Category Archives: Criminal Procedure

A Right Without A Remedy (Again?)

In a notable Padilla-related decision, the Eleventh Circuit today ruled that Padilla   does not constitute a “watershed”rule of criminal procedure such that it does not cure an otherwise untimely section 2255 habeas petition.  The case is Figuereo-Sanchez v. United States, No. 10-14235 (11th Cir. May 1, 2012).  Judge Carnes wrote a unanimous decision for the three-judge panel (the other two judges being  Beverly Martin and Adalberto Jordan).

It is important to note that in concluding that Padilla did not constitute a “watershed” rule of criminal procedure, the Eleventh Circuit assumed but expressly declined to decide that Padilla was a “new rule” for Teague retroactivity purposes.  It was able to do so, in part, because both parties agreed that Padilla was a new rule under Teague.  Accordingly, those who wish to argue before a court in the Eleventh Circuit that Padilla can be applied retroactively because it is NOT a new rule can still do so without worrying too much about contrary authority.  Indeed, the Eleventh Circuit seemed to leave the door open for a Padilla old rule argument in footnote 4 of the opinion in which the court noted, “If the decision merely clarified an old rule, then the decision applies retroactively.” (citing Williams, 529 U.S. 362, 392 … (“[I]t can hardly be said that recognizing the right to effective assistance of counsel breaks new ground or imposes a new obligation on the states.”) (quotation marks omitted).

The end result is an unfortunate one for the petitioner, however, since he prevailed in the first half of his appeal — the Court of Appeals found the trial court erred when it failed to give the petitioner so-called “Castro” warnings before it recharacterized his pleadings as a 2255 petition — but lost on timeliness grounds.

The opinion can be downloaded here.

Slow And Steady Wins the Race

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.

Update on Padilla Retroactivity

Hard to believe we are already in March and quickly closing in on April of 2012.  The biggest news thus far on the Padilla retroactivity front, and most followers of the issue have presumably already read about this, is the decision by the New Jersey Supreme Court in the Gaitan matter which held that Padilla announced a “new rule” and therefore could not be applied retroactively.  Two justices dissented, arguing that Padilla could be applied retroactively.  Here in the Eleventh Circuit, where I practice, the Court of Appeals has come close to but, for one reason or another, has avoided deciding the question of whether Padilla can be applied retroactively.  Just as well since the Supreme Court may still decide the issue, if not this term, then perhaps the next one.  In fact, the  attorneys in the Chaidez matter — the case before the Supreme Court which presents the issue of Padilla retroactivity — are still briefing the issue of whether the Supreme Court should grant cert. in that case.  The Government’s response to the petition for cert. is due on March 30th.

Since we’re on the subject of the Supreme Court, mention should be made of its two decisions issued this past week, Frye and Lafler, concerning the constitutional duty of a lawyer when representing a client during plea bargain proceedings.  I cannot comment substantively on the decision since I have yet to read them.  However, it has been interesting to see how the decisions have been covered by the media, with some proclaiming them the biggest development since Gideon in terms of enhancing the constitutional rights of criminal defendants.  Not to mention the equally superlative observations, made by the justices themselves, among others, that Lafler and Frye will create a flood of litigation in the courts in which prisoners and ex-offenders will seek to undo a plea on the allegation that the attorney mucked up the plea bargaining process.  I do not believe that the predictions inherent in either of these claims will become reality as litigants and, in turn, the courts, make their way through this latest thicket of constitutional jurisprudence.  For one, it is the rare case that sharply split decisions, as Frye and Lafler certainly were, are interpreted by the lower courts as creating the kind of monumental shift or constitutional mandate that come with decisions involving greater judicial unanimity.  Not that a 5-4 decision can never establish a bedrock principle of constitutional law.  Look at Miranda v. Arizona for example, a sharply split decision that has gone on to become an almost indelible component of modern criminal procedure, despite many, with some nearly successful (i.e., Dickerson), challenges to its viability.  My fear, however, is that, in light of the love fest surrounding Frye and Lafler, the pushback against those cases by those who disagree with their core holdings may result not only in their demise as good law but also roll back what few constitutional rights criminal defendants had before Frye and Lafler became law.  I hope that will not be the case, but I am wary.  One thing courts fear more than criminals not serving enough time behind bars for their misdeeds is the prospect of having to entertain requests for postconviction relief by those criminals, a very likely scenario if one is believe the detractors and even the supporters of the Frye and Lafler decisions.

Padilla in 2012 Thus Far

I apologize for the lack of Padilla related posts since the New Year.  There simply wasn’t much to report, perhaps due to the holidays.  This has changed some of late, and courts have been issuing opinions discussing both Padilla retroactivity and Padilla ineffectiveness.  As to the former, however, district courts seem to realize that the question of whether Padilla applies retroactively is one that, sooner or later, will be decided by the Supreme Court.  And they have acted accordingly, either skirting the issue entirely or ruling on it but with little analysis.  As to the latter question of what constitutes ineffective assistance of counsel under Padilla, the fight has mostly been over when a postconviction litigant establishes that he or she has been prejudiced by counsel’s unconstitutional performance — that is, given that counsel was ineffective, would it have been rational for a defense to opt for trial had he or she been given the advice that Padilla required, i.e., that your conviction will result in adverse immigration consequences and this is why.  In this respect, courts have been been split as to whether the decision to go to trial should be based on one’s likelihood of success in prevailing at trial, i.e., lack of evidence of inculpatory evidence and the availability of viable defenses, or on one’s determination to “fight to the death” so he or she could avoid potential deportation that would certainly come with a criminal conviction. The Third Circuit adopted the latter test for Padilla prejudice in its landmark decision in Orocio.

Without further ado, I offer here, cites to a few recent decisions which consider the above issue with varying outcomes:

Pilla v. United States, No. 10-4178 (6th Cir. Feb. 6, 2012) (defendant failed to establish prejudice under Padilla because of “overwhelming evidence of her guilt”).

McNeill v. United States, No. A-11-CA-495 SS, (W.D. Tex.  Feb. 2, 2012) (finding Padilla retroactive but denying relief because counsel was not ineffective and even if he were petitioner failed to establish prejudice)

United States v. Fajardo, No. 10-CV-1978, (M.D. Fla. Jan. 26, 2012) (finding Padilla not retroactively applicable after detailed Teague v. Lane analysis)

Yau v. United States, 11 C 8462 (N.D. Ill. Jan. 26, 2012) (granting 2255 petitioner an evidentiary hearing on Padilla claim after finding a sufficient threshold showing of prejudice where it would have been “rational under the circumstances for [the petitioner] to reject the plea agreement and go to trial had he known of the immigration consequences“) (emphasis added).

The decision in the cases cited above should be available on Google Scholar.  If not, please feel free to email me and I will send you the decision.

 

 

UPDATED: Gaitan (NJ Supreme Court) Oral Arguments Webcast

The November 9th oral arguments before the New Jersey Supreme Court in State v. Gaitan, which presents the issue of whether Padilla can be applied retroactively, is now available for viewing online.  Note that Mac users might have trouble playing the webcast.

UPDATE: I found that it wasn’t easy playing the webcast on a PC either.  For those who have had trouble doing so, I would recommend the following procedure: copy the link for the Gaitan webcast (not the one on this blog post, but the one on the webpage to which it directs you under the Gaitan case) and paste it directly into Windows Media Player (from WMP, click on File then Open URL).

Split Decisions

Just a quick note that the Third and Tenth Circuit Court of Appeals denied petitions for rehearing in their respective cases dealing with Padilla retroactivity. It is notable that the denial in the Third Circuit came at the expense of the Government, which lost on appeal in seeking to block retroactive application of Padilla.

The Seventh Circuit is still considering whether to rehear its Padilla retroactivity case (Chaidez) and has asked for a response from the Government on the appellant’s request for rehearing.

Cert. Denied in Morris v. Virginia – UPDATED

Followers of Padilla retroactivity might be disappointed to hear that the U.S. Supreme Court denied cert. today in Morris v. Virginia, the first case to present the question of whether Padilla qualified for retroactive application.  The decision denying cert. can be found on page 15 of the Court’s order list from 10/3/2011.

This ruling should come as no surprise, however.  The Virginia Supreme Court in Morris never really addressed the Padilla retroactivity question head on, if at all, and the issue is still percolating throughout the federal and state courts.

As to the latter, a helpful reader has informed me that the Eleventh Circuit Court of Appeals will soon rule on the Padilla retroactivity issue.  The case is United States v. Marisella Carmen-Iglesias (Case No. 11-12316) from the Southern District of Florida.  I will post the briefs and provide updates as they become available.

UPDATE: the “helpful reader” who alerted me to the Carmen-Iglesias case in the Eleventh Circuit was nice enough to send me the appellate briefs.  The Government’s brief can be found here, the appellant’s/defendant’s here.

Not the Last Word

Just a heads up that the losing parties in the three federal appellate court cases that dealt with Padilla retroactivity — Chaidez (7th Cir. — Padilla no retroactive), Chang Hong (7th Cir. — same) and Orocio (3d Cir. — Padilla retroactive) — have all signaled that they will be seeking en banc rehearings.  Also of note is that lawyers from the National Immigrant Justice Center have entered appearances on behalf of defendant in the Chaidez matter.  That will surely be one to watch.

Over in sovereign state territory, the two cases dealing with Padilla retroactivity that are pending before the New Jersey Supreme Court (State v. Frensel Gaitan) and the Florida Supreme Court (State v. Gabriel Hernandez) are just that, still pending.  I will post updates as they become available.

 

Seventh and Tenth Circuits Rule on Padilla Retroactivity

I apologize again for the delay in posting.  Things have been hectic around here, both work-wise and life-wise.  For those of you who follow developments with Padilla retroactivity, this is probably old news.  But the Seventh and Tenth Circuits have recently issued opinions holding that Padilla cannot be applied retroactively.  Notably, the Seventh Circuit reversed Judge Gotschall’s groundbreaking decision in Chaidez which has been covered extensively in this blog.  (See posts here and here.)  The case from the Tenth Circuit is United States v. Chang Hong (Case No. 10-6294) and was an appeal from a denial of a 2255 habeas petition.  Of note in Hong is that the petitioner there argued that Padilla is a new rule so he could extend the statute of limitations for his habeas claim; his petition was otherwise untimely.

I will have more to say about both decisions soon.  Meanwhile, the opinion in Chaidez (including a persuasive dissent) is here, the one in Hong, here.

Meanwhile, it will be interesting to see how these rulings will affect the application for writ of certiorari in Morris (post here) that is currently pending in the Supreme Court on Padilla retroactivity.  Will anyone of the losing parties in Chaidez and Hong also appeal to the Supreme Court?  If so, which case presents the more ideal vehicle for (a) getting cert granted and (b) reversing the appellate decision on Padilla retroactivity?

Padilla Retroactivity in SCOTUS?

A few months ago, I wrote about the Virginia Supreme Court’s decision in Commonwealth v. Morris, limiting the procedural vehicles from which a defendant could launch a postconviction challenge under Padilla.  This decision generated some controversy after lower court judges refused to abide by the Morris court’s ruling and continued to entertain Padilla claims raised in the rather esoteric motions that were at issue in Morris.

Thanks to the SCOTUS blog, we have learned that Morris has appealed this decision to the U.S. Supreme Court.  The questions presented are as follows:

(1) Whether Padilla v. Kentucky applies retroactively to ineffective assistance of counsel claims raised on collateral review; and

(2) whether Virginia provides adequate postconviction remedies when petitioner and others similarly situated are precluded from vindicating violations of the right to effective assistance of counsel under Padilla.

Morris (the petitioner) is being represented by the law firm, Duane Morris.  The petition can be accessed here.  I will post Virginia’s response as it becomes available.