Retroactivity of Padilla claims

Jurist last Monday reported that the US Supreme Court had decided to hear Chaidez v. United States, an ineffective assistance of counsel case addressing retroactivity aspects of the Court’s 2010 holding in Padilla v. Kentucky, 130 S.Ct. 1473 2010) [ Chaidez v. United States, 11-820 ( order granting certiorari )( Petition for certiorari )].

The Court in Padilla had held that the Sixth Amendment guarantee of effective assistance of counsel requires a criminal defense lawyer to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation. The question here is whether Padilla applies to persons whose convictions became final before its announcement, with the U.S. Seventh Circuit Court of Appeals holding that it is not retroactive and, thereby, creating a rift among the circuit courts. [ 7th. Circuit decision ]

Roselva Chaidez came to the U.S. from Mexico in 1971, and became a lawful permanent resident in 1977. In June 2003, she was indicted on three counts of mail fraud in connection with a staged accident insurance scheme in which the loss to the victims exceeded $10,000. On the advice of counsel, she pled guilty on December 3, 2003 and was sentenced to four years’ probation on April 1, 2004; judgment was entered in her case on April 8, 2004. She did not appeal. Her guilty plea, however, made her eligible for removal from the United States as an aggravated felon [ See 8 U.S.C. § 1101(a)(43)(M)(i) ] and the government initiated removal proceedings in 2009. In January 2010, she filed a motion in district court alleging ineffective assistance of counsel with respect to her decision to plead guilty at the trial court level, maintaining that her defense attorney failed to inform her that a guilty plea could lead to removal and that she would not have pled guilty if she had been made aware of the immigration consequences associated with that plea.

The 7th. Circuit in its holding recounts that, next, “On March 31, 2010, while Chaidez’s motion was pending before the district court, the Supreme Court issued its decision in Padilla. In a thoughtful opinion, Judge Gottschall acknowledged that this case presents a close call, but concluded that Padilla did not announce a new rule for thr purposes set forth in Teague v. Lane, 489 U.S. 288 (1989), but rather was an application of the Court’s holding in Strickland v. Washington, 466 U.S. 668 (1984). Having concluded that Padilla applied to Chaidez’s case, the district court considered the merits of her coram nobis petition, granting it and vacating her conviction.” The 7th. Circuit subsequently concluded that Padilla did announced a new rule that didn’t fall within either Teague exception, and reversed that judgment. [ District Court’s holding ]

“The courts are now squarely and openly divided over the issue,” according to Chaidez’s petition for certiorari. “The Seventh (at issue here) and Tenth Circuits (United States v. Chang Hong, 10thCir. 2011) have held that Padilla does not apply retroactively on collateral review because it is a new rule under Teague…. In reaching their decisions, both the Seventh and Tenth Circuits acknowledged that they were reaching ‘the opposite conclusion’ from decisions from the Third Circuit (United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011). and the Massachusetts Supreme Judicial Court.”

Additionally, Chaidez’s petition says, “The division among federal and state courts is not only widely acknowledged; it is now entrenched. At least sixty-four judges in the federal and state judiciaries have ruled on whether Padilla is a new rule. Thirty-six have concluded that Padilla is merely an application of Strickland, and twenty-eight have held that it announced a new rule. Both sides of this debate have thoroughly ventilated their views, yet the conflict only continues to deepen. Furthermore, courts of appeals on both sides of the conflict have denied petitions for rehearing en banc.”