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.