Tag Archives: Postconviction

Just a heads up that the losing parties in the three federal appellate court cases that dealt with Padilla retroactivity — Chaidez (7th Cir. — Padilla no retroactive), Chang Hong (7th Cir. — same) and Orocio (3d Cir. — Padilla retroactive) — have all signaled that they will be seeking en banc rehearings.  Also of note is that lawyers from the National Immigrant Justice Center have entered appearances on behalf of defendant in the Chaidez matter.  That will surely be one to watch.

Over in sovereign state territory, the two cases dealing with Padilla retroactivity that are pending before the New Jersey Supreme Court (State v. Frensel Gaitan) and the Florida Supreme Court (State v. Gabriel Hernandez) are just that, still pending.  I will post updates as they become available.

The Third Circuit Court of Appeals has held in United States v. Orocio that Padilla announced an “old rule” and can therefore be applied retroactively.  Although this was a 2-1 decision, the dissenting judge only took issue with the majority’s Strickland prejudice analysis.

In ruling that Padilla announced an “old rule” the Orocio court focused on Strickland’s bedrock standard of “reasonableness” under the circumstances.  It matters not then that Strickland would eventually be applied to potentially novel factual circumstances.  What matters is that the reviewing court looked to the reasonableness standard in determining whether there was a viable ineffective assistance of counsel claim.  This is precisely what the Supreme Court did in Padilla.

The decision can be downloaded here.

In a well-reasoned and potentially significant opinion, the Minnesota Court of Appeals has held that Padilla did not announce a “new rule” of constitutional criminal procedure and therefore applies retroactively.  In Campos v. State (Case No. A10-1395), the defendant, a legal permanent resident, pleaded to simple robbery and received a sentence of “365 days in the workhouse”, which, under immigration law, rendered the defendant deportable.  The defendant later sought to withdraw his plea claiming ineffective assistance of counsel under Padilla.  The trial court denied his motion, finding that Padilla could not be applied retroactively and that, in any event, the defendant did not receive ineffective assistance.  The sole issue on appeal was whether the trial court erred in deciding that Padilla could not be applied retroactively.

Here is the operative passage on Padilla retroactivity in Campos:

Campos argues that Padilla merely applied the long-standing principles regarding ineffective assistance of counsel enunciated in Strickland to specific facts and did not announce a new rule of constitutional criminal procedure. We agree. Given (1) the procedural posture of Padilla (a collateral attack on a guilty plea); (2) the clear references in the opinion to its application to collateral proceedings attacking guilty pleas; (3) the analysis under long-standing principles of the right to effective assistance of counsel; and (4) the absence of any mention of retroactivity, the conclusion that the opinion does not announce a new rule of criminal procedure seems self-evident to this court. See Padilla, 559 U.S. at ___, 130 S. Ct. at 1478 (stating “[i]n this postconviction proceeding . . . ); 1485–86 (discussing “nature of relief secured by a successful collateral challenge to a guilty plea” and “collateral challenge to a conviction”).

It is notable that at the time the Supreme Court decided Padilla, Minnesota state law, like that of many other states, only required counsel to advise a defendant on the “direct consequences” of a guilty plea, deportation not being one such consequence.  Recognizing that this doctrine had been “effectively overruled” by Padilla, the Campos court still found that Padilla did not constitute a “new rule” for retroactivity purposes.  Why?  Two reasons: because Padilla itself involved a collateral attack on a final conviction and also because a new rule is not invariably established every time Strickland is applied to a new set of facts as was the case in Padilla.

The decision in Campos can be downloaded here.