7 & 10 Circuits: Padilla is not retroactive; create circuit split with 3d Cir.

The U.S. Courts of Appeals for the Seventh and Tenth Circuits issued decisions in the last ten days holding that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), in which the Supreme Court announced that the Sixth Amendment right to counsel includes advice about deportation consequences of pleading guilty, does not apply retroactively. United States v. Hong, No. 10-6294, slip op. (10th Cir. Aug. 30, 2011) (O’Brien, McKay, and Tymkovich, J.); Chaidez v. United States, No. 10-3623, slip op. (7th Cir. Aug. 23, 2011) (Bauer, Flaum, and Williams, J.). Judge Tymkovich wrote the Tenth Circuit panel’s decision and Judge Flaum wrote for a divided Seventh Circuit panel.

Both cases involved LPRs who were convicted prior to March 31, 2010, the date that Padilla was issued. Both attacked their convictions through collateral review, seeking to overturn their convictions on the basis that they were not advised of the deportation consequences of pleading guilty. Interestingly, Hong was actually removed on June 28, 2011, but the Tenth Circuit explained that this did not moot his petition, suggesting that the reason is that his conviction continues to have collateral consequences—namely, inadmissibility based on the conviction. Hong, No. 10-6294, slip op. at 4 n.3.

Turning to the two decisions chronologically, the Seventh Circuit launched into the required retroactivity analysis by explaining the Teague v. Lane, 489 U.S. 288 (1989), framework. Teague, as I have explained previously, dictates how courts determine whether a newly issued decision of constitutional criminal procedure is to be applied retroactively—that is, to convictions finalized prior to the date the decision was announced.

As the Seventh Circuit explained, “Under Teague, a constitutional rule of criminal procedure applies to all cases on direct and collateral review if it is not a new rule, but rather an old rule applied to new facts. A new rule applies only to cases that still are on direct review, unless one of two exceptions applies. In particular, a new rule applies retroactively on collateral review if (1) it is substantive or (2) it is a ‘watershed rul[e] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.’” Chaidez, No. 10-3623, slip op. at 6 (discussing Whorton v. Bockting, 549 U.S. 406, 416 (2007)) (internal citations and quotations omitted).

To determine whether the rule in Padilla is an “old” or “new” rule, “[t]he pertinent inquiry here is whether Padilla’s outcome was susceptible to debate among reasonable minds. Put differently, our task is to determine whether a . . . court considering [Chaidez’s] claim at the time [her] conviction became final—pre-Padilla—would have felt compelled by existing precedent to conclude that [Padilla] was required by the Constitution.” Chaidez, No. 10-3623, slip op. at 8 (internal quotations and citations omitted).

Acknowledging that Padilla presents a difficult question, the Seventh Circuit majority turned to the existence of a concurring opinion and dissenting opinion in Padilla and the views those justices expressed. Chaidez, No. 10-3623, slip op. at 8. “That the members of the Padilla Court expressed such an ‘array of views,’” the Seventh Circuit majority explained, “indicates that Padilla was not dictated by precedent.” Chaidez, No. 10-3623, slip op. at 9 (quoting O’Dell v. Netherland, 521 U.S. 151, 159 (1997)).

The Seventh Circuit majority also relied on the fact that most lower federal courts and state courts that had addressed the issued had determined, prior to Padilla, that the Sixth Amendment did not reach immigration advice. Chaidez, No. 10-3623, slip op. at 10. At least nine federal courts of appeals, plus the courts of 30 states and the District of Columbia, the panel majority explained, “had uniformly held that the Sixth Amendment did not require counsel to provide advice concerning any collateral (as opposed to direct) consequences of a guilty plea.” Chaidez, No. 10-3623, slip op. at 10-11.

“Such rare unanimity among the lower courts,” the panel went on, “is compelling evidence that reasonable jurists reading the Supreme Court’s precedents in April 2004 could have disagreed about the outcome of Padilla,” referring to the date Chaidez was convicted. Chaidez, No. 10-3623, slip op. at 11.

On this point, the Seventh Circuit majority explicitly disagreed with the U.S. Court of Appeals for the Third Circuit’s recent ruling that Padilla is retroactive: “[T]he Third Circuit downplayed the significance of the contrary lower court decisions, reasoning that they generally pre-dated the adoption of the professional norms relied on by the Padilla Court. Not so.” Chaidez, No. 10-3623, slip op. at 12 (discussing United States v. Orocio, No. 10-1231, slip op. (3d Cir. June 29, 2011), which I wrote about previously).

Unlike the Third Circuit that rested on its determination that Padilla merely applied the Supreme Court’s longstanding ineffective assistance of counsel framework announced in Strickland v. Washington, 466 U.S. 668 (1984), to a new factual context (immigration advice), Orocio, No. 1231, slip op. at 14, the Seventh Circuit majority determined that “[t]he fact that Padilla is an extension of Strickland says nothing about whether it was new or not.” Chaidez, No. 10-3623, slip op. at 15.

Rather, it concluded that Padilla is “the rare exception” in which an extension of Strickland nonetheless produces a new constitutional rule of criminal procedure. Chaidez, No. 10-3623, slip op. at 16-17. “In our view,” the panel explained, Padilla “was sufficiently novel to qualify as a new rule.” Chaidez, No. 10-3623, slip op. at 18. The majority did not address whether either of Teague’s exceptions under which new rules are applied retroactively applies.

Here the dissenting judge (Williams) parted ways with the majority. Judge Williams explained that it is most proper to read Padilla as a clarification that the prevailing professional norms to which Strickland turns to as guidance for determining effective assistance of counsel require advice about “the removal consequences of a decision to enter a plea of guilty,” thus “a violation of these norms amounts to deficient performance under Strickland v. Washington.” Chaidez, No. 10-3623, slip op. at 20-21 (Williams, J., dissenting).

Though the Tenth Circuit panel followed a similar approach as the Seventh Circuit majority in concluding that Padilla is not retroactive, it is nonetheless worth discussing that decision separately because it is only the third federal appellate court to issue a precedential decision on this issue and because the Tenth Circuit’s decision does address the two Teague exceptions.

As did the Seventh Circuit majority, the Tenth Circuit panel emphasized that “[b]efore Padilla, most state and federal courts had considered the failure to advise a client of potential collateral consequences of a conviction to be outside the requirements of the Sixth Amendment.” Hong, No. 10-6294, slip op. at 14. “All of these courts—including our own—thought the rule in Padilla was not dictated or compelled by [Supreme] Court precedent.” Hong, No. 10-6294, slip op. at 15.

The Tenth Circuit also relied on the existence of separate opinions in Padilla. It noted that Justice Alito’s concurrence “stated ‘the Court’s decision marks a major upheaval in Sixth Amendment law.’” Hong, No. 10-6294, slip op. at 15 (quoting Padilla, 130 Sup. Ct. at 1491 (Alito, J., concurring)). It also noted that Justice Scalia’s dissent “argued the Sixth Amendment right to counsel does not extend to ‘advice about the collateral consequences of conviction.’” Hong, No. 10-6294, slip op. at 16 (quoting Padilla, 130 Sup. Ct. at 1494-95 (Scalia, J., dissenting).

The panel explained that, combined, these sources support the conclusion that Padilla was not compelled or dictated by prior precedent. Hong, No. 10-6294, slip op. at 16. Accordingly, it explained, “we find Padilla announced a new rule of constitutional law.” Hong, No. 10-6294, slip op. at 17.

The Tenth Circuit then turned to whether either of Teague’s exceptions “fit” so that Padilla can be applied retroactively. It determined that Padilla fits into neither exception: “We find Padilla does not fit within either Teague exception and therefore does not apply retroactively to cases, like Hong’s, on collateral review.” Hong, No. 10-6294, slip op. at 20.

The first exception—for substantive rules—does not apply, the panel explained, because “Padilla is procedural, not substantive. It regulates the manner in which a defendant arrives at a decision to plead guilty.” Hong, No. 10-6294, slip op. at 21. It does not, for example, push conduct beyond the realm of criminal law.

The second exception—for “watershed” rules of criminal procedure—also does not apply because this is a very narrow exception. As the Tenth Circuit explained, “[t]he Supreme Court has repeatedly identified its decision in Gideon v. Wainwright, 372 U.S. 335 (1963)—recognizing an indigent defendant’s right to counsel—as the only rule which, if Gideon had been decided after Teague, might have fallen within the second Teague exception.” Hong, No. 10-6294, slip op. at 22.

This exception is inapplicable, the panel concluded: “Simply put, Padilla is not Gideon.” Hong, No. 10-6294, slip op. at 23. It explained that this is so because Padilla “does not affect the determination of a defendant’s guilt and only governs what advice defense counsel must render when his noncitizen client contemplates a plea bargain.” Hong, No. 10-6294, slip op. at 23.

Interestingly, the Tenth Circuit’s decision did not discuss or even cite to the earlier Seventh Circuit decision. Given that the two decisions were issued seven days apart, this is likely due to a delay that’s an ordinary part of the opinion issuance process. Perhaps more interestingly, the Tenth Circuit issued this published decision despite it not receiving oral argument.