After the Supreme Court announced its decisions in the Frye and Lafler cases, the news media, if I recall correctly, promptly declared it the dawn of a new era — one that meant significant new protections for the criminal defendant. Some even went so far as to call the decisions in Frye and Lafler the “new Gideon”.
Not so says the Eleventh Circuit, at least when it comes to new rule, retroactivity. In In re: Michael Perez, No. 12-12240, the Eleventh Circuit rejected the notion that Frye and Lafler (ineffective assistance applies to plea bargaining) announced “new rules” within the meaning of Teague’s retroactivity framework, and held, instead, that the decisions were “merely an application of the Sixth Amendment’s right to counsel, as defined in Strickland, to a specific factual context.” The court’s rejection of “new rule” status for Frye and Lafler makes it harder for one to argue that these decisions revolutionized the practice of criminal defense. And, it adds weight to the argument that no such revolution took hold when the Supreme Court announced a similar, Strickland-based decision in Padilla v. Kentucky. Simply put, if Frye and Lafler did not announce a new rule under Teague, Padilla, surely, could not have done so.
It will be interesting to see if a similar Circuit-split develops with respect to the retroactive effect of Frye and Lafler, and how such rulings might affect the present controversy over Padilla retroactivity. Might the Supreme Court take note of the Eleventh Circuit’s ruling in Perez in deciding Chaidez? Perhaps. Especially if asked to by counsel.
The opinion in In re: Michael Perez can be downloaded here.