Lifted Lamp

So I went up to the Supreme Court yesterday to hear argument in Chaidez v. United States, No. 11-820. Chaidez concerns the straightforward question whether the Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies retroactively – i.e., to defendants whose convictions became final prior to its issuance two years ago. Jeffrey Fisher from Stanford Law School’s Supreme Court Litigation Clinic argued on behalf of Ms. Chaidez, and Michael Dreeben from the Solicitor General’s office on behalf of the government. Spirited arguments from both sides. Shout out to Friend of BR Chuck Roth from the National Immigrant Justice Center in Chicago, who sat right up front at counsel table with the other legal hotshots.

First off, I have to say I love attending arguments at the Supreme Court. I’m an unapologetic con-law nerd, and watching argument is like political theatre for lawyers. It doesn’t even have to be an immigration case – even the dreariest dormant commerce clause dispute can be enthralling when you have the wisecracking Justice Scalia, the sharp-tongued Justice Ginsburg, and the gesticulating Justice Breyer on the bench. You can keep your Arena Stage and Shakespeare Theatre – for me, 1 First St., NE is where the drama really unfolds.

In Padilla, the Court 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. Padilla involved a plea to a charge of transporting marijuana, which qualified as both a deportable controlled substance offense, INA §237(a)(2)(B)(i), and an aggravated felony drug trafficking offense, INA §101(a)(43)(B). In 2003, Ms. Chaidez, on advice of counsel, pled guilty to mail fraud and was ordered to pay more than $22,000 in restitution, making her crime an aggravated felony “offense involving fraud or deceit in which the loss to the victim exceeds $10,000,” INA §101(a)(43)(M)(i).

Padilla announced that such ineffective assistance with respect to deportation consequences – an issue collateral to the criminal proceedings but nonetheless a “matter of great importance” to noncitizen criminal defendants – “is not categorically removed from the ambit of the Sixth Amendment right to counsel.” 130 S. Ct. at 1482, 1484. Such constitutionally deficient representation satisfies the first prong of the test articulated in Strickland v. Washington, 466 U.S. 668 (1984), and where a defendant also proves the second prong – that she was prejudiced by her attorney’s ineffective assistance – the conviction is constitutionally infirm and the post-conviction relief sought (typically via habeas corpus or writ of coram nobis) should be granted. But Padilla did not address whether its holding applies retroactively to cases brought on collateral review.

To answer the retroactivity question, the parties in Chaidez turned to Teague v. Lane, 489 U.S. 288 (1989), which held that a decision that merely applied an established rule to the facts of a particular case applies retroactively to convictions that are already final. But where a rule of criminal procedure “breaks new ground or imposes a new obligation on the States or the Federal Government,” the rule does not apply retroactively to cases on collateral review. Teague, 489 U.S. at 301. The government argued that Teague controls and Padilla announced a new rule, hence it does not apply retroactively. Counsel for Ms. Chaidez countered that Padilla was merely the application of existing precedent (Strickland) to a new set of facts, and, moreover, that the Court should say Teague does not even apply where a case is on the equivalent of direct review – i.e., a first challenge to the trial court’s decision, which in the plea context only occurs upon habeas or coram nobis review because direct appeal has been waived.

In yesterday’s argument, Mr. Fisher declared that Padilla did not announce a new rule because the Court’s decision was “dictated by precedent,” namely Strickland, and it “simply applied Strickland’s formula of assessing attorney performance according to prevailing professional norms to a new set of facts.” Mr. Dreeben, by contrast, maintained that Padilla “announced a new rule within the meaning of Teague” because, in part, no prior Supreme Court decision “had ever held that the obligations of a criminal defense lawyer under the Sixth Amendment extended” to accurately advising a defendant of deportation consequences. In other words, Padilla “broke new ground” because it cannot be said that “any reasonable jurist would have reached [the] result” announced in Padilla – as evidenced by near unanimity among the lower courts that there exists no Sixth Amendment obligation for counsel to accurately advise a client of potential collateral consequences, including deportation consequences.

The points raised at argument tracked, to a significant degree, the arguments presented in the respective parties’ briefs. There were no real bombshells, no clear “gotcha” moments, and it’s difficult to predict the outcome of the case, although it seems likely to be a split opinion along the same lines as Padilla. Justice Scalia implied as much when he asked Mr. Fisher whether he would agree that those who dissented in Padilla (Justices Scalia and Thomas, with Justice Alito and Chief Justice Roberts in concurrence) would regard it as announcing a new rule. Mr. Fisher: “That’s a tricky question to answer, Justice Scalia.” Justice Scalia: “Well, I think it’s an easy question to answer.” Sustained laughter in the courtroom. No ambiguity there.

But certain moments did stand out, moments which give cause for optimism that the Court may issue a favorable ruling – namely, that Padilla does apply retroactively, because it was merely an application of Strickland and did not announce a new rule under Teague. As Mr. Fisher observed in his opening remarks, in the 20 years since Teague was decided, more than a dozen cases have been presented to the Supreme Court involving post-conviction claims based on ineffective assistance of counsel, and the Court “has never once held that applying Strickland in those [various cases] constituted a new rule.” To do so in this case would be a first. He also effectively pressed the point that Padilla did not hold that Strickland extends to all collateral consequences of a conviction, but only that “advice concerning deportation consequences of a guilty plea are not categorically removed from the Sixth Amendment.”

Mr. Fisher described the lower courts’ contrary holdings, prior to Padilla, as creating an “artificial restriction on Strickland” that the Court should now correct. He noted also the helpful language in Williams v. Taylor, 529 U.S. 362 (2000), paraphrasing the Court that “Strickland provides sufficient guidance to resolve virtually every ineffective assistance claim.” Consequently, even in different factual scenarios, no new ground is broken and no new rule arises because “so long as you simply applied Strickland, you wouldn’t create a new rule.” Persuasive also was his reminder that Padilla was not the first decision to recognize the importance of deportation consequences, because nine years earlier the Court had observed that “[p]reserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” INS v. St. Cyr, 533 U.S. 289, 323 (2001). As Mr. Fisher put it in response to a question from Justice Kagan, “even if you needed more than Strickland itself” to decide this issue, “St. Cyr gave that to you in 2001 … it was enough to decide Padilla.”

In response to concerns raised by Justices Alito and Kennedy about the finality of criminal convictions, particularly where claims might be brought years later in a writ of coram nobis, Mr. Fisher again turned to Strickland’s statement that “no different rules ought to apply in collateral proceedings [than] in direct review,” because the Court assumed in both Strickland and in Padilla that “all of these claims would be on collateral review.” Thus, “the very concern you mentioned, Justice Kennedy, is already baked into the Strickland formula.” Furthermore, Mr. Fisher’s efforts to collapse the distinction, for Sixth Amendment purposes, between an attorney’s affirmative misadvice and mere failure to properly advise – between, as Padilla put it, acts of commission and acts of omission – was key to his argument. He was aided by the majority opinion’s discussion in Padilla, which acknowledged support for this distinction among the lower courts but declared that such a limited holding would invite “absurd results.” Padilla, 130 S. Ct. 1484.

When Mr. Dreeben stood up, he wasn’t even allowed to complete his first sentence before Justice Sotomayor asked him about the omission-commission distinction. In response, he conceded that “Padilla didn’t distinguish between misadvice and omissions to give advice” and maintained that applying Sixth Amendment protections to either would qualify as a new rule under Teague, thus “neither is retroactive.” He went on to discuss the lower courts’ refusal to find constitutional deficiency where the ineffective assistance related to collateral consequences – including deportation consequences – and acknowledged that those decisions arose primarily in cases involving affirmative misadvice. In Mr. Dreeben’s words, “a client has a constitutional right to make his or her own decision about whether to plead guilty; and a lawyer has a constitutional duty not to get in the way of that by affirmatively skewing the client’s ability to make that choice.” But he emphasized that prior to Padilla, “[n]o decision of this Court had ever held that the obligations of a criminal defense lawyer under the Sixth Amendment extended to” a collateral consequence, i.e. “a consequence that would not be administered in the criminal case itself.” To my mind, this among the government’s strongest arguments. As Mr. Dreeben insisted, “Padilla broke new ground because it answered the question, not how does Strickland apply, but whether it applies at all to something outside the compass of the sentencing court.”

In the end, the outcome in Chaidez will turn on whether the Court interprets Padilla as breaking new ground or merely applying the established rule in Strickland to a new set of facts. Justice Kennedy noted that “one of the principal sources the Court cited in Padilla,” for extending Sixth Amendment protections to the collateral issue of deportation consequences “was common sense.” And as an immigration lawyer, it’s hard to deny that what the Court did in Padilla felt novel and momentous – and the past two years have only confirmed that impression. As my partner Andres Benach remarked on the day the decision was issued, “Padilla is a game-changer.” As Mr. Dreeben effectively argued, “My test for Teague new rules is this Court’s test: Whether the decision was dictated by precedent so that any reasonable jurist would have reached that result, or, to put it another way, that no reasonable jurist could not have.” To hold that Padilla applies retroactively would require the Court to find that nearly every lower court that had addressed the question prior to Padilla simply got it wrong. That those courts erred by failing to apprehend that Sixth Amendment protections do extend to advice by trial counsel regarding deportation consequences, and that this rule was dictated by precedent, namely Strickland. Although, as Justice Sotomayor retorted, “So unanimous error makes right?”

In his brief rebuttal, Mr. Fisher returned to the distinction between affirmative misadvice and failure to advise, and insisted that the government’s case cannot withstand the Court’s collapsing of that distinction. He argued, “The only thing [Mr. Dreeben] relies on in the end is this distinction the lower courts had drawn between acts and omissions. And that’s exactly the distinction in Strickland that this Court rejected” and which Padilla described as “absurd.”

Did Padilla break new ground and announce a new rule, or was the result dictated by an existing rule of law, as set forth in Strickland? We’ll find out in a few months’ time.