Lawyers await Padilla retroactivity ruling

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High Court looks at constitutional protection timing

Two years after the U.S. Supreme Court’s landmark ruling that the Sixth Amendment requires criminal defense attorneys to warn noncitizen clients if a guilty plea carries a risk of deportation, the justices are poised to decide just how far back that constitutional protection extends.

At the end of April, the court granted certiorari in Chaidez v. U.S., a case considering whether the court’s seminal 2010 ruling in Padilla v. Kentucky (130 S. Ct. 1473) applies retroactively. The circuits as well as state courts are split on the issue, and attorneys are eagerly waiting to see what the court holds.

“It’s not a surprise” that the court granted cert on the issue, said James Hacking III, a St. Louis-based immigration attorney who argued a case considering Padilla’s retroactivity before the Minnesota Court of Appeals just weeks before the Supreme Court granted cert in Chaidez. “Everybody in the system has been affected by (Padilla).”

The effect of the court’s ruling in the case could be immense — both within and outside of the immigration context. In the two years since Padilla was decided, the case has been cited by lower courts in cases involving a wide range of consequences unforeseen by defendants who entered bargained pleas, including the loss of public housing, ineligibility to vote, adverse financial consequences, the loss of a driver’s license and the inability to obtain a professional license in a regulated field.

But the effect of the ruling in Chaidez, like that in Padilla, will vary state by state.

For example, courts in Massachusetts have been receptive to Padilla ineffective assistance motions. However, the highest court in neighboring Rhode Island recently issued a ruling accepting Padilla, but still applied a tougher standard for reviewing ineffective assistance claims under the Supreme Court’s decision in the 1984 case Strickland v. Washington.

Old or new law

The split among state and federal courts on the treatment of Padilla is likely a factor behind the Supreme Court’s decision to take up Chaidez to clear up the issue of retroactivity. That case involves a permanent resident from Mexico who pleaded guilty to two counts of mail fraud in connection with a staged auto insurance scheme in 2003.

Years later, when she applied for citizenship, her application was denied and the government began removal proceedings against her based on her convictions.

She moved to have the convictions overturned, arguing that she received ineffective assistance of counsel because her defense attorney failed to inform her that a guilty plea could lead to removal. She claimed that she would not have pled guilty if she had been made aware of the immigration consequences of such a plea.

The Supreme Court issued its decision in Padilla while her motion was pending. The district court ruled that Padilla applied to this case and granted the petition to vacate the convictions.

But the 7th Circuit reversed, holding that Padilla announced a “new rule” under the retroactivity standard established by the Supreme Court in the 1989 case Teague v. Lane (489 U.S. 2888), and therefore its holding did not apply.

The question of whether the Sixth Amendment right articulated in Padilla is old or new will be at the heart of the arguments in Chaidez.

“I think that generally the court hasn’t looked at applications of Strickland, which sets forth the ineffective assistance of counsel test, as being new rules,” said Elizabeth Wydra, chief counsel for the Washington-based Constitutional Accountability Center, who wrote an amicus brief urging the court to take up the case and rule in favor of retroactivity.

“They are [seen as] applications of the existing ineffective assistance of counsel standard. “So I think here, especially if you look at how the majority opinion in Padilla is written, which seems to assume the position will be retroactive, that is strong indication that Padilla did not announce a new rule, but instead was simply applying Strickland in a new context.”

Lawyers, defendants and many more affected

In the immigration context alone, the ripple effect of the court’s ruling could affect more than defendants and their attorneys, as Hacking’s case demonstrates. At the Minnesota court, he urged the court to throw out the conviction of his client, a Bosnian man who pled guilty to two counts of witness tampering in Rochester, Minn., in 2003 when he was only 23 years old.

Years later the man, living in Missouri with his citizen wife and child and running a business that employs a several people, faced mandatory removal in proceedings based on his criminal convictions.

He successfully brought an action in Minnesota to have his conviction overturned under Padilla because his counsel failed to inform him of the immigration consequences of his plea. But the state appealed, arguing that Padilla did not apply retroactively. Hacking believes the appeal was to keep the case alive while state officials waited to see if the Supreme Court would take up the issue.

Meanwhile, the client waits to learn his legal fate and its impact on those who depend on him.

Hacking said he is optimistic that the Supreme Court will side with clients like his and rule that Padilla articulated an existing principle, not a new rule.

“The standards that existed at that time and place have guaranteed effective assistance of counsel under the Sixth Amendment since 1789,” when it was proposed, Hacking said.

Beyond the state-by-state variances, there is disagreement among lawyers as to how many additional, successful Padilla motions may result from a ruling in favor of retroactivity.

MacDonald said he does not anticipate a flood of new litigation.

“Retroactivity has come up only once in the two years I have been litigating Padilla-based motions,” said MacDonald, who added that after a full hearing, the judge found that Padilla should be applied retroactively.

He also sees little chance of convictions being overturned at a high rate if the Court rules in favor of retroactivity, since defense attorneys should have been warning of immigration consequences long before Padilla.

“For at least 15 years the ABA standards have required this kind of advice from criminal defense attorneys,” MacDonald said, noting that Justice John Paul Stevens made that observation in the Padilla opinion. “It took the Supreme Court to remind us of that.”

Hacking said he also doesn’t expect a flood of frivolous motions in the event of a retroactivity ruling, noting that any defendant seeking to have a plea bargained conviction overturned would have to face those criminal charges again, as well as the possibility of a longer sentence. “That cuts against the floodgate argument.”

But, he said, notwithstanding the professional standards in the place at the time, not all defense attorneys warned clients of immigration-related consequences of guilty pleas.

Some criminal defense attorneys “were focused on getting the best result in that case,” Hacking said. “If the client had questions about immigration consequences, they may have told them to consult an immigration attorney.”