Tag Archives: Teague v. Lane

Padilla Retroactivity Making Another Trip to the Supreme Court?

Earlier this month the Ninth Circuit Court of Appeals decided the case of United States v. Chan.  That case involves a longtime U.S. green card holder and British national who is trying to get her prior convictions for perjury overturned.  The argument is that the lawyer who represented the green card holder misled her on what would happen to her immigration status if she decided to plead guilty, which she ultimately did.

The convictions at issue are old, dating back to 1993, but they are surfacing now because the immigration authorities recently initiated deportation proceedings against the green card holder, relying on the 1993 convictions.

The issue in the case is whether the green card holder is entitled to postconviction relief because her former attorney misled her about the immigration consequences of her prior convictions.  If she does, then there is a chance she may also be able to avoid deportation.

The district/trial court said no but the appeals court disagrees.  The appeals court rules that the green card holder is allowed to rely on and benefit from a Ninth Circuit decision that came out after the green card holder was convicted of perjury.

Generally, decisions that are issued after the event for which one seeks relief cannot be applied retroactively.  But there are exceptions to this rule, and in some cases the rule just doesn’t apply.  Here, the green card holder convinced the appeals court that the rule of non-retroactivity did not apply to the decision that she says is her key to overturning her perjury convictions.  That decision is United States v . Kwan, 407 F.3d 1005 (9th Cir. 2005).

There was a smattering of opinions in this case among the three judges who were on the appellate panel.  One judge (Bybee) agreed that Kwan could be applied retroactively but said that the green card holder could still benefit from Kwan on the basis of stare decisis — the latin phrase for “to stand by things decided” — because the two cases are identical.  When applied to court decisions this principle signifies that prior court decisions should control cases that come after it.  What Justice Roberts once likened to a judge who just calls balls and strikes (Roberts placed himself in that category of judges).

Another judge (Ikuta) disagreed with the majority’s retroacitivity analysis.  Ikuta acknowledged that the case before the court was a “sympathetic” one but thought the majority came out wrong in its legal analysis.

In any event, the significant aspect of the Ninth Circuit’s decision in Chan, aside from the benefit it confers to our green card holder, is that it deepens the split among the federal appeals courts on whether decisions making it unlawful for an attorney to affirmatively misadvise a client on immigration consequences can be applied retroactively.  I know, an issue that sounds like something only a lawyer, or a lawyer’s lawyer, would get excited about.  But its implications are considerable given that immigration continues to remove record numbers of foreign nationals from this country come hell or high water.  Right now, one appellate court has said yes to retroactivity (the Second Circuit), and another one has said no (the Seventh Circuit).  If you’re keeping score, that is 2 for retroactivity and 1 for non-retroactivity.

The existence of a circuit split also means that it makes it more likely that the Supreme Court will eventually step in to resolve the disagreements among the courts.  It did so once already on a very similar issue and ruled against retroactivity.  Might it do the same thing this time around?

Transcript of Oral Arguments in Chaidez Released

The transcript of the oral arguments in Chaidez, which took place yesterday, can be accessed here.  The initial take on the arguments is that less than a majority of the Justices seemed to think that Padilla could be applied retroactively.  Moreover, it didn’t seem like this was a case where the outcome would rest on a swing vote; but if there were one, I would say it would be probably be Justice Kennedy.

The arguments were covered by the New York Times and Reuters.  The Times also has an editorial today in which it urged the Court to apply Padilla retroactively to Ms. Chaidez’s case and vacate her conviction.

Some Early Term Padilla-Activity in the Supreme Court And A Thought From Yours Truly

The Justices of the U.S. Supreme Court have reconvened for yet another term and with Chaidez still pending before the Court, it comes as no surprise that the Court issued hold orders in several other cases concerning the retroactive application of Padilla v. Kentucky.  As reported by the SCOTUS blog:

Diaz v. Wyoming11-9831, is our pivot between relists and holds, because it is formally a relist (it’s been distributed for both the September 24 and October 5 Conferences) but looks a heck of a lot like a routine hold for Chaidez v. United States11-820, the case seeking retroactive application of the holding in Padilla v. Kentucky that the failure to advise clients that pleading guilty to an offense will subject them to deportation constitutes ineffective assistance of counsel.  (Disclaimer:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in Chaidez.)  It is not immediately apparent to us how Diazdiffers materially from the slew of Chaidez holds discussed below, but something may have caught the Court’s eye.  Insert puzzled emoticon.

It goes on further to discuss others cases, in addition to Diaz, which have received hold treatment from the Court in light of Chaidez:

Argument is still nearly a month away and already Chaidez v. United States11-820, appears to have yielded five holds:  Poblete v. Arizona11-1381Diaz-Palmerin v. United States11-1414Alshaif v. North Carolina,11-10826Shahly v. Florida11-9642; and Gaitan v. New Jersey11-10846.  Plus, there’sDiaz v. Wyoming11-9831, the holdish relist described above.  Like Chaidez, all these cases concern the potential retroactivity of Padilla.

Lastly, and this observation may be coming a bit late in the game, but I have been tracking Padilla-related decisions for some time, both because I need to for my own practice and because I want to for the benefit of my fellow practitioners and the public at large.  In doing go, I have seen many courts, when faced with the Padilla retroactivity issue, decide not to address it but instead proceed to the merits on the petitioner’s Padilla ineffective assistance claim — especially, if doing so results in the denial of the petition at issue.  This is wrong on several levels. It often denies the petitioner an opportunity to fully present his case on collateral review, which is almost always the first and last forum where he can present a claim of ineffective assistance, since the court generally issues its decision on the pleadings rather than on a fully developed factual record as was the case in Chaidez.  And it is often contrary to the Supreme Court’s directive that “if the State does argue that the defendant seeks  the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim.”  Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (citation omitted).  As I noted above, this issue will become moot once the Supreme Court answers the Padilla retroactivity question some time in the next year.  But I cannot help but wonder how many otherwise meritorious requests for postconviction relief have been wrongly denied based on a court’s cursory review of the petitioner’s claim, when, what it could have done, was either decide the retroactivity question and only that question or, more preferably,  hold off on deciding the petition entirely until the Supreme Court issues its decision in Chaidez.