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.
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?
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.
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.