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Supreme Court Takes Up ‘Padilla’ Retroactivity, But States Have Final Say
Ineffective assistance claims tougher sell in R.I. than in Mass.
By Kimberly Atkins
Two years after the U.S. Supreme Court’s landmark ruling that the Sixth Amendment requires criminal defense attorneys to warn non-citizen clients if a guilty plea carries a risk of deportation, the Court is poised to decide just how far back that constitutional protection extends.
On April 30, the Court granted certiorari in Chaidez v. U.S., a case that raises the issue of whether the Court’s seminal 2010 ruling in Padilla v. Kentucky (130 S. Ct. 1473) applies retroactively.
The impact of the Court’s ruling could be immense, both within and outside of the immigration context. In the two years since Padilla was decided, it has been cited by lower courts in cases involving a wide range of consequences unforeseen by defendants who entered bargained pleas, including the loss of public housing, ineligibility to vote, adverse financial consequences, the loss of a driver’s license and the inability to obtain a professional license in a regulated field.
But the effect of the ruling, like that of Padilla, will vary state by state, as immigration and criminal defense lawyers who practice in Rhode Island and Massachusetts are already aware.
While Massachusetts courts have been receptive to Padilla ineffective assistance motions, in Rhode Island “Padilla is not the end of the analysis,” said John E. MacDonald, a Providence-based trial attorney practicing criminal defense, immigration law and post-conviction relief in Rhode Island and Massachusetts. Ineffective assistance is “much harder to prove” in Rhode Island.
Tale of two states
Soon after Padilla was decided, the Rhode Island Supreme Court handed down a ruling that took most of the punch out of the high court’s decision, according to criminal defense and immigration attorneys.
In Neufville v. State, 13 A. 3d 607, the state’s highest court applied Padilla to the case of a defendant who claimed his attorney failed to warn him that his 2003 pleas of nolo contendere to charges of assault and firearm possession would lead to removal proceedings.
The court denied the defendant relief, finding that his attorney did warn that some immigration consequences could follow.
“[The] applicant suggests that Padilla requires a criminal defense attorney to inform the defendant that his or her deportation is ‘presumptively mandatory’ and that failure to do so falls below the acceptable standard of effective assistance of counsel. The applicant contends that defense counsel was ‘under an obligation to make clear that automatic deportation would be the result of entering nolo pleas.’ We disagree with this contention,” wrote Justice Maureen McKenna Goldberg.
“Counsel is not required to inform their clients that they will be deported, but rather that a defendant’s ‘plea would make [the defendant] eligible for deportation.’”
The court also found that defendant failed to show prejudice under the standard set out in Strickland v. Washington, 466 U.S. 668, because he could have received a longer sentence if he had gone to trial.
That part of the analysis “is much harder to prove,” said MacDonald. “Strickland remains a formidable bar in Rhode Island.”
Claudia Gregoire, an immigration lawyer at George J. West & Associates in Providence, said that while a U.S. Supreme Court ruling making Padilla retroactive “would be very important” to those seeking relief, the Neufville ruling would dramatically limit its application in the state.
“I would characterize the prejudice [holding] in Neufville as nearly impossible to overcome,” said Gregoire. “Basically, you have to show that [a defendant’s] sentence would have been a lot less, or that they would have likely prevailed at trial.”
Gregoire, who also practices in Cambridge, Mass., said she has seen a dramatic difference in the impact of Padilla depending on what side of the state border she’s standing.
“In Massachusetts people have been benefiting from Padilla,” Gregoire said.
Old or new law?
That split among state and federal courts on the treatment of Padilla is likely a factor behind the Supreme Court’s decision to take up Chaidez to clear up the issue of retroactivity. That case involves a permanent resident from Mexico who pleaded guilty to two counts of mail fraud in connection with a staged auto insurance scheme in 2003.
Years later, when she applied for citizenship her application was denied and the government began removal proceedings against her based on her convictions.
She moved to have the convictions overturned, arguing that she received ineffective assistance of counsel because her defense attorney failed to inform her that a guilty plea could lead to removal. She claimed that she would not have pled guilty if she had been made aware of the immigration consequences of such a plea.
The Supreme Court issued its decision in Padilla while her motion was pending. The district court ruled that Padilla applied and granted the petition to vacate the convictions.
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. Therefore, its holding did not apply.
The question of whether the Sixth Amendment right articulated in Padilla is old or new will be at the heart of the arguments in Chaidez.
“I think that generally the Court hasn’t looked at applications of Strickland, which sets forth the ineffective assistance of counsel test, as being new rules,” said Elizabeth B. Wydra, chief counsel for the Washington-based Constitutional Accountability Center, who wrote an amicus brief urging the Court to take up the case and rule in favor of retroactivity. “They are [seen as] applications of the existing ineffective assistance of counsel standard. So I think here, especially if you look at how the majority opinion in Padilla is written, which seems to assume the position will be retroactive, that is strong indication that Padilla did not announce a new rule, but instead was simply applying Strickland in a new context.”
Beyond the state-by-state variances, there is disagreement among lawyers as to how many additional successful Padilla motions might result from a ruling in favor or retroactivity.
MacDonald said he does not anticipate a flood of new litigation.
“Retroactivity has come up only once in the two years I have been litigating Padilla-based motions,” said MacDonald.
He also sees little chance of convictions being overturned at a high rate if the Court rules in favor of retroactivity, since defense attorneys should have been warning of immigration consequences long before Padilla.
“For at least 15 year the ABA standards have required this kind of advice from criminal defense attorneys,” MacDonald said, noting that Justice John Paul Stevens made that observation in the Padilla opinion. “It took the Supreme Court to remind us of that.”
James O. Hacking, III, a St. Louis-based immigration attorney, also said he doesn’t expect a flood of motions in the event of a retroactivity ruling, noting that any defendant seeking to have a plea bargained conviction overturned would have to face those criminal charges again, as well as the possibility of a longer sentence. “That cuts against the floodgate argument.”
But, he said, despite the professional standards in place prior to Padilla, not all defense attorneys were warning clients of immigration related consequences of guilty pleas.
Some criminal defense attorneys “were focused on getting the best result in that case,” Hacking said. “If the client had questions about immigration consequences, they may have told them to consult an immigration attorney.”