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.
The U.S. Supreme Court recently decided Chaidez v. United States, 568 U.S. __ (Feb. 20, 2013), holding that Padilla v. Kentucky, 559 U. S. ___ (2010), isn’t retroactive. Padilla held that criminal defense attorneys must inform non-citizen clients of the risks of deportation arising from guilty pleas. As I noted in a post here, Padilla generated a lot of post-conviction litigation in North Carolina and across the nation. The primary issue in those cases is whether defendants whose convictions became final prior to Padilla could benefit from the Padilla rule. Put another way, the question is whether Padilla applies retroactively.
But back to the recent decision. Chaidez, originally from Mexico, became a lawful permanent resident of the United States in 1977. About 20 years later she pleaded guilty to two counts of federal mail fraud. That conviction became final in 2004. Under federal immigration law these offenses are “aggravated felonies,” subjecting Chaidez to mandatory removal from the country. In 2009, federal authorizes initiated removal proceedings against Chaidez. She then filed a motion to overturn the federal convictions, arguing that her lawyer never told her that she’d be subject to mandatory removal and that this failure constituted ineffective assistance of counsel. While her petition was pending, the U.S. Supreme Court handed down its Padilla decision, agreeing that a failure to inform a non-citizen of mandatory deportation was ineffective assistance of counsel. However, Chaidez’s fraud convictions had become final five years earlier. Thus, Chaidez could only benefit from the decision if it applied retroactively to her convictions. The trial court held that Padilla did not announce a new rule and therefore should apply to Chaidez’s case. It went on to find that her counsel had performed deficiently under Padilla and that she suffered prejudice. As a result it vacated her convictions. The Seventh Circuit reversed. When the case came before the U.S. Supreme Court the only issue was whether Padilla announced a new rule.
The high Court found that Padilla announced a new rule that did not apply retroactively to Chaidez’s case. Chaidez didn’t argue that Padilla fell into one of the two narrow exceptions to the non-retroactivity rule. The first exception to the non-retroactivity rule applies to new substantive—as opposed to procedural—rules. The second applies to watershed rules of criminal procedure. Because the issue of whether Padilla fell into one of those exceptions wasn’t raised, the Court didn’t address it. But defense lawyers shouldn’t hold out much hope on that issue. I can pretty much argue anything (ask my husband of 20 years!) but even I can’t think of a way to frame Padilla as a substantive rule. And as for the watershed rule of criminal procedure exception, don’t place any bets there—the U.S. Supreme Court has never held any new rule to be a watershed rule of criminal procedure. And it has opined that given how developed the criminal law is, such rules are unlikely to emerge.
In any event, our court of appeals gets a gold star. As I discussed here, about a year ago the N.C. Court of Appeals weighed in, concluding that Padilla was a new rule that did not apply retroactively. In Chaidez the U.S. Supreme Court agreed.
Today, I wanted to note two timely and interesting items concerning the United States Supreme Court.
First, the Court just granted certiorari in Chaidez v. United States, a case that presents the issue of whether Padilla v. Kentucky applies retroactively. Padilla, of course, is the case that requires criminal defense attorneys, in some circumstances, to counsel their clients about the immigration consequences of criminal convictions. SCTOUSblog covers the basics of Chaidez here. Remember that the North Carolina Court of Appeals has ruled that Padilla is not retroactive, as discussed here, and that the issue is the subject of a split of authority nationally, as discussed here.
Second, remember Kentucky v. King, the case that essentially demolished the so-called officer-created exigency doctrine? (If you don’t, check out this prior post.) As I noted at the time, the Court did not determine whether the facts of King actually amounted to exigent circumstances — it merely held that the officers did not improperly create any exigency. The case was remanded to the Supreme Court of Kentucky, which reached the more fundamental question and ruled that the circumstances weren’t exigent. More details here at the Volokh Conspiracy.