5 Cir: Padilla not retroactive

Despite the Supreme Court’s foray into this issue next term, the U.S. Court of Appeals for the Fifth Circuit held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), does not apply retroactively. United States v. Amer, No. 11-60522, slip op. (5th Cir. May 9, 2012) (Jones, Owen, and Higginson, JJ.). Judge Higginson wrote the panel’s opinion.

This case involved an individual whose federal conviction, obtained through a guilty plea, became final on February 24, 2009, approximately thirteen months prior to the date on which the Supreme Court issued Padilla, the landmark decision recognizing that the Sixth Amendment right to counsel requires that defense attorneys advise noncitizen clients about the immigration consequences of conviction. Amer, No. 11-60522, slip op. at 1. The district court vacated Amer’s conviction on the basis that his defense attorney “fail[ed] to inform him that his guilty plea carried a risk of deportation.” Amer, No. 11-60522, slip op. at 2.

On appeal, the Fifth Circuit turned to the retroactivity framework announced in Teague v. Lane, 489 U.S. 288 (1989). Pursuant to Teague, which I have discussed at length previously on crImmigration.com and in an Emerging Issues Analysis for Lexis, a criminal procedure decision applies to convictions that were final on the date the decision was issued only if the decision constitutes an “old” rule. If the decision announces a “new” rule of criminal procedure, then it applies only to convictions that become final after the date the decision was issued.

The Fifth Circuit “join[ed] the Seventh and Tenth Circuits in holding that Padilla announced a ‘new’ rule within the meaning of Teague.” Amer, No. 11-60522, slip op. at 3. To reach this conclusion, the court observed that, according to the Supreme Court, “A rule is ‘new’…unless it was so ‘dictated by precedent existing at the time the defendant’s conviction became final.’ The Court reiterated this strict ‘dictated by precedent test in Lambrix v. Singletary, 520 U.S. 518 (1997), emphasizing again the test’s stringency by clarifying that ‘dictated by precedent’ means that ‘no other interpretation was reasonable.’” Amer, No. 11-60522, slip op. at 3 (internal citations omitted).

To determine whether another interpretation was reasonable, the Fifth Circuit, like other courts that have addressed Padilla’s retroactivity had done, considered the fact that the Padilla decision represents a divided Court. Amer, No.
11-60522, slip op. at 3. In particular, the Fifth Circuit focused on the point made by the two justices who concurred and the two who dissented that the Padilla decision was the first time that the Court interpreted the Sixth Amendment right to counsel as requiring advice about “collateral” consequences of conviction. Amer, No. 11-60522, slip op. at 3-4. The Fifth Circuit, however, did not acknowledge the Padilla majority’s explanation that it was rejecting the direct versus collateral consequences distinction in the context of deportation. Padilla, 130 S. Ct. at 1481.

The Fifth Circuit then explained that “Padilla departed markedly from the ‘legal landscape’ extant when Amer’s conviction became final” insofar as “[e]very federal court of appeals to decide the issue…and numerous state appellate courts had held that the Sixth Amendment did not impose any duty to advise noncitizen defendants of the immigration consequences of pleading guilty.” Amer, No. 11-60522, slip op. at 4. As such, the court concluded, “it cannot be said that Padilla’s holding would have been ‘apparent to all reasonable jurists’ at the time that Amer’s conviction became final.” Amer, No. 11-60522, slip op. at 5.

Finally, the court referenced the fact that the Padilla Court acknowledged that even though its holding followed Hill v. Lockhart, 474 U.S. 52 (1984), which extended the modern ineffective assistance of counsel test announced in Strickland v. Washington, 466 U.S. 668 (1984), to the plea context, “the Court at the same time acknowledged that Hill did ‘not control’ the decision….” Amer, No. 11-60522, slip op. at 5. The court does a particularly poor job of explaining the significance of this point. I’m assuming that the Fifth Circuit panel thinks this that this discussion in Padilla means that Padilla didn’t rely on controlling precedent. If that’s true, then the Fifth Circuit’s conclusion is strengthened.

Because the court held that Padilla is a “new” rule (and neither party contended that one of the two available exceptions applied), the Court concluded that Padilla “does not apply retroactively.” Amer, No. 11-60522, slip op. at 6.

After all is said and done, this decision may have limited significance because the Supreme Court is slated to decide whether Padilla applies retroactively toward the end of this year. It recently granted cert in a Seventh Circuit decision, Chaidez v. United States, holding that Padilla does not apply retroactively.