The Supreme Court will determine this Friday whether to grant certiorari in the Chaidez matter, the case in which the Seventh Circuit held that Padilla does not apply retroactively. Presumably there is already a pool memo floating around the Court in which a clerk has made a recommendation as to whether cert. should be granted. The Government has already made up its mind, however, having informed the Court that it agrees with the Petitioner (Chaidez) that cert. should be granted to resolve the Padilla retroactivity issue.
Aside from Chaidez, it will be interesting to see how many cert. petitions now pending before the Court will be “held” by the Court for “GVR” (grant, vacate and remand) treatment in light of its decision in Chaidez — assuming, of course, the Court does grant cert. on Friday. It will also be interesting to see if Justice Kagan will have to recuse herself because, perhaps, she might have represented the Government back when the Padilla case was before the Court (the Government filed an amicus brief in Padilla urging the Court to affirm the Supreme Court of Kentucky; yet another example of the current administration’s cramped and antagonistic view of immigrants’ rights ). Should Justice Kagan have to recuse herself, there is a very real possibility that the Court may deadlock on the retroactivity issue, in which case the Seventh Circuit’s decision would be affirmed. Not a good scenario for immigrants or their counsel. The unlikely savior in such a situation may be the Chief Justice, however. I say this only because the Chief Justice has indicated recently a discomfort with the Court’s rightward trajectory, not to mention the fact that he joined the majority in Vartelas, the Court’s recent decision which, in effect, limited the applicability of the draconian anti-immigrant legislation that is the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009-546.
For those who are interested in reading the cert. materials in Chaidez, they are available here via the SCOTUS blog website.
Thanks to those who visited Invisible Man in 2011. I hope this blog has been of use to some. The issue of Padila retroactivity, to which I have devoted a lot of my blogging, is still percolating throughout the courts and remains very much a hot topic among criminal defense and immigration law attorneys, especially those who toil in the trenches of postconviction litigation. For 2012, I predict that the U.S. Supreme Court will finally step in to decide the issue of Padilla retroactivity, with a decision due in late 2012 or early 2013. I believe the Court will find Padilla retroactively applicable (how could I predict otherwise?!) and Justice Kennedy will write the decision for the majority, although Justice Alito will, in one way or another, be key in shaping the contours of the Court’s ruling on Padilla retroactivity.
WordPress.com has provided me with a year end report for 2011, which I have posted below for everyone’s reference.
Thank you all again for taking time out to visit the Invisible Man. I look forward to another year of blogging on Padilla and other issues.
The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.
Here’s an excerpt:
The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 9,400 times in 2011. If it were a concert at Sydney Opera House, it would take about 3 sold-out performances for that many people to see it.
Click here to see the complete report.
Followers of Padilla retroactivity might be disappointed to hear that the U.S. Supreme Court denied cert. today in Morris v. Virginia, the first case to present the question of whether Padilla qualified for retroactive application. The decision denying cert. can be found on page 15 of the Court’s order list from 10/3/2011.
This ruling should come as no surprise, however. The Virginia Supreme Court in Morris never really addressed the Padilla retroactivity question head on, if at all, and the issue is still percolating throughout the federal and state courts.
As to the latter, a helpful reader has informed me that the Eleventh Circuit Court of Appeals will soon rule on the Padilla retroactivity issue. The case is United States v. Marisella Carmen-Iglesias (Case No. 11-12316) from the Southern District of Florida. I will post the briefs and provide updates as they become available.
UPDATE: the “helpful reader” who alerted me to the Carmen-Iglesias case in the Eleventh Circuit was nice enough to send me the appellate briefs. The Government’s brief can be found here, the appellant’s/defendant’s here.
The National Immigration Project of the National Lawyer’s Guild has recently issued a Practice Advisory on the retroactive applicability of Padilla v. Kentucky. It concludes that Padilla should be applied retroactively by the lower courts because it does NOT create a new rule of criminal constitutional law. The practice advisory can be downloaded here.
Also, a recent decision from Judge Seybert in the Eastern District of New York touches upon but does not decide the issue of retroactive applicability of Padilla — she assumes for the sake of argument that it does apply retroactively and then goes on to reject his Padilla claim on the merits. The case is United States v. Obonaga (E.D.N.Y. June 24, 2010) and can be accessed via Google Scholar here.
Last week the U.S. Supreme Court handed down a significant decision in Padilla v. Kentucky written by Justice Stevens, which held that criminal defense attorneys must now advise their clients of the immigration consequences of a criminal conviction. Prior to this ruling, most state and federal courts scoffed at such a requirement, chastising counsel only when he or she misadvised a client about whether the risk of deportation posed by a conviction. One upshot of those decisions was the encouragement of counsel, particularly the uncaring and lackadaisical ones, to remain silent when it came to the point of a case where the worlds of criminal procedure and immigration law intersected. After Padilla, that will no longer be the case. And, it is, of course, too early to tell whether the post-Padilla regime will result in better representation for clients.
What I am puzzled about is whether the rule announced in Padilla will have any retroactive effect as to convictions that became final after the Court decided Padilla, particularly in postconviction/collateral proceedings. An initial review of Justice O’Connor’s seminal decision in Teague v. Lane brings me to the conclusion that Padilla could NOT be applied retroactively even with reference to Justice Harlan’s “ordered liberty” exception, i.e., that the rule announced in Padilla would be “the kind of absolute prerequisite to[a trial's] fundamental fairness that is “implicit in the concept of ordered liberty.” “
For those postconviction/criminal procedure gurus who may happen to stumble across this blog entry, I would greatly appreciate your collective thoughts on this issue.
Ronald Dworkin has a great piece in this week’s New York Review of Books on the Sotomayor confirmation hearings. In it he criticizes the modern myth that judges are only supposed to apply the law rather than make “controversial judgements of political morality” – a point that I have made in the past.
Here is an excerpt from the article:
Sadly, practically everyone concerned in judicial confirmation hearings—senators and nominees—has an overriding interest in embracing the myth that judges’ own political principles are irrelevant. Sotomayor was, of course, well advised to embrace that myth. Her initial statement, and her constant repetition of it, made her confirmation absolutely certain; she could lose the great prize only by a candor she had no reason to display. She was faced by a group of Republican senators who had no interest in exploring genuine constitutional issues but wanted only to score political points, if possible by embarrassing her but in any case to preen before their constituents. They scoured her record of extrajudicial speeches for any sign that she actually doubts the myth so they could declare her a hypocrite who is not faithful to the law after all.
Democratic senators had no wish to challenge the myth either. They only wanted to protect her from questions that might supply ammunition to her opponents, so they offered her endless opportunities to repeat her empty promise to follow the law. Only President Obama, in a remarkably candid statement, seemed to challenge the myth. The law, he said, decides 95 percent of the cases but that leaves 5 percent to be decided in the judge’s “heart.” Senator Jon Kyl of Arizona asked Sotomayor if she agreed with Obama on this point. No, she roundly declared, I do not.
So the minuet was choreographed, and any illumination ruled out, before the hearings began. Both supporting and opposition senators asked Sotomayor whether she approved of recent Supreme Court decisions they believe of particular concern to their constituents: about abortion, of course, but also gun control, the president’s power to defy Congress, his power to detain suspected terrorists indefinitely, and the permissibility of a city taking private property for private development. They wanted to be seen as knowledgeable and concerned by what worried voters.
You can find the entire article here.
The Tampa Tribune picked up a story of a memorandum recently circulated within the Tampa Police Department that provides guidelines for officers looking to skirt the protections of Miranda v. Arizona and its familiar set of warnings. Opponents of the new policy have blasted the Tampa PD, calling it a recipe for violating constitutional rights, while the police describe it as a necessary tool to aid in the investigation of crimes. In case you’re wondering, here are some of the suggestions offered in the memorandum as to how police could seek to elicit incriminating statements, Miranda or no Miranda:
•The Miranda warnings must be given at the outset.
•There must have been a sufficient lapse of time between the invocation of the right to remain silent and the resumption of questioning; two hours is enough, perhaps less.
•The second round of questioning should be at a different location/setting.
•The second round of questioning must concern different crime(s).
According to the story, the memo was written in response to a recent Supreme Court decision, which was not named but is mostly likely the one in Kansas v. Ventris. In Ventris, the Supreme Court ruled that the prosecution may use statements elicited by the police from a defendant for impeachment purposes, i.e., to undermine his credibility ever after the defendant he has invoked his right to counsel. Scott Greenfield over at Simple Justice had a nice take on the decision which it was first issued.
I am doubtful the new policy being implemented by the Tampa police will actually result in more closed cases. Such legally dubious tactics rarely do. What I am fairly certain of, however, is that Tampa defense attorneys will challenge police-initiated interrogations, and the resulting statements, with more frequency, which, in turn, will lead to more litigation and longer delays for criminal defendants looking to have their cases resolved.
The Times’ Adam Liptak continues his exceptional reporting with a column today on the impact of the Supreme Court’s decision in Iqbal v. Hasty. Here is an excerpt:
The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.
“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”
Note those words: Plausible. Common sense.
The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.
In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.
“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”
Liptak also quotes Justice Souter dissenting from the majority’s decision in Iqbal. What he does not mention, however, is that Souter had authored the opinion that really gave birth to this new “plausibility” standard: Bell Atlantic Corp. v. Twombly. Whether Souter envisioned when writing Twombly that his opinion would one day be interpreted by his colleagues to impose an even stricter standard of pleading and thus make it harder for plaintiffs to have their claims heard by a jury will probably remain a mystery. There is little doubt, however, that Souter was kicking himself in Iqbal for having had a hand in that process.
The full story can be found here.