It begs the question of judicial integrity and professional responsibility.
The Sixth Amendment guarantees that every accused shall have the right to counsel for his defense. But, “the mere physical presence of…counsel is not enough: it is the marriage of the attorney’s legal knowledge and mature judgment with the defendant’s factual knowledge that makes for an adequate defense.” United States of America v. Smith, 640 F.3d 580 (4th Cir. 2011). Today, counsel’s knowledge must necessarily include the accused’s immigration objectives and must clearly communicate to the accused the material risks associated with counsel’s recommendation that the accused plead guilty. So the High Court held in Padilla v Kentucky, 130 S. Ct. 1473 (2010), on March 31, 2010.
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Over the next few days, we will hear about the Teague retroactivity test for introducing rules of constitutional criminal procedure, but I believe that Padilla retroactivity is needed to preserve any semblance of judicial integrity and professional responsibility. Padilla advisals by attorneys are not something new to be added to the current professional norms, but attorney-client communication. They are something that has always existed in the attorney-client representation process where the Fifth Amendment guarantees a plea of guilt that is knowingly, intelligently and voluntarily made: “How can an old plea conviction be valid and reliable, if we allowed an attorney to misadvise or fail to communicate regarding the client’s immigration objectives before March 31, 2010?” Remember, the High Court provides that immigration penalties might be more severe than the criminal penalty.
The High Court is scheduled to hear oral arguments in Chaidez v. United States, which might be a pseudonym for Padilla v. Kentucky II. The issue in Chaidez is whether the High Court’s March 31, 2010 decision in Padilla should be applied to those cases which preceded the decision or Padilla retroactivity. Like Padilla, Chaidez is a long-term permanent resident alien of the United States and has strong family ties to the United States, but she is being deported as her criminal defense counsel was mute, or did not advise her of the immigration ramifications of pleading guilty.
In Padilla, an independent truck driver was induced by his trial counsel to plead guilty to drug distribution charges in Kentucky on the blatant misadvise that he would not be deported based on his “equity.” Id. at 1478. Mr. Padilla, an Honduran native and forty-year lawful permanent resident alien of the United States, had served in Vietnam, had a United States citizen wife, and three disabled United States citizen children. Id. But the deportation consequence evident from the text of the statute was truly clear for drug distribution charges and the attorney’s duty to give correct advice was equally clear. Id. at 1482. As such, the High Court held that its previous precedent, Strickland v Washington, 466 U.S. 668(1984), applied to Padilla’s claim and that Padilla’s attorney was constitutionally deficient in his performance within the context of the Sixth Amendment.
The United States Court of Appeals for the Third Circuit held that Padilla is retroactive, but it currently stands alone among the federal courts of appeals. The Fifth, Seventh, and Tenth Circuits believe providing immigration ramifications of pleading guilty are not constitutionally protected, or at least view criminal counsel providing accurate immigration advice associated with a plea of guilty as something “new” following Padilla. Put a different way, prior to Padilla, these circuits did not require “informed consent” of collateral immigration issues associated with a plea of guilt.
In Teague v. Lane, 489 U.S. 288 (1989), the High Court established a retroactivity test for cases like Padilla and Chaidez which introduces formal rules of criminal procedure. Namely, if the rule of criminal procedure is an old rule, then it should be applied retroactively on both direct and collateral review. But if Padilla is a new rule because it breaks new ground or establishes new precedent, then is should not be retroactive except in limited exceptions. Chaidez is expected to resolve the split in the circuits.
I predict that the High Court will declare Padilla retroactive. “Strickland applies to Padilla’s claim,” the Court wrote, not to mention that Strickland’s past precedent, McCann v. Richardson, 397 U.S. 759 (1970), and INS v St. Cyr, 533 U.S. 289 (2001), a case about retroactive repeal of a form of relief from removal, became the building blocks of the Padilla decision. Put a different way, Padilla is not necessarily new precedent but a mere application of Strickland’s performance prong. So old rules were simply applied to different facts.
A different facet in favor of Padilla retroactivity are the twin Supreme Court Sixth Amendment right to counsel decisions, Missouri v. Frye, 132 S. Ct. 1376 (2012), and Lafler v. Cooper, 132 S. Ct. 1399 (2012). In both cases, the High Court recognized that plea-stage representation was categorically included in the Sixth Amendment and used the familiar Strickland test to find that 1) counsel’s failure to communicate a plea agreement to a misdemeanor (such that the accused pled to a felony instead) and 2) counsel who utilized improper judgment by giving the accused advice to reject a plea and go to trial as constitutionally deficient performance. Interestingly, the Fifth Circuit recently held In re Richard M. King, Jr., 12-40772 (5th Cir. August 14, 2012), that both Frye and Cooper were retroactive because they were mere applications of Strickland, yet it held that Padilla was not retroactive in Amer.
A third reason retroactivity is mandated is that the High Court noted that it was objectively reasonable for counsel to not only provide immigration advice but correct advice because “for at least the 15 years preceding [Padilla], professional norms had imposed an obligation on counsel to provide advice regarding the deportation consequences of guilty pleas.” So nothing is new!
On September 28, 2012, the Kentucky Court of Appeals finally vacated Padilla’s conviction because Padilla had met both the attorney performance and prejudice prongs under Strickland. Nonetheless, the Court of Appeals for Kentucky also opined that Padilla could be tried again and, if convicted, faces the maximum ten-year sentence (so, the five he already did does not count) and deportation. This means that if Padilla is deemed retroactive, you better be careful for what you ask for, as you might receive much more than you bargained. For constitutional challenges to sentences on re-conviction, see North Carolina v. Pearce, 395 U.S. 711 (1969).
*Maurice Hew, Jr., is the Clinical Director of the Thurgood Marshall School of Law where he is also an associate professor. Professor Hew directs the individual immigration clinic, teaches substantive immigration courses, professional responsibility and trial simulation. He is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization.