The Massachusetts Supreme Judicial Court, the state’s highest court, held that Padilla v. Kentucky, 130 S.Ct. 1473 (2010), in which the U.S. Supreme Court held that criminal defense attorneys must advise their noncitizen clients about the deportation consequences of a plea, applies retroactively to convictions that became final on or after April 1, 1997. Comm. v. Clarke, No. SJC-10888, slip op. (Mass. June 17, 2011) (Ireland, Spina, Cordy, Botsford, Gants, and Duffly, J.). Justice Cordy wrote the court’s unanimous opinion. (Court docket with briefs is available.)
This case involves an individual who pled guilty to several drug-related offenses on February 2, 2005. DHS initiated removal on aggravated felony and controlled substances offense grounds.
The court began by discussing the Supreme Court’s retroactivity analysis set forth in Teague v. Lane, 489 U.S. 288 (1989), in which the Court held that a new constitutional rule of criminal procedure is not applied retroactively except in two narrow circumstances. (I have discussed Teague in greater detail previously.) The Massachusetts court traced the Supreme Court’s post-Teague ineffective assistance of counsel (IAC) jurisprudence to see whether the Supreme Court had deemed post-Teague IAC cases new rules or not.
As have several courts, the Massachusetts SJC concluded that “Padilla is an extension of the rule in Strickland,” referring to Strickland v. Washington, 466 U.S. 668 (1984), the decision laying out the Supreme Court’s modern IAC test. Strickland provides a two-part test for determining IAC: first, whether plea counsel’s representation fell below an objective standard of reasonableness (i.e., whether counsel’s performance was deficient) and, second, whether that deficient performance prejudiced the defendant.
The Padilla Court, the SJC explained, “was applying the first prong of the Strickland standard when it concluded that the failure of counsel to provide her client with available advice about an issue like deportation was constitutionally deficient.” As such, Padilla “is not the creation of a new constitutional rule.” Rather, it “is the definitive application of an established constitutional standard on a case-by-case basis, incorporating evolving professional norms (on which the standard relies) to new facts.” That is, Padilla merely applies the Strickland test to a new set of facts, thus it may be applied retroactively.
The SJC held that Padilla applies retroactively to convictions “obtained on or after April 1, 1997.” This is the date on which the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) became effective. The court did not explain why it chose this date and it remains unclear to me.
My best guess is that the Padilla Court emphasized the fact that IIRIRA repealed relief under former INA § 212(c) as evidence of the growing convergence of criminal law and immigration law. Padilla, however, placed just as much emphasis on the elimination of judicial recommendations against deportation (JRAD) which was accomplished through the Immigration Act of 1990 (IMMACT90) so, as far as I can tell, the Massachusetts court could have chosen the effective date of IMMACT90 just as easily as the effective date of IIRIRA. Readers’ thoughts are welcomed.
Having determined that Padilla applies to Clarke’s convictions, the SJC turned to determining whether his trial attorney’s representation constitutes IAC. “[T]he consequences of defendant’s plea were clear,” the SJC explained before citing to and quoting the controlled substances offense ground of removal. The SJC had no trouble concluding that Clarke’s trial attorney did not advise Clarke that he would be deportable upon conviction because the attorney admitted via affidavit “that she was not aware that the defendant was not a United States citizen and had no memory of discussing immigration consequences with him.”
Because “effective representation requires counsel to gather at least enough personal information to represent him,” and the trial attorney admitted not knowing that Clarke was not a U.S. citizen and did not remember advising him about possible immigration consequences of conviction, the SJC easily determined that “it is highly unlikely that she ever informed him that his guilty pleas carried a substantial risk of deportation,” as required by Padilla. Accordingly, the trial attorney’s performance was deficient in light of Padilla.
The SJC’s reference to “a substantial risk of deportation” is a somewhat interesting deviation from the Padilla opinion’s instruction that defense attorneys must advise defendants when deportation is “presumptively mandatory.” It is unclear whether Clarke’s “substantial risk” requirement is equivalent to Padilla’s “presumptively mandatory” threshold.
After finding that Clarke’s trial attorney’s performance was constitutionally deficient, the SJC then turned to whether that deficient performance prejudiced Clarke. In two short paragraphs the court quickly concluded that Clarke did not show that he was prejudiced by his trial counsel’s deficient performance. In fact, the court explained, “the defendant has come nowhere near meeting the burden he bears on the issue of prejudice.” The SJC reached this conclusion because Clarke did not claim that he would have gone to trial had he known about the deportation consequences of his plea and because he did not explain why going to trial would have been a rational decision had he known.