In Padilla v. Kentucky (2010), the Supreme Court in a path-breaking decision held that an ineffective assistance of counsel claim under the Sixth Amendment could be based on the failure to inform a criminal defendant of the immigration consequences of a criminal conviction before entering into a plea agreement. Earlier this week, in Chaidez v. United States, Justice Kagan, writing for six other Justices, concluded that, under the principles set out in Teague v. Lane (1989), Padilla should not apply retroactively to criminal convictions entered before March 2010.
The petitioner in the case, Roselva Chaidez, entered the United States from Mexico in 1971 and became a lawful permanent resident in 1977. In connection with an automobile insurance fraud scam in which she had received less than two thousand dollars, she – on advice of her attorney – had pleaded guilty to two counts of mail fraud and was sentenced to probation and to pay restitution. Her conviction became final in 2004. According to Chaidez, her attorney never warned her that her conviction could result in her mandatory removal from the country. In 2009, after Chaidez’s naturalization petition brought her and her conviction to the attention of the federal government, removal proceedings were instituted against her. Through a writ of coram nobis, Chaidez sought to set aside her conviction. While the petition was pending, the Court issued its decision in Padilla v. Kentucky. The Seventh Circuit held in Chaidez’s case that Padilla does not apply to a challenge to a conviction that became final before it was decided. On Wednesday the Supreme Court agreed.
At the outset, the Court observed that Teague v. Lane “makes the retroactivity of our criminal procedures decisions turn on whether they are novel.” (emphasis added). The Court notes that “garden-variety applications of the test in Strickland v. Washington (1984), for assessing claims of ineffective assistance of counsel do not produce new rules.” However, the decision in Padilla v. Kentucky, in the Court’s view, “did something more” than that. Before Padilla, the state and lower federal courts almost unanimously concluded that the Sixth Amendment does not require attorneys to advise their clients of a conviction’s collateral consequences, including possible removal from the country. Padilla rejected that rule. No precedent dictated the answer. “Padilla’s holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been – in fact, was not – ‘apparent to all reasonable jurists’ prior to our decision. Padilla thus announced a ‘new rule.’”
In the last footnote of the opinion, the majority declined to address two arguments that the Court deemed were not properly raised in the lower courts – “that Teague’s bar on retroactivity does not apply when a petitioner challenges a federal conviction, or at least does not do so when he makes a claim of ineffective assistance.” These issues may well reappear before the Supreme Court in the near future.
Justice Thomas, who dissented in Padilla, concurred in the judgment, still believing that the case was wrongly decided and, in any event, should not apply to Chaidez’s case.
Justice Sotomayor, joined by Justice Ginsburg, dissented. She reasoned that, rather than establish a new rule, Padilla “did nothing more than apply the existing rule of Strickland v. Washington (1984),” governing ineffective assistance of counsel, “in a new setting.”
Chaidez is the latest application of the Teague v. Lane retroactivity test. By most accounts, Padilla represented a significant change in the law. Consequently, it proved challenging for Chaidez to prevail in showing that, for retroactivity purposes, Padilla did not in fact create a “new” or “novel” rule. A majority of the Court ruled that the change in the law was sufficiently significant that it should not apply retroactively.
There is little reason to think that Chaidez will have much of an impact on the Court’s retroactivity or immigration jurisprudence. The Court understood this to be a run-of-the mill application of the retroactivity principles of Teague v. Lane, with the junior Justice assigned the decision. Moreover, although tangentially involving immigration law, the decision does not meaningfully address any issues of immigration law or change in any way the holding in Padilla v. Kentucky.
At the same time, the Supreme Court’s holding that Padilla v. Kentucky will not apply retroactively will no doubt affect large numbers of plea deals in which the convictions were entered into before March 2010. The Obama administration has made it a priority to remove “criminal aliens” from the United States and has based many removal actions on convictions more than a few years old. Ultimately, thousands, if not, tens of thousands, of lawful permanent residents facing removal are likely to be affected by Chaidez and likely to suffer significant hardships if removed from the United States. Chaidez, for example, has lived in the United States for four decades and has three children and two grandchildren who are U.S. citizens. Now facing removal, she faces the possibility of being stripped from the only community and family she really has ever known.
Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in this case.
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