Issues
Does the recent Supreme Court decision Padilla v. Kentucky, which allows an individual to contest a conviction based on a lawyer’s failure to provide information of the deportation consequences to pleading guilty, apply to individuals with convictions made final before the Court decided Padilla?
In 2003, Roselva Chaidez pleaded guilty to an “aggravated felony” under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), but her lawyer failed to inform her that her plea made her eligible for deportation. Subsequently, the Supreme Court held in Padilla v. Kentucky that the right to effective assistance of counsel includes a duty to inform defendants of deportation consequences of a plea deal if the consequences are clear. Nevertheless, the Seventh Circuit Court of Appeals held that Padilla did not apply retroactively to Chaidez’s conviction. Chaidez argues that the Supreme Court should hold that Padilla was dictated by precedent (and therefore not a new rule) and is retroactively applicable to her case. The United States counters that Padilla was not dictated by precedent (and therefore was a new rule) and is not retroactively applicable to Chaidez’s conviction. Chaidez argues that Padilla should be retroactively applied because to hold otherwise would undermine the obligation of prosecutors to “seek justice,” which requires using their knowledge of immigration consequences when considering to alter convictions. In response, the United States counters that retroactively applying Padilla would allow defendants to avoid the consequences of their convictions based on a minor error by a lawyer.
Questions as Framed for the Court by the Parties
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation.
The question presented is whether Padilla applies to persons whose convictions became final before its announcement.
Facts
Roselva Chaidez was born in Mexico and has been a lawful, permanent resident of the United States since 1977. In 2003, the government charged Chaidez with mail fraud for her involvement in a false claim for $26,000 against an insurance company. Because Chaidez was not a U.S. citizen and the amount of damages exceeded $10,000, the mail-fraud charges constituted an “aggravated felony” under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). Moreover, the federal statute allows the deportation of a permanent resident (noncitizen) who is convicted of an aggravated felony. On December 3, 2003, Chaidez pled guilty to the charges on her lawyer’s advice.
In 2007, Chaidez unsuccessfully applied for U.S. citizenship and, in 2009, immigration authorities sought to deport her. On January 25, 2010, Chaidez filed a motion for a writ of coram nobis, which allows a defendant to challenge a conviction when the defendant is not in custody and therefore cannot rely on the writ of habeas corpus. Chaidez argued that her lawyer violated her Sixth Amendment right to effective assistance of counsel by failing to inform her that pleading guilty might result in her deportation under the IIRIRA.
Meanwhile, on March 31, 2010, before the district court ruled on Chaidez’s motion, the United States Supreme Court held in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that criminal defense attorneys must inform their clients of any clear deportation consequences that might result from pleading guilty. The district court judge held that the Supreme Court in Padilla did not announce a new rule of law but merely applied a preexisting rule. Therefore, the district court judge applied Padilla and vacated Chaidez’s conviction, holding that Chaidez received ineffective assistance of counsel.
On August 23, 2011, the Seventh Circuit Court of Appeals reversed the district court’s decision and reinstated Chaidez’s conviction. Contrary to the district court’s reasoning, Judge Joel Flaum held that Padilla created a new rule that did not apply retroactively to Chaidez’s conviction. Accordingly, Judge Flaum remanded the case to the district court to consider Chaidez’s motion.
After the Seventh Circuit Court of Appeals denied Chaidez’s petition for a rehearing, Chaidez appealed to the U.S. Supreme Court. On April 30, 2012, the Supreme Court granted certiorari on the question of whether Padilla applies to individuals who were convicted of crimes before the Supreme Court decided Padilla.
Analysis
Both parties agree that, under the holding of Teague v. Lane, 489 U.S. 288 (1989), a federal court cannot apply a new rule or obligation of criminal procedure to cases in which the individual was convicted before the creation of the rule. Chaidez argues that the recent ruling in Padilla, in which the U.S. Supreme Court held that effective assistance of counsel includes informing clients about deportation consequences, merely applied a prior decision, Strickland v. Washington, 466 U.S. 668 (1984), to the facts of Padilla, using prevailing professional standards and precedent as a guide. The United States counters that the Padilla decision did not explicitly state that it merely applied an old rule to new facts and the disagreement among other courts and within Supreme Court is evidence that the answer to Padilla’s legal question was far from clear and so a “new rule.”
DID PADILLA CREATE A NEW RULE?
Chaidez argues that the rule in Padilla should be interpreted as applying a general rule to new facts. In the context of Teague, Chaidez argues, a general rule applies to a wide variety of situations. According to Chaidez, a long line of cases leading to Teague established that a case has to be so exceptional to create a new rule from a general one. Chaidez goes on to assert that Strickland v. Washington, established a general rule pertaining to claims of ineffective counsel. This rule, as Chaidez sees it, requires a defendant to show that the representation of counsel fell below an objectively reasonable level. Chaidez then points out several post-Strickland cases that applied the Strickland standard without creating a new rule. For example, in considering the holding of Roe v. Flores-Ortega, 528 U.S. 470 (2000), Chaidez notes that the failure of defendant’s counsel to advise a client of the right to appeal a conviction after pleading guilty was an instance of ineffective counsel, but not a new rule. Because the Court has held that all prior ineffective counsel claims have followed the Strickland rule rather than establish a new rule, Chaidez argues it would be a departure from precedent to interpret Padilla, in the same line of cases, as establishing a new rule.
In response, the United States contends that, under Teague, Padilla created a rule, because a rule is “new” unless to understand the rule as new would have been unreasonable at the time of the defendant’s conviction. According to the United States, Chaidez must show more than that Padilla could have been “supported” or even “controlled” by precedent, but that all the court decisions that Padilla overruled were unreasonable. Examining the jurisprudential landscape at the time the Court decided Padilla, the United States argues that the “all reasonable jurists” standard was clearly not met. The United States notes that all ten federal courts of appeal, the District of Columbia Court of Appeals (“DC Circuit”), and 28 of 30 state courts that had addressed the issue of whether counsel had to inform clients of the immigration repercussions of guilty pleas had ruled differently than the Court in Padilla. The United States also asserts that the Padilla decision did not explicitly rely on precedent and so implied a new legal rule. In addition, the United States points out that the decision explicitly stated that the Court recognized a “new ground” to challenge guilty pleas. Finally, the United States also cites the opinions of concurring and dissenting justices from Padilla, noting that their opinions all stressed that the decision was departing from, rather than following, Court precedent.
DID PADILLA APPLY A GENERAL RULE TO NEW FACTS?
Chaidez claims that Padilla applied a general rule that defense attorneys “consult with the defendant on important decisions” to the specific facts arising in Padilla. In support of the prevailing norm that defense attorneys give advice on potential immigration consequences, Chaidez notes the decision in Immigration and Naturalization Service v. St. Cyr, where the Court opined that “competent defense counsel” would inform clients of immigration consequences of convictions, as evidence that there was a preexisting norm prior to Padilla. In referring further to St. Cyr, Chaidez points out that the Court referred to a number of professional guidelines advising attorneys to pay special attention to immigration consequences of convictions. Additionally, Chaidez asserts that the cases with contrary holdings to Padilla were decided prior to St. Cyr, and many cases heard after that decision held that Strickland did apply to immigration advice. See id. Finally, Chaidez argues that any case after St. Cyr that held differently than Padilla also held that giving bad advice was different than no advice, thereby contradicting Strickland’s assertion that omissions can cause counsel to stray from the “range of professionally competent assistance.”
The United States argues that by considering whether Padilla applied Strickland, the Court would be overlooking a Sixth Amendment threshold question. Before determining how Strickland applied to the situation, according to the United States, the Padilla court first had to decide whether the Sixth Amendment applied to deportation consequences, a decision that had never before been made. The United States asserts that the use of professional standards was only applicable to reasonableness, not as a means to determine the Sixth Amendment’s scope. Furthermore, the United States notes that St. Cyr did not hold that the Sixth Amendment required defense counsel to advise their client on immigration consequences of pleading guilty, but instead quotes the Court when it states that deportation proceedings have no effect on the “various protections that apply in the context of a criminal trial.”
Discussion
Whether Padilla applies retroactively implicates two main concerns. First, several state and federal prosecutors argue that holding for Chaidez would allow prosecutors to fulfill their ethical obligations to consider immigration consequences when renegotiating plea deals, whereas the several states see a ruling for Chaidez as a windfall to defendants who pled guilty to crimes. Second, several state and federal prosecutors claim that the difficulty of proving a claim of ineffective assistance of counsel mitigates concerns pertaining to docket overload, whereas several states counter that ruling for Chaidez would overburden courts with frivolous litigation.
WHAT IS THE PROPER BALANCE BETWEEN RENEGOTIATING PLEA DEALS AND PRESERVING THE FINALITY OF CONVICTIONS?
Prosecutors for Chaidez argue that the prosecutor’s ethical obligation to “pursue justice” and concomitant discretion to renegotiate plea deals override the benefits of final convictions. Specifically, Prosecutors for Chaidez note that, since Padilla clarified the duties of defense lawyers, a ruling against Chaidez will narrow their own discretion to renegotiate plea deals in light of immigration penalties. Prosecutors for Chaidez note that judges can sua sponte (without the prosecutor’s consent) assert a ruling of non-retroactivity, which would further limit prosecutorial discretion to renegotiate plea deals. Finally, the American Immigration Lawyers Association notes that prosecutors have already applied Padilla retroactively and so allowed individuals to make informed decisions in weighing the charges brought against them with the deportation risks to themselves and their families.
In support of the United States, New Jersey and other states (“New Jersey et al.”) emphasize that upsetting the finality of convictions undermines the deterrence function and efficiency of criminal law and that the significant time between conviction and post-conviction renegotiation would make it difficult for prosecutors to reassess convictions under new constitutional requirements. Consequently, New Jersey et al. argue that applying Padilla to past convictions would allow criminals to escape punishment. Moreover, New Jersey et al. argue that finality is crucial for plea deals, which constitute most criminal convictions and help the criminal justice system operate efficiently. Finally, New Jersey et al. assert that convicting the innocent is not a major concern in guilty pleas because such pleas “rest . . . on a defendant’s profession of guilt in open court.”
WOULD MAKING PADILLA RETROACTIVE BURDEN THE CRIMINAL JUSTICE SYSTEM?
Prosecutors for Chaidez argue that there are numerous safeguards to block illegitimate claims from flooding the courts, should the Supreme Court hold that Padilla applies retroactively. For example, Prosecutors for Chaidez note that to prove that a lawyer ineffectively assisted a client, the client must overcome a “strong presumption” that his or her lawyer acted reasonably, show that the client would have insisted on going to trial but for the lawyer’s bad advice, and pursue this claim before any applicable “time bar.” Moreover, Prosecutors for Chaidez argue that the presumption that a lawyer acted reasonably is so substantial in the case of plea deals that it will discourage frivolous claims.
In support of the United States, New Jersey et al. counter that current judicial safeguards cannot prevent the onslaught of claims that retroactive application of Padilla would provoke. Moreover, New Jersey et al. argue that a holding for Chaidez will increase litigation costs and force state public defenders to learn the intricacies of deportation under federal civil statutes. Emphasizing that Padilla imposes significant burdens on criminal defense lawyers, New Jersey et al. claim that state criminal defenders would have to consult federal immigration law experts to explain the complexities of deportation law at significant cost to taxpayers.
Conclusion
In this case, the Supreme Court will determine whether Padilla v. Kentucky, which held that the right to effective assistance of counsel includes a duty to inform clients of deportation consequences, created a rule that cannot apply to convictions prior to that decision. Petitioner Chaidez argues that the decision stemmed from a general rule from Strickland v. Washington that counsel’s performance must be objectively reasonable, and that Padilla merely applied Strickland to new facts. The United States, as respondent, counters that all cases create a new rule, unless all reasonable jurists would have ruled differently. This case will affect the finality of convictions, either reaffirming the importance of finality by not allowing defendants to avoid guilty pleas, or emphasizing the need to allow prosecutors discretion to ensure that a guilty plea does not lead to excessive punishment.