Tag Archives: Postconviction

Cert. Denied in Morris v. Virginia – UPDATED

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.

Not the Last Word

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.


Seventh and Tenth Circuits Rule on Padilla Retroactivity

I apologize again for the delay in posting.  Things have been hectic around here, both work-wise and life-wise.  For those of you who follow developments with Padilla retroactivity, this is probably old news.  But the Seventh and Tenth Circuits have recently issued opinions holding that Padilla cannot be applied retroactively.  Notably, the Seventh Circuit reversed Judge Gotschall’s groundbreaking decision in Chaidez which has been covered extensively in this blog.  (See posts here and here.)  The case from the Tenth Circuit is United States v. Chang Hong (Case No. 10-6294) and was an appeal from a denial of a 2255 habeas petition.  Of note in Hong is that the petitioner there argued that Padilla is a new rule so he could extend the statute of limitations for his habeas claim; his petition was otherwise untimely.

I will have more to say about both decisions soon.  Meanwhile, the opinion in Chaidez (including a persuasive dissent) is here, the one in Hong, here.

Meanwhile, it will be interesting to see how these rulings will affect the application for writ of certiorari in Morris (post here) that is currently pending in the Supreme Court on Padilla retroactivity.  Will anyone of the losing parties in Chaidez and Hong also appeal to the Supreme Court?  If so, which case presents the more ideal vehicle for (a) getting cert granted and (b) reversing the appellate decision on Padilla retroactivity?

Padilla Retroactivity in SCOTUS?

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.

Additional Thoughts on Orocio

The Third Circuit Court of Appeals might be the first federal appellate court to rule on Padilla retroactivity but it certainly won’t be the last.  Indeed, as of this writing, the Government has sought a re-hearing, en banc, in Orocio, a request that will likely be granted, considering the import of the issues.  Here are some of my thoughts/observations on the case:

(1) The facts in Orocio were almost identical to those in Padilla (longtime lawful permanent resident; relatively minor drug charge) which apparently helped in persuading the Third Circuit to rule in Orocio’s favor.

(2) The postconviction vehicle of choice was a petition for a writ of error coram nobis; here, the defendant would have been out of time were he to file a 2255 habeas petition.  The court didn’t address any procedural issues related to this since the lower court had not done so.

(3) In deciding that Padilla announced an “old rule” and could therefore be applied retroactively, the Third Court looked simply to Strickland’s threshold standard of reasonableness, which, the Supreme Court has ruled, applies in the plea context.  According to the Third Circuit then “[f]ar from extending the Strickland rule into uncharted, Padilla reaffirmed defense counsel’s obligations to the criminal defendant during the plea process, a critical stage in the proceedings.”  And just because the Strickland standard is successfully applied to a new factual circumstance does not necessarily mean that it creates a “new rule” for retroactivity purposes — this is especially the case when the claim involves a “rule of general applicability” which was the product of the Strickland case.

(4) The Third Circuit overruled prior precent in finding that the petitioner made out a prima facie case for Strickland prejudice.  Thus, defendant’s no longer have to show so-called factual innocence; instead,  a defendant need only show that it would have been rational for him to reject the plea and proceed to trial, which appears to be a less onerous standard.  Under the reasoning of the Orocio court, in cases where deportation is a potential consequence of one’s plea-based conviction, it is almost always rational for a defendant to reject a plea and proceed to trial.  But that’s just my reading of the decision.

I post here the Third Circuit’s official opinion in Orocio.  The Government’s brief is here, the Appellant’s, here.  The Appellant’s reply brief is here.

Federal Appellate Court Rules that Padilla Can Be Applied Retroactively

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.

April Showers Bring May Flowers*

[*I have been informed by my ever helpful wife that we are in June; I will neither admit nor deny whether I knew this at the time I thought of this title but point out that the decisions at issue in this blog post were issued in May!]

The once prevailing wind of hostility by federal judges toward Padilla retroactivity claims has now begun to blow the other way.  Two federal district courts recently held that Padilla did not announce a “new rule” for retroactivity purposes, i.e., Padilla could be applied retroactively, and granted, yes granted, the petitioners in those cases postconviction relief.

The cases are United States v. Krboyan, decided in the Eastern District of California, and Amer v. United States, a Northern District of Mississippi matter.  It is notable that each case involved different procedural vehicles for seeking postconviction relief; in Krboyan, it was a petition for writ of error coram nobis, in Amer, a section 2255 habeas petition [although the court, in a move of great significance, sua sponte converted this into a petition for writ of error coram nobis thereby obviating the need for the petitioner to argue that his otherwise untimely 2255 petition fell within section 2255(f)(3)’s “new rule” exception, otherwise know as the death knell for Padilla retroactivity.  Also notable is the fact that the holdings originated in two pretty different circuits, in terms of the general ideological sweep of decisions which affect criminal procedure and immigration: Ninth Circuit versus Fifth Circuit.

The Krboyan case can be downloaded here, Amer, here.

In other Padilla retroactivity news, the Supreme Court of New Jersey recently accepted a case with potentially profound impact on Padilla retroactivity law.  The case is State v. Frensel Gaitan, which was previously covered in this blog here.  The question to be answered, according to the New Jersey Supreme Court website, is as follows:

Do the decisions in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and State v. Nunez-Valdez, 200 N.J. 129 (2009) apply to this non-citizen defendant’s argument, raised for the first time in his post-conviction relief petition, that his attorney failed to discuss with him the deportation consequences of his guilty plea?

If anyone has access to the briefs in the Gaitan case [as they become available] and would be willing to share them with other readers, please let me know.

Issue of Padilla Retroactivity Heating Up In State Appellate Courts

The issue of Padilla retroactivity has been making its way through the State appellate courts.  I have already written about the ruling from the Minnesota Court of Appeals which held in Campos v. State that Padilla could be applied retroactively.  Campos, however, was not the first state appellate case to hold as such.  Just four days before Campos was decided, the Texas Court of Appeals, in State v. Golding, ruled in similar fashion: “Considering the language of the Padilla opinion, the Strickland analysis, and the prevailing professional norms occasioned by major changes in immigration law, we hold that Padilla — as an extension of Strickland, and not a new constitutional rule — applies to this case.” State v. Golding, slip op. at 24-25.  The opinion in Golding can be downloaded here.

I should also point out that the Florida Court of Appeals has chimed in on Padilla retroactivity, albeit unfavorably to potential Padilla postconviction petitioners (say that three times in a row!).  The case is Gabriel Hernandez v. State of Florida, Case No. 3D10-2462 (3d  Dist. Apr. 6, 2011).  The saving grace here, as ALIA has helpfully pointed out, is that the Hernandez decision had little analysis on Padilla retroactivity and ultimately certified the question to the Florida Supreme Court.  This will definitely be a case to watch.

Campos: Padilla is an “old rule”, applies retroactively

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.

Dennis: Padilla is a “New Rule”, Not Retroactive

From the District of South Carolina comes another decision holding that Padilla is a “new rule” as per Teague v. Lane and therefore cannot be applied retroactively.  The case is Dennis v. United State, Case No. 08-CR-889-JFA (D.S.C. Apr. 19, 2011) and the petitioner there challenged his conviction by way of a Section 2255 habeas petition.  To support its “new rule” holding, the Dennis court relied primarily on its finding that Padilla was the not “dictated” by prior precedent at the time it was decided — a conclusion that at first blush might appear correct but with greater reflection is deeply flawed.

The decision can be downloaded here.