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January 12, 2012

When and how will Padilla retroactivity issues get to SCOTUS?

The question in the title of this post flows from this effective story by Michelle Olsen at Appellate Daily. The piece it titled "Circuit Split Watch: Variations on the Padilla Theme," and here are highlights:

The U.S. Supreme Court will soon have the chance to revisit Padilla v. Kentucky, its 2010 decision holding — at the intersection of criminal and immigration laws — that the Sixth Amendment requires attorneys to inform their clients about the possible deportation consequences of a guilty plea.

In recent months, three federal appellate courts split 2-1 on whether Padilla applies retroactively, teeing the cases up for possible review by the Supreme Court.  All three were denied rehearing en banc.

Chaidez v. United States, from the U.S. Court of Appeals for the 7th Circuit, is already the subject of a petition for certiorari....   Judge Joel Flaum, writing for himself and Senior Judge William Bauer, explained that Padilla is not retroactive, meaning that it only applies to cases on direct review, not to a coram nobis motion or other collateral attack.  The direct line of Chaidez’s criminal case had been final for years, when she pled guilty and did not appeal.

In Judge Flaum’s view, Padilla announced a groundbreaking new rule that lower courts had not anticipated.  In fact, Flaum noted, federal courts before Padilla had unanimously held that plea counsel is not constitutionally required to warn clients of immigration consequences.

Judge Williams disagreed, finding that Padilla applies retroactively to collateral review. Risk of deportation is important information to know before entering a plea.  Williams urged that “prevailing professional norms at the time of Chaidez’s plea required a lawyer to advise her client of the immigration consequences of a guilty plea.” Under Supreme Court precedent cited by Williams, such norms have long been relevant to whether counsel’s representation was reasonable.

The 7th Circuit panel knew that its decision would create a circuit split. Less than two months earlier, the 3rd Circuit in United States v. Orocio determined, like Judge Williams, that Padilla applied retroactively....

Joining the 7th Circuit and making the split 2-1, the 10th Circuit in United States v. Chang Hong ruled that Padilla is not retroactive. Although not precedent, a footnote in United States v. Hernandez-Monreal, a 4th Circuit unpublished opinion from 2010, stated, without analysis, that “nothing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review.”

January 12, 2012 at 01:16 AM | Permalink


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And has any court yet reached the second Strickland prong, requiring the offender to show that they were in fact prejudiced by counsel's failing? I still don't see that as a winner even for Padilla, I don't know enough about these other cases to have formed an opinion on them in that regard.

Wouldn't in order to show prejudice on such a claim the offender somehow show that they would have prevailed to the point of not facing deportation? That seems like a mighty high hurdle in most cases. Prosecutors may well be willing to drop some charges most of the time but I have a hard time believing that many would go for a charge deal that doesn't carry deportation consequences. And of course going to trial isn't really a help either if the offender admits they would be convicted.

Posted by: Soronel Haetir | Jan 12, 2012 9:54:17 AM


"requiring the offender to show that they were in fact prejudiced by counsel's failing?"

Seeing as how the only way to do that would be to file it from OUTSIDE the country.... and considering the last big outside lawsuite was tossed by the u.s. supreme court on a state secrets excuse why would anyone bother!

Posted by: rodsmith | Jan 12, 2012 12:52:34 PM

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