U.S. Supreme Court questions if ruling goes retro

By Kimberly Atkins Dolan Media Newswires BOSTON, MA--The issue of whether criminal defendants' Sixth Amendment right to be warned of the immigration consequences of guilty pleas, as established by a 2010 U.S. Supreme Court ruling, is retroactive was front and center during oral arguments on Thursday. The justices seemed torn on the issue of whether the decision in Padilla v. Kentucky was a new rule, foreclosing the possibility of it being applied in older cases, or simply the articulation of an old rule, opening the door to retroactive application. The case of Chaidez v. U.S. involves Roselva Chaidez who, following her counsel's advice, pleaded guilty to mail fraud in 2003 to receive a sentence of four years' probation. Unbeknownst to her, the conviction made her an aggravated felon under federal immigration law, rendering her removable. After deportation proceedings against her began, Chaidez attempted to have the conviction vacated by filing a writ of coram nobis, which allows a conviction to be challenged after the sentence is served. She based her petition on a claim of ineffective assistance of counsel. While her motion was pending in federal district court, the Supreme Court ruled in Padilla that attorneys must warn criminal defendants of any adverse immigration consequences of their pleas. The district court then ruled in Chaidez's favor, finding the application of Padilla retroactive. But the 7th Circuit reversed, holding that Padilla announced a new rule under the retroactivity standard established by the Supreme Court in the 1989 case Teague v. Lane (489 U.S. 2888), which only allows for retroactive application of clearly established rules of law. Chaidez sought and was granted certiorari by the Supreme Court. (To read more about the probable effect of the Court's ruling, see "Lawyers await 'Padilla' retroactivity ruling.") Of precedent and dissents Jeffrey Fisher, co-director of Stanford Law School's Supreme Court Litigation Clinic, argued on Chaidez's behalf that Padilla was dictated by already-existing precedent that set the standard for ineffective assistance of counsel under the 1984 case Strickland v. Washington and its progeny. "The Court in Padilla simply applied Strickland's formula of assessing attorney performance according to prevailing professional norms to a new set of facts," Fisher argued. Justice Elena Kagan questioned whether it was that easy. "Before you get to the question of what are prevailing professional norms and whether they have been complied with, there is the question of whether the Sixth Amendment applies to collateral consequences at all," Kagan said. "And that is the question on which Padilla opines." Fisher replied that already existing precedent interpreting the Sixth Amendment right to counsel "was enough to decide Padilla." Justice Antonin G. Scalia pointed out the fact that Padilla was not unanimous. Four of the eight current justices who heard the case disagreed, at least in part, with the Court's holding. "You ... would agree, would you not, that those who dissented from that case would regard it as a new rule?" Scalia said. "That's a tricky question to answer," Fisher said. "Well, I think it's an easy question to answer," replied Scalia, who was one of the dissenters in Padilla. 'Does common sense change?' Deputy Solicitor General Michael R. Dreeben argued that the Padilla rule was clearly new, because previous case law accepted the use of prevailing professional standards, such as those established by the American Bar Association, to govern attorneys' duties. "What was unique in Padilla is that the Court had to address something that it had never done before, whether the criminal defense lawyer had to give advice about a consequence that the sentencing court had no control over," Dreeben said. The justices peppered Dreeben with questions on this point. "As I recall, one of the principal sources the Court cited in Padilla was common sense," Justice Anthony M. Kennedy said. "Does common sense change?" "Common sense may evolve," Dreeben said. "[W]e might all share an intuition that good lawyers should advise their clients about the panoply of consequences that they will experience by pleading guilty, [but] the reality is that until Padilla, the Court had never veered from [that] track" to impose a specific duty to warn of immigration consequences. The rule was so new, Dreeben argued, that it spurred a proposed change in criminal procedure. "Immediately after Padilla came down ... the Criminal Rules Committee began considering an amendment to Rule 11, which is now pending before the Judicial Conference, that would require judges to advise defendants about the possibility of deportation consequences," Dreeben said. A decision is expected later this term. Entire contents copyrighted © 2012 by The Dolan Company. Published: Thu, Nov 8, 2012

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