From the Eastern District of Michigan comes a decision by Judge Denise Hood finding that Padilla cannot be applied retroactively. The case is United States v. Shafeek, Criminal Case No. 05-81129, Civil Case No. No. 10-12670 (E.D. Mich. Sept. 22, 2010). Opinion courtesy of Google Scholar here.
The wrinkle, however, is that she reaches this conclusion despite having concluded in the same decision that the Supreme Court’s decision in Padilla did NOT announce a “new rule” for retroactivity purposes. From the Shafeek decision:
Given the Supreme Court’s opinion in Padilla, it appears that the rule announced is not a “new rule” regarding a defense counsel’s duty to, at the minium, advise a client of a risk of adverse immigration consequences. The Padilla decision turned on the fact that the defense counsel could have easily determined from reading the removal statute that defendant’s deportation “was presumptively mandatory” and that his counsel’s advice to the contrary was incorrect. Id. Because the Padilla opinion may not be considered a “new rule,” Shafeek cannot show that the Padilla opinion should be applied retroactively.
Huh? It has been my understanding that under the Supreme Court’s seminal decision in Teague v. Lane on retroactivity in cases pending on collateral review, only “new rules” are barred from retroactive application unless they fall within one of two exceptions. The upshot, of course, is that rules that are not considered “new” under the Teague analysis should be applied retroactively. Such was the conclusion by the court in Chaidez which concluded, correctly in my opinion, that because Padilla was not a “new rule” it could be applied retroactively. See United States v. Chaidez (“Accordingly, the court holds that Padilla did not announce a new rule for Teague purposes and affirms its earlier opinion that no retroactivity problem is raised by petitioner’s claim”).
Am I missing something here?