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.
Invisible Man 