As we await the U.S. Supreme Court’s decision in Chaidez, we learn that the highest court in Florida has come out against retroactive application of Padilla. The case, which I have written about here and here, is Gabriel Hernandez v. State, SC11-941. Before reaching the question of Padilla retroactivity, however, the Hernandez court decided an issue that, if I correctly recall, appeared in one form or another in the Fourth Circuit’s recent decision in United States v. Akinsade (see my prior blog post); namely, whether a court’s admonishment at a plea proceeding regarding immigration consequences precludes a defendant from bringing a claim for ineffective assistance vis a vis Padilla. The Florida Supreme Court answered that question in the negative.
It is unlikely that Hernandez will be persuasive precedent in cases that originate outside of Florida. The court analyzed the Padilla retroactivity issue solely under Florida state law. And in marked contrast to the Chaidez case, the parties seemed to concede that Padilla represented a “new rule”, which meant that advocates of retroactive application had the tough task of convincing the court that Padilla represented, in the words of the Hernandez court, “a development of fundamental significance” — a standard that, at least in the federal realm, no decision has been able satisfy save for, perhaps, the decision in Gideon v. Wainwright.
The opinion in Hernandez can be downloaded here.
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.