The latest, but certainly not the last, chapter in post-Padilla v. Kentucky cases occurred on Wednesday when the U.S. Supreme Court issued its long-awaited decision in Chaidez v. U.S. Before the Court was the question whether Padilla announced a non-retroactive new rule under Teague v. Lane. Chaidez sought to rely upon Padilla in federal post-conviction proceedings to vacate her pre-Padilla criminal plea for mail fraud. She argued that Padilla did not announce a new rule but simply applied the longstanding rule in Strickland v. Washington, which pegs the scope of Sixth Amendment protection to prevailing professional norms. In a 5-2 decision authored by Justice Kagan, the Court disagreed, characterizing its holding as “under the principles set out in Teague v. Lane, 489 U.S. 288 (1989), Padilla does not have retroactive effect.” Chaidez is the first time that the Supreme Court has found an application of Strickland to be a new rule.
It is important to note what the Court did not decide in Chaidez but left for another day. The Court declined to address Chaidez’s two additional arguments: 1) Teague’s analysis does not apply because she, unlike Teague, had a federal rather than a state conviction; and 2) new rules apply in post-conviction proceedings raising ineffective assistance of counsel claims because such claims cannot be brought on direct appeal. The Court thus applied Teague for the first in a federal case, but it did so without ruling that Teague should apply, leaving the question open for future litigation. Moreover, both state and federal litigants can still take up Chaidez’s argument that new rules apply in ineffective assistance of counsel cases that must be brought on post-conviction rather than direct appeal.
The lynchpin of the majority’s opinion is its characterization of Padilla as involving a “threshold question” distinct from the application of Strickland, namely “Was advice about deportation ‘categorically removed’ from the scope of the Sixth Amendment right to counsel because it involved only a ‘collateral consequence’ of a conviction, rather than a component of the criminal sentence?” The majority also posed the question in alternate form:“[P]rior to asking how the Strickland test applied (‘Did this attorney act unreasonably?’), Padilla asked whether the Strickland test applied (‘Should we even evaluate if this attorney acted unreasonably?’).” Because the answer to the first question was “unsettled” in lower courts, Justice Kagan reasoned that the “yes” answer of the Court in Padilla established a new rule.
The dissent, authored by Justice Sotomayor and joined by Justice Ginsberg, pushed back on the “threshold question” formulation, arguing that the separateness of the two questions was illusory. To ask whether the Sixth Amendment applies to the “categor[y]” of advice about immigration consequences is simply to ask whether it is reasonable to fail to warn of immigration consequences. Both questions boil down to the question of what professional norms required–the Strickland test.
Padilla feels like a new rule because lower courts had adopted a distinction between direct and collateral consequences in defining the scope of the Sixth Amendment. The Court in Padilla had to clarify that this distinction never existed in its own case law and was incorrect. “[B]y declining to apply a collateral-consequence doctrine the Court had never adopted,” the Chaidez dissent argues, Padilla did not create a new rule. It simply clarified that lower courts were out of step with its prior case law.
The deeper question is whether the test for whether a new rule exists involves an empirical polling of lower court decisions. Surely a uniform mistake among lower courts does not control whether a rule is new or not. Both the majority and dissent, however, acknowledge that lower court decisions are at least somewhat relevant to the Teague new rule analysis. The majority tallied the lower court decisions holding that immigration consequences were collateral and outside the Sixth Amendment’s protection. The dissent, in a more nuanced approached, pointed out that lower court decisions have tracked the evolution of professional norms and trend toward recognizing a duty to warn. The dissent, however, relied on more than just its historical reading of lower court decisions. It characterized Teague’s “new rule” test as “objective” and therefore unmoored from whether lower courts happened to get it right. An objective test makes the Supreme Court’s own jurisprudence the proper frame of reference for analyzing whether precedent dictates a result.
In the end, the majority’s scorecard approach prevailed and may influence future Teague jurisprudence. Chaidez may signal that lower courts, not the Supreme Court, provide the proper vantage point from which to judge the newness of a rule under Teague.
Rebecca Sharpless is an Associate Professor of Clinical Legal Education and Director of the immigration clinic at the University of Miami School of Law.