Thoughts on the Supreme Court’s Opinion in Chaidez

Is Padilla retroactive? This hotly debated question was definitively answered on Wednesday, when the Supreme Court issued its decision in Chaidez v. United States. As we discussed in a previous post, Chaidez concerned whether the Court’s 2010 decision in Padilla v. Kentucky applies retroactively to cases already final on direct review. Padilla held that a criminal defendant is deprived of effective assistance of counsel, in violation of her Sixth Amendment rights, when her trial counsel fails to advise her that accepting a guilty plea may result in near-certain deportation. If Padilla applies retroactively, noncitizens with convictions that became final years or, in some cases, decades earlier could nevertheless benefit from its holding. The lower federal and state courts were intractably split on the retroactivity question, and review by the Supreme Court seemed inevitable.

In a 7-2 decision authored by Justice Kagan, the Court ruled in Chaidez that “under the principles set out in Teague v. Lane, 489 U.S. 288 (1989), Padilla does not have retroactive effect.” To the contrary, Padilla “announced a ‘new rule.’” Consequently, a criminal defendant whose conviction became final prior to March 31, 2010—the date Padilla was issued—cannot benefit from Padilla’s holding that criminal defense attorneys must inform their noncitizen clients of the deportation risks associated with accepting a guilty plea. More significantly, individuals in this position are unable to claim that their attorney’s failure to properly advise constitutes a violation their constitutional right to effective assistance of counsel, and thus grounds for post-conviction relief.

The Court’s assertion in Padilla that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel” had inspired hope among many noncitizens (and their lawyers) that efforts to modify or vacate past convictions—and thereby avoid deportation—were not only viable, but grounded in venerated constitutional principles. For a great many, Chaidez dashed those hopes. Justice Thomas authored a concurring opinion, standing firm in his belief that “Padilla was wrongly decided and [] the Sixth Amendment does not extend—either prospectively or retrospectively—to advice concerning the collateral consequences arising from a guilty plea.” Justice Sotomayor, joined by Justice Ginsburg, dissented. The dissent essentially agreed with Ms. Chaidez’s argument that “Padilla did nothing more than apply the existing rule of Strickland” and complained that the majority’s opinion rests on a distinction—between direct and collateral consequences of a conviction—that “the Court has never embraced and that Padilla found irrelevant to the issue it ultimately decided.”

The majority’s decision in Chaidez rested on its application of Teague, which explained that “a case announces a new rule when it breaks new ground or imposes a new obligation” on the government. Stated otherwise, “a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” The Court rejected Ms. Chaidez’s contention that Padilla was nothing more than the application of existing precedent—Strickland v. Washington—to a new set of facts, namely, the deportation consequences of a guilty plea. The Court acknowledged that “garden-variety applications of the test in Strickland … for assessing claims of ineffective assistance of counsel do not produce new rules.” And as the Court had previously declared, Strickland “provides sufficient guidance for resolving virtually all” claims of ineffective assistance, across “diverse contexts,” without the need for a new rule. Ms. Chaidez’s attorney had emphasized this point during argument, noting that in the nearly three decades since Strickland was decided, the Court had never (before) ruled that an application of Strickland’s two-prong test for ineffective assistance of counsel—deficient performance and prejudice—resulted in a new rule.

That changed with the issuance of Chaidez, however, because the Court concluded that “Padilla did something more.” Specifically, the majority explained, prior to assessing how the Strickland test applied to Mr. Padilla’s ineffective assistance claim, Padilla first asked whether the Strickland test applied at all to a claim concerning deportation consequences. It’s a relevant question, because a defense attorney’s advice about issues that are collateral rather than direct consequences of a guilty plea generally do not implicate the Sixth Amendment. For example, whereas imprisonment, fines, or probation are direct consequences of conviction, other effects such as civil commitment, civil forfeiture, sex offender registration, and loss of voting rights are generally viewed as collateral. And prior to Padilla, state and lower federal courts “almost unanimously concluded that the Sixth Amendment does not require attorneys to inform their clients of a conviction’s collateral consequences, including deportation.”

This purported “near unanimity” among the lower courts that deportation consequences are collateral, and thus do not implicate the Sixth Amendment, proved to be a hurdle Ms. Chaidez could not overcome. According to the majority, before Padilla, “[a]ll 10 federal appellate courts” and “almost 30 states” agreed with this position, whereas “only two state courts” had ruled that failing to advise a client about deportation risks or other collateral consequences violated her constitutional right to effective assistance. Consequently, the Court said, Padilla “answered a question about the Sixth Amendment’s reach that we had left open,” and the answer conflicted with the overwhelming consensus among the lower courts. The majority thus rejected Ms. Chaidez’s contention that Padilla merely applied—in fact, was dictated by—Strickland, because Padilla had first to answer the threshold question “whether Strickland applied at all.” And the Court resolved this threshold question “by breaching the previously chink-free wall between direct and collateral consequences.”

According to the majority, “[i]f that does not count as ‘break[ing] new ground’ or ‘impos[ing] a new obligation,’ we are hard pressed to know what would.” Because Padilla was not dictated by precedent, the Court held, under Teague the decision qualifies as a new rule. The majority rejected the arguments advanced by Ms. Chaidez—and championed by the dissent—that Padilla’s application of Strickland to deportation consequences was reasonable and unextraordinary, resulting as it did from the mere evolution of professional norms. To the contrary, the majority declared that “Padilla had to develop new law, establishing that the Sixth Amendment applied at all, before it could assess the performance of Padilla’s lawyer under Strickland.” Notably, the majority quickly added that although Padilla’s holding— “that the failure to advise about a non-criminal consequence could violate the Sixth Amendment”—may not have been “apparent to all reasonable jurists,” the decision stands unscathed: “we do not cast doubt on, or at all denigrate, Padilla.” This reaffirmation of Padilla, particularly in light of certain Justices’ persistent hostility to the decision, stands as a bright spot in an otherwise disappointing opinion.

What now? It seems safe to predict that Chaidez is not the end of the story on this issue. As the majority noted in a final footnote, two arguments advanced by Ms. Chaidez were not addressed in the Court’s opinion, because they were not adequately raised below. The first is that Teague does not apply to cases in which a noncitizen defendant is challenging a federal as opposed to a state conviction, and the second is that the “new rule” announced in Padilla applies to post-conviction ineffective assistance of counsel claims, because such claims cannot be brought on direct appeal but only through a later habeas or coram nobis action. For claimants who would otherwise be precluded from seeking post-conviction relief under Chaidez, such arguments are certainly worth pursuing.

In addition, it seems that Chaidez is not fatal to ineffective assistance claims based on affirmative misadvice as to deportation consequences, rather than mere failure to advise. Counsel for the government appeared to concede as much during argument in Chaidez. In response to questioning by Justice Sotomayor, Michael Dreeben from the Solicitor General’s office agreed that Padilla did not distinguish between misadvice and omissions to give advice—between errors of commission versus errors of omission—and that “misadvice claims [] existed before Padilla.” He explained that affirmative misadvice “violate[s] a more basic duty of counsel that was well established” before Padilla, namely the duty “not to get in the way” of a client’s constitutional right to decide whether to plead guilty. Thus, he allowed, “I would probably not disagree that misadvice was not new before Padilla” and it “has its own independent sources.” Accordingly, a noncitizen seeking to modify or vacate a pre-Padilla conviction based on affirmative misadvice as to likely deportation consequences need not resort Padilla, and thus would not be barred by Chaidez. Such a client could base her claim on a straightforward application of Strickland.

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