In 2003, Roselva Chaidez pleaded guilty to an “aggravated felony” under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), but her lawyer failed to inform her that her plea made her eligible for deportation. Subsequently, the Supreme Court held in Padilla v. Kentucky that the right to effective assistance of counsel includes a duty to inform defendants of deportation consequences of a plea deal if the consequences are clear. Nevertheless, the Seventh Circuit Court of Appeals held that Padilla did not apply retroactively to Chaidez’s conviction. Chaidez argues that the Supreme Court should hold that Padilla was dictated by precedent (and therefore not a new rule) and is retroactively applicable to her case. The United States counters that Padilla was not dictated by precedent (and therefore was a new rule) and is not retroactively applicable to Chaidez’s conviction. Chaidez argues that Padilla should be retroactively applied because to hold otherwise would undermine the obligation of prosecutors to “seek justice,” which requires using their knowledge of immigration consequences when considering to alter convictions. In response, the United States counters that retroactively applying Padilla would allow defendants to avoid the consequences of their convictions based on a minor error by a lawyer.
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation.
The question presented is whether Padilla applies to persons whose convictions became final before its announcement.
Does the recent Supreme Court decision Padilla v. Kentucky, which allows an individual to contest a conviction based on a lawyer’s failure to provide information of the deportation consequences to pleading guilty, apply to individuals with convictions made final before the Court decided Padilla?
Roselva Chaidez was born in Mexico and has been a lawful, permanent resident of the United States since 1977. See Chaidez v. United States, 655 F.3d 684, 686 (7th Cir. 2011). In 2003, the government charged Chaidez with mail fraud for her involvement in a false claim for $26,000 against an insurance company. See id.; Brief for Petitioner, Roselva Chaidez at 3; Brief for Respondent, United States at 3. Because Chaidez was not a U.S. citizen and the amount of damages exceeded $10,000, the mail-fraud charges constituted an “aggravated felony” under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). See Chaidez, 655 F.3d at 686; see also 8U.S.C. § 1101(a)(43)(M)(i). Moreover, the federal statute allows the deportation of a permanent resident (noncitizen) who is convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). On December 3, 2003, Chaidez pled guilty to the charges on her lawyer’s advice. See Chaidez, 655 F.3d at 686.
In 2007, Chaidez unsuccessfully applied for U.S. citizenship and, in 2009, immigration authorities sought to deport her. See Chaidez, 655 F.3d at 686;Brief for Petitioner at 4; Brief for Respondent at 3. On January 25, 2010, Chaidez filed a motion for a writ of coram nobis, which allows a defendant to challenge a conviction when the defendant is not in custody and therefore cannot rely on the writ of habeas corpus. See Chaidez, 655 F.3d at 687. Chaidez argued that her lawyer violated her Sixth Amendment right to effective assistance of counsel by failing to inform her that pleading guilty might result in her deportation under the IIRIRA. See Chaidez, 655 F.3d at 686; see also Strickland v. Washington, 466 U.S. 668, 686 (1984) (establishing the test for ineffectiveassistance of counsel).
Meanwhile, on March 31, 2010, before the district court ruled on Chaidez’s motion, the United States Supreme Court held in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that criminal defense attorneys must inform their clients of any clear deportation consequences that might result from pleading guilty. See Padilla, 130 S. Ct. at 1477 (“[W]hen the deportation consequence is truly clear . . . the duty to give correct advice is equally clear.”). The district court judge held that the Supreme Court in Padilla did not announce a new rule of law but merely applied a preexisting rule. Therefore, the district court judge applied Padilla and vacated Chaidez’s conviction, holding that Chaidez received ineffective assistance of counsel. See Chaidez, 655 F.3d at 686.
On August 23, 2011, the Seventh Circuit Court of Appeals reversed the district court’s decision and reinstated Chaidez’s conviction. See id. at 690. Contrary to the district court’s reasoning, Judge Joel Flaum held that Padilla created a new rule that did not apply retroactively to Chaidez’s conviction. See id. at 690–693. Accordingly, Judge Flaum remanded the case to the district court to consider Chaidez’s motion. See id. at 694.
After the Seventh Circuit Court of Appeals denied Chaidez’s petition for a rehearing, Chaidez appealed to the U.S. Supreme Court. On April 30, 2012, the Supreme Court granted certiorari on the question of whether Padilla applies to individuals who were convicted of crimes before the Supreme Court decided Padilla. See Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), cert. granted, 132 S. Ct. 2101 (2012) (No. 11-820).
Whether Padilla applies retroactively implicates two main concerns. First, several state and federal prosecutors argue that holding for Chaidez would allow prosecutors to fulfill their ethical obligations to consider immigration consequences when renegotiating plea deals, whereas the several states see a ruling for Chaidez as a windfall to defendants who pled guilty to crimes. See Brief of Amicus Curiae Active and Former State and Federal Prosecutors (“Prosecutors for Chaidez”) in Support of Petitioner at 6; Brief of Amicus Curiae New Jersey et al. (“New Jersey”) in Support of Respondent at 29. Second, several state and federal prosecutors claim that the difficulty of proving a claim of ineffective assistance of counsel mitigates concerns pertaining to docket overload, whereas several states counter that ruling for Chaidez would overburden courts with frivolous litigation. See Brief of Prosecutors for Chaidez at 24–25; see Brief of New Jersey at 26.
WHAT IS THE PROPER BALANCE BETWEEN RENEGOTIATING PLEA DEALS AND PRESERVING THE FINALITY OF CONVICTIONS?
Prosecutors for Chaidez argue that the prosecutor’s ethical obligation to “pursue justice” and concomitant discretion to renegotiate plea deals override the benefits of final convictions. See Brief of Prosecutors at 7; see also Model Rules of Prof’l Conduct R. 3.8 cmt. (2010). Specifically, Prosecutors for Chaidez note that, since Padilla clarified the duties of defense lawyers, a ruling against Chaidez will narrow their own discretion to renegotiate plea deals in light of immigration penalties. See Brief of Prosecutors at 6. Prosecutors for Chaidez note that judges can sua sponte (without the prosecutor’s consent) assert a ruling of non-retroactivity, which would further limit prosecutorial discretion to renegotiate plea deals. See id. at 9. Finally, the American Immigration Lawyers Association notes that prosecutors have already applied Padilla retroactively and so allowed individuals to make informed decisions in weighing the charges brought against them with the deportation risks to themselves and their families. See Brief of Amicus Curiae The American Immigration Lawyers Associationin Support of Petitioner at 21–23 (discussing the case of Andy Song).
In support of the United States, New Jersey and other states (“New Jersey et al.”) emphasize that upsetting the finality of convictions undermines the deterrence function and efficiency of criminal law and that the significant time between conviction and post-conviction renegotiation would make it difficult for prosecutors to reassess convictions under new constitutional requirements. See Brief of New Jersey at 26, 28. Consequently, New Jersey et al. argue that applying Padilla to past convictions would allow criminals to escape punishment. See id. at 28. Moreover, New Jersey et al. argue that finality is crucial for plea deals, which constitute most criminal convictions and help the criminal justice system operate efficiently. See id. at 27. Finally, New Jersey et al. assert that convicting the innocent is not a major concern in guilty pleas because such pleas “rest . . . on a defendant’s profession of guilt in open court.” See id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 82–83 (2004)).
WOULD MAKING PADILLA RETROACTIVE BURDEN THE CRIMINAL JUSTICE SYSTEM?
Prosecutors for Chaidez argue that there are numerous safeguards to block illegitimate claims from flooding the courts, should the Supreme Court hold that Padilla applies retroactively. See Brief of Prosecutors at 26. For example, Prosecutors for Chaidez note that to prove that a lawyer ineffectively assisted a client, the client must overcome a “strong presumption” that his or her lawyer acted reasonably, show that the client would have insisted on going to trial but for the lawyer’s bad advice, and pursue this claim before any applicable “time bar.” See id. at 26–27 (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)); see also Hill v. Lockhart, 474 U.S. 52, 59 (1985) (clarifying Strickland’s “prejudice” requirement). Moreover, Prosecutors for Chaidez argue that the presumption that a lawyer acted reasonably is so substantial in the case of plea deals that it will discourage frivolous claims. See id. (quoting Premo v. Moore, 131 S. Ct. 733, 745 (2011)).
In support of the United States, New Jersey et al. counter that current judicial safeguards cannot prevent the onslaught of claims that retroactive application of Padilla would provoke. See Brief of New Jersey at 26. Moreover, New Jersey et al. argue that a holding for Chaidez will increase litigation costs and force state public defenders to learn the intricacies of deportation under federal civil statutes. See id. at 29; see alsoBrief of Amicus Curiae Criminal Justice Legal Foundation in Support of Respondent at 9 (noting the “problem of continually marshaling resources to defend old judgments”). Emphasizing that Padilla imposes significant burdens on criminal defense lawyers, New Jersey et al. claim that state criminal defenders would have to consult federal immigration law experts to explain the complexities of deportation law at significant cost to taxpayers. See Brief of New Jersey at 26 (quoting Arizona v. United States, 132 S. Ct. 2492, 2506 (2012)).
Both parties agree that, under the holding of Teague v. Lane, 489 U.S. 288 (1989), a federal court cannot apply a new rule or obligation of criminal procedure to cases in which the individual was convicted before the creation of the rule. See Brief for Petitioner at 13; Brief for Respondent at 10. Chaidez argues that the recent ruling in Padilla, in which the U.S. Supreme Court held that effective assistance of counsel includes informing clients about deportation consequences, merely applied a prior decision, Strickland v. Washington, 466 U.S. 668 (1984), to the facts of Padilla, using prevailing professional standards and precedent as a guide. See Brief for Petitioner at 19. The United States counters that the Padilla decision did not explicitly state that it merely applied an old rule to new facts and the disagreement among other courts and within Supreme Court is evidence that the answer to Padilla’s legal question was far from clear and so a “new rule.” See id.at 17.
DID PADILLA CREATE A NEW RULE?
Chaidez argues that the rule in Padilla should be interpreted as applying a general rule to new facts. See Brief for Petitioner at 12. In the context of Teague, Chaidez argues, a general rule applies to a wide variety of situations. See id. at 14. According to Chaidez, a long line of cases leading to Teague established that a case has to be so exceptional to create a new rule from a general one. See id. at 14–15. Chaidez goes on to assert that Strickland v. Washington, established a general rule pertaining to claims of ineffective counsel. See id. at 15. This rule, as Chaidez sees it, requires a defendant to show that the representation of counsel fell below an objectively reasonable level. See id. Chaidez then points out several post-Strickland cases that applied the Strickland standard without creating a new rule. See id. at 16. For example, in considering the holding of Roe v. Flores-Ortega, 528 U.S. 470 (2000), Chaidez notes that the failure of defendant’s counsel to advise a client of the right to appeal a conviction after pleading guilty was an instance of ineffective counsel, but not a new rule. See id. at 16–17. Because the Court has held that all prior ineffective counsel claims have followed the Strickland rule rather than establish a new rule, Chaidez argues it would be a departure from precedent to interpret Padilla, in the same line of cases, as establishing a new rule. See id.at 16.
In response, the United States contends that, under Teague, Padilla created a rule, because a rule is “new” unless to understand the rule as new would have been unreasonable at the time of the defendant’s conviction. See Brief for Respondent at 10–11. According to the United States, Chaidez must show more than that Padilla could have been “supported” or even “controlled” by precedent, but that all the court decisions that Padilla overruled were unreasonable. See id. at 11?12. Examining the jurisprudential landscape at the time the Court decided Padilla, the United States argues that the “all reasonable jurists” standard was clearly not met. See id. at 11. The United States notes that all ten federal courts of appeal, the District of Columbia Court of Appeals (“DC Circuit”), and 28 of 30 state courts that had addressed the issue of whether counsel had to inform clients of the immigration repercussions of guilty pleas had ruled differently than the Court in Padilla. See id. at 13. The United States also asserts that the Padilla decision did not explicitly rely on precedent and so implied a new legal rule. See id. at 17–18. In addition, the United States points out that the decision explicitly stated that the Court recognized a “new ground” to challenge guilty pleas. See id. at 20. Finally, the United States also cites the opinions of concurring and dissenting justices from Padilla, noting that their opinions all stressed that the decision was departing from, rather than following, Court precedent. See id.at 22–23.
DID PADILLA APPLY A GENERAL RULE TO NEW FACTS?
Chaidez claims that Padilla applied a general rule that defense attorneys “consult with the defendant on important decisions” to the specific facts arising in Padilla. See Brief for Petitioner at 20–21. In support of the prevailing norm that defense attorneys give advice on potential immigration consequences, Chaidez notes the decision in Immigration and Naturalization Service v. St. Cyr, where the Court opined that “competent defense counsel” would inform clients of immigration consequences of convictions, as evidence that there was a preexisting norm prior to Padilla. See INS v. St. Cyr, 533 U.S. 289, 322–23 n.50 (2001); Brief for Petitioner at 22. In referring further to St. Cyr, Chaidez points out that the Court referred to a number of professional guidelines advising attorneys to pay special attention to immigration consequences of convictions. See Brief for Petitioner at 25. Additionally, Chaidez asserts that the cases with contrary holdings to Padilla were decided prior to St. Cyr, and many cases heard after that decision held that Strickland did apply to immigration advice. See id. Finally, Chaidez argues that any case after St. Cyr that held differently than Padilla also held that giving bad advice was different than no advice, thereby contradicting Strickland’s assertion that omissions can cause counsel to stray from the “range of professionally competent assistance.” See id.at 26.
The United States argues that by considering whether Padilla applied Strickland, the Court would be overlooking a Sixth Amendment threshold question. See Brief for Respondent at 31. Before determining how Strickland applied to the situation, according to the United States, the Padilla court first had to decide whether the Sixth Amendment applied to deportation consequences, a decision that had never before been made. See id. at 32. The United States asserts that the use of professional standards was only applicable to reasonableness, not as a means to determine the Sixth Amendment’s scope. See id. Furthermore, the United States notes that St. Cyr did not hold that the Sixth Amendment required defense counsel to advise their client on immigration consequences of pleading guilty, but instead quotes the Court when it states that deportation proceedings have no effect on the “various protections that apply in the context of a criminal trial.” See id.at 29.
In this case, the Supreme Court will determine whether Padilla v. Kentucky, which held that the right to effective assistance of counsel includes a duty to inform clients of deportation consequences, created a rule that cannot apply to convictions prior to that decision. Petitioner Chaidez argues that the decision stemmed from a general rule from Strickland v. Washington that counsel’s performance must be objectively reasonable, and that Padilla merely applied Strickland to new facts. The United States, as respondent, counters that all cases create a new rule, unless all reasonable jurists would have ruled differently. This case will affect the finality of convictions, either reaffirming the importance of finality by not allowing defendants to avoid guilty pleas, or emphasizing the need to allow prosecutors discretion to ensure that a guilty plea does not lead to excessive punishment.
· Agence France-Presse, Supreme Court will rule on if deportation ruling is retroactive, The Raw Story.
· The New York Times, Court Requires Warning about Deportation Risk, Adam Liptak.
· Wex: Immigration Law.