7 Cir: Padilla & Chaidez don’t differentiate between no advice & bad advice; neither merits retroactive application of Sixth Amendment

The U.S. Court of Appeals held that the Sixth Amendment right to receive advice about the immigration consequences of a conviction does not apply prior to March 31, 2010 whether the criminal defense attorney affirmatively provided incorrect advice or simply failed to say anything about possible immigration consequences. Chavarria v. United States, No. 11-3549, slip op. (7th Cir. Jan. 9, 2014) (Cudahy, Ripple, and Hamilton, JJ.). Judge Cudahy wrote the panel’s opinion.

This case involved an LPR who was convicted in 2009. After the Supreme Court announced in Padilla v. Kentucky 559 U.S. 356 (2010), that the Sixth Amendment’s right to counsel clause obligates criminal defense attorneys to inform their clients about possible adverse immigration consequences of conviction, Chavarria sought to vacate his conviction. Two years after it issued Padilla, the Supreme Court added that this Sixth Amendment obligation only applies to convictions entered after the date Padilla was announced—March 31, 2010. Chaidez v. United States, 132 S. Ct. 1103 (2012).

In light of Padilla and Chaidez, Chavarria “now argues that Chaidez distinguished between providing no advice…and providing bad advice….” Chavarria , No. 11-3549, slip op. at 3. A defendant who received bad advice, Chavarria contends, can rely on ineffective assistance of counsel case law that existed prior to Padilla to attempt to vacate the conviction even if it was entered prior to March 31, 2010, but a defendant who received no advice can not. Id.

The Seventh Circuit quickly dismissed Chavarria’s argument. The distinction between no advice and bad advice “was not a relevant factor in Padilla,” the court concluded. Chavarria , No. 11-3549, slip op. at 4. Indeed, the court went on, “in its analysis, the Padilla majority was unconcerned with any distinction between affirmative misadvice and non-advice; because, until Padilla was decided, the Sixth Amendment did not apply to deportation matters at all.” Chavarria , No. 11-3549, slip op. at 5. Sixth Amendment case law, including the extensive body of law that existed around the effective assistance of counsel requirement, was “irrelevant” prior to the date Padilla was announced. Id. It could, therefore, not be of help to Chavarria.