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Opinions – 10/22/12: Maryland Court of Special Appeals

Constitutional law

Retroactive effect of Supreme Court rulings

BOTTOM LINE: The holdings of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), and Denisyuk v. State, 422 Md. 462 (2011), did not apply retroactively to defendant, where defendant did not raise a Sixth Amendment claim in his petition for a writ of error coram nobis and only raised the issue of the voluntariness of his plea in light of the fact that he was not advised about deportation consequences of his conviction.

CASE: Miller v. State, No. 1907, Sept. Term, 2009 (filed Sept. 26, 2012) (Judges Meredith, Wright & MOYLAN (retired, specially assigned)). RecordFax No. 12-0926-05, 75 pages.

FACTS: In June 1999, Lincoln Miller pled guilty to possession of 448 grams of cocaine with the intent to distribute. At no time during the plea discussions was Miller advised on the record by the court or by counsel about any possibly adverse immigration consequences that might result from a conviction. Accepting the plea, which was otherwise voluntary and knowledgeable in every respect, the trial judge sentenced Miller to five years of imprisonment without the possibility of parole. Miller did not appeal that sentence. Following his release from prison in Maryland, Miller returned to New York to live with his wife.

A native of Belize, Miller received Lawful Permanent Resident status in the United States in 1981. In the spring of 2008, Miller visited Belize. Upon his return to the United States however, he was detained by Immigration and Customs Enforcement (“ICE”) agents at the Miami International Airport. Deportation proceedings against him were begun based on his 1999 conviction. The removal proceedings were held in abeyance, pending the resolution of this appeal.

In June 2009, Miller filed a petition for a writ of error coram nobis in the circuit court. He alleged that his guilty plea had not been tendered knowingly, voluntarily, and intelligently because: (1) he was not advised of the immigration consequences attendant to his plea, and (2) he was not advised prior to acceptance of his plea that, by pleading guilty, he was foregoing his right to direct appeal and was thus limited to four grounds for appeal. The circuit court denied the petition. The Court of Special Appeals affirmed.

Miller appealed to the Court of Appeals, which reversed and remanded the case to the Court of Special Appeals for reconsideration in light of Denisyuk v. State, 422 Md. 462 (2011).

On remand, the Court of Special Appeals affirmed the denial of Miller’s petition.

LAW: In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), filed on March 31, 2010, the Supreme Court held that the failure of a criminal defense attorney to warn a client, contemplating the entering of a guilty plea, about deportation as a possible consequence of conviction was, ipso facto, an instance of ineffective assistance of counsel.

On October 25, 2011, the Court of Appeals filed Denisyuk v. State, 422 Md. 462 (2011), stating that Padilla announced a new rule with respect to a Sixth Amendment claim of ineffective assistance of counsel and would, therefore, enjoy retroactive effect in Maryland, dating back to April 1, 1997.

Denisyuk focused, as did Padilla, on the Sixth Amendment right to the effective assistance of counsel as measured by the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984). Denisyuk’s analysis focused exclusively on the professional performance of defense counsel, as measured not by pre-existing caselaw but by emerging bar association standards of professional responsibility.

In Miller, by contrast, the issue had absolutely nothing to do with the Sixth Amendment or with ineffective assistance of counsel. The only concern in Miller was with the ultimate voluntariness of a guilty plea. See State v. Priet, 289 Md. 267 (1981).

The issues of the furnishing of advice about deportation and the voluntariness of even an unadvised guilty plea are distinct questions and decisions with respect to them could go in diametrically different directions. Rule 4-242(e) states that before the court accepts a plea of guilty, the defendant must be advised that by entering the plea, the defendant may face additional consequences of deportation, detention, or ineligibility for citizenship. The rule further states that “[t]he omission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid.”

In Denisyuk itself, 422 Md. at 484 n.9, the majority opinion quoted extensively from Rule 4-242(e) and expressly pointed out that when the advice mandated by the rule is not given, the unadvised defendant is “permit[ted] collateral challenges based on ineffective assistance of counsel” but that the guilty plea itself will not necessarily be invalidated.

Maryland in the past has followed the Supreme Court’s guidance on the issue of retroactivity/prospectivity. In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court stated: “In general…a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Id. at 301. If the Supreme Court ruling being examined is deemed to be “new law,” it will not be applied retroactively. Id. See Griffith v. Kentucky, 479 U.S. 314 (1987).

The Maryland case law, moreover, has tracked the Supreme Court’s treatment of the subject precisely. See Wiggins v. State, 275 Md. 689 (1975); State v. Hicks. 285 Md. 310 (1979).

In Lambrix v. Singletary, 520 U.S. 518, 527 (1997), the Supreme Court explained the two necessary steps in the retroactivity analysis that a court must always undertake: “First, it determines the date upon which the defendant’s conviction became final. Second, it must ‘“surve[y] the legal landscape as it then existed,’ and ‘determine whether a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution.”

The inquiry here, therefore, of whether the rule of Padilla was new law or was simply the application of an established principle to a fresh factual predicate is not ultimately directed at May 31, 2010, when Padilla was decided. Nor, in arguably applying Denisyuk, is the inquiry directed at March 7, 2007, when Denisyuk’s criminal conviction became final. It is directed at September 1, 1999, when Miller’s criminal conviction became final.

The decision in this case was not controlled by either Padilla or Denisyuk. They were both dealing with the Sixth Amendment right to the effective assistance of counsel generally and with the performance prong of Strickland specifically. Miller’s petition for a writ of error coram nobis did not raise a Sixth Amendment issue. The petition raised only Miller’s claim that his guilty plea was not voluntary. The effective assistance of counsel and the voluntariness of a guilty plea are separate and distinct issues.

A valid plea of guilty requires that the defendant be made aware of all “the direct consequences of his plea.” By the same token, however, before pleading the defendant need not be advised of all collateral consequences of his plea, or of all “possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction of a plea of guilty.” Cuthrell v. Director of Patuxent, 475 F.2d 1364, 1365 (1973).

In Padilla, the Supreme Court stated: “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. Strickland applies to Padilla’s claim.” Padilla, 176 L. Ed. 2d. at 293-94.

If that passing comment about the ill-suitedness of the direct/collateral distinction were capable of enjoying a retroactive life of its own, the question became whether it was “new law” or an established precedent when Miller’s conviction became final. The dispositive question was whether that particular statement from the Padilla opinion of March 31, 2010, could have retroactive applicability to Miller’s conviction that became final on September 1, 1999.

In assessing claims about the voluntariness of guilty pleas in light of non-advice about deportation, the universal position on collateral review generally was, prior to March 31, 2010, that deportation was a collateral consequence and that non-advice about a collateral consequence was not cognizable on collateral review.

As of September 1, 1999, there was not a single intimation, let alone a decision, to the effect that the distinction between a direct consequence and a collateral consequence was “ill-suited” to resolving a claim on collateral review involving non-advice about deportation. See, e.g., Fruchtman v. Kenton, 531 F.2d 946 (9th Cir. 1976); United States v. Yearwood. 863 F.2d 6, 7-8 (4th Cir. 1988).

Furthermore, Maryland has consistently held that deportation is a collateral consequence of a conviction and that the failure to have been advised as to a collateral consequence does not render the guilty plea involuntary. The Maryland cases, moreover, actually relied on the distinction between direct and collateral consequences rather than rejected it. See Yoswick v. State, 347 Md. 228 (1997).

Thus, as of September 1, 1999, the day on which Miller’s criminal conviction became final, there was no “existing precedent” that would have compelled or dictated 1) a legal ruling that the failure to advise a criminal defendant about deportation consequences would constitute the ineffective assistance of counsel according to the Sixth Amendment; 2) a legal ruling that such a Sixth Amendment violation would ipso facto render an otherwise acceptable guilty plea involuntary even in a case where a Sixth Amendment claim had not been raised; or 3) a legal ruling that judges conducting collateral review of criminal convictions may not rely on the distinction between the direct and collateral consequences of a conviction.

Accordingly, the circuit court properly denied Miller’s petition for a writ of error coram nobis.

COMMENTARY: Padilla was a badly fragmented opinion. The dissent of Justice Scalia, joined by Justice Thomas, notes that “[t]here is no basis in text or principle to extend the constitutionally required advice regarding guilty pleas beyond those matters germane to the criminal prosecution at hand.” Padilla, 176 L. Ed. 2d at 308-09.

The concurring opinion of Justice Alito, joined by Chief Justice Roberts, repeatedly referred to the majority opinion as one that was breaking new ground. His concurrence emphasized the “longstanding and unanimous position of the federal courts” that was diametrically opposed to the new approach being taken by the Padilla majority. Id. at 300.

Faced with the juggernaut of eleven out of eleven United States Courts of Appeals and 30 out of 30 states following a legal rule that was the diametric opposite of the rule announced in Padilla, the proponents of Pallilla’s retroactivity have been hard pressed to maintain that the Padilla rule was dictated or compelled by existing pre-Padilla precedent. Ignoring the states and turning only to the federal circuits, the proponents of retroactivity claim that any pre-1997 United States circuit court decision should be discounted because it came before the Illegal Immigration Reform and Immigration Responsibility Act (IIRAIRA) of 1996 (effective on April 1, 1997).

Between 1997 and the promulgation of Padilla in 2010, four United States Courts of Appeals, took up the question. Each of those circuits took the IIRAIRA of 1996 expressly into account, acknowledging the virtually automatic deportation of convicted aliens after that date. Four circuits out of four nonetheless declined to adopt a Padilla-type rule. In all four opinions, there was not a single dissenting voice. See United States v. Gonzalez, 202 F.3d 20 (1st Cir. 2000); United States v. Amador-Leal, 276 F.3d 511 (9th Cir. 2002); El-Nobani v. United States. 287 F.3d 417 (6th Cir. 2002); Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir. 2004).

Since Padilla was decided on March 31, 2010, four United States Courts of Appeals have weighed in on the specific question of whether Padilla 1) announced new law and was not, therefore, eligible for retroactive application; or 2) only applied settled principles and was, therefore, eligible for retroactive application. The vote was three to one against retroactivity. See United States v. Orocio, 645 F.3d 630 (3d Cir. 2011); United States v. Chang Hong, 671 F.3d 1147 (2011); United States v. Mathur, 685 F.3d 396 (2012).

The leading case on the non-retroactivity of Padilla is Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). The district court had granted coram nobis relief, ruling that Padilla was not new law and would, therefore, apply retroactively to Chaidez’s conviction, which had become final in April of 2004. The 7th Circuit reversed, holding Padilla was new law that did not apply retroactively, acknowledging that “Teague governs our analysis.” Chaidez, 655 F.3d at 688. The Supreme Court granted certiorari and the case is scheduled for argument on October 30, 2012.

PRACTICE TIPS: Even a “new law” will be applied retroactively if it places “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” or if it requires the observance of “those procedures that…are implicit in the concept of ordered liberty.” Teague, 489 U.S. at 311. See also Danforth v. Minnesota. 552 U.S. 264, 274-75 (2008).