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Justices weigh whether ruling goes retro

WASHINGTON — The question of where to draw the temporal line on criminal defendants’ Sixth Amendment right to be warned of the immigration consequences of a guilty plea took center stage during oral arguments last week in the U.S. Supreme Court.

The justices seemed torn on the issue of whether the court’s 2010 decision in Padilla v. Kentucky was a new rule, foreclosing the possibility of it being applied in older cases, or simply the articulation of an old rule, which would open the door to retroactive application.

The decision will have ramifications far beyond petitioner Roselva Chaidez, who was seeking to have her conviction vacated when the Supreme Court decided Padilla.

Chaidez, a Mexican national who was legally in the U.S., was charged with mail fraud. Following her counsel’s advice, she pleaded guilty in 2003 in exchange for a sentence of four years’ probation. Unbeknown to her, the conviction for an aggravated felony rendered her removable under federal immigration law.

After deportation proceedings against her began, Chaidez filed a petition for a writ of error coram nobis, under which a conviction may be challenged after the sentence is served. She based her petition on a claim of ineffective assistance of counsel.

While that motion was pending, the Supreme Court ruled in Padilla that attorneys must warn criminal defendants of any adverse immigration consequences of their pleas. The U.S. District Court then ruled in Chaidez’s favor, giving Padilla retroactive effect.

But the 7th U.S. Circuit Court of Appeals reversed. It held that Padilla announced a new rule of law, which, under the Supreme Court’s ruling in a 1989 case, Teague v. Lane, could not be applied retroactively.

Chaidez sought and was granted certiorari by the Supreme Court.

Of precedent and dissents

Jeffrey Fisher, co-director of Stanford Law School’s Supreme Court Litigation Clinic, argued on Chaidez’s behalf that Padilla was dictated by already-existing precedent that set the standard for ineffective assistance of counsel under the 1984 case Strickland v. Washington and its progeny.

“The court in Padilla simply applied Strickland’s formula of assessing attorney performance according to prevailing professional norms to a new set of facts,” Fisher argued.

Justice Elena Kagan questioned whether it was that easy.

“Before you get to the question of what are prevailing professional norms and whether they have been complied with, there is the question of whether the Sixth Amendment applies to collateral consequences at all,” Kagan said. “And that is the question on which Padilla opines.”

Fisher replied that already existing precedent interpreting the Sixth Amendment right to counsel “was enough to decide Padilla.”

Justice Antonin G. Scalia pointed out that Padilla was not unanimous. Four of the eight current justices who heard the case disagreed, at least in part, with the court’s holding.

“You … would agree, would you not, that those who dissented from that case would regard it as a new rule?” Scalia said.

“That’s a tricky question to answer,” Fisher said.

“Well, I think it’s an easy question to answer,” replied Scalia, who was one of the dissenters in Padilla.

‘Does common sense change?’

Deputy Solicitor General Michael R. Dreeben argued that the Padilla rule was clearly new, because previous case law accepted the use of prevailing professional standards, such as those established by the American Bar Association, to govern attorneys’ duties.

“What was unique in Padilla is that the court had to address something that it had never done before, whether the criminal defense lawyer had to give advice about a consequence that the sentencing court had no control over,” Dreeben said.

The justices peppered Dreeben with questions on this point.

“As I recall, one of the principal sources the court cited in Padilla was common sense,” Justice Anthony M. Kennedy said. “Does common sense change?”

“Common sense may evolve,” Dreeben said. “[W]e might all share an intuition that good lawyers should advise their clients about the panoply of consequences that they will experience by pleading guilty, [but] the reality is that until Padilla, the court had never veered from [that] track” to impose a specific duty to warn of immigration consequences.

The rule was so new, Dreeben argued, that it spurred a proposed change in criminal procedure.

“Immediately after Padilla came down … the Criminal Rules Committee began considering an amendment to Rule 11, which is now pending before the Judicial Conference, that would require judges to advise defendants about the possibility of deportation consequences,” Dreeben said.

A decision in the case, Chaidez v. United States, No. 11-820, is expected later this term.

Lawyers USA is a sister publication of The Daily Record. 

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