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SCOTUS Hears Chaidez v. United States: Ineffective Assistance of Counsel Before Padilla
crImmigration.com held another online symposium leading up to last week’s Supreme Court argument in Chaidez v. United States, in which a National Immigrant Justice Center client argued that she had a right to effective assistance of counsel even though her case—in which her criminal defense attorney failed to inform her that pleading guilty would subject her deportation—took place before the Court's ruling in Padilla v. Kentucky in 2010. NIJC’s Baker & McKenzie Equal Justice Works Fellow Sarah Rose Weinman's recap of last Thursday’s argument is now up at the crImmigration.com symposium. Below is an edited version of her symposium contribution.
Chaidez v. United States at the Supreme Court: A Recap of Oral Arguments
After a forty-eight hour hurricane-induced delay, the Supreme Court heard oral arguments in Chaidez v. United States on the morning of Thursday, November 1, 2012.
NIJC co-counseled with Gerardo Gutierrez, Baker & McKenzie, and the Stanford Law School Supreme Court Litigation Clinic in representing Ms. Chaidez before the Supreme Court. Jeff Fisher of Stanford argued before the Court on behalf of Ms. Chaidez. Michael Dreeben argued on behalf of the government.
Playing by the Rules: Background and Overview of Chaidez.
To understand the issue before the Supreme Court in Chaidez, one has to first understand the Supreme Court’s 2010 decision in Padilla v. Kentucky. Padilla held that criminal defense lawyers must inform their non-citizen clients of the possible immigration consequences of pleading guilty; failure to do so constitutes ineffective assistance of counsel and gives rise to a Sixth Amendment claim for post-conviction relief. As with all of its ineffective assistance of counsel decisions, the Court in Padilla relied on a landmark case called Strickland v. Washington in its analysis. Strickland held that defense counsel is ineffective when (1) the lawyer’s performance was deficient, as measured by prevailing professional norms at the time the lawyer was representing the defendant, and (2) the outcome of the defendant’s case was prejudiced by the lawyer’s deficient performance. The Court applied the Strickland test in the Padilla decision itself, and found that the failure of Mr. Padilla’s lawyer to advise him on immigration consequences constituted deficient performance (the Court remanded the case to state court to determine whether Mr. Padilla had been prejudiced by his lawyer’s deficient performance).
Chaidez asks whether the rule in Padilla can be applied retroactively. In other words, can a non-citizen defendant who pleaded guilty to an offense before 2010 based on her defense attorney’s misadvice about the immigration consequences of doing so still file a Sixth Amendment ineffective assistance of counsel claim under Padilla?
The legal “retroactivity doctrine” presented in Chaidez belies a very simple, common-sense principle: only people who know the rules get to play by them. In criminal law, if a Supreme Court decision creates a new rule of criminal procedure, then only a criminal defendant whose proceedings take place after the decision was issued, or whose conviction is on direct appeal when the new Supreme Court decision comes down, can rely on that decision. However, if a Supreme Court decision merely restates an old rule and applies it to new facts, then individuals whose convictions became final well before that decision was issued may still rely on that decision in post-conviction challenges. The case in which the Supreme Court announced this “old rule / new rule” retroactivity limitation was Teague v. Lane. In Teague, the Court explained that the reason why not every new decision applies retroactively is because society has an interest in not revisiting old criminal convictions (the idea of “finality” of a criminal case) and because state courts have an interest in not having their cases revisited because of new federal rules (the idea of “comity” between federal and state courts).
The facts of Chaidez illustrate the doctrine. Roselva Chaidez – a longtime legal permanent resident of the United States – pleaded guilty in federal court to an insurance fraud offense in 2003 based on her defense lawyer’s failure to warn her that she might get deported for that offense. Had Ms. Chaidez known that she might face deportation, she would have taken her case to trial. But it was only years after her conviction became final that immigration authorities informed Ms. Chaidez that her conviction made her deportable and initiated deportation proceedings against her. Ms. Chaidez promptly filed a post-conviction petition in federal court stating that her conviction was not valid because of her lawyer’s misadvice. While Ms. Chaidez’s petition was pending, the Supreme Court issued its decision in Padilla – a case with facts quite similar to Ms. Chaidez’s, and which resulted in precisely the rule that Ms. Chaidez was already arguing in federal court: that failure to affirmatively and accurately advise a defendant client of the deportation consequences of a criminal plea constitutes ineffective assistance of counsel and gives rise to a Sixth Amendment claim challenging such a plea as invalid. But a lower federal court held that Ms. Chaidez could not benefit from Padilla because Padilla announced a new rule that did not apply retroactively to convictions that became final before 2010.
Ms. Chaidez’s case presents two arguments to the Supreme Court. First, that Padilla did not announce a “new rule” but merely applied the old Strickland ineffective assistance analysis to new facts of that case (i.e., immigration advice). Second, that the Teague “old rule / new rule” retroactivity doctrine shouldn’t apply to Ms. Chaidez’s case at all because the particular facts of her case don’t implicate society’s concerns with the finality of convictions or states’ interests in comity.
Whether Padilla Created a New Rule or Simply Applied Precedent to New Facts: Unanimous Wrongs Do Not Make a Right
At oral arguments, both Mr. Fisher and the government lawyer, Mr. Dreeben, spent considerable time discussing whether Padilla created a new rule or simply applied Strickland to new facts. And to prove their point, both lawyers talked about what state and lower federal courts had held about deportation consequences before the Padilla decision was issued.
Mr. Fisher pointed out that before Padilla, most state courts and lower federal courts to consider the issue had held that if a defense attorney gave her client incorrect advice about deportation consequences, the misadvice would give rise to a valid ineffective assistance of counsel claim. However, many courts prior to Padilla had held that if an attorney was silent as to deportation consequences, no ineffective assistance claim would obtain because deportation consequences are “collateral” to the criminal proceeding itself – i.e., not a direct consequence but merely an unfortunate byproduct. The Court in Padilla stated that the direct/collateral consequence didn’t make any sense when talking about deportation, because deportation was such a severe and important consequence. The Court pointed out in Padilla that since at least 2001, in its decision INS v. St. Cyr, it had acknowledged the importance of deportation as a criminal consequence and indicated that competent defense counsel would warn non-citizen clients of that consequence. As a result, the Court held that just as misadvice was ineffective, silence was ineffective. The Court in other words made the logical extension to apply the same ineffectiveness analysis to omissions (silence) as to acts (misadvice).
At oral argument, the government argued that Padilla’s failure to call deportation a collateral consequence made it a ground-breaking decision because it was contrary to those earlier court decisions that held that deportation was a collateral consequence. “So unanimous error makes right?” Justice Sotomayor quipped.
Her point was illustrated by a hypothetical that Mr. Fisher presented to the Court: if the Supreme Court issued a decision that applied to all cars, and over time lower courts carved out an exception for convertibles on the ground that they weren’t cars, then a later decision in which the Supreme Court clarified that convertibles indeed are cars and must comply with the initial decision could not be deemed a “new rule.” Just so, Mr. Fisher argued, Padilla’s abolishment of the direct-collateral consequence framework in the deportation consequence did not pronounce a new rule but merely corrected other courts’ misunderstanding of deportation as a collateral consequence.
Prompted by questions from several of the justices, Mr. Fisher further emphasized that no application of the Strickland ineffective assistance test could be considered a new rule, in part because the Strickland analysis requires an examination of prevailing professional norms at the time of the underlying guilty plea. In other words, an application of Strickland cannot be said to break new ground because the Strickland analysis itself hinges on what lawyers already were doing. And Justice Breyer pointed out that in none of the Supreme Court’s roughly 30 cases applying Strickland had it ever been said to create a new rule. Mr. Dreeben tried to argue that Padilla should be considered the exception to this bunch because it concerned a duty to advise on immigration consequences instead of what he called more “well settled duties” like the duty to investigate possible defenses. But, as Justice Breyer indicated, the fact that standard practice at least as early as 2001 was to advise on deportation consequences makes that practice a well settled duty too. Thus, the Court need look no further than the Strickland’s prevailing norms analysis to rule that Padilla merely applied an old rule rather than creating a new one.
Whether the Teague Retroactivity Analysis Should Apply in This Context: The Proof Is in the Pudding.
The parties also responded to numerous questions from the justices about whether Teague’s old rule-new rule retroactivity analysis was even applicable in Ms. Chaidez’s case. Mr. Fisher argued that it shouldn’t be, because the two driving principles of Teague – finality and comity – have no bearing in a case like Ms. Chaidez’s. He stated (and the justices seemed to agree) that the comity issue was inapposite because Ms. Chaidez’s conviction did not arise out of a state court but out of a federal court. And finality was not implicated here because a defendant seeking to file an ineffective assistance of counsel claim may not do so on direct appeal but only may do so for the first time in post-conviction proceedings. So, Mr. Fisher argued, in the particular context of ineffective assistance claims, the first post-conviction petition should be considered to be in the same procedural posture as a direct appeal. Justice Kagan seemed to agree, stating that post-conviction petitions in the ineffective assistance context constitute part of the same “run up the flagpole” as an appeal.
In response to Justice Alito’s and Justice Kennedy’s apparent concern that opening the Padilla rule up to pre-2010 convictions would flood the system with cases, Mr. Fisher emphasized that post-conviction petitions already have strict procedural time limits on when they can be brought, and that the “prevailing norms” aspect of the Strickland analysis further ensure that safeguards for the finality interest are already “baked in” to cases like Ms. Chaidez’s. Indeed, Mr. Fisher pointed out that requiring ineffective assistance claims to be brought on direct review – the solution that Mr. Dreeben proposed – would, unlike Ms. Chaidez’s arugment, flood the system with cases and introduce untenable inefficiencies on the federal criminal system.
Predicting the Split
The Court will issue its decision in Chaidez sometime before June 2013. No doubt Chaidez, like Padilla itself, will produce myriad opinions from the Court. On one side of the expected split, Justices Breyer, Sotomayor, and Ginsburg seemed to agree that Padilla did not create a new rule but merely applied Strickland to the facts of deportation advisals, and in so doing held that prevailing professional norms long have required that defense counsel advise non-citizen clients on the deportation consequences of a criminal plea. The other justices’ positions on that question were less clear, with the probable exception of Justice Scalia, who only thinly suggested at one point that no justice who dissented in Padilla likely would find that the decision did not create a new rule – a point that Mr. Fisher urged the dissenters to reconsider.
Similarly, Justices Breyer, Sotomayor, and Ginsburg all indicated that application of Teague may not be warranted in the context of cases like Ms. Chaidez’s because disruptions to the interests of finality and comity are not implicated in that context. Justices Kennedy, Alito and, to a lesser extent, Kagan, were more concerned with the question of finality, but Mr. Fisher’s responses seemed well taken. Alternatively, the Court may duck the question altogether if it finds that the question was not properly presented, as the government suggested and Mr. Fisher contested.
Adopting either of the petitioner’s arguments would allow long-time lawful permanent residents and others like Ms. Chaidez to vindicate their constitutional rights against incompetent defense lawyers. Although the number of people who would benefit from such a holding likely would be small, the impact on their lives and the lives of their family and community members would be immeasurable.
One thing is certain: if the Court holds in Chaidez that Padilla cannot be applied retroactively, it would be the first time that the Court has ever held that an application of Strickland creates a new rule. And that would be a groundbreaking decision indeed.
Sarah Rose Weinman is the Baker & McKenzie Equal Justice Works Fellow at Heartland Alliance's National Immigrant Justice Center