarria, born in Mexico, became a legal permanent resident of the United States in 1982. In 2009, Chavarria was charged with, and pleaded guilty to, four counts of distributing cocaine.

One year later, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla imposed a duty on criminal attorneys to inform noncitizen clients of deportation risks stemming from plea agreements, and for the first time held that the Sixth Amendment supported ineffective assistance of counsel claims arising from legal advice, or the lack thereof, involving the prospect of deportation resulting from guilty pleas. See Chaidez v. United States, 132 S. Ct. 1103, 1110 (2012)(explaining the new Padilla rule). Chavarria then filed a pro se motion involving such a claim, pursuant to 28 U.S.C. § 2255.

Chavarria alleged that his criminal trial counsel responded to his deportation queries by indicating that Chavarria need not worry about deportation—specifically that “the attorney had checked with the Bureau of Immigration and Customs Enforcement . . . and they said they were not interested” in deporting him. Chavarria also alleged that his attorney had counseled him to defer to the cues of his attorney during questioning by the district court. In connection with his § 2255 motion, Chavarria filed a Petition to Stay Deportation Proceedings, but by the time counsel had been appointed for these motions, he had already been deported. The government subsequently sought to dismiss Chavarria’s § 2255 motion based, in part, on the contention that Padillaannounced a new rule not to be applied retroactively. The district court denied the government’s motion for dismissal, holding that the Padilla rule could be applied retroactively.

Shortly thereafter, we issued our opinion in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). The Chaidez majority concluded that Padilla was a new rule and not retroactive. In light of Chaidez, the district court vacated its ruling based on the retroactivity of Padilla, and dismissed Chavarria’s § 2255 motion.

Chavarria appealed, challenging both our decision in Chaidez, and the district court’s application of it here. After the government filed its response brief, the Supreme Court granted certiorari in Chaidez and subsequently affirmed. After Chaidez thus foreclosed Chavarria’s argument that Padilla was retroactive, he now argues thatChaidez distinguished between providing no advice (actionable under the Padillarule) and providing bad advice (actionable under pre-Padilla law).

 

I.

 

At the outset we briefly note that Chaidez foreclosed any argument that Padilla was retroactive, the original basis of Chavarria’s appeal. On collateral review, lacking retroactivity, we will look only to the state of the law at the time the conviction became final. For that reason, Chavarria originally argued that Padilla did not propound a new rule, but that it was merely another step in the evolution of ineffective assistance claims. However, the Supreme Court decided definitively that Padillaannounced a new rule, which was not retroactive, when it affirmed our decision inChaidez. Chaidez, 133 S. Ct. at 1105.

II.

His retroactivity argument gone, Chavarria now argues that under Padilla only failure to advise of immigration consequences constitutes ineffective assistance under the Sixth Amendment, but affirmative misadvice provides an alternative basis for a constitutional claim under pre-Padilla law.

This argument about affirmative misadvice is based on certain Chaidez language, which recognized precedent from three circuits holding that, pre-Padilla,misstatements about deportation could support an ineffective assistance claim.Chaidez, 133 S. Ct. at 1112 (“Those decisions [in three circuits] reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution.”). Thus, Chavarria argues that Padilla is irrelevant to Chavarria’s situation—because affirmative misrepresentations have long been subject to challenge under the test ofStrickland v. Washington, 466 U.S. 668 (1984).

Chavarria’s argument fails, first, because the distinction between affirmative misadvice and non-advice was not a relevant factor in Padilla. Second, the precedent, pre-Padilla, supporting the application of Strickland in this context is insufficient to satisfy Teague v. Lane. 489 U.S. 288, 301 (1989)(holding that to impart retroactivity, a rule must be supported by ample existing precedent).

A lawyer’s advice about matters not involving the “direct” consequences of a criminal conviction—collateral matters—is, in fact, irrelevant under the Sixth Amendment; such advice is categorically excluded from analysis as professionally incompetent, as measured by Strickland. Padilla departed from this direct-collateral distinction because of the “unique” nature of deportation. Padilla, 559 U.S. at 366. That case determined that “a lawyer’s advice (or non-advice)” should not be exempt from Sixth Amendment scrutiny without reference to the traditional distinction between direct and collateral consequences. Chaidez, 133 S. Ct. at 1110. Therefore, in its analysis, the Padilla majority was unconcerned with any distinction between affirmative misadvice and non-advice; because, until Padilla was decided, the Sixth Amendment did not apply to deportation matters at all. Id. (“It was Padilla that first rejected the categorical approach— and so made the Strickland test operative—when a criminal lawyer gives (or fails to give) advice about immigration consequences.”). Thus, regardless of how egregious the failure of counsel was if it dealt with immigration consequences, pre-Padilla, both the Sixth Amendment and the Strickland test were irrelevant.

The Chaidez majority jointly referred to both misadvice and non-advice throughout its opinion. There is no question that the majority understood that Padilla announced a new rule for all advice, or lack thereof, with respect to the consequences of a criminal conviction for immigration status. If taken out of context, language inChaidez offers some support for Chavarria’s argument, but that language is contradicted by a substantial amount of more specific language in the same opinion.See e.g., Chaidez, 133 S. Ct. at 1110 (referring jointly to scrutiny of a lawyer’s misadvice and “nonadvice”).

Ironically, Chavarria asks us to recognize a distinction between misadvice and non-advice, even though Padilla was itself about an affirmative misrepresentation. In fact, this distinction, which is thin on its own terms, fails on Padilla’s facts. Thus, Chavarria is essentially asking us to hold that Chaidez held that the Padilla rule is not retroactive except on Padilla’s own facts (which involved misadvice). In fact, thePadilla majority, in responding to the government’s argument to limit its holding, specifically discussed limiting its holding to only affirmative misadvice, but did not because of the posible absurd results. Padilla, 559 U.S. at 370-71. This discussion signals that the Padilla majority had no intent to exclude either affirmative misadvice or non-advice from the new rule it announced.

Finally, Chavarria relies on cases from three federal circuits to prove that the distinction between affirmative misadvice and the failure to advise, and a constitutional rule based on that distinction constitutes pre-Padilla precedent. Yet, under Teague, the rule sought by Chavarria must be dictated by existing precedent.Teague, 489 U.S. at 301. Chavarria cannot simply show the existence of such a distinction, but instead he must show that the distinction was so evident “that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world.”Chaidez, 133 S. Ct. 1112.

The Court supported this conclusion by reiterating the trend among the lower courts, which viewed such collateral deportation matters as beyond the reach of the Sixth Amendment. Id. at 1113. The Court stated, “[o]n those courts’ view, the Sixth Amendment no more demanded competent advice about a plea’s deportation consequences than it demanded competent representation in the deportation process itself. Padilla decided that view was wrong. But to repeat: it was Padilla that did so.” Id. The material misrepresentations that were upheld by those three circuits cannot support a constitutional rule to be applied retroactively, since an old rule is one “limited to those holdings so compelled by precedent that any contrary conclusion must be deemed unreasonable.” See Lambrix v. Singletary, 520 U.S. 518, 538 (1997). At the time Chavarria’s case became final, precedent did not dictate that preclusion of an ineffective assistance claim was unreasonable when it arose from an attorney’s material misrepresentation of a deportation risk. Thus, even if this Court were to find the misadvice/nonadvice distinction relevant to this analysis, it does not have the clear precedential weight to be considered a pre-Padilla rule.

The district court correctly concluded that it was bound by Chaidez and that Padillahad no retroactive effect on Chavarria’s case. Having determined that the distinction between affirmative misadvice and failure to advise does not somehow evade the non-retroactivity of Padilla, we AFFIRM.

Maryland and Padilla Retroactivity

The issue of Padilla retroactivity is not dead yet, well not entirely.  The Court of Appeals of Maryland, the State’s highest court, recently decided the case of Lincoln Miller v. State, No. 94, Sept. Term 2012.  In a 4-3 decision, the Court denied postconviction relief for a native of Belize based on a claim that he was not advised of the immigration consequences of his conviction.

The case has a long and convoluted procedural history which stems from the fact that it has been pending for a long time,  before the Supreme Court even decided Padilla.  It is not at all clear what the majority decides in this case aside from  ruling that the petitioner is not entitled to relief.  There’s discussion about Padilla retroactivity in light of Maryland and federal law (in a previous decision, the Maryland Court of Appeals held Padilla could be applied retroactively under the state’s retroactivity framework) but the majority opinions doesn’t make any inroads on the issue.    The dissent, in contrast, argues that Padilla should be applied retroactively under Maryland law.

The following concurrence by Judge McDonald is perhaps the best take on both the majority and dissent opinions:

I will explain why I join neither of the thoughtful opinions in this case, although it may simply reveal my own ignorance in this arena. I agree with the result reached by the Majority opinion, but do not follow its reasoning — it says it is not applying the Teague standard for retroactivity, but is compelled to follow the result in Chaidez,which was based on the Teague standard. The Dissent points that out and states quite clearly that it believes a different standard set forth in this Court’s Daughtrycase should be applied. But I do not grasp the distinction that the Dissent makes between the Daughtry standard and the Teague standard in reference to this case, particularly in that the Dissent relies on Justice Sotomayor’s dissent in Chaidez — a dissent that applied the Teague standard.

In the end, I find Justice Kagan’s analysis for the Chaidez majority persuasive and would apply it here, whether one views it an application of the Teague standard or another standard that operates similarly. That brings me to the same place as the Majority.

The full decision can be downloaded here.

 

End of a Chapter

I have written about the issue of Padilla retroactivity for some time and have in some respects made it the focus of this blog.  Since the Supreme Court answered the question in Chaidez v. United States — that Padilla does not apply retroactively — it is no surprise that I have had less to say, or at least, report on the matter.  Courts seem to have really given up on grappling with the issue in the wake of Chaidez even though the decision was a narrow one.

I should mention now that I have been engaged in my own efforts to convince a court to apply Padilla retroactively.  This effort began in earnest in 2011 and ended only recently, in the last month or so.  It was a pro bono effort on behalf of a federal habeas petitioner, which involved a number of very competent attorneys.  I will not bore you with details of the litigation, like when the court sua sponte rejected our appeal following the Chiadez decision, or how disappointed we all were when it came time to throw in the towel — a decision we resisted until the very end.  In today’s spectrum of “undesirables” it seems to me immigrants convicted of crimes fall somewhere between greedy bankers and unrepentant doping athletes.

This doesn’t mean Padilla retroactivity is dead in the water.  Quite the contrary.  As I have previously emphasized, the Court decided Chaidez on very narrow grounds and leaves room for an argument that Padilla should be applied retroactively to cases where an attorney has misadvised a client on immigration consequences, as opposed to ones where no advice was provided at all.  The Chaidez court never addressed the former because it was not asked to do so.  And Chaidez itself was a failure-to-advise case.  Those seeking postconviction relief, either on their own or with the help of an attorney, should make this argument and they should do it early and often.  Chaidez all but invites a future challenge to its scope and it would be irresponsible to turn that invitation away based on the flawed and lazy interpretations that courts have given Chaidez thus far.  It took a little less than three years from its decision in Padilla for the Court to decide Chaidez.  While it’s unlikely that the Court will revisit Chaidez in another three years — a relatively short time period to build the kind of groundswell that is required to successfully petition the Court — I think it likely that the Court will do so sooner or later.

Calm Before the Storm?

It has been almost four months since the Supreme Court decided Chaidez, and the courts have been mostly silent on how this decision applies to both pre- and post-Chaidez cases.  Granted, a number of courts have interpreted Chaidez expansively to foreclose any claim that seeks the retroactive benefit of Padilla.  But this surely is not the right result given Chaidez’s intentionally narrow holding, and there is at least one case that will be testing the correctness of this assertion.  Commonwealth v. Sylvain, No. SJC-11400 (Sup. Jud. Ct. of Mass.).  In any event, I have yet to see a flood of dismissals based on the one-size-fits-all theory of Chaidez; yet further proof that Padilla itself did not open the floodgates to claims of ineffective assistance, as Justice Stevens astutely observed would not be the case.  I wish I had more to report but I don’t.  If anyone wishes to share any Padilla/Chaidez-related news, please do.

U.S. Supreme Court Decides Chaidez; Padilla Not Retroactive

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.

Florida Supreme Court Rules Padilla Not Retroactive

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.  

Transcript of Oral Arguments in Chaidez Released

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.

SCOTUS Oral Argument in Chaidez v. United States Tomorrow

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.

Some Early Term Padilla-Activity in the Supreme Court And A Thought From Yours Truly

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. Wyoming11-9831, 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 States11-820, 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 States11-820, appears to have yielded five holds:  Poblete v. Arizona11-1381Diaz-Palmerin v. United States11-1414Alshaif v. North Carolina,11-10826Shahly v. Florida11-9642; and Gaitan v. New Jersey11-10846.  Plus, there’sDiaz v. Wyoming11-9831, 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.

Akinsade: Strickland Prejudice Survives District Court Admonishment

A helpful reader has reminded me that fans of Padilla retroactivity may want to know about the recent decision issued by the Fourth Circuit Court of Appeals in Akinsade v. United States, No. 09-7554.  Akinsade involved a Nigerian immigrant who sought coram nobis relief based on the failure of his counsel to correctly advise him on the immigration consequences of a plea to embezzlement.  The lawyer advised Akinsade that he could not be deported based on a plea to this charge, when, in fact, he could have been.  No dispute that this was ineffective assistance.  The controversy, however, had to do with whether the district court cured the prejudice which flowed from the attorney’s misadvice during its plea colloquy with Akinsade.  The Fourth Circuit answered in the negative, and in doing so, granted Akinsade coram nobis relief.

There are a few things to note about the Akinsade decision.  First, in finding that the District Court did not “cure” the prejudice which arose from counsel’s misadvice, the Fourth Circuit was careful to emphasize the different constitutional rights underpinning a guilty plea proceeding and the effective assistance of counsel in a criminal matter.  As the Fourth Circuit put it:

Our decision today does not change the role of or impose any new obligations on the district court in Rule 11 proceedings. A district court’s duty to ensure a knowing and voluntary plea arises from the Fifth Amendment’s guarantee of due process and thus affords defendants a right distinct from the Sixth Amendment right to effective assistance of counsel. While we have recognized the inter-relationship between the two amendments in the context of guilty pleas, see United States v. Smith, 640 F.3d 580, 582 (4th Cir. 2011), we have never suggested that the sufficient protection of one right automatically corrects any constitutional deficiency of the other. Indeed, the Supreme Court has rejected a very similar argument. See Missouri v. Frye, 566 U.S. ___ (2012) (slip op., at 5) (explaining that the Court in Padilla, 130 S. Ct. 1473 (2010),rejected the state’s argument that a knowing and voluntary plea supersedes defense counsel’s affirmative misadvice on deportation consequences). As a result, we in no way suggest that in performing its role during the proceeding, a district court needs to be “clairvoyant” or must “guess” about whether a defendant has been misinformed regarding a particular consequence of a plea. When, as here, the claim raised is that of ineffective assistance of counsel, the overall focus must be on the prejudice arising from counsel‘s deficient performance. If a district court’s admonishment so happens to correct the deficient performance then there is no prejudice; however, if there is no correction, then our scrutiny is not directed toward the district court but appropriately to the constitutional offender.

Second, the Fourth Circuit expressly declined to rule on the issue of whether Padilla applied retroactively to the petitioner’s claim since the Government acknowledged that the misadvice provided by counsel was constitutionally deficient.  In essence, this is not so much a Padilla case as it is a Strickland case.  Which lends some support to the notion that Padilla did not create a new rule for retroactivity purposes.

Third, the finding of prejudice by the Fourth Circuit is significant in that the court looked beyond the so-called likelihood of success at trial to the defendant’s desire to contest the Government’s case because of the severity of the consequences which might befall him should he be convicted.  As the Fourth Circuit put it:

Akinsade still must show that the misadvice is a “but for” cause of his entering the guilty plea. Under the prejudice prong of Strickland, “[t]he potential strength of the state’s case must inform our analysis, inasmuch as a reasonable defendant would surely take it into account.” Ostrander v. Green, 46 F.3d 347, 356 (4th Cir. 1995)(citing Hill, 474 U.S. at 59-60overruled on other grounds by O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996) (en banc). Applying this standard, we have held that counsel’s affirmative misadvice on collateral consequences to a guilty plea was prejudicial where the prosecution’s evidence “proved to be more than enough” for a guilty verdict but was “hardly invincible on its face.” Ostrander, 46 F.3d at 356. We have further found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the United States and thus would reasonably risk going to trial instead of pleading guilty and facing certain deportation. United States v. Gajendragadkar, No. 97-7267, 1998 WL 352866, at *2 (4th Cir. June 3, 1998). In Gajendragadkar we reasoned that “[a]lthough a trial would present the risk of deportation, it would provide [the defendant] the opportunity to contest the Government’s evidence, or failing that, to challenge the Government’s estimate loss.” Id.

The decision can be downloaded here.