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.
According to the analysis clerk, the cert order will issue Monday, after 10am EST.
Earlier today, the Court issued an order list in which it granted certiorari in one case and denied certiorari in about 125 cases.
Chaidez v. United States, 11-802. At issue is whether the Court’s holding in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their counsel fail to advise them that pleading guilty to an offense will subject them to deportation applies retroactively to persons whose convictions became final before Padilla was announced. The Third Circuit, applying Teague v. Lane, 489 U.S. 288 (1989), held that Padilla announced a new rule and therefore does not apply retroactively.
Thank you Tom for the update. I have not had time to update the blog with this development but plan to do so soon. If anyone has any thoughts on the granting of cert. in Chaidez, please feel free to share them here. The order list in which the Court granted cert. in Chaidez can be downloaded here.