Padilla v. Kentucky: Retroactivity – Habeas Review
The holding of Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010), that as in incident of effective representation, “counsel must inform her client whether his plea carries a risk of deportation,” is a “new rule” within the meaning of Teague v. Lane, 489 U.S. 288 (1989), and therefore may not be applied retroactively.
Under Teague, a constitutional rule of criminal procedure applies to all cases on direct and collateral review if it is not a new rule, but rather an old rule applied to new facts. Id. A new rule applies only to cases that still are on direct review, unless one of two exceptions applies. Id. In particular, a new rule applies retroactively on collateral review if (1) it is substantive or (2) it is a “‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Id. (citations omitted).
A rule is said to be new when it was not “dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301 (emphasis in original). … The pertinent inquiry here is whether Padilla’s outcome was “susceptible to debate among reasonable minds.” Butler, 494 U.S. at 415. Put differently, “our task is to determine whether a . . . court considering [Chaidez’s] claim at the time [her] conviction became final”—pre-Padilla—“would have felt compelled by existing precedent to conclude that [Padilla] was required by the Constitution.” Saffle, 494 U.S. at 488.
The majority goes on to say that Padilla announced a “new” rule, so Chaidez is out of luck. The particulars of the court’s reasoning won’t be recited here (note, however, Judge Williams’ strong dissent, essentially making the point that Padilla “simply clarified that a violation of these norms [re: counseling as to risk of removal] amounts to deficient performance”). Some of the general principles articulated by the majority:
- That task is a “difficult” one where, as here, the decision at issue “extends the reasoning of . . . prior cases,” as opposed to “explicit[ly] overruling . . . an earlier holding.” … Lack of unanimity on the Court in deciding a particular case supports the conclusion that the case announced a new rule. … Similarly, if the lower courts were split on the issue, the Court has concluded that the outcome of the case was susceptible to reasonable debate. …
- Under Teague, a rule is old only if it sets forth the sole reasonable interpretation of existing precedent. … The fact that Padilla is an extension of Strickland says nothing about whether it was new or not.
- We recognize that the application of Strickland to unique facts generally will not produce a new rule. … However, that guiding principle is not absolute. … We believe Padilla to be the rare exception. Before Padilla, the Court had never held that the Sixth Amendment requires a criminal defense attorney to provide advice about matters not directly related to their client’s criminal prosecution. In Padilla, the Court held that constitutionally effective assistance of counsel requires advice about a civil penalty imposed by the Executive Branch (now the Department of Homeland Security, formerly the Immigration and Naturalization Service) after the criminal case is closed. In our view, that result was sufficiently novel to qualify as a new rule. Indeed, if Padilla is considered an old rule, it is hard to imagine an application of Strickland that would qualify as a new rule. Perhaps in the future the Court will conclude, given the breadth and fact-intensive nature of the Strickland reasonableness standard, that cases extending Strickland are never new. But until that time, we are bound to apply Teague in the context of Strickland.
Any lessons for the Wisconsin practitioner? Start with the specific context. The possibility of deportation has been a statutorily mandated part of the plea colloquy, § 971.08(1)(c), for a very long time. See State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993). Circuit court error in omitting this part of the colloquy was held not subject to harmless error analysis in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1 – that is, the defendant is entitled to plea-withdrawal even if he in fact knew the risk of deportation – though that holding is non-retroactive, State v. Lagundoye, 2004 WI 4, 268 Wis.2d 77, 674 N.W.2d 526 (applying Teague analysis). Even so, for two decades, Wisconsin defendants have been able to litigate something like Padilla error, on the ground of trial court rather than counsel’s error; and for the past decade, relief has followed automatically from the error. The number of “old” state cases containing Padilla error is necessarily minimal, if any, and the impact of this case on Padilla-specific state litigation may well be non-existent.
The case is nonetheless worth keeping in mind for its articulation of broader Teague principles, which of course are potentially recurrent across different contexts. Also worth considering: whether the holding reinforces the increasingly (and unfortunately) relied-on idea that counsel is neither expected “to argue a point of law that is unclear,” State v. Thayer, 2001 WI App 51, ¶14, 241 Wis. 2d 417, 626 N.W. 2d 811; nor, “to argue a point of law that is unsettled,” State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994). Also, State v. Jackson, 2011 WI App 63, ¶10.
One last point, related to procedure: this case was brought via writ of coram nobis. Chaidez wasn’t in custody, so she couldn’t bring it as a habeas petition (28 U.S.C. § 2255 in her instance; same would be true for § 2254). Coram nobis doesn’t care whether you’re in custody, but at least as a federal writ is “allowed only where collateral relief is necessary to address an ongoing civil disability resulting from a conviction. Godoski v. United States, 304 F.3d 761, 762 (7th Cir. 2002). Because a writ of error coram nobis affords the same general relief as a writ of habeas corpus, Howard v. United States, 962 F.2d 651, 653 (7th Cir. 1992), we proceed as we would in a habeas case.” State court usage of the writ of coram nobis appears to be a bit more obscure, possibly because it seems to serve a different purpose, namely, to “give the trial court an opportunity to correct its own record of an error of fact not appearing on the record and which error would not have been committed by the court if the matter had been brought to the attention of the trial court.” Jessen v. State, 95 Wis. 2d 207, 213-14, 290 N.W.2d 685 (1980) (and: petition must show “the existence of an error of fact which was unknown at the time of trial and which is of such a nature that knowledge of its existence at the time of trial would have prevented the entry of judgment,” at 214).