'Padilla' Is Found Not Retroactive

, The National Law Journal


Justice Kagan
Justice Kagan

A 2010 U.S. Supreme Court decision requiring criminal defense attorneys to inform noncitizen clients of the deportation risks of guilty pleas is not retroactive, the justices held yesterday.

Justice Elena Kagan, writing for a 7-2 majority in Chaidez v. United States, 11-820, said the court's 2010 decision in Padilla v. Kentucky, 130 S. Ct. 1473, announced a "new rule," and under the court's retroactivity analysis a person whose conviction was final before the 2010 decision cannot benefit from a new rule of criminal procedure on collateral review.

Padilla was a 7-2 decision authored by Justice John Paul Stevens, whom Kagan succeeded. It grounded its holding in the Sixth Amendment and Strickland v. Washington, 466 U.S. 668, the 1984 test for ineffective assistance of counsel.

The "new rule" retroactivity analysis was announced by the court in its 1989 decision, Teague v. Lane, 489 U.S. 288, 301. Teague holds that a case announces a new rule if the result was not dictated by precedent existing at the time a defendant's conviction became final. A case does not announce a new rule if it is simply an application of the principle that governed a prior decision to a different set of facts.

Rosa Chaidez was a Mexican immigrant who became a lawful permanent resident of the United States in 1977. Twenty years later, she pleaded guilty to mail fraud in connection with a scheme to defraud an auto insurance company of $26,000. Her conviction was final in 2004.

Under federal immigration law, her offense was an aggravated felony, which subjected her to immediate deportation. She claimed her attorney never advised her of that fact. Immigration officials moved to deport her in 2009 after her citizenship application alerted them to her prior conviction. Chaidez filed a writ of coram nobis in federal court seeking to overturn her conviction based on ineffective assistance of counsel. While her writ was pending, the Supreme Court decided Padilla.

In analyzing whether Padilla announced a new rule, Kagan wrote that "garden-variety" applications of the Strickland test for ineffective assistance of counsel claims do not produce new rules. But Padilla, she said, "did something more."

"In other words, prior to asking how the Strickland test applied, Padilla asked whether the Strickland test applied," she explained. That preliminary question about Strickland, she added, "came to the Padilla Court unsettled—so that the Court's answer ('Yes, Strickland governs here') required a new rule."

Padilla answered a question about the Sixth Amendment's reach "in a way that altered the law of most jurisdictions—and our reasoning reflected that we were doing as much," she wrote.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented, saying, the majority was wrong "because Padilla did nothing more than apply the existing rule of Strickland v. Washington in a new setting, the same way the Court has done repeatedly in the past: by surveying the relevant professional norms and concluding that they unequivocally required attorneys to provide advice about the immigration consequences of a guilty plea."

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