A practice advisory issued by two of the leading crImmigration resource centers suggests that the Supreme Court’s two ineffective assistance of counsel decisions from this term could impact how courts apply the landmark Padilla v. Kentucky, 130 S. Ct. 1473 (2010). National Immigration Project of the National Lawyers Guild & Immigrant Defense Project, Practice Advisory: Implications of Lafler v. Cooper on Retroactive Application of Padilla v. Kentucky (March 29, 2012).
The advisory addresses a number of features of the Court’s two IAC decisions, Lafler v. Cooper, No. 10-209 (U.S. March 21, 2012), and Missouri v. Frye, No. 10-444 (U.S. March 21, 2012), and provides helpful background that I won’t repeat.
I’m most intrigued by the advisory’s suggestion that Lafler helps make the argument that Padilla is to apply retroactively. In particular, the authors argue that the Lafler Court’s conclusion that the state courts failed to apply clearly established federal law—namely that the longstanding ineffective assistance of counsel framework announced in Strickland v. Washington, 466 U.S. 668 (1984), applies to pleas—suggests that Padilla, which also applies Strickland to pleas, is an “old rule” of criminal procedure.
According to the advisory:
“The significance of Lafler for Padilla is that it demonstrates that what may appear to be a novel rule is nothing more than the application of the long-standing Strickland rule. It follows that if the Supreme Court’s holding in Lafler that the rejection of ineffective assistance in plea bargaining was contrary to settled federal law then the Padilla Court’s reliance on Strickland establishes that Padilla is an ‘old rule’ for purposes of Teague. Lafler and Padilla then are two of a kind: each a plea case governed by the existing Strickland standard.”
Practice Advisory at 6.
The advisory stresses that the Lafler Court concluded Strickland’s application to pleas was clearly established law even though four Justices dissented and the government argued that holding as the majority did would create a “floodgates” problem—that is, it would lead to excessive litigation. Both of these reasons are regularly touted as explanations for why Padilla does not apply retroactively. Practice Advisory at 6-7.
Indeed, the Tenth Circuit and Seventh Circuit have each relied on similar rationale in holding that Padilla does not apply retroactively (I’ve written in detail about those decisions). Earlier this week the Supreme Court granted cert in the Tenth Circuit’s non-retroactivity decision, Chaidez v. United States, No. 11-820 (U.S.). Lafler, the advisory suggests, “provides a basis to renew the retroactivity argument in the Tenth and Seventh Circuits….” Practice Advisory at 7.
In addition, the advisory suggests that Lafler rejects the conclusion of some lower courts that Padilla-based ineffective assistance of counsel can be cured by a trial court admonishment explaining to the defendant the risks of pleading guilty. Practice Advisory at 9. As the advisory explains, Lafler rejected the government’s argument that a defense attorney’s deficient performance can be cured by a trial court’s admonishment “even if specific to the defendant and ‘knowing and voluntary.’” Practice Advisory at 10.
Attorneys litigating Padilla claims or considering whether to bring a Padilla claim would be well advised to read this advisory.