I have written about the issue of Padilla retroactivity for some time and have in some respects made it the focus of this blog. Since the Supreme Court answered the question in Chaidez v. United States — that Padilla does not apply retroactively — it is no surprise that I have had less to say, or at least, report on the matter. Courts seem to have really given up on grappling with the issue in the wake of Chaidez even though the decision was a narrow one.
I should mention now that I have been engaged in my own efforts to convince a court to apply Padilla retroactively. This effort began in earnest in 2011 and ended only recently, in the last month or so. It was a pro bono effort on behalf of a federal habeas petitioner, which involved a number of very competent attorneys. I will not bore you with details of the litigation, like when the court sua sponte rejected our appeal following the Chiadez decision, or how disappointed we all were when it came time to throw in the towel — a decision we resisted until the very end. In today’s spectrum of “undesirables” it seems to me immigrants convicted of crimes fall somewhere between greedy bankers and unrepentant doping athletes.
This doesn’t mean Padilla retroactivity is dead in the water. Quite the contrary. As I have previously emphasized, the Court decided Chaidez on very narrow grounds and leaves room for an argument that Padilla should be applied retroactively to cases where an attorney has misadvised a client on immigration consequences, as opposed to ones where no advice was provided at all. The Chaidez court never addressed the former because it was not asked to do so. And Chaidez itself was a failure-to-advise case. Those seeking postconviction relief, either on their own or with the help of an attorney, should make this argument and they should do it early and often. Chaidez all but invites a future challenge to its scope and it would be irresponsible to turn that invitation away based on the flawed and lazy interpretations that courts have given Chaidez thus far. It took a little less than three years from its decision in Padilla for the Court to decide Chaidez. While it’s unlikely that the Court will revisit Chaidez in another three years — a relatively short time period to build the kind of groundswell that is required to successfully petition the Court — I think it likely that the Court will do so sooner or later.