Category Archives: Immigration Law

New Paper on Padilla Retroactivity

Courtesy of Doug Berman over at Sentencing Law and Policy: Gray Proctor and criminal procedure guru, Nancy King, have jointly authored an article entitled Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts.  The article can be accessed here.

From the preamble:

This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment. Issues addressed include: express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; and other collateral relief. This draft includes citations to emerging case authority available as of October 28, 2010.

More Padilla Retroactivity

I have been researching Padilla-related caselaw for an upcoming CLE presentation and came across another decision in which Padilla is found to have no retroactivity bar.  The case is Martin v. United States, Case No. 09-1387 (C.D. Ill. Aug. 25, 2010) and the judge in Michael Mihm.  The decision can be accessed here via Google Scholar.

From Martin:

[A]t the time Martin plead guilty and was sentenced, Santos and George remained binding upon the issue of whether counsel’s alleged failure to inform a defendant of the possible immigration consequences of a guilty plea amounted to ineffective assistance of counsel. The Government contends that Padilla v. Kentucky announced a new rule of criminal procedure that does not apply retroactively to cases on collateral review. See Teague v. Lane, 489 U.S. 288, 309-10 (1989) (stating that “[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality . . .” and holding that “[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to cases on collateral review which have become final before the new rules are announced”).

A “new rule” under Teague is one that “breaks new ground or imposes a new obligation on the States or the Federal Government.” Teague, 489 U.S. at 301; see also Butler v. McKellar, 494 U.S. 407, 412 (1990). In Padilla v. Kentucky, the Supreme Court considered the first prong of Strickland and discussed how prevailing professional norms suggest that counsel advise their clients of the possible deportation risks following a guilty plea. 130 S.Ct. at 1482. The Supreme Court also rejected the position that its holding should be limited to affirmative misadvice of counsel, noting that it is the “critical obligation of counsel to advise the client of `the advantages and disadvantages of a plea agreement.'” Id. at 1484 (citing Libretti v. United States, 516 U.S. 29, 50-51 (1995)). The Padilla case likely did not break new ground or impose new obligations given the Supreme Court’s emphasis on Strickland, prevailing professional norms, and the “long recognized” importance of the plea negotiation phase. Id. at 1482-86; see also Osagiede v. United States, 543 F.3d 399, 408 n. 4 (7th Cir. 2008) (explaining that Teague presented no problem in a case where the defendant argued ineffective assistance of counsel for a Vienna Convention Article 36 violation because “counsel’s duty to know the applicable law, at least when it matters to his client’s defense, has been clearly established by Strickland and its progeny”). Padilla v. Kentucky therefore applies to Martin’s claim of ineffective assistance of counsel for his counsel’s alleged failure to fully inform him of the possible immigration consequences of his guilty plea.

As you can see, for whatever reason, the Martin court’s retroactivity analysis is rather limited.  Nevertheless, it makes clear that Padilla did not create a new rule and therefore is applicable to final convictions which predated the date of the Padilla decision.

Now can someone explain to me how to square this holding with the one in Shafeek?!  See my prior blog post for more details.

Padilla Retroactivity Confusion

From the Eastern District of Michigan comes a decision by Judge Denise Hood finding that Padilla cannot be applied retroactively.  The case is United States v. Shafeek, Criminal Case No. 05-81129, Civil Case No. No. 10-12670 (E.D. Mich. Sept. 22, 2010).  Opinion courtesy of Google Scholar here.

The wrinkle, however, is that she reaches this conclusion despite having concluded in the same decision that the Supreme Court’s decision in Padilla did NOT announce a “new rule” for retroactivity purposes.  From the Shafeek decision:

Given the Supreme Court’s opinion in Padilla, it appears that the rule announced is not a “new rule” regarding a defense counsel’s duty to, at the minium, advise a client of a risk of adverse immigration consequences. The Padilla decision turned on the fact that the defense counsel could have easily determined from reading the removal statute that defendant’s deportation “was presumptively mandatory” and that his counsel’s advice to the contrary was incorrect. Id. Because the Padilla opinion may not be considered a “new rule,” Shafeek cannot show that the Padilla opinion should be applied retroactively.

Huh?  It has been my understanding that under the Supreme Court’s seminal decision in Teague v. Lane on retroactivity in cases pending on collateral review, only “new rules” are barred from retroactive application unless they fall within one of two exceptions.  The upshot, of course, is that rules that are not considered “new” under the Teague analysis should be applied retroactively.  Such was the conclusion by the court in Chaidez which concluded, correctly in my opinion, that because Padilla was not a “new rule” it could be applied retroactively.  See United States v. Chaidez (“Accordingly, the court holds that Padilla did not announce a new rule for Teague purposes and affirms its earlier opinion that no retroactivity problem is raised by petitioner’s claim”).

Am I missing something here?

UPDATE: Chaidez and Padilla Retroactivity

True to her word, Judge Gottschall from the Northern District of Illinois has issued a follow up opinion in United States v. Chaidez, this time deciding the issue of whether the Supreme Court’s decision in Padilla v. Kentucky could be applied retroactively.  The opinion can be accessed here.

The short answer is that yes, Padilla can be applied retroactively.  That conclusion is based generally on the court’s finding that the rule that came out of the Padilla decision, i.e., that a Strickland IAC claim lies in situations where counsel fails to inform a client of the immigration consequences of a criminal conviction, is not considered a “new rule” for postconviction retroactivity purposes.  Judge Gotschall based this conclusion on two grounds: first, that the Supreme Court itself decided the Padilla matter on its merits rather than on retroactivity procedural grounds which it could very well have done; and second, that Padilla was really an extension of Strickland that highlighted the importance of counsel informing a client of immigration consequences from a criminal conviction, a practice  that has long been advocated by the ABA and other bar associations.

The case now proceeds to the fact finding phase, in which the court will determine whether Chaidez can satisfy the Padilla-Strickland standard with her particular situation.

Padilla Retroactivity Update

Two federal district court decisions touched on but did not decide the Padilla retroactivity issue.

They are:

Haddad v. United States, Case No. 07-12540 (E.D. Mich. Jul. 20, 2010)


United States v. Aguilar-Lopez, Case No. No. CR-09-6045-FVS-1 (E.D. Wash. Jul. 29, 2010)

The petitioner in Haddad brought an ineffective assistance claim under Padilla arguing that he was not informed by his attorney of the immigration consequences of his misdemeanor drug conviction.  The court rejected this claim, finding that the petitioner failed to establish both prongs of the ineffective assistance rubric.  Because the prevailing professional standards at the time of the petitioner’s conviction – 1997 – did not require a Padilla-style notice, the court concluded that counsel’s performance was not deficient under the first IAC prong.  In doing so, the court noted in passing that Padilla would most likely not apply retroactively, relying on Teague v. Lane, but offered little if any analysis as to why that would be the case, aside from its citation to Teague.  Even assuming that Padilla did apply retroactively, the court concluded that the petitioner couldn’t establish the second prejudice prong for postconviction relief.

In Aguilar-Lopez, the court noted that the defendant might have a shot at successfully challenging his prior state court convictions if Padilla applied retroactively but concluded that the proper forum for such a challenge would be in state court, essentially rendering the Padilla retroactivity issue moot.

ALSO, the New York Law Journal published a piece last week about the split among courts on whether to apply Padilla retroactively.

Is Padilla Simply a New Name for an Old Rule?

A recent case from the Northern District of Illinois passed on but did not decide the Padilla retroactivity question.  In a sort of unusual procedural backdrop, the petitioner in United States v. Chaidez (N.D. Ill. Jul. 8, 2010) filed a federal writ of error coram nobis challenging the validity of  her guilty plea arguing that she received ineffective assistance of counsel under Padilla prior to having pleaded guilty.  The court acknowledged that the petitioner might be entitled to relief if she could make the requisite ineffective assistance showing under Padilla but declined to make a definitive ruling until the petitioner has submitted a supplemental affidavit addressing a number of concerns from the court.  In the course of its decision, the Chaidez court addressed the Government’s contention that Padilla did not apply retroactively because it announced a new constitutional rule.  Here is what the court had to say about the Government’s contention:

The government argues that the court cannot apply the rule in Padilla in this case because Padilla announced a new constitutional rule which is not available for retroactive use in Chaidez’s collateral attack on her conviction. (See Govt.’s Supp. Resp., citing Teague v. Lane,489 U.S. 288 (1989).) But Chaidez does not seek retroactive application of Padilla—in fact, her petition was filed before the Supreme Court’s ruling. If Chaidez only recently learned of the deportation consequences of her plea, then she could not have been expected to raise this issue on direct appeal or in an earlier habeas case. Chaidez merely asks the court to apply the well-established rule in Strickland to find that her attorney provided ineffective assistance. The petitioner in Padilla sought the same relief. 130 S. Ct. at 1486. See also Santos-Sanchez,2010 WL 2465080 (granting coram nobis relief following the decision in Padilla). And, as the Supreme Court stated, “For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea.” Padilla, 130 S. Ct. at 1485. Thus, if Chaidez can make the required showing under Strickland and under the standards for coram nobis relief, she will be able to challenge her attorney’s ineffective assistance at the time of her guilty plea.

While the court made clear that it was not deciding the question of retroactivity, its ruling, in my opinion, comes dangerously close to saying that Padilla does NOT create a new constitutional rule.  In essence, the court seems to say that Padilla simply added new teeth to the well-trodden world of potentially viable ineffective assistance of counsel claims.

Padilla Going Retro?

The National Immigration Project of the National Lawyer’s Guild has recently issued a Practice Advisory on the retroactive applicability of Padilla v. Kentucky.  It concludes that Padilla should be applied retroactively by the lower courts because it does NOT create a new rule of criminal constitutional law.  The practice advisory can be downloaded here.

Also, a recent decision from Judge Seybert in the Eastern District of New York touches upon but does not decide the issue of retroactive applicability of Padilla — she assumes for the sake of argument that it does apply retroactively and then goes on to reject his Padilla claim on the merits.  The case is United States v. Obonaga (E.D.N.Y. June 24, 2010) and can be accessed via Google Scholar here.

Immigrants to Gwinnett County: Deport This!


The "Three Pillars" of ICE policy to ID and remove "criminal aliens" - courtesy of ICE Website

The Atlanta Journal Constitution reports that Gwinnett County officials may be unable to carry out their efforts to deport illegal immigrants from the county jail due to budget problems.  Here is an excerpt from the article:

The program, called 287(g), trains deputies to screen inmates to determine their immigration status. Inmates who are in the country illegally are turned over to Immigration and Customs Enforcement for deportation.

The Sheriff’s Department estimates 18 deputies will be needed to staff the program. It was unclear Monday whether the county can afford to bankroll that many deputies due to its current budget crunch.

Bannister said Monday he was “still very much in favor of the program.”

“I’m quite certain the funding for that program will stay,” he said.

Gwinnett is one of four counties in Georgia that participate in the so-called 287(g) program, the others being Cobb, Whitfield, and Hall counties.

The situation in Cobb is so bad (read: hostile toward immigrants) that attorneys have begun advising their clients to simply stay away from the county.

The Obama administration, represented by new Homeland Security secretary Janet Napolitano, has sought to reign in the excess of the program.  In fact, Napolitano issued new guidelines last week just for that purpose.  Read the press release here.

Gwinnett officials claim that their goal is to deport incarcerated illegal immigrants to free up jail space for other inmates.  In actuality, however, Gwinnett’s participation in the program will probably make jail conditions worse.   With officers now being given the power to expedite the deportion of illegal immigrants, is it really a stretch to imagine that they won’t be out there arresting anyone they think are eligible for deportation.  And with more arrestees, jails will become more, not less, crowded, which, in turn, will present an even greater financial strain for Gwinnett.

Again, an example that popular laws make bad policies.