Because of Hurricane Sandy, the oral arguments in the Chaidez case, which presents the question of whether Padilla can be applied retroactively, is scheduled to take place tomorrow, having been moved from Tuesday, the day on which they were originally set to take place.
I will post the transcript of the argument and my thoughts on it once I have had a chance to digest the proceedings.
The Justices of the U.S. Supreme Court have reconvened for yet another term and with Chaidez still pending before the Court, it comes as no surprise that the Court issued hold orders in several other cases concerning the retroactive application of Padilla v. Kentucky. As reported by the SCOTUS blog:
Diaz v. Wyoming, 11-9831, is our pivot between relists and holds, because it is formally a relist (it’s been distributed for both the September 24 and October 5 Conferences) but looks a heck of a lot like a routine hold for Chaidez v. United States, 11-820, the case seeking retroactive application of the holding in Padilla v. Kentucky that the failure to advise clients that pleading guilty to an offense will subject them to deportation constitutes ineffective assistance of counsel. (Disclaimer: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in Chaidez.) It is not immediately apparent to us how Diazdiffers materially from the slew of Chaidez holds discussed below, but something may have caught the Court’s eye. Insert puzzled emoticon.
It goes on further to discuss others cases, in addition to Diaz, which have received hold treatment from the Court in light of Chaidez:
Argument is still nearly a month away and already Chaidez v. United States, 11-820, appears to have yielded five holds: Poblete v. Arizona, 11-1381; Diaz-Palmerin v. United States, 11-1414; Alshaif v. North Carolina,11-10826; Shahly v. Florida, 11-9642; and Gaitan v. New Jersey, 11-10846. Plus, there’sDiaz v. Wyoming, 11-9831, the holdish relist described above. Like Chaidez, all these cases concern the potential retroactivity of Padilla.
Lastly, and this observation may be coming a bit late in the game, but I have been tracking Padilla-related decisions for some time, both because I need to for my own practice and because I want to for the benefit of my fellow practitioners and the public at large. In doing go, I have seen many courts, when faced with the Padilla retroactivity issue, decide not to address it but instead proceed to the merits on the petitioner’s Padilla ineffective assistance claim — especially, if doing so results in the denial of the petition at issue. This is wrong on several levels. It often denies the petitioner an opportunity to fully present his case on collateral review, which is almost always the first and last forum where he can present a claim of ineffective assistance, since the court generally issues its decision on the pleadings rather than on a fully developed factual record as was the case in Chaidez. And it is often contrary to the Supreme Court’s directive that “if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim.” Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (citation omitted). As I noted above, this issue will become moot once the Supreme Court answers the Padilla retroactivity question some time in the next year. But I cannot help but wonder how many otherwise meritorious requests for postconviction relief have been wrongly denied based on a court’s cursory review of the petitioner’s claim, when, what it could have done, was either decide the retroactivity question and only that question or, more preferably, hold off on deciding the petition entirely until the Supreme Court issues its decision in Chaidez.
I hope everyone is having a nice and meaningful Memorial Day. I believe I have some serious catching up to do in the Padilla retroactivity department for which I apologize.
First off, the Fifth Circuit U.S. Court of Appeals recently issued a decision which addressed the issue of whether Padilla can be applied retroactively. The case is United States v. Amer and the Fifth Circuit held that Padilla cannot be applied retroactively because it is a “new” rule under Teague. A few things to note about this decision. First, the Fifth Circuit prefaced its opinion by acknowledging that the issue of Padilla retroactivity is currently pending before the Supreme Court vis-a-vis the Chaidez case. Amer, slip op. at 2-3 (“We look forward to likely resolution of this question by the Supreme Court, however, in the interim, we join the Seventh and Tenth Circuits in holding that Padilla announced a ‘new’ rule within the meaning of Teague”). This, coupled with the brevity of the Fifth Circuit’s opinion in Amer — the opinion is all but six pages — signals, to me at least, that the Fifth Circuit’s decision in Amer is less the product of a court seeking to answer a thorny legal question than it is an effort by the court to fortify the Padilla non-retroactivity contingent so as to sway the Supreme Court itself in whatever ruling it makes in the Chaidez case. It is also interesting to note that although the district court ruled in favor of the petitioner it did so on an issue that was different from the one that was addressed and answered by the Fifth Court, at least from how the Fifth Circuit summarized the lower court’s decision (I have yet to read it). Is this perhaps another indication of judicial overreaching by the Fifth Circuit?
In any event, the decision in Amer can be downloaded here.
In other Padilla retroactivity news, the Supreme Court of Florida recently heard oral arguments in its own Padilla retroactivity case, Hernandez v. State. You can watch a webcast of the arguments here. The Court has also made available the transcript of the oral argument, which can be downloaded here.
Lastly, the Social Science Research Network or SSRN has published a few articles concerning Padilla; one pertains to Padilla’s on-the-ground relevance and utility for the criminal defense attorney, the other, to Padilla’s applicability under the Teague’s watershed exception to non retroactivity.
As several helpful readers have pointed out, the U.S. Supreme Court granted cert. today in Chaidez. According to the Court, the question for which cert. was granted in Chaidez is as follows:
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.
The actual statement from the Court setting forth the above question can be downloaded here. SCOTUS blog has this to say about today’s grant of cert. in Chaidez.
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.
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.
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.
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.
Ubi jus ibi remedium. Roughly translated from Latin as: “For every wrong, the law provides a remedy.” For those with Padilla-style claims, however, look elsewhere. This is the basic message that was recently handed down by the Supreme Court of Virgina in the cases of Commonwealth v. Morris and Commonwealth v. Chan. At issue in both these cases were the use by defendants of rather esoteric postconviction procedural vehicles (i.e., writ of error coram vobis and writs of audita querela) to alter their criminal sentences so as to avoid adverse immigration consequences. In arguing for relief, the defendants in both these cases relied on Padilla v. Kentucky. The trial courts said yes, but the Virginia Supreme Court said no.
The opinion is available here.
The court first recounted the historical origins of both these procedural vehicles and then went on to find them inappropriate vehicles for achieving the postconviction relief at issue. The court, instead, pointed to the writ of habeas corpus, as the avenue for asserting a Padilla-like ineffective assistance claim.
The net effect of the court’s ruling here is to limit the ways an attorney in Virginia, and, potentially other states, can successfully and creatively seek postconviction relief for a client whose old criminal background has come back to haunt him in the immigration context. For these individuals, saying that they should look to a habeas petition for appropriate relief, is like saying they have no relief at all, since many of their convictions would have been entered long before Padilla hit the books and therefore too old to support a timely habeas petition.
In fact, this ruling brings to mind another Latin phrase, the selection of which I owe to the all-encompassing Wikipedia site: abusus non tollit usum. Roughly translated as: “misuse does not remove use.” Put another way: Just because something is misused doesn’t mean it can’t be used correctly.
The effects of Supreme Court’s decision in Padilla v. Kentucky continue to be felt in other areas of criminal procedure law. In Pridham v. Commonwealth, the Court of Appeals of Kentucky ruled that postconviction relief would be warranted where an attorney provides “gross misadvice” to a client concerning parole eligibility, relying almost exclusively on Padilla. In doing so, the Pridham court rejected the notion, advanced by KY authorities, that Padilla only applied to situations involving deportation:
The Commonwealth argues that the unique nature of deportation limits the Padilla decision to only misadvice concerning the risk of deportation. However, the Court in Padilla repeatedly cited with approval to its decision in Hill, a case dealing with the Strickland standards in the context of misadvice regarding parole eligibility. Moreover, the factors relied upon in the deportation context apply with equal vigor to the circumstances of gross misadvice about parole eligibility. Parole eligibility involves a foreseeable, material consequence of the guilty plea that is “intimately related to the criminal process” and is an “automatic result” following certain criminal convictions. Id. at —-, 130 S.Ct. at 1478, 1486. The varying degrees of eligibility enumerated by the General Assembly in KRS 439.3401 are “succinct, clear and explicit.” KRS 439.3401 provides that “any person who has been convicted of or pled guilty to the commission of ․ [a] Class A felony”․ is considered a “violent offender” for the purposes of the parole statute. KRS 439.3401. The statute further states that, “[a] violent offender who has been convicted of ․ a Class A felony with a sentence of a term of years ․ shall not be released on probation or parole until he has served at least eighty-five percent (85%) of the sentence imposed.” KRS 439.3401(3). Even though Pridham’s Class A felony conviction (Manufacturing methamphetamine, 2nd offense) would not be regarded by most as a violent offense, all Class A felonies are treated equally for the purposes of parole eligibility. The parole classification system is automatic upon conviction or guilty plea and permanently affects a defendant’s minimum term of imprisonment.
While not particularly groundbreaking in terms of strengthening the rights of the accused – after all, this is a gross misadvice case – the decision is significant in that its reasoning is based almost entirely on Padilla and its more general, non-deportation related proposition that the Sixth Amendment right to the effective assistance of counsel is not limited to the confines of a courtroom, thus giving new meaning to the attorney as counselor and advisor.