NM Ct App: Padilla is retroactive; NM Supreme Court grants cert

The New México Court of Appeals, the state’s intermediate appellate court, held that Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively. State v. Ramirez, 278 P.3d 569, No. 2012-NMCA-057, slip op. (NM Ct. App. April 16, 2012) (Kennedy, Bustamante, and Fry, JJ.), cert. granted June 5, 2012. Judge Kennedy wrote the panel’s decision.

This case involves an attempt to vacate multiple 1997 convictions for misdemeanor possession of less than one ounce of marijuana, possession of drug paraphernalia, and concealing identity on the basis that Ramirez’s attorney did not inform him of the immigration consequences of conviction. Ramirez, No. 2012-NMCA-057, slip op. at 2.

Normally I would engage in a detailed explanation of the court’s reasoning and holding. However, the New México Supreme Court already agreed to review this decision so it makes little sense to do that. Instead, I’ll just highlight a few key points.

First, a note about Ramirez’s retroactivity analysis. The court relied on the retroactivity analysis set forth in Teague v. Lane, 489 U.S. 288 (1989), to conclude that Padilla did not announce a new rule of criminal procedure. Ramirez, No. 2012-NMCA-057, slip op. at 6. In an unusual twist to the Teague analysis, though, the court turned to the Supreme Court’s 1989 decision in Penry v. Lynaugh, 492 U.S. 302 (1989), for help. In Penry, the Court explained that “when a case is before the [Supreme] Court on collateral review, the Court ‘must determine, as a threshold matter, whether granting [the defendant] the relief he seeks would create a new rule.’ ‘Under Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions [specified in Teague].’” Ramirez, No. 2012-NMCA-057, slip op. at 6 (quoting Penry, 492 U.S. at 313).

By implication, “if the Supreme Court intended its holding in Padilla to create a new rule, it would have to determine as a threshold issue whether the rule was old or new under Teague because the conviction in Padilla was on collateral review. The Court clearly did not engage in this analysis, and we must conclude that the Padilla court did not believe it was establishing a new rule.” Ramirez, No. 2012-NMCA-057, slip op. at 6. In other words, Padilla can’t have established a new rule, the New México court concludes, because the Supreme Court didn’t say that it did. This is a powerful statement that could lead other courts to follow suit.

Even more unusual—though less surprising—than the retroactivity analysis, however, was the court’s discussion of the state supreme court’s holding in State v. Paredez, 101 P.3d 799 (2004), that defense counsel must instruct defendants about the specific immigration consequences of conviction. Because attorneys in New México had long been required to provide such advice pursuant to the Sixth Amendment right to counsel, the court “conclude[d] that its application in this context [announced by Padilla] fails to contradict existing norms or forge new precedent in such a way that would require us to consider it a new rule.” Ramirez, No. 2012-NMCA-057, slip op. at 5. That is, Padilla is an old rule of criminal procedure in part because New México criminal defense attorneys had been required to provide specific advice about immigration consequences since Paredez.

We’ll see whether the state supreme court follows the Court of Appeals on this. Because the state uses the Teague retroactivity analysis, though, the critical question is likely to be what the U.S. Supreme Court decides about retroactivity in Chaidez v. United States, 644 F.3d 684 (7th Cir. 2011), cert. granted 132 S. Ct. 2101 (U.S. Apr. 30, 2012).