Padilla Claims Post-Chaidez: What’s Left??
By Dawn Seibert
The Court held in Chaidez v. U.S. that Padilla v. Kentucky, 559 U.S. 356 (2010) is a “new rule” pursuant to Teague v. Lane, 489 U.S. 288 (1989), and thus under the Teague analysis does not apply retroactively to convictions that were final before Padilla was decided. This is a deeply unjust decision. Ms. Chaidez pleaded guilty two years after Mr. Padilla, and her post-conviction relief (PCR) petition was pending when Padilla was decided. Therefore, the norms supporting the Sixth Amendment duty to advise regarding immigration consequences were firmly in place at the time of her plea, and it is only the fortuity of timing that prevented her case from reaching the Supreme Court first.
The silver lining in this decision is that Chaidez did not dispute Padilla’s assertion that for at least the past 15 years professional norms have obligated defense counsel to advise regarding immigration consequences; in fact, the opinion cited to a 1968 ABA standard that instructed defense attorneys to give advice regarding deportation. Thus, in a post-Chaidez world, Padilla claims stand on a strong footing substantively. Given what is at stake for many of these defendants – separation from family, friends, job, the place they consider home, where they have lived for years or decades – a substantial number of defendants will likely continue to fight hard to get their day in court on the merits of their ineffective assistance of counsel claim.
Chaidez dealt a heavy blow to Padilla retroactivity but it did not render Padilla completely unavailable for challenges to convictions that were final when Padilla was decided. For state and federal PCR petitioners in the same boat as Ms. Chaidez, there are ways to fight the dismissal of those claims.
These are some of the remaining arguments: 1) State courts can apply broader state retroactivity principles to award relief on Padilla PCR motions; 2) there may be an independent state constitutional right to effective assistance of counsel, which is unaffected by Chaidez; 3) Chaidez does not impact the viability of a Padilla claim for a defendant whose conviction was not final (all possibility of appeal exhausted) as of March 31, 2010; 4) Padilla applies in a first post-conviction proceeding, whether federal or state, because such a proceeding is akin to the initial criminal proceeding for purposes of an ineffective assistance claim; 5) Chaidez preserves the right of an immigrant to obtain relief if the immigrant can show that he or she was affirmatively misadvised regarding the immigration consequences of his criminal case; 6) Padilla may continue to apply to state post-conviction cases filed prior to March 31, 2010; and 7) Chaidez does not interfere with the right of an immigrant whose criminal lawyer failed to investigate and advise regarding immigration consequences to present the claim for relief, where appropriate, as one that violated an earlier recognized constitutional duty, such as a duty to negotiate the best possible plea. Practitioners may consult the Immigrant Defense Project’s PCR webpage for research and briefing regarding these arguments.
It remains to be seen what courts will do with cases alleging Padilla violations. Chaidez has the potential for significant negative impact on those claims. The effectiveness of the arguments above depends on the resourcefulness of the defense bar in developing and pressing them forcefully. My initial impression is that courts and prosecutors are expecting immigrant defendants and their attorneys to concede that Chaidez is the end of the story. In fact, as the above arguments demonstrate, it is only the beginning.
[Update: The Immigrant Defense Project and the National Immigration Project released a practice advisory, co-authored by Dawn Seibert and Sejal Zota, about post-Chaidez ineffective assistance claims based on Padilla. Attorneys with potential Padilla claims would do well to read the practice advisory (available here).]
Dawn Seibert works with the Immigrant Defense Project’s litigation team to protect the U.S. Supreme Court’s Padilla v. Kentucky decision by monitoring and supporting post-conviction relief litigation to remedy uninformed pleas. She consults with practitioners on trial strategy in post-conviction relief cases, provides model post-conviction relief materials and sample briefs, and intervenes as amicus in impact cases regarding the scope and retroactivity of Padilla. Dawn is also involved in training criminal defense attorneys on the provision of accurate immigration advice to non-citizen defendants.