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February 20, 2013

Does Chaidez expand the reach of Padilla even while rejecting its retroactive application?

As noted in this prior post, the Supreme Court handed down four criminal justice decisions today. The most notable and potentially consequential ruling came in Chaidez v. US (available here) in which the Court, per Justice Kagan representing seven votes and speaking for six Justices (with Justice Thomas concurring separately), ruled that the Supreme Court's 2010 decision Sixth Amendment decision in Padilla is not to be applied retroactively to cases which were final when Padilla was handed down. 

Upon first blush, this ruling might seem a big loss for defendants, and it is for those like petitioner Roselva Chaidez, who hoped to undo her guilty plea because long ago she was poorly advised by her lawyer concerning the immigration consequences of her conviction.   But for those in the defense bar eager to see the Padilla Sixth Amendment rule expanded to cover other forms of collateral consequences, I think there more to like than dislike in Chaidez.  Throughout her opinion for the Court, Justice Kagan seems careful to avoid stating or even suggesting that Padilla is only about the unique "collateral consequence" of deportation.   Especially notable in this regard is a phrase on pp. 10-11 of the slip opinion which seems to state that "Padilla’s holding [is that] the failure to advise about a non-criminal consequence could violate the Sixth Amendment" (my emphasis added).

Though I have not followed closely the application of Padilla in lower courts, my sense is that at least a few courts have been keen to hold or suggest that the Padilla Sixth Amendment rule applies only to the unique collateral consequence of deportation.   After Chaidez, it should be at least a bit harder for lower courts to limit Padilla's prospective application to only immigration consequences.

February 20, 2013 at 06:46 PM | Permalink

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Doug, You're right about lower courts expanding Padilla beyond the immigration consequence context.

At least one federal appellate court and a number of state appellate courts have extended Padilla’s reasoning to sexual offender registration requirements. See Bauder v. Dep’t of Corrections, 619 F.3d 1272, 1274–75 (11th Cir. 2010); see also Taylor v. State, 698 S.E.2d 384, 389 (Ga. Ct. App. 2010) (concluding that failure to advise a client that a guilty plea will require registration as sex offender is constitutionally deficient performance); People v. Fonville, 804 N.W.2d 878, 894–95 (Mich. App. 2011) (concluding that “applying the Padilla rationale to this case supports a holding that defense counsel must advise a defendant that registration as a sexual offender is a consequence of the defendant’s guilty plea”); State v. Powell, 935 N.E.2d 85, 92 (Ohio Ct. App. 2010) (concluding that defendant received ineffective counsel in that he was not advised that voyeurism was a registration-exempt sexually oriented offense). But see United States v. Francis, 2010 WL 6428639, *3 (E.D. Ky. Dec. 30, 2010) (noting that “civil commitment cannot be said automatically or certainly to occur, based on a given result in another proceeding. That is, unlike deportation, as addressed by the Supreme Court in Padilla, civil commitment requires significant additional proceedings.”).

Another court held that, pursuant to Padilla, a criminal defense attorney was obligated to advise the defendant about the plea’s consequence on a subsequent civil proceeding. See Wilson v. Alaska, 244 P.3d 535, 539 (Alaska Ct. App. 2010) (requiring, under Padilla, a criminal defense attorney to advise about a plea’s effect on subsequent civil proceedings related to damages arising for liability for civil assault and battery claims).

In a concurring opinion, an appellate judge on a different state court opined that it demands advice about the law governing parole eligibility. Webb v. State, 334 S.W.3d 126, 136 (Mo. 2011) (Wolff, J., concurring).

César | crImmigration.com

Posted by: César Cuauhtémoc García Hernández | Feb 20, 2013 7:07:12 PM

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