Continuing the inevitable development of right-to-counsel case law in the states courts, the Washington Supreme Court held last week that the U.S. Supreme Court’s landmark opinion in Padilla v. Kentucky, 559 U.S. 356 (2010), applies no matter when the conviction was entered. In re Tsai, No. 88770-5, slip op. (Wash. May 7, 2005). A divided Washington Supreme Court—five justices in the majority, four in dissent—concluded that Padilla was not a new rule of constitutional law, thus it applies retroactively.
This case involved two separate claims that were consolidated at the state supreme court level. Both involved 2006 convictions for a single count of possession of a controlled substance (one with intent to distribute). Id. at 3-4. Both migrants claimed that they were not properly apprised that a conviction would result in possible removal, an obligation that, according to Padilla, defense attorneys owe to defendants under the Sixth Amendment right to counsel.
Because both convictions preceded Padilla, the Washington courts had to first decide whether their defense attorneys were even under this obligation. The retroactivity test used by federal courts applies constitutional decisions retroactively if they were essentially applications of existing constitutional doctrine to new factual scenarios. Teague v. Lane, 489 U.S. 288 (1989). If a decision announced a new constitutional rule of criminal procedure, however, the decision applies only to convictions entered on or after the date the decision was announced. Though states aren’t required to use this retroactivity analysis, many, including Washington, do. In re Tsai, No. 88770-5, slip op. at 7.
To determine whether Padilla announced a new rule or merely applied an old rule to new facts (immigration consequences of conviction), the Washington Supreme Court turned to a common feature of state criminal procedure for guidance: the long established requirement under Washington law that courts and, indirectly, attorneys inform defendants that there may be adverse consequences to pleading guilty. The Washington legislature enacted such a judicial admonishment statute in 1983. The standard plea form used in Washington criminal proceedings includes a statement to this effect. Id. at 8.
Because some form of a judicial admonishment exists in about half the states and the federal court system, a number of courts throughout the United States (see, e.g., here) and here) have grappled with the relevance of judicial admonishments to Padilla claims. Some have concluded that the existence of such an admonishment means that a migrant defendant hasn’t suffered ineffective assistance of counsel. Others have taken a different position. As I write in my forthcoming book, Crimmigration Law (ABA 2015),
While judicial admonishments are intended to realize the Due Process Clause’s concerns that the defendant entered a plea knowingly, voluntarily, and intelligently, the Strickland prejudice requirement is one part of the Sixth Amendment right to effective assistance of counsel. These are distinct constitutional provisions that should fall or stand largely on their own. The first obligation falls on courts; the second falls on defense attorneys. While defendants certainly benefit from having the court flag immigration issues as a concern, no one seriously advocates that judges should take the place of attorneys in strategically guiding defendants through the criminal process. Judges do not have the time to do this. Even if judicial resources were not limited, in an adversarial system of justice judges should not take the role of one party’s advocate—effectively what it means to allow them to step in to correct a defendant’s constitutionally deficient advice.
The Washington Supreme Court recognized this distinction.
Moreover, the court emphasized the fact that the judicial admonishment hands a responsibility to defense attorneys to figure out whether immigration consequences will arise. In the court’s words, “RCW 10.40.200’s [the judicial admonishment statute] plain language gives noncitizen defendants the unequivocal right to advice regarding immigration consequences and necessarily imposes a correlative duty on defense counsel to ensure that advice is provided.” In re Tsai, No. 88770-5, slip op. at 9.
Indeed, the Sixth Amendment right to counsel requires defense attorneys to engage in reasonable research into the law that is relevant to their client’s predicament. In the decision setting forth the modern test of ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 691 (1984), the Supreme Court announced “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Applied to Washington criminal defense practitioners, this means that “[w]here an attorney unreasonably fails to research or apply relevant statutes without any tactical purpose, the attorney’s performance is constitutionally deficient.” In re Tsai, No. 88770-5, slip op. at 9.
Because this obligation is grounded in a statute that was enacted in 1983, Padilla can’t be said to have recognized a new obligation. Instead, framed this way, “Padilla thus becomes a ‘garden-variety application of the test in Strickland’ that simply refines the scope of defense counsel’s constitutional duties as applied to a specific fact pattern.” Id. at 10 (quoting Chaidez v United States, 133 S. Ct. 1103, 1107 (2013)). Padilla, therefore, “applies retroactively to matters under collateral review under Teague.” In re Tsai, No. 88770-5, slip op. at 10.
That said, the court didn’t make light of Padilla’s enormous impact on the practice of criminal law. A number of intermediate appellate court decisions in Washington seemed to suggest that the judicial admonishment statute could never successfully serve as the basis of an ineffective assistance claim. Id. at 13-16. “Padilla superseded these decisions, significantly changing state law.” Id. at 14. A “significant change” in law, the court took pains to explain, is different from a new rule of law. A significant change in law falls short of a new rule as defined for Teague retroactivity purposes. Id. at 12.
Indeed, Teague’s concern about new rules is irrelevant to the significant change analysis. Id. While the new rule inquiry is intended to make collateral attacks more difficult, the “significant change” requirement, based on a Washington statute concerning post-conviction challenges, is intended to reduce procedural barriers to collateral challenges. Id. at 12-13. Padilla constituted a significant change in Washington law, but it wasn’t a new constitutional rule of criminal procedure.
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