The Justices of the U.S. Supreme Court have reconvened for yet another term and with Chaidez still pending before the Court, it comes as no surprise that the Court issued hold orders in several other cases concerning the retroactive application of Padilla v. Kentucky. As reported by the SCOTUS blog:
Diaz v. Wyoming, 11-9831, is our pivot between relists and holds, because it is formally a relist (it’s been distributed for both the September 24 and October 5 Conferences) but looks a heck of a lot like a routine hold for Chaidez v. United States, 11-820, the case seeking retroactive application of the holding in Padilla v. Kentucky that the failure to advise clients that pleading guilty to an offense will subject them to deportation constitutes ineffective assistance of counsel. (Disclaimer: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in Chaidez.) It is not immediately apparent to us how Diazdiffers materially from the slew of Chaidez holds discussed below, but something may have caught the Court’s eye. Insert puzzled emoticon.
It goes on further to discuss others cases, in addition to Diaz, which have received hold treatment from the Court in light of Chaidez:
Argument is still nearly a month away and already Chaidez v. United States, 11-820, appears to have yielded five holds: Poblete v. Arizona, 11-1381; Diaz-Palmerin v. United States, 11-1414; Alshaif v. North Carolina,11-10826; Shahly v. Florida, 11-9642; and Gaitan v. New Jersey, 11-10846. Plus, there’sDiaz v. Wyoming, 11-9831, the holdish relist described above. Like Chaidez, all these cases concern the potential retroactivity of Padilla.
Lastly, and this observation may be coming a bit late in the game, but I have been tracking Padilla-related decisions for some time, both because I need to for my own practice and because I want to for the benefit of my fellow practitioners and the public at large. In doing go, I have seen many courts, when faced with the Padilla retroactivity issue, decide not to address it but instead proceed to the merits on the petitioner’s Padilla ineffective assistance claim — especially, if doing so results in the denial of the petition at issue. This is wrong on several levels. It often denies the petitioner an opportunity to fully present his case on collateral review, which is almost always the first and last forum where he can present a claim of ineffective assistance, since the court generally issues its decision on the pleadings rather than on a fully developed factual record as was the case in Chaidez. And it is often contrary to the Supreme Court’s directive that “if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim.” Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (citation omitted). As I noted above, this issue will become moot once the Supreme Court answers the Padilla retroactivity question some time in the next year. But I cannot help but wonder how many otherwise meritorious requests for postconviction relief have been wrongly denied based on a court’s cursory review of the petitioner’s claim, when, what it could have done, was either decide the retroactivity question and only that question or, more preferably, hold off on deciding the petition entirely until the Supreme Court issues its decision in Chaidez.