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Padilla does not apply retroactively

Chaidez v. United States, USSC No. 11-820, affirming 655 F.3d 684 (7th Cir. 2011)

Issue:  We know that Padilla v. Kentucky, 559 U.S. 356 (2010) requires counsel to advise a defendant about the risk of deportation arising from a guilty plea.  The question presented by Chaidez is whether or not that rule applies retroactively so that a person whose conviction became final before Padilla can benefit from it.  (Slip. op., at 3).

The answer turns on the application of Teague v. Lane, 489 U.S. 288 (1989), which holds that a decision re criminal procedure is not retroactive where it announces a “new rule.”

A case announces a new rule . . . when it breaks new ground or imposes a new obligation on the government.  To put it differently . . . a case announces a new if the result was not dictated by precedent existing at the time the defendant’s conviction became final.  Id. at 301 (Citations omitted).

[A case does not] announce a new rule when it is merely an application of the principle that governed a prior decision to a different set of facts.  Id.

So, did Padilla announce a new rule or not?  The dissent said “no.”  Padilla simply applied the Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel test to a different set of facts.  (Slip. op. at 12).  The majority, obviously, disagrees:

But Chaidez’s (and the dissent’s) story line is wrong . . . Padilla had to develop new law, establishing that the Sixth Amendment applies at all, before it could assess the performance of Padilla’s lawyer under Strickland.  Our first order of business was thus to consider whether the widely accepted distinction between direct and collateral consequences categorically foreclosed Padilla’s claim, whatever the level of his attorney’s performance.  We did not think, as Chaidez argues, that Strickland barred resort to that distinction . . . All that reasoning came before we conducted a Strickland analysis (by examining professional norms and so forth) and none of it followed ineluctably from prior law.  (Slip op. at 8).

Holding:  Because Padilla announced a new rule, the majority holds, defendants whose convictions became final prior to that decision, cannot benefit from it.  (Slip. op. at 10).

Henderson, and what it could mean for Wisconsin, here and here.  In short, “the impact of this case on Padilla-specific litigation may well be non-existent,” but its interpretation of Teague could apply in many different contexts.

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