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The (non)retroactivity of Padilla

Roselva Chaidez's lawyer had a good idea.  Roselva was born in Mexico, but became a lawful permanent resident of the United States in 1977.  Twenty years later, she played a small role in defrauding an auto insurance company of $26,000, for which she was paid $2,000.  She pled guilty to two counts of mail fraud, and was given four years of probation.  That became final in 2004.

Five years later, the Immigration and Naturalization Service came a'knockin', because the two counts of mail fraud are "aggravated felonies" under immigration law, and require her removal from the country.  But Roselva's attorney in the criminal case had never told her of this.  So Roselva's new lawyer filed a writ, claiming that her old attorney had rendered ineffective assistance by failing to warn her of the immigration consequences.  That seemed like a really good idea when the Supreme Court handed down Padilla v. Kentucky, holding that Padilla's attorney had rendered ineffective assistance by failing to advise him that his conviction for marijuana trafficking would get him deported.  The judge in Roselva's case looked at Padilla, saw Roselva was making the same claim, and granted her relief.

The 7th Circuit reversed that, and six weeks ago, the Supreme Court affirmed, deciding that Roselva's and Padilla's claims were just too good.  

We know that the Ex Post Facto Clause shields defendants from the law being applied retroactively to them, but there's a flip side to retroactivity:  what happens when a ruling comes down that benefits your client?  Back a few years ago, when the Ohio Supreme Court decided in State v. Colon that an indictment had to allege a mens rea element, virtually everybody in prison started filing habeas petitions claiming that hadn't happened in their case, and they were entitled to a new trial.  (The court shut down that down pretty quickly by reversing Colon just two years later.)  But that presents the question:  when can a defendant claim the benefit of a new court ruling?  And that's why it's probably a good idea to take a look at Chaidez, because it explains that fairly clearly.

Or about as clearly as it can be explained.  The first step is determining exactly where the defendant is in the process, and there you have a very bright line:  if the case is pending at the time of the ruling, or on direct appeal, he gets the benefit.  Once the appeal process is exhausted, though, and you've got to depend on a collateral attack (habeas, post-conviction relief, a post-sentence motion to vacate the plea), he doesn't.

Maybe.  Here's where the line gets dimmer.  What governs this is the Supreme Court's 1989 decision in Teague v. Lane.  Basically, Teague holds that a decision doesn't apply retroactively depends if it announces a "new rule."

A case announces a new rule when it breaks new ground or imposes a new obligation on the government.  To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final. 

The Court later stated that a holding would be "new" unless it would have been "apparent to all reasonable jurists."

Seven justices in Chaidez had little trouble concluding that Padilla had indeed announced a new rule within the meaning of Teague, and it's hard to quibble with that determination.  While prior to Padilla the Court had found ineffective assistance of counsel in a variety of situations, and allowed defendants to benefit from that on indirect attack, Padilla had gone farther:  it held that an attorney could be found ineffective for failing to advise a defendant as to a collateral consequence of a conviction.  Perhaps the best indication that Padilla announced a new rule was that virtually every lower court which had considered the issue had held that failure to inform a defendant of a collateral consequence, including the effect on immigration status, was not deficient performance.

We could spend a lot of time talking about the problems with the Court's analysis in Chaidez -- and in Teague for that matter -- but it's probably better to concentrate on how this impacts representation of non-citizens in those cases.  There are a number of ways to limit that impact.

First, Chaidez arose in the context of a failure of an attorney to advise a client of the immigration consequences.  The opinion takes pains to distinguish between failure to advise and affirmative misadvice; a 6th Amendment challenge based on erroneous advice is arguably not governed by Chaidez

A second approach here, although a more difficult one, would be to argue that the attorney's failure to secure a reasonable alternative plea which would have limited the immigration consequences was deficient performance.  The Supreme Court's decisions last year in Missouri v. Frye and Lafler v. Cooper highlighted the importance of the attorney in the plea bargaining process, and applied the ineffective assistance standard to it.  There are numerous pre-Padilla sources, like the ABA Standards on Guilty Pleas, which talk about the importance of the attorney's awareness of immigration consequences in crafting a negotiation strategy.

Approaches can differ depending on jurisdictions as well.  In many Federal circuits, such as the 6th, direct appeal of a claim of ineffective assistance is disfavored, with a 28 USC 2255 post-conviction proceeding the preferred method; in those cases, counsel can obviously argue that not allowing collateral attack precludes any attack.  As for Ohio courts, we're arguably not bound by Chaidez because we're not bound by Teague; five years ago, in Danforth v. Minnesota, SCOTUS held that the Teague rule only applied to Federal habeas review of state court decisions, and that the states were free to develop their own rules regarding retroactivity.  Some state supreme courts have accepted the Teague analysis as their own, but Ohio hasn't, so you've got an opening here.

And openings are what you need.  One of the problems in this area is the substantial lapse of time that can occur between the time of the plea and the time the boys from INS come calling; in one case in the 8th District, that lapse was over forty years.  The Court in Padilla observed that the immigration consequences could be more severe than the direct criminal penalties.  Some good lawyering can prevent those consequences.


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