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Trying (& Failing) to Find Logic in Chaidez

By Michael S. Vastine

This post could easily become an unbecoming rant, given the frustration that I share with my colleagues in the immigrant defense bar over the reasoning and outcome of Chaidez v. Holder, 568 U. S. ____, No. 11-820, slip op. (U.S. Feb. 20, 2013). Chaidez held that the Sixth Amendment right to effective representation, which as enumerated in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), includes the right to accurate advice regarding the obvious immigration consequences of a guilty plea, does not apply retroactively to cases that were final at the time Padilla was decided.

I was not terribly optimistic for retroactive application of Padilla after the oral argument, particularly given the change in court personnel through the retirement of Justice John Paul Stevens, the author of Padilla. Whereas Justice Stevens not-so-subtly laid the bones for retroactivity throughout Padilla with his extensive ruminations on professional standards of representing criminal immigrants dating to the early 1990s, Justice Kagan and the Chaidez majority effectively ripped the heart out of Padilla in finding that, out of a generation of similarly situated defendants who received ineffective counsel, only Mr. Padilla himself may access post-conviction relief. Adding irony to injury was Justice Kagan, Stevens’ very replacement on the court, authoring the decision eviscerating the practical benefits to the aggrieved defendants who were seemingly empowered by Stevens and the Padilla majority in Stevens’ final term.

Why a new rule?

Of course, Stevens did not and could not rule on the retroactivity of Padilla since it was not the question presented there. Similarly, Chaidez was in some ways not the ideal vehicle for presenting the issue of retroactivity under Teague v. Lane, 489 U.S. 288 (1989). Teague would require retroactivity only if either 1) Padilla was an “old rule” (i.e., dictated by precedent as an application of the classic Strickland v. Washington, 466 U.S. 668 (1984), analysis to a new factual scenario of alleged ineffective counsel) or 2) a “new rule” that constituted a “watershed rule of criminal procedure.” For procedural reasons, Chaidez only could argue that Padilla was an old rule application of Strickland. Chaidez, slip. op. at 4, n.3.

This was the undoing of the case. Once the court was able to find Padilla was a “new rule” Chaidez was doomed. How Kagan did this required some logic that surprises and does not convince me.
Initially, Kagan accomplished her finding of “new rule” by recasting Padilla as a pair of successive questions: first, whether Strickland (and the Sixth Amendment) applied, and secondly, how it applied. Chaidez at 6. She then opined that because the court had had to consider the precursor question, then Padilla must represent a new rule. Id., at 9.

Kagan reinforced her “new rule” finding by investing the final third of her opinion in rejecting the argument of Chaidez (shared by the dissent) that Strickland dictated the result in Padilla, even though Justice Stevens (and the Padilla majority) had already held exactly that. In doing so, she restated the themes proclaimed in the Padilla concurrence and dissent (even acknowledging them in a lengthy footnote) that the pre-Padilla courts had uniformly found advice on immigration and other collateral consequences outside the scope of effective criminal counsel.

Of course, Stevens had observed the same facts of broad judicial error in Padilla. After noting that courts had generally found collateral matters outside the Sixth Amendment, Stevens directly addressed the courts’ misguided decisions noting “We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally “reasonable professional assistance” required under Strickland.” In other words, Padilla might be reversing a widely-held opinion, but that opinion was always wrong. Correcting the lower courts’ misapplication of the Sixth Amendment was not novel — it just looked that way because the courts had consistently made a mess of it.

Chaidez – and all other immigrant defendants – would have been better served if Chaidez could have also argued the possibility the Padilla was a new rule of watershed significance. Logically, it would be hard to imagine that Padilla is neither 1) an application of Strickland nor 2) a watershed event for the rights of immigrants. This posture would have robbed Kagan of the clarity in her argument that the sheer volume of adverse court decisions, pre-Padilla, indicated that it was a new rule.

Along this same line of thought, it is not possible for me to reconcile Chaidez with Danforth v. Minnesota, 552 U.S. 264 (2008). The Supreme Court discussed in Danforth that “‘[u]nder Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two [Teague] exceptions.’” Danforth, at 267, n.1 (2008), citing Penry v. Lynaugh, 492 U.S. 302 (1989). Further, when a case is on collateral review and the holding sought by the defendant would announce a new rule that does not fit a Teague exception, the Supreme Court will refuse to apply or announce the rule in that case. See Graham v. Collins, 506 U.S. 461, 463 (1993). In other words, if it was both “new” and “non-retroactive,” Padilla could not have been decided at all, as it would violate Teague. Now we know that Padilla represented a “new” rule. How is this reconcilable?

Additionally, in the Chaidez opinion, Kagan referenced Santos-Sanchez v. United States, 548 F.3d 327, 334 (5th Cir. 2008). See Chaidez, slip op. at 7. This is a curious case to mention in a case finding non-retroactivity, because (as widely observed by attorneys engaged in post-Padilla litigation), it represents support for retroactive application of Padilla, because the case was remanded by the U.S. Supreme Court after the Court issued Padilla. See Santos-Sanchez v. United States, 130 S. Ct. 2340 (2010). It is significant that Santos-Sanchez, a permanent resident alien of the United States since 2001, was arrested on September 6, 2003, and charged with aiding and abetting the illegal entry of an alien. See Santos-Sanchez, 548 F.3d at 329. Two days later, Santos-Sanchez appeared before a magistrate judge and pleaded guilty. Id. Thus, his plea pre-dated Padilla by approximately six and one half years. Santos-Sanchez was on appeal at the U.S. Supreme Court when Padilla was decided. The Court remanded it to the Fifth Circuit, apparently applying Padilla to a case final prior to Padilla being decided.

On remand, the Santos-Sanchez post-conviction trial court, logically found that it did not matter which Teague test was applied, as each test would result in the retroactive application of Padilla:

“Normally, the Court would be compelled to choose one of these unattractive options [“old rule” or “new rule” exception]. However, that decision is unnecessary in this case because each of the available options requires retroactive application of Padilla to cases on collateral review. Since Padilla itself was on collateral review and it both announced and applied its own rule, this Court is compelled to reach the merits of Santos-Sanchez’ Padilla claim.”

Santos-Sanchez v. United States, 2011 U.S. Dist. LEXIS 95442 (S. Dist. Tex, Aug. 24, 2011), at 32. The District Court then denied Santos-Sanchez’s claim on other grounds.

Where is the justice in the world after Frye, Lafler and Padilla?

Recently, it had seemed that the U.S. Supreme Court both understood the fallibility of the contemporary world of criminal plea bargaining and was trending toward providing protections from injustices outside those typically asserted at trial. In the present day, over 95% of criminal convictions are achieved via guilty pleas. Consequently, the traditional notion of constitutional rights as asserted in a trial is largely an anachronism. In the recent decision Lafler v. Cooper, 132 S.Ct. 1376 (2012), and Missouri v. Frye, 132 S.Ct. 1399 (2012), the Supreme Court noted that the traditional criminal justice system has been replaced by the contemporary plea bargain scheme. In Lafler and Frye, the Court acknowledged what had long been obvious to the criminal bar, namely that close attention must be given to attorney conduct in the plea context, in addition to a defendant’s rights at trial, because the plea arena is now where 95% of the benefits (and missteps) of attorney representation are actualized.

Although Lafler, Frye and Padilla acknowledge the problem of constitutional protections in the plea bargaining process, the Court apparently lacks the willingness to follow the logic of the decisions to permit correction of curable tainted convictions. The very problem of the Chaidez decision is illustrated in its precise holding: “Under Teague, defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.” Slip Op. at 15. Post-conviction relief generally is sought in cases that are final. Guilty pleas are rarely appealed and frequently are plea bargains are regularly accompanied by waivers of appeal (and in some jurisdictions also by waivers of rights to contest the effective representation of counsel at the plea hearing). Thus, the post-conviction relief described in Padilla is inherently a backward-looking process that exists beyond the scope of the initial proceeding. Chaidez had gone so far as to argue 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. The Court found this issue to be waived.

What is a final conviction and when does finality occur? Generally, one thinks of the conclusion of the appellate period of the case-in-chief. In some jurisdictions, it is the end of the period in which the period for bringing timely post-conviction claims has expired. Either way, this means that there is (or was) a class of cases actionable under Chaidez where the plea occurred prior to Padilla but the decision became “final” later, crossing some temporal Maginot Line so important to the Teague analysis in Chaidez.

In other words, the Court contemplates that in some cases, Padilla benefits apply to cases that pre-date Padilla. While this may create a happy result for the beneficiaries under this scheme, this “semi-retroactivity” makes little logical sense.

Padilla prospectively remains wonderful empowering news for defendants and attorneys, as it requires holistic, well-informed practice that should improve the fairness of the criminal justice system. Unfortunately, in a different track, the entirely unconvincing logic of Chaidez will only add to the bitterness of the coming years, in which more and more cases will arrive in immigration court with immigrants facing certain deportation and all of the parties knowing that the basis for deportation was achieved via constitutionally suspect, yet now incurable, means.

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, in which the Florida Supreme Court found against retroactivity under the state retroactivity analysis.

Comments

  1. I have a stupid question (because I don’t deal with immigration issues very often)…. What happens to the argument that “Padilla” was a watershed?

    As I read “Chaidez,” the primary argument is that “Padilla” wasn’t new law. Kagan argues, somewhat unconvincingly, that it was new. But the opinion expressly says that Chaidez didn’t argue that this was “watershed”-level new, and so therefore doesn’t reach that argument. “Chaidez” simply says that “Padilla” doesn’t apply retroactively because, prior to “Padilla,” reasonable attorneys and judges would differ on whether you had an obligation to advise the defendant about what pleading guilty would mean for their current or any future immigration problem.

    I think it would be difficult to raise that argument now, but I don’t see that it’s been completely ruled out. I’m dumb about this, so I must be wrong; what am I not seeing?

    Reply

  2. I have a stupid question (because I don’t deal with immigration issues very often)…. What happens to the argument that “Padilla” was a watershed?

    As I read “Chaidez,” the primary argument is that “Padilla” wasn’t new law. Kagan argues, somewhat unconvincingly, that it was new. But the opinion expressly says that Chaidez didn’t argue that this was “watershed”-level new, and so therefore doesn’t reach that argument. “Chaidez” simply says that “Padilla” doesn’t apply retroactively because, prior to “Padilla,” reasonable attorneys and judges would differ on whether you had an obligation to advise the defendant about what pleading guilty would mean for their current or any future immigration problem.

    I think it would be difficult to raise that argument now, but I don’t see that it’s been completely ruled out. I’m dumb about this, so I must be wrong; what am I not seeing?

    Reply

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