Category Archives: U.S. Supreme Court

Padilla Retroactivity Making Another Trip to the Supreme Court?

Posted on July 28, 2015 | 1 comment

Earlier this month the Ninth Circuit Court of Appeals decided the case of United States v. Chan.  That case involves a longtime U.S. green card holder and British national who is trying to get her prior convictions for perjury overturned.  The argument is that the lawyer who represented the green card holder misled her on what would happen to her immigration status if she decided to plead guilty, which she ultimately did.

The convictions at issue are old, dating back to 1993, but they are surfacing now because the immigration authorities recently initiated deportation proceedings against the green card holder, relying on the 1993 convictions.

The issue in the case is whether the green card holder is entitled to postconviction relief because her former attorney misled her about the immigration consequences of her prior convictions.  If she does, then there is a chance she may also be able to avoid deportation.

The district/trial court said no but the appeals court disagrees.  The appeals court rules that the green card holder is allowed to rely on and benefit from a Ninth Circuit decision that came out after the green card holder was convicted of perjury.

Generally, decisions that are issued after the event for which one seeks relief cannot be applied retroactively.  But there are exceptions to this rule, and in some cases the rule just doesn’t apply.  Here, the green card holder convinced the appeals court that the rule of non-retroactivity did not apply to the decision that she says is her key to overturning her perjury convictions.  That decision is United States v . Kwan, 407 F.3d 1005 (9th Cir. 2005).

There was a smattering of opinions in this case among the three judges who were on the appellate panel.  One judge (Bybee) agreed that Kwan could be applied retroactively but said that the green card holder could still benefit from Kwan on the basis of stare decisis — the latin phrase for “to stand by things decided” — because the two cases are identical.  When applied to court decisions this principle signifies that prior court decisions should control cases that come after it.  What Justice Roberts once likened to a judge who just calls balls and strikes (Roberts placed himself in that category of judges).

Another judge (Ikuta) disagreed with the majority’s retroacitivity analysis.  Ikuta acknowledged that the case before the court was a “sympathetic” one but thought the majority came out wrong in its legal analysis.

In any event, the significant aspect of the Ninth Circuit’s decision in Chan, aside from the benefit it confers to our green card holder, is that it deepens the split among the federal appeals courts on whether decisions making it unlawful for an attorney to affirmatively misadvise a client on immigration consequences can be applied retroactively.  I know, an issue that sounds like something only a lawyer, or a lawyer’s lawyer, would get excited about.  But its implications are considerable given that immigration continues to remove record numbers of foreign nationals from this country come hell or high water.  Right now, one appellate court has said yes to retroactivity (the Second Circuit), and another one has said no (the Seventh Circuit).  If you’re keeping score, that is 2 for retroactivity and 1 for non-retroactivity.

The existence of a circuit split also means that it makes it more likely that the Supreme Court will eventually step in to resolve the disagreements among the courts.  It did so once already on a very similar issue and ruled against retroactivity.  Might it do the same thing this time around?

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Posted in Criminal Procedure, Immigration, Postconviction Matters, U.S. Supreme Court

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Justice Roberts’s Humpty Dumpty Court

Posted on July 16, 2014 | Leave a comment

As the Supreme Court ends another Term the attention continues to be on the Justices themselves and their voting patterns.  This past Term featured a higher than average number of unanimous opinions.  But as Adam Liptak from the Times has noted, these opinions seemed to mask disagreements among the Justices.  Why then the unanimity?  One hypothesis is that the Justices are trying to shore up the institutional integrity of the Court having become more sensitive to or cognizant of the charge that the Court with its numerous sharply divided opinions along idealogical lines is a nakedly political institution.  But does this sort of unanimity (some might call it unanimity for the sake of unanimity), if that is what it appears to be, really enhance the legitimacy of the Court in the long term?

One can argue that it does not.  In its most benign form, the Court is simply “kicking the can down the road” in its refusal or inability to grapple with sensitive legal issues, even if doing so would lay bare the ideological fault lines within the institution.   Another more cynical  interpretation is that the “conservatives” on the Court, having made institutional integrity the central focus of the Court’s agenda, are challenging their more liberal colleagues to be the ones to blink first.  “Dissent if you dare” may now be a common refrain by Chief Justice Roberts, the supposed architect of the Court’s recent approach toward greater unanimity.  And the conservatives can afford to wait since they, more so than their liberal colleagues, are the ones who have prevailed in cases which have presented the most contentious issues of the day.  Why fix it if it ain’t broke? or so the saying goes.

The downside of all this is that Court deprives the country of the guidance it needs to govern its affairs.  Fostering unanimity means declining more cases or accepting more “easy” cases — ones that perhaps don’t carry the kind of political baggage that cases about gay marriage or contraception do — or delaying to another day a ruling on a broader but more contentious issue in a case that the Court has accepted  in favor of a more narrow but less contentious point.  There are sound reasons for these approaches, the details for which are beyond the scope of this post.  But institutional legitimacy is not one of them.

It is foolish to think that fractured decisions deprive the Court of credibility.  The cases that reach and are accepted by the Court are often ones that have already split the lower courts.  Add to this the fact that judges by nature have their own predispositions and prejudices, it should come of no surprise that cases often end up being decided by a bare majority.  And this is as it should be since fractured opinions also foster healthy debates among the justices themselves and in the public at large on the correctness of one view over another.

The Court’s legitimacy comes not from the actions of the Court itself but from the views and beliefs of the people whose rights and duties are the subject of  the Court’s decisions.  So long as the Court stays true to its duty of interpreting and when necessary making law that best reflects its view of what the Constitution requires, then its legitimacy as a governmental entity is sound.  This is so even if one or more members of the public disagree with how the Court interprets the Constitution.

What is more important from the standpoint of the Court’s legitimacy is the public’s understanding and acceptance of the decisions that are actually issued.  This  necessarily takes time and it requires the involvement (in the form of outreach, education and so forth) of individuals and groups who often  have no relation to the Court.  But none of this is possible if the Court makes an effort to decide fewer cases or skirts an issue in a case just because it is one whose resolution would divide the Justices.

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Another post-Chaidez case: Chavarria v. United States

Posted on February 6, 2014 | Leave a comment

For those of you who are still following the Supreme Court’s decision in Padilla and its treatment by the lower courts, the Seventh Circuit recently issued a notable decision in which it might have put the final nail in the coffin of pre-Padilla claims.

The case is Chavarria v. United States, No. 11-3549 (7th Cir. decided Jan. 9, 2014).  There petitioner there relied mainly on pre-Padilla law as the reason why he should be entitled to post conviction relief.  His argument, which resembles one I have used, without success, in the past, was that even before Padilla, courts recognized ineffective assistance counsel claims for cases where a lawyer had affirmatively misadvised a client on the immigration consequences of a conviction; as opposed to when a lawyer gave no advice at all, which, everyone seems to agree, did not give rise to a claim of ineffective assistance until Padilla.

The Seventh Circuit made short work of this argument, however, and not in a way that benefitted the petitioner.  It noted that the distinction between affirmative misadvice and no advice was irrelevant because, until Padilla, the courts never recognized a Sixth Amendment, ineffective assistance claim based on a collateral consequence of a conviction like deportation.

The Seventh Circuit relied, ironically, on Padilla itself in arriving at this conclusion.  I say that because the petitioner sought relief on the exclusive basis of pre-Padilla law, which went entirely unaddressed by the Seventh Circuit.  Therefore, unless the Seventh Circuit was implying that Padilla, in essence, overruled all past precedent in which courts gave post conviction relief to individuals who had been deported in violation of their Sixth Amendment rights — and there are such cases out there, as even the Seventh Circuit acknowledged — I am not sure how I see the Seventh Circuit reached the result it did.  Nor can I see how Padilla could have overruled the decisions which preceded it which held in one form or fashion that an attorney can be liable for giving his client wrong advice about a conviction’s impact on his immigration status.  That would be a truly perverse result where the Supreme Court in Padilla came down on the side of post conviction relief.  The implied message of the decision in Chavarria, then, seems to be that in order to expand the universe of rights for one set of folks (those whose convictions became final after Padilla), the Supreme Court had to contract the universe of rights for another (those with  convictions that became final pre-Padilla).  That can’t be right, can it?  Or am I missing something?

I have copied and pasted the decision below since its fairly short.

JULIO CESAR CHAVARRIA, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

No. 11-3549.United States Court of Appeals, Seventh Circuit.

Argued October 1, 2013.Decided January 9, 2014.Before CUDAHY, RIPPLE, and HAMILTON, Circuit Judges.

CUDAHY, Circuit Judge.

This case involves an ineffective assistance of counsel claim concerning the effect of Chavarria’s guilty plea on his immigration status. Defendant Julio Cesar Chavarria, born in Mexico, became a legal permanent resident of the United States in 1982. In 2009, Chavarria was charged with, and pleaded guilty to, four counts of distributing cocaine.

One year later, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla imposed a duty on criminal attorneys to inform noncitizen clients of deportation risks stemming from plea agreements, and for the first time held that the Sixth Amendment supported ineffective assistance of counsel claims arising from legal advice, or the lack thereof, involving the prospect of deportation resulting from guilty pleas. See Chaidez v. United States, 132 S. Ct. 1103, 1110 (2012)(explaining the new Padilla rule). Chavarria then filed a pro se motion involving such a claim, pursuant to 28 U.S.C. § 2255.

Chavarria alleged that his criminal trial counsel responded to his deportation queries by indicating that Chavarria need not worry about deportation—specifically that “the attorney had checked with the Bureau of Immigration and Customs Enforcement . . . and they said they were not interested” in deporting him. Chavarria also alleged that his attorney had counseled him to defer to the cues of his attorney during questioning by the district court. In connection with his § 2255 motion, Chavarria filed a Petition to Stay Deportation Proceedings, but by the time counsel had been appointed for these motions, he had already been deported. The government subsequently sought to dismiss Chavarria’s § 2255 motion based, in part, on the contention that Padillaannounced a new rule not to be applied retroactively. The district court denied the government’s motion for dismissal, holding that the Padilla rule could be applied retroactively.

Shortly thereafter, we issued our opinion in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). The Chaidez majority concluded that Padilla was a new rule and not retroactive. In light of Chaidez, the district court vacated its ruling based on the retroactivity of Padilla, and dismissed Chavarria’s § 2255 motion.

Chavarria appealed, challenging both our decision in Chaidez, and the district court’s application of it here. After the government filed its response brief, the Supreme Court granted certiorari in Chaidez and subsequently affirmed. After Chaidez thus foreclosed Chavarria’s argument that Padilla was retroactive, he now argues thatChaidez distinguished between providing no advice (actionable under the Padillarule) and providing bad advice (actionable under pre-Padilla law).

 

I.

 

At the outset we briefly note that Chaidez foreclosed any argument that Padilla was retroactive, the original basis of Chavarria’s appeal. On collateral review, lacking retroactivity, we will look only to the state of the law at the time the conviction became final. For that reason, Chavarria originally argued that Padilla did not propound a new rule, but that it was merely another step in the evolution of ineffective assistance claims. However, the Supreme Court decided definitively that Padillaannounced a new rule, which was not retroactive, when it affirmed our decision inChaidez. Chaidez, 133 S. Ct. at 1105.

II.

His retroactivity argument gone, Chavarria now argues that under Padilla only failure to advise of immigration consequences constitutes ineffective assistance under the Sixth Amendment, but affirmative misadvice provides an alternative basis for a constitutional claim under pre-Padilla law.

This argument about affirmative misadvice is based on certain Chaidez language, which recognized precedent from three circuits holding that, pre-Padilla,misstatements about deportation could support an ineffective assistance claim.Chaidez, 133 S. Ct. at 1112 (“Those decisions [in three circuits] reasoned only that a lawyer may not affirmatively misrepresent his expertise or otherwise actively mislead his client on any important matter, however related to a criminal prosecution.”). Thus, Chavarria argues that Padilla is irrelevant to Chavarria’s situation—because affirmative misrepresentations have long been subject to challenge under the test ofStrickland v. Washington, 466 U.S. 668 (1984).

Chavarria’s argument fails, first, because the distinction between affirmative misadvice and non-advice was not a relevant factor in Padilla. Second, the precedent, pre-Padilla, supporting the application of Strickland in this context is insufficient to satisfy Teague v. Lane. 489 U.S. 288, 301 (1989)(holding that to impart retroactivity, a rule must be supported by ample existing precedent).

A lawyer’s advice about matters not involving the “direct” consequences of a criminal conviction—collateral matters—is, in fact, irrelevant under the Sixth Amendment; such advice is categorically excluded from analysis as professionally incompetent, as measured by Strickland. Padilla departed from this direct-collateral distinction because of the “unique” nature of deportation. Padilla, 559 U.S. at 366. That case determined that “a lawyer’s advice (or non-advice)” should not be exempt from Sixth Amendment scrutiny without reference to the traditional distinction between direct and collateral consequences. Chaidez, 133 S. Ct. at 1110. Therefore, in its analysis, the Padilla majority was unconcerned with any distinction between affirmative misadvice and non-advice; because, until Padilla was decided, the Sixth Amendment did not apply to deportation matters at all. Id. (“It was Padilla that first rejected the categorical approach— and so made the Strickland test operative—when a criminal lawyer gives (or fails to give) advice about immigration consequences.”). Thus, regardless of how egregious the failure of counsel was if it dealt with immigration consequences, pre-Padilla, both the Sixth Amendment and the Strickland test were irrelevant.

The Chaidez majority jointly referred to both misadvice and non-advice throughout its opinion. There is no question that the majority understood that Padilla announced a new rule for all advice, or lack thereof, with respect to the consequences of a criminal conviction for immigration status. If taken out of context, language inChaidez offers some support for Chavarria’s argument, but that language is contradicted by a substantial amount of more specific language in the same opinion.See e.g., Chaidez, 133 S. Ct. at 1110 (referring jointly to scrutiny of a lawyer’s misadvice and “nonadvice”).

Ironically, Chavarria asks us to recognize a distinction between misadvice and non-advice, even though Padilla was itself about an affirmative misrepresentation. In fact, this distinction, which is thin on its own terms, fails on Padilla’s facts. Thus, Chavarria is essentially asking us to hold that Chaidez held that the Padilla rule is not retroactive except on Padilla’s own facts (which involved misadvice). In fact, thePadilla majority, in responding to the government’s argument to limit its holding, specifically discussed limiting its holding to only affirmative misadvice, but did not because of the posible absurd results. Padilla, 559 U.S. at 370-71. This discussion signals that the Padilla majority had no intent to exclude either affirmative misadvice or non-advice from the new rule it announced.

Finally, Chavarria relies on cases from three federal circuits to prove that the distinction between affirmative misadvice and the failure to advise, and a constitutional rule based on that distinction constitutes pre-Padilla precedent. Yet, under Teague, the rule sought by Chavarria must be dictated by existing precedent.Teague, 489 U.S. at 301. Chavarria cannot simply show the existence of such a distinction, but instead he must show that the distinction was so evident “that all reasonable judges, prior to Padilla, thought they were living in a Padilla-like world.”Chaidez, 133 S. Ct. 1112.

The Court supported this conclusion by reiterating the trend among the lower courts, which viewed such collateral deportation matters as beyond the reach of the Sixth Amendment. Id. at 1113. The Court stated, “[o]n those courts’ view, the Sixth Amendment no more demanded competent advice about a plea’s deportation consequences than it demanded competent representation in the deportation process itself. Padilla decided that view was wrong. But to repeat: it was Padilla that did so.” Id. The material misrepresentations that were upheld by those three circuits cannot support a constitutional rule to be applied retroactively, since an old rule is one “limited to those holdings so compelled by precedent that any contrary conclusion must be deemed unreasonable.” See Lambrix v. Singletary, 520 U.S. 518, 538 (1997). At the time Chavarria’s case became final, precedent did not dictate that preclusion of an ineffective assistance claim was unreasonable when it arose from an attorney’s material misrepresentation of a deportation risk. Thus, even if this Court were to find the misadvice/nonadvice distinction relevant to this analysis, it does not have the clear precedential weight to be considered a pre-Padilla rule.

The district court correctly concluded that it was bound by Chaidez and that Padillahad no retroactive effect on Chavarria’s case. Having determined that the distinction between affirmative misadvice and failure to advise does not somehow evade the non-retroactivity of Padilla, we AFFIRM.

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Posted in Collateral Consequences, Criminal Procedure, Postconviction Matters, U.S. Supreme Court

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End of a Chapter

Posted on August 20, 2013 | 2 comments

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.

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Posted in Collateral Consequences, Eleventh Circuit Court of Appeals, Postconviction Matters, U.S. Supreme Court, Uncategorized

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The Imperial Supreme Court

Posted on July 8, 2013 | Leave a comment

The Supreme Court has officially entered its summer recess, leaving yet another controversial term in its wake.  States will now be able to gerrymander at will without first subjecting their plans to federal oversight.  Laws that are passed to discriminate against gays are prone to being struck down by a court as unconstitutional.  And affirmative action is still a laudable if not legal concept, although that too may change soon.

That the legal landscape has again shifted should come as no surprise.  Laws are prone to be amended or reversed from time to time, especially when they are subjected to the scrutiny of the country’s highest court.  That these changes might anger some and please others is nothing new either.  Controversy, after all, is something that often propels a case to the Supreme Court and  leads to its review by the justices, which is almost always at their discretion.  Not that debate should not be had on the cases that make it to the court.  But I think it hard pressed for anyone to argue that a robust and sustained debate on, say, whether a law is based on outdated data (the Shelby County, Voting Rights Act case) or whether the moral underpinnings of a law cause it to be discriminatory (the Windsor, DOMA case), can be had between the covers of  the legal briefs on which the justices rely to make their decisions.  This is especially true considering that any decision the Supreme Court makes to uphold but especially to strike down a law has significant consequences, not just on the people who are the subject of the law, but on those whose responsibility it is to make and enforce the law.  This, it seems, is a point Scalia touched on in his dissent in Windsor where the Court found DOMA unconstitutional.  But there too, Scalia was being disingenuous, as there is no love lost between Scalia and what he sees as the homosexual agenda: to Scalia, debate should be had in lieu of Supreme Court intervention, but only when it might prevent an otherwise discriminatory law from being swept into the morality dustbin.

The trend we see of the Supreme Court wading into almost every area of law is a troubling one.  It is a reflection of a government that is broken and dysfunctional, where no one accepts another’s position unless he is of the same party or political ideology.  And those on the losing end inevitably vow, with increasing success, to have the disfavored piece of legislation overturned.  As a result, we have a government that is increasingly governed by nine unelected officials, and, some may say, one such person in Justice Kennedy.  Say what you will about the character and ambitions of those who choose to run for public office or the lack of competition one often sees on an election ballot, when elected officials displease their constituents, the remedy is to vote them out.  Needless to say, Supreme Court justices are not subject to the same pressures; indeed, their reign at the Court may last decades and is subject to almost no oversight at all.  Not that we should get into the business of electing judges.  But to have every piece of major legislation, both old and new, consistently land in the Supreme Court with the prospect that it may be reworked, gutted, etc., on the ideological preference of a group of justices or just one justice is a prospect no one should savor.

Of course, if a law must be struck down, that is the job of the courts.  No one should be made to suffer under an unjust law.  If neither the legislature nor the executive are willing to act, then it is the province and, in some situations, the prerogative, of the court to take up the slack.  But the primary concern should not be “how do we kill this law”, but “how can we get the law that we desire”.  The former almost certainly leads to greater polarization and distrust of our government institutions, while the latter encourages and requires participation in the process that is self-government, which, in almost any scenario, provides greater legitimacy to the final outcome, even if it is unsatisfactory to some.

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Another Cert. Worthy Candidate to Expand the Reach of Padilla? (UPDATED)

Posted on March 7, 2013 | Leave a comment

In its latest review of cert. candidates that have been relisted by the Supreme Court, SCOTUSblog noted some unusual activity with a case out of the Seventh Circuit that involves the application of Padilla v. Kentucky.  The case is Mario Reeves a.k.a. Rio v. United States, No. 12-8543 (7th Cir case no. 11-2328).   SCOTUSblog seemed to think  that the Court relisted the Reeves case in light of its recent decision in Chaidez.  Reeves is an example of efforts by individuals to expand the scope of Padilla to cover advice on consequences of a conviction other than deportation.  In Reeves, the defendant argued that a prior state court conviction was invalid under Padilla because his attorney in that case did not inform him that his conviction could later be used to enhance a sentence imposed against him in a future and entirely distinct criminal case.  It’s an interesting argument, but one that the Seventh Circuit did not buy.    Notably, the Seventh Circuit made no mention of whether Padilla could even be retroactively applied to assess the conduct of the defendant’s attorney, whose role in the case ended some time in 2004; its decision seemed to assume without deciding that it did.

In any event, the Supreme Court docket for the case indicates that the defendant is now being represented by attorneys from Northwestern University and Sidley Austin.  Perhaps this plus the relist is a sign of good things to come for Mr. Reeves.  If anyone has a copy of the cert. petition in Reeves, I would really like to read it.  In the meantime, the Seventh Circuit’s decision can be downloaded here.

UPDATE: The Supreme Court denied Mr. Reeves’ cert. petition on March 18, 2013.

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A Pictures Is Worth A Thousand Words (Or, If You’re Justice Sotomayor, More Than A Whole Slew of Statistics)

Posted on February 27, 2013 | Leave a comment

Today the Supreme Court hears oral arguments in the much-publicized case of Shelby County, Alabama v. Holder. Some have described the case as having the kind of ramifications for the Voting Rights Act that Citizens United had for campaign finance laws: law that was once settled and based on sound reasoning has now come under imminent threat of upheaval.

On Monday, Justice Sotomayor issued a “statement” in a case, Bongani Calhoun v. United States, No. 12-6142, involving the racist remarks of a federal prosecutor in Texas. The statement came as the Court declined to hear the case for mostly procedural considerations, but Justice Sotomayor felt it necessary to write separately so she could “dispel any doubt” that the Court’s decision “be understood to signal [the Court’s] tolerance of” the “racially charged remark.” “It should not,” Sotomayor bluntly stated. After taking the Government to task for its conduct, both with respect to the remarks and to the way it approached the case as it wound its way to the Court, Sotomayor ended her statement by warning or perhaps lamenting that she “hope[s] never to see a case like this again.” Only Justice Breyer joined Sotomayor in her statement.

That Sotomayor decided to issue such a statement at this particular time in the Court’s sitting is not, I submit, a coincidence. Instead, Sotomayor’s brief yet emphatic statement may have been her way of alerting her colleagues on the bench that now is not the time to be tinkering with or, worse yet, altogether scrapping the prophylactic measures that have been enacted to protect minorities from the kind of racism that, to Sotomayor, is as much a part of America as baseball, apple pie and barbecued ribs. And she did so in vivid almost picturesque fashion, none of which can really be captured in the raw data and statistics that will be thrust at the Court as it considers whether to overturn the Voting Rights Act, or at least a key part of it.

True, Sotomayor’s colleagues may decline to heed her warning or disagree with her view that things are still as they were back when Congress first passed, and then continued to renew, the Voting Rights Act. But even in pure temporal terms, we are only a mere 50 years removed from a time (1963; the Voting Rights Act was passed in 1965) when many thought that the country could not survive as a democracy without measures like the Voting Rights Act — a time when George Wallace, Alabama’s then Governor refused to de-segregate the University of Alabama, in direct defiance of President Kennedy and and a time when an owner of a segregated restaurant in Maryland felt fit to physically humiliate individuals who knelt in front of his restaurant to call attention to their message of integration. (These pictures are from a series of 50 photos taken in 1963 that was recently posted on the website for The Atlantic.) To argue that such racism, or more appropriately, its remnants has been purged from the fabric of this country is at best inaccurate and at worst irresponsible. Knowing that this view will probably not hold sway with the majority of the Court, however, my thoughts turn to those, like the Maryland protestors, who through their dedication and sacrifice helped put on the books laws like the Voting Rights Act, and without whom our country would be even more segregated than it was in 1963.

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Posted in Civil Rights, Social Justice, U.S. News, U.S. Supreme Court

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Some Thoughts on the Chaidez Decision

Posted on February 22, 2013 | Leave a comment

The core of the majority’s decision in Chaidez rests on the notion that before Padilla no court would have granted postconviction relief to a foreign national defendant under Strickland based on an attorney’s failure to give deportation advice because deportation was considered a collateral, not a direct, consequence of a conviction.  It is this dispositive aspect of the collateral v. direct distinction and, to the majority, Padilla’s “rejection” of it, that makes Padilla a particularly novel decision and one ill-suited for retroactive application.  The problem, it seems to me, with the majority’s analysis is that it overstates the importance or effect of the collateral v. direct divide, and it is also a demonstration that judges who have little or no on-the-ground experience, as is the case with Kagan, make bad law.  (There is a reason Kagan was assigned to write the opinion which I will get to a bit later.)  To take just one example: if what the majority stated was true, and courts really made mince meat out of Padilla-like ineffective assistance claims pre-Padilla based on the collateral-direct divide, then few if any of the cases which presented these claims before Padilla should have made it past the pleading stage, let alone being decided on their merits in published decision after published decision.  I do not think that is how courts treated Padilla-like claims in the pre-Padilla era, however.  Instead, courts still decided Strickland claims pertaining to deportation advice on their merits even if they ended up denying them based on the collateral v. direct distinction.  In other words, there was no question that Strickland defined the standard of competent representation received by foreign nations in criminal cases  pre-Padilla, the debate rather was over how that standard should be defined in such cases.  To take yet another example: let’s say an individual is irked by his attorney’s performance in an immigration matter which ended up in his removal and in a misguided effort to prevent his removal brings a claim in federal district court alleging ineffective assistance under Strickland.  There would be no question as to the applicability of Strickland or the fate of his claim; it would fail and fail big because Strickland applies only to criminal, not civil, cases.   But Strickland squarely governs in  cases like Padilla and Chaidez because they are, at their collective core, criminal matters.  I think this is, in part, what led the Padilla court to describe as “ill-suited” to the Strickland analysis the dichotomy between collateral v. direct consequences of a conviction — a point that Sotomayor seized on in her dissent where she took the majority to task for its over-reliance on and over-emphasis of this distinction.

As to my hypothesis as to why Kagan ended up writing the Chaidez opinion,  I think that the debate between say, Roberts and Alito, on the one hand, and Breyer and Kennedy, on the other, centered not on whether Padilla could be applied retroactively — the majority’s opinion makes clear that there was never much doubt there — but on how Padilla and now Chaidez might be used to expand the scope of Strickland to encompass advice on other so-called collateral matters, an outcome which presumably Roberts and Alito, to say nothing of Scalia and Thomas, would have disfavored.  At the same time, the more liberal members of the bench, did not want Chaidez written in a way that would have narrowed or weakened the mandate in Padilla (I wonder if Stevens’ presence at the Court — he apparently still maintains an office there — and generally as an observer of the Court,  might have had some influence as well).  So the task of authorship was given to Kagan who was willing to say no to retroacivity but do so in a way that was respectful of the Padilla decision.

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Posted in Collateral Consequences, Postconviction Matters, U.S. Supreme Court, Uncategorized

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U.S. Supreme Court Decides Chaidez; Padilla Not Retroactive

Posted on February 20, 2013 | Leave a comment

Some of you might have already heard that the Supreme Court issued its opinion in Chaidez v. United States today.  The news is not good, especially for those who had hoped the Court would confer to all foreign nationals the benefit of Padilla.  Justice Kagan wrote the majority opinion which was joined in full by the other Justices with the exception of Thomas who concurred in the judgment only and Sotomayor and Ginsburg both of whom dissented.  I will provide some analysis on the decision in a separate post.  The opinion can be downloaded here.

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Posted in Postconviction Matters, U.S. Supreme Court

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Transcript of Oral Arguments in Chaidez Released

Posted on November 2, 2012 | Leave a comment

The transcript of the oral arguments in Chaidez, which took place yesterday, can be accessed here.  The initial take on the arguments is that less than a majority of the Justices seemed to think that Padilla could be applied retroactively.  Moreover, it didn’t seem like this was a case where the outcome would rest on a swing vote; but if there were one, I would say it would be probably be Justice Kennedy.

The arguments were covered by the New York Times and Reuters.  The Times also has an editorial today in which it urged the Court to apply Padilla retroactively to Ms. Chaidez’s case and vacate her conviction.

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Posted in Criminal Procedure, Postconviction Matters, U.S. Supreme Court

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