This past Thursday, the U.S. Supreme Court heard oral argument in Chaidez v. United States, a case that raises the critical issue of whether noncitizen defendants whose attorneys failed to warn them they would be deported can challenge their pre-Padilla pleas. As pointed out in an amicus brief submitted by the American Immigration Lawyers Association, other noncitizens whose defense attorneys failed to warn them that they would be deported eagerly await the Court’s ruling in Chaidez’s case.
[Click here to see a list of all the symposium contributions.]
The first question in Chaidez is whether the Strickland v. Washington, 466 U.S. 668 (1984), standard of prevailing professional norms expands the ambit of defense counsel’s Sixth Amendment duty over time such that it includes advising of immigration consequences, without creating a new rule. As I have discussed elsewhere, if Padilla did not create a new rule and only applied the Strickland standard for gauging competent attorney performance, there is no need for an analysis of whether the rule is “retroactive” under Teague v. Lane, 489 U.S. 288 (1989).
In its brief to the Court, the U.S. government urged that Padilla created a new rule because it did not just involve the Strickland standard but a separate “antecedent question” regarding whether counsel’s Sixth Amendment duty to be effective applied to consequences outside the criminal case, such as deportation. During oral argument, Justices Ginsburg, Kagan, and Kennedy each asked Chaidez’s counsel, Jeffrey Fisher, a question that appeared to adopt the government’s framing of the issue.
Not surprisingly, Fisher responded that Padilla did not carve out (and then answer) an “antecedent” question but instead applied the “ordinary Strickland formula” for evaluating counsel’s competency that is “keyed” to prevailing professional norms. He characterized as “artificial” the view that prevailing defense counsel norms are different in kind when they involve something outside the criminal case.
The justices seemed untroubled by the government’s argument that Padilla reversed a significant number of lower court cases and that Padilla itself had a dissent. Appearing to reject an empirical approach to the “new rule” question, the justices searched instead for a principled way of deciding what constitutes a new rule. Justice Sotomayor posed to the government: “So unanimous error makes [it] right?”
Much of the discussion was pragmatic. Justice Breyer observed: “I would have thought it was common sense that a lawyer should tell the client the terrible things that are going to happen to him if he pleads guilty.” Justice Kagan commented that “a reasonable lawyer, you might think, would have a conversation with his client about the deportation consequences of a conviction.”
But the most sustained exchanges on the old/new rule question came with the discussion of concrete examples. Justice Ginsburg introduced the idea of “loss of a professional license” as another consequence of a plea that could arguably fall within the scope of required attorney advice. Justice Alito reiterated the example and it came up again in a response to a question posed by Chief Justice Roberts. Justice Kennedy suggested that “ensuring that the defendant can go into the general population” rather than “solitary confinement” might fall within defense counsel’s Sixth Amendment duty.
Fisher argued that the only scenario under which a new rule would emerge is if the Court were to alter the Strickland standard to hold that “Strickland requires relief, even though at the time the advice was given the prevailing norm had not yet crystalized into the degree that this Court requires (emphasis added).” As both Fisher and, ultimately, Deputy Solicitor General Dreeben acknowledged, the question is always “what the prevailing professional norms looked like” at the time of the attorney’s actions.
For Chaidez, the answer to the professional license and solitary confinement hypotheticals—like the answer to all Strickland rule hypotheticals—is that it depends on the prevailing professional norms. The application of Strickland involves determining what professional norms governed an attorney at the time she or he acted. This analysis does not create a new rule. For Chaidez, the answer to Justice Ginsburg’s question whether there is “any application” of Strickland that “would qualify as a new rule” is “no.”
In a pivotal moment, Justice Sotomayor asked the government whether Padilla established a new rule even with respect to affirmative misadvice cases. Prior to Padilla, many courts recognized that noncitizen defendants could bring a Sixth Amendment claim if their attorney incorrectly told them they would not be deported. Justice Sotomayor asked: “is our ruling here going to depend on the type of claim that’s raised?” In response, Dreeben conceded that the “misadvice claim was not new before Padilla” and argued that these cases involved a different rule. This was an important concession, as later pointed out by Fisher: Padilla cannot have “broke[n] new ground” with respect to deportation consequences if some immigration claims already fell “within the ambit of the Sixth Amendment.”
By characterizing the lower court pre-Padilla cases as involving two different rules, one of which was new and one of which was not, Dreeben came dangerously close to saying that different applications of Strickland create new rules. But this is plainly not the case. The Court has never held in its approximately thirty applications of Strickland that it had created a new rule. Dreeben himself pointed out “how rare a new rule under Strickland really is.”
When pressed by the justices on how Padilla involved something other than an application of Strickland, Dreeben argued that Strickland’s prevailing norm standard was not, in fact, the “basis of” Padilla, even going so far to say that Padilla “did not cite professional norms.” But it would seem that Dreeben was incorrect on this point. Padilla directly relied on “prevailing professional norms” for its holding, citing to about a dozen practice guides and articles.
The Court spent roughly half the argument addressing a second issue: assuming Padilla established a new rule, does Teague’s retroactivity analysis apply? Chaidez argues that it does not apply to her because 1) she, unlike Teague, has a federal rather than a state conviction; and 2) her first opportunity to raise her ineffective assistance of counsel claim was in a post-conviction proceeding rather than on direct appeal. Given the Court’s recent recognition in Martinez v. Ryan, 132 S. Ct. 1309 (2012), that ineffective assistance of counsel claims can be “the equivalent of direct review,” Chaidez argues that she should get the benefit of any new rule in her first federal proceeding on her claim.
Justice Breyer in particular seemed troubled that a new rule would apply “to cases on direct review” but not to ineffective assistance of counsel cases that usually can be brought for the first time on collateral review. Justice Kagan also expressed interest in the idea of there being “one . . . run up the flagpole” before Teague’s retroactivity analysis “kick[s] in.”
The government could say very little to allay this fairness concern, arguing instead that it would be possible to set up a system for considering ineffective assistance of counsel claims on direct review through the use of remands to develop the factual record. As Fisher pointed out, however, such a system would “flood” courts with ineffective assistance of counsel claims being raised on direct appeal, throwing a “gigantic monkey wrench” into the current practice for raising these claims. Among other things, embedding such claims in direct review would create systematic “conflicts of interest” between federal public defenders and their clients because attorneys would be forced to counsel their clients to raise ineffectiveness claims on direct appeal or risk forfeiting them.
In the end, the oral argument left the listener with the impression that common sense is on the side of Chaidez with respect to both issues. Understanding Padilla as anything other than an application of Strickland would break with two decades of Strickland precedent and create a new exception for what counts as a new rule, needlessly complicating the future resolution of Strickland claims. Failing to treat ineffective assistance of counsel claims in post-conviction proceedings as the equivalent of direct review claims would deprive defendants of the governing law during even their first “bite at the apple” and would create unwanted incentives for defendants to raise ineffective assistance of counsel claims on direct appeal.
Rebecca Sharpless is an Associate Clinical Professor at the University of Miami School of Law, where she directs the Immigration Clinic and teaches immigration law.