North Carolina’s intermediate appellate court held that Padilla v. Kentucky, 130 S. Ct. 1743 (2010), does not apply retroactively. State v. Alshaif, No. COA11-817, slip op. (N.C. Ct. App. Feb. 21, 2012) (McGee, Steelman, and Ervin, JJ.). Judge McGee wrote the panel’s decision.
This case involved an LPR who was convicted in February 2007, over three years before the Supreme Court’s decision in Padilla announced that the Sixth Amendment right to counsel requires that criminal defense attorneys advise their noncitizen clients about the deportation consequences of conviction prior to pleading guilty. Alshaif alleged that his defense attorney “never advised him of the immigration consequences of a conviction.” Alshaif, No. COA11-817, slip op. at 2.
Because Alschaif was convicted before Padilla was announced on March 31, 2010, the court had to determine if that decision applies retroactively. North Carolina follows the retroactivity framework announced in Teague v. Lane, 489 U.S. 288 (1989), which provides that “new” rules of criminal procedure do not apply retroactively unless one of two exceedingly narrow exceptions are met—the decision is “substantive” rather than procedural or it is a “watershed” rule of criminal procedure. Alshaif, No. COA11-817, slip op. at 15 (quoting Whorton v. Bockting, 549 U.S. 406, 416 (2007)).
The Supreme Court has never found a rule that meets either exception. For all practical purposes, therefore, to apply retroactively a criminal procedure decision must be considered an “old” rule.
Without much original reasoning, the North Carolina court determined that “Padilla announces a new rule of constitutional law and is not retroactively applicable.” Alshaif, No. COA11-817, slip op. at 12. Rather than provide its own analysis, the court simply quoted at length from the U.S. Court of Appeals for the Tenth Circuit’s decision holding that Padilla is a new rule that does not apply retroactively. Alshaif, No. COA11-817, slip op. at 12-15 (discussing United States v. Hong, 2011 WL 3805763 (10th Cir. 2011)). I previously discussed the Tenth Circuit’s decision in greater detail.
Based on its reading of the Tenth Circuit decision, the North Carolina court explained, “we find Padilla was an application of Strickland that would have been unreasonable to expect attorneys to have foreseen—especially those attorneys unfamiliar with immigration law. We therefore hold that Padilla announced a new rule.” Alshaif, No. COA11-817, slip op. at 15.
This new rule, it went on, does not meet Teague’s first exception because, again relying on Hong, it’s procedural, not substantive. Alshaif, No. COA11-817, slip op. at 16 (quoting Hong, 2011 WL 3805763, at *8). Furthermore, it does not meet Teague’s second exception because it “‘is simply not germane to concerns about risks of inaccurate convictions or fundamental procedural fairness.’” Alshaif, No. COA11-817, slip op. at 17 (quoting Hong, 2011 WL 3805763, at *9).
We’ll see if the North Carolina Supreme Court takes up whether Padilla is retroactive.