The Third Circuit Court of Appeals might be the first federal appellate court to rule on Padilla retroactivity but it certainly won’t be the last. Indeed, as of this writing, the Government has sought a re-hearing, en banc, in Orocio, a request that will likely be granted, considering the import of the issues. Here are some of my thoughts/observations on the case:
(1) The facts in Orocio were almost identical to those in Padilla (longtime lawful permanent resident; relatively minor drug charge) which apparently helped in persuading the Third Circuit to rule in Orocio’s favor.
(2) The postconviction vehicle of choice was a petition for a writ of error coram nobis; here, the defendant would have been out of time were he to file a 2255 habeas petition. The court didn’t address any procedural issues related to this since the lower court had not done so.
(3) In deciding that Padilla announced an “old rule” and could therefore be applied retroactively, the Third Court looked simply to Strickland’s threshold standard of reasonableness, which, the Supreme Court has ruled, applies in the plea context. According to the Third Circuit then “[f]ar from extending the Strickland rule into uncharted, Padilla reaffirmed defense counsel’s obligations to the criminal defendant during the plea process, a critical stage in the proceedings.” And just because the Strickland standard is successfully applied to a new factual circumstance does not necessarily mean that it creates a “new rule” for retroactivity purposes — this is especially the case when the claim involves a “rule of general applicability” which was the product of the Strickland case.
(4) The Third Circuit overruled prior precent in finding that the petitioner made out a prima facie case for Strickland prejudice. Thus, defendant’s no longer have to show so-called factual innocence; instead, a defendant need only show that it would have been rational for him to reject the plea and proceed to trial, which appears to be a less onerous standard. Under the reasoning of the Orocio court, in cases where deportation is a potential consequence of one’s plea-based conviction, it is almost always rational for a defendant to reject a plea and proceed to trial. But that’s just my reading of the decision.
I post here the Third Circuit’s official opinion in Orocio. The Government’s brief is here, the Appellant’s, here. The Appellant’s reply brief is here.
The Third Circuit Court of Appeals has held in United States v. Orocio that Padilla announced an “old rule” and can therefore be applied retroactively. Although this was a 2-1 decision, the dissenting judge only took issue with the majority’s Strickland prejudice analysis.
In ruling that Padilla announced an “old rule” the Orocio court focused on Strickland’s bedrock standard of “reasonableness” under the circumstances. It matters not then that Strickland would eventually be applied to potentially novel factual circumstances. What matters is that the reviewing court looked to the reasonableness standard in determining whether there was a viable ineffective assistance of counsel claim. This is precisely what the Supreme Court did in Padilla.
The decision can be downloaded here.
In a well-reasoned and potentially significant opinion, the Minnesota Court of Appeals has held that Padilla did not announce a “new rule” of constitutional criminal procedure and therefore applies retroactively. In Campos v. State (Case No. A10-1395), the defendant, a legal permanent resident, pleaded to simple robbery and received a sentence of “365 days in the workhouse”, which, under immigration law, rendered the defendant deportable. The defendant later sought to withdraw his plea claiming ineffective assistance of counsel under Padilla. The trial court denied his motion, finding that Padilla could not be applied retroactively and that, in any event, the defendant did not receive ineffective assistance. The sole issue on appeal was whether the trial court erred in deciding that Padilla could not be applied retroactively.
Here is the operative passage on Padilla retroactivity in Campos:
Campos argues that Padilla merely applied the long-standing principles regarding ineffective assistance of counsel enunciated in Strickland to specific facts and did not announce a new rule of constitutional criminal procedure. We agree. Given (1) the procedural posture of Padilla (a collateral attack on a guilty plea); (2) the clear references in the opinion to its application to collateral proceedings attacking guilty pleas; (3) the analysis under long-standing principles of the right to effective assistance of counsel; and (4) the absence of any mention of retroactivity, the conclusion that the opinion does not announce a new rule of criminal procedure seems self-evident to this court. See Padilla, 559 U.S. at ___, 130 S. Ct. at 1478 (stating “[i]n this postconviction proceeding . . . ); 1485–86 (discussing “nature of relief secured by a successful collateral challenge to a guilty plea” and “collateral challenge to a conviction”).
It is notable that at the time the Supreme Court decided Padilla, Minnesota state law, like that of many other states, only required counsel to advise a defendant on the “direct consequences” of a guilty plea, deportation not being one such consequence. Recognizing that this doctrine had been “effectively overruled” by Padilla, the Campos court still found that Padilla did not constitute a “new rule” for retroactivity purposes. Why? Two reasons: because Padilla itself involved a collateral attack on a final conviction and also because a new rule is not invariably established every time Strickland is applied to a new set of facts as was the case in Padilla.
The decision in Campos can be downloaded here.
Photo Courtesy of the Asia Society. From the Asia Society website: A Japanese American posted this banner on his store front the day after Japan attacked Pearl Harbor and shortly before he was sent to an internment camp. Image: Dorthea Lange, National Archives.
Please allow me the opportunity to opine on something non-Padilla related.
Georgia, my state of residence, is on the cusp of enacting legislation that would provide broad and unprecedented authority to law enforcement to question, stop and arrest residents who are suspected of being in this country illegally. That such a measure has come to fruition should come as no surprise to most. Hostility toward one or another unfavored class of individuals is a time-honored American tradition, especially among power-hungry politicians and shallow-thinking citizen-reactionaries. Nor is Georgia the first state to come this close to providing the constable such unbridled authority to detain and harass. Arizona has already gone down the same path, but with little to show for it besides rhetoric and litigation. There is little doubt that Georgia won’t also go the way of Arizona on this soon-to-be enacted immigration measure. It will.
But the concerns about racial profiling and states’ rights that invariably arise when debate occurs as to the wisdom of these sweeping new laws are, it seems to me, misplaced. Racial discrimination is as intractable a societal malaise as poverty and crime. This is true regardless of whether the society is founded upon the principles of capitalism and democracy, as ours assertedly is, or, like modern-day Russia and China, quasi-communism and authoritarianism. Arguing against these laws then by claiming, even reasonably, that they are discriminatory is akin to arguing against compelled homelessness because such a condition is unjust and unfair. Most reasonable minds won’t differ on that, but some will, and if these are the same folks who control the institutions of our government, then good luck to you.
Discussion should instead focus on how the recent anti-immigrant legislation affects the viability of this country’s self-described role as the “Leader of the Free World” and its foundation as an open, democratic society. If, according to the latest U.S. Census findings, it is true that whites will soon constitute a statistical minority in this country, displaced by Hispanics and Asians, then any official effort to discriminate and expel members of this soon-to-be majority smacks of apartheid. If that is indeed the case, then Americans need to have a sustained, serious and open discussion as to the direction of this country and the relationship, in all senses of the word, that should prevail between a white minority and non-white majority. I can think of at least one other country that is currently engaged in such a debate: Israel. Only when these fundamental issues are aired in public and their implications seriously debated (I make no predictions as to which side will prevail in such a debate) can this country move beyond the current wave of reactionary, anti-immigrant sentiment.
In a case with implications in the Padilla postconviction context, particularly in Georgia, the Supreme Court of Georgia recently reversed a trial court’s denial of a motion to withdraw a plea, finding that the trial court incorrectly relied on the plea colloquy of the defendant in determining that the defendant was not prejudiced by counsel’s misadvice as to a collateral consequence of his conviction — in this case, the amount of time the defendant had to serve before becoming eligible for parole. The trial court had denied the defendant’s motion to withdraw his plea because the defendant failed to voice his concerns about parole eligibility during his plea colloquy, instead stating that he “knew all his rights.” In the view of the trial court, this adversely affected the defendant’s credibility and amounted to a failure by the defendant to establish the prejudice prong of the two-part test for ineffective assistance. The Georgia Supreme Court rejected such reasoning as “an irrelevant basis to discredit appellant because, at the time, appellant had not in fact been correctly advise of his parole eligibility or its effect on his plea.”
Courts often reject Padilla claims on a similar basis — that is, citing a defendant’s failure to raise the immigration consequence issue during the plea colloquy or his acknowledgment that he knows his conviction may result in imminent deportation as evidence that either counsel was not ineffective or that the defendant was not prejudiced. See, e.g., Momah v. United States, Case No. 10-CV-369-A (N.D. Tex. Aug,. 30, 2010); United States v. Obonaga, Case No. 10-CV-2951 (E.D.N.Y. June 30, 2010). In light of Crowder, however, a defendant could well argue that his failure to raise immigration consequences during his plea colloquy has nothing whatsoever to do with proving IAC prejudice since he simply didn’t know, through the misadvice of counsel (or absence of advice), that immigration consequences was even a collateral issue of his conviction.
The decision in Crowder is available here.
There is pushback from supporters of immigrant rights.
From Loudon County, Virginia comes news of defiance by a trial judge against the recent ruling from the Virginia Supreme Court in Morris/Chan which limited the use of certain writs by attorneys seeking postconviction relief under Padilla v. Kentucky. In a 13-page opinion, the judge, Dean S. Worcester, granted a petition for writ of error coram vobis, finding a violation of Padilla because the petitioner was never advised by his attorney of the immigration consequences of his plea to felony petit larceny. Of course, the petitioner now faces the prospect of having to fight the larceny charge in trial or, more likely, to secure a agreement from the prosecutor in which he would plead to a non-deportable offense. The case is Commonwealth v. Edgar Luis Cabrera and the opinion is available here. The Washington Post has the story on Cabrera’s victory here.
Further up the eastern seaboard, in New Jersey, the Appellate Division reinstated a petition seeking postconviction relief under Padilla, which had been initially rejected by the trial court on the now increasingly common but no less incorrect basis of the petitioner’s plea colloquy with the court. The appellate court noted that the questions posed to the petitioner during his plea colloquy were never designed to determine whether the petitioner received the level of effective assistance of counsel that Padilla now mandates. Thus, it kicked the case back to the trial court for an evidentiary hearing. There is some discussion of Padilla retroactivity, none which factored into the court’s ruling, however. The case is State v. Frensel Gaitan and the opinion is available here.
I have written extensively over the past year or so about the effects of a seminal Supreme Court decision in Padilla v. Kentucky, which, aside from its constitutional underpinnings, deals directly with another matter of great import: immigration. I recently came across a thoughtful passage from George Orwell — perhaps my favorite writer of all time — in which he offers his thoughts as to the origins of anti-immigrant feelings. It isn’t a particularly novel observation; in fact, the exact opposite might be true. However, it is worth recounting here; if anything, because, as Padilla itself makes clear, immigration continues to be a topic of public interest and also because Orwell continues to impress me, and hopefully others, in his perceptiveness and prescience.
[Orwell begins by recounting a conversation that he had overheard between two relatively well-off Scots in which they attribute a number of Scotland’s problems to the influx of the Poles. Among other things, the Poles are blamed for unemployment; the housing shortage, declining morals, etc. Orwell then proceeds to offer the following thoughts on this discussion:]
One cannot, of course, do very much about this kind of thing. It is the contemporary equivalent of anti-semitism. By 1947, people of the kind I am describing would have caught up with the fact that anti-semitism is discreditable, and so the scapegoat is sought elsewhere. But the race hatred and mass delusions which are part of the pattern of our time might be somewhat less bad in their effects if they were not reinforced by ignorance. If in the years before the war, for instance, the facts about the persecution of Jews in Germany had been better known, the subjective popular feeling against Jews would probably not have been less, but the actual treatment of Jewish refugees might have been better. The refusal to allow refugees in significant numbers into this country would have been branded as disgraceful. The average man would still have felt a grudge against the refugees, but in practice more lives would have been saved.
So also with the Poles. The thing that most depressed me in the above-mentioned conversation was the recurrent phrase, “let them go back to their own country.” If I had said to the two business-men, “Most of these people have no country to go back to,” they would have gaped. Not one of the relevant facts would have been known to them. They would never had heard of the various things that have happened to Poland since 1939, any more than they would have known that the over-population of Britain is a fallacy or that local unemployment can co-exist with a general shortage of labor. I think it is a mistake to give such people the excuse of ignorance. You can’t actually change their feelings, but you can make them understand what they are saying when they demand that homeless refugees shall be driven from our shores, and the knowledge may make them a little less actively malignant.
[UPDATE: I neglected to identify the source of this passage by Orwell; it formed a part of Orwell’s regular column in Tribune, a left-leaning British periodical, and which carried the common title, “As I Please.” This was from As I Please 70, January 24, 1947]