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A Silver Lining for the Defense in Chaidez?

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I previously posted here about the U.S. Supreme Court’s recent decision in Chaidez and its holding that Padilla does not apply retroactively. The Court’s ruling meant that lawful permanent resident Roselva Chaidez failed in her attempt to overturn her pre-Padilla federal convictions on the basis that her lawyer neglected to tell her that they would result in mandatory removal from the country. One might be tempted think that the case is likely to help clear post-conviction dockets nationwide. After all, many cases like Chaidez’s are still in the system and the Court’s holding makes simple work of the retroactivity issue: Motion denied! However, there is something in Chaidez that makes me wonder whether it will lead to a new flood of post-conviction motions. Let me explain.

It has generally been understood that the Sixth Amendment right to counsel applies to direct consequences of a plea but not to collateral consequences. Thus, a lawyer who fails to inform his or her client of a direct consequence of a plea–such as a mandatory minimum sentence–may be found to have rendered ineffective assistance of counsel under the Strickland attorney-error analysis. In contrast, no such claim would lie when the lawyer fails to inform a criminal defendant of a collateral consequence of a plea–such as loss of a professional license. Before Padilla, courts for the most part had been viewing immigration consequences as collateral and thus concluding that if a defense lawyer failed to advise his or her client about such matters, this failure could not constitute ineffective assistance of counsel. Padilla of course changed things. In Padilla, the Court stated that it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland” and went on to conclude that “[w]hether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.” Padilla v. Kentucky, 559 U.S. 356 (2010). It continued:

Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla’s claim.

Id. Characterizing this ruling in Chaidez, Justice Kagan, writing for the Court, stated that in Padilla “[w]e . . . breach[ed] the previously chink-free wall between direct and collateral consequences” and held that Strickland applied to the petitioner’s claim. Slip Op. at 9.

So that raises a question: Might other chinks appear in the wall? As Justice Kagan notes, there are many other effects of a conviction that are currently viewed as collateral, such as civil commitment, civil forfeiture, sex offender registration, disqualification from public benefits, and disfranchisement. Slip Op. at 6 n.5. Another is satellite-based monitoring for sex offenders. A concurring opinion in Padilla lists still more including ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses. It’s clear that Chaidez provides somewhat of a breather to post-conviction dockets by resolving the question of whether Padilla operates retroactively. What I’m wondering is whether it will spawn a new wave of post-conviction motions, arguing that other collateral consequences—like immigration consequences—are not categorically excluded from Sixth Amendment protection. Time will tell.

One comment on “A Silver Lining for the Defense in Chaidez?

  1. I think the Court in Padilla viewed immigration consequences to be so intertwined with a criminal conviction (indeed the criminal sentence can be less of a consequence to a defendant’s liberty than immigration consequences such as deportation) that they became almost inseparable. Also, the Padilla court discussed the dramatic change over the past decade or so to immigration law. The Padilla Court said:

    “These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”

    The Court in a post-conviction hearing would have to determine whether, following the logic of Padilla, these other collateral consequences likewise cause Defendants to suffer such an extreme penalty as immigration does in a conviction of a non-citizen. I could potentially see life-time sex offender registration as rising to this level but maybe not the others.

    It is almost impossible for a defense attorney to advise his or her clients as to all the possible consequences of a criminal plea, especially in those cases where your client needs to make a choice quickly (like in a probable cause hearing when the DA says to either take this reduced plea or we will indict you as a habitual felon, etc. etc.).

    Certainly when you are dealing with a non-citizen the immigration consequences should be pretty obvious and the defense attorney need only advise the client that they should probably speak with an immigration attorney before taking the plea. But adverse effects to things like professional licenses or public benefits can be so remote and so less severe, than say prison time, that those consequences probably don’t rise to a Padilla like level. But you never know…

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