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Padilla Odds and Ends

A picture from my travels. Can you guess where I was?

My apologies for the delay in posts.  I have been traveling and have only recently returned to good ‘ol Atlanta.  Here are a few noteworthy court rulings on Padilla:

  •   The Massachusetts Supreme Judicial Court has held in Commonwealth v. Clarke, Case No. SJC10888 (June 17, 2011) that Padilla announced an “old rule” and can therefore be applied retroactively.  The Clarke court’s retroactivity analysis mirrored that of the Third Circuit’s in Orocio, which also found Padilla retroactively applicable, and it put to bed the notion that simply because a court applies Strickland to a new set of facts does not mean that a “new rule” has been created for retroactivity purposes.  This is so even if courts disagree on how Strickland applies in these novel factual circumstances.  The opinion in Clarke is available here.
  • The Eleventh Circuit Court of Appeals might soon be deciding whether the Padilla retroactivity question.  In Ivan Dejesus Chapa v. United States, Case No. 10-CV-1885 (N.D. Ga. June 14, 2011), Magistrate Judge Braverman issued an order recommending the denial of Chapa’s section 2255 habeas petition.  The petition itself raised issues of ineffective assistance under Padilla.  Magistrate Judge Braverman was not convinced, however, and found the petition meritless on retroactivity (Padilla is a new rule and therefore cannot be applied retroactively) and ineffective assistance of counsel (Chapa’s claim fails under pre-Padilla caselaw) grounds [rulings later adopted by the district judge in the case].  A certificate of appealibility was issued to Chapa, however, allowing him to address the issue of Padilla retroactivity to the Eleventh Circuit Court of Appeals.  Judge Braverman’s report and recommendation is available here.

Gudiel-Soto: Padilla Retroactivity Left to Another Day

In a well-reasoned decision, the court (D.N.J.) in Gudiel-Soto v. United States denied a petition for writ of coram nobis by a Guatemalan immigrant who sought to challenge his conviction under Padilla.  The Gudiel-Soto court ultimately declined to address the retroactivity question, finding that the petitioner failed to satisfy the second — prejudice — prong of the Strickland/Hill test.  But not without stating the following:

The government argues that Gudiel-Soto’s factual allegations are inconsistent because they do not make clear whether his attorney failed to inform him of the risk of deportation, or misinformed him of the those risks. The Court does not find a material distinction. In Padilla, the Court explicitly declined to limit its holding to “affirmative misadvice.” 130 S. Ct. at 1484. An attorney’s complete failure to provide advice and “affirmative misadvice” both qualify as ineffective assistance of counsel. Id. Given the Supreme Court’s instruction and assuming petitioner’s allegations to be true, it is not difficult for him to show that his counsel’s performance fell below an objective standard of reasonableness. The Supreme Court said as much. See Padilla, 130 S. Ct. at 1486. The more significant question is whether Padilla should be given retroactive effect.

The retroactivity of Padilla has not yet been addressed by the Third Circuit, or any circuit court for that matter. Courts in this district have said that that the rule announced by the Supreme Court in Padilla was a new rule of constitutional criminal procedure under Teague v. Lane, 489 U.S. 288 (1989), and does not apply retroactively to cases challenged on collateral review. See United States v. Gilbert, Crim. No. 03-0349, 2010 WL 4134286, at *3 (D.N.J. Oct. 19, 2010); United States v. Hough, Crim. No. 02-0649, 2010 WL 5250996, at *3-4 (D.N.J. Dec. 17, 2010). But this Court recognizes that district courts are split on this issue. See, e.g., Martin v. United States, No. 09-1387, 2010 WL 3463949, at *3 (C.D. Ill. Aug. 25, 2010) (holding that Padilla did not create a new rule under Teague and was therefore retroactively applicable); United States v. Millan., Crim. No. 06-0458, 2010 WL 2557699, at * 1 (N.D. Fla. May 24, 2010) (holding same). This Court need not join that discussion now, because the Court finds that the petitioner cannot demonstrate prejudice sufficient to satisfy the second prong of the Strickland test.

The opinion is available here.

In Memory of Dr. King – Part I of II

Harlem in the 1960's (Courtesy of Photoscream @ Flickr)

Last year, to commemorate Dr. King’s birthday, I had posted the letter that Dr. King had written to several members of the clergy, in which he responded, critically and forcefully, to their claim that his then activities as a civil rights activist were “unwise and untimely.”

This year, as Dr. King’s birthday quickly approaches and regardless of whether you actually choose to work or not on this day — I imagine that Dr. King himself would have preferred the former as a means of commemorating his achievements — I am posting for your elucidation and action, an essay written by James Baldwin entitled “Fifth Avenue, Uptown,” published in July 1960 issue of Esquire magazine.  Because of its length and because I will be transcribing it in its entirety, I am going to split up the essay up into two posts.  Here is Part One of that post:

Fifth Avenue, Uptown

by James Baldwin

There is a housing project standing now where the house in which we grew up once stood, and one of those stunted city trees is snarling where our doorway used to be.  This is on the rehabilitated side of the avenue.  The other side of the avenue — for progress takes time — has not been rehabilitated yet and it looks exactly as it looked in the days when we sat with our noses pressed against the windowpane, longing to be allowed to go “across the street.”  The grocery store which gave us credit is still there, and there can be no doubt that it is still giving credit.  The people in the project certainly need it — far more, indeed, than they ever needed the project.  The last time I passed by, the Jewish proprietor was still standing among his shelves, looking sadder and heavier but scarcely any older.  Further down the block stands the shoe-repair store in which our shoes were repaired until reparation became impossible and in which, then, we bought all our “new” ones.  The Negro proprietor is still in the window, head down, working at the leather.

These two, I imagine, could tell a long tale if they would (perhaps they would be glad to if they could), having watched so many, for so long, struggling in the fishhooks, the barbed wire, of this avenue.

The avenue is elsewhere the renowned and elegant Fifth.  The area I am describing, which, in today’s gang parlance, would be called “the turf,” is bounded by Lenox Avenue on the west, The Harlem River on the east, 135th Street on the north, and 130th Street on the south.  We never lived beyond these boundaries; this is where we grew up.  Walking along 145th Street — for example — familiar as it is, and similar, does not have the same impact because I do not know any of the people on the block.  But when I turn east on 131st Street and Lenox Avenue, there is first a soda-pop joint, then a shoeshine “parlor,” then a grocery store, then a dry cleaners’, the the houses.  All along the street there are people who watched me grow up, people who grew up with me, people I watched grow up along with my brothers and sisters; and sometimes in arms, sometimes underfoot, sometimes at my shoulder — or on it — their children, a riot, a forest of children, who include my nieces and nephews.

When we reach the end of this long block, we find ourselves on wide, filthy, hostile Fifth Avenue, facing that project which hangs over the avenue like a monument to the folly, and the cowardice, of good intentions.  All along the block, for anyone who knows it, are immense human gaps, like craters.  These gaps are not created merely by those who have moved away, inevitably into some other ghetto; or by those who have risen, almost always into a greater capacity for self-loathing and self-delusion; or yet by those who, by whatever means — War II, the Korean war, a policeman’s gun or billy, a gang war, a brawl, madness, an overdose of heroin, or simply, unnatural exhaustion — are dead.  I am talking about those who are left, and I am talking principally about the young.  What are they doing?  Well, some, a minority, are fanatical churchgoers, members of the most extreme of the Holy Roller sects.  Many, many more are “Moslems,” by affiliation or sympathy, that is to say that they are united by nothing more — and nothing less — than a hatred of the white world and all its works.  They are present, for example, at every Buy Black street-corner meetings — meetings in which the speaker urges his hearers to cease trading with white men and establish a separate economy. Neither the speaker or his hearers can possibly do this, of course, since Negroes do not own General Motors or RCA or the A&P, nor, indeed, do they own more than a wholly insufficient fraction of anything else in Harlem (those who do own anything are more interested in their profits than in their fellows).  But these meetings nevertheless keep alive in the participators a certain pride of bitterness without which, however futile this bitterness may be, they could scarcely remain alive at all.  Many have given up.  They stay home and watch the TV screen, living on the earnings of their parents, cousins, brothers, or uncles, and only leave the house to go to the movies or to the nearest bar.  “How’re you making it?” one may ask, running into them along the block, or in the bar.  “Oh, I’m TV-ing it”; with the saddest, sweetest, most shamefaced of smiles, and from a great distance.  This distance one is compelled to resepct; anyone who has traveled so far will not easily be dragged into the world.  There are further retreats, of course, than the TV screen or the bar.  There are those who are simply sitting on their stoops, “stoned,” animated for a moment only, and hideously, by the approach of someone who may lend them the money for a “fix.”  Or by the approach of someone from whom they can purchase it, one of the shrewd ones, on the way to prison or just coming out.

And the others, who have avoided all of these deaths, get up in the morning and go downstairs to meet “the man.”  They work in the white man’s world all day and come home in the evening to this fetid block.  They struggle to instill in their children some private sense of honor or dignity which will help the child survive.  This means, of course, that they must struggle, stolidly, incessantly, to keep this sense alive in themselves, in spite of the insults, the indifference, and the cruelty they are certain to encounter in their working day.  They patiently browbeat the landlord into fixing the heat, the plaster, the plumbing; this demands prodigious patience; nor is patience usually enough.  In trying to make their hovels habitable, they are perpetually throwing good money after bad.  Such frustration, so long endured, is driving many strong, admirable men and women whose only crime is color to the very gates of paranoia.

One remembers them from another time — playing handball in the playground, going to church, wondering if they were going to be promoted at school.  One remembers them going off to war — gladly, to escape this block.  One remembers their return.  Perhaps one remembers their wedding day.  And one sees where the girl is now — vainly looking for salvation from some other embittered, trussed, and struggling boy — and see the all-but-abandoned children in the streets.

Now I am perfectly aware that there are other slums in which white men are fighting for their lives, and mainly losing.  I know that blood is also flowing through those streets and that the human damage there is incalculable.  People are continually pointing out to me the wretchedness of white people in order to console me for the wretchedness of blacks.  But an itemized account of the American failure does not console me and it should not console anyone else.  That hundreds of thousands of white people are living, in effect, no better than the “niggers” is not a fact to be regarded with complacency.  The social and moral bankruptcy suggested by this fact is of the bitterest, most terrifying kind.

The people, however, who believe that this democratic anguish has some consoling value are always pointing out that So-and-So, white, and So-and-So, black, rose from the slums into the big time.  The existence — the public existence — of, say, Frank Sinatra and Sammy Davis, Jr. proves to them that America is still the land of opportunity and that inequalities vanish before the determined will.  It proves nothing of the sort.  The determined will is rare — at the moment, in this country, it is unspeakably rare — and the inequalities suffered by the many are in no way justified by the rise of a few.  A few have always risen — in every country, every era, and in the teeth of regimes which can by no stretch of the imagination be thought of as free.  Not all of these people, it is worth remembering, left the world better than they found it.  The determined will is rare, but it is not invariably benevolent.  Furthermore, the American equation of success with the big time reveals an awful disrespect for human life and human achievement.  This equation has placed our cities among the most dangerous in the world and has placed our youth among the most empty and most bewildered.  The situation of our youth is not mysterious.  Children have never been very good at listening to their elders, but they have never failed to imitate them.  They must, they have no other models.  That is exactly what our children are doing.  They are imitating our immorality, our disrespect for the pain of others.

All other slum dwellers, when the bank account permits it,, can move out of the slum and vanish altogether from the eye of persecution.  No Negro in this country has ever made that much money and it will be a long time before any Negro does.  The Negroes in Harlem, who have no money, spend what they have on such gimcracks as they are sold.  These include “wider” TV screens, more “faithful” hi-fe sets, more “powerful” cars, all of which, of course, are obsolete long before they are paid for.  Anyone who has ever struggled with poverty knows how extremely expensive it is to be poor; and if one is a member of a captive population, economically speaking, one’s feet have simply been placed on the treadmill forever.  One is victimized, economically, in a thousand ways — rent, for example, or car insurance.  Go shopping one day in Harlem — for anything — and compare Harlem prices and quality with those downtown.

The people who have managed to get off this block have only got as far as a more respectable ghetto.  This respectable ghetto does not even have the advantages of the disreputable one, friends, neighbors, a familiar church, and friendly tradesmen; and it is not, moreover, in the nature of any ghetto to remain respectable long.  Every Sunday, people who have left the block take the lonely ride back, dragging their increasingly discontented children with them.  They spend the day talking, not always with words, about the trouble they’ve seen and the trouble — one must watch their eyes as they watch their children — they are only too likely to see.  For children do not like ghettos.  It takes them nearly no time to discover exactly why they are there.


I will post the remainder of Baldwin’s essay tomorrow.

Making of a Terrorist Part II

Another month, another terror prosecution.  This one involves Najibullah Zazi, his father Mohammed, and an imam, Ahmad Wais Afzail.  Prosecutors are alleging in characteristically vague fashion that the Zazis had plans to execute a London-style bombing of mass transit vehicles in New York and perhaps elsewhere.  Two of the more notable pieces of evidence that have been recovered from the Zazis are a scale (yikes!) and bomb-making notes (double yikes!).  The legal blogosphere has been abuzz about the decision of the younger Zazi to speak to the Feds which ultimately netted him several false statement charges.  No surprise there.  Even though his attorney, Arthur Folsom, has had minimal federal criminal defense experience, he should have known better.  At the very least, he could have conducted his own investigation to see what information the Feds might have had (yes, he’d probably have a hard time doing this, you know, state secrets, FISA, all that) on Zazi before serving his client up on a platter as he did.  Mr. Afzail, in contrast, is being represented by Ron Kuby, a well-known criminal defense and civil rights attorney in New York who’s clients in a quasi-partnership with William Kunstler, included Colin Ferguson (LIRR shooter), Sheikh Omar Abdel-Rahman, and other unsavory characters.

TalkLeft has great coverage of the Zazi matter.  It’s author is a criminal defense lawyer based in Denver, where the Zazi’s are currently being held and will eventually be prosecuted.

Coming Soon!

Dear Readers,

I am in the process of setting up the blog which mostly means finding time to collect my thoughts and write coherent commentary on all things criminal law and civil rights related.  It will happen, even today, perhaps.  Thank you all for your patience and understanding.

In the meantime, why not check out the website for my law practice here.

– AW