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.