Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the landmark decision recognizing that the Sixth Amendment right to counsel requires advice about immigration consequences of conviction, returns to the U.S. Supreme Court. This morning the Court granted certiorari in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), a Seventh Circuit decision holding that Padilla does not apply retroactively.

The Court’s decision to grant cert was not unexpected given that the Solicitor General agreed that cert was warranted because Chaidez addresses a circuit split that’s developed about how to apply Padilla to convictions that became final before it was announced on March 31, 2010. Brief for the United States, Chaidez v. United States, No. 11-820, at 8 (U.S.); Petition for a Writ of Certiorari, Chaidez v. United States, No. 11-820, at i (U.S.). Indeed, Chaidez is itself a split decision, with Judges Bauer and Flaum writing the majority opinion that Padilla is not retroactive and Judge Williams writing in dissent that it should apply retroactively. 

The Solicitor General's brief explains that the question presented to the Court is "whether, under the retroactivity framework established in Teague v. Lane, 489 U.S. 2888 (1989), Padilla announced a new rule that does not apply retroactively to convictions that became final before Padilla was decided.” Brief for the United States, Chaidez v. United States, No. 11-820, at i (U.S.).

The Third Circuit holds that Padilla applies retroactively, while the Seventh and Tenth Circuits hold that it does not. Several state courts have weighed in as well with similarly conflicting results. See, e.g., State v. Alshaif, No. COA11-817 (N.C. Ct. App. 2012) (not retroactive); Denisyuk v. State, No. 45 (Md. 2011) (retroactive); Commonwealth v. Clarke, No. SJC-10888 (Mass. 2011) (retroactive); Campos v. Minnesota, No. 27CR0933865 (Minn. Ct. App. 2011) (retroactive); Ex Parte Tanklevskaya, No. 01-10-00627-CR (Tex. App. 2011) (retroactive).

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 in Chaidez, “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 issue prior to Padilla had determined 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 majority 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).

As the Solicitor General noted in its brief, the Tenth Circuit followed a similar position as Chaidez in holding that Padilla is not retroactive. United States v. Hong, No. 10-6294, slip op. (10th Cir. Aug. 30, 2011) (O’Brien, McKay, and Tymkovich, JJ.). (I wrote about Hong in more detail a few months ago.)

Already the Court’s next term features two crImmigration cases: Chaidez and Moncrieffe v. Holder, which I wrote about previously, about the drug trafficking type of aggravated felony. It promises to be a busy October for crImmigration followers. As crImmigration.com readers know, I've written academic articles (see here and here and a forthcoming article in the Georgetown Immigration Law Journal) and many blog posts about Padilla, including retroactivity, so there is no question that I will be following Chaidez quite closely over the next several months.

Update: SCOTUSblog mentioned this analysis in its "Tuesday round-up" feature.