A Silver Lining for the Defense in Chaidez?

Tag Archives: padilla

A Silver Lining for the Defense in Chaidez?

Posted on March 13, 2013 by Jessica Smith

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.

Category: Procedure, Uncategorized | Tags: chaidez, padilla, retroactivity

U.S. Supreme Court Ruling: Padilla Is Not Retroactive

Posted on February 21, 2013 by Jessica Smith

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.

Category: Procedure, Uncategorized | Tags: chaidez, immigration consequences, ineffective assistance of counsel, padilla, retroactivity

Supreme Court Update

Posted on May 1, 2012 by Jeff Welty

N.C. Court of Appeals Rules that Padilla Is Not Retroactive

Posted on February 27, 2012 by Jessica Smith

In a post here, a former colleague [editor’s note: the post has my picture on it but as the byline notes, it was written by Sejal Zota] wrote about Padilla v. Kentucky, 130 S. Ct. 1473 (Mar. 31, 2010), a U.S. Supreme Court decision dealing with ineffective assistance of counsel in connection with advice regarding the immigration consequences of a plea. In Padilla, after pleading guilty to a charge of transporting a large amount of marijuana, the defendant, a lawful permanent resident of the United States for more than forty years, faced deportation. He challenged his plea, arguing that his counsel rendered ineffective assistance by failing to inform him that the plea would result in mandatory deportation and by incorrectly informing him that he did not have to worry about his immigration status because he had been in the country for a long time. The Court concluded that when, as in the present case, “the deportation consequence [of a plea] is truly clear,” counsel must correctly inform the defendant of this consequence. However, the Court continued, where deportation consequences of a plea are “unclear or uncertain[] [t]he duty of the private practitioner . . . is more limited.” It continued: “When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” The Court declined to rule whether the defendant was prejudiced by his lawyer’s deficient conduct.

I followed up on that post with one here dealing with the question of whether Padilla was retroactive to convictions that became final before it was decided. In that post, I noted that at the time there were no N.C. decisions on point and that courts in other jurisdictions were split on the issue. We now have N.C. law on point. In State v. Alshaif, the N.C. Court of Appeals recently held that Padilla does not apply retroactively. In Alshaif, the defendant, a lawful permanent resident of the United States, pleaded guilty to assault with a deadly weapon inflicting serious injury (AWDWISI) and was sentenced accordingly. This occurred in February of 2007, more than three years before Padilla was decided by the U.S. Supreme Court. In October of 2010, the defendant filed a motion for appropriate relief (MAR) arguing that his guilty plea was not knowing, voluntary, and intelligent because he received ineffective assistance by trial counsel, Mr. Branch. Apparently, the defendant met with Branch several times and informed Branch of his lawful permanent resident status. According to the defendant, Branch never advised the defendant of the immigration consequences of a conviction for AWDWISI. Instead, Branch advised the defendant to plead guilty to the offense. After the defendant completed his sentence, he was arrested by U.S. Department of Homeland Security agents and was served with a notice to appear at removal proceedings. As it turned out, the conviction for AWDWISI made the defendant deportable and ineligible to re-seek permanent residency. In his MAR, the defendant asserted that Branch was ineffective under Padilla. The trial court denied the MAR and the court of appeals granted certiorari.

When determining whether a federal rule applies retroactively, the relevant analysis is the Teague test. Applying that test, the court of appeals first determined that although Padilla was grounded in existing law, it announced a new rule. It reasoned: “Prior to Padilla, neither our state courts nor federal courts had interpreted [the law] as requiring counsel to advise a client of the immigration consequences of a guilty plea.” The court then went on to quickly determine that the rule was procedural and not substantive. Finally, it concluded that the new rule did not fall into the narrow non-retroactivity exception for watershed rules of criminal procedure. This latter conclusion is hardly surprising given that the U.S. Supreme Court has never found that exception to apply.

So what does this mean? It means that for cases that had not been initiated or were not final when Padilla was decided by the U.S. Supreme Court the holding of Padilla applies. But for cases that became final before the Padilla decision was issued—like Alshaif’s—the new rule does not apply.

Category: Procedure, Uncategorized | Tags: alshaif, ineffective assistance of counsel, padilla, retroactivity

Is Padilla Retroactive?

Posted on October 4, 2011 by Jessica Smith

In a post here [editor’s note: the post shows up with my picture for technical reasons, but it was written by Sejal Zota], a former colleague discussed Padilla v. Kentucky, 130 S. Ct. 1473 (Mar. 31, 2010), a U.S. Supreme Court decision dealing with ineffective assistance of counsel in connection with advice regarding the immigration consequences of a plea. In Padilla, after pleading guilty to a charge of transporting a large amount of marijuana, the defendant, a lawful permanent resident of the United States for more than forty years, faced deportation. He challenged his plea, arguing that his counsel rendered ineffective assistance by failing to inform him that the plea would result in mandatory deportation and by incorrectly informing him that he did not have to worry about his immigration status because he had been in the country for a long time. The Court concluded that when, as in the present case, “the deportation consequence [of a plea] is truly clear,” counsel must correctly inform the defendant of this consequence. However, the Court continued, where deportation consequences of a plea are “unclear or uncertain[] [t]he duty of the private practitioner . . . is more limited.” It continued: “When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” The Court declined to rule whether the defendant was prejudiced by his lawyer’s deficient conduct.

Padilla has generated a lot of post-conviction litigation nationally. And in North Carolina it’s no different—numerous motions for appropriate relief have been filed alleging that counsel was ineffective under Padilla by failing to properly advise defendants regarding the immigration consequences of their pleas. For defendants whose convictions became final prior to Padilla, retroactivity is a preliminary issue presented by those motions. As I discuss in more detail in a bulletin available here, under federal law a new rule of criminal procedure does not apply retroactively unless it is a watershed rule of criminal procedure. Put in visual form, retroactivity analysis for Padilla follows this path:

A number of courts in other jurisdictions have addressed the issue of whether Padilla is retroactive and a split of authority is emerging at the appellate level. Compare United States v. Hong, __ F.3d __, 2011 WL 3805763 (10^th Cir. Aug. 30, 2011) (Padilla is a new rule but not a watershed rule and thus is not retroactive), and Chaidez v. United States, __ F.3d __, 2011 WL 3705173 (7^th Cir. Aug. 23, 2011) (as a new rule, Padilla is not retroactive; because the parties agreed that the rule was not a watershed rule of criminal procedure, the court did not address that issue), with United States v. Orocio, 645 F.3d 630 (2d. Cir. 2011) (Padilla is not a new rule and thus applies retroactively), and Commonwealth v. Clarke, 949 N.E.2d 892 (Mass. 2011) (same). The North Carolina appellate courts have not yet dealt with the issue. But given the post-conviction motions before the trial bench, it is only a matter of time before we see a decision. When we do, I’ll post an update.

Category: Procedure, Uncategorized | Tags: immigration, ineffective assistance of counsel, padilla, retroactivity

A New Constitutional Mandate for Defense Counsel

Posted on April 1, 2010 by Jeff Welty

by School of Government Immigration Law Specialist Sejal Zota

Is defense counsel constitutionally obligated to inform a noncitizen criminal defendant whether his guilty plea carries a risk of deportation? Yesterday, the United States Supreme Court said yes in a case called Padilla v. Kentucky.

In Padilla, the petitioner—a lawful permanent resident (green card holder) for over 40 years and Vietnam veteran—faced drug-distribution charges in a Kentucky trial court. His attorney advised him to plead guilty in exchange for a lighter sentence and not “to worry about [deportation] since he had been in the country so long.” Padilla took this advice. When he learned that his lawyer’s immigration advice was wrong and he would face deportation for his conviction, he sought to overturn it by arguing that he would have gone to trial but for counsel’s incorrect advice. The Supreme Court of Kentucky rejected his claim, holding that advice about deportation is a “collateral consequence” of conviction, and outside the scope of representation required by the Sixth Amendment.

Holding that deportation is an integral part of the penalty that may be imposed on noncitizen criminal defendants, the United States Supreme Court reversed. The Court found that the protections of Strickland v. Washington, 466 U.S. 688 (1984)—which entitle criminal defendants to effective assistance of counsel before deciding to plead guilty—apply to advice regarding deportation. The Court also found the Kentucky court’s distinction between direct and collateral consequences was beside the point.

In evaluating Padilla’s ineffectiveness claim, the Court found that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms—“This is not a hard case in which to find deficiency: The consequences of Padilla’s plea could be easily determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect.” Clear and unambiguous immigration law made the crime of drug distribution to which Padilla pled guilty a basis for deportation of noncitizens because it relates to a nontrivial possession of a controlled substance.

The Court’s ruling yesterday did not wholly resolve Padilla’s claim. The Court declined to address whether he had been prejudiced by his attorney’s actions and remanded for further proceedings. In assuaging a “floodgates” concern, the Court held that to establish prejudice, a reviewing court must be convinced that a petitioner’s decision to reject a plea bargain would have been rational under the circumstances.

What’s interesting about this case is the Court could have limited the holding to “affirmative misadvice”— finding representation may be constitutionally deficient only when defense counsel actually provides advice about deportation and that advice is patently wrong. Before yesterday, many state and federal courts had long held such a view. But instead, the Court’s ruling recognized the seriousness of deportation as a consequence of a criminal plea, and now obligates defense counsel to inform noncitizen clients about the risk of deportation. The Court has given defense counsel across the Nation an important responsibility that many had already undertaken in cooperation with immigration attorneys. But it will not always be an easy task.

“When the deportation consequences are truly clear, the duty to give correct advice is equally clear.” As someone who regularly consults in this area, I can tell you that determining deportation consequences can be complex stuff. Deportation may depend on various factors such as a client’s immigration status; the length of sentence; whether the state offense falls under broad grounds of deportation like crimes involving moral turpitude, whether a state disposition will be treated as a conviction for immigration purposes … you get the picture. It may often be the case that the deportation consequences of a particular plea are unclear to defense counsel. In those instances, the Court places a lesser burden on defense counsel: when the deportation consequences of a particular plea are unclear or uncertain, “defense counsel need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

Fortunately, many defender offices around the country, including in North Carolina, are ahead of the curve. Many already train staff on immigration consequences with the help of networks of experts. Foreshadowing the Padilla decision, the School of Government has already published a manual on the Immigration Consequences of a Criminal Conviction in North Carolina. It appears that the manual may become required reading for the criminal defense bar. I am also available to help public defenders and assigned counsel determine the immigration consequences of convictions.

Category: Procedure, Uncategorized | Tags: immigration, ineffective assistance of counsel, padilla

North Carolina Criminal Law NC Criminal Law

Search

About

Tag Archives: padilla