By Michael S. Vastine
The arguments in Chaidez v. United States reminded me of Ingmar Bergman’s 1957 metaphorical cinematic masterpiece The Seventh Seal, set amid the Black Plague in Europe’s Middle Ages, in which the knight character played by Max von Sydow famously engages in an extended game of chess with Death, knowing that his own demise is extended only by the continuation of the game. Chess is complicated enough without the pressures of carrying on a metaphysical discussion with the grim reaper, an entity that will ultimately win out.
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One is not certain of a negative outcome for Roselva Chaidez, although a majority of the Court certainly did not clearly signal her victory. My sense of dread (and hypersensitivity to the justices’ critique of Chaidez’ case) flows from my own experience with the palpable nature of being in this imbalanced fight, feeling a pawn in the state law retroactivity buzzsaw in arguments in the Florida Supreme Court last summer.
The stakes are high in Chaidez, which itself relates to the federal application of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), but will likely be dispositive of the entire field, as when states are left to make individual decisions regarding its retroactivity. Padilla has frequently been decimated by state courts hostile to any threat to the finality of convictions. For example, the Florida appellate courts have not fully considered the Teague analysis and predicted the federal outcome, instead applying the Florida retroactivity analysis from Witt v. State and Chandler v. Crosby, cases that militate against retroactivity because their tests give weight to the extent of reliance on the former (unconstitutional) rule and the commensurate impact on the judiciary to correct the constitutional wrong. From 1981 to 1987, Florida recognized the rights proclaimed in Padilla.
After reversing course in 1987 in State v. Ginebra, Florida created a large-scale constitutional violation by foreclosing the option of bring a claim identical to Padilla. So far, post-Padilla, the Florida courts have used the scope of their error (permitting twenty-three years of unconstitutional pleas) to justify a rejection of retroactivity, essentially saying the problem the Florida courts have created is now too big to cure. The Florida courts have also been receptive to the state’s arguments regarding the difficulty or impossibility of re-prosecuting a vacated case, essentially saying the state’s interest in preserving a facially constitutionally-suspect conviction outweighs the defendant’s interest in criminal proceedings cognizant of their Sixth Amendment rights.
The Chaidez argument on November 1, 2012 was a delicate dance on the subject of retroactivity of the constitutional right recognized in 2010 – but applied to a violation of that very right in 2002 – of criminal defendants to be accurately informed of the immigration consequences that logically follow from a guilty plea. The arguments struck nuanced tones relating to the evolution of attorney responsibilities, baseline versus aspirational professional norms, conjoined with the esoteric inquiries of judicial implementation of “new” and “old” rules of procedure. Complicating matters for deciding Chaidez are the facts that the architect of Padilla, Justice Stevens, has retired from the court, while the four justices of the Padilla Court (through the two-justice concurrence and two-justice dissent) who objected to its breadth or validity remain.
It is easy to read the Padilla majority as both contemplating the decision’s retroactivity as an “old rule” as an extension of Strickland v. Washington, 466 U.S. 668 (1984), (“Strickland applies to Padilla’s claim”), and as establishing the time period in the mid-1990’s when the professional norms would have developed to the point that an attorney’s failure to advise of immigration consequences would be appropriately considered ineffective. However, since this was not the explicit holding, retroactivity is subject to the present analysis in Chaidez.
The common sense of Padilla is powerful – how could the Supreme Court, in 2010, find that Padilla’s state post-conviction action was viable relating to his 2002 conviction, if the constitutional right did not exist in the distant past? Since Mr. Padilla won, his trial counsel’s conduct must have fallen below professional norms, meaning those norms were established by at least 2002. Earlier benchmarks presented for the crystallization of the prevailing professional norms are the Supreme Court’s 2001 decision in INS v. St. Cyr, 533 U.S. 289 (2001), and the 1996 major revisions to the Immigration and Nationality Act.
It would seem that if Teague governs the retroactivity analysis, the Court could 1) find that Padilla is an application of Strickland and therefore an old rule with retroactive application or 2) draw from the lessons of Danforth v. Minnesota, 128 S. Ct. 1029 (2008), and find that as a new rule announced and applied in a case on collateral attack, Padilla must also be applied retroactively. Either way, the petitioner would win. However, if Padilla was “new” and not controlled by Danforth, it would seem to likely fail to be a watershed event worthy of retroactive application.
At the inception of the argument, Chaidez powerfully noted that the Supreme Court has never yet found a Strickland claim to constitute a Teague new rule. Thus, if Padilla is an old rule, Chaidez has made a case for ineffective assistance. Additionally, because her post-conviction action is via coram nobis, it has no statute of limitations and her claim is timely filed.
But Chief Justice Roberts questioned how Padilla could possibly be an old rule, as four Padilla justices found the decision to represent a novel or rogue concept, and that it seemed to reverse the uniform position of the federal courts. Chaidez argued that the lower courts hadn’t ruled on the merits of Padilla-type claims, but for years had uniformly and wrongly made an artificial distinction between direct and collateral consequences. Of course, this made Chaidez vulnerable to argument that that aspect of the Padilla decision was a new rule.
Ultimately, Chaidez’ position is reliant on the notion that any decision that uses the traditional Strickland analysis will be an old rule, but success in such a claim will be dependent upon an adequate demonstration that the professional norm at issue was clearly established – “crystalized” – at the time of the time of the alleged constitutional violation. Thus, Strickland is a fluid doctrine applied with the benefit of hindsight.
The Chaidez argument was interesting for its re-litigation of the topic of established professional norms. Padilla himself could not have won remand if the Supreme Court had not concluded that the norms existed, at least as early as 2002, entitling him to accurate counsel of immigration consequences. The court now must decide whether to 1) re-open this core concept of Padilla or 2) accept the finality of Padilla – with its majority opinion that Strickland applies to Padilla’s claim and that Padilla himself benefited from the retroactively-applicable realization that contemporary (as of 2002) mores were violated in his own case.
It clouded the issue for the justices to question whether the relevant professional norms are in excess of constitutional minimums. ABA aspirational standards may exceed the constitutional floor, but under Strickland, minimum professional norms are the benchmark for establishing ineffective assistance. It further changes the analysis, as shown by Justice Kennedy’s early question, to accept that Strickland governs Chaidez’s claim, but still find it is necessary to conduct a new rule analysis of Padilla because Padilla was novel in that it extended Strickland to matters (immigration consequences) beyond the purview of the criminal court. This would open Padilla to “new rule” analysis, and a likely negative outcome for Chaidez.
Chaidez’ case faced other risks, including an attempted “checkmate” that she had waived the right to challenge whether Teague is inapplicable to her case. Latent in the Chaidez discussion are the recent Lafler v. Cooper and Missouri v. Frye decisions noting that the criminal system is a plea bargain system, so close attention must be given to attorney conduct in this context, in addition to a defendant’s rights at trial. Chaidez argued that because collateral attacks on the constitutional shortcomings in the plea bargain process are essentially first actions equivalent of direct review on appeal (an initial challenge to the constitutionality of the plea process), Teague should be inapplicable, and Chaidez should be inoculated from having to satisfy the Teague paradigm. Justice Breyer presented this question to the Solicitor General, who argued that the preservation of the final judgment of conviction is the overriding concern, unless constitutional law (as measured by the status quo of courts at the time of conviction) dictated a contrary result.
Countering the logical strength of this argument, the Solicitor General argued that Padilla itself cannot be used for guidance on the Teague question, because Kentucky had waived Teague arguments, so this issue was ripe for consideration in Chaidez and not controlled by Padilla. The Solicitor General further argued that the proper test for retroactivity is whether the result in Padilla was dictated by precedent or whether reasonable jurists could differ (as they obviously did, including the dissenting justices in Padilla, other federal appellate courts pre-Padilla, and in the states, including Florida, which as discussed previously had reversed course on the issue). If this theory prevails, Strickland would apply to Padilla, but the timing of professional norms would not control the timing of the attachment of Padilla rights – as reasonable jurists could have found the opposite conclusion until Padilla cleared the field in 2010.
Applying Teague, the court analyzes the state of the law, not the norms of the bar. The tone of the argument indicated that result could well be that Padilla will be subject to “new rule” treatment, insofar as Strickland was applied to attorney conduct with impacts outside of traditional criminal court sanctions. In that case, no rule less significant than Gideon v. Wainwright, 372 U.S. 335 (1963), may prevail and receive retroactive application and curiously, the only pre-2010 proceedings protected by Padilla would be Mr. Padilla’s own 2002 plea hearing. Chaidez and Justice Stevens would surely find this outcome “absurd,” but it would be checkmate.
Michael S. Vastine is Associate Professor of Law and Director of the Immigration Clinic at St. Thomas University School of Law in Miami, Florida. His practice and research focus on immigration litigation, particularly regarding the deportation consequences of criminal convictions and the due process rights of immigrants. He co-represents the lead case construing the scope of Padilla in the Florida courts, Hernandez v. State, and argued Hernandez at the Florida Supreme Court in May 2012.