Symposium: Chaidez and the crumbling foundations of the Teague rule
In 2010, the Supreme Court held in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that a criminal defense lawyer’s failure to advise a client of the immigration consequences of a conviction can amount to ineffective assistance of counsel and require setting aside the conviction. When Padilla was announced, Roselva Chaidez’s petition for postconviction relief, raising a claim similar to Mr. Padilla’s, was pending in federal district court. The issue to be argued before the Supreme Court on Thursday, November 1, is whether Chaidez was entitled to the benefit of the rule announced in Padilla, or whether she is barred from obtaining relief based on Padilla because of the Court’s 1989 decision in Teague v. Lane, which held that new rules of constitutional criminal procedure generally cannot be the basis for relief in federal habeas proceedings challenging the validity of a state-court criminal judgment.
[Click here to see a list of all the symposium contributions.]
Teague can be many things to many people. To academics, it is an intriguing and complex rule worthy of study. (I was enticed to write about the rule several years ago, and now find myself doing so again.) To judges, Teague may provide an easy way around considering the merits of complicated and fact-intensive constitutional questions. (The Supreme Court instructed federal courts in a 1993 decision, Caspari v. Bohlen, 510 U.S. 383 (1993), to rule on a Teague question before reaching the merits of the underlying constitutional claim.) To litigators, the Teague rule can be an imposing and unpredictable obstacle. (The rule applies only to “new” rules, and determining whether a rule is “new” is no easy task.)
But consider for a moment the people to whom Teague matters most. At the end of the day, Teague says that an invalid criminal judgment must nonetheless stand because of society’s interests in comity (the idea being that federal courts should not undo the judgments of state courts based on new rules) and finality. How unfair must this rule have felt to Warren Summerlin, when in 2004 the Supreme Court told him his death sentence would stand, even though it was obtained in violation of the Constitution? And how unfair will it appear to Roselva Chaidez, if she is told her conviction must stand, based on considerations of comity and finality, when the district court has said Chaidez is entitled to have her plea vacated due to her counsel’s failure to tell Chaidez it could result in deportation?
The Supreme Court says it does not create new constitutional rules; rather, it “discovers” them. The unfairness of the Teague rule, which links the availability of relief to the time the Court discovers a constitutional rule, is that otherwise similarly situated litigants are treated differently. To a litigant like Roselva Chaidez, the unfairness in the message — “We discovered the Constitution in Jose Padilla’s case, but it was too late to save you” — is clear.
Subject to criticism since the decision’s announcement in 1989, Teague’s foundations were shaky from the outset. Chaidez will be the latest in a series of recent Supreme Court cases to expose Teague’s soft underpinnings. In Danforth v. Minnesota, 128 S. Ct. 1029 (2008), the Supreme Court held that Teague was not binding on state postconviction courts, largely because the Court found the comity concerns at the heart of the Teague doctrine “are unique to federal habeas review of state convictions.” As I argued previously, Danforth set the stage for considering whether Teague has any place in federal review of federal convictions.
Answering this question, and not the question whether Padilla announced a “new” rule, is the more direct way to solve the unfairness problems posed by the facts of Chaidez. The Supreme Court has never said it, but the lower federal courts have generally assumed that Teague applies to review of federal convictions. Chaidez argues in Part II of her brief that Teague should not apply. Given the absence of comity concerns, and that federal postconviction proceedings are the procedural analogue of state postconviction proceedings (to which Danforth held the Teague rule does not apply) it would make good sense for the Court to agree with Chaidez’s argument.
Of course, Teague was not rooted solely in comity — finality of criminal judgments was a second concern animating the rule. But, as Chaidez argues, application of the finality principle in her case does not support the application of Teague to bar her claim.
First, Chaidez raises a claim of ineffective assistance of counsel that could not have been litigated earlier, and the Teague rule is being applied to her claim during its first round of litigation. The Teague rule was largely responsive to the ideas of those like Professor Paul Bator and Judge Henry Friendly who believed habeas review should not provide endless opportunities for litigation of issues previously decided. Thus, if state courts provided a fair opportunity for litigation of a constitutional claim, finality concerns became dispositive, and Bator and Friendly believed a federal court should not apply a new constitutional rule to the claim in habeas proceedings.
But ineffective assistance of counsel generally can be raised properly for the first time only in collateral proceedings, because evidence outside the record (such as counsel’s advice to the defendant) typically cannot be considered during direct appellate review. Both Bator and Friendly conceded that the first round of litigation of such claims did not implicate finality concerns in any troubling way, and unencumbered consideration of such claims might even be constitutionally required.
The Court’s decision this spring in Martinez v. Ryan, 132 S. Ct. 1309 (2012), supports the argument that the Teague rule should not apply to bar claims like Chaidez’s that are in their first round of litigation. In Martinez, the Court recognized that state postconviction proceedings that present the first opportunity for litigating a claim of ineffective assistance of counsel are the “equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim.” The implications of that statement for purposes of Teague are clear. Teague does not bar application or announcement of a “new rule” during direct appeal review. In 1987, the Court announced in Griffith v. Kentucky, 479 U.S. 314 (1987), that a “new” constitutional rule must be applied to all cases then pending on direct review. The Griffith rule, and not the Teague rule, should apply in cases where the postconviction proceedings are the “equivalent of a prisoner’s direct appeal,” for all the reasons supporting the Griffith rule.
Second, once the comity justification for applying Teague is stripped away, it becomes evident that other procedural doctrines more effectively address whatever finality concerns remain. Such procedural doctrines can include statutes of limitation, exhaustion requirements, and procedural default rules. All of these rules are tailored to serve finality concerns.
The point is well illustrated by the proceedings in the district court in Chaidez’s case. Chaidez filed a coram nobis petition rather than a habeas corpus petition. (She did so because some six years had passed since her guilty plea, and her probation had been completed, so she could no longer meet the “in custody” requirement for habeas corpus jurisdiction.) The government’s response to Chaidez’s petition raised two procedural defenses. First, the government claimed Chaidez’s claim was time barred by the doctrine of laches, and argued that Chaidez had shown no reason why she couldn’t have raised the claim earlier. Second, the government claimed that Chaidez could and should have raised the claim on direct appeal, rather than in a collateral attack on the conviction.
The district court rejected both of these arguments. First, it held that Chaidez’s claim had been timely raised, finding Chaidez only learned that her criminal conviction could result in her deportation in 2009 after she applied for citizenship and was put in deportation proceedings. Second, it held Chaidez properly brought the claim by way of a coram nobis petition.
That any finality concerns remain after such procedural defenses have been raised and considered is doubtful. The existence of a multitude of doctrines that serve the finality interest means that Teague is superfluous as a finality-serving doctrine.
The Court ought to take the opportunity presented by Chaidez to confine the Teague rule to the original circumstances that prompted its creation — the review in federal habeas proceedings of constitutional claims that have, or should have already been subjected to a complete round of state-court litigation. On Thursday we will see whether the Court engages with this important question posed by Chaidez.
Christopher N. Lasch is an Assistant Professor at the University of Denver Sturm College of Law, where he co-teaches the Criminal Defense Clinic.