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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